Jeff Cassin has a B.A. in International Affairs with a Concentration in International Politics from The George Washington University: Elliot School of International Affairs. He received his J.D. from Benjamin N. Cardozo Law School with Concentrations in Comparative and International law and General Litigation. While many hands guided the author through this process, he would like to thank in particular Emily Compton for providing the intellectual stimulus for this project, and Glenn Kramer and Alicia Hayes for seeing it through. He also wants to thank his wife April and father Kerry for believing.
Freedom from torture is an inalienable human right, and we are committed to building a world where human rights are respected and protected by the rule of law1
George W. Bush, 43rd President of the United States
[Abuses at Guantanamo] have shamed the nations in the eyes of the world and made the war on terror harder to win. Our moral authority went into a free fall2
Edward Kennedy, Senior Senator from Massachusetts
In conducting the "war on terror" in response to the attacks on September 11, 2001, the United States developed a practice of detaining suspected enemy combatants,3terrorists, and insurgents in a mannerPage 422 inconsistent with the nation's foreign policy.4Treatment of these detainees has involved and continues to involve abusive practices in defiance of international legal and moral standards.5The practice of abusive detentions by the United States in Guantanamo, Iraq, and within the United States weakens the United States' moral authority to confront abusive detentions by other nations.
"Moral authority" is the influence gained by possessing credibility based upon moral standing in regard to that issue. This influence is gained by engaging in a practice of do-as-I do, rather than do-as-I say, policies. The type of moral authority discussed herein is the ability of the United States to influence other nations not to engage in the use of abusive detentions by not engaging in abusive detentions itself. While it may be impossible to quantify moral authority, this note will establish a discernable weakening of the United States' moral authority as a result of the United States' practice of abusive detentions. Throughout this note, "abusive detentions" will be used to describe detentions that are arbitrary, indefinite, incommunicado, lack judicial review, include acts of torture or severe interrogation techniques, or any combination of the above.6Page 423
The dual purpose of this note is to: (1) explain how the recent practice of abusive detentions by the United States7undermines its moral authority, and (2) explore potential ramifications of diminished moral authority to the United States' foreign policy. Part I will briefly discuss the extent to which the United States had any claim to moral authority against abusive detentions before the recent abuses. Part II will introduce examples of recent abusive detentions by the United States. Part III will discuss how these abusive detentions weaken the United States' moral authority by showing how the abusive detentions contrast sharply with the United States' criticism of abusive detentions around the world. Part IV will demonstrate the consequences of the loss of the United States' moral authority, particularly how the United States has set an example other nations have followed and may continue to follow, putting United States citizens in danger. In conclusion, Part V will evaluate whether engaging in abusive detentions is worth the costs and dangers discussed in Part IV.
Critics of the proposition that the United States ever had any moral authority to lose will point out that its history of slavery, racism, and other human rights violations has entitled the United States to little or no moral authority against abusive detentions. However, the United States' claim to moral authority stems from two main sources: (1) its practice of providing habeas corpus review of government detentions by an independent neutral; and (2) the tradition of promoting human rights through the United States' foreign policy, since at least the end of World War II.
In the United States, habeas corpus offers protection against abusive detentions by providing a detainee with a review of his or her detention conducted by the non-political branch of the government, thePage 424 judiciary.8The American legal tradition respects the balance between government power and individual autonomy by preserving the government's ability to detain criminals and enemy combatants, provided that the detentions are not abusive detentions.9In carrying on the English practice, habeas corpus was enacted by the first Congress of the United States in order to protect individuals in the United States against arbitrary detentions by the government.10The tradition of providing habeas rights continues in the United States even after the government recently attempted to justify abusive detentions for security reasons. Even though the urgency of the situation might be compared to that which led to Lincoln's suspension of habeas corpus during the American Civil War, the view that everyone on United States soil has a right to judicial review of his or her government has been sustained by the Supreme Court.11Thus, at least in this capacity, the United States maintains some moral authority against abusive detentions.Page 425
Further, the United States has historically treated foreign soldiers within its custody better than have other nations. For example, during the American Revolution, the British soldiers were given authority to exercise discretion whether to offer quarters to the Revolutionaries, while the Revolutionaries were under orders to offer quarters whenever requested.12Counterexamples, such as the suspension of habeas corpus during the American Civil War and the detention of Japanese-American citizens during World War II, arguably should have weakened United States' moral authority against abusive detentions. However, the United States maintained its moral authority after World War II. Perhaps this is because during World War II, the United States fought against and defeated nations responsible for the worst forms of abusive detentions- atrocities such as the Holocaust and the Rape of Nanking. As a result, the world opinion of the United States during and after World War II was favorable.13
Despite its questionable human rights record, the United States has held a special leadership role in the international promotion of human rights since at least the end of World War II.14In 1948, shortly after the end of World War II, First Lady Eleanor Roosevelt, as a representa-Page 426tive of the United States in the General Assembly of the United Nations, led the world in crafting the Universal Declaration of Human Rights ("Declaration"), which embodied high-minded ideals to which the nations of the world ought to aspire.15The Declaration has now been adopted by nearly every nation in the world.16Among the provisions in the Declaration is Article 5, which states, "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."17The Declaration's Articles 8-11 essentially establish that individuals should be free from abusive detentions.18These provisions embody fundamental principles of humanity which reflect, and were no doubt influ-Page 427enced by, the protections already afforded to individuals within the United States.19The Fifth,20Sixth,21and Fourteenth22Amendments ofPage 428 the Constitution grant similar fundamental protections against abusive detentions.
A further illustration of United States' opposition to abusive detentions can be found in the Department of State Human Rights Reports, which are annually released assessments of human rights conditions around the world. Not only do the Department of State Human Rights Reports highlight the United States' policy against abusive detentions, but they also serves as one of the instruments by which the United States engages in foreign policy rhetoric designed to advance human rights. For example, in 2002, the State Department released a report on Iraq's human rights record.23In that report, the State Department criticizes Iraq because:Page 429
The regime continued to be responsible for disappearances and to kill and torture persons suspected of or related to persons suspected of oppositionist politics, economic crimes, military desertion, and a variety of other activities.
Security forces routinely tortured, beat, raped, and otherwise abused detainees. Prison conditions were extremely poor and frequently life threatening. The regime reportedly conducted "prison cleansing" campaigns to kill inmates in order to relieve overcrowding in the prisons. The authorities routinely used arbitrary arrest and detention, prolonged detention, and incommunicado detention, and continued to deny citizens the basic right to due process. ...
Regime security forces conducted numerous killings of political prisoners, minority group members, criminal suspects, and others during attempted apprehension or while in custody. Opposition groups and defectors continued to provide detailed accounts, including the names of hundreds of persons killed, of summary prison executions carried out for the apparent...