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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.”
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; Wyden’s December 2007 Letter; DoJ Reply.
