What a way to start the New Year. The DOJ has posted a memorandum on it's web site that definitively denounces torture. Hoorah. The most important statement in the memo, in my opinion, comes at the very end:
"There is no exception under the statute permitting torture to be used for a 'good reason'. Thus, a defendant's motive (to protect national security, for example) is not relevant to the question whether he has acted with the requisite specific intent under the statute."
This seems to nullify the constant caveat in the presidential directive on detainee treatment and supporting memoranda requiring humane treatment "to the extent appropriate with military necessity". This exception addresses the motive for inhumane treatment, which may rise to the level of torture. Now we have a definitive statement from the DOJ saying that military necessity is no justification for torture. That's good news.
The new memorandum supersedes in its entirety the previous interpretation of the federal prohibitions against torture presented in an August 2002 DOJ memo. Readers may recall that the August memo had a very narrow definition of torture and included an analysis giving the president a free pass on torture and a road map on how the administration and its minions could avoid prosecution for abusive detainee treatment that fell outside the narrow definition of torture but deemed torturous by others. (For a summary of the August memorandum, see this previous post.)
The new memo doesn't address the president's Commander-in-Chief powers or means for avoiding prosecution, stating that the topics are irrelevant and "unnecessary" given that that president has unequivocally stated that torture will not be tolerated. I was surprised that the president had such an unequivocal position, given that virtually all of the written references to "humane treatment" in the administration's memoranda include the caveat that detainees will be treated humanely "to the extent appropriate with military necessity". Additionally, Bush's responses to press inquiries on the memos were a constant refrain of "what we're doing is legal". Of course, that didn't address the fact that the DOJ had said torture was legal.
So what's the source of Bush's unequivocal denouncement of torture? His statement released on United Nations International Day in Support of Victim's of Torture. My question is whether a statement overrides presidential policy that specifically includes a rationale for inhumane treatment - military necessity. I don't think so. It would be great if the president issued a policy that didn't include his "military necessity" caveat on humane treatment.
The DOJ memo is a slog to read given that it parses the legal definition of torture very tightly, referencing dictionaries, legislation, and case law. If you're a word smith or you're following the ins and outs of the government's position on torture, feel free to continue reading my own parsing of the DOJ memo. You might also want to read this Washington Post article, which addresses the memo in the context of the upcoming Gonzales hearing and past treatment of detainees.