Justice Expands 'Torture' Definition
Earlier Policy Drew Criticism

By R. Jeffrey Smith and Dan Eggen
Washington Post Staff Writers
Friday, December 31, 2004; Page A01

The Justice Department published a revised and expansive definition late yesterday of acts that constitute torture under domestic and international law, overtly repudiating one of the most criticized policy memorandums drafted during President Bush's first term.

In a statement published on the department's Web site, the head of its Office of Legal Counsel declares that "torture is abhorrent both to American law and values and international norms" and goes on to reject a previous statement that only "organ failure, impairment of bodily function, or even death" constitute torture punishable by law.

That earlier definition of torture figured prominently in complaints by Democrats and human rights groups about White House counsel Alberto R. Gonzales, who oversaw its creation and is Bush's nominee to become attorney general for the second term. The new memo's public release came one week before the start of Senate Judiciary Committee hearings on Gonzales's nomination.

Acting Assistant Attorney General Daniel Levin said in the new memo that torture may consist of acts that fall short of provoking excruciating and agonizing pain and thus may include mere physical suffering or lasting mental anguish. His opinion is meant, according to its language, to undermine any notion that those who conduct harmful interrogations may be exempt from prosecution.

This second effort by the Bush administration to parse the legal meaning of the word "torture" was provoked by the damaging political fallout from the disclosure this summer of the first memo, drafted in August 2002 and criticized by human rights lawyers and experts around the globe.

Many of the critics charged that the first memo -- which they said laid out a very narrow view of what behavior might constitute torture and was crafted to help interrogators at the CIA evade prosecution -- created the context for a record of persistent ill treatment by that agency and the U.S. military of detainees at prisons in Iraq, Afghanistan, Cuba's Guantanamo Bay and undisclosed locations.

"Clearly the release of this now is backfilling for Gonzales's confirmation hearing," said I. Michael Greenberger, a senior Justice Department official in the Clinton administration who now heads the Center for Health and Homeland Security at the University of Maryland. "These memos have been a tremendous source of embarrassment to both Gonzales and the administration."

Greenberger said that recent accounts of widespread abuse at U.S. detention facilities -- including disclosures that military interrogation practices were sharply criticized over the past two years by FBI and Defense Intelligence Agency personnel in the field -- have given ammunition to those within the administration who favor adherence to international norms against torture.

"It could be that this is not just a cynical ploy but a real sign of change," Greenberger said.

One of the most controversial provisions of the earlier memorandum, signed by Levin's predecessor, Jay S. Bybee, was an assertion that the president's executive powers were sufficient to permit tolerance of torturous acts in extraordinary circumstances. The International Committee of the Red Cross had declared in response that the prohibition on torture, embodied in a global convention signed by the United States, has no exceptions.

But advocates of strict adherence to the convention previously lost interagency battles to hard-liners in the Defense Department, the Justice Department and the White House, who maintained that the president has expansive powers during the war on terrorism. The new memo pointedly sidesteps this issue, stating that the "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."

The memo, which states that it "supersedes the August 2002 memorandum in its entirety," also drops an attempt in the earlier version to rule that harmful acts not specifically intended to cause severe pain and suffering might be legal, and to define "specific intent." Instead, it deliberately left the notion of "specific intent" undefined to avoid, Levin wrote, any notion that conduct amounting to torture might under some circumstances be considered legal.

The memo also explicitly states that "a defendant's motive (to protect national security, for example) is not relevant to the question" of his or her intent under the law.

Tom Malinowski, Washington advocacy director for Human Rights Watch, which has been critical of the Bush administration's legal opinions regarding the treatment of detainees, gave the memo a generally positive review and said its "definition of torture is not as tortured as it was."

But John Yoo, a law professor at the University of California at Berkeley who helped draft the first memo while working in the legal counsel's office, said the new version "makes it harder to figure out how the torture statute applies to specific interrogation methods. It muddies the water. Our effort . . . was to interpret the statute clearly."

International Laws on Torture agreed to and signed by U.S. Government



Q: What laws prohibit torture?

