When I was in the Navy, occasionally one of our enlisted guys would violate some naval rule of order and discipline, such as failing to stand a scheduled watch or disrespecting a superior. Given a choice between being docked in pay or being sent to the brig for three days on bread and water, they almost always took the brig, thinking, as they often said, “I could do three days standing on my head.” And they almost always regretted it. Apparently, bread and water is a bit more attention-getting than standing on your head.
I mention this because despite all the controversy stirred up thus far by the military tribunals the United States is planning for non-citizen terrorists, one aspect of them has pretty much escaped discussion: the punishments they might impose. This is certainly not the media’s fault—the 16 pages of specifications issued thus far on these trials by the Department of Defense include all of one paragraph on the topic. It simply says that the possible sentences include death, imprisonment, payment of a fine (!), “or such other lawful punishment or condition of punishment as the Commission shall determine to be proper.”
Clearly, the Bush administration designed the tribunals to emphasize the established tradition of military, as opposed to civilian, law. And that tradition includes harsher punishments for a given act and punishments that are not constitutional to impose on civilians. For instance, current U.S. military law still holds 15 offenses punishable by death—including rape (which is not a capital crime in civilian law), and in wartime, desertion or cowardly conduct. Commanding officers can and do punish service members under their authority with mandatory exercises or make-work “fatigue duties.” In military prisons inmates may be required to perform hard labor, probably not the proverbial “making little rocks out of big ones,” but forced construction or maintenance projects. And in the U.S. Navy there’s the aforementioned bread-and-water treatment.
In the case of the terrorists, such differences in permissible punishment are well worth thinking about, because the terrorists’ evil seems to confound the civilian punishment scheme. If Osama Bin Laden were caught and convicted of masterminding the 3,000 or so 9/11 deaths, he could still only be executed once, and not by being flung from a burning building. And maybe death by lethal injection would give him something he wants—martyrdom. But on the other hand, we suspect that a man used to living in caves might find life imprisonment, complete with regular hot meals and cable TV, a bit of an upgrade.
Pentagon sources familiar with the discussions leading to the military tribunals told me that such problems have indeed been on planners’ minds. According to a Pentagon officer I talked to, the generic “other lawful punishment” clause in the Pentagon’s published tribunal order wasn’t merely boilerplate—it was meant to allow for the possibility that, once convicted, terrorists might be punished by losing privileges they now have as detainees. Perhaps, he said, they would have less exercise time or lose it altogether, or they might be fed less than they are now.
Like its civilian counterpart, military law prohibits cruel and unusual punishments, which is why such bygone military remedies as flogging, keelhauling, and confinement (but not transport) in irons are now banned. Military law now also limits trips to the brig on bread and water to three days and says they can only be used by a captain at sea as a disciplinary measure, not by a court martial as a sentence. But this limitation on bread and water needn’t be gospel for the tribunals, because while they’ll use military law as a model, they won’t be required to follow it precisely—which makes sense because, after all, Al-Qaida members aren’t exactly Navy sailors. Besides, there is a significant difference between the bread-and-water regimen and flogging—the former can be imposed without causing bodily injury.
So, for the most serious offenders, how about a new type of sentence: life with hunger, an endlessly repeating sequence of three days on bread and water and then one day of normal nutrition, all monitored by a physician, who could suspend the practice whenever health issues arose? If anything can concentrate the human mind on its misdeeds, it’s hunger. Isn’t that the idea behind Ramadan?