New York Times
December 31, 2004
WASHINGTON, Dec. 31 - The Justice Department has broadened its definition of torture, significantly retreating from an August 2002 memorandum that defined torture extremely narrowly and said President Bush could ignore domestic and international prohibitions against torture in the name of national security.
The new definition was contained in a memorandum posted on the department's Web site late Thursday with no public announcement. It comes one week before the Senate Judiciary Committee is to question Alberto R. Gonzales, the White House counsel and nominee for attorney general, about his role in formulating legal policies that critics have said led to the abuses at Abu Ghraib prison in Iraq and at Guantánamo Bay, Cuba.
The new memorandum, reported earlier today by The Wall Street Journal and The Washington Post, largely dismisses the August 2002 definition, especially the part that asserted that mistreatment rose to the level of torture only if it produced severe pain equivalent to that associated with organ failure or death.
"Torture is abhorrent both to American law and values and to international norms," said the new memorandum written by Daniel Levin, the acting assistant attorney general in charge of the Office of Legal Counsel, which had produced the earlier definition.
Mr. Gonzales, who will go before the Senate committee for confirmation hearings, served as a supervisor and coordinator inside the administration as lawyers drafted new approaches on the limits of coercive techniques in interrogations and the scope of the president's authority in fighting a post 9/11-war against terror groups.
A January 2002 memorandum to President Bush that he signed sided with the Justice Department in asserting that the Geneva Conventions did not bind the United States in its treatment of detainees captured in the fighting in Afghanistan.
The August 2002 Justice Department memorandum and a later memorandum from an administration legal task force with similar conclusions were widely denounced in Congress and by human rights groups that viewed them as cornerstones in the approach to detainees that led to abuses.
The political effect of the new memorandum on Mr. Gonzales's appearance before the committee is unclear. He has been expected to assert, as he has before, that neither he nor President Bush condones torture.
But the change could underline what had been the undisputed policy of the administration at least until this June, when officials said it was no longer applicable and would be rewritten. That position came just after the August 2002 memorandum was disclosed in published reports.
Michael Ratner, the president of the Center for Constitutional Rights, a New York-based group that has sued the administration over its interrogation policies, said today that the redefinition "makes it clear that the earlier one was not just some intellectual theorizing by some lawyers about what was possible." He added: "It means it must have been implemented in some way. It puts the burden on the administration to say what practices were actually put in place under those auspices."
The International Committee of the Red Cross has said in private messages to the United States government that its personnel have engaged in torture of detainees, both in Iraq and Guantánamo.
The 2002 memorandum was signed by Jay S. Bybee, who was then the head of the Department's legal counsel office. Now a federal appeals court judge in Nevada, he has consistently declined to comment on the issue.
The bulk of the memorandum is devoted to the Convention Against Torture and legislation enacted by Congress that gives it the force of law. "We conclude that torture as defined in and proscribed by" the statute and treaty, the memo says, covers only extreme acts and severe pain.
It goes on to say that "when the pain is physical, it must be of an intensity akin to that which accompanies serious physical injury such as death or organ failure," adding, "Severe mental pain requires suffering not just at the moment of infliction but it also requires lasting psychological harm."
In revising that view, the current memorandum parses the language and the treaty differently, saying, for example, that torture could include "severe physical suffering" as well as "severe physical pain." The Bybee memorandum tried to limit torture to severe physical pain. But the new memorandum also noted that physical suffering is difficult to define.
One clear distinction is that the new memorandum rejects the earlier memorandum's assertion that torture may only be said to occur if the interrogator meant to cause the harm that resulted.
David Scheffer, a senior State Department human rights official in the Clinton administration, who teaches law at George Washington University, said today that while the Justice Department's change was commendable, it might still provide too flexible a definition of torture. He said that by not providing strict-enough definitions, too many judgments were left in the hands of the interrogators.
The new memorandum dealt with the issue of the earlier opinion's granting to President Bush the power to authorize torture by saying that the department does not have to consider that matter any longer as "such authority would be inconsistent with the president's unequivocal directive that United States personnel not engage in torture."