Time for a New Amendment

On Saturday, March 26, two remarkably disturbing news stories appeared on internet news sources, each having serious consequences for the U.S. military and its operations in Iraq and Afghanistan.

The New York Times carried a story about a new report from the Army, saying commanders, "have decided not to prosecute 17 U.S. soldiers implicated in three separate deaths of prisoners in Iraq and Afghanistan in 2003 and 2004…" Investigators wanted all 17 prosecuted, with charges including murder, conspiracy, and negligent homicide. Instead, the Army is only giving one of the soldiers a letter of reprimand, and another a discharge. While those were only from three cases, the military has begun investigating a total of 28 confirmed or suspected homicides of foreign detainees.

The article also stated, "In one of the three Army cases in which no charges were filed, the commanders determined the deaths to be 'a result of a series of lawful applications of force.'" Does this mean that the Army has a set of rules that legalizes the killing of prisoners? Such vague details raise more questions than they answer.

The second article was published by Reuters, titled "U.S. Troops Tortured Iraqis in Mosul, Documents Show." The documents suggest that prisoner abuse has been more widespread than originally thought, extending beyond Abu Ghraib, which was at the center of an abuse scandal last year that damaged the reputation of America, its troops, and its operations in Iraq, and nearly forced Secretary of Defense Donald Rumsfeld to resign from office.

The report found that inmates were hit with bottles, forced to perform exhausting physical exercises until they collapsed, deprived of sleep, and subjected to deafening heavy metal music.

"One prisoner died in December 2003 after four days of repeatedly having to do physical exercises as a punishment." The article goes on to say that, "The Mosul investigation began after 20-year-old Salah Salih Jassim had his jaw broken in detention. He was not suspected of any crime but had been arrested along with his father, an officer in Saddam Hussein's Fedayeen militia."

These two news stories were released on the Saturday before Easter Sunday, when very few Americans would be expected to be watching the news. It wouldn't matter if they did, however, because the main cable channels were dominated with news about Terri Schiavo, the severely brain-damaged Florida woman whose right-to-die case had been fought in every branch of the government and at every level of the U.S. judicial system.

The military has, of course, denounced the inhumane treatment of prisoners, but torture and abuse are only pieces of a greater injustice. Since the war in Afghanistan, the U.S. military has been collecting illegal combatants and shipping them to local prisons or the notorious Guantanamo Bay military base in Cuba. They have been held without being charged for any crime, only a handful ever receiving a trial. Some of them were taken into custody for almost no reason at all besides being in the wrong place at the wrong time.

News reports in recent months revealed that the military intends to keep most of them imprisoned indefinitely, even resorting to building new cells with beds, so that the detainees can be more comfortable over a long term. Some of these detainees are no longer even being questioned, yet they are still kept in captivity.

If the detainees were American prisoners, with the rights of American citizens, those rights would have been severely violated, including their rights to due process, a speedy trial, an impartial jury, and a lawyer, and their protections against cruel and unusual punishment and being forced to testify against themselves. That's most of the 5th, 6th, 8th, and 14th Amendments, and it would be reasonable to suspect regular violations of the 4th Amendment, dealing with searches and seizures.

The only reason this hasn't caused an uproar is because the Constitution only applies to American citizens, and extends no rights to foreigners. Should it stay that way? Are the rights outlined in the Constitution unique to America, or should they be applied to foreigners in U.S. custody?

The Bush administration and the military have specifically and purposefully designated the prisoners as "illegal combatants," effectively removing them the protection of various treaties and human rights agreements. The result is that they are left in a sort of Limbo, with almost no legal rights, at the mercy of the U.S. military. While the American media doesn't cover this story very often, international news sources do, and this nation's reputation as the symbol of liberty and humanitarianism in the world continues to be diminished every day we deny some of our most precious rights to those in our captivity.

Powerful nations are judged not by how they treat their peers, but by how they treat weaker nations and weaker people. We don't say that the Nazis were evil because they led an aggressive military campaign; we say that they were evil because they mass-murdered the Jews, a people whose faith prevents them from being able to defend themselves. We don't say that America was wrong to defend itself against Japan during World War II, but we have apologized to the Japanese-Americans, whose rights we suspended when we put them in internment camps out of fear.

We cannot allow our fear to overpower our obligation to treat all people, foreign and domestic, with just civility and humanity. We can accomplish this without sacrificing our security. A fair trial is something that any person accused of a crime, regardless of nationality, should be entitled to. If we have evidence that a captured Iraqi has acted to harm the United States, then let it be presented in a real court so that we can continue to keep him or her in custody. If we have no evidence, however, then we have no right to continue the imprisonment.

In all of history, no nation has ever fallen because it was too civilized. It is when the powerful become unjust that the weak rise against them. While acting humanely is not always convenient from a military standpoint, it is a much better defense for the nation than violating the very principles that make it great.

I believe that we need a new Amendment to the Constitution that will extend the rights of any imprisoned American citizen to foreigners held in U.S. custody. Like detained Americans, captured foreigners should be entitled to a fair and speedy trial; they should be protected from cruel and unusual punishment whether or not they have been found guilty of a crime; they should be given a lawyer and an impartial judge or jury; and they should not be forced to confess to crimes they may not have committed.

This due process should not be viewed as a privilege, but as a right to which any human is entitled. The only way to guarantee such a right is to write it into our Constitution by way of an amendment.

We know that America is strong enough to defend itself from threats overseas, but it will be its ability to protect itself from the dangers that threaten its founding ideals from within that will decide how it is judged by history.