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.