ACLU 2004 Remand Documents

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OLC Releases
1.

13 July 2002 Letter from ,John Yoo to
John Rizzo [OLC Vaughn Index #1]

2.

24 July 2002 fax between CIA and OLC
regarding psychological assessment of Abu
Zubaydah [OLC Vaughn Index #4]

3.

28 January 2003 Guidelines on confinement
signed by DCI George Tenet [OLC Vaughn
Index #11]

4.

28 January 2003 Guidelines on
interrogations signed by DCI George Tenet
[OLe Vaughn Index #12]

5.

28 April 2003 Draft list of bullet points
discussing legal principles applicable to
the CIA interrogation program [OLC Vaughn
Index #17]

6.

16 June 2003 Draft list of bullet points
discussing legal principles applicable to
the CIA interrogation program
w/attachment [OLC Vaughn Index #19]

7.

02 March 2004 Draft letter from CIA to
OLC w/attached bullet points discussing
legal principles applicable to the CIA
interrogation program [OLC Vaughn Index
#22]

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8.

25 May 2004 Letter from OLC to CIA
discussing CIA OIG 2004 Special Review
[OLC Vaughn Index #26]

9.

27 May 2004 Letter from OLC to CIA
discussing CIA OIG 2004 Special Review
[OLC Vaughn Index #28]

10. 10 June 2004 Letter from OLC to CIA
discussing CIA's request for
reaffirmation of a previous OLC document
[OLC Vaughn Index #29]
11. 10 June 2004 Letter from OLC to CIA
discussing CIA's request for
reaffi~ation of a previous OLe document
[OLe Vaughn Index #30]

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12. 18 June 2004 Letter from OLC to CIA
discussing CIA OIG 2004 Special Review
[OLC Vaughn Index #36]
13. 22 June 2004 Letter from CIA to OLC
discussing CIA OIG 2004 Special Review
[OLC Vaughn Index #38]
14. 02 July 2004 Letter from CIA OIG to OLC
discussing CIA OIG 2004 Special Review
[OL~ Vaughn Index #42]
15. 02 July 2004 Letter from CIA to
Department of State [OLC Vaughn Index
#43]

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16. 07 July 2004 Letter from OLC to CIA
discussing the proposed interrogation of
a detainee [OLC Vaughn Index #48]
17. 13 July 2002 Letter from John Yoo to John
Rizzo [OLC Vaughn Index #49]
18. 22 July 2004 Letter from OLC to CIA
requesting information on certain
techniques [OLC Vaughn Index #65]
19. 22 July 2004 Letter from AG Ashcroft to
ADCI McLaughlin [OLC Vaughn Index #64]

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20. 05 August 2004 Letter from CIA to OLC
discussing guidelines for a certain
-technique [OLC Vaughn Index #72]
21. 05 August 2004 Letter from CIA to OLC
discussing guidelines fora certain
technique [OLC Vaughn Index #73]
22. 6 August 2004 Letter from'Daniel Levin
to John Rizzo [OLCVaughn Index #74]
23. 20 September 2004 Letter from Daniel
Levin to John Rizzo [OLC Vaughn Index
#79]
24. 26 August 2004 Letter from Daniel
Levin to John Rizzo [OLC Vaughn Index
#85]

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25.6 September 2004 Letter from Daniel
Levin to John Rizzo [OLC Vaughn Index
#88]
26. September 2004 Memo reflecting OLC's
view on the previous and current guidance
i t provided to CIA and DOD [OLC Vaughn
Index #89]
27. 30 December 2004 OLCmemo prepared for
James Comey [OLC Vaughn Index #96]
28. 30 December 2004 Fax from CIA toOLC
providing generic description of, the
CIA's combined use of various
interrogation techniques [OLC Vaughn
Index #97]

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29. 15 January 2005 Fax from CIA to OLC
providing information ,on medical
guidelines for detainees [OLC Vaughn
Index #101]
30. 22 April 2005 Fax CIA to OLC elements of
CIA's use of techniques in combination
[OLC Vaughn Index #107]
31. Undated draft memo analyzing the CIA's
interrogation program under the
Convention Against Torture (CAT) [OLC
Vaughn Index #112]
32. Undated draft memo analyzing the CIA's
interrogation program under the CAT [OLC
Vaughn Index #113]

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33. Undated handwritten notes of an OLC
attorney [OLC Vaughn Index #129]
34. Undated draft memo analyzing the CIA's
interrogatio~ program under the CAT [OLC
Vaughn Index #134]
35. Qndated Notes [OLC Vaughn Index #136]
36. Undated Notes [OLC Vaughn Index #137]
37. Undated draft memo listing proposed
techniques and the effect of the McCain
Amendment on the CIA's ROI program [OLC
Vaughn Index #138]

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38. Undated draft memo discussing legal
principles applicable to the CIA's ROI
program [OLe Vaughn Index #151]
39. Undated Notes [OLC Vaughn Index #159]
40. Undated draft memo analyzing the CIA's
interrogation program under the CAT [OLC
Vaughn Index #163]
41. Undated memo outlining three previous
OLC opinions [OLC Vaughn Index #164]
42. Undated Notes [OLC Vaughn Index #174]

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43. 18 June 2004 Memorandum from OLC to CIA
OIG regarding 2004 OIG Special Review
[Not previously identified in OLC Vaughn
Index]

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.8. Departm.ent 01 J~tice

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Office ofLegaJ COlJDSe1

July .13, 2002

John Rizzo
Acting G~ Counsel

·Central Intelligence Agency
Washington, D.C. 20505
Dear Mr. Rizzo:

Tb.iS tettel is in response to' JOur inquity at our meeting today about what is n~ to
establish tho ~ of torture, auct forth in 18 U.S.C~ § 2340 tt seq. The e1cmcnU ofthe crime of
. torturo aie: (1) the torture oceumd.outside the United States; (2lthe dC!endant a~d Under the
coloroflaw; (3) the victim was within th6 defendant', custody orph~cal control: (4) the defendant
specifically in~deO to caosc severe mental or physical paiQ or suffcJing; ao4 (5).the act .~cted
severcmentaforphysiealpainor~ St, 18 U.S.C. § 2340(1); id, §,2340. Wlthrcspeclto·
severe mentai pain or suffering·Specifically, prolonged mental harm must be estaQlished That '
plolo~ged mental bami mustrcsuIt lromoncofthofollowiDg acts: intentional inflietio.n ortbreat«1ed .
infliction of severe physical paiaor raffering; administration or al'.Plieation of or threatened
adtninistration or application ofrnind--aJtcri11g drugs or othl:J' procedures designed to profOUDdly
disrupt the senses or-personality. threat of'imDWlent death; or threateDiDg to subject anotherpenon
to imminent death, sev~ physical pain or St1ffering, or the administritiOD or- application of mind,altering su~ccs or othe;r p1'O~ures 'calculated to

.'Ste 18' U,S.C. § 2340(2).

disruPt profoundly thc sensC! or personality•
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.. MoreOver, to C31ab1ish tIiAt an individuillw ae1ild with tbC"spcci.fic intent to inflict seyere
mental pain orsuff~g,an individual must aetwith~ intent, ie., witb.1be expms purpose, of
causingpr.oloilged mental bamtin order for tho use ofany ofthe,predicite acts to cQnsti'tute torture. '

