Hey! Other topics exist. Who knew?

I’m not an attorney, so I can’t get completely into the questions of what Congress has restricted explicitly versus what leeway is authorized. But the Department of Justice has an insightful, albeit obviously broken, theory of how a liberty-minded society should fight an open-ended, poorly-defined war:

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.

“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.

This administration can’t be trusted. We knew that already, so this is just another example. I’m more amazed at my capacity to be surprised by this egregious implication.

Forget the injured and dead prisoners, I suppose. The former will heal, unless they won’t, in which case we’ll classify them with the latter, who deserved it. I do sometimes forget that our government only incarcerates terrorists, not accused terrorists. As long as the intent of the is to prevent a threatened terrorist attack, it can’t possibly be humiliating or *gasp* abuse.

I’m so tired of the argument that intent matters more than the act, that it should be enshrined as a rule. Beyond the obvious fault that the potential for abuse dictates clear rules limiting government, it’s impossible to completely legislate a competent determination of the subjective distinction between good and bad intent. The mere potential for an exception where a vile, illegal act can be excused becomes the rule. That is not a sane path. Prosecute the act; acquit the legitimate exceptions.

Don’t worry, though. Our government still cares a little.

“The fact that you are doing something for a legitimate security purpose would be relevant, but there are things that a reasonable observer would deem to be outrageous,” [a senior Justice Department official] said.

Who determines what is a “legitimate security purpose”? Congress? The president? What if the reasoning is classified, as it most certainly would be, an assumption the administration demonstrates¹ repeatedly? Are members of the administration who authorize such measures the reasonable observers who decide? The answers are important, since they speak to the continued development of what is supposed to be an open and free society.

¹ To be fair, the Bush administration is not alone in this inclination, nor is it unique to a party.

3 thoughts on “Hey! Other topics exist. Who knew?”

  1. One thing that has long bugged me about the government’s handwringing about the Geneva Conventions and domestic prohibitions on torture is that it ignores the existence of the long-established common law affirmative defense of necessity.
    I’ve argued time and time again that in the extremely unlikely occurence of the “ticking time bomb,” the necessity defense would be available to all parties involved. The thing about the necessity defense is that it requires the party raising it (in this case, the torturer or government) to prove the existence of the necessity by a preponderance of evidence (not beyond a reasonable doubt). The existence of this defense would effectively require the government to put the torture victim on trial for his alleged involvement in terrorism once the torture has been completed. If it turns out the recipient of the torture was more likely than not innocent, then the torturers would have to pay severe criminal consequences. If, however, the torture recipient was more likely than not a guilty party, then the torturers will go free, and we can feel reasonably confident that the government’s actions were, in fact, necessary to save a lot of lives.

  2. Kip:
    Thanks for the link.
    Couldn’t agree more. The Bush administration is asking for nothing more than a blank check to do what it wants. Anyone in public life, whether politician or pundit, who would excuse that should be ignored forever on. We have a structure in place to properly deal with what they want to do to “protect” us. That’s the end of the discussion, not the beginning.

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