January 3, 2005
By Marjorie Cohn
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 Guantánamo 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.
Marjorie Cohn, a contributing editor to t r u t h o u t, is a professor at Thomas Jefferson School of Law, executive vice president of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists.