The Military Commissions Act and “Torture Lite”: Something for a Great Nation to Be Proud Of?

by: Jenny S. Martinez

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March 23, 2007

48 Harv. Int’l L.J. Online 58 (2007)

Jenny S. Martinez is an Associate Professor of Law at Stanford Law School.

This article is a response to John B. Bellinger, Remarks on the Military Commissions Act, 48 Harv. Int’l L.J. Online 1 (2007), http://www.harvardilj.org/online/91.

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In his remarks, Mr. Bellinger claims that the system set up by the Military Commissions Act of 2006 is “not that different” from the well-established court martial system.^_[1] One of the most significant differences between the two systems, however, is that the Military Commissions Act would allow the admission of evidence obtained through interrogation methods that involve “cruel, unusual or inhumane treatment or punishment prohibited by the Fifth, Eighth and Fourteenth Amendments to the Constitution of the United States,”^_[2] at least when the interrogation in question took place prior to December 30, 2005.^_[3] The admission of such evidence is constitutionally prohibited in courts martial as well as in civilian courts. 

This section of the Military Commissions Act is only one of several that undermine the legal prohibition on torture by giving a free pass to various forms of “torture lite”—outrages on personal dignity, or cruel, inhuman, humiliating, and degrading treatment. What exactly do I mean by “torture lite”? Think about the pile of naked prisoners at Abu Ghraib. Think about the memorable shot of the terrified prisoner with a snarling dog in his face. Think of little Lyndie England leading her prisoner around on a dog leash. 

Think these events were limited to a few bad apples on the night shift at Abu Ghraib? Then think again and look at the Army’s own report about authorized interrogation techniques at Guantanamo.^_[4] And keep in mind that Guantanamo is the detention center we did let the International Committee of the Red Cross visit.^_[5]

The Military Commissions Act retroactively amends the War Crimes Act to immunize from punishment officials who engaged in, supervised, or condoned this sort of “torture lite.” It accomplishes this in an ironically titled section that purports to be an “implementation” of our treaty obligations.^_[6] This section repeals the portion of the War Crimes Act that actually did implement our treaty obligations by criminalizing conduct prohibited by Common Article 3 of the Geneva Conventions.^_[7] Common Article 3, which the U.S. Supreme Court found applicable to detainees in the “war on terror” in Hamdan v. Rumsfeld, prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment.”^_[8] In its place, the Military Commissions Act prohibits “cruel or inhuman treatment.” Although it doesn’t sound so different, that term is narrowly defined as acts “intended to inflict severe or serious physical or mental pain or suffering.”^_[9] “Serious physical pain or suffering” is in turn defined as “bodily injury that involves” either “a substantial risk of death,” “extreme physical pain,” “a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises),” or “significant loss or impairment of the function of a bodily member, organ, or mental faculty.”^_[10] Serious mental harm is defined retroactively to include only “prolonged mental harm” caused by severe physical pain, threats of imminent death, or administration of profoundly disruptive drugs.^_[11]

So, a beating that leaves only some minor cuts and bruises, or a minor cigarette burn on the thigh would be acceptable? Subjecting prisoners to sexual humiliation doesn’t violate the Geneva Conventions? Water-boarding gets a free pass because the prisoner only thinks for a short time that he will be drowned? The definition of the crime here is so narrow that it could have been written by the authors of the infamous Torture Memo. Even they agreed that organ failure constituted torture.

Even worse, the discredited Torture Memo lives on in the Military Commissions Act, which incorporates a portion of the Detainee Treatment Act of 2005 that provided that “good faith reliance on advice of counsel” that interrogation practices were not unlawful could serve as an affirmative defense in a criminal prosecution for abuse of detainees.^_[12]

Why should we care about cruelty to suspected terrorists? As one member of Britain’s high court put it in invalidating the use of evidence obtained through torture, the ancient common law that both our nations share rejected torture not only because of its effect on the prisoner, but also because of its effect on the torturer—because of the “belief that it degraded all those who lent themselves to the practice.”^_[13] It is not merely the unreliability of such evidence, but that its use would “involve the State in moral defilement.”^_[14]  

Since the Military Commissions Act also provides that no “foreign or international law shall supply a basis for a rule of decision” in interpreting the War Crimes Act,^_[15] perhaps, we should set aside the opinions of our common-law brethren for the moment and look exclusively to U.S. opinions. In a decision holding that the Due Process Clause requires the exclusion of evidence obtained through methods that “shock the conscience,” the U.S. Supreme Court explained that to admit such evidence “would be to afford brutality the cloak of law. Nothing would be more calculated to discredit law and thereby to brutalize the temper of a society.”^_[16] 

Similarly, the former general counsel of the U.S. Navy, General Alberto Mora, explained why Americans should be concerned about cruelty that may not meet the technical definition of torture:

Cruelty disfigures our national character. It is incompatible with our constitutional order, with our laws, and with our most prized values. Cruelty can be as effective as torture in destroying human dignity, and there is no moral distinction between one and the other. To adopt and apply a policy of cruelty anywhere within this world is to say that our forefathers were wrong about their belief in the rights of man, because there is no more fundamental right than to be safe from cruel and inhumane treatment. Where cruelty exists, law does not.^_[17]

Common Article 3’s prohibition of outrages on personal dignity goes to the fundamental purpose of a legal system. In the wake of World War II, the Charter of the United Nations made the protection of human dignity one of the core aims of the international system,^_[18] and the Universal Declaration of Human Rights proclaimed that protection of the “inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”^_[19] The drafters of these instruments recognized that once government begins to disregard the humanity of those under its control, violations of fundamental rights are inevitable. 

In proclaiming Human Rights Day in December 2004, President George W. Bush stated that “[f]reedom and dignity are God’s gift to each man and woman in the world.”^_[20] Our laws should reflect that belief.