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.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 them to this new one. The differences are striking. It's still unclear how this new memo will translate into guidance for the field. After all, all the interrogation measures officially approved under the old memo remain kosher under this new one. One has to wonder whether this new memo is just one big exercise in legal sophistry.
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."
Update I: Neil Lewis has an article in Saturday's New York Times describing many of the authorized methods of coercive interrogation at Gitmo. Among the methods described: subjecting detainees to endless loops of the "Meow Mix" cat food jingle; forced enemas; and the use of a ruse to trick detainees into thinking they had been "rendered" to Egyptian intelligence officials. I'm all for interrogating detainees where we need to get intel to save American lives. But given the length of time most detainees have been at Gitmo, and out of the fight, and the reports that these guys are mostly low-level foot soldiers, are we sure these methods are justified?
Update II: Dana Priest, the Washington Post's star reporter covering the intelligence community, has an extremely important report in Sunday's Washington Post. According to Ms. Priest, the Bush administration is considering the implications of the war on terrorism's amorphous nature for the length of time we keep men imprisoned at Gitmo. In theory, a nation may detain prisoners for the duration of hostilities. If the war on terrorism lasts for 10, 20, or 30 years (or longer), then we must face the likelihood that we will be holding prisoners for the remainder of their natural lives.
Related Posts (on one page):
- Defining down torture
- Present at the creation
- DOJ publishes new torture memo
- More abuse allegations emerge from Gitmo
- More evidence of "coercive" interrogation comes to light
- Unwise counsel
- A few more bad apples
- CIA memo: stay away from military interrogations
- Torture policy still on the way
- Another page in the torture memo saga
- Another zany Justice Department memo
- More about memos
- Original sources - WSJ posts DoD's smoking legal memo
- Another smoking memo