New U.S. Legal Rationales for Torture – A Comparison with Israel

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. … Read more…

Water-boarding Not Torture Because the Government Did It?

The article “Nominee’s Stand May Avoid Tangle of Torture Cases” (New York Times, Nov. 1) seems to suggest that Mr. Mukasey’s reticence on the issue of water-boarding is prudent and reasonable. But the logic of the political explanations for the nominee’s position is actually deeply disturbing. MukaseyReduced to its essentials, it is this: “It would be bad for the President or his agents to be found to have engaged in criminal behavior, thus we will not define as criminal such actions that the President’s agents may have undertaken, or which he may have directed.” It would be no different, in terms of the form of argument, from saying “to the extent that the President’s agents may have decapitated American civilians, and that homicide is illegal, I am not prepared to say that decapitation is homicide”. It almost boils down to Richard Nixon’s infamous comment that if the President did it, it can’t be illegal. When the Attorney General will not even lay the case of possible executive wrongdoing before a court to decide, this country will be well on its way to sacrificing both the rule of law and the constitutional division of powers in the name of national security. (Submitted as a letter to the editor, New York Times)