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Thursday, March 06, 2003

Memo: redefining torture

A memo entitled "Working Group Report On Detainee Interrogations in the Global War on Terrorism; Assessment of Legal, Historical, Policy, and Operational Considerations" (pdf)(html) is created. The following are selected quotes. On the definition of torture:
In sum, the obligations under the Torture Convention apply to the interrogation of unlawful combatant detainees, but the Torture Convention prohibits torture only as defined in the U.S. Understanding, and prohibits "cruel, inhuman, and degrading treatment and punishment" only to the extent of the U.S. Reservation relating to the U.S. Constitution.
Regarding the "US understanding" of torture, the memo notes:
18 U.S.C. Section 2340 defines as torture any "act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain".
Needless to say, Guantanamo Bay is deemed to be outside of the jurisdiction of Section 2340, however it does apply to US operations in Afghanistan. Subsequently, the two potential weasel-phrases "intended" and "severe" are focused upon. With respect to the word "intended", the memo states
the infliction of such pain must be the defendant's precise objective
but further, the defendant's reasonable knowledge that severe pain would result from an action is not sufficient for intent
knowledge alone that a particular result is certain to occur does not constitute specific intent ... Thus, even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith. Instead, a defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering on a person within his custody or physical control.
Thus, torture is redefined. However, just in case there is any room left for an action that the US takes to be deemed torture, the memo states the following
In light of the President's complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the President's ultimate authority in these areas.
This memo will be published by the Wall Street Journal in one year and two month's time.


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