The US Justice Department has released a memo to replace a controversial document outlining how to avoid violating US and international terror statutes while interrogating prisoners.
In a December 30 memorandum released early today, the department stepped back from an August 2002 memo that said only the most severe types of torture were not permissible under US and international agreements against torture.
The new memorandum was more broad in its definition of what could be considered torture, and therefore what was unacceptable under US law and under the UN Convention Against Torture.
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The memo was released on a federal holiday, just one week before White House legal counsel Alberto Gonzales – to whom the
August 2002 memo was addressed – was to appear before the Senate for confirmation hearings.
Mr Gonzales has been nominated by President George W. Bush to be the new attorney-general.
The August 2002 memo was withdrawn and the new one written after a public outcry over the summer when the August 2002 memo and other documents regarding the interrogation and treatment of Iraqi and al-Qaeda prisoners were made public.
Mr Bush has said he never ordered torture but secret documents released in June showed that interrogation methods approved for use at Guantanamo Bay, where prisoners from the US war on terror are held, once included the use of dogs to induce fear.
The documents showed Defence Secretary Donald Rumsfeld in December 2002 approved harsh interrogation techniques for Taliban and al-Qaeda prisoners at the US Naval Base at Guantanamo, only to rescind many of those weeks later and approve less aggressive techniques in April 2003.
Behind many of the techniques approved and used on prisoners was the August 2002 memo to Gonzales from the Justice Department’s Office of Legal Counsel discussing how far the interrogation could go before it could be considered torture.
The new memo, written by the Office of Legal Counsel but addressed to Deputy Attorney-General James Comey, acknowledged problems with the August document that dissected the definition of torture.
Under international law, torture is defined as an act specifically intended to inflict severe physical or mental pain or suffering.
“Questions have since been raised … about the appropriateness and relevance of the non-statutory discussion in the August 2002 Memorandum,” the December 30 memo said.
In particular, the December 30 memo disagrees with the statement that “severe” pain under the terror statute was limited to pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”
The new document also disagreed that “severe” pain is limited to “excruciating and agonising” pain.
It also disagreed with the detailed discussion in the August memo defining the precise meaning of “specific intent”.
“In light of the president’s directive that the United States not engage in torture, it would not be appropriate to rely on parsing the specific intent element of the statute to approve as lawful conduct that might otherwise amount to torture,” it said.