If anyone can figure out where the US really stands on torture from this latest "analysis", good luck. I know that any banana republic around the world that wants to use torture can cobble together a convoluted, BS rationale, do what they like and claim to be blameless.
Including us.
U.S. Revamps
Policy on Torture
Of War Prisoners
Legal Guidance Criticizes
Aggressiveness of Old Rules,
Redefines 'Severe Pain'
By JESS BRAVIN
Staff Reporter of THE WALL STREET JOURNAL
December 31, 2004; Page A1
The Bush administration issued a new definition of what constitutes torture of an enemy prisoner during interrogation, sharply scaling back its previous legal position that inflicting pain approaching that of organ failure or death was lawful, and retreating from earlier assertions that the president can authorize torture.
The 17-page memorandum issued by the Office of Legal Counsel, the Justice Department unit that provides definitive legal guidance for the executive branch, replaces a 50-page opinion issued in August 2002 that offered a legal framework to justify inflicting agony on prisoners and contended President Bush could set aside laws and treaties prohibiting torture.
The new document also concludes that the 2002 memo was wrong when it found that only "excruciating and agonizing pain" constituted torture, and that prosecution for committing torture was only possible if the defendant's goal was simply to inflict pain, rather than to extract information. "There is no exception under the statute permitting torture to be used for a 'good reason,' " the new memo concludes, even if the aim is "to protect national security."
Still, the memo concludes that even under its wider definition of torture, none of the interrogation methods previously approved by the Justice Department would be illegal.
The 2002 memo was incorporated into Defense Department interrogation policies approved by Defense Secretary Donald Rumsfeld, although administration officials say neither he nor the president actually authorized torture and say that subsequent incidents of prisoner abuse reported in Afghanistan, Iraq and Guantanamo Bay, Cuba, were aberrations.
But administration officials moved to revise their legal views after The Wall Street Journal published a draft of the Pentagon's interrogation policies, which were predicated on the more aggressive view of torture, in June. Subsequent disclosures of confidential legal memoranda led White House Counsel Alberto Gonzales to disavow the August 2002 memo, which administration officials said would be replaced within weeks with a new memo ruling out torture. That effort stalled amid interagency disagreements, and was only completed after Deputy Attorney General James Comey, the Justice Department's No. 2 official, ordered it released by year end.
A senior Justice Department official said the memo's delay -- it originally was planned for completion by August -- derived from differences among agencies including the Central Intelligence Agency, the Defense and State departments and the White House.
Some apparently small semantic points occupied much of the internal debate over the memo, the official said. In particular, lawyers wrestled with whether "severe physical suffering" was something apart from "severe physical pain," and whether each could independently be defined as torture.
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CHANGING THE POLICY
A new Justice Department memo scales back the Bush administration's previous legal conclusions on interrogation methods that constitute torture. In points where the new opinion differs from previous policy, it establishes that:
• "Severe" pain is no longer narrowly limited to the intensity of pain "accompanying serious physical injury, such as organ failure, impairment of bodily functions, or even death."
• Severe physical "suffering" can be distinct from severe physical "pain."
• In order to be classified as "prolonged" mental harm, conduct does not have to last for "months or even years."
• Infliction of severe pain or suffering does not have to be the defendant's "precise objective" in order to prosecute for war crimes.
Source: Justice Department
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"If you induced nausea in someone, day after day for weeks," how would it be classified, the official said, by way of example. "It's not severe pain, it's not mental as it's a sensation," the official said. But over a prolonged period it could be considered physical suffering, and the Justice Department ultimately concluded it could constitute torture.
The new document comes less than a week before Mr. Gonzales, nominated to succeed John Ashcroft as attorney general, faces a Senate confirmation hearing where Judiciary Committee members plan to grill him on his role in formulating interrogation policies. The White House declined to comment on the new memo.
The new document focuses on the main federal law prohibiting torture, enacted to enforce the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, which the U.S. ratified in 1994. The opinion was principally drafted by acting Assistant Attorney General Daniel Levin, who heads the legal counsel office, and his predecessor, Jack Goldsmith, now a professor at Harvard Law School. Addressed to Mr. Comey, it acknowledges that "questions have since been raised" about the prior memo's legal analysis, particularly its claims that the president held the power to set aside anti-torture laws and that even if he didn't, such laws only prohibited pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death."
The Justice Department now believes that analysis of the president's authority to order torture, or to immunize subordinates from prosecution for committing torture, is "unnecessary" because of Mr. Bush's "unequivocal directive that U.S. personnel not engage in torture."
Although the new memo has been publicly released, several related opinions that apply its conclusions to specific interrogation methods remain classified, the senior Justice official said.
The new memo is "a step forward from a very dark cave, but it certainly doesn't solve everything," said Tom Malinowski, Washington advocacy director for Human Rights Watch. He noted that while expanding the previous definition of torture, the memo still seeks to distinguish torture from lesser forms of abuse also prohibited by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
"It would have been more clear and constructive had they pointed out that these other things which may not amount to torture under the law are still illegal," Mr. Malinowski said.
John Yoo, a former Justice Department official who worked on the 2002 memo, said the revision would be of little help to agencies charged with fighting the war on terror. "This memo muddies the water because it makes it difficult to figure out how the torture statute applies to specific interrogation methods," said Mr. Yoo, a law professor at the University of California, Berkeley. "It removed all the clear lines but didn't change the basic analysis."
While the White House has said that President Bush, in a February 2002 directive, required that prisoners be treated humanely, critics have claimed that earlier confidential memoranda on interrogation policies trickled down to the field, and contributed to cases of abuse of prisoners in Afghanistan, Guantanamo Bay, and most notoriously, in the Abu Ghraib prison in Baghdad. Moreover, critics observed, the president's directive suggested that the detainees had no legal right to humane treatment, but would receive it only as a matter of his policy.
After the earlier memos were drafted, dozens of prisoner-abuse cases have emerged.
Write to Jess Bravin at jess.bravin@wsj.com |
