Administration hopes new memo will save its ass

According to today's New York Times, the administration cried, "we're not war criminals, we promise!" by issuing a new memorandum on torture practices, revising the Justice Department's earlier definition, which had been stated in an August 2002 memo (signed by then head of legal counsel office in the Justice Dept., and now Nevada federal appeals court judge, Jay S. Bybee).

The earlier definition said torture constituted the causing of "severe pain" which met the following criteria: "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."

The new memo (written by acting assistant attorney general in charge of the Office of Legal Counsel, Daniel Levin) defines torture as including not only "severe physical pain," but also "severe physical suffering."

Whew. Now I feel much better.

The (new) Levin memo also says that torture may also occur even if the interrogator didn't mean to cause the resulting harm, rejecting a distinction made in the (old) Bybee memo.

In other words, torturers are now responsible if they torture (or kill) somebody on accident.

The Levin memo also says that torture is "abhorrent both to American law and values and to international norms."

Torture is also against American law, as well as international law, not just norms. But apparently, the memo doesn't mention that.

Coincidentally, the revision comes just one week before the Senate Judiciary Committee will question Alberto R. Gonzales, Bush's nominee for attorney general and the main architect of the Bybee memo, about his role in forming the administration's legal policies.

I don't know if this means the administration is trying to protect Gonzales, who can't unwrite what he's already written, but this move could end up backfiring on them. The redefinition, says Michael Ratner, president of the Center for Constitutional Rights, "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. It puts the burden on the administration to say what practices were actually put in place under those auspices."