The Torture Memos - We Already Knew In 2006 What Was Happening


Let's take a minute to review some very important legal documents in the debate on the Bush Administration's torture policy.

There is the August 1, 2002 memo that sets the standard for "torture" as "inflict[ing] pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." The memo goes on to say that the application of "mind-altering substances" to be torture "they must produce an extreme effect" that "rise to the level of 'disrupting profoundly the sense or personality.' " Honestly, is that how your mother raised you, to call organ failure the standard of torture? What about pulling our fingernails? That would not be torture under this definition.

After the public release of this legal analysis, the President withdrew it and ordered another memo to be written. The memo of December 30, 2004 reversed some of the conclusions of the August 1, 2002 memo, which was a good thing. What it did not do was outline exactly what was legal to do within the context of an interrogation.

So what good is that?

The 2004 memo lists many cases describing fact patterns that have not been been ruled as constituting torture in U.S. courts. BUT - just when you think you have an answer the following footnote is inserted:

December 1, 2004 memo from the Office of the Assistant Attorney General, footnote 6

" ... In addition, this memorandum does not address the many other sources of law that may apply, depending on the circumstances, to the detention or interrogation of detainees (for example, the Geneva Conventions; the Uniform Code of Military Justice, 10 U.S.C. 801 et seq.; the Military Extraterritorial Jurisdiction Act, 18 U.S.C. 3261-3267; and the War Crimes Act, 18 U.S.C. 2441, among others)." (emphasis added)

The memo only applies to one section of law, the federal criminal prohibition against torture, in other words.

So not only doesn't the 2004 memo set a firm line between legal and illegal activities, it ignores military law and other federal laws. But people need to know what those rules are. They need to know what is allowed, and what will get them thrown in prison after the next election.

For the sake of edification, let's outline a few of fact patterns that have not been deemed torture under the one federal law the 2004 memo addresses.

The meaning of "severe."

"In Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A)(1978) the court concluding that the combined use of wall-standing, hooding, subjection to noise, deprivation of sleep, and deprivation of food and drink constituted inhuman or degrading treatment but not torture under the European Convention." See footnote 14 of the 2004 memo.

Again, there is not discussion of what does constitute torture, just what it isn't. That is not to say that such actions are permissible and legal in the U.S., it just means that under this section of law, these lawyers are giving those acts as an example of what is not torture. Helpful, eh?

In the Senate Foreign Relations Committee report advising the ratification of the Convention Against Torture (CAT), "... The term "torture, in United States and international usage, is usually reserved for extreme, deliberate and unusually cruel practices, for example, sustained systematic beating, application of electric currents to sensitive parts of the body, and tying up or hanging in positions that cause extreme pain." See page 6 of 2004 memo.

That's all for today. I will continue offering concrete examples to people of what the legal definition of torture is, or may be.

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