00.717

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.FAX COVER SHEET
Central Intelligence Agency

Office of General Counsel
Washington, DC 20505
22A..DI'82005

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To: Steve Bradbury 4\
Or2anlzatlon: DoJ/OL~
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Number of pages (including cover sheet): 4

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No' Dissem - This Note and Attachment
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Horizontal Sleep Deprivation

On three oc:oasions early In the prcgram, the interrogation team and the attendant medical
officers identified the potential for unacceptable edema In the lower limbs of detainees
.
undergoing InterrogatiOn. In order to permIt the limbs to tethl/er Without impairing.sleep
deprivation requirements, the subjects underwent horizontal sleep deprivation. HoriZontal sleep
deprivation OC9UI'S when a detainee Is placed prone on the floor on lop of a thick towel or blanket,
a precaution designed to prEivant reduction Of body temperature through direct contact with the
cell Roor. The detaln.eels hands are manaeled togetherand the arms placed In outstretched
pOSition ~R ~Ither extended beyond the head or extended to eIther sid& 'of the body - and
anchored to a far polnt on the floor in such amanner that the arms cannot be bent or used for
balance or comfort. At the same time, the ankles are shackled together and the legs are
.extended In a straight line with the body, and anctiOred to a far point on the floor In suoh a
.
manner that the legs cannot be bent or used for balance or comfort. The manacles and shacklea·
are anohored Without additional strass on any of the arm or leg Joints that might force the limbs
beyond natural extensIon or create tension on any joInt. The·p~ltlon Is sufflolent/Y uncomfortable
to detainees to deprive them rtf unbroken sleep, while allowing their lOwer limbe to recover from
the effects of standing sleep dePrlvatlon. All standard precautions and procedures for shackling
are observed for both hands and feet whOe in this pOsition. Horizontal sleep deprivation has been
used until the detainee's affected limbs have demonstrated sufficient recovery to return'to sitting
or standIng &Ieep deprivation mocle, as warranted by the requirements of the Interrogation team.
and subjel?t to determination by medical offl~er that there is no contraindication to resuming other
sleep deprivation modes.

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II~030042~

NO. -117
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HANDLE V!1.

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1120300422
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CH1lNNELS ONLY

22 April 2005
Transmitted by Seoure Faosimile

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The following is the Central
Intelligenoe Agency's ~se of the "waterboard" in
combination ·with two other techniques. The waterboard is
an interrogation teohnique as descr~ed in our Background
Paper on CIA'S Combined Use of Inte~rogation Techniques,
provided to you previously.
-

We also previously provided the

Depar~ent of Justice w~th our desoription of the

waterboard,· The following is ou~ ~eao~iption of the two
interrogation techniques we use in conjunction with the
waterboard, These techniques are dietary manipulation and
sleep deprivation. While an individual is physically on
ehe waterboard, we do not use the insult ~lap, belly slap,
attention grasp ,.. facial hold, walling, ·water dousing,
stress positions, or crampad confinement. Many or all o!
those teohniques almost oertainly will have been used
before the Ageney needs to resort to the waterboard (and,
.indeed, aillce Ma:rch 2·003, the Agenoy has not ~a.d to reaort
to ~$e of the waterboard to· transition an individual from
resistance to Qooperati~n), Further, it is possible that
one or more of these interrogation· teohniques might be used
the same day as a waterboardsession I

~~ As you are aWaJ;e, the Central
Intelligence Agency has established speoific guidelines·for
the use of eaoh of these ~wo interrogation teohniques and
the waterboard. Thasa guidelines incorporate the
guidelines established by the CrA Office of Medical
Services (OMS).

(4 .

~ As

we briefed you. p.reviously, an

indiv{d~~i is always placed on a fluid diet before he may

be subjected to the waterboard in order to avoid aspiration
of regurgitated food. The individual is kept on the fluid
diet throughout the period the waterhoard
used, .

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HANDLB VIA .

