U.S. Attorney General Eric Holder, Anti-Torture Speech
U.S. Attorney General Eric Holder is the one to be listening to right now when it comes to the subject of torture...
U.S. Attorney General Eric Holder
U.S. Military Academy
West Point, New York
Wednesday, April 15 2009
It is a distinct honor and a special privilege to be here this evening and to serve as the keynote speaker at the grand opening of this new Center for the Rule of Law. The foundation of this center is firmly based not just on bedrock and concrete, but on the very ideals and vision of the United States Military Academy. As such, this Center will stand through the ages as a living testament to West Point’s grand tradition of molding the next generation of America’s leaders, and to those leaders’ unwavering commitment to the fundamental principle of the rule of law.
As Americans, we all bear a special responsibility to both uphold and promote the rule of law. This sacred responsibility springs from our unique place in history, and it is the animating force of our heritage – and of our destiny – as a nation. The founding documents of our democracy – the Declaration of Independence and the United States Constitution – established for the first time in the world’s long history a government not of men, but of laws. To a world governed by kings and emperors, dukes and czars, our founding fathers breathed life into an idea which caused common men to rejoice and despots to tremble. And it is the force and majesty of this idea that created the most powerful nation on earth.
As it was at our founding, so it is today – our strength derives from the sinews of those historic documents and from the enlightened principle of the rule of law that they have so nobly enshrined in our national ethos. For more than two centuries, the rule of law has served as the shining torch that has illuminated our path through our nation’s darkest days. To be sure, at times its light has flickered and waned. But always the flame has brightly flared anew and boldly marked our way once more. Indeed, the brilliant light of that torch has guided us to the forefront of international movements for human rights, for the lawful treatment of dissidents, and for free and open societies. Indeed, our country is at its best when it has provided the beacon light of the rule of law for all the world to see.
It is a remarkable fact that nowhere is the rule of law more honored than here in the hallowed halls of West Point, the premier training ground for our nation’s warriors. West Point is perhaps the only institution of higher learning where undergraduate students are required to take a class in constitutional law. That fact may seem unusual to some, but it is in keeping with the revered traditions of our military. From its earliest days, the rule of law has been its code of honor.
After winning the Battle of Trenton on Christmas of 1776, General George Washington ordered that captive British soldiers were to be treated with humanity, regardless of how colonial soldiers captured in battle might be treated. And in the present day, American military leaders have remained at the vanguard of those calling for the application of the rule of law on battlefields, in detention centers, and at negotiating tables.
There are some today who argue that as the most powerful military force on earth, international laws will only hinder our efforts and endanger our strength. But I reject the very premise of that argument. Even before the first Geneva conventions were signed, the United States long advocated for international laws and organizations to govern the conduct of all nations, recognizing that our strength as a country is amplified – not diminished – when we expand the sphere of the rule of law across the globe.
THE CONVENTION AGAINST TORTURE STATES THERE IS NO JUSTIFICATION - Amnesty International
Written on behalf of Amnesty International USA by Travis W. Hall, former Army interrogator.
Under U.S. common law, the word “justification” is a term of art. Under US common law, “justification” is generally defined as an act otherwise criminal that under the circumstances is “permissible.” Generally, a criminal act may otherwise be permissible if there is some public benefit or superior interest and the permissible act is itself not expressly prohibited by law. For example, a person may assault (criminal act) another in self-defense (justification); however, the self-defense will not be justified if the level of force used is excessive under the circumstances (express limit on justification). Art 2.2 of CAT states, “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Because the US signed and ratified CAT (with very limited reservations), its articles are binding on the US just as if they were US domestic law. CAT expressly states that there is never a public benefit or superior interest in the use of torture, and thus torture is always a criminal act for which there is never a permissible use or justification.
And the military has long led our nation in its respect for the rule of law. When our soldiers go into battle, they do so under strict codes regulating their conduct under the laws of war. We train them rigorously and enforce compliance through the Uniform Code of Military Justice, a standard for military law that serves as an exemplar to the world of what is best about America.
Our nation’s military is also home to the Judge Advocate General Corps, a team of lawyers long admired for their zealous representation of their clients, but whose integrity and courage has been demonstrated anew in recent years. History has often shown that it is during the throes of battle that the rule of law is most easily abandoned. But the JAG Corps has proven time and again that their commitment to duty never wavers.
In our current struggle against international terrorism, when others surrendered faithful obedience to the law to the circumstances of the time, it was the brave men and women in the JAG Corps who stood up against the tides, many times risking their careers to do so. We all can learn from their example.
Of course, our nation has not always been immune to the impulse to sacrifice the timeless principles of the rule of law to the transient fears of the moment. Even presidents like Abraham Lincoln and Franklin Delano Roosevelt have sometimes erred under the pressures of war. So great are the demands to keep the country safe, so unrelenting the stress of the moment, that our nation’s leaders have sometimes forgotten that the rule of law protects us not just from our enemies, but also from our own worst instincts.
During World War II, fearful of Japanese infiltration of the West Coast, President Roosevelt confined nearly 120,000 people of Japanese descent to internment camps for three years without a single hearing or finding of fact. Two-thirds of those held without cause were American citizens, yet the Supreme Court upheld the constitutionality of Roosevelt’s internment order – proving that presidents are not the only leaders susceptible to grave errors during the heat of war. The court’s decision in Korematsu is inarguably one of the darkest moments in American constitutional history.
But the strength of our nation has always been our ability to correct course, because while presidents change and governments change, the Constitution endures.
And so it is today, at the beginning of a new presidency, as we face a world filled with danger, that we must once again chart a course rooted in the rule of law and grounded in both the powers and the limitations it prescribes. Now, that should not be a controversial statement. And yet, there are those who equate a stated intention to apply the rule of law in a national security context with softness or naïveté. I could not disagree more. Underneath the lofty pronouncements made by leaders must lay real principles that will unerringly chart our course as policymakers – principles that we will hold dear not just when we face the easy decisions, but also when we face the hard ones.
Every day as Attorney General, I make decisions that guide the actions of more than 100,000 employees of the Department of Justice and that affect the lives of millions of Americans. Many of those decisions will never be known to the public or to the press, because even as we usher in a new period of openness and transparency, many national security decisions must by necessity be made in a manner that protects our ability to gather intelligence, investigate threats and execute wars. But a need to act behind closed doors does not grant a license to pursue policies, and to take actions, that cannot withstand the disinfecting power of sunlight. In fact, it is in those moments – the moments when no one is watching – when we must be most vigilant in relying on the rule of law to govern our conduct.
With every decision I make, I ask myself two questions. Will it stand up to scrutiny by the courts, and will it stand up to scrutiny by the American people. Only if I can answer both questions affirmatively do I know that my choice is the right one.
None of this is to say that I will shy away from the hard – and hard-hitting – decisions I must make, and the tough – and tough-minded – actions I must take to protect the American people. I know the seriousness of the threat we still face. I see it firsthand every morning when I review intelligence gathered from around the globe during the previous twenty-four hours. As a member of the president’s national security team, I know we must do everything legally within our power to protect the American people – and we will.
But we will not sacrifice our values or trample on our Constitution under the false premise that it is the only way to protect our national security. Discarding the very values that have made us the greatest nation on earth will not make us stronger – it will make us weaker and tear at the very fibers of who we are. There simply is no tension between an effective fight against those who have sworn to do us harm, and a respect for the most honored civil liberties that have made us who we are.
Our work on this front has already begun. On his third day in office, President Obama issued an Executive Order directing the closure of the Guantanamo Bay Detention Facility and directing that I lead a task force of Cabinet officials to make determinations for the disposition of each detainee currently housed there.
This task will not be easy. On the contrary, it is indisputably the most daunting challenge I face as Attorney General. There are some detainees who we will likely conclude no longer pose a threat to the United States and can be released or transferred to the custody of other countries. There are others who we will decide to prosecute in federal court. But a third category of detainees poses a harder question – much harder. If a detainee is too dangerous to release, yet there are insurmountable obstacles to prosecuting him in federal court, what shall we do?
Some of the brightest minds in our nation are working to answer that question and to address the ramifications that each potential answer presents. But though we do not yet know the answer, I pledge that the ultimate solution will be one that is grounded in our Constitution, based on congressional enactments, in compliance with international laws of war, and consistent with the rule of law.
In my office at the Department of Justice, I am reminded of these principles every day. There is a tradition at the Department that each Attorney General chooses which portraits of prior Attorneys General to place on the walls of his office. Many fine men and one remarkable woman have held this position before me, and as I decided which portraits to choose, I did so fully mindful of the special duties of the office and the charge given me by the president who appointed me and the people’s representatives who confirmed me.
One of the portraits I chose was that of former Attorney General and Supreme Court Justice Robert Jackson, a man who authored perhaps the most important court opinion on presidential power in the last century. Though only a concurring opinion, Jackson’s outline in the Youngstown case of three situations in which presidential powers fluctuate remains the gold standard to this day for defining the extent to which the president can operate consistent with the rule of law. Jackson’s standards are as informative today as they were prescient fifty-seven years ago.
One of my other predecessors whose portrait graces my conference room is Elliot Richardson, the Attorney General under President Nixon who resigned rather than fire the special prosecutor who was investigating the president. His painting serves as a reminder to me that I serve the American people first and foremost, and that all of us who do so owe our allegiance only to them and to the law. Richardson was given a choice no Attorney General should be forced to make. Asked to execute a presidential order that, while technically legal, violated both every standard of independence and the spirit of the law, he chose to resign instead.
Richardson’s story is a constant reminder that for the rule of law to mean anything, for it to be more than a hollow refrain bellowed before the microphones but quietly subverted in the muffled corridors of power, it must be upheld by men and women of firm character who are committed to its faithful application. May it ever be so in the United States of America.
In closing, let me note that nearly 50 years ago, General Douglas MacArthur stood here at West Point, bowed with age but still proud of mien, and delivered one of the greatest speeches of American history. The General intoned to the assembled cadets the immortal words, "Duty, honor, country." MacArthur noted that this code of the United States Military Academy "embraces the highest moral laws and will stand the test of any ethics or philosophies ever promulgated for the uplift of mankind. Its requirements are for the things that are right, and its restraints are from the things that are wrong."
General MacArthur’s words could also serve as one of the most succinct and apt definitions of the rule of law itself. To follow the dictates of the rule of law, we must be committed to the endless struggle of ensuring that, as we promulgate and implement national policy, we require of ourselves that which is right, and restrain ourselves from that which is wrong. To be sure, none of us makes the correct decision every time. We are all fallible human beings with our own inherent frailties, buffeted by the tides of public opinion and general alarm. But if we endeavor to ceaselessly follow the rule of law – if we let strict obedience to its principles serve as our only guide – then we can ultimately lay down the reins of power knowing that we have faithfully fulfilled the immense responsibility with which we have been charged. And that, in the final analysis, is the greatest duty we can perform on behalf of the American people.