How to Get Away With Torture
Friday, July 25, 2008; 11:56 AM
Dan Froomkin is off on Monday, July 28.
The American Civil Liberties Union yesterday released three heavily blacked-out documents it received as a result of its ongoing, four-year-old Freedom of Information Act lawsuit. One document is a previously undisclosed August 2002 memo to the CIA from the Justice Department Office of Legal Counsel, which essentially offers a guide to how to torture and get away with it.
Here's an excerpt:
"To violate the statute, an individual must have the specific intent to inflict severe pain or suffering. Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture. As we previously opined, to have the required specific intent, an individual must expressly intend to cause such severe pain or suffering. . . . We have further found that if a defendant acts with the good faith belief that his actions will not cause such suffering, he has not acted with specific intent. . . . A defendant acts in good faith when he has an honest belief that his actions will not result in severe pain and suffering. . . . Although an honest belief need not be reasonable, such a belief is easier to establish where there is a reasonable basis for it.
"Based on the information you have provided us, we believe that those carrying out these procedures would not have the specific intent to inflict severe physical pain or suffering. . . .
"Furthermore, no specific intent to cause severe mental pain or suffering appears to be present. . . . Prolonged mental harm is substantial mental harm of sustained duration, e.g. harm lasting months or even years after the acts were inflicted upon the prisoner."
A 2004 memo from the CIA to the OLC notes the 2002 Justice Department opinion that OK'd interrogation techniques "including the waterboard."
To put this in context, recall that waterboarding has been an archetypal form of torture dating back to the Spanish Inquisition. It involves strapping someone to a board and essentially drowning them. The U.S. government, along with most other civilized nations, has historically considered it a war crime.
Joby Warrick writes in The Washington Post: "Lawyers for the Bush administration told the CIA in 2002 that its officers could legally use waterboarding and other harsh measures while interrogating al-Qaeda suspects, as long as they acted 'in good faith' and did not deliberately seek to inflict severe pain, according to a Justice Department memo made public yesterday.
"The memo, apparently intended to assuage CIA concerns that its officers could someday face torture charges, said interrogators needed only to possess an 'honest belief' that their actions did not cause severe suffering. And the honest belief did not have to be based on reality."