'Enhanced' interrogation techniques can be lawful: DOJ memos

[JURIST] Three Department of Justice (DOJ) [official website] memos [materials] released Thursday indicate that certain enhanced interrogation techniques, including waterboarding [JURIST news archive], are lawful and that those who employ them in good faith lack the specific intent required to be charged with torture. Under US law [18 USC s. 2340 text], torture involves "an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control." In a heavily-redacted 2002 memo [text, PDF], then-Assistant Attorney General Jay Bybee wrote:

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 is 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 or suffering. Although an honest belief need not be reasonable, such a belief is easier to establish where there is a reasonable basis for it. Good faith may be established by, among other things, the reliance in the advice of experts. [Citations omitted]
Bybee is now a Ninth Circuit [official website] judge. The 2003 memo [text, PDF] indicates that enhanced interrogation techniques are acceptable, though the text is largely blacked-out and lacks definitions, while the 2004 memo [text, PDF] says that techniques including waterboarding do not violate the torture statute. AP has more.

US interrogation methods are now under international scrutiny. The Human Rights Annual Report 2007 [text, PDF; JURIST report] released Sunday by the UK House of Commons Foreign Affairs Committee [committee website] recommended that the UK not rely on any assurances made by the US that it does not use torture. The report also calls on the UK to fully investigate US interrogation tactics to ensure that no torture techniques are being used on US detainees. The report's section on torture focuses on waterboarding [JURIST news archive] and the disconnect between US statements that the practice does not constitute torture and testimony by UK Foreign Secretary David Miliband [official website] that "water-boarding [sic] amounts to torture."

 

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