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BIDEN: Justice Department Memos Point to Endorsement of Torture

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Location: Washington, DC


BIDEN: Justice Department Memos Point to Endorsement of Torture

Biden is Author of the National Security with Justice Act, Legislation Banning Torture and Waterboarding

The Department of Justice has released heavily redacted versions of three additional documents regarding the "enhanced interrogation techniques," including waterboarding, used by the Central Intelligence Agency on detainees within its custody. These memos are in addition to other Department of Justice memos made public in June 2004 which stated that U.S. law prohibits only conduct that causes "serious physical injury, such as organ failure, impairment of bodily function, or even death."

"It is a dark day for the United States government when the Department of Justice-charged with the duty of protecting and upholding the rule of law-provides legal pretext for torture," said Sen. Biden, former Chairman and senior member of the Senate Judiciary Committee and staunch advocate of Congress banning waterboarding and other forms of torture.

The memos released last night state that an actor with an honest, but mistaken belief, that his actions will not cause severe pain and suffering cannot be held liable and point out that such a belief may be "established by, among other things, the reliance on the advice of experts." Tellingly, one of the documents concludes by noting that a recent Supreme Court case, Rasul v. Bush, raises the possibility that a court of law might review the interrogation program, a prospect, the Department notes, that "raises possible concerns."

"The documents provide a virtual ‘how to' guide for subjecting detainees to torture techniques like stress positions, exposure to extreme temperatures, and waterboarding without incurring legal liability," added Sen. Biden.

The documents also require interrogators using Enhanced Interrogation Techniques to create a contemporaneous record "setting forth the nature and duration of each such technique employed, the identities of those present, [further content redacted]," suggesting that the Central Intelligence Agency at one time had detailed records regarding the use of enhanced interrogation techniques. Those records have not been made public.

In July 2007, Sen. Biden introduced the National Security with Justice Act (S. 1876) to reform United States policies on the apprehension, detention, treatment and transfer of suspected terrorists. The legislation, among other things, unambiguously prohibits any United States personnel, including members of our intelligence services, from torturing and mistreating detainees. Specifically, Sen. Biden's bill closes this loophole by prohibiting all officers and agents of the United States from using techniques of interrogation not authorized by the United States Army Field Manual on Intelligence Interrogation.

The National Security with Justice Act will:

Prohibit the Torture or Mistreatment of Detainees in U.S. Custody
This legislation closes gaps intentionally left in the President's July 20, 2007 Executive Order to allow the CIA to use interrogation techniques prohibited by the Army Field Manual. The legislation prohibits all U.S. personnel, including the CIA, from using interrogation techniques not authorized in the Field Manual.

Close Black Sites & Extra-Judicial Prisons
This legislation will prohibits U.S. detention of terrorism suspects in secret, extraterritorial prisons such as CIA "black sites," where they can be tortured and mistreated without the intervention of international monitors like the Red Cross and outside the territorial jurisdiction of US law. Under this legislation, the United States must timely transfer terrorism suspects to face justice either in the legal custody of the United States or a foreign country that will not torture or mistreat them.

Prohibit Extraordinary Rendition
This legislation creates new safeguards by requiring intelligence services to apply for and obtain an order of rendition - similar to an arrest warrant for national security purposes - from the FISA Court prior to any rendition. The application and order process ensures that rendition is used only if we have solid intelligence indicating that the suspect is a dangerous terrorist. Most importantly, the bill prohibits rendition to countries that torture or mistreat detainees or to secret prisons. The bill includes an emergency exception allowing intelligence services to obtain an order of rendition after taking an individual into custody (but always before that individual is turned over to another country) when special circumstances exist.

Modify the Definition of "Unlawful Enemy Combatant"
This legislation changes the Military Commission Act's definition of the term to clarify that U.S. citizens or lawfully admitted aliens taken into custody within the territorial jurisdiction of the United States cannot be considered unlawful enemy combatants. These individuals must be prosecuted within the criminal justice system.

Extend Habeas Corpus to Detainees
This legislation repeals the provisions in the Detainee Treatment Act and Military Commission Act that purport to deprive Guantanamo detainees of the writ of habeas corpus - the ability to argue to a court of law that they are being held in error. The legislation clarifies that all detained terrorism suspects held by the United States can invoke habeas corpus to challenge their classification as an unlawful enemy combatant and their conviction by a military commission of a war crime.


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