We will be discussing this subject ad nauseum when the Gonzales hearings are going on. Intel Dump
DOJ publishes new torture memo
By Phillip Carter
Jess Bravin, who first broke the 'torture memo' story back in May 2004, and who's been all over the story since, reports in Friday's Wall Street Journal (subscription required) that a new Justice Department torture memo has hit the street. (The Washington Post and AP also have stories on this.) This one, authored by the Office of Legal Counsel (who acts as the executive branch's in-house Constitutional lawyer), purports to clean up some of the extraneous language and dicta that clouded the earlier memoranda from August 2002 and March 2003. In a July 2004 press conference, White House counsel Alberto Gonzales (whose confirmation hearings start in early January) repudiated those memos, and said new ones would be forthcoming. Here's what Mr. Bravin had to say about the new one in today's WSJ:
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.
"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.
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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."
More to follow — I just wanted to post the basic story today. I highly recommend reading the original torture memos authored back in 2002 and 2003, and comparing it to this new one. The differences are striking. One explanation could be that the war on terrorism has matured, to the point where the President and his lieutenants no longer feel compelled to use as extreme of measures. They realize now the blowback from those measures, as well as the little they've gotten in return for their willingness to step outside the bounds of the law. |
