Many people have been talking about how Daniel Levin was forced to keep a footnote in his memo on torture of 30 December 2004. But what's the significance of the footnote; why was it important?
The footnote that people claim Gonzales demanded stay in the memo is footnote 8.
I quote it in full, "While we have identified various disagreements with the August 2002 Memorandum [the Bybee Memo], we have reviewed this Office's prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum."
Much heavy weather has been made of this footnote. But some things should be noted.
- In the Levin memo, he's trying to broaden the 2002 (Bybee) interpretation of 18 USC SS 2340-2340A such that it's not necessary that one have pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death" in order to have 'severe' pain. According to 2340-2340A, an action is an instance of torture only if it is "specifically intended to inflict severe physical or mental pain or suffering."
- Levin questions the justification for the Bybee understanding of 'severe pain'. In footnote 17, Levin says: "The August 2002 [Bybee] Memorandum also looked to the use of 'severe pain' in certain other statues, and concluded that to satisfy the definition in section 2340, pain 'must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.' We do not agree with those statements." Levin doesn't think that the evidence for the interpretation in the 2002 memo is good evidence.
- The Levin memo is an attempt to analyze, in parts, the 2340-2340A necessary condition on torture ("specifically intended to inflict severe physical or mental pain or suffering"). In his analysis of the term 'severe', he examines various instances of suffering, some that the courts deemed not sufficiently severe to suffice for torture, and others that did rise to the level of torture. On p. 6 of the memo, Levin notes an instance that the 9th Circuit Court (1996 in Hilao vs. Estate of Marcos) held to be torture. It included "severe beatings of the plaintiff, repeated threats of death and electric shock, sleep deprivation, extended shackling to a cot (at times with a towel over his nose and mouth and water poured down his nostrils), seven months of confinement in a 'suffocatingly hot' and cramped cell, and eight years of solitary or near-solitary confinement."
Sounds like waterboarding to me.
Of course the question here is whether the entire conjunction of actions is necessary for torture, or whether any individual actions or less-than-maximal conjunctions of actions suffice for torture. I don't know what the court said about waterboarding in particular.
So, overall it's a pretty damning memo, it might seem. It repudiates the very strict standard for torture. It suggests, at least, that waterboarding constitutes torture. Why is the footnote so important?
I think the importance of footnote 8 is this. It says, essentially, even given the more inclusive standards for torture the Justice Department still would say the same thing about rulings about the legality of the treatment of detainees (and the inference one is to draw here is that the Justice Department always said that the U.S. has treated detainees legally). One is to conclude that the Administration must be treating its prisoners substantially better than the "intense pain" standard of 2002; it is treating them in a manner consistent with a more humane standard.
Or that's how I read it.
Fin. Diary 1.