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The DOJ's trojan horse of "universal condemnation"

By Jack M. Balkin

The lead story in Sunday's New York Times, on Justice Department letters in effect giving interrogators permission to engage in interrogation practices that are illegal under international (and US?) law includes the following paragraph:

In one letter written Sept. 27, 2007, Mr. Benczkowski [a deputy assistant Attorney General] 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.?

There is, of course, a certain logical paradox here: The very fact that the some US interrogator would suggest that some particular conduct is "reasonable" in some situation would, by definition, mean that there is not "universal" condemnnation of the practice. This is especially true if one accepts the DOJ argument that ?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.? Once one allows what might be termed "purity of utilitarian motive" to dominate the analysis, the game is over, for there will always be those who will argue that it is worth doing practically anything to forestall any "terrorist attack."

Indeed, as has been revealed over the past several years, there is no universal consensus on the proposition that torture is forbidden under all circumstances, whatever the UN Convention might say. One could look either to the practices of many of the countries that have signed the UN Convention, including practices of the United States, or look at the arguments made by people ranging from Richard Posner to Michael Walzer (to name only two contributors to the book that I edited). All one can really do is to say that those defending the propriety of torture under some circumstances are wrong in their arguments, and, frankly, the most important arguments on this point, if we'e talking about "condemnation," are moral rather than legal, at least if we're trying to influence public opinion instead of fellow lawyers.

In any event, no one should accept the DOJ "standard" for what counts as "deplorable," since under it (almost) nothing would fail their test. To take it seriously is the equivalent of accepting the Trojan Horse. One should always beware of the Bush Administration offering any "gifts."

Full post as published by Balkinization on April 27, 2008 (boomark / email).