How to Get Away With Torture

Here's the official policy on torture from the administration that decries moral relativism: It's in the eye of the torturer.

The American Civil Liberties Union yesterday released three heavily blacked-out documents it received as a result of its ongoing, four-year-old Freedom of Information Act lawsuit. One document is a previously undisclosed August 2002 memo to the CIA from the Justice Department Office of Legal Counsel, which essentially offers a guide to how to torture and get away with it.

Here's an excerpt:

"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 if 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 and suffering. . . . Although an honest belief need not be reasonable, such a belief is easier to establish where there is a reasonable basis for it.

"Based on the information you have provided us, we believe that those carrying out these procedures would not have the specific intent to inflict severe physical pain or suffering. . . .

"Furthermore, no specific intent to cause severe mental pain or suffering appears to be present. . . . Prolonged mental harm is substantial mental harm of sustained duration, e.g. harm lasting months or even years after the acts were inflicted upon the prisoner."

A 2004 memo from the CIA to the OLC notes the 2002 Justice Department opinion that OK'd interrogation techniques "including the waterboard."

To put this in context, recall that waterboarding has been an archetypal form of torture dating back to the Spanish Inquisition. It involves strapping someone to a board and essentially drowning them. The U.S. government, along with most other civilized nations, has historically considered it a war crime.

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More on this from Glenn Greenwald

What's particularly notable here -- beyond the fact that this is further proof that our Government has engaged in deliberate, systematic and illegal torture -- is what a closed, secretive society we've become. Even the memos which the ACLU obtained -- between four to six years old -- are heavily redacted, with the vast bulk of the legal conclusions of our Government simply blacked out (.pdf). We just don't live in an open society, as most of the most consequential actions in which our Government engages are undertaken behind an increasingly impenetrable wall of secrecy.

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