Sliding Scales, Slippery Slopes, and Banana Peels

From the Washington Post:

The Geneva Conventions’ ban on “outrages against personal dignity” does not automatically apply to terrorism suspects in the custody of U.S. intelligence agencies, the Justice Department has suggested to Congress in recent letters that lay out the Bush administration’s interpretation of the international treaty.

Lawyers for the department, offering insight into the legal basis for the CIA’s controversial interrogation program, reasserted in the letters the Bush administration’s long-held view that it has considerable leeway in deciding how the conventions’ rules apply to the harsh questioning of combatants in the war on terrorism.

Original DVD cover.

While the United States is legally bound by the conventions’ Common Article 3 and its requirement to treat detainees humanely, the definition of humane treatment can vary, depending on the detainee’s identity and the importance of the information he possesses, a Justice Department official wrote last September and this March to a Democrat on the Senate intelligence committee.

“Some prohibitions . . . such as the prohibition on ‘outrages against personal dignity,’ do invite the consideration of the circumstances surrounding the action,” Brian A. Benczkowski, the principal deputy assistant attorney general, asserted in one of the letters.

Benczkowski’s letters were provided to The Washington Post by Sen. Ron Wyden (D-Ore.), who asked the Justice Department to explain the legal foundation for President Bush’s executive order last year authorizing the CIA’s continued interrogation of terrorism suspects.

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The CIA declined to comment on the memo. However, agency spokesman Mark Mansfield said the CIA’s detainee program “has been and continues to be in full compliance with the laws of our country.”

From The New York Times:

WASHINGTON — 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.

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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.

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Mr. Bush issued the executive order last summer to comply with restrictions imposed by the Supreme Court and Congress. The order spelled out new standards for interrogation techniques, requiring that they comply with international standards for humane treatment, but it did not identify any approved techniques.

It has been clear that the order preserved at least some of the latitude that Mr. Bush has permitted the C.I.A. in using harsher interrogation techniques than those permitted by the military or other agencies. But the new documents provide more details about how the administration intends to determine whether a specific technique would be legal, depending on the circumstances involved.

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Some legal experts critical of the Justice Department interpretation said the department seemed to be arguing that the prospect of thwarting a terror attack could be used to justify interrogation methods that would otherwise be illegal.

“What they are saying is that if my intent is to defend the United States rather than to humiliate you, than I have not committed an offense,” said Scott L. Silliman, who teaches national security law at Duke University.

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The humiliating and degrading treatment of prisoners is prohibited by Common Article 3 of the Geneva Conventions.

Determining the legal boundaries for interrogating terrorism suspects has been a struggle for the Bush administration. Some of those captured in the first two years after the Sept. 11, 2001, attacks were subjected to particularly severe methods, including waterboarding, which induces a feeling of drowning.

But the rules for interrogations became more restrictive beginning in 2004, when the Justice Department rescinded a number of classified legal opinions, including a memorandum written in August 2002 that argued that nothing short of the pain associated with organ failure constituted illegal torture. The executive order that Mr. Bush issued in July 2007 was a further restriction, in response to a Supreme Court ruling in 2006 that holding that all prisoners in American captivity must be treated in accordance with Common Article 3.

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Legislation that was approved this year by the House and the Senate would have imposed further on C.I.A. interrogations, by requiring that they conform to rules spelled out in the Army handbook for military interrogations that bans coercive procedures. But Mr. Bush vetoed that bill, saying that the use of harsh interrogation methods had been effective in preventing terrorist attacks.

The legal reasoning included in the latest Justice Department letters is less expansive than what department lawyers offered as recently as 2005 in defending the use of aggressive techniques. But they show that the Bush administration lawyers are citing the sometimes vague language of the Geneva Conventions to support the idea that interrogators should not be bound by ironclad rules.

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Mr. Wyden said he was concerned that, under the new rules, the Bush administration had put Geneva Convention restrictions on a “sliding scale.”

If the United States used subjective standards in applying its interrogation rules, he said, then potential enemies might adopt different standards of treatment for American detainees based on an officer’s rank or other factors.

“The cumulative effect in my interpretation is to put American troops at risk,” Mr. Wyden said.