Outrages Upon Personal Dignity

As first reported yesterday by the NY Times and then widely thereafter, in March the Justice Dep't sent letters to Congress explaining why, in its view, the CIA could engage in so-called enhanced interrogation techniques without running afoul of international and domestic law. Whether a particular method of interrogation amounts to an "outrage[] upon personal dignity" or "humiliating and degrading treatment" in violation of Common Article 3 of the Geneva Conventions regarding treatment of detainees, DOJ said, depends in part on the purpose for which the interrogation is undertaken. According to Deputy Ass't AG Brian A. Benczkowski's letter: "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.”

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]:

(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;

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.

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