[Intelforum] Intelligence & torture

[Ralph Erskine]

Professor Alan Dershowitz and others have argued that a judge should be 
able to authorise limited torture in order to extract intelligence e.g. in 
the ‘bomb about to kill thousands’ type of case. See-
<http://sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2002/01/22/ED5329.DTL>http://sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2002/01/22/ED5329.DTL

My post of 14 April referred to a US Department of Justice memo of 1 August 
2002 for the then counsel to the President which attempted to justify the 
use of torture in certain circumstances such as ‘necessity’ and ‘self-defence’.

I am glad to be able to add that a Department of Justice of 30 December 
2004 memorandum ‘supersedes the August 2002 Memorandum in its entirety’. In 
particular, it unequivocally declares that ‘there is no exception under the 
statute [18 U.S.C. §§ 2340-2340A] permitting torture to be used for a “good 
reason”’. See-
<http://www.usdoj.gov/olc/dagmemo.pdf>www.usdoj.gov/olc/dagmemo.pdf

The 2002 memo had also advised that ‘Congress may no more regulate the 
President's ability to detain and interrogate enemy combatants than it may 
regulate his ability to direct troop movements on the battlefield.’ The 
2004 memo does not expressly address this point. Alberto Gonzales 
repudiated it at his confirmation hearing.

‘The Torture Memo By Judge Jay S. Bybee That Haunted Alberto Gonzales's 
Confirmation Hearings’
by John W. Dean (a  former counsel to the president)
<http://writ.news.findlaw.com/dean/20050114.html>http://writ.news.findlaw.com/dean/20050114.html

is also well worth reading.

as is by Michael C. Dorf’s ‘The Justice Department's Change of Heart 
Regarding Torture’
<http://writ.findlaw.com/dorf/20050105.html>http://writ.findlaw.com/dorf/20050105.html

Ralph Erskine