, Specific intent can be negated by a s&owing ofgoo(ffaith. ThUs, if an individual undertook any o{
thepiedfcateaetsforseveremental ~-or suffering, batdid $0 in the good faith beliefth.a1 those: aCts
wouJdnot causotheprUoncrproiongcd menf31 harm., hewouldnotliavc'actcdwith the specificint~t
nc:ecssary to establish torture. It: for example, efforts waG made to' determine what Jong-cezm
impact, if any. specific conduct would have and it was learned ~ the conduct would not result in
prolonged mental harm, any actiam undertaken relyUig OD that advic, would have be UDdc.rtak~ in
good faith. Due diHgeuce to meettbis standard might include such actionS as slUV~ying professional
Jitera1Ur~ consulting
with c:xpert1, or evidence gained 'from
past experience.
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As you know, our office is in theco~·of.fina.lizing amore detailedmemQralldum.opinion
analyzing section 2340. We look fo~ to working.witp you as we finish that project Please
contact me, or
if you have.any fUrther questions.
~lY'

Yoot
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puiy Assistant Attorney General-

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phone:[·--Fax:

From: :
Phone:
j
. Date~ ·24 July 2002
Pag~inCfudlng this •

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cover page: 7

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: H~re is the PSyOhologk:ar assessment. Please feet free to can .
mejat work or at horne, whenever•

.llllnks-.

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Ps~tChQ1Qgical As~emnen~ of

_laln al·' Abed.in al"AOideen ~Auban1mad Hassan. a.k.a. Abn ~uba'ldah
1'1'1:3 foilcvJing psycholcgiC1il assessment of lain al-"Abedin al-Abideen
Muhamnwd Hassan. (a.k.a. Abu Zubaydah) is hased upon the re.sults of dire:l int&'r1.eWS
with and q~ser"lations of the S"l1bject, and from in! l ' ti. /0.': n~.
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JjahkgrQund Inf9tJMtioll. For at l~t adfl~ade. subject has lived and worked
~ithin an ~ll.vltcmnent that Ms condoned, nurtured, int.ensified. and rewarded his radical
beUef~. th.e following is apania! list of responsibilities that the subject has held (no
particular Cfder); Sobject is C':l.'tently 31 years old.
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Abu ZUbaydah wc£ked from very low-level mujahidin {called courier by30me} by age of
31 to third C'1' fourth. man: in aI~a'ida, Noone rises to tha.t level in such a short
period oftilne without being dedicated, trusted, and strong,

Alleged tcd13vewritten al-Qa'ida's manual on resistanc~ teehnlques and l~t'.rred Oll the
tonic.
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Involved in every major al·Qa'ida. terrorist operation; served as the operation~,l planner
fot (he rnUlenniilUl plot (2000), the Paris embassy (2001) and apkmner of the 11
September hijackings which killed and maimed thcwands of Americans.
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Served, as St)nlcr Usama B~ LadIn lieutenant and played a key role iUthe moveme;nt ~d
traitdng of opetati\ies onliehalf ofal~Qa'ida, the Egyptian IsmcJiliadt and
C1Jlet terrorist elementS inside Pakistan l11ld Afghanistan. He was Ii i~y player in.
the. Mi11e.unium t..itteat last year and appears to be engaged in ongoing terrorism .
plaJiumg against trs interests. ZUbaydah is wanted in Jordan fot hla role in the
Mill:mmum
plot
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Di:~~1edt1le start-up ofa Bin Ladin c-eUin Jordan that was clisrupterl in AllW:1all in

De6ilmb~ 1999 for plotUl:g terrorist acts against US and Israeli targets da."'ing the
Millhncillm celebrations in 1erdan. Two central figures of meplot, unde: arte3t,

. identifIed Abu Zubaydah as being the primary supporter of this cell and the pIco(..
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1vfunaged a ~;.etwork of traL'1ing camps. S2fehoU8e~ and mujak~din-r.elated offices .m
Peshawar ~d Af?han}stari. assistedmOthe:. extteiiiiili·
'n um'crks, b moviugmer:.,
moofY ana matenals In support of varlouspr.adS'
around
the world.
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Served as PepUty camp Commudtr fer al·Qaida training camp in Afghanistan.
Per~;onal1y approved emry and graduation of all traineell _ _ _ _
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··~rca1999¥2000. Froml996¥1999,~als
~of Afg..i!nistan to the training ca.-rnps. NOO'-::le came in and wt of
Peshawar, P~.kista.n without his knowledge and approval Served asal·Qalda'6
c¢oidinator of extemal COlltaet&, or foreign commurJcatiO!l$.
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Acted as a1~Qalda's Cl oftlctf and'was trusted to ftnd spies in their midst.
R~l!);xWHistors: SUbjecn:e~'Orted that h~ persistedfor a few years in holdmg
cnm the po~sibi1ity that he c~uldevenroally transition from jihad life baok into college
and pursuit:of his traditional educational, career, and family gQa]s, As time passed he
appesIed tdfinda speciallliche it;! himself. He b~e iIKmsingly integratoo. into me
jihadist id~j1ogy and Ufestyle. He periodically felt lTc1I:lgs ofb.Qm~1ekD.essllonged for the
company oHamily, and fantasized about a future as a cOtIlput& expert or engineer.
Howeveft overtime, the frequency and intensity ofthese1bo-llghts andieeling~
diminished; .Heb¢gan to think of any activity outside jihad as "sil1f'.Bv~lltaa.lly, he

understood:that hJs ntittd andheart were devoted to s~iug Allah and. Islam through his
jihad. Hea$$ooed that he ha~ had llno" doubts or regretSaboutchcosiug to pursue and
devote himielf to jihad since tile rnid·1990·s.
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~: Subjoot is a highly se1f~directed individUal who prizes his
independeMo, He seeks to ~ess his independence by doing things his own way and
having his ¢wn style to the e..T.1entthat be canwitbin the $ttUcture of raditalsa1afm
environments. When hamakes concessions, it is Withintheccntext ofbis ideological and
religious CQ!l.viction.s. He b.a:$ !Uli~issisti.c features that areevio.ent in hi~ attenticll to bis
appearance ,ana in his obVious ~'¢fforts"to demonstrate that he is really a rather "h'Umhle •
atld regtilar,!Uy/1 Stib1ectclearl~l"lossesses an airof' COnfide.llC ~e1f.:as~U!anc and
authoritv.

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•ersistetlt

¢garding openmg up to II e:Sh an ghly capable in.
with others from a variety of backgrounds. Not su.~gly. hepasse$ses
the disci"pHne, drive. creativity and prag~atism that characterize effective leaders.
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interaeti(lt.~

He
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Y$'00 I Y~ceptiv e an\l quick to recognize md assess the. moods and
motivati('j,.$ of others. He is alett and keenly obseI"t'smt of others' interactions. 1-Ie is
. strongly inclined to carefully gauge a situation before voicing opinions or revealing
feelin.gs. He IS adept at choos~ to conceal or convey ap{l.tt1cu1ez attitude or emotion
depending 1m the context and. inimediate utility. Subject tends to be a very private person
who is sl¢ptic31 of ottlers' intentions and alen for uherior mQtives. He is marked1 .
vi 'Iant alii te·n.ds not to ....
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amotional!Mem;~l ~t~~Cqnjng Skill!: o-verE1l, subject's background as
revealed by self-report (including dIaries and interview) doe.snot indicate that he bas a
history of tJ:100d disturbance C'f Qther psychiatric patholQgy .lnde~ his reported lUld
known hist,jry indicates that neb remarkably resilient and confident tharhe can
oveteome i:.dversity. Duringtheoccas!ons thllt he experiences incre$e4 stress and/or
low mood,he may hecom.~ somev,'hat mare withdrawn, me~clYtand reflective.
Howevet, ~bi5 shift in mood wiU:Jik.ely last a relatively slmrt time. He denies and there is
n<J e"idellCi.} in his reuorted bisto of mOUl1 t
"'ealth
"\foble