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720300422

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I ~~le.p deprivation may b. ueed
prior to and during the wate;rooud session. As ha" been
previously noted, the time limitation on application of
Bleep deprivation is strictly monitored. In addition, the
detainee,' B physical and mental state is also monit.ored to
ensure they ara not harmed. 'l'hera i, no evidence in
literature or .experience that Bleep deprivation 'exacerbates
any harmful effect8 of the waterboard, but it dOBS reduce
the detainee's will to resist, contributing to the
effectiveness of the' waterboard as an interrogation
teohnique. In tbe event 'a detainee were to be perceived a6
~le to withstand the affects of the waterboard for any
reason, any member of the interrogation team has obligation
to voi.aB concern-, and 1f necessary to balt the proceedings.

llANDLE VIA

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"20300422

No.

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NATIONAL SECURITY
COUNCIL
INFORMATION
Notice

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The attached document contains classmed National Securily Council Information.
It Is 10 be read and discussed only by persons authorized by law.
Your slgnature acknowledges you are such a person and you promise you wlll
show or discuss Infonnation contained In the document only with persons who
are authorized by law fo have such access 10 this document'

~.

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Persons handling this document acknowledge he or she knows and understands
the security law relating thereto and will cooperate fully withany lawfullnvestiga-'
lion by the United States Government Into any unauthorized dlsclosure of classl·
fled Information contaIned herein.

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The-CIA interrogation program, which is conducted outside the special maritime and territorial
jurisdiction ofthe United States, is not subject to the requirements ofArticle 16 ofthe CAT.
o Article 16(1) requires that the United States "undertake to prevent ... cruel, ·inhuman or
degrading treatment or punishment" only in "any territory under its juri~diction."
•

'r(

•

The CAT useS the phrase ~'any territory under its jurisdiction" to refer to territory
over which a state may "take .... legislative, administrative, judicial or other
measures." Art. 2(1); see also Art. 5(1).
Article 16's limited territorial reach is confmned bya reservation under which the
United ,States is bound only with respect to "the crue~ unusual and inhumane
4'~atment or punishment prohibited by the Fifth, Eighth, andlor Fourteenth
Amendments," provisions that do not apply to aliens outside of the United States.

The CIA interrogation program. would not violate U.S. obligations under Article 16 ifit applied.
,

b

Article 16 WOuld prohibit the United StateS from treating detainees in a, manner that
"shocks the conscience."
•

Whether government condu~ shocks the conscience turns primarily on two factors.
(1) Whether the conduct is "arbitrary in the constitutional sense."
(2) Whether, considered in light oftraditional and contemporary executive practice,
the conduct is sufficiently "egregious" to "shock the contemporary conscience."

~,

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"

The CIA interrogation program, which furthers tlJe government's interest in
national security and in which techniques are authorized only as necessary to
pmtect that interest, C<lJUlot be said to be constitutionally arbitrary.

•

The techniques do not "shock the contemporary conscience," although their use in
other contexts'(such as ordinary criminal investigations or traditional armed
conflicts) might.
•

•

~

•

Importantly, the CIA interrogation techniques are all adapted from the'
military Survival, Evasion, Resistance, Escape ("SERE") training. The fact
that the United States uses these techniques on its own troops strongly
suggests that these techniques are not categorically beyond the pale.

Given the'vague nature ofthe shocks-the-cons~ience test and the lack of precedent in this context,
we cannot predict with confidence whether a court would agree with our analysis, But because of
the territorial limitation in Article 16 and the fact that it is non-self-executing, we think the
question should not reach the courts.

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NATIONAL SECURITY
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The attached document contains dassllled Natlonal Security CounclllnformaUon.
It is to be read and discussed only by persons authorl:ted by law.
.
'Your s\gl)alure acknowledges you are such a persor) and you promise you will
show or dIscUSs Informatlon contained In the document only with persons who
ara authoraed by law to hav& such access to this document

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Persons handllng this documel'lt adcnowledge he cir she knowS and understands
the security law retatlng thereto and will cooperate fully with any lawful investigati~ln by ~ United Stales Gov!lrnment Into any unauthorized disclosure of class!Red Information contained herein.

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The' CIA interrogation program, which is conducted outside the special maritime and territorial
jurisdiction ofthe Unitoo States, is not subject to the requirements of Article 16 ofthe CAT.
o Article 16(1) requires that the United States "Wldertake to prevent . . . cruel, inhuman or
degrading treatment or punishment" only in "any territory under itsjurisdiction."

.~.

