The ACLU and the Military: A Natural Alliance

I recently had the fascinating experience of speaking at the U.S. Army War College about civil liberties and national security, as part of a weeklong seminar the college was conducting on national security issues. Many thought that it was surprising that I had been invited by the military and surprising that I was willing to speak in a venue that they expected to be a lion's den for an ACLU spokesperson. Going into this experience, I knew that the caricature of the ACLU as anti-military is as inapt as the caricature of the ACLU as anti-religion. After my visit, I now see far more clearly that the caricature of the military as anti-ACLU is equally false.

While it is certainly true that not every serviceperson would agree with the ACLU on all issues, our respective institutions have in common a profound respect for fundamental American values and an image of ourselves as responsible for promoting and protecting those values.

Military leaders, for example, played a major role in convincing the Bush administration to change its course on using extreme interrogation techniques like waterboarding. Among other experts who have questioned whether or not information obtained through the use of such methods is reliable was Gen. David Petraeus (PDF):

Some may argue that we would be more effective if we sanctioned torture or other expedient methods to obtain information from the enemy. They would be wrong. Beyond the basic fact that such actions are illegal, history shows that they are frequently neither useful nor necessary. Certainly, extreme physical action can make someone "talk;" however, what the individual says may be of questionable value.

Others expressed concern that if Americans lowered the bar by using harsh interrogation techniques, American soldiers might be more likely to be subjected to similar treatment. But in addition to these very pragmatic concerns, military leaders have also recognized that using torture is wrong because it is inconsistent with American values. As Marine Gens. Charles Krulak (Commandant of the Marine Corps) and Joseph P. Hoar (Commander in Chief of the United States Central Command 1991–94) said in a Washington Post article:

Complex situational ethics cannot be applied during the stress of combat. The rules must be firm and absolute; if torture is broached as a possibility, it will become a reality. This has had disastrous consequences... The torture methods that Tenet defends have nurtured the recuperative power of the enemy. This war will be won or lost not on the battlefield but in the minds of potential supporters who have not yet thrown in their lot with the enemy. If we forfeit our values by signaling that they are negotiable in situations of grave or imminent danger, we drive those undecideds into the arms of the enemy. This way lies defeat.

In the words of Gen. Petraeus (PDF):

Our values and the laws governing warfare teach us to respect human dignity, maintain our integrity, and do what is right. Adherence to our values distinguishes us from our enemy.

The ACLU was far from alone in criticizing the idea of using jury-rigged military commissions to try suspected terrorists instead of proceedings consistent with our usual criminal procedure rules or the Uniform Code of Military Justice. In the words of Gen. Colin Powell, for instance,

[W]e have shaken the belief that the world had in America's justice system by keeping a place like Guantanamo open and creating things like the military commission. We don't need it, and it's causing us far [more] damage than any good we get for it. . . We can handle bad people in our system. And so I would get rid of Guantanamo and I'd get rid of the military commission system and use established procedures in federal law or in the manual for courts-martial.

In preparing for my speech, I had considerable assistance from one of my colleagues on the ACLU National Board of Directors, Michael Pheneger, a retired colonel in military intelligence who had gone to the War College himself. Col. Pheneger was drawn to work with the ACLU as he became more distressed at the Bush administration's deviations from traditional American values. I owe to him the collection of quotations above, and the firm assurance that observing the limitations of the Constitution and international law in areas like interrogation, surveillance, and procedural tribunals would not make our counter-terrorism efforts any less effective. It is instructive to hear from someone who has actually done training in surveillance that the assumption of the USA Patriot Act — that new surveillance tools were "required" to combat terrorism — is simply untrue. We do not, despite what we have been told, need to choose between our liberty and our security. And so we should indeed be working with the military to find the best path to both.

In the summer of 2005, the ACLU gave the Roger Baldwin Medal of Liberty, our most important award, to five Judge Advocate General's (JAG) Corps lawyers — Maj. Michael Mori, U.S. Marine Corps; Lt. Cmdr. Charles Swift, U.S. Navy; Lt. Cmdr. Philip Sundel, U.S. Navy; Maj. Mark Bridges, U.S. Army; and Lt. Col. Sharon Shaffer, U.S. Air Force — for going above and beyond the call of duty in defending prisoners at the Guantánamo Bay Detention Center, and for challenging the military commission system and other aspects of Guantánamo detention policies. I was not surprised that the ACLU wanted to recognize these military heroes for their dedication to principles of due process, but I was quite pleased and, to tell the truth, relieved to learn that all five of these lawyers were honored and delighted to accept this award from the ACLU. Hearing each of them speak at the dinner where the award was presented helped me to shed my own stereotypes. One after another, the officers expressed their own commitment to due process and also denied that they had done anything that any one of their JAG colleagues would not have done. It was simply their part of their job description, according to them, to uphold American values like the right of every accused to a vigorous defense.

