The Law Should Probably Be Followed - On A Case-by-case Basis

John Yoo may no longer be in the Bush administration, but his arguments for letting administration officials break the law when they think they should

John Yoo may no longer be in the Bush administration, but his arguments for letting administration officials break the law when they think they should have apparently lingered inside the Justice Department.

The Justice Department has told Congress that American intelligence operatives attempting to thwart terrorist attacks can legally use interrogation methods that might otherwise be prohibited under international law.

The legal interpretation, outlined in recent letters, sheds new light on the still-secret rules for interrogations by the Central Intelligence Agency. It shows that the administration is arguing that the boundaries for interrogations should be subject to some latitude, even under an executive order issued last summer that President Bush said meant that the C.I.A. would comply with international strictures against harsh treatment of detainees.

While the Geneva Conventions prohibit “outrages upon personal dignity,” a letter sent by the Justice Department to Congress on March 5 makes clear that the administration has not drawn a precise line in deciding which interrogation methods would violate that standard, and is reserving the right to make case-by-case judgments.

Case-by-case judgments, of course, opens the door pretty wide. It creates a legal dynamic in which interrogators can utilize illegal methods on detainees, and the administration prefers that they have a certain “flexibility” (my word, not theirs).

“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,” said Brian A. Benczkowski, a deputy assistant attorney general, in the letter, which had not previously been made public.

In other words, “Torture for bad reasons isn’t the same thing as torture for good reasons. On the prior, the law matters. On the latter, not so much.”


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