The Obama administration is now saying the same thing.

Today, it assured reporters in a background briefing with administration officials that although the U.S. government will continue to send terror suspects to foreign countries for interrogation — what has notoriously become known as “rendition” — it will seek assurances from those countries that their interrogators won’t torture the suspects.

Of course, the Bush administration said it sought and received those same assurances. After all, it’s long been illegal, both under U.S. and international law, to send detainees to countries where they’re likely to be tortured. So what’s different now?

“The State Department will play a larger role to ensure that those assurances are credible,” said one senior administration official during the background briefing. (Why the briefing was on background and not for attribution to particular administration officials isn’t clear.)

So, asked Eli Lake of The Washington Times, will the United States simply stop sending suspects to countries that are known to torture suspects, such as Egypt or Syria?

No, the administration is not willing to go that far, a senior administration official said.  However, “we will ensure that we have the appropriate assurances in place that gives us strong confidence that the individuals in question will not be tortured.”

The Obama administration is now saying that, unlike the Bush administration before it, it will seek to verify that suspects aren’t being tortured. According to a paper released by the Justice Department today, the task force recommended that “agencies obtaining assurances from foreign countries insist on a monitoring mechanism, or otherwise establish a monitoring mechanism, to ensure consistent, private access to the individual who has been transferred, with minimal advance notice to the detaining government.”

That sounds like an improvement, though having to provide any advance notice to the detaining government is problematic. The policy still, to some extent, allows the U.S. government to trust foreign officials who promise they won’t torture a terror suspect, even if they are officials of a country that is known by the United States to torture terror suspects.

The State Department may play a larger role than it did before, but the new interagency process is ultimately under the control of the president’s National Security Council. That’s better then keeping it a purely CIA function, as it was before. But it still raises the question of why the United States plans to send terror suspects to foreign countries known to torture them, and just how vigorous — and how long-lasting — U.S. monitoring will really be.

The approach is disingenuous and misleading for a number of reasons I’ll get into below. And the effect is to offer an excuse for those officials who approved what many real experts on the international and domestic laws against torture and cruel treatment have been saying for years are clearly illegal.

After discussing the recently-obtained e-mails, apparently revealed during the much-anticipated investigation by the Justice Department’s Office of Professional Counsel, here’s The Times’ attempt at stepping back and putting the situation in context:

Some outside experts agree that the language of the 1994 [anti-torture] law is strikingly narrow. “There’s no doubt whatsoever that a great deal of coercive treatment that most people would call torture is not prohibited by the federal antitorture statute,” said Benjamin Wittes, a Brookings Institution scholar who has studied interrogation policy.

But many believe that even under that law, the Justice Department should have recognized that waterboarding, at least, was torture. To argue otherwise, said Brian Z. Tamanaha, a St. John’s University law professor who has studied the interrogation memorandums, required “extraordinary contortions in language and legal analysis.”

Setting aside the obvious problem of approaching such a serious issue by just cherry-picking one expert from each side, this sets up the legal issue incorrectly, and relies on an outside “expert” on legal compliance who doesn’t even have a law degree.

Sure, Benjamin Wittes, a Washington Post editorial writer before moving to Brookings, has written about law as a journalist and opinion writer; but Wittes is neither a lawyer nor a law professor — usually the bare minimum required to qualify someone as an expert on the laws of war, interrogation and torture. Shouldn’t the one expert cited by the so-called paper of record as saying the manipulative abuse of prisoners by the CIA was undoubtedly legal at least have the requisite educational background to offer the opinion?

Maybe Wittes is a brilliant autodidact. But there’s an obvious problem with his whole analysis. The law is not nearly so narrow as Wittes and The Times’ article portray it.

As anyone who’s read either the Convention Against Torture or the 1994 U.S. law implementing it knows, interrogation techniques don’t have to rise to the level of “torture” to be unlawful.

Human Rights First – a collection of actual legal experts on international human rights law – explains on its Website: “Even if the practices alleged in the recent press reports do not constitute ‘torture,’ article 16 of the Torture Convention obliges states not to commit “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture.”

When the U.S. Senate ratified the treaty in 1994 and adopted a parallel domestic law, it included this reservation:

“[T]he United States considers itself bound by the obligation under article 16 to prevent `cruel, inhuman or degrading treatment or punishment’, only insofar as the term `cruel, inhuman or degrading treatment or punishment’ means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.”

In other words, it prohibits the sorts of things that the U.S. Constitution would prohibit doing to prisoners here in the United States.

Can one really say that “there’s no doubt whatsoever” that the interrogation techniques used by the CIA would not violate that ban?  Is it even conceivable that U.S. courts would allow federal officials to use those techniques on U.S. prisoners held in the United States? Didn’t the Bush administration create the prison at Guantanamo Bay precisely because it wanted to avoid constitutional obligations?

If The Times is going to take up this serious issue on its front page, then it should take the topic seriously enough not to act as an apologist for Justice Department lawyers, but to present it honestly, accurately, and with real expertise.

UPDATE: For more on the misleading Times’ story and a close reading of the Jim Comey e-mails, check out these excellent posts from Glenn Greenwald and Marcy Wheeler.

2nd UPDATE: I’d like to make a clarification. Upon reflection, I think I was too hard on Wittes here. I read his quote, in the context in which it was presented in The Times’ story, as saying that the harsh but less-than-torture techniques discussed in the article were undoubtedly lawful, which is, of course, a matter in much dispute.  After re-reading his statement, it seems that he was saying only that many interrogation techniques that Americans would ordinarily think of as torture don’t rise to the level of being defined as “torture” as set out in the 1994 federal anti-torture statute, 18 U.S.C. 2340. And that’s correct.

My point was a larger one, and was directed at The Times, not at Wittes. The article sets him up as an expert to make the point that the Bush administration lawyers reportedly made (though that in itself is a matter of some contention), which is that, as Times reporters Scott Shane and David Johnston put it, “the methods themselves were legal.”

But as I point out above, saying that they don’t rise to the legal definition of “torture” does not mean that they’re legal. Even if Bush administration lawyers thought they were, there are many very learned, respected and legitimate experts who disagree. And The New York Times should have noted that, instead of using a quote that makes a very narrow point to suggest a far broader conclusion.

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