. •

•

•

The· CAT uses the phrase "any territory under its jurisdiction" to refer to territory
over which a state may ''take ... legislative, administrative, judicial or other
m~~es." Art. 2(1); see a/so Art. 5(1).
Article 16''5 limited territorial reach is confirqJ.ed by a reservation under which the
. United States is bound only with respect to "the cruel, unusual and inhumane' .
treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth
Amendments," provisions that do not apply to aliens outside of the United States.

The CIA interrogation program would not violate U.S. obligations under Article 16 if it applied.
o Article 16 would prohibit the United States from treating detainees in a manner that
.
"shocks the conscience."
•

Whether government conduct shocks the conscience turns primarily on two factors.
(1) .Whether the conduct is "arbitrary in the constitutional sense."
(2) Whether, considered in light oftraditional and contemporary executive practice,
the conduct is sufficiently "egregious" to "shock the contemporary conscience."

•

•

The CIA interrogation program, which furthers the government's interest in
national security.and in which techniques ~e authorized only as necessary to
_protect that interest, cannot be said .to be constitutionally arbitrary.
The techniques do-not "shock the contemporary conscience," although their use in
other contexts (such as ordinary criminal investigations or traditional anned
conflicts) might.
•

•

'-~.

Importantly, the CIA interrogation techniques are all adapted from the
military SUfVival, Evasion, Resistance, Escape ("SERE") tr~g. The fact
that the United States uses these techniques on its own troops strongly
suggests that these techniques are not categorically beyond the- pale.

Given the vague nature ofthe shocks-the-conscience test and the lack ofprecedent in this context,
we cannot predict with confidence whether a court would agree with oUT analysis. But because of
the territorial limitation in Article 16 and the fact that it is non-self-executing, we think the
question should not reach the courts.

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The CIA interrogation program, which is conducted outside the special maritime and territorial
jurisdiction of the United States, is not subject to the requirements of Article 16 ofthe CAT. .
o Article 16(1) requires.that the United States "undertake to prevent ... cruel, inhuman or
degrading treatment' or punishment" only in "any terriiory-under itsjurisdiction.'"
• The CAT uses the phrase "any territory under its jurisdiction"- to refer to territory
ov~r which a state may "take ... legislative, administrative, judicial or other
measures," Art. 2(1); see a/so Art. 5(1).
• Article 16'8 limited territorial reach is confirmed by a reservation under which the
United States is bound only with respect to "the crueL unusual aQd inhumane
treatment.or punishment prohibited by the Fifth, Eighth, andlor Fourteenth
Amendments," provisions that do not apply to aliens outside ofthe United States.

•

The CIA interrogation pfogram would not violate U.S._ obligations under Article 16 if it applied.
o Article 16 would prohibit the United States from treating detainees in a manner that
"shocks the conscience."
• Whether govellUl\ent conduct shocks the conscience turns primarily on two factors.
(1) Whether the conduct is "arbitrary in the constitutional sense."
(2) Whether, considered in light of traditional and contemporary executive practice,
the conduct is sufficiently "egregious" to "shock the contemporary conscience."
• The CIA interrogation p'rogram, which·furthers thegovemmenfs interest in'
national security and in which techniques are authorized only as necessary to
protect that interest, cannot be 'said to be constitutionally arbitrary.
• The techniques do not "-shock the contemporary conscience," although their use in
other contexts (such as ordinary criminal investigations or traditional armed
conflicts) might.
•

•

~

13~

Importantly, the CIA interrogation techniques are all adapted from the
military Survival, Evasion, Resistan~, Escape ("SERE") training. The fact that the United States uses these techniques on its own troops strongly
suggests that these techniques are not categorically beyond the ~ale .

.

Given the vague nature of the shocks-the-conscien~ test and the lack of precedent in this context,
we cannot predict with confidence whether a colJ,/1 would agree with our analysis. But because of
the territorial limitation in Article-16 and the fact that it is non-self-executing, we thhik the
question should not reach the courts.
.