, joot IS genel' iy se ·sufficient and relie~ on his understanding and
app catloll Of religious and psychological prmciples.lnte11igencCt and discipline to avoid
snd overCCllne prcbleJIl.s. His faith.. the blessings of religjO'Js l~ers, lh"1d camaraderie of
Jj~e~mindednwjahedin. b!othershave provided him wi!h a reliable and durabl~ suppcrt
~ystem.
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OfPih1icular note has bi!e1l subject's ability to ma.'1age Ills mood and emotion.5
during detention, Being circums~, calm, controlled. and deliberate is likel .
r{JI"~I'r1'·~ti; ;.~' . '

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addition. ~ showed strong glgnsof sympa.theticnw,·QlJJ system arousal t»ssibly fear)
when he e~enced the initial "Confrontational" dislocaticnof expectation wJring an
Urterrogati.¢n session. Due to bisincredibly strong resolve, exp~i.ise in civilian warfare
resistau.ee t:) interrogation techniques (the latter twowhlch he trainedbIm<h'eds of olhers
on), this experience was one of the few that led torAm pwvidingsignificant actionable
inteUigel1c~.; As has been. ob~c!ve<i throughoot his recent detention, he was able tQ
quickly bou-uee back from these moat disconcerting moments and re;gain an air ofcsim
con1idence~and strong resolve in not parijng willi other1.."lreat L.'1.fonr.ation.
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Moti~, Subject's primary motivations are (in no p'.uticuiarorder);
statuslprestJ$c, power. inf'luence,sel'\-1ng the Ummah, serving the prophetand Allah.
pursuing atpurejihad>l, contributing to the eStab1ish~tofShari'a amOllgMusfun.
Co-Jnmell, Ctmtrlhuting to the "lifling up" of Muslims thrO'Jghout th! world, and
cOOttibutingto. the ~storation cf the Palestinian hotll~land.

~ Stren~. (in no partic:Jlarordet) Ability tofoous. goal-dfrecte:d
disciplin~ it:~telligence,emotional· resilience. stree~ savvy~ ability to organize and manage
people. ability to delegate tasr.s, keen <mervntion skills, £n.rld adaptability (can anticipate
amI·odapt $\<ler <iIl= ami wilh Ulinimat """"""~ capabl.<lf ~
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D~t:enpo!l and. Interrp~Mkt. Subject rece-g:nize..~ llult his duty-as a
soldier/wai:riorimujahid is to <ielav. mislead, and lie to c·rotect wh:::.t is most c::itical to the
success onus cause. He assumes'that we understand this. Tm,15, he is not likely to be
intirrrldate<L or weak~ed by being '<caught" in lies. ills job h to lie. During interview he

explained !hat he lierl to his neighbors, to shopkeepers, to bankers, travel agents, airport
penonnel,and mllny others in order to protect his people and activities. He said, "lillo'l,

lie. HeiUe, lie,

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•{e s talked with Ayman aI·Znwahiri and it is likely that zawah:hi talked
about his e;::perience as a captive of the Egyptians and RussitmlJ. In additiollt sUbject is
familiar and probably well versed regarding al·Qa'lda·s detention and tesistance training
materials. :fhus, one would expect tMrsubject WQuld w un''',,' ~ .
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i.

Guide!ipes on Confinement Conditions For CIA ·Detainees

These Guidelines govern the' conditions of confinement for
CrA D~tainees, who are person
ion
facilities that are undar the
control of
'"
cilities" ~

These Guidelines recognize that
environmental and other conditions, .as well. as particularized
considerations affecting any given Detention Facility, will.
vary from· case to case and location to location.

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:tmplt:ml.enting Procedures

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Guidelines on Confinement Conditions for CrA Detainees

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~esponsibJ.8

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O'ffic:er

The Director, ,DCI Counterterrorist Center shall
ensure (,a) that:. at all tim~s. a specific Agency staff
employee (the -Responsible CIA Officer-) is designated as
responsible for each specific Detention Facility. ,(b) that
,each Responsible CLA Officer has been provided with a copy of
tbeseGuidelmes and has reviewed and si.gned the attached,
,Ai::;knowledgment. and, (c) . that each Responsible. cn O;fficer and
each CIA officer participating i
. .
. individuals detained ursuant to
with, a
suant
and has
, ow edgment attached thereto~' .
Subject to operational and seCurity considerations; the
Responsible crA Officer s~all be present at; or visit, each
Detention Facility at intervals appropriate to the
circumstances.

I '

. APPROVED:

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Intelligence

•
Guidelines on Confinement Conditions for.cIA Detainees

. I,
am the ·.Responsible CIA Officer for the
Detention Facility known as
• By my signature
below, I acknowledge that I have read and understand' and will
comply. with the -Guidelines on Confinement Conditions for CIA
Detainees· of '
2003.
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addres~the.conduct of

interrogations of
ursuant to the authoriti.es set

These Guidelines complement internal Directorate of
Operations guidance relating to .theconduct of' .
interrogations. In ~he event of any inconsistency between
existing :00 gui.dance and these Guidelines, the provisions of
these Guidelines shall control.
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l..Perm!ssibJ.e :tnterro~at1on Techniques
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Unless otherwise appro~ed by Headquarters, CIA
officers and other personnel acting on behalf of CrA may use
only Permissible Interrogation~echniques. Permissible
Interiogation'I'ecbniques consist of both (a) Standard
Techniques and (b) Enhanced Techni·ques. .
.
. Standard TeChniqueS are techniques that ao not .
incorporate physical or substantial psychological pressure.
These techniques include, but are not limited to, all lawful
forms of questioning employed py US law enforcement and
militarY interrogation personnel. Am9ng Standard -Techniques
.are the US~ of isolation, sleep deprivation not to exceed
72 hours, reduced caloric intake (so long as the amount is
calculated to maintain the general' health of the detainee),
deprivation of reading material,' use of loud music or white
noise (at a decibel levei calculated to avoid damage to' the
detainee's hearing), and the use' of d i a p ~
eriods
... 0 to exceed 72 h o u r s , _

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Enhanc@d TeclmigUes.are techpiques that do
incorpOrate physical ~r psychological pressure ' beyond
Standard Techniques. The' use of each gp~cific Enhanced
Techn.ique ·must be approved bY Headquarters in advance, and
mayb~ employed only by approved interrogators for use with
the specific detainee, with appropriate. medical-and
psy¢hologicalparticipation in the p~ocess. These techniques
are, the attention grasp, walling, the facial hold, the
.facial slap (insult slap); the abdominal slap, cramped
confinement, wa.ll standing; ..stress po-~i tions ,sleep
deprivation beyond 12 hours, the USe of diapers for prolonged
periods, the use of, harmless insects, the water board, and
such other' techniques as may . ~e specifically' approved
.pursuant. to param;aph4 bel<:?w. The us.e of each Enhanced
TeChnique is subject to specific temPoral, physical, and
re~ated conditions, iriclu~ing a competent evaluation of the
medical andpsycholog~cal .state of the .:ietainee ..
2.

