Breaking News | Forum | UK News | USA News | World News | Political News | Sci-Tech News | War & Terrorism News | Sports News | Multimedia | Set Homepage

Translate:

Thursday, May 1st, 2008

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.

Tamanaha concludes:

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.

Have Your Say: Justice Department faulty torture justification exposed
Please read our posting guidelines before posting.
Alternatively you can discuss this report here.

RSS TrackBack URL

Name (required)

Mail (will not be published) (required)

Website

Related News

• CIA torture given legal cover, newspaper says
• Hotel Bans 9/11 Hero
• Government knew of HIV risk from imported blood
• So, what actually is Waterboarding?
• Police inspector used fingerprinting ‘as excuse to rape’

This entry was posted on Thursday, May 1st, 2008 at 11:18 am and is filed under General, War & Terrorism News . You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

Loading ...

ADVERTISEMENTS

SITE MAPS

7/7 Afghanistan Alternative-Energy Art BBC Big-Brother Bilderberg Biometrics Bush Censorship CIA Climate-Change Cover-Up Cults Culture Database-State David-Hicks David-Ray-Griffin Debt Democrats Demos Drugs Education Entertainment Environmental News EU False-Flag FBI Fraud Free-Speech Freemasons G8 Globalization Guantanamo Health-News History ID-Cards Internet Iran Iraq Israel John McCain Law Marches Media News MI5 MI6 Microsoft Military MoD Money Music NASA Neocons New World Order NSA Oil Pakistan Podcast Police-State Propaganda RFID RINF Rumsfeld Science Science & Technology News Secrecy Security Slavery Space Sports Spy Spying Stephen-Lendman Technology Terrorism Tony-Blair Torture TV UK-News UN USA- USA-News Video Voting war War & Terrorism News Warfare White-House Wolfowitz World-News Yahoo
2003 - 2005 Archives | 2005 - 2007 Archives | 2007 - 2008 Archives | Current Archives | Past Version