Administration Says Particulars May Trump Geneva Protections

By Joby Warrick
Washington Post Staff Writer
Sunday, April 27, 2008

The Geneva Conventions' ban on "outrages against personal dignity" does not automatically apply to terrorism suspects in the custody of U.S. intelligence agencies, the Justice Department has suggested to Congress in recent letters that lay out the Bush administration's interpretation of the international treaty.

Lawyers for the department, offering insight into the legal basis for the CIA's controversial interrogation program, reasserted in the letters the Bush administration's long-held view that it has considerable leeway in deciding how the conventions' rules apply to the harsh questioning of combatants in the war on terrorism.

While the United States is legally bound by the conventions' Common Article 3 and its requirement to treat detainees humanely, the definition of humane treatment can vary, depending on the detainee's identity and the importance of the information he possesses, a Justice Department official wrote last September and this March to a Democrat on the Senate intelligence committee.

"Some prohibitions . . . such as the prohibition on 'outrages against personal dignity,' do invite the consideration of the circumstances surrounding the action," Brian A. Benczkowski, the principal deputy assistant attorney general, asserted in one of the letters.

Benczkowski's letters were provided to The Washington Post by Sen. Ron Wyden (D-Ore.), who asked the Justice Department to explain the legal foundation for President Bush's executive order last year authorizing the CIA's continued interrogation of terrorism suspects. The existence of the letters was first reported last night by the New York Times.

A spokeswoman for Wyden said the administration's suggestion that the Geneva Conventions could be selectively applied was "stunning."

"The Geneva Convention in most cases is the only shield that Americans have when they are captured overseas," the spokeswoman, Jennifer Hoelzer, said in a phone interview. "And for the president to say that it is acceptable to interpret Geneva on a sliding scale means that he thinks that it is acceptable for other countries to do the same. Senator Wyden -- and I believe any other reasonable individual -- finds that argument appalling."

The Justice letters allow that certain acts by interrogators -- sexual mutilation, for example -- would be unlawful under any circumstance. But when judging whether a specific interrogation practice would violate the conventions' ban on degrading treatment, the government can weigh "the identity and information possessed by a detainee," Benczkowski wrote.

He suggested that a suspect with information about a future attack could be subjected to harsher treatment, noting that a violation would occur only if the interrogator's conduct "shocks the conscience" because it is out of proportion to "the government interest involved."

Moreover, to fit the definition of an "outrage upon personal dignity," an action must be deliberate, involving an "intent to humiliate and degrade," Benczkowski wrote.

The CIA declined to comment on the memo. However, agency spokesman Mark Mansfield said the CIA's detainee program "has been and continues to be in full compliance with the laws of our country."

"The program has disrupted terrorist plots and has saved lives," Mansfield said.

© 2008 The Washington Post Company