ro riatemedical and psychological personnel shal~
b e e a d i l y a v a i l a b l e for consultation and
travel to the .interrogation site durin-g all detaiIiee
.interrogations employing Standard Techniques, and appropriate
medical and.psychological personnel must be on site during
all detainee interrogations.employing'Enhanced Techniques.
In each case, the medical and psychological personnel shall
suspendtheinterro~ationif they'det~rmine that significant
and prolonged.physical or mental injury, pain, or suffering
is likely to result if ·the int~rrogation is not suspended.
In any such instance; the interrogation team shall.
immediately report the facts to Headquarters for ~agement
and legal review to. determine whether the interrogation may
be resumed.
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K~i=ii1 and psychoiogicaJ. Personnel.

rn~errogation Personnel

Director, ncICounterterrorist Center shall
all personnel directly e n g a g e d.~ '
ofersops'detained pursuant
have been appropriately s.creene
rom
meca , psyc 0 ogical , and security standpoints) I have
reviewed ~hese Guidelines, have received appropriate training
in .their implementation, and have completed the attached
Acknowledgment.
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. Guideline on

In,~errogations Conducted

PUrsuant .to the

4. ~ . .A.pprovai~ Requ!:J;eCl

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Whenever feasible, .advance approval is. required for
the use' of Stanc;lard 'Techniques by an interrogation team. In
.all instances, their use shall' be documented i.n cable
traffic::~ P~ior approval in writing ·(e~g., by written
memorandum or in cable traffic) from the Director,. DCI
CoUnterterrorist Center, with the concurrence of the Chief,
eTC Legal Gro~p, is ~eqUired for· the use of any Enhanced
Technique(s); and' ~y~be provided·only where DJCTC has
determined that· (a) the specific q.etainee is believed to
possess 1nfoJ:lIlation about risks to the citizens of the United
States
'other natioDS, (b) the ·.use of the Enhanced
.
TechniqUe(s) ~'is appropriate in order to obtain that
information, (c) .appropriate me~ca~ and psychological
.personnel have· concluded that the use of the Enhanced
Technique(s) is not expected to produGe ·severe physical or
'mentalpain qr suff·ering,· and (d)' the 'personnel authorized'
to .e,mpl(;)y the Enhanced· Tecnnique.( s) have completed the
attached Acknowledgment. Nothing in these Guidelines alters
the r;ght to actin self-defense.

Or

e

5.

RecordkeepiDg

In each interrogation sesslon. in which an Enha.i1ced
Technique i.s employed, a contentporaneous record shall be
created setting' forth the nature and duration of each such
technique employed, the .identities of those present, and a
citation to the required Headquarters approval cable. This
information, which may be in the form of a cable, shall be
provided to Headquarters.
.

APPROVED:

-.

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I,
-I- acknowledge that
I have read and
understand. and will. c01liPly with the NGuidelines
Interro ations Cond~cted Pursuant to

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FROM: N.AME ADDRESS; AND PHONE NO.

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Central Intelligence Agency
Offi.ce of General Counsel
Washington, D.C. 20505

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(28 April 2003)

•

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To:
JohnYoo
Or2aDization: DoJ
Phone:
1
lFax:
. Subject: LegalPrinciples Applicable to CIA
Detention and Interrogation of Captured
Al·Qa'ida Personnel
From: Scott W. Muller
Oreanization: Office of General Counsel
Phone:
Fax:
Number of Pages (Including Cover) 3
Comments: I would like to discuss this with you as soon as you
get a chance. Thank you. Scott

DRAFT

Legal Principles Applicable to
CZADetention and Interrogation
of Captured Al-Qa'ida Personnel

•

The international Convention Against Torture and Other
Cruel, Inhuman and Degrading Treatment applies to the
United States only in accordance with the reservations,
declarations and understandings articulated by this
country in connection with the Convention.
AccorQingly, uheUnited States prohibits torture only
as proscribed in 18 U.S.C. §2340j and prohibits
oth.erwise "cruel, inhuman and degrading" treatment only.
where, in all the circumstances (including the
justification for the treatment), the treatment would
violate the Eighth Amendment prohibition against cruel
and unusual punishment or the Fifth and Fourteenth
Amendment prohibitions against conduct that "shocks the
conscience."

.' Customary international law imposes no limitation on
the treatment of al-Qa'ida detainees beyond the
. Convention Against Torture and Other Cruel. Inhuman and
Degrading Treatment, as interpr;eted by the united
states, .

•

•

'rhe United States is at war with al-Qa'ida .
Accordingly, us criminal statutes do not apply to
official government actions directed againstal-Qa1ida
detainees except where those statutes are specifically
applicable in the conduct of war or to official
act.ions.

• The federal war crimes statute (18 U.S.C. §2441) does
not apply to al-Qa'ida, since al-Qa1ida is not subject
to the Geneva Conventions or any other applicable
conventions.
•

CIA interrogations of foreign nationals are not within
the "special maritime or territorial jurisdiction" of
the United States where the interrogation takes place
on foreign territory in buildings that are not owned or

DRAFT

•

DRAFT

•

leased by or under the legal jurisdiction of the US
Government.
-The use by CIA of the following techniques (and of
comparable, approved techniques) in the interrogation
of al-Qa'ida detainees is lawful, and violates neither
Federal criminal law nor the Fifth, Eighth, or
Fourteenth Amendm~nts, in circumstances where the
interrogators do not have the specific intent to cause
the detainee to undergo severe physical or mental pain
or suffering: isolation, sleep deprivation, reduced
caloric intake (so-long as the amount is calculated to
maintain the general health of the detainee),
deprivation of reading material, loud music or white
noise (at a decibel level calculated to avoid damage to
the detainee's hearing), the attention grasp, walling,
the facial hold, the facial slap (insult slap), the
abdominal slap, cramped confinement, wall standing,
stress positions, sleep deprivation, the use of
diapers, the use of harmless insects, and the water
board.
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Legal Prinqples Applicable to CIA
Detention and Interrogation of Captured AJ..Qatjda Personnel

•

• The Convention Against Torture and Other Cruel, Inh~ and Degrading
Treatment or Punishment ("the Convention") applies·to the United States only in
accordance with the reservations, understandings, and declarations that the Unit~
States submitted with its instrument ofratification ofthe Convention.
o The Convention's defulition of torture, as interpreted by U.S.
understandings, is identical in all material ways to the- definition of torture
contained in 18 U.S.C. § 2340. The standard for what constitutes torture
under section 2340 and under the Convention is therefore identical.
o The Convention also requires that state parties undertake to prevent other
cruel, inhuman, or degrading treatment or punishment. Because of u.s.
reservations to the Convention, the u.s. obligation to undertake to prevent
such treatment or punishment extends· only to conduct that would
constitute CrUel and inhuman treatment under the Eighth Amendment or
would "shock the conscience" under the Fifth and Fourteenth
Amendments. Moreover, the Convention permits the USe of such
treatment or punishment in exigent circwnstances, such as a national
emergency or war.

•

•

•

Customary intemationallaw imposes no obligations regarding the treatment of alQa'ida detainees beyond that which the Convention, as interpreted and
understood by the United States in its reservations~ understandings, and
declarations, imposes. The Convention therefore definitively establishes what
constitutes torture and cruel, inhuman, or degrading treatment or punishment for
the purposes ofU.S. intemationallaw obligations.

