Skip to main content

The Sunday New York Times brings new revelations of the Bush administration's ever-evolving legal rationale for torture. Like the hydra, lopping off one legal argument only leads to another. The only thing that remains constant is that the administration can do whatever it wants to those in CIA custody.

Today's revelation is of a set of letters between Senator Wyden and the Department of "Justice" on the legal basis for the CIA's "enhanced interrogation," aka torture, program. The letters seek to clarify the reasoning and impact of President Bush's executive order last summer that reauthorized CIA torture.

Sandy Levinson at Balkinization explains why the reasoning in the letters will justify virtually any torturous action. Levinson starts by quoting from the Times article:

In one letter written Sept. 27, 2007, Mr. Benczkowski [a deputy assistant Attorney General] argued that "to rise to the level of an outrage" and thus be prohibited under the Geneva Conventions, conduct "must be so deplorable that the reasonable observer would recognize it as something that should be universally condemned."

Levinson then goes on:

There is, of course, a certain logical paradox here: The very fact that the some US interrogator would suggest that some particular conduct is "reasonable" in some situation would, by definition, mean that there is not "universal" condemnnation of the practice. This is especially true if one accepts the DOJ argument that "The fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act." Once one allows what might be termed "purity of utilitarian motive" to dominate the analysis, the game is over, for there will always be those who will argue that it is worth doing practically anything to forestall any "terrorist attack."

A reading of the letters shows that they admit that "torture" is always banned, but that they seek to redefine the constraints of th Geneva Conventions Common Article 3, so that the banned "outrages upon personal dignity"  depend upon a "shocks the conscience" definition of prohibited conduct. This criterion is combined with the question of whether activities are "for the purpose of humiliation and abuse" [emphasis added]. Thus, the sentence reads:

Similarly, the fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation and abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act.

As David Luban explained here, the "shocks the concsience" is extremely problematic and can be bent to justify almost anything behavior. See also Luban's Were You Really Surprised? where he explains how:

the Justice Department already told us that no interrogation tactic can possibly be cruel, inhuman, and degrading. In some sense, the only surprise is that Congress now acts surprised. Why the outrage now? DoJ told them its position more than two years ago, in a letter to three Democratic Senators.

This situational argument does not apply to the definition of "torture," the letter states. Hence the importance of restricting the definition of "torture", such as the intensive efforts to avoid admitting that waterboarding is "torture." We should therefore push to define activities as "torture" wherever reasonable and not allow administration defenders to restrict it as they have. In this light, see the Physicians for Human Rights/Human Rights Watch Leave No Marks.

The Times kindly provides copies of the letters: Wyden's August 2007 Letter; DoJ Reply;

[Cross-posted at Psyche, Science, ad Society.]

Originally posted to stephen soldz on Sun Apr 27, 2008 at 05:19 PM PDT.

Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags


More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site