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For a Non-partisan Commission on Detainee Treatment

JURIST Guest Columnist Jonathan Tracy of the National Institute of Military Justice at American University Washington College of Law says President Obama and Congress should appoint a non-partisan commission to examine and report on policies and actions related to the detention, treatment, and transfer of detainees, including by the Department of Defense...

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It has long been important to our nation's civilian and military leaders to fight wars in a manner respectful of human rights, including treating captured belligerents humanely. Our respect for these values predates our birth as a nation. After capturing enemy belligerents in the Revolutionary War, Gen. George Washington ordered his troops to ?treat them with humanity, and let them have no reason to complain of our copying the brutal example of the British Army in their treatment of our unfortunate brethren.? This example long served as a sign of America?s position as a beacon of light in the world.

Today, this light has been dimmed with tales of abuse from Abu Ghraib, Bagram Air Base and Guantanamo Bay, leaked memorandums from the departments of justice and defense authorizing ?enhanced interrogation techniques,? and from public statements by senior members of the Bush administration describing how and why they allowed humane treatment to be discarded in our fight against terrorists. The impact of diminished respect for humane treatment cannot be overestimated; it decimated our moral standing, harmed our strategic interests, and placed U.S. actors in violation of the law.

It is in light of these facts that I wholeheartedly support the demand made to President Obama and Congress by a coalition of leading experts and former civilian and military officials to appoint a non-partisan commission to examine, and provide a comprehensive report on, policies and actions related to the detention, treatment, and transfer of detainees, including by the Department of Defense.

Part of the back-bone of military effectiveness is ?good order and discipline.? Good order and discipline naturally erodes when policies allow for extra-legal activities and actions contrary to American values. Bad behavior ensues. As a judge advocate serving in Iraq when the Abu Ghraib abuse scandal broke, I saw numerous good officers and enlisted soldiers became demoralized. In the same way such acts enflame insurgents, they deflate good soldiers. The taint of Abu Ghraib will never leave the ranks until there is a full accounting of the policies and orders that set the stage for abuse. It is not enough to hang the event only on the shoulders of a few low-level enlisted men and women.

Evidence suggests that the Bush administration made a deliberate effort to erode the protections legally required to be afforded detainees. The newly minted status of ?unlawful enemy combatant? ensured that they did not receive sufficient protection. Despite Bush?s claim that all detainees would be treated ?humanely? the evidence seems to indicate a top-down erosion of protections for detainees with the loosening of interrogation methods by Secretary of Defense Rumsfeld. Further, in a recent interview, Vice President Cheney indicated that he played a role in authorizing ?enhanced interrogation? methods, including water boarding. The policy discussions and memorandums written and approved by senior administration and Department of Defense officials must be examined and discussed openly. Thwarting these efforts in the hope that Obama and future administrations will simply not follow the path of the last eight years is not good enough. The darkness will linger ready to corrupt the next leader faced with a 9/11-like event. And, unfortunately, our soldiers will live under the shadow of past abuses instead of under the shining light of Gen. Washington?s order.

The purpose for the proposed commission is quite simply to respond to what a healthy democracy requires of its government and citizenry: ensuring that no one stands above the law. Ignoring core American values and violating laws as significant as the prohibition against torture, mean nothing less than discarding our Constitution and makes a farce out of our democracy. Two opponents of appointing a commission wrote in the Washington Post that holding political opponents to account ?is like pouring acid into our democratic machinery.? If this theory were taken to its logical conclusion, any leader of our democracy could commit any ghastly or heinous crime with impunity.

As the eminent political philosopher, Denis Diderot, wrote, ?The difficult problem to solve is?not that of giving laws, or even good laws, to a people; it is that of protecting these laws from any attack on the part of the sovereign.? We, as a people, should not allow blindness to follow darkness. Instead, we should examine our past to ensure that we find our way back to the values first laid out by Gen. Washington when his troops captured those fighting to end our quest for freedom.

Jonathan Tracy is the assistant director of the National Institute of Military Justice at American University Washington College of Law in Washington, D.C., and a former Army Judge Advocate.

Editor's note: NIMJ is a member of the coalition proposing the commission to the Obama Administration

Full post as published by JURIST - Forum on February 24, 2009 (boomark / email).