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Nl\TlON'AL SECU:RITY
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The CIA interrogation }1rcgra;tt, 'which is conducted ot~tskle the special maritime and territorial
jura/di.ction ofthe United States. is not l>'Ubject to the req:uireme:rm; of Article 16 of the CAT.

o Article 16(1) requires that th.e United States '~undertakc to- prevent. _. crud, inhuman or
degradmg treatment -Of punishment" onfy in "any territory under itsjurisdiet:km."
«I

'r he CAT 'uses the- phrase «a.ny ten-rtory under its jurloo_ictkm" to refer to territory

ovcr which a state may ""take ... lcgis.lat.ive-, -administrative, judicial or other
m€as-ure."$." Art. 2{l); see also Art. :)-(1}.
SI

>$

Article 16's l.i.mited territorial reach is c~:mfirmt-d by a reserva.tion under which the
United States is bound only v.'i.th respect to "the cruet ufll.lS1.w.l aqd inhumane
treatrnen.t or pm1ishmeut prohibited by the 1'1t1h, Eight1~, andlof fourteel'JUl
k'11Cndnlcnts," pro'visions that do not app!y to aliens outside (If the United States.

The CIA. interrog.a.tion program 'il,,'ciUld not violate U.S. ohHgations under Artick; 16 int applied.
o

Article 16 wm~]d pfohibit the tjllited States fhlJll treating detainees in a manner that
"shocks. tbe e'onsci<.:::nce."

Whether government «mduct shocks the

(,'.onsd~!1ve

turns primarily on two fact.ors.

(1) W~hether the C(}rlthLCl. is- "'arbitrary in the C(}ustitutio·nal sense."
(1) Whetllcr, considcl'ed in. light of traditional and contemp!Ji~ary executive pm{;tlce,
the conn:u{',t is oSttfficicntly "ilgregious"' t'.Q ~'shock the cont.emp0r?uy coo3dence,s"
'jI

II

The' CIA inte.rrogation owgmm.,\'-'hich Rathers the Q;overnment' s intemst in·
natkmw ~curity"" and i~ which techniqlle.~ are autbo;i1..ed only as necc:~"Stlry"it)
protect that hiterest,. cannot be s<l.id to be constitutionally arbitrm)'.
'I1~e h'!dmiqu~% do

not "shtwk the ccmtempora,ry con5den(~e," dthough their ww in
other C0nte.xtS (such a:; ordinary crimimli invei>t~g(l.tio(lg or traditiollal armed
.c-o'nflict$) might.
~

~

hnpi'lna.ntIy, the CIA interrogat[orl techniques are all adapted from the
military Survival, Evasion, Resistance, ES(A~pe ("SERE") training. The fitet
that the. United States U~'eS these tedmiques <m its O\\lt! troops st'IOllgly
&lggestS ibnt 'these techniques are !lot ca:tego-ric.a.11y beyond the pak

Given the vague natu.l'C of the flh.ocklHhe-con!S{:ienc-e test and the ~ac.\: of preced~nt :i~1 th1s conteKt,
we. -cannot predict '\vk..1-t confidence whether a court would agree with our a.ltaly-s.is. But' because of
th~~ ten·itorial1.imitation in Article 16 and the lJ~ct ihat. it t3 nonbselF..executin,,-Y, we think the
question shbuld .nat il?'.ach the courts.
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LEGAL llACKGRQUND

•

The Geneva. Conventions "'apply to all cases of declared war Of ofany other armed conflict which
may arise between two or more of the High Contracting Parties" and "to all cases of partial 01 total
occupation of tbe territory ofa High Contracting Pony."
o The Conventions do not apply to our worldwide c.onfliet with al Qaeda. wt-Jch is not a
"Higb Contracting Party." See also Hamdan v. Rumsf.1d (D.C. eir. July IS, 2OOS).
o

The President has determined that tbe Convcntions apply to our conOict with tbe Taliban
because Afghanistan is a ""'High Contracting Party:'

c

The Conventions apply to our,conflict with tbe former regjmein Iraq buause"that

conflict is between "High CvntIOcting Parties" and, plior to June 28, 2004, because tbe
United States occupied Iraq.
•

The Third Geuev8 CotlYention (<<GPW'") requires tbat notice be ginn of deteuti.our of penons
"Who qualify (or prisoner of war status under GPW art. 4 ("POWs").

c

Notice is not required for .aI Qaeda dec.aineea because a.I Qaeda is not a party to the
Conventions.

