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DOJ Issues New Standard on Torture

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Memorandum for James B. Comey, Deputy Attorney General, Regarding Legal Standards Applicable Under 18 U.S.C. § § 2340-2340A (17 pages, PDF)

  • “Torture is abhorrent both to American law and values and to international norms. This universal repudiation of torture is reflected in our criminal law…and the longstanding policy of the United States, repeatedly and recently reaffirmed by the President. This Office interpreted the federal criminal prohibition against torture—codified at 18 U.S.C. §§ 2340-2340A—in Standards of Conduct for Interrogation under 18 U.S.C. §§ 23402340A (Aug. 1, 2002) (“August 2002 Memorandum“). The August 2002 Memorandum also addressed a number of issues beyond interpretation of those statutory provisions, including the President’s Commander-in-Chief power, and various defenses that might be asserted to avoid potential liability under sections 2340-2340A. Questions have since been raised, both by this Office and by others, about the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85. See also, e.g., International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171. This memorandum supersedes the August 2002 Memorandum in its entirety. Because the discussion in that memorandum concerning the President’s Commander-in-Chief power and the potential defenses to liability was—and remains—unnecessary, it has been eliminated from the analysis that follows. Consideration of the bounds of any such authority would be inconsistent with the President’s unequivocal directive that United States personnel not engage in torture.”
  • Related references: from today’s Washington Post (reg. req’d) and January 1, 2005 New York Times, Justice Dept. Toughens Rule on Torture.
  • See also The Interrogation Documents: Debating U.S. Policy and Methods, from the National Security Archives
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