Los Angeles Times
December 31, 2004
The Justice Department published a revised and expansive definition late yesterday of acts that constitute torture under domestic and international law, overtly repudiating one of the most criticized policy memorandums drafted during President Bush's first term.
In a statement published on the department's Web site, the head of its Office of Legal Counsel declares that "torture is abhorrent both to American law and values and international norms" and goes on to reject a previous statement that only "organ failure, impairment of bodily function, or even death" constitute torture punishable by law.
That earlier definition of torture figured prominently in complaints by Democrats and human rights groups about White House counsel Alberto R. Gonzales, who oversaw its creation and is Bush's nominee to become attorney general for the second term. The new memo's public release came one week before the start of Senate Judiciary Committee hearings on Gonzales's nomination.
Acting Assistant Attorney General Daniel Levin said in the new memo that torture may consist of acts that fall short of provoking excruciating and agonizing pain and thus may include mere physical suffering or lasting mental anguish. His opinion is meant, according to its language, to undermine any notion that those who conduct harmful interrogations may be exempt from prosecution.
This second effort by the Bush administration to parse the legal meaning of the word "torture" was provoked by the damaging political fallout from the disclosure this summer of the first memo, drafted in August 2002 and criticized by human rights lawyers and experts around the globe.
Many of the critics charged that the first memo -- which they said laid out a very narrow view of what behavior might constitute torture and was crafted to help interrogators at the CIA evade prosecution -- created the context for a record of persistent ill treatment by that agency and the U.S. military of detainees at prisons in Iraq, Afghanistan, Cuba's Guantanamo Bay and undisclosed locations.
"Clearly the release of this now is backfilling for Gonzales's confirmation hearing," said I. Michael Greenberger, a senior Justice Department official in the Clinton administration who now heads the Center for Health and Homeland Security at the University of Maryland. "These memos have been a tremendous source of embarrassment to both Gonzales and the administration."
Greenberger said that recent accounts of widespread abuse at U.S. detention facilities -- including disclosures that military interrogation practices were sharply criticized over the past two years by FBI and Defense Intelligence Agency personnel in the field -- have given ammunition to those within the administration who favor adherence to international norms against torture.
"It could be that this is not just a cynical ploy but a real sign of change," Greenberger said.
One of the most controversial provisions of the earlier memorandum, signed by Levin's predecessor, Jay S. Bybee, was an assertion that the president's executive powers were sufficient to permit tolerance of torturous acts in extraordinary circumstances. The International Committee of the Red Cross had declared in response that the prohibition on torture, embodied in a global convention signed by the United States, has no exceptions.
But advocates of strict adherence to the convention previously lost interagency battles to hard-liners in the Defense Department, the Justice Department and the White House, who maintained that the president has expansive powers during the war on terrorism. The new memo pointedly sidesteps this issue, stating that the "consideration of the bounds of any such authority would be inconsistent with the president's unequivocal directive that United States personnel not engage in torture."
The memo, which states that it "supersedes the August 2002 memorandum in its entirety," also drops an attempt in the earlier version to rule that harmful acts not specifically intended to cause severe pain and suffering might be legal, and to define "specific intent." Instead, it deliberately left the notion of "specific intent" undefined to avoid, Levin wrote, any notion that conduct amounting to torture might under some circumstances be considered legal.
The memo also explicitly states that "a defendant's motive (to protect national security, for example) is not relevant to the question" of his or her intent under the law.
Tom Malinowski, Washington advocacy director for Human Rights Watch, which has been critical of the Bush administration's legal opinions regarding the treatment of detainees, gave the memo a generally positive review and said its "definition of torture is not as tortured as it was."
But John Yoo, a law professor at the University of California at Berkeley who helped draft the first memo while working in the legal counsel's office, said the new version "makes it harder to figure out how the torture statute applies to specific interrogation methods. It muddies the water. Our effort . . . was to interpret the statute clearly."