Torture is universally condemned, and whatever its actual practice, no country publicly supports torture or opposes its eradication. The prohibition against torture is well established under customary international law as jus cogens; that is, it has the highest standing in customary law and is so fundamental as to supercede all other treaties and customary laws (except laws that are also jus cogens). Criminal acts that are jus cogens are subject to universal jurisdiction, meaning that any state can exercise its jurisdiction, regardless of where the crime took place, the nationality of the perpetrator or the nationality of the victim.

In 1948, following the horrific abuses of World War II, the General Assembly of the United Nations inserted the prohibition against torture in the landmark Universal Declaration of Human Rights. Article 5 states: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." This ban on torture and other ill-treatment has subsequently been incorporated into the extensive network of international and regional human rights treaties. It is contained in Article 7 of the International Covenant on Civil and Political Rights (ICCPR), ratified by 153 countries, including the United States in 1992, and in the Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention against Torture), ratified by 136 countries, including the United States in 1994. It is also codified in the European Convention for the Protection of Human Rights and Fundamental Freedoms, the African Charter on Human and Peoples' Rights, and the American Convention on Human Rights.

The prohibition against torture is also fundamental to humanitarian law (also known as the laws of war), which governs the conduct of parties during armed conflict. An important element of international humanitarian law is the duty to protect the life, health and safety of civilians and other noncombatants, including soldiers who are captured or who have laid down their arms. Torture of such protected persons is absolutely forbidden. Common Article 3 to the Geneva Conventions, for example, bans "violence of life and person, in particular murder of all kinds, mutilation, cruel treatment and torture" as well as "outrages upon personal dignity, in particular humiliating and degrading treatment." The use of force to obtain information is specifically prohibited in Article 31 of the Fourth Geneva Convention: "No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties."

According to the 1999 Initial Report of the United States to the U.N. Committee against Torture, in the United States, the use of torture "is categorically denounced as a matter of policy and as a tool of state authority…No official of the government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form…Every act of torture within the meaning of the [Convention against Torture] is illegal under existing federal and state law, and any individual who commits such an act is subject to penal sanctions as specified in criminal statutes."

Although no single provision of the U.S. Constitution expressly prohibits torture as a means to extract information, secure a confession, punish for an act committed, intimidate or coerce, or for any reason based on discrimination, there is no question that torture violates rights established by the Bill of Rights. The U.S. courts have located constitutional protections against interrogations under torture in the Fourth Amendment's right to be free of unreasonable search or seizure (which encompasses the right not be abused by the police), the Fifth Amendment's right against self-incrimination (which encompasses the right to remain silent during interrogations), the Fifth and the Fourteenth Amendments' guarantees of due process (ensuring fundamental fairness in criminal justice system), and the Eighth Amendment's right to be free of cruel or unusual punishment. In numerous cases, the U.S. Supreme Court has condemned the use of force amounting to torture or other forms of ill treatment during interrogations, including such practices as whipping, slapping, depriving a victim of food, water, or sleep, keeping him naked or in a small cell for prolonged periods, holding a gun to his head, or threatening him with mob violence. Torture would also violate state constitutions, whose provisions generally parallel the protections set forth in the federal Bill of Rights.

Article 4 of the Convention against Torture obligates state parties to ensure that all acts of torture are criminal offenses under domestic legislation. Although there is no single federal law specifically criminalizing torture, the United States has insisted that existing federal and state laws render illegal any act falling with the Convention against Torture's definition of torture. In the United States, most criminal laws are state rather than federal. Although a few states have laws addressing torture as such, each state has laws that criminalize violence against persons (e.g. assault, rape), regardless of whether committed by public officials or private individuals. In addition, states typically have specific laws that criminalize acts by public officials that constitute abuses of authority, "official oppression," or the unlawful infliction of bodily injury. The principal federal law that would apply to torture against detainees is 18 U.S.C. 242, which makes it a criminal offense for any public official to willfully to deprive a person of any right protected by the Constitution or laws of the United States.

Q: Do non-citizens in the U.S. have the same right not to be tortured as U.S. citizens?

