On December 30, 2004, the Justice Department released a long awaited revision of its controversial August 1, 2002 memorandum . It had construed the federal criminal law banning torture extremely narrowly and proposed questionable defenses against torture charges, including the assertion that the President’s powers as Commander-in-Chief trumped any criminal prohibition against torture. The new memo defines torture more broadly, but notably fails to reject the earlier memo’s argument that the President is unconstrained by acts of Congress criminalizing torture and has complete discretion in his actions as Commander-in-Chief.
"The new memo is a remarkable admission of error on the part of the Administration, rejecting the August 2002 memo’s strained interpretations of torture, and thereby calling into question the legality of the U.S. government’s interrogation policy over the last two years," said Elisa Massimino, Washington Director of Human Rights First.
The new memo, authored by Acting Assistant Attorney General Daniel Levin in the Office of Legal Counsel, repudiates the August 2002 memorandum’s parsing of the phrase "severe pain" in the federal statute, which had construed "severe" to mean "excruciating and agonizing" or "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." The Levin memo also diverges from the August 2002 memo in finding that an interrogator acts with sufficient intent to constitute torture if he knows that his actions will cause the requisite severe pain.
"This repudiation of the prior flawed analysis is a welcome clarification of what the Bush Administration believes constitutes torture," said Massimino. But despite this rejection of the earlier analysis, the new memo argues that under this revised definition of torture, no prior Office of Legal Counsel opinions "‘addressing issues involving treatment of detainees . . . would be different. " This is especially alarming since it was this same office in the Justice Department that reportedly approved interrogation methods including "waterboarding," denial of pain killer medication, simulated drowning, and threatening to transfer detainees to other countries’ interrogators. "With this memo, we have a better sense of what kind of interrogation techniques the Administration considers to be criminal " , Massimino said. "But one hopes that other considerations also guide interrogation policy. The United States is bound by law to refrain from any cruel, inhuman or degrading treatment of people in its custody. The Administration still has to set the record straight on its policy of detainee treatment and interrogation."
Although the Levin memo offers a more coherent reading of the federal torture statute, it does not address various sources of law that apply to the detention and interrogation of detainees, including the Geneva Conventions, the Uniform Code of Military Justice, the Military Extraterritorial Jurisdiction Act, and the federal War Crimes Act, as well as the prohibition against "cruel, inhuman or degrading treatment" in the U.N. Convention Against Torture. In particular, Alberto Gonzales opined in his January 25, 2002 memorandum that the Geneva Conventions and the War Crimes Act did not apply to the treatment of Al Qaeda and Taliban detainees. The Levin memo does not clarify whether this is still the Administration's legal position.
Although the Levin memo explains that it "supersedes the August 2002 Memorandum in its entirety," it does not address the merits of the argument that the President enjoys unchecked powers as Commander-in-Chief and that a Presidential directive to torture might immunize an interrogator from prosecution. Instead the Levin memo evades the discussion, characterizing the arguments as "unnecessary" and "inconsistent" with the President’s statement in July of 2004 condemning torture.
"The new memo prompts the immediate question: Why did it take the Administration 29 months to repudiate these arguments?" asks Ms. Massimino. "The Administrations needs to disclose what interrogation methods were in fact approved on the basis of the August 2002 memo and other related memos. That memo was not simply an academic exercise but led to the torture and cruelty we have seen or heard about at Abu Ghraib, Afghanistan and Guantanamo Bay."