By Stephen Soldz | Brian Tamanaha at Blakinization dissects the letters from the Justice Department to Senator Wyden that were reported in the New York Times last Saturday and that I wrote about here, and demonstrates the completely faulty and dishonest nature of the reasoning involved. According to Tamanaha , the trick used by DoJ is to find an obscure court decision and use a distorted representation of what it says to make a claim completely incompatible with that source. Fortunately, Tamanaha went and read the obscure decision.
DoJ attempted to demonstrate in their letter that whether interrogation behavior violates the Geneva Conventions ban on “outrage upon personal dignity” depends partly upon why the interrogator is engaging in the behavior. Thus, actions intended to prevent terrorism are subject to a higher threshold before becoming violations than are those for lesser reasons.
Accordingly, it might not be an “outrage upon the personal dignity” of a prisoner–for example, subjected to extreme cold, extreme periods of standing, or water boarding–when we have an urgent need for the information, while those same actions might well be a violation if we don’t have an urgent need for the information.
The problem is, as Tamanaha demonstrates, the decision does not even remotely make the argument attributed to it. Here is the key section:
Benczkowski is right that a judgment about the “degrading” nature of the treatment must take into consideration “all the circumstances of the case.” This is the key point in his argument. He asserts that the “reasonable observer…would take into account the circumstances surrounding the conduct, including what justifications might exist.” That final clause—what justifications might exist—is what makes the (claimed) urgent need for the information a relevant factor in evaluating the conduct.
Benczkowski cites Section 53 of the Court’s opinion for this proposition. Here is the entire paragraph 53, so judge for yourself:
“It is also instructive to recount the general definition of the term ‘inhuman treatment’ propounded by the ECHR, which to date is the only human rights monitoring body that defined the term: “ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (ECHR). The assessment of this minimum is, in the nature of things, relative: it depends upon all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age, and state of the heath of the victim, etc. The test offered by this definition is the level of suffering endured by the victim.”
The court makes it absolutely clear that the phrase “all the circumstances” relates entirely to (and is bounded by) the “level of suffering endured by the victim.”
For Benczkowski to claim that this language in any way includes consideration of “what justifications might exist” for the ill-treatment is an outrageous distortion.
It is disgraceful that Justice Department lawyers would supply such deceptive legal analysis to a Senator.
The bottom line: whether an act is “torture” or an “outrage on personal dignity” has nothing to do with (is not in the least diminished by) how urgently we feel we need the information.
We non-lawyers are left to wonder if the legal profession has any sanctions for such egregious malpractice in a matter of such great importance.