Yes. Neither international nor domestic law conditions the right not to be subjected to torture on citizenship or nationality. No detainee held by U.S. authorities—regardless of nationality, regardless of whether held in the U.S. or in another country, and regardless of whether the person is deemed a combatant or civilian—may be tortured. All applicable international law applies to U.S. officials operating abroad, including the Convention against Torture and the Geneva Conventions. The prohibition against torture is universal and covers all countries both regarding U.S. citizens and persons of other nationalities.


Q: Are there any situations in which torture is permitted?

Under customary international law as well as underinternational human rights treaties, torture or other cruel, inhuman or degrading treatment is prohibited at all times and in all circumstances. It is a non-derogable right, one of those core rights that may never be suspended, even during times of war, when national security is threatened, or during other public emergencies.

According to the U.S. government, "U.S. law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a "state of public emergency") or on orders from a superior officer or public authority."

The European Court of Human Rights has applied the prohibition against torture contained in European Convention on Human Rights in several cases involving alleged terrorists. As it noted in one case, "The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct." (Chahal v. United Kingdom, Nov. 15, 1996)

Similarly, the Committee against Torture, reviewing Israel's use of torture as a method of interrogation against suspected Palestinian terrorists, stated, "The Committee acknowledges the terrible dilemma that Israel confronts in dealing with terrorist threats to its security, but as a State party to the Convention Israel is precluded from raising before this Committee exceptional circumstances as justification for [prohibited] acts" [United Nations Committee against Torture. "Concluding observations of the Committee against Torture" (1997), A/52/44,paras.253-260. (15 Nov. 2001).]


Q: Shouldn't torture be permitted if its use will save lives?

Some people argue that the goal of saving innocent lives must override a person's right not to be tortured. This argument is presented in its starkest form in the "ticking bomb" scenario: a bomb has been set to explode that will kill thousands of people and a detained person is known to have information on where the bomb is and how to defuse it. Is torture justified in such a case to force the detainee to talk? Those who say that it is argue that governments should be permitted to choose torture as the lesser of two evils in such a situation.

The international community, however, rejected the use of torture even in the "ticking bomb" case. International human rights law - as well as U.S. law - do not contain any exceptions to the prohibition against torture.

There are practical as well as moral reasons for not permitting a "ticking bomb" -or terrorist attack -- exception to the ban on torture. Although such an exception might appear to be highly limited, experience shows that the exception readily becomes the standard practice. For example, how imminent must the attack be to trigger the exception and justify torture - an hour, a week, a year? How certain must the government be that the detainee actually has the necessary information? Under the utilitarian logic that the end (saving many innocent lives) justifies the means, torture should be permitted even if the disaster might not occur until some point in the future, and it should be permitted against as many people as is necessary to secure the information that could be used to avert the disaster.

Israel provides a good example of how this logic works in practice. For years Israel justified its use of torture - what it called "moderate physical force" - by citing the "ticking bomb" scenario. But despite a genuine security threat, Israeli security forces rarely if ever were able to identify a particular suspect with knowledge about a particular bomb set to explode imminently. Rather, they ended up applying the scenario metaphorically to justify torturing virtually every Palestinian security detainee - thousands of people - on the theory that they might know something about some unspecified, future terrorist act. In 1999, the Israeli Supreme Court rejected the use of torture, although the practice seems to have increased in the past year.

In addition, the ticking bomb scenario offers no logical limitations on how much or what kind of torture would be permitted. If the detainee does not talk when shaken or hit, why shouldn't the government move unto more severe measures, such as the application of electric shocks? Why not threaten to rape the suspect's wife or to torture his children? Once torture is allowed, setting limits is extraordinarily difficult.




This one I particularly like as it is current in the case of a Canadian shipped to a Middle East nation where he was tortured before finally being released and returned to Canada. The reason for being being detained....Muslim origin and as such on a watch list. No proof of any kind but then they thought they'd get that.

Q: What are the remedies against torture?

