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.”
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.
The letters from the Justice Department to Congress were provided by the staff of Senator Ron Wyden, an Oregon Democrat who is a member of the Intelligence Committee and had sought more information from the department.
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.
Precisely. It’s not the conduct that matters to the administration, it’s the motivation of the torturer that counts.
Somehow, the Geneva Conventions seems to have left out this loophole. I can’t imagine why.