o Notice is not requind forTAliban detainees because the Taliban, as a group~ do not meet
the criteria set forth in GPW art. 4 for POW status.
v

Notice hi required for detainees

~lJlsodated willi

the armtd forteS of the: former Iraqi

rt'Jgime who satisfy t.1-Je requirements set forth in GPW art 4,
•

The Fourth ("'rlmeva COJJventi()U ("'GC) requires that. noHc:e be give,n of detentions of persons
{ovuled in the t~n1tory of the detaining St.ate or in occupied territof)' who !::ltisfy the nationality
and other ref.luiremcnts set forth in GC art. 4 ("protected persons").

o In United Statt$ territory, nationals of Afg.hani!lan. Iraq. Rnd countries that do ~lGt
have nl)fntal diplomatic representation in the United States (e.g.. Iran) may qualify fDr
protected person. status. Although the better view is that GTMO is not United States
territory, litigation developmento; could call that COncltlSion into question.
o

Penons captured in laq before the end of occupation (June 28, 2004) who remain in

detention retain protected person status if they satisfy the n.,o.quircments of GC art. 4.
•

United Nations Security Council Resolution 1546, which authorizes the multinational force

tM:N"F") to detain where <cnecessary for imperative reasons of security" aDd inoorporates a.
commitment "to act. in accordance with" the Geneva Conventions, docs not impose an)' notifitation
obHgarion when tbe Geneva ConventioDi do not

'_:"

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GENERAL I'RAMEWORK

-

•

In most cireumsianees istvolving captures and detentions today, the Geneva Conventions do
not impose notification reqnirements on the United States.

•

The Third Geneva Convention ('"GPW"). which would require notice for PO\Vs, does not L."Dpose
notification requirements in most circumstances re.1evant here.

It

o

Notice is not required for a:l Qaeda dt."tainees because aI Qaeda is not a pany to GPW,

c

Notice is not Tequirw for TaIib:m detaineas because they do not qualify fur POW st:atu~.

c

Though probably not operationally significant, native would be nquired for penons
8SsoeWed with the armed forces or the former Iraqi r-egime who qualify for POW 3t&US.

The Fourth Geneva Co.nveotion t'GC") does net impose notification requirements in most

circumstances because tbe occ:upation of Iraq ended on June 28, 2004.
c

Notice would be required for persons captured in Intq Wore the elld of o«UpatiOD
(Jun" 28, 2004) who qualify fur protected person statu,.

o

•

In U.s. territory, notice may be requiTed for det2inecs who a're nationAls or
Afghanistan, 'Iraq, or countries la,eking normal diplomatie representation in the U.s.

United Nation! Security Council Resolution 1546 does not impose flny notification obligation
when tbe Geneva Convelltlom: do noL

CONCLUSIONS
•

lCxeept CO'rliome unusual Situations, detenti.au operations conducted IHlrsuant to tbe
Department of Defense, proposed poticy would not rc.quirc notitiCSltion under th.e f'...onve.o1.tioos.

•

1<"0:1' certain unusual r.atego-ri.es of detainees) additj(Hlfll fCltl.-dcpendc1.1t 411alysh would be

I1l.!ce.S'sary to determine wh.ether notification is required:

•

o

Per$OJ~S

associated with the armed fortes of the former Iraqi regime

o

Persou~

captured in 'frdq before the cud of occupation (June 28. 2004)

[fCC's restrictions f()( occupied territory still applied in Iraq, they would prohibit some conduct
authori~

under the proposed policy, such as forcibJe transfers or deportations of pro:-ea.ed persons

from Iraq.

•

It i! t.berefoTC important to review statements of senior Administration officials: ihat may
sugge.'lt that U.S. policy is to apply the substantive «quiremenu of the Geneva ConVenMtU.
Adherence to such 2. policy might require notification and might place other substa.TJtive limrtaiions
on treatrr.ent of detainees_

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Notice
The attached dOC1lment contains classilled National Security Councllinlormallon.
TIls to be read and discussed only by parsons authorized by law.

..

Your slgnature acknowledges you are such a person and you promise you will
show or discuss Informallcln contained In the document only wltll parsons who
are authorized by law to have such access 10 this dOC1lmenl.

