There is undoubtedly a certain logic to this line of reasoning. For example, if we were not interested in legal obligations as such, we could agree that it's outrageous, and thus an "outrage upon personal dignity," for a police detective to falsely tell a completely innocent person that a loved one has implicated him in a crime, while such trickery would be permissible (or at least not outrageous) when targeted at a person who the police have good reason to believe is guilty.
But there are two reasons why this logic is just about completely inapposite in the real context of interrogation of war-on-terror detainees. First, the sorts of interrogation techniques in question go well beyond trickery into the realm of physical coercion. Second, this sort of utilitarian sliding scale calculus is pretty clearly ruled out by the plain language of Common Article 3. In pertinent part, it provides
[T]he following acts are and shall remain prohibited at any time and in any place whatsoever with respect to [detainees]:The Justice Dep't reading of this language requires us to assume that it was meant to ban certain acts "at any time and in any place whatsoever," but that the definition of the forbidden acts depends on the purpose for which the acts are undertaken. This reading renders the "at any time and in any place whatsoever" language almost wholly ineffective. Accordingly, the much much more natural reading of Common Article 3 is as an absolute prohibition on a category of acts---including both "torture" and "outrages upon personal dignity, in particular humiliating and degrading treatment." There may be some disagreement at the margins over what acts count as covered, but if an act is covered, then it is categorically banned, regardless of the state's alleged justification for engaging in it.
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
All of this leads to the following question: Where are the textualist critics of the Administration? Even if one thinks on utilitarian grounds that "enhanced" interrogation or even torture is morally justified in certain circumstances, the categorical nature of the legal prohibition is nearly impossible to deny, given the relevant text. Except, of course, that here, as elsewhere, the Bush Justice Department appears capable of the impossible.
Posted by Mike Dorf