•

CIA interrogations of foreign nationals are not within the "special· maritime and
territorial jurisdiction" of the ,United States where the interrogation occurs on
foreign territory in buildings that are not owned or leased by or under the legal
jmisdiction of the U.S. government. .The criminal laws applicable to the special
maritime and territorial jurisdiction therefore do not apply to such interrogations.
Additionally CIA interrogations of foreign nationals are not within the sovereign
territory of the United States. Thus, the federal criminal laws that apply within
that territory do not apply to',these interrpgations. The only two federal criminal
statutes that might apply to these interrogations are: the War Crimes Statute, 18
U.S.C. § 2441, the prohibition against torture, 18 U.S.C. § 234G-:-2340A.

•

The federal War Crimes Statute, 18 U.S.C. § 2441, does not apply to al.Qa'ida
because the Geneva Conventions and the Hague Convention N, the conventions
that the conduct must violate in order to violate section 2441, do not apply toal·'
Qa'ida Al-Qa'ida is a non·governmental international terrorist organization
whose members cannot be considered POWs within the meaning of the Geneva

1

Conventions or receive. the· protections of. the Hague Convention IV. Because
these conventions do not protect al-Qa'ida members, Conduct toward those
members cannot violate section 2441.
•

The interrogation of al-Qa'ida detainees does not constitute torture within the
meaning. of section 2340 where the interrogators do not have the specific intent to
cause the detainee to experience severe physical or mental pain or suffering. The
absence of specific intent is demonstrated by a good faith belief that severe
physical or mental pain or suffering will not be inflicted upon the detainee. A
good faith belief need not"be a reasonable belief. The presence of good faith can
be established through evidence of efforts to review relevant professional
literature, consulting with experts, or reviewing evidence gained from past
experience.

•

The· interrogation of members of al-Qa'ida, who are foreign· nationals, does not
violate the Fifth, Eighth, and Fourteenth Amendments because these amendments
do not apply. The Due Process Glauses of the Fifth and Fourteenth Atitendments,
which would be the only clause in these amendments that could arguable apply to
the conduct ofinterrogations, do not apply extraterritorially to aliens. The Eighth
Amendment. has no application because it applies solely to those persons upon
whom criminal sanctions have .been imposed. The detention· of enemy
combatants is in no sense the imposition of a criminal sanction and thus the Eight
Amendment does not apply.
.

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Legal P:r::i.nciple5 Applic:~le to CIA
Oe'tent:.ion and Interrogation of Captured Al-oa'ida personnel

• The Convention Against Torture and Other Cruel, Inhuman, and
Degrading Treatment or Punishment (~the Conventiorr') applies
to th~ United States only in accordance with the
reservations,understandirigs, and declarations that the
United States submitted with its instrument of ratification
of the Convention.
o

o

•

The Convention's definition of torture, as interpreted
the u.s. understandings, is identical in all mat~rial
ways to the definition of .torture contained in 18 U.S.C.
S2340-2340A. The standard ·for what constitutes torture
under§2340-2340A and under the convention is therefore
identical.

by

Tpe convention also provides that state parties are to
undertake to prevent other cruel, inhuman, or degrading
treatment or punishment. Because of U.S. reservations
to the Convention, the U.S. obligation to undertake to
prevent such treatmenc or punishment extends only to
~onduct that ~ould constitute cruel and inhuman
treatment under the Eighth Amendment or would "shock the
conscience" under the Fifth and Fourteenth Amendments.
Additionally, the Convention permits the use of such
treatment Or punishment in exigent circumstancea, auch
as a national· emergency or war.

• Customary international law imposes no obligations regarding
the treatment ot al-Qa'ida detainees beyond that which the
Convention, as interpreted and understood by the United
States in its reservations, understandings, and
declarations, imposes. The Convention therefore
definitively establishes what constitutes torture and cruel,
inhuman, . or degrading treatment or p\.mishment for the
purposes of U.S. international law obligations.
• CIA interrogations of foreign nationals are not within the
"special maritime and territorial jurisdiction" of the
United S~ates where the interrogation occurs on foreign
territory in buildings that are not owned or leased ·byor
under the legal jurisdiction of the U.S. government. The

•

TO~.l'/J

•

criminal laws applicable to the special maritime and
ter~itorial jurisdiction therefore do not apply to such
interrogations. The only two federal criminal statutes that·
might apply to these interrogations are the War Crimes
statute, 1S u.-S.C. 52441, and the prohibition against
tortu~e, 16 U.S.C. §2340-2340A .
• The federal War Crimes Statute, 18 U.S.C. 52441, does not
apply to al-Qa'ida because the Geneva Conventions and the
Hague Convention IV, the conventions that the conduct must
violate in order to violate section 2441, do not apply to
al-Qa'ida. Al-Oa'ida is a nor.-governmental international
terrorist organization whose members cannot be conside:red .
POWs within the meaning of the Geneva Conventions or ~eceive
the proteotions of the Hague Convention IV. Because these
conventions do not protect al-Qa'ida members, conduct toward
those members cannot violate section 2441 .

•

•

• The interrogation ofal-Qa'idQ detainees does not constitute
torture within the meaning of section 2340 where the
interrogators do not have the specific intent to cause
"seyare physical or mental pain or suffering." The absence
of specific intent (i.e., good faith) can be e~tablished
through, among other things, evidence of efforts to review
relevant professional literature, consulting with experts,
reviewing evidence gained from pastexperiencewhere
available (including experience gained in 'the course of u.s.
interrogations of detainees), providing medical and
psychological assessments of a detainee ('including the
ability of the detainee to withstand interrogation without
experiencing severe physical or mental pain or SUffering),
prOViding medical and psychological personnel on site during
the conduct of interrogations, or conducting legal and
policy reviews of the interrogation process (such as the
review of reports from the interrogation facilities and
visits to those locations). A good faith belief need not be
a reasonable belief; it need only be an honest belief.
• . The interrogation of members of al-Oa'ida, who are foreign
nationals, does not violate the Fifth, Eighth, and
Fourteentn Amendments because those amendments do not apply.
The. Due Process Clauses of. the Fifth and Fourteenth
Amendments, which would be the only clauses in those
amendments that could arguably apply to the conduct of
interrogations, do not apply extraterritorially to aliens.
The Eighth Amendment has no application because it applies
solely to those persons upon whom criminal sanctions have
been imposed. The detention of enemy combatants is in no
2

•

I~/Xl
sense the imposition of a criminal·sanction and thus the
'Eighth Amendment does not apply •
• Taking all of the relevant circumstances· into account (such
asthe Government's need for information to avert terrorist
. activities against tne ~nited States and its citizens, the
good faith efforts to 'avoid producing severe physical or
mental pain or suffering, and the absence of malicious or .
sadistic purpose by those conducting. the interrogations),
the use of the techniques described below and of comparable,
approved techniques would not constitute co~duct of the type
that would be prohibited by the Fifth, 'Eighth, or Fourteenth
Amendments even were they to be applicable.

•

•

• The use of the following techniques and of comparable,
approved techniqu.es in the interrogation of al-Qa'ida
detainees by the CIA does not yiolate any Federal statute or
other law, where the CIA interrogators do not spe.cifically
intend to cause the detainees to undergo severe physical or
mental pain or suffering (i.e., they act with the good faith
belief that their conduct will not cause such pain or
sUffering): , isolation, reduced oaloric intake (so long as
the amount is calculated to maintain the general health of
the detaineea), deprivation of reading material, loud music
or white noise (at a decibel level 'calculated to avoid
damage to the detainees'. ,hearing),' the attention grasp,
walling, the facial hold, the facial slap (insult slap), the
abdominal slap, cramped confinement, wall standing, stress
positions, sleep deprivation, the use of diapers, the use of
harmless insects, and the water board .