.~

Persons handllnl/ this document acl<nowledga he or she knows and understands
the security law relallng 'thereto and will ooqperate tully with any lawfullnvestigli·
tlon by the United Slates GClY9mment Inlq any unauthorized disclosure of c1assllied Information contained herein.

....

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NATIONAL SECURITY
COUNCIL
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-

PROPOSED ENHANCED INTERROGATION TECHNIQUEs

o The CIA has proposed using a set -of "enhanced interrogation techiriques" in the
interrogation ofhigh~value al Qaeda detainees. The techniques at issue fall into
two cat(fgories (all subject to medical and psychological assessments and close
medical and other monitoring):
.
• "Conditioning techniques"

• nudity
• dietary manipulation (with minimum caloric intake requirements)
• extended sleep deprivation (more than 48 hours but in no event
exceeding 180 hours) (primarily relying on shackling to keep the
detainee in a standing position, or alternaijvely in a sitting or lying
position)
.
• "~orrectiv~ technjques"

• facial slap (not done with sufficient force or repetition to cause
severe pain)
• abdominal slap (not done with sufficient force or repetition to ~ause
severe pain)
.
• facial hold '
• attention grasp

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,

Oun.1NE OF PRELIMINARY ANALYSIS
• The proposed enhanced interrogation techniques are consistent witli the McCain Amendment
• The McCain Amendment prohibits any individual in U.S. custody or CODtro~ "regardless of
nationality or physical location," from being subjected to l'the eruel, unusual, and inhumane
treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the
Constitution of the United States." The Amendment is intended to extend, without regard for
nationality or physicalloeation, the substantive constitutional standards applicable to the United States
under Article 16 of the Convention Against Torture ("CAT'').
• Tile relevant constitutional standard is the llshocks the conscience" standard of substantive due
process under the Fifth Amendment, which entails a c.ontexJ-specific andfact-dependent inquiry into
whether:
o (1) the govemme.nt conduct at issue is "arbitrary in the constitutional sense," meaning that it
involves an "exercise of power without any reasonable justification in the service of a
legitimat~ govertunerital objective" or is "intended to injure in some way unjustifiable by any
government interest;" County ojSacramento v. Lewis; 523 U.S. 833, 846, 849 (1998); and
o (2) in light of"traditionaJ ex~tive behavior, of contemporary practice, and the standards of
blame generally applied to them," the conduct "is so egregious, so outrageous, that it may
fairly- be said to shock the contemporary conscience." Id at S47 n.8.
•

The CIA's'interrogation program is not flarbitrary in the constitutional sense"
because it is limited to what is reasonably necessary to acquire actionable intelligence
to avoid terrorist attack on the U.S. (a vital government interesO, is limited to a small
number of the most high value detainees, and is carefully designed and administered to
avoid injury to the detainees and any suffering that is unnecessary or lasting.

• The DA's interrogation program cannot "fairly be said to shock the
contemporary conscience," although this inquiry is much more subjective and
difficult because of the lack of relevant executive practice either condemning or
condoning the sorts of interrogation practices used by the CIA

,
;

,,

•

AJthough the use of certain interrogation practices has been condemned in other
contexts-including ordinary domestic law enforcement; military interrogations
ofPOWs under the Third Geneva Convention (as reflected in the Army Field
Manual); and the State Department's Country Reports on Human Rights
Practices of other nations--none of these other contexts is particularly relevantor useful in judging the unique context ofthe CIA program.

•

SERE training practice, from which all of the ClA interrogation techniques have
been adapted, is also different from the present context in important respects;
however, the use in SERE of similar and far more coercive techniques on our
own U.S. troops for purposes of training strongly indicates that the use by the
Government of techniques like these is not entirely beyond the pale ofwbat is
permissible executive practice.

