President Bush’s recent veto of legislation placing the same restrictions on CIA interrogations as on those conducted by the military showed his determination to retain some latitude on the type and severity of the methods the CIA can use. Yet anyone concerned about what the veto meant were reminded of Bush’s executive order last summer, made in response to a Supreme Court ruling; the order acknowledged that the Geneva Conventions do apply, and therefore international protections for detainees are in place.
This week, however, letters given to the New York Times show that the administration is still crafting rationales that seek to redefine, on a case-by-case basis, what the conventions mean.
According to the Times, which reported on the letters Sunday, “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.”
The Times reported that, “In one letter written Sept. 27, 2007, Mr. Benczkowski 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.’ ”
Law professor’s interpretation
“What they are saying,” national security law professor Scott L. Silliman of Duke University told the Times, “is that if my intent is to defend the United States rather than to humiliate you, than I have not committed an offense.”
The letters were sent to Sen. Ron Wyden, D-Ore., in response to requests he had made for specific information. According to the Washington Post, “A spokeswoman for Wyden said the administration’s suggestion that the Geneva Conventions could be selectively applied was ‘stunning.’
” ‘The Geneva Convention in most cases is the only shield that Americans have when they are captured overseas,’ the spokeswoman, Jennifer Hoelzer, said in a phone interview. ‘And for the president to say that it is acceptable to interpret Geneva on a sliding scale means that he thinks that it is acceptable for other countries to do the same. Senator Wyden — and I believe any other reasonable individual — finds that argument appalling.’ ”
The Times article fleshed out Wyden’s thinking:
“If the United States used subjective standards in applying its interrogation rules, he said, then potential enemies might adopt different standards of treatment for American detainees based on an officer’s rank or other factors.
” ‘The cumulative effect in my interpretation is to put American troops at risk,’ Mr. Wyden said.”
Meanwhile, CBS/AP reported today that Rep. John Conyers, chairman of the House Judiciary Committee, “on Monday threatened to serve subpoenas on former Attorney General John Ashcroft and two others associated with the Bush administration’s interrogation policies if they don’t agree to testify.
“If the three — including John C. Yoo, the former assistant deputy attorney general, and David Addington, Vice President Dick Cheney’s chief of staff — do not reply by Friday, ‘I will have no choice but to consider the use of compulsory process,’ ” Conyers wrote in letters to them.
“That’s Washington-speak for issuing congressional subpoenas, tough talk that Conyers has leveled at the White House before. … Cheney’s counsel, Kathryn L. Wheelbarger, had said Addington would not testify at a May 6 hearing as Conyers had requested.”
Their refusal, the Washington Post notes, “marks the latest skirmish in a lengthy battle over the scope of presidential authority and the administration’s treatment of detainees. Under Attorney General Michael B. Mukasey and his predecessor, Alberto R. Gonzales, the Justice Department has refused to enforce congressional subpoenas for testimony.
“Addington, the top aide to Vice President Cheney, played a critical role in developing and drafting anti-terrorism strategies after the Sept. 11, 2001, attacks, and drafted several key memos on detainee policy. But in response to the committee’s request, his lawyer suggested lawmakers instead contact aides to President Bush.”
The administration’s shifting definitions of torture and new rationales for the legality of its interrogation methods continue to draw widespread criticism. Among those responding was Anthony Lewis, the former New York Times columnist who stressed not only the Orwellian nature of phrases such as “enhanced interrogation techniques” and the torture they allowed, but the effect of both the policy and the conduct on the nation.
“In these last weeks of turbulent events,” Lewis writes, “the single most significant has not been the financial crisis, not the fall of a governor, not the passing of the fifth year of the war without end in Iraq. It has been an American president’s formal blessing of the use of torture.
“That was what President Bush did in early March when he vetoed legislation prohibiting the use of brutal methods of interrogation by American intelligence agents. His action was quickly overtaken by other news. But in its redefinition of American values — of the American character — it had profound implications.”
Susan Albright, a MinnPost managing editor, writes about national and foreign developments. She can be reached at salbright [at] minnpost [dot] com.