The relativity of "outrages upon personal dignity"

A series of exchanges (four letters: here, here, here, and here) between Senator Ron Wydon and Bush's Justice Department reveals some disturbingly bad thinking about how the CIA is to interpret the Geneva Convention's prohibition of "outrages upon personal dignity". Apparently, the Bush administration believes that part of what determines the outrageousness of the act itself is the ultimate intent of the interrogator--for example, if the interrogator's ultimate intent is to humiliate the detainee, then this would make the act more "outrageous" than if the interrogator's ultimate intent were to, say, protect America from an imminent terrorist attack. Says the Justice Department:

At the same time, some prohibitions under Common Article 3 [of the Geneva Convention], such as the prohibition on "outrages upon personal dignity", do invite the consideration of the circumstances surrounding the action. As we noted in our previous letter, a general policy to shave detainees for hygienic and security purposes would not be an "outrage upon personal dignity", but the targeted decision to shave the beard of a devout Sikh for the purpose of humiliation and abuse would present a much more serious issue. In such an example, the identity of the detainee and the purpose underlying the act clearly would be relevant. Similarly, the fact that an act 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 of the act.

This explanation doesn't work, because there is a serious incongruity between the example where the Sikh is shaved to maintain hygiene and the example of the unspecified case where an act is judged to be less outrageous because of the actor's intent to prevent an attack. The difference between them equivocates on what we mean when we talk about a person's intent in performing some action. One in the same action can in fact have many different intents behind it of varying immediacy. For example, when I go to Circuit City and slap a $100 bill on the sales counter, there are many different ways of describing what my intention was in doing that. My intention was "to give money to the salesperson"; but it was also "to acquire a new stereo"; you could also say it was "to prepare for the dance party I'm throwing"; and you might even say that, ultimately, my intention was "to impress Beckie Smith with my awesome dance moves". Though these stated intentions have varying degrees of causal proximity to the actual act, they are all true answers to the question, "What was your intention in slapping that $100 bill on the counter?"

In the Sikh example, the shaving is judged to be less outrageous because of the innocuousness of the action's immediate intent: to maintain the hygiene of the detainee. In this case, even though the act of shaving might have indeed humiliated the prisoner, the person acting can at least truthfully say, "It was never my intention in any way to humiliate this individual or offend his faith"--and it is precisely the actor's ability to truthfully claim this that renders the act less outrageous. However, in the other example (which tellingly lacks any kind of concrete details), where it is merely the acting person's overarching, non-immediate, ultimate intent to save America that is supposedly mitigating the outrageousness of the act, it is not clear to me that the person can necessarily truthfully claim, "It was never my intention to commit an outrage on the prisoner's dignity", because it still could have been that the actor's immediate intent was to commit an outrage on the dignity of the prisoner. So it seems to me that using the actor's non-immediate intent to gauge the outrageousness of the act is tantamount to saying that, when determining the outrageousness of an act, the ends can have a justifying effect on the means.

The Justice Department engages in similar tricky business elsewhere in the letters:

To be clear, neither the executive order nor Common Article 3 would permit an individual to commit an "outrage upon personal dignity" based upon the type of information a detainee is believed to possess or the government interest at stake.... To make this clear, the executive order provides illustrations of the kinds of conduct that would be prohibited in all cases, regardless of the circumstances and purported justifications, including forcing an individual to perform sexual acts, threatening an individual with sexual mutilation, or using an individual as a human shield. At the same time, these provisions reflect the common sense notion that a reasonable observer, in determining whether conduct should be deemed outrageous and particularly revolting, would take into account the circumstances surrounding the conduct, including what justifications might exist. [Citations omitted.]

Here, the Justice Department is saying here that though the government can never commit an "outrage upon personal dignity" in order to achieve some ends, it is nevertheless the case that we must take into account the value of the ends in determining whether the act rises to an "outrage upon personal dignity" in the first place. But this, it seems to me, is nothing more than using semantics to sneak an ends-justifies-the-means argument through the back door. A proper, non-ends-justifies-the-means evaluation of an action seeks to look at the action in itself, independent of the goodness of its consequences further down the causal chain. But this independence is spoiled if the very criterion by which you judge the action takes into consideration the goodness of the consequences of the action down the line. It's flim-flammery, I tells ya!

Sigh. If nothing else, these various tricks and obfuscations show that the Bush administration lawyers are more interested in ducking and lawyering the Geneva Conventions than adhering to them in good faith. The next administration will have to work very hard to undo the damage to American principles that has been wrought by the Bush administration, and to purge the culture of disregard for the law that has come to permeate the executive branch.