Todayâ€™s lead story in the New York Times reveals how the US Justice Departmentâ€™s legal advice to CIA agents on acceptable interrogation techniques was worded following the Supreme Courtâ€™s decision in Hamdan (2006) that Common Article 3 of the Geneva Conventions applies to GuantÃ¡namo Bay detainees. According to the story:
The Justice Department has told Congress that American intelligence operatives attempting to thwart terrorist attacks can legally use interrogation methods that might otherwise be prohibited under international law.
The legal interpretation, outlined in recent letters, sheds new light on the still-secret rules for interrogations by the Central Intelligence Agency. It shows that the administration is arguing that the boundaries for interrogations should be subject to some latitude, even under an executive order issued last summer that President Bush said meant that the C.I.A. would comply with international strictures against harsh treatment of detainees.
While the Geneva Conventions prohibit â€œoutrages upon personal dignity,â€ 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 legal reasoning included in the latest Justice Department letters is less expansive than what department lawyers offered as recently as 2005 in defending the use of aggressive techniques. But they show that the Bush administration lawyers are citing the sometimes vague language of the Geneva Conventions to support the idea that interrogators should not be bound by ironclad rules.
The article is a (short) must-read for all those who are interested in the role that law and lawyers have played in the attempts by the United States to reshape international legal standards since 9/11. It also ties in nicely with the papers presented at last Wednesdayâ€™s CCJHR seminar entitled â€˜How the US Can Lose the War on Terrorâ€™ (delivered by John D. Hutson) at which the discussion paper, which I presented, was about lawyersâ€™ complicity. The seminar will soon be available for viewing on UCC Faculty of Lawâ€™s video archive, and my discussion paper can be accessed here.