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51

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Central Intelligence Agency

Office of General Counsel
Washington, D.C. 20505

Date: 03/02/04

To:
Organi atJon:

one:
Fax:
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133;

rom:
Organ· don:

Pone:
ax:

Jack Goldsmith

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DOJ/OLC ]

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Scott W. Muller
Office of General Counsel

Numbe of Pages (Including Cover) 13
Comme ts:

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CENTRAL INTELLIGENCE AGENCY
Washington, D.C. 20505

General Counsel

2 Xarch 2004

The Honorable
Assistant Atto
Office of Lega
Department of
washington, D.

ack L. Goldsmith III
ney General
Counsel
ustice
. 20530

Dear Mr. Golds ith:

e)

(')It/
Agency's (CIA)
program has e
operates in ac
by the Departm
the Attorn~y G
program, I am
forth in the f
•

. As you know, the Central Intelligence
Counterterrorism Detention and Interrogation
ended considerable effort to ensure that it
ordance with applicable law a:ld guidance provided
t of Justice's Office of Legal Counsel (OLe) and
eral. In light of the ongoing nature of this
questing that OLe reaffi.rm its analyses set
lowing documents:

The unc assified letter from John C. Yoo, Deputy

Assista t Attorney General, to the counsel to the
Preside t, da':ed 1 August 2002/ concerning interrogation
methods that may be used during the war on terrorism.

••

ssified memorandum by' Jay S. Bybee, Assistant
Attorne 'General, for the Counsel to the President, dated
1 Augua 2002, concerning the standards of conduct for
interro tion under 18 U.S.C. 2340-2340A.

•

The unc

•

The clas ified memorandum from Jay S. Bybee, Assistant
Attorney Gene::::al, to the Acting General Counsel of the
CIA, dat d 1 August 2002/ concerning ~he interrogation of
an al Qa da operative.

.

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MAR 02 '04133: 3SPl'

.

Goldsmith III

sifiedmemorandum entitled "Legal Principles
le to CIA Detention and Interrogation of Captured
a Personnel II. (hereafter "sum.rnary points
which.·
ared with OLe's assistance ~!:.d received the..
nee
your office in June 2003. (Enclosed with
ter ~s a copy o~ the summary points along with'a
memorandum. )
H

),

0=

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guidance to ass
techniques. Fo
on OLC's guidan
previously disc
summary points)
Similarly, ina
positions discu
its list of app
stress position

We rely on the applicable law and OLC .
ss the lawfulness of detention and interrogation
example, using the applicable law and .~relying
e J we concluded that the abdominal slap
saed with OLC (and mentioned in the June 2003
is a permissible interrogation technique.
ditioD to the sitting and kneeling stress
sed earlier with OLC/ the Agency. has added to
oved interrogation techniques two standing
involving the detainee leaning against a wall ..

<;zS/ I
~'lje also would like to share wi th you our
views on three ~dditional inte.rrogation techniques, .
and two u4es of water not involving the waterboard.
SL1.ch as the attention
grasp, walling ~nd the facial slap, all of which have been
reviewed by you~ office. Like other approved interrogation
techniques,
is used as part of the Survival,
Evasion, ReSist~ce, Escape (SERE) training provided to us
!<Ii 1 i tary per son~t1. .
~/I

The use of water with de~ainees has proven
ctive part of some detainee interrogations.
her than with the waterboard) range from
pouring, flicki , 'or ':ossing (Le., water PFT) a relatively
small amount of ater on detainees, to dousing detainees with
water from a buc et or garden hose (Le. , war.er dousing). (We
describe both te hniques in greater detail below.) Both wate·r
PFT and water do sing are used as part of the SERE training
provided to US . Ii tary personnel. We believe these techniques
clearly fall

to be a very ef
uses of water (

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The Honorable

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The Honorable· ack L. Goldsmith III

within. th$ leg
consistent wit

documents·

ide~

parame·ters ~stab.lish by applicable law and are
QLe's 200-2 and 2003 guidance set forth in the •
'fied above .

. ·~/··
. . . Nater l;FT is intended to create a
distracting eff at, to··staJ;'tle, ~umiliate, a:1d cause insult.
Water PFT is i ended to wear down the detainee physically and
psychoio gicall. Up to one pint of .potable water may
used so
long as it~ is a wl~ed in such ~. manner as to prevent its
inhala-t;·~9n or ·i gestion .. Water PFT,may be used as a stand-alone·
ioterrogc;Ltion t ch:piq~e or in conjl,ll1ctJ.,on wi th ot:her teclmiques
in anapp.roved· nterrogatiqn,plan such as sleep deprivation. No
mo~e than one p nt of water every 15 to 20 minutes may be
appl~ed,
Given the relatively small amount of water that is
applied and the method of ~pplication, there are virtually no
health o~'safet concerns with water P~T as part of an approved

be

•

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interrogation pan .

(~!

Water dousing is intended to weaken the
detainee's over 11 resistance posture and persuade him to
cooperate with nterrog~tors by removing his sense of
predi.ctabi'lity
c1 control .. The detainee, dressed or undressed,
is restra.ined b .. shackles and/or int:.errogato:rs in a standing,
si tting or supi e posi tion .on the floor , bencl'~ or similar level.
surface., potab ewatsr ispoured.Qn the de~ainee from a
container.o,r ga d~Il: bose connected to a water source . . Water is
applied so as. t not enter the no'se ·or mouth. A session can
last fro~ 10 mi utes (a .single application) ::0 an hour (multiple
applications). Tlle·detainee's re~ilience, level of cooperation,
amount and temp ra~ure of water, temperature of the ambient air,
and physical (L"1 mental state are all factors regulating the
length of the w ter dousing session. 'A medical officer is
present tomoni.or the detainee's physical condition during the
water dousing s ssion(s), including any indications of
hypothermia.n ccmpletion of the water dousing session ( s) ,
the detainee· is oved to. another room, monitored as needed bya
medical officer. to guard against hypothermia, and steps are
taken to ensure he.ce;:ainee is capable of generating necessary
body heat and rna '·ntain normal body functions .

3

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The Honorable

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IINOjRdii/IXl

ack L. Goldsmith III

(:;>SI/
.
:: greatly appreciate the assistance of your
office and the Depart~ent of Justice with ~he CIA's Detention
and Interrogat'on program. If possible, we request
reaffirmation f the legal guidance provided by OLe in the
\.
documents cite above within 60 days. Moreover, any guidance
.
you choose to
ovide on the interrogation techniques described \
in this hitter r any other techniques used in. this program also \
would be appre ated. Of course, at your request, we ~ill brief l
you or cleared embers of your staff on any of the interrogation
techniques ·use by the CIA as part of this program.

Sincerely,

ei

Scott W. Muller

Enclosure

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Detention

•

Legal Principles Applicable to CIA
d Interrogation of Captured Al-Qa/ida Personnel

The Conve tion Against Torture and Ot~er Cruel, Inhuman,
and Degrad ng T!:'eatment or ?unishment ("the Convention")
applies co the C~ited States only in accordance with the
reservatio 6, u~derstandir.gs, and declarations that the
United Sta es s·.lJ.:;:nitted wi~h its instr.~ment of ratification
of the Con enticn.

