Since the tragic events of September 11th, 2001, the United States has struggled with how to support civil liberties and human rights while ensuring security for its citizens. There has been increasing evidence that some U.S. policies in the War on Terror have led to acts that violate our moral and ethical principles, as well as international legal standards. Reports by news agencies, public officials, and human rights advocates have found systemic flaws in the treatment of detainees in U.S. custody and it is now well documented that certain "enhanced interrogation techniques" have been used by U.S. officials. There have also been repeated accounts of the now-infamous detainee abuses at Abu Ghraib prison in Iraq, harsh treatment of the hundreds of prisoners held at Guantánamo Bay in Cuba, and the rendition of other U.S. detainees to foreign countries that practice torture. These reports have generated moral outrage as well as a commitment by Reform Jews and others to end these abuses and the use of torture by our country and in our name.
The U.S. has ratified four Geneva Conventions and their two optional protocols, which define the rights of civilians and combatants during wartime and which specifically prohibit the use of physical violence, humiliating and degrading treatment, and torture of prisoners. The U.S. Constitution, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, have also been interpreted to ban torture without exception. However, some policy makers have suggested that the President may circumvent domestic and international prohibitions on torture and authorize U.S. forces and agents to use it in prosecuting the war on terror. Therefore, it is necessary for the U.S. to clarify its policy.
In December, 2005, President Bush signed into law the Defense Appropriations Act of 2006, which included an amendment sponsored by Senator John McCain (R-AZ) that bans "cruel, inhuman and degrading treatment" of detainees in U.S. custody. Although human rights advocates welcomed the passage of this bill, the President also released a "signing statement" that reserved to the President, as Commander in Chief, the authority to interpret the new law.
Even with the McCain Amendment fully implemented, the standards of treatment for U.S. detainees would not be completely resolved. In June 2006, the United States Supreme Court ruled in the case of Hamdan v. Rumsfeld that the military tribunal system at Guantanamo Bay, Cuba was unconstitutional and a violation of the standards set by the Geneva Conventions. Since then, Congress passed and President Bush signed the Military Commissions Act (MCA) of 2006. This legislation re-defined the standards by which terrorist suspects can be held as detainees in military prisons. Among its provisions, the MCA weakens our nation's commitment to abiding by the rules of the Geneva Conventions and fails to protect the most valued aspects of the U.S. judicial system, including the rights of habeas corpus and due process.
Shortly after taking office, President Obama issued a series of Executive Orders (EO's) regarding the treatment of U.S.-held detainees. These EOs temporarily suspended the Military Commissions pending review, called for the closure of the detention center at Guantanamo Baywithin one year, effectively end U.S.-sponsored torture, and called for a review of detention policy options. Rabbi Saperstein's statement welcoming these steps to stop torture is available here.
In his inaugural address in January 2009, President Obama signaled a new era in how the U.S. defends itself against its enemies, using language that referenced the debate over U.S.-sponsored torture. He said:
"As for our common defense, we reject as false the choice between our safety and our ideals. Our founding fathers faced with perils that we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience's sake."
In April 2009, President Obama ordered the release of memos known as the "Torture Memos" which were written by the Office of Legal Counsel (OLC), laying out the legal justifications and loopholes for the use of torture. The Reform Movement welcomed the release of these memos The memos' release has generated a great deal of controversy over who should be held accountable for U.S.-sponsored torture, and how these determinations should be reached (e.g. through criminal investigations, congressional hearings, or independent commissions). This debate has yet to be resolved.
In May, 2009, President Obama indicated that the Military Commissions system may be resumed with several key changes yet to be formally announced.