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Journal Article


Campbell K. Law Cult. Humanit. 2007; 3(1): 155-169.


(Copyright © 2007, Association for the Study of Law, Culture and the Humanities, Publisher SAGE Publishing)






In December 2004, the Bush Administration released a memorandum outlining its current legal position on the use of torture, Legal Standards Applicable Under 18 U.S.C. SEC. 2340-2340A, which stated that "torture is abhorrent to both American law and values and to international norms." The Levin Memo superseded the most notorious of the Administration’s policy documents on torture, the memorandum of August 2002 from Jay S. Bybee, then Assistant Attorney General for the Office of Legal Counsel and now a federal court judge, to Alberto Gonzales, then Counsel to the US President and now Attorney General. The Bybee Memo defined torture as "extreme acts" of "serious physical injury such as death or organ failure," argued that necessity and self-defense were legal justifications for such acts, and contended that the President could lawfully authorize such acts. For the next two years, the policy of the Administration was that torture was permissible in the "war on terror."

This policy was not withdrawn until the Levin Memo affirmed the prohibition of torture, some eight months after the Abu Ghraib prisoner abuse scandal. The Memo rejected the earlier Bybee definition of torture, but decided that the new standards did not affect existing policy concerning the treatment of detainees. The Memo also rejected the Bybee arguments concerning defenses to criminal liability for torture. The Memo did not consider the President’s Commander-in-Chief power and the potential defenses to unlawful conduct, on the grounds that it would be "inconsistent with the President’s unequivocal directive that United States personnel not engage in torture."

The international community has accepted in an extensive body of human rights and humanitarian law treaties that there is an absolute prohibition upon the intentional infliction of severe pain by states in order to obtain information, to punish, to coerce, or to discriminate. That prohibition has become part of customary international law and is now established as a peremptory norm universally accepted by the international community of states. States cannot derogate from that prohibition in peace or war. The recent United Nations report on the situation of detainees at Guanta´namo Bay, Cuba, noted however that "[b]eginning in 2001, the Administration of the United States, while officially reiterating its adherence to the absolute prohibition of torture, has put in place a number of policies that effectively weaken the prohibition." The breach of the prohibition upon torture in practice as well as policy was made clear from the concerns raised by the International Committee of the Red Cross in 2002 to the most recent 2006 United Nations report regarding abuse of detainees. How then did such conduct become accepted practice and policy of the United States government? How did this universally accepted prohibition become the subject of debate in America?


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