Specious Justification for an “outrage on personal dignity”

The New York Times reports that in a letter dated March 6, 2008 mar-06-2008-doj-letter4 Brian A. Benczkowski, Principal Deputy Assistant Attorney General, writes to Senator Ron Wyden (D.-OR) regarding the U.S. Department of Justice interpretation of Common Article 3 and the Detainee Treatment Act of 2005. In the letter, Benczkowski asserts, without citation to any authority, that

the fact that an act [consisting of an outrage on personal dignity] is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation and abuse, would be relevant to a reasonable observer in measuring the outrageousness ofthe act.

Common Article 3 is, of course, explicitly to apply without discrimination, including the sort envisioned by the Department of Justice. There is no exception relating to the purpose — even a good one — for which the outrage is committed. The reason(s) should be self-evident. No doubt it figures in why Benczkowski has no authority to support his claim.

See generally, Sandford Levison, ed., Torture: A Collection (Oxford Univ. Press, 2004); Mark Danner, Torture and Truth (New York Review of Books, 2004).

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