TORTURE

The Department of Justice's 'Torture Memo' is Criticized for being Contrary to U.S. and International Law

An August 1, 2002, memo from the Department of Justice about permissible interrogation tactics brought President George W. Bush's administration strong criticism after its release in mid 2004. The memo, written after the CIA requested legal advice following the September 11, 2001, terrorist attacks, addressed legally defensible methods of interrogation for al-Qaeda terrorist suspects. The memo stated that the torture of suspected al-Qaeda terrorists "may be justified" and that international laws against torture "may be unconstitutional if applied to interrogation" when used against suspected terrorists.

The memo was addressed to White House counsel Alberto R. Gonzales and was signed by Jay S. Bybee, the head of the Office of Legal Counsel ("OLC") within the Department of Justice. Gonzales is now the United States attorney general, and Bybee is now a federal appellate judge with the U.S. Court of Appeals for the Ninth Circuit, in San Francisco. The memo concluded that "certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity" to be classified as torture.

The memo examines various aspects of the Convention Against Torture, and Other Cruel, Inhuman, and Degrading Treatment or Punishment, as found in title 18, Sections 2340—2340A of the United States Code. The memo came about in response to questions that arose during the interrogation in early 2002 of al-Qaeda operations chief Abu Zubaida. The CIA was frustrated over its lack of progress with the interrogation, and wanted to know how far it could legally go without violating the law. Neither the Department of Defense nor the Department of State was consulted for assistance in preparation or review of the memo.

The memo stated that physical torture "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." In other words, torture means "pain that is difficult to endure."

According to the 2002 memo, in order for psychological methods of interrogation to rise to the level of torture, they must result in "significant psychological harm of a significant duration," meaning that the harm must last "months or even years." According to the memo, "a defendant must specifically intend to cause prolonged mental harm" in order for the act(s) to be considered torture; "specific intent only to commit the predicate acts that give rise to prolonged mental harm" would not constitute torture." Moreover, if an interrogator "has a good faith belief that his actions will not result in prolonged mental harm," he will have a valid defense against conviction for unlawful torture. Certain mind-altering drugs, which do not profoundly disrupt the senses or personality, would be permitted in interrogation, according to the memo.

One section of the memo examined whether the Convention Against Torture "may be unconstitutional if applied to interrogations of enemy combatants pursuant to the President's Commander-in-Chief powers." The memo concludes: "In the circumstances of the current war against al Qaeda and its allies, prosecution…may be barred because enforcement of the statute would represent an unconstitutional infringement of the President's authority to conduct war." In other words, interrogators who engaged in torture could be protected from criminal prosecution.

After the memo was made public, administration officials maintained that the president had consistently insisted that all methods of interrogation conform to U.S. and international laws and treaties. White House press secretary Scott McClellan stated that the memo had not been meant to provide any advice on specific methods of torture that might be acceptable. Critics disputed McClellan's assertion, noting that the length of the document (50 pages), and the fact that the head of OLC had signed it, indicated the significant weight that it was to be given.

Human rights observers blame the document for leading to abuses against prisoners at the Abu Ghraib prison in Iraq, in Afghanistan, and at Guantanamo Bay, Cuba, where suspected terrorists are detained. Complaints surfaced from human rights organizations in 2003 regarding mistreatment of Iraqi prisoners, but it was not until 2004 that the Army began an investigation, and graphic photographs began to find their way into the public view.

On December 30, 2004, a new memo from the OLC superseded, in its entirety, the August 2002 memo. According to the new memo, written by Daniel Levin, acting chief of the OLC, to Deputy Attorney General James Comey, "Torture is abhorrent both to American laws and values and to international norms." The new 17-page memo clearly backs away from any claims in the August 2002 memo that the president might be legally justified in departing from U.S. law on torture in times of war, and that there might exist some legally defensible ways around criminal charges for those who employ torture.

According to the December 30 memo, the August 2002 memo was inaccurate when it stated that only "excruciating and agonizing pain" constituted torture and when it stated that criminal prosecution would be limited to cases in which severe pain was imposed for its own sake, rather than to obtain information.

The new memo states that U.S. interrogators do not have a defense to allegations of torture by claiming that they were guided by national security concerns. Moreover, the memo also prohibits telling a detainee that he can avoid torture only by cooperating.

The December 30 memo also clearly backs down from the idea that torture is limited to physical suffering that involves severe physical pain or even death but says that it must be more than "mild and transitory" suffering. Mental suffering need not last months or years, as the original document claimed, and need not be permanent, but it "must continue for a prolonged period of time."

Gonzales succeeded John Ashcroft as U.S. attorney general in early 2005. The Department of Justice released the superseding memo shortly before Gonzales was to appear before the Senate Judiciary Committee for his confirmation hearings.