The New York Times > International > Middle East > Aides Say Memo Backed Coercion for Qaeda Cases:
"An August 2002 memo by the Justice Department that concluded interrogators could use extreme techniques on detainees in the war on terror helped provide an after-the-fact legal basis for harsh procedures used by the C.I.A. on high-level leaders of Al Qaeda, according to current and former government officials.
The legal memo was prepared after an internal debate within the government about the methods used to extract information from Abu Zubaydah, one of Osama bin Laden's top aides, after his capture in April 2002, the officials said. The memo provided a legal foundation for coercive techniques used later against other high-ranking detainees, like Khalid Shaikh Mohammed, believed to be the chief architect of the attacks of Sept. 11, 2001, who was captured in early 2003.
The full text of the memo was made public by the White House on Tuesday without explanation about why it was written or whether its standards were applied. Until now, it has not been clear that the memo was written in response to the C.I.A.'s efforts to extract information from high-ranking Qaeda suspects, and was unrelated to questions about handling detainees at Guantánamo Bay or in Iraq."
The memo suggested that the president could authorize a wide array of coercive interrogation methods in the campaign against terrorism without violating international treaties or the federal torture law. It did not specify any particular procedures but suggested there were few limits short of causing the death of a prisoner. The methods used on Mr. Zubaydah and other senior Qaeda operatives stirred controversy in government counterterrorism circles and concern over whether C.I.A. employees might be held liable for violating the federal torture law.
While the memo appeared to give the C.I.A. wide latitude in adopting tactics to interrogate high-level Qaeda detainees, it is still unclear exactly what procedures were used or the extent to which the memo influenced the government's overall thinking about interrogations of other terror detainees captured in Afghanistan and elsewhere.
The officials said the memo illustrated that the Bush administration, in the months after the September 2001 attacks, was urgently looking for ways to force senior Qaeda detainees to disclose whether they knew of any future terrorist attacks planned against the United States.
The memo, which is dated Aug. 1, 2002, was a seminal legal document guiding the government's thinking on interrogation. It was disavowed earlier this week by senior legal advisers to the Bush administration who said the memo would be reviewed and revised because it created a false impression that torture could be legally defensible.
In repudiating the memo in briefings this week, none of the senior Bush legal advisers whom the White House made available to reporters would discuss who had requested that the memo be prepared, why it had been prepared or how it was applied. On Friday, the Justice Department and C.I.A. would not discuss the origins of the memo, but in the past officials at those agencies have said that the interrogation techniques used on detainees were lawful and did not violate the torture statute, which generally forbids inflicting severe and prolonged pain.
The memo was addressed to Alberto R. Gonzales, the White House counsel, and signed by Jay S. Bybee, then the head of the Justice Department's Office of Legal Counsel. It said the document was an effort to define "standards of conduct" under international treaties and federal law. The memo concluded that a coercive procedure could not be considered torture unless it caused pain equivalent to that accompanying "serious physical injury, such as organ failure, impairment of bodily function or even death.…"
http://www.nytimes.com/2004/06/27/international/middleeast/27MEMO.html?pagewanted=all&position=
Defining Torture: Russian Roulette, Yes. Mind-Altering Drugs, Maybe.The memo starts by explaining that some acts may be "cruel, inhuman or degrading" but not constitute torture under Section 2340, the federal law criminalizing torture. To rise to the level of torture, it argues, the acts must be of an extreme nature, specifically intended to inflict severe pain or suffering, mental or physical. But the statute is vague on the meaning of "severe," so the authors try to construct one.
ReplyDeleteIn the absence of such a definition, we construe a statutory term in accordance with its ordinary and natural meaning. The dictionary defines severe as "unsparing in exaction, punishment or censure" or "inflicting discomfort or pain hard to endure; sharp; afflictive; distressing; violent; extreme; as severe pain, anguish, torture" "extremely violent or grievous, severe pain" "of pain, suffering, loss, or the like: grievous, extreme" and "of circumstances hard to sustain or endure." Thus the adjective "severe" conveys that the pain or suffering must be of such a high level of intensity that the pain is difficult for the subject to endure.
A good model, the memo suggests, can be found in statutes regulating what kind of emergency medical conditions qualify for payments of health benefits.
Although these statutes address a substantially different subject from Section 2340, they are nonetheless helpful for understanding what constitutes severe pain. They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure or the permanent impairment of a significant body function. These statutes suggest that "severe pain" as used in Section 2340, must rise to a similarly high level, the level that would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure or serious impairment of body functions in order to constitute torture.…These people seemingly knew of no limits to Presidential power, the constitution not withstanding. The enemy can't destroy our society, but fear, and men who lust after power can.