I heard the same commitment from officers I met in Carlisle, Pa., at the Army War College. I commented to one officer that many had found it surprising, given the widespread view of the military as simply following orders from the chain of command, that so many military leaders had in fact talked back to the Bush administration and challenged some of the policies the administration had portrayed as necessary to combat terrorism. Like the JAG lawyers, he told me that these challenges were neither surprising nor exceptional in the military. "Our training," he said, "is to constantly reexamine what we have done to figure out whether we've been as effective as possible and whether there are likely to be any unintended consequences to our actions. That's exactly what we do."

In light of my own growing awareness of our natural alliance with military decision-makers on so many issues, I was very interested to read a recent op-ed written by our Executive Director, Anthony Romero, together with Lt. Col. Darrel Vandeveld, urging that Bush administration officials be held accountable for torture and explaining what both authors felt they had in common. We need to work with our allies within the military to encourage President Obama not to succumb to some of the mistakes made by his predecessor, and not to believe that we can simply move on without more fully investigating and coming to terms with those mistakes.

We also need to explain to those in the military who do not see themselves as our allies that our interests and values really do coincide. During the question-and-answer period following my speech, I was asked many questions including some that attempted to put me on the defensive. One questioner asked how the ACLU could disagree with President Obama's conclusion that military commissions are necessary. I responded (in part) that President Obama is now discovering that the ACLU truly is nonpartisan. A second questioner focused on another area where we are in disagreement with President Obama: his decision not to turn over photographs relating to torture despite the fact that the courts litigating our Freedom of Information Act lawsuit had determined that these materials were required, under that law, to be released to the public. This questioner asked rhetorically whether the ACLU, in deciding what cases to litigate, considered the well-being of our troops (in light of the fact that President Obama had given as an explanation for his refusal that releasing some of the photographs in question might lead to retaliatory attacks on our troops). I have many more answers to that question than time allowed. One type of answer would explain the context of the litigation. We did not set out to seek photographs, but documents. The Freedom of Information Act requires the government to justify any exceptions to disclosure, rather than requiring us to argue in favor of disclosure. The Bush administration, followed by the Obama administration, did not treat the photographs in question as classified, and did not make arguments based on national security to the court.

A second type of answer takes issue with the premise of some critics that the ACLU could be causing harm to American troops through our insistence on enforcing the laws about governmental transparency. Col. Pheneger had explained to me that if our enemies indeed used the photographs as an excuse for inciting attacks on Americans, the photographs would only be a pretext, and not the actual motivation. He also noted that the actual cause of retaliatory action would not be the publication of evidence of our past abusive actions, but the very fact that such actions were taken. One of the officers I spoke with after my talk echoed the point made by Gens. Krulak and Hoar, above. Even if there were a short-term risk, he said, that some of those viewing photographs documenting previous abusive actions by Americans would lash out in anger, the greater risk in the long term is, as Gen. Petraeus said, in not following our own principles. We need to model to the rest of the world that in a democracy, government agents can make mistakes but, if they do, the government conduct will be exposed to the public so that the American people can decide whether or not that conduct was acceptable at the time, and whether it should be regarded as acceptable going forward.

What sets us apart from our enemies in this fight, however, is how we behave. In everything we do, we must observe the standards and values that dictate that we treat noncombatants and detainees with dignity and respect. (PDF)

I would only add that we must also observe the standards and values that dictate accountability, transparency of governmental action, and the checks and balances of our Constitution. I received a thank-you letter today from a representative of the War College, thanking me for contributing to "a greater collective understanding of the foundational importance of the liberties our armed forces serve to protect." That increased depth of understanding went in both directions.

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Law Dog

The ACLU should look into the military justice system - The Uniform Code of Military Justice (UCMJ). It is full of legal violations and conflict of interest. For example, in the military rating and evaluation scheme (used for promotion) a judge is rated by the Commanding General. A jury of your peers (officers on a jury for an accused officer, senior enlisted for enlisted accused) are also rated or senior rated by the Commanding General. Therefore, if the General dislikes the accused there is due influence on those rated by the General to convict the accused. This is a major conflict of interest. Perhaps it is the reason that the UCMJ has one of the highest conviction rates in the nation. Rules of evidence are also much more lenient, leading to dubious convictions on scant evidence.
Please look into fighting the UCMJ.

Paen

It's good to hear about soldiers who still have ethics but every war has it's share of atrocities on both sides and the pro torture policies of the Bush and Obama regimes as well as the lowering of standards in recruitment will inflict a lot of pain until this insane war of revenge ends.

Scott

While I agree with most of your points, I take issue with the statement "jury-rigged". By your own admission you found military officers to be commited to freedom and due process. Do you really believe if told they couldn't use certain information they wouldn't be able to make a descision without that information. I doubt you would find as many capable jurors in the public sector.

Peter Curia

Simply: THE MEANS AND ENDS ARE ONE. Understanding this is the key to justice.

Brian Blum

I was pleased to read the words of our military leaders against inhumane treatment of prisoners. I had planned to enter my own comments about our need to follow "The Golden Rule," even if our enemies do not, but Gen. Petraeus has covered my position adequately: "Our values and the laws governing warfare teach us to respect human dignity, maintain our integrity, and do what is right."

Carol Boden

We should not lower our selves to barbaric behavior, but set the example in the world in respecting human dignity. However, let's move forward and not spend money on prosecuting what has been done.

Carol Boden

We should not lower ourselves to barbaric behavior, but set the example in the world in respecting human dignity. However, let's move forward and not spend money on prosecuting what has been done.

Anonymous

I salute the military leaders, particularly in the JAG Corps, who have stood up for the Constitution with such integrity. It is good to hear that they take so seriously their oath to "preserve, protect, and defend the Constitution of the United States." As a veteran friend of mine once told me, "My oath is to protect the Constitution, not some politician."

Eric

I agree Gitmo should close. We should hang everyone in the prison. They want kill us all.

Army SSG

Wow, so these are the people my friends and I have died and bleed to defend. UCMJ works just fine and if you where in the military you would know that, but your not, your an outsider looking in on something you can't understand because you've never sat in a courtmartial hearing. Next, soldiers do what they are told, and the ethics you say we don't have or only some have soldiers have is B/S, read what the army core values are and then ask your self if you even come close to living up to them, I bet you fall short! Now tell me, if your best friend was shot and killed right in your arms, would you not want justice, would you not want everything possible done to make that person pay for what they did. What if it was your best friend who was captured by terriorists and you had 24 hours to find him before they cut his head off and showed it on TV. Wouldn't you do everything possible to save that person? Barbaric behavoir huh, what is barbaric behavoir? Chopping somebodys head off? Torture? How about this, shooting somebody with a gun? What about hitting somebody with a fist or using martial arts forms? If you haven't noticed yet, the entire world is a barbaric place full of all of these things, the best thing I can quote you is "WAR IS HELL"! You all talk about attrocities, so flying a airplane into the world trade center doesn't count huh. But torturing somebody to get time sensitve info that could save a soldiers life is not worth it? I go back to if it was your friend, your son, your daughter, how far would you be willing to go to save them. If your answer is not "whatever it takes" I would hate to have you watching my back or as my mother or father. Have any of you ever heard the saying "Know your enemy?" Well I know my enemy very well, I have studied my enemy, I have studied their culture, their history, their religion, I have studied the difference between the Suni and the Shi'ite, I have studied the taliban. Do any of you know that we backed Sadam Hussain against Iran, we put him in power. We backed the taliban against the russians? Did any of you know that? Do any of you know that terriorists don't play by the rule of war? Have any of you seen the video's of soldiers even a reporter having their head chopped off by terriorists? God have mercy on your souls and I hope I never meet you!
Every person we captured in Iraq was treated properly and in accodance with the rule of war. You might want to read it! Also the Oath says that I WILL OBAY THE ORDERS OF THE PRESIDENT OF THE UNITED STATES OF AMERICA. As for guantonimo bay, I hope they end up at your house's, mabe then you will understand what really is going on in the world. You all need to know what your talking about before you open your mouths. Do some research and know what your talking about before you say stupid ignorant things and stay out of things you know nothing about. So far i'm not impressed with anyone associated with the ACLU and your facts are full of holes and hear-say.

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