There is new fodder for the tortured torture debate in the U.S. New evidence is emerging that the government views secret ex ante determinations, presumably by the government itself, of whether harsh treatment of detainees may be justified by reason of necessity. It is useful to compare this position with the 1995 judgment of the Supreme Court of Israel, in which the Court rejected government arguments that it could find ex ante authority for harsher interrogation techniques in the principle of necessity.
An article in The New York Times on Sunday described how recent letters to Congress from the Department of Justice (DoJ) explain that the government reserves the right to decide on a case-by-case basis what interrogation methods would violate international law standards against mistreatment of detainees. Specifically, the letters from the DoJ state that where harsher interrogation measures are “undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse” then such measures could be determined to be not “outrageous” or otherwise in violation of international standards.
In these letters the the government has focused on the language of Common Article 3 of the Geneva Conventions, which among other things prohibits “outrages upon the personal dignity” of detainees. President Bush issued an executive order Executive Order in July, 2007, which provided that the CIA would comply with specified domestic and international standards against harsh treatment of detainees, with particular reference to Common Article 3. Why the letters do not refer to the standards of the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as they have been implemented in U.S. law and incorporated in that form into the Executive Order, is somewhat mystifying.
In any event, the letters explain that for treatment “to rise to the level of an outrage” so as to be in violation of international standards, it “must be so deplorable that the reasonable observer would recognize it as something that should be universally condemned”. Prof. Sandy Levinson has already written a nice piece illustrating the tautological paradox inherent in that statement. An ex ante determination by the government that the conduct is permissible would strongly militate against observations that the conduct is, or even ought to be, “universally” condemned.
But the Supreme Court of Israel has already dealt with this issue of ex ante authority for harsher interrogation techniques (and the techniques, as described in the judgment, are far far less harsh than those the CIA is suspected of using today). The Court recognized the security needs of the state, and even examined the old ticking time bomb hypothetical, but it concluded that the government could find no ex ante authority for harsher interrogation practices in the principle of necessity (its full judgment is here). It left open the possibility of the legislature passing laws providing specific authority for such measures, though it noted that democracies have to fight with one hand tied behind their backs in order not to violate their own fundamental values. It also left open the ex post facto raising of necessity as a defence in the event of criminal prosecution. But it could not rely on its own determinations of neccessity to justify, and provide immunity for, harsher interrogation techniques.
That Israel, a country with much greater existential threats, and very real and persistent terrorist attacks upon its territory, can respond so forcefully to government claims that “necessity” requires ex ante authority for harsher interrogation techniques, should be instructive for the purposes of the debate in the U.S.