An essential post from Marty Lederman [all italics in the original]:
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“It’s important to be clear about one thing: The question is not simply whether, in the abstract, it would be a good or acceptable idea for the United States to use such techniques in certain extreme circumstances on certain detainees. I happen to think that the moral, pragmatic, diplomatic and other costs of doing so greatly outweigh any speculative and uncertain benefits — but that is obviously a question on which there is substantial public disagreement, much of it quite sincere and serious. Instead, the question must be placed in its historical and international context — namely, whether Congress should grant the Executive branch a fairly unbounded discretion to use such techniques where such conduct would place the United States in breach of the Geneva Conventions. And that, of course, changes the calculus considerably. Does Congress really want to make the United States the first nation on earth to specifically provide domestic legal sanction for what would properly and universally be seen as a transparent breach of the minimum, baseline standards for civilized treatment of prisoners established by Common Article 3 — thereby dealing a grevious blow to the prospect of international adherence to the Geneva Conventions in the future?
“It would be one thing — a momentous thing, no doubt — for the United States to propose that Geneva itself be amended to permit certain extreme interrogation techniques in certain limited circumstances. In that case, the principal question would be whether torture and its close equivalents are ever acceptable, and whether they could and should be regulated under a legal regime that would somehow keep such techniques within “proper” bounds, if there are any. But as the issue now stands, the advisability and morality of such techniques, as such, and the practical questions of regulating such conduct, although obviously of great importance, are overshadowed by an even more solemn question: whether legalizing such techniques is worth an effective repudiation of Geneva by the most powerful state on the planet, with all that such a repudiation would entail for the future of Geneva and other international agreements.”
[Hat tip: Sullivan]
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