Three recent developments have been of particular importance for efforts to uphold the rule of law and end the scandal of U.S.-sponsored torture and abuse in detention facilities abroad.
The first is the epoch-making Supreme Court decision, handed down at the end of June, in Hamdan v. Rumsfeld. The Court ruled that the president is not authorized to create special military tribunals to conduct the trials of Guantanamo detainees. These tribunals failed to meet minimum standards of fairness as required under the Uniform Code of Military Justice, or in a federal district court. Creating tribunals with inadequate legal safeguards oversteps the bounds of executive authority.
More broadly, the Court held that Common Article 3 of the Geneva Conventions applies to detainees in U.S. custody. Defendants must be afforded “all the judicial guarantees which are recognized as indispensable by civilized peoples.”
The text of Common Article 3 states that without exception detainees “shall in all circumstances be treated humanely.” “Cruel treatment and torture” are specifically prohibited along with “outrages upon personal dignity, in particular humiliating and degrading treatment.”
Commenting on the Hamdan decision, Rosa Brooks, professor at the Georgetown University Law Center, stated: “As a matter of both international and U.S. law, there is zero doubt that techniques such as waterboarding, sexual humiliation, placing people in dog collars, forcing them into painful positions for extended periods, mock executions, etc. violate Common Article 3.”
The Hamdan decision closed at least two loopholes left by the McCain amendment, passed earlier by Congress in an attempt to prevent the reoccurrence of such outrages as were revealed in Iraq at Abu Ghraib. Not only was the Army Field Manual, to which the McCain amendment was pegged, being revised, but no remedies seemed to be provided in case of violations. The Supreme Court ruling means that the Field Manual revisions must conform to Common Article 3. It also means that torture and abuse are subject to prosecution as war crimes.
Second, on July 28 the U.N. Human Rights Committee released its conclusions on the present United States human rights record. Among other things, it called upon the U.S. to shut-down all secret detention facilities, to end “extraordinary renditions,” whereby suspects are sent to countries known to practice torture, and to launch impartial investigations into cases involving torture and inhumane treatment.
“How many times does the United States need to hear that it is promoting some of the most shameful practices in the world today?” asked Curt Goering, Senior Deputy Executive Director for Amnesty International USA. “How many times does the U.S. government need to be reminded how far its human rights practices have strayed from international norms? It now must adopt the Committee’s sensible recommendations post-haste, and finally begin to restore its commitment to respect human rights.”
Finally, mention must be made of the Bush administration’s response to the Hamdan decision. The administration is seeking legislation to replace the tribunals that were struck down by the Supreme Court. According to press reports, this legislation would still permit procedures that prevent the defense from challenging prosecution evidence. It would also allow the admission of evidence obtained by torture and inhumane treatment.
At the same time efforts are under way to circumvent Common Article 3. According to a New York Times editorial: “The administration’s real aim is to keep on using abusive interrogation techniques at the secret prisons run by the Central Intelligence Agency. And it wants to make interrogators — and those who give their orders — immune from prosecution.”
If Christians value, as we must, the superiority of high over low principles, and of greatness over littleness of mind, we will find little to cheer us in efforts to undermine Common Article 3. But we will find food for thought in this passage from George Orwell’s Nineteen Eighty-Four:
“And in the general hardening of outlook that set in … practices which had been long abandoned — imprisonment without trial, the use of war prisoners as slaves, public executions, torture to extract confessions … and the deportation of whole populations — not only became common again, but were tolerated and even defended by people who considered themselves enlightened and progressive.”
The National Religious Campaign Against Torture, which I founded, is working to end such abuses and to regain a measure of dignity for our nation. Our statement, Bible study materials, and action alerts can be found at our Web site (www.nrcat.org ).
George Hunsinger is McCord Professor of Theology at Princeton Theological Seminary. His book, Let Us Keep the Feast, an ecumenical proposal on the Lord’s Supper, will be published next year by Cambridge University Press.
