AS 2004 DREW TO A CLOSE, THE OFFICE OF LEGAL COUNSEL OF THE UNITED States Department of Justice took an important step towards restoring its own integrity: It released a memorandum essentially repudiating its earlier analysis of the circumstances under which someone could be found criminally liable for engaging in torture. That earlier memorandum of August 2002 had turned intellectual somersaults to find loopholes and excuses for the commission of what a lay observer would surely consider torture.

The new memo, in contrast, is fair-minded and reasonable. Accordingly, its author, Acting Assistant Attorney General Daniel Levin, deserves considerable praise. As I explain below, the memo definitively repudiates two of the most outrageous positions set forth in the August 2002 memo: the almost impossibly high threshold for finding an act of torture, and the contention that a torturer can escape criminal liability if he engages in torture with a noble goal in mind, such as to extract vital information from the torture victim.

In one particular, however, the new memo could have gone further. The August 2002 memo had set forth a third outrageous proposition: that Congress lacks the power to prohibit torture undertaken at the behest of the President, acting in his capacity as Commander-in-Chief. Although the new memo laudably declines to endorse this view, it does not formally repudiate the position either. That is unfortunate, because the August 2002 memo's contentions regarding the wartime powers of the President are truly frightening. They deserve to be repudiated expressly and unequivocally.