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Legal. Prinoiples Applioable to en
Detention and Interrogation of,Captured Al-Qa'ida Personnel

•

The Convention Against Tortur~,and Other Cruel, Inhuman,
and Degrading Treatment or Punishment ("the Convention")
applies to the'Unit~d States only in accordance with the
reservations, understandings, ,and declarations that tpe
United States submitted with its instrument of ratification
of the Convention.
o

The Convention's, definition of torture, as interpreted
by'the U.S. understandings, is identical in all material
ways to the definition of'torture contained in IB U.S.C.
§2340-2340A. The standard for what constitutes torture
under §2340-2340A and under the Convention is therefore
identical. "

o

~he

Convention also provides that ~tate parties are to
undertake to prevent other cruel; inhuman, Dr degrading
treatment or punishment. Because of U.S. reservations
to the C9nvention, the U.S.' obligation to underta~e to
prevent such treatment or punishment extends only to
conduct that would constitute cruel and inhuman
t~eatment'under the Eighth Amendment or would nshock the
conscience" under the Fifth 'and Fourteenth Amendments.
Additionally, the Convention permits the use of such
treatment or punishment iri exigerit circumstances, such
as a national emergency or war.

•

Customary international law imposes no obligations
regarding the treatment of 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
definit~vely establishes what constitutes torture and cruel,
inhUman, or degrading treatment or puni'shment for the
purposes of U.'S. international law obligations. ,

•

CIA interrogations of fo+eign nationals are not within the
nspecial maritime and territorial, jurisdiction~ of the
United States where the interrogation occurs on foreign

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·~.

~//'
territory in buildings that are not owned or leased by or
under the legal jurisdiction of the U.S. government. The
criminal laws applicable to the special maritime and
territorial 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, 18 U.S.C. §244l"and the prohibition against
torture, 18 U.S.C. §2340-2340A .
• 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 TV, the conventions that the cond~ct must
violate in order to violate section 2441, do not apply to
a~-Qa'ida. AI-Qa'ida is a non-governmental international
terrorist organization whose members cannot be considered
POWs within the meaning of the Geneva 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
nsevere physical or mental pain or suffe~ing.N The'absence
of specific intent (i.e., good faith) can be es~ablished
through, among other things, evidence of efforts to review
relevant professional literature, consulting with experts,
reviewing evidence gained from past experience where
available (including experience gained in the course of U.S.
interrogatiqns of detainees), ,providing medical and
psychological assessments of a detainee (including the,
ability of the detainee to withstand interrogation withQut
experiencing severe physical or mental pain or suffering),
providing medical and psychological personn~l ,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-Qa'ida, who are foreign
nationals, does not violate the Fifth, Eighth, and
Fourteenth 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
2,

amendments that could arguably apply to the conduct of
interrogations, do not apply extraterritorially to aliens,
The Eighth Amendment has no application because it appli~s
solely to those pers9ns upon whom ~riminal sanctions have
been imposed. The detention of enemy' combatants is in no
sense the imposition of a criminal sanction and thus the
. Eighth Amendment does not" apply,

,~iAA\

•

Taking all of ·the relevant circumstances into account (such
as the Government's need for information to avert terrorist
activities against the United States and its citizens, the
good faith efforts to avoid producing severe physica~ or
mental pain or suffering, and the ·absence of malicious or
sadistic purPose by those conducting the interrogations),
the use of the teclmiques described below and of comparable,
approved techniques'~ould not constitute conduct of the type
that would be prohibited by the Fifth, Eighth, or Fourteenth
.Amendments even-were they to be applicable.

• The use qf tbe following techniques and of comparable,
approved techniques in the interrogation of al';'Qa'ida
detainees by the CIA does not violate any Federal statute or
Qther law, where the CIA interrogators do not specifically
intend to cause the detainees to undergo severe physical or
mental pain or suffering li.e., they act with" the good faith
belief that their conduct will not cause such pain or '
suffering): isolation, reduced caloric intake (so long as
the amount-is calculated to maintain the general health of
the' detainees) . depriyation 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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Summary of Advice on Interrogations
Advice to the Counsel to the President
In a letter opinion dated August 1,2002, Ole advised Judge Gonzales that the use of an
interrogation technique in the war against terrorism. if it did not violate the United States
criminal statute forbidding tortUre, 18 U.S.C. §§ 234D-2340A, would neither violate the .
interilational Convention Against Torture nor create a basis for prosecution under the Rome
Statute establishing the International Criminal Court The opinion set out the elements of the
criminal statute as follows: "(I) the torture occurred outside the United Stales; (2) the defendant
acted under color