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Redefining Torture
By Marjorie Cohn
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r u t h o u t | Perspective
Monday 03 January 2005
The election's over, but the Bush
spin machine goes on. In anticipation of hard questions Alberto Gonzales
will face at his attorney general confirmation hearing in the Senate
Judiciary Committee this week, Bush's lawyers are seeking to minimize the
damage from the release of the torture memos in which Gonzales concurred.
Gonzales wrote a memo in January
2002 that proposed for the first time, "The war against terrorism is a new
kind of war" and "this new paradigm renders obsolete Geneva's strict
limitations on questioning of enemy prisoners and renders quaint some of
its provisions." Gonzales also designed the military commissions to deny
due process to those who will face trials in them. (See my editorial,
The Quaint Mr. Gonzales).
An August 2002 memo leaked during
2004 set the stage for the torture of prisoners in Iraq and Guant�namo
Bay. It "helped provide an after-the-fact legal basis for harsh procedures
used by the CIA on high-level leaders of Al Qaeda," according to the New
York Times. In it, Bush's legal eagles defined torture so narrowly, the
torturer would have to nearly kill the torturee in order to run afoul of
the legal prohibition against torture. It said that to constitute torture,
the pain caused by an interrogation must include injury such as death,
organ failure, or serious impairment of body functions.
That memo also set forth the
opinion that the laws prohibiting torture do "not apply to the President's
detention and interrogation of enemy combatants," because he is
Commander-in-Chief of the United States. And it posited various defenses
to shield the President and his men from prosecution under the federal
torture statute. The release of this memo, coupled with the repulsive
torture photographs, launched a firestorm of criticism at the Bush
administration.
The White House quickly disavowed
the memo as the work of a small group of Justice Department lawyers. But
the Washington Post reported that "administration officials now confirm it
was vetted by a larger number of officials, including lawyers at the
National Security Council, the White House counsel's office and Vice
President Cheney's office." According to Newsweek, the memo "was drafted
after White House meetings convened by George W. Bush's chief counsel,
Alberto Gonzales, along with Defense Department general counsel William
Haynes and [Cheney counsel] David Addington." Haynes is one of Bush's
judicial nominees who was not approved by the Senate; Bush, however, has
resubmitted Haynes' name to the Senate, hoping Republican senators will
engage in the unprecedented destruction of the filibuster.
Now, on the threshold of Senate
hearings to confirm Alberto Gonzales as Attorney General, Justice
Department lawyers have redefined torture in a new memo meant to supersede
the embarrassing August 2002 memo.
The new memo, dated December 30,
2004, begins with the admirable statement: "Torture is abhorrent both to
American law and values and to international norms." Although undoubtedly
aware of the abhorrent nature of torture back in 2002, the old memo's
authors launched right into narrowing the definition of torture in its
first paragraph. They didn't bother to mention that it is repulsive to the
people.
In the fourth paragraph of the
17-page December memo, its authors say: "This memorandum supersedes the
August 2002 Memorandum in its entirety."
When the August 2002 memo came to
light, it provoked such an outcry, Gonzales stepped up to the political
damage control plate, and dubbed the Commander-in-Chief section
"unnecessary." Gonzales' damage control statement has now been codified in
the December memo. It says: "Because the discussion in that [August 2002]
memorandum concerning the President's Commander-in-Chief power and the
potential defenses to liability was - and remains - unnecessary, it has
been eliminated from the analysis that follows. Consideration of the
bounds of any such authority would be inconsistent with the President's
unequivocal directive that United States personnel not engage in torture."
What a relief! But wait. The new
memo doesn't actually say the President doesn't have unlimited power to
defy our torture laws. It begs the question by saying it's "unnecessary"
to deal with the broader legal issue because Bush has commendably declared
that U.S. personnel should not commit torture.
The myriad reports, photographs,
and testimonials that document widespread torture by U.S. personnel,
however, show that Bush's directive has been ignored. So the scope of
possible defenses to torture prosecutions would indeed be relevant.
What the new memo does do is
modify the definition of torture. "We disagree with statements in the
August 2002 Memorandum," writes Daniel Levin, Acting Assistant Attorney
General and lead author of the December memo, "limiting 'severe' pain
under the [federal torture] statute to 'excruciating and agonizing' pain,
or to pain 'equivalent in intensity to the pain accompanying serious
physical injury, such as organ failure, impairment of bodily function, or
even death.'"
The new definition of torture is
much broader, making it easier to maintain a criminal prosecution under
the torture statute. In fact, it says "great care must be taken to avoid
approving as lawful any conduct that might constitute torture."
Acknowledging that "despite
extensive efforts to develop objective criteria for measuring pain, there
is no clear, objective, consistent measurement," the new memo, contrary to
the August 2002 memo, concludes that "severe physical suffering" may
sometimes constitute torture even if it does not involve "severe physical
pain." But to constitute torture, writes Levin, "'severe physical
suffering' would have to be a condition of some extended duration or
persistence as well as intensity."
The August 2002 memo, consistent
with the Convention Against Torture and Other Cruel, Inhuman and Degrading
Treatment and Punishment, required that the act actually result in the
infliction of severe physical or mental pain or suffering, in order to
amount to torture. The new memo, citing the federal torture statute,
denies it is necessary to show actual infliction; an act committed with
the specific intent to inflict severe pain or suffering is sufficient to
sustain a criminal prosecution for torture.
Finally, the new memo admits that
a defendant's motive to protect national security will not shield him from
a torture prosecution. This directly contradicts the August 2002 memo's
analysis of the necessity defense, which, it said, could defeat a torture
charge if the defendant's acts constituted a lesser evil than the evil of
terrorism.
Michael Ratner, president of the
Center for Constitutional Rights, which represents some of the detainees,
said the repudiation of the earlier memo confirms that the Gonzales
nomination should be withdrawn.
"The first [August 2002] memo took
us back to the Middle Ages and so it first makes you say, what are we
doing putting this guy in as attorney general of the United States,"
Ratner said.
John Ashcroft was widely
criticized for his attacks on civil liberties. Democratic senators will
challenge Alberto Gonzales on his apologies for torture and other
repressive policies. One would hope they do not see Gonzales as a lesser
evil than the harsh Mr. Ashcroft.
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