THE NEW YORK TIMES - Published: January 1, 2005
Justice Dept. Toughens Rule on Torture
By NEIL A. LEWIS
WASHINGTON, Dec. 31 - The Justice Department has broadened its definition of torture, significantly retreating from a memorandum in August 2002 that defined torture extremely narrowly and said President Bush could ignore domestic and international prohibitions against torture in the name of national security.
The new definition was in a memorandum posted on the department's Web site late Thursday night with no public announcement. It comes one week before the Senate Judiciary Committee is set to question Alberto R. Gonzales, the White House counsel and nominee for attorney general, about his role in formulating legal policies that critics have said led to abuses at Abu Ghraib prison in Iraq and at Guantánamo Bay, Cuba.
The new memorandum, first reported in The Wall Street Journal and The Washington Post, largely dismisses the August 2002 definition, especially the part that asserted that mistreatment rose to the level of torture only if it produced severe pain equivalent to that associated with organ failure or death.
"Torture is abhorrent both to American law and values and to international norms," said the new memorandum written by Daniel Levin, the acting assistant attorney general in charge of the Office of Legal Counsel, which had produced the earlier definition.
Mr. Gonzales, who will go before the Senate committee for confirmation hearings, served as a supervisor and coordinator inside the administration as lawyers drafted new approaches on the limits of coercive techniques in interrogations and the scope of the president's authority in fighting a war against terrorists.
A memorandum in January 2002 to President Bush that Mr. Gonzales signed sided with the Justice Department in asserting that the Geneva Conventions did not bind the United States in its treatment of detainees captured in the fighting in Afghanistan.
The August 2002 Justice Department memorandum and a later memorandum from an administration legal task force with similar conclusions were widely denounced in Congress and by human rights groups as cornerstones in the approach to detainees that led to abuses at Abu Ghraib and at the detention center in Guantánamo.
The political effect of the new memorandum on Mr. Gonzales's appearance before the committee was unclear. He has been expected to assert, as he has before, that neither he nor Mr. Bush condones torture.
But the change could underline what had been the undisputed policy of the administration at least until June, when officials said it was no longer applicable and would be rewritten. That position came just after the August 2002 memorandum was disclosed in published reports.
Michael Ratner, the president of the Center for Constitutional Rights, which has sued the administration over its interrogation policies, said Friday that the redefinition "makes it clear that the earlier one was not just some intellectual theorizing by some lawyers about what was possible."
"It means it must have been implemented in some way," Mr. Ratner said. "It puts the burden on the administration to say what practices were actually put in place under those auspices."
The International Committee of the Red Cross has said in private messages to the United States government that American personnel have engaged in torture of detainees, both in Iraq and at Guantánamo.
The 2002 memorandum was signed by Jay S. Bybee, who was then the head of the legal counsel office in the Justice Department. Now a federal appeals court judge in Nevada, Mr. Bybee has declined to comment on the issue.
The bulk of the memorandum is devoted to the Convention Against Torture and legislation enacted by Congress that gives it the force of law. "We conclude that torture as defined in and proscribed by" the statute and treaty, covers only extreme acts and severe pain," it says.
It also says: "When the pain is physical, it must be of an intensity akin to that which accompanies serious physical injury such as death or organ failure. Severe mental pain requires suffering not just at the moment of infliction but it also requires lasting psychological harm."
In revising that view, the current memorandum parses the language and the treaty differently, saying, for example, that torture could include "severe physical suffering" as well as "severe physical pain." The Bybee memorandum tried to limit torture to severe physical pain. But the new memorandum also noted that physical suffering was difficult to define.
One distinction is that the new memorandum rejects the earlier assertion that torture may be said to occur only if the interrogator meant to cause the harm that resulted.
David Scheffer, a senior State Department human rights official in the Clinton administration who teaches law at George Washington University, said Friday that while the Justice Department's change was commendable, it might still provide too flexible a definition of torture, leaving too many judgments in the hands of interrogators.
The new memorandum dealt with the issue of the earlier opinion's granting the president the power to authorize torture by saying that the Justice Department did not have to consider that matter any longer as "such authority would be inconsistent with the president's unequivocal directive that United States personnel not engage in torture."
Mr. Bush's spokesman in Crawford, Tex., Trent Duffy, said on Friday that while the Justice Department took the lead on the issue, it sought comment from the president's Office of Legal Counsel. The thrust of the comments were "to reiterate the president's determination that the United States never engage in torture," Mr. Duffy said.