The Co venticn's definition of cort1.~re, as interpreted
by the U.S. t:nderstandings, is identical in all material
w~ys t
the definition of torture containea in 18 U.S.C.
!i2340- 340A. The standard for ""hac: constitutes torture
under -2j40-2340A and under the Convention is therefore
identi al.
'I'he Co .anticr: also provides that state parties are .to

underte to ?rever-t other cruel, inhuman, or degrading
treatm t or punishment. Because 0: U.S. reservations
to t:he onveno:ion, t.he U. S. obligati:~m to undertake to
prevent such treatment or punishment extends only to
conduct that ~ould constitute cruel and inhuman
treatme.t under the Eighth Amendmen~ or would nshock the
conscie .ce" '..:nder the Fifth and Fou::-teenth Amendments.
Additio.ally, the Convention permits the use of such
treatme~tor ?unisp~ent in exigen: c:rcumstances, such
as a na iona: emergency or war.

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eus to!t"-ary . ternational law imposes no obligations
regarding t e trea::ment of al-.Qa'ida de:ainees beyond that
which the C nvent.ion, as interpreted anc understood by the
United Stat s i.n its reservations, understandings, and
declaration ,impcses. The Conven:ion therefore
definitivel esta;:;:ishes what constitutes torture and cruel,
inhuman, or degrad~ng ~reatrr:ent or punis~~ent for the
purposes of T. S. i,.ternational law obliga':ions.

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CIA interro ations of foreign nationals are not within the
"special ma_' time and territorial jurisdi.ction" of the
United Stat
whe~e the interrogation occ~rs on foreign

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territory n 'buildings that are not o~med or leased by or
under the egal jurisdiction of the 0. S. goverrll1\ent. The
criminal 1 wsapplicable to the specia: maritime and .
territoria jur:'sdictfontherefcJ;e do :lot apply to such
interroga~ ons,
The oqly two federal c~iminal statutes that
migh~ appl\ to chese interrogations are the War Crimes
Statute, 1 U.S.C. §2441~ and the prohibition against
torture, 1 U.S.C. §2340-2340A.
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The federa War Crimes Statute, 18 u.S.C. §2441, does not
apply to a -Qa'ida because the Geneva Conventions and the
Hague Cony tio~ rv, the conventions t~at the conduct must
violate in order ::0 violate section 2441, do not apply to
a.l~Qa'lda.
A.l-Qa'ida is a non-governmental international
terr~~ist
ganization whose members ca~not be considered
POWs wi thi. the l'.eaning of the Geneva Co:wentions or rece{ve
the protec~'ons ~: the Hague Conventior- ZV. Because these
convEmtior:.s do :.10: protect al-Qa' ida r:1s!i.Ders, conduct toward
those mamba s can~ot violat~ section 24~l.

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The interr gatio~ of ai-Qa'ida detaineee does not
ccns.titute orture within the meaning 0: section 2340 where
theinterro ators do not have the specific intent to cause
"severe phy ical or mental pain or 3uffe~ing." The absence
of specific inter.~ (i.e., good fai~h) C~~ be established'
through, am ng o~cer things, evidence of efforts to review
relevant; pr fessional J,iterature, consulting with experts,
reviewinge idence gained from past experience where
available ( nciu~~ng experience gained ir- the course of U.S.
interrogati ns of detainees) I providing :r,edicaland
psychologic 1 asse~sments of a detainee (including the
ability of . he de~ainee to ,<"ithstand interrogation without
experiencin seve~e physical or mental pain or suffering),
providing m dica: and psychologi~al persc~nel on sits during
the conduct of i~~~rrcgations, or conducting legal and
policy revi ws of che interrogation 9ro:::ess isuch as the
review of r or~e ~rom ~he interrogation facilities and
visit$to t se locaiions}. A good ~ait~ belief need noc be
a reasonabl belie:; it need only be an ~onest belief.

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The interro atio!"_ :)f members of al-Qa' ic.a, who are foreign
.ss not violate the Fifth, Eighth, and
Fourteenth
endments because those amen~~ents do not apply.
The Due proc S5 C:auses of the Fifth and?ourteentn
Amend."'l'\ents . hieh hould be the only cla~sas in those
nationalS,

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a~endments that could arguably apply to che conduct of
interrogat i rts-, :::'6 not -apply extraterr':'t~rial1y to aliens,
The Eighth mend,l';'lent has no applicatior, because it applies
solely to ' O$e persons upon whom crim~~al sanctions have
been impbsThe detention of enemy combatants is in no '
sense the i oosit':'on of a criminal sanction and thus the
Eighth &"'!\e -ent do~s not apply.

.

,

• Taking all of tee relevant circ~~stances into account (such,
as the Gove nment'sneed for informatior: to avert terrorist
activities gains: the United States and its citizens! the
good faith fforts to avoid producing severe physical or
mental pain or suffering, and the absence of malicious or
sadistic pu pose cy those conducting the interrogations),
the use of - he techniques described belcw and of comparable,
approvedte hniques would not constitute conduct of the type
that would e pro~ibited by the Fifth, ~ighth, or Fourteenth
fu~endments ven ~ere they to be applicap~e.

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The use o! the following techniques and of comparable,
approved te hniq~es in the interrogation of al-Qa'ida
detainees b ~he CIA does not violate any Federal statute or
other law, here the CIA interrogators do not specifically
intenC.to C t:se t~e detainees to undergo severe physical or
mental pain or sTEering (i,e. ,they act 'tlith the good faith
belief that ~heir cor-duct will not cause such pain or
suffering): isolation, reduced caloric i:,.take (so long as
the amount s calc:llated to maintain the general health of
the detaine s), deprivation of reading =t".ateriaJ., loud 'music
or white r-o se (at a decibel level calct:lated to avoid
damage to t: edeta:'nees' hearing), the at.tention grasp,
walling, thfac~a~ hold, the facial slap (insult slap), the
abdominal s ap, c~amped confinement, wall scanding, stress
positions, leep deprivation, the use 0: diapers, the use of
harmless ir. ects, and the waceX' board.

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u.s. Department of Justice
Office of Legal Counsel

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Office of the Assistant Attorney General

Washington, D.C. 20530

May2S,2004

Mr. John L. Helgerson
Inspector General
Central Intelligence Agency
.Washington, D.C. 20505
Dear Mr. Helgerson:
I understand that your office has been working on a report that, in part, discusses
advice provided to the CIA by my Office concerning interrogations in the war on
terrorism. Scott Muller, the General Counsel at CIA,recentIyprovided me with a copy
ofthe report and I wQuld appreciate it if! could have time to review the description ofmy
Office's advice and provide comments before the report is sent to Congress.

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Thank you for your assistance.

Sincerely,

,

Cf~~7lC
,. Jack L. Goldsmith ill

T~TII

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u.s. Department of Justice

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Office of Legal Counsel

T~
Office of the Assistant Attorney General

l~fMR
Washington, D.C. 20530

May 27, 2004

Mr. Scott Muller
General Counsel
Central Intelligence Agency
Room 7C24 Headquarters Bldg.
Washington, D.C. 20505

Dear Scott:
Thank you for sending us a copy of the Inspector General Report concerning the
Central Intelligence Agency's program for enhanced interrogation techniques.

