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Couch: A Question of Conscience

On April 3, 2008 the UC Berkeley Human Rights Center, the Boalt Hall Human Rights Law Clinic, and the Boalt Hall Project on Law and Terrorism sponsored a panel entitled A Question of Conscience: A Military Perspective on the "War on Terror". This is the transcript of the opening statement made by Lt. Col. Stuart Couch at that panel. The panel was held at 315 Wheeler Hall, University of California at Berkeley. The other two members of the panel were Col. (Ret.) Lawrence Wilkerson and Lt. Col. (Ret.) Stephen Abraham. The discussion was moderated by Adam Hochschild, from the UC Berkeley Graduate School of Journalism. The recording of this presentation was made by the UC Berkeley Human Rights Center; the transcript was prepared by the UC Davis Center for the Study of Human Rights in the Americas.

Thank you. I am very appreciative of being invited to come here to Berkeley to share with you some of my thoughts. Unfortunately, being the only active duty member of the panel I’m the only one that has to give a disclaimer here today. I’m currently an appellate judge on the Navy Marine Corps Court of Criminal Appeals and so I have to give the following disclaimer. I have to preface my comments by emphasizing my statements reflect my personal opinions only. They do not represent the official position of the Department of the Defense, the Department of the Navy, the United States Marine Corps, and no inference should be drawn by any of my statements how I or any other judge on the Navy Marine Corps Court of Criminal Appeals might rule in any particular case.

Now, having said that [LAUGHTER], got all that legalese out of the way, I’ve been floored with the response that has followed an article written in the Wall Street Journal involving my case on March 31st of last year. I’m just a trial lawyer, you know, and that’s just, that’s just kind of my shtick. I never expected any sort of attention that has come my way. However, for whatever reason, God’s given a platform for me to discuss some of these things. And they’re things I feel very strongly about, as is evidenced by the article. Again, breaking my sensibilities as a trial lawyer, I would prefer to address you as I would any jury. But, in the interest of time, I have some prepared remarks that I would like to share with you. And the interesting thing about these shared remarks [is that] I was invited to testify before a House Judiciary subcommittee last November. And I prepared the statement I’m going to read to you as a result of that. The day before I was to give these comments before Congress, my testimony was blocked and I was ordered not to testify by the Department--by the General Council of the Department of the Defense. So, you are going to get to hear what Congress didn’t. [LAUGHTER]

Much has been said in the blogosphere about Jess Bravin’s article in the Wall Street Journal regarding my decision not to prosecute the case of Guantanamo Bay detainee Mohamedou Slahi. And the majority of the commentary has been supportive of my position. While I may have become a poster child for the issue of detainee treatment for the moment, the focus needs to be on the message, and not the messenger. And the message is this: the torture of human beings is wrong. More specifically, evidence derived from coercive methods that include torture or cruel, inhuman, or degrading treatment lacks credibility, and in some instances its use is prohibited by operation of international treaties ratified by Congress and incorporated as domestic law. The inhumane treatment of detainees has significant ramifications for any criminal prosecution for alleged violations of the law of war. In my view, the issue of detainee treatment touches and concerns every case that will be brought for prosecution before military commissions. Consequently, all participants in the process should be equipped to deal with this issue in ways that are consistent with the American values of fair play and justice, that maximize our credibility in a court of public opinion, and uphold this nation’s obligations to duly ratify international treaties. The challenge for all involved at this stage in the process, Congress, the Executive Branch, the Judiciary, and the trial participants, is to clear a path forward so that as a nation we can be proud of what we do in these prosecutions, taking into account where we are and not where we wish we were.

My initial concern about the effects of enhanced interrogation came through my evaluation of evidence as a trial lawyer. Every prosecutor, military or civilian, evaluates the evidence available in any case by determining whether it is credible in the eyes of a potential judge or juror. Based upon my own personal experience with SERE techniques [and let me explain what that is: that’s Survival, Evasion, Resistance and Escape. Before I was a lawyer I was a pilot and I had gone to SERE school. And it’s basically a course where the military teaches you how to be a prisoner of war. It’s the only course that I’m aware of in the Department of the Defense where it is lawful for the instructors to assault--physically assault--the students. So at any rate, what I saw, and what I came involved with, with some of the enhanced interrogation techniques at Guantanamo seemed to me to be out of the SERE school playbook, if you will. So that’s I just need to sort of give you a parenthetical there]. Based upon my own personal experience with SERE techniques I recognized that some of the interrogation methods utilized with Guantanamo detainees could be perceived as coercive by even the most hardened person. Therefore, I was concerned that we had a potential credibility problem with some of our evidence. Just because evidence may be obtained from an enemy detained on the battlefield does not mean that it will be afforded great weight by a military judge or a panel of military members if it is the product of coercion. My experience as a military prosecutor has been that military jurors are the most discriminating of all. And within the context of military justice there is a consistent theme that all practitioners know. In the military, we’re committed to fair play, open discovery, and the rule of law. To quote a military case from 1967, United States v. O’Such, we all recognize that (quote) “discipline requires justice and fair play no less than it does strictures and obedience.” Ultimately my concern over enhanced interrogation techniques went deeper than my sensibilities as a prosecutor. The use of cruel and degrading methods to obtain information from detainees struck me as, for the lack of a better term, un-American. Judging by the outpouring of support and correspondence I have received since the Wall Street Journal article of March 31st of last year was published, the issue of detainee treatment and its impact on the prosecution of suspected terrorists is one that resonates with Americans from across the spectrum of political and religious ideology. [Another parenthetical. I gave a speech last month at Widener University. I was invited up there by the Christian Legal Society, and when I got there, I realized that actually there were four organizations that were sponsoring my speech: the Christian Legal Society, the Muslim Student Association, the ACLU, and the Federalist Society. Now go figure. [LAUGHTER]. And they all didn’t have anything but really nice things to say to me after it was over. [LAUGHTER] Go figure].

While the practical issues I wrestled with in the Slahi case related to the legal interpretations of the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, also known as the CAT, and ethical duties as a prosecutor, my decision over what to do about it all was, in the end, informed in my faith as a Christian. The Judeo-Christian ethic, which recognizes the dignity of all human beings, is a consistent theme throughout all American jurisprudence, and I would like to think my position on the issues is consistent with the guiding principles of our Founding Fathers. I know that it is consistent with my own Christian belief. To be sure, the appropriate treatment of a fellow human being is a non-partisan issue if there ever was one, and my hope is that our nation’s collective deliberations over it will transcend the political acrimony that seems prevalent these days. This issue is simply too important for that, and reason is on our side. Our nation needs to lay claim to the humane treatment of detainees not as Republicans or Democrats, but as Americans who recognize the inherent worth and value of fellow human beings, regardless of the despicable criminal acts that they may have committed.

Recalling the legislative debate over the Detainee Treatment Act of 2005, I think Senator John McCain has it right. It’s not about them. It’s about us. And as a victim of torture himself, Senator McCain knows what he is talking about. The historical reputation of the United States as a heavyweight champion for human rights, the very text of our Declaration of Independence--indeed the vigorous debate over the abortion rights--are all strong evidence of the American value of inherent human dignity. Regarding the treatment of detainees, so much of the legal debate has centered around what we can do with respect to permissible interrogation techniques. I, for one, would like to see an equally vigorous debate about what we should do as Americans and fellow human beings. Humane treatment of inhumane people is not a novel concept for people in the military, and I believe that Americans are up to the challenge now that we are engaged in a global war on terrorism. Our enemy will lose this war because we are BETTER than they are, not because we are more inhumane.

To quote the French commentator Alex de Tocqueville from his observations made in 1835, “America is great because she is good. If America ceases to be good, America will cease to be great.” There are some truly decent human beings wearing the uniform of this country, and most of the citizens of this nation know that, and understand it, and they tell us all the time. And those… I recall interviewing a marine major who was a senior lawyer ashore in Kandahar, Afghanistan, immediately after our counterattack against Al Qaida, in October of 2001. With only 24 hours notice he was responsible for setting up a detention facility for the influx of detainees who had been captured by our forces. This major explained how he looked to the Geneva Conventions for guidance, on the requirements necessary for the proper care and treatment of detainees. The first night was so cold that this officer ordered his marines to give up five of their own sleeping bags so that there would be enough for all the detainees to have one. And the Marines followed his order. I’m sure he could have rationalized it differently and the detainees would have spent a cold night, but he didn’t. This officer’s legal understanding of the Geneva Conventions, informed by his moral decency, led to a decision that some might find unwarranted. I think he had the right idea and conclude this officer and his Marines did the right thing for the right reasons. This major’s act of moral leadership is an example of the type of leadership we need as Americans and the current debate over what is acceptable treatment and interrogation of detainees under the control of this country.

We all need to do the right things for the right reasons. We in the military understand that often doing things in the right way is not the same as doing them in the easy way. Given our experience with the issue of detainee treatment in the past few years, now is the time to ensure our efforts will never again be the easy way that includes torture or inhumane treatment of human beings.

In closing, I think the words of our Supreme Court, spoken in 1944, in the context of another time of war in our nation’s history, is particularly instructive for this gathering; for our consideration here today. And I’m quoting from Ashcraft v. Tennessee, a case from 1944, “The Constitution of the United States stands as a bar against the conviction of any individual in an American court by means of a coerced confession. There have been, and are now, certain foreign nations with governments dedicated to an opposite policy. Governments which convict individuals with testimony obtained by police organizations, possessed of an unrestrained power, to seize persons suspected of crimes against the state, hold them in secret custody, and ring from them confessions by physical or mental torture. So long as the Constitution remains the basic law of our Republic, America will not have that kind of government.”

It is my sincere hope that the efforts of Congress and of other human rights organizations, such as this, will help to ensure our nation avoids the this kind of intolerable government. I think Alex de Tocqueville had it right again when he said, “The greatness of America lies not in being more enlightened than any other nation but rather in her ability to repair her faults.”

Thank you for the opportunity to be here today, and I welcome any questions that you might have.

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