Legal Standards Applicable Under 18. U.S.C. §§ 2340-2340A, Memorandum Opinion for the Deputy Attorney General, [December 30, 2004]   [open pdf - 154KB]

This document from the Department of Justice's Office of Legal Counsel discusses a reinterpretation of a prior legal opinion regarding torture. "Torture is abhorrent both to American law and values and to international norms. This universal repudiation of torture is reflected in our criminal law, for example, 18 U.S.C. §§ 2340-2340A; international agreements, exemplified by the United Nations Convention Against Torture (the 'CAT'); customary international law; centuries of Anglo-American 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 [...]. 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. See id. at 31-46. Questions have since been raised, both by this Office and by others, about the appropriateness and relevance of the non-statutory discussion in the August 2002 Memorandum, and also about various aspects of the statutory analysis, in particular the statement that 'severe' pain under the statute was limited to pain 'equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.' Id. at 1. We decided to withdraw the August 2002 Memorandum, a decision you announced in June 2004. At that time, you directed this Office to prepare a replacement memorandum. Because of the importance of--and public interest in--these issues, you asked that this memorandum be prepared in a form that could be released to the public so that interested parties could understand our analysis of the statute."

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