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Information in that report has raised concerns about certain aspects of
interrogations in practice. As you know, the opinion that the Office of Legal Counsel
provided to John Rizzo in August 2002 addressing ten enhanced interrogation techniques
depended upon a number of factual assumptions as well as limitations concerning how
those techniques would be applied, and it is my understanding that this Office
subsequently agreed that the same legal principles, subject to the same factual
assumptions and limitations, could be applied for interrogations ofpersons other than the
specific individual addressed in that August 4002 opinion. Our initial review ofthe
Inspector General's Report raises the possibility that. at least iti some instances and
particularly early in the program, the actual practice may not have been congruent with
all of these assumptions and limitations.
.
In particular, it appears that the application of the waterboard technique may have
deviated in some respects from the descriptions in our opinion. We have not yet
reviewed all the pertinent facts to determine whether such deviations are material for
purposes of the advice we provided. Some facts discussed by the Report had clearly been
discussed with Department of Justice personnel in 2003. Some other information,
however, appears to have been generated in thecourseofth~ Inspector General's inquiry.
It raises a concern.·for example, that the Inspector General has suggested, among other'
things, that the "SERE waterboard experience is so different from the subsequent Agency
usage as to make it almost irrelevant." IG Report at 22 0.26. As you know, the use of the
waterboard mSERE training was a significant factor in this Office's legal analysis. I
understand that the waterboard technique has not been used since March 2003. In light of

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the assertions in the Inspect9f Gen,eral's Report, and the factual assumptiooslUlderlying
our advice, we strongly recominend that any use ofthis technique remain suspende4 lUltil
w~ have had a more thorough opportunity to review the Report and the factual assertions
in it.
We recommend that with respect to the use ofthe other nine techniques, you
review the steps you have already taken to ensure that in actual practice any use ofthose
techniques adheres closely to the assumptions and limitations stated in our opinion of
August 2002.
Finally, the Report also includes hiformation concerning interrogations that are
not part ofthe enhanced interrogation techniques program. As you know, we have not
provided advice on practices described in those portions ofthe Report.

(rJ~

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L. Goldsmith ill

TO~

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U.S. Departinent of Justice

Office of Legal Counsel

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Office of the Assistant AJttJrM.y <Jc:iuonl

Washington, D.C. 20530

June 10, 2004
Scott W. Muller, Esq.
General Counsel
Cen'tral Intelligence Agency
Washington, D.C. 20505
Dear Scott:
By a letter dated March 2, 2004. you asked me to "reaffirm" three pages ofbullet points,
entitled "Legl,\! Principles Applicable to CIA Detention and Interrogation of Captured Al-Qa'ida
Personnel. n You indicated that our Office had approved these bullet points in June 2003.

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I have further inquired into the circumstances surrounding the creation oftbe bullet points
in the spring of2003. These inquiries have reconfirmed what I have conveyed to you before.
namely, that fue bullet points did not and do not represent an opinion or a statement ofthe views
of this Office. <]81 .
.

As I previously advised you, to respond to your currerit request for an opinion, my Office
will first need your views in writing on the legal questions to be addressed. The longstanding
practice of our Department and Our Office is to require such a expression of views from an
agency seeking our written opinion. The practice extends at least as far back as 1924, when
Attorney General Stone issuec1 a letter to all cabinet officerS and the Secretary to the President,
requesting that agencies submit "the written opinion of the chief law officer ofthe Department,
Board. Bureau, or Commission, based upon the facts and documents" when asking for the
opinion of the Attorney General. Letter for (Jovernment Officials, from Harlan F. Stone,
Attorney General (Sept. 15, 1924) (emphasis deleted). This Office now carries out the Attorney
General's opinion-writing function, 28 C.F.R. 0.25(a), and follows the same procedure. The
requirement of an opinion from the requesting agency helps to ensure the completeness and
legitimacy of the process by which our Office issues opinions. To be sure, our Office has not
applied the policy with complete unifonnity, especially where operational needs have made such
a process impractical or where the White House Counsel, OMB, or our own Department is the

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requester. Nevertheless. this practice seems particularly prudent here, where the issues deserve
the fullest exp.loration, ~~where many ofthe facts and practices necessary for the analysis fall.
within your expertise.\j"D1'
Uook forward to hearing from you so that we may proceed as expeditiouslyas possible
on your important request.

Sincerely,

Q~OId&mili

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TO~Tj

ill

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U.S. Department of Justice
. OfficeofLegal,S~~
~nL~

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office of theAssistllIU Attorney General

Washington, D.C. 20530

June 10, 2004
Scott W. Muller, Esq.
General Counsel
Central Intelligence Agency
Washington, D.C. 20505
Dear Scott:
,

By a letter dated March 2, 2004, you asked me to "reaffinn" three pages ofbullet points,
entitled "Legal PrinCiples Applicable to CIA Detention and Interrogation of Captured Al-Qa'ida
.¢:nnel." You indicated that OUT Office had approved these bullet points in June 2003.

.'

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I have further inquired into the circumstanceS surrounding the creation of the bullet points
in the spring of2003. These inquiries have reconfirmed what I have conveyed to you before, .
namely, that the b~t points ~id not and do not represent an opinion or a statement of the views
of this Office.

!JZI

As Ipreviously advised you, to respond to your current request for an opinion, my Office
.will first need your views in writing on the legal questions to be addressed. The longstanding
practice ofour Department and our Office is to require such a expression of views from an .
agency seeking our written opinion. The practice extends at least as far back as 1924, when.
Attor:ney General Stone issued a letter to all cabinet officers and the Secretary to the President,
requesting that agencies submit "the wrItten opinion ofthe chieflawofficer ofthe Department,
Board. Bureau, or Commission~Qased upon the facts and documents" when askingfor the
opinion of the Attorney General. Letter for Government Officials, from Harlan F. Stone,
Attorney General (Sept. 15, 1924) (emphasis deleted). This Office now carries out the Attorney
General's opinion-writing function, 28 C.F.R. O.25(a), and follows the same procedure. The
requirement of an opinion from the requesting agency helps to ensure the completeness and
legitimacy of the process by which our Office issues opinions. To be sure, our Office has not
applied the policy with complete unifonnity, especially where operational needs have made such
a process impractical or where the White House Counsel, OMS, or our own Department is the

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requester. Nevertheloss,.-this practice seems particulatlyprudent here, where-ihe issues deserve
the fullest exploration, d here I!lany of the facts and practices necessary for the analysiS" fall
within your expertise. y;:'1
..
.

.~.

look forward
to hearing
on yourIimportant
request.
(U) from you so that we may proceed as expeditiously as possible

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U.S. Department' of Justice
Office ofLegal Counsel

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Office of the Assistant Attorney General

Washington, D.C. 20S30

. June 18, 2004

Mr. George J. Tenet
Director
Central Intelligence Agency
Washington, D.C. 20505
Dear Director Tenet:
I am writing at the Attorney General's request concerning a report that that the
Inspector General of the CIA has recently forwarded to your office. The Department of
Justice did not have an opportunity to review a draft of the report and instead only had a
chance to review the final report after 'it had been forwarded to your office.

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The Department of Justice believes that the report contains some ambiguous
statements concerning the Attorney General's remarks at a 29 July 2003 meeting of
selected NSC principals that shOUld be clarified and that it contains some statements that
mistakenly characterize the extent of advice provided by the Department.
The Attorney General requests that you return the report to your Inspector
General with a request to make the modifications suggested in the attached document,
which we believe are necessary to clarifY ambiguities or correct mistaken
characterizations.

Sincerely,

CJ~ /!)JJ4L 2

kCk L. Goldsmith III
cc: Scott W. Muller, Esq.

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