Under U.S. law, victims of torture can sue in state or federal court for damages. But there are numerous practical obstacles to such lawsuits - including the difficulty of securing evidence of torture and the financial costs of legal representation - as well as legal and procedural impediments to a successful conclusion. Moreover, even if a case is successful and damages are awarded, the financial compensation does not undo the harm done - the experience of torture and its often ongoing physical, psychological, and emotional consequences. Officials who engage in torture - including those who give the orders as well as those who carry them out - can and should be prosecuted criminally as well as disciplinarily sanctioned. Nevertheless, history counsels that the decision to prosecute public officials, the actual charges brought, and the penalties sought are often influenced by such extra-legal considerations as public sympathy for the victim or support for the officials and the political context in which the crime took place. The best "remedy" for torture is thus prevention. U.S. officials should resolutely resist any temptation or encouragement to use torture or cruel, inhuman or degrading treatment against detainees held and questioned in connection with its campaign against terrorism.


http://humanrightswatch.org/press/2001/11/TortureQandA.htm#laws

the problem here is no they w ill not be prosecuted as they were done, while it was deemed ok. Thus the problem. We cna not keep changing our minds whenever we feel like it. We need to step forward and say,"this is wrong, we aint doing it no more" and then stand by it no matter what happens. Yes the other side will do what we claim is wrong, thats cause they are the other side. When we start doing what we historically claim to be wrong (no matter the justification) we are then wrong also. And two wrongs a right does nt make.

How many have been waterboarded? 3

Who were they?

"One was Khalid Sheikh Mohammed, “the principle architect of the 9/11 attacks” according to the 9/11 Report, and the head of al-Qaeda’s “military committee.” Linked to numerous terror plots, he is believed to have financed the first World Trade Center bombing, helped set up the courier system that resulted in the infamous Bali bombing, and cut off Danny Pearl’s head.

A second was Abd al-Rahim al-Nashiri, the head of al-Qaeda operations in the Persian Gulf. He allegedly played a role in the 2000 millennium terror plots and was the mastermind behind the USS Cole attack that killed 17 Americans.

The third was Abu Zubaydah, said to be al-Qaeda’s chief logistics operative and Osama bin Laden’s top man after Ayman al Zawahri. It is believed that Zubaydah essentially ran al-Qaeda’s terror camps and recruitment operations. After he was waterboarded, Zubaydah reportedly offered intelligence officers a treasure trove of critical information. He was waterboarded just six months after the 9/11 attacks and while the anthrax scare was still ongoing." - http://article.nationalreview.com/?q=MjM2ZDRlOWY4OTdjMWFiNjZlYWUwZmNiYjRjNGQwZDM



"John Kiriakou, a former CIA officer who witnessed the interrogation, told ABC’s Brian Ross: “The threat information that he provided disrupted a number of attacks, maybe dozens of attacks.”" - http://article.nationalreview.com/?q=MjM2ZDRlOWY4OTdjMWFiNjZlYWUwZmNiYjRjNGQwZDM


And, for how long were they waterboarded?

"And that’s it. Less than five minutes, three awful men, five years ago.

(We don’t know how long, exactly, each was waterboarded, but reports suggest that Zubaydah lasted between 30 and 35 seconds, and Khalid Sheik Mohammed lasted the longest — between 90 seconds and three minutes.)" - http://article.nationalreview.com/?q=MjM2ZDRlOWY4OTdjMWFiNjZlYWUwZmNiYjRjNGQwZDM=&w=MQ==


Three of the most evil men have been waterboarded, only three, and in return we were able to greatly disrupt al Qaeda, arrest other top and lower al Qaeda figures or kill them, and we have foiled numerous terrorist plots and saved numerous innocent lives.

FBI, CIA Debate Significance of Terror Suspect
Agencies Also Disagree On Interrogation Methods

By Dan Eggen and Walter Pincus
Washington Post Staff Writers
Tuesday, December 18, 2007; Page A01

Al-Qaeda captive Abu Zubaida, whose interrogation videotapes were destroyed by the CIA, remains the subject of a dispute between FBI and CIA officials over his significance as a terrorism suspect and whether his most important revelations came from traditional interrogations or from torture.

Full story http://www.washingtonpost.com/wp-dyn/content/article/2007/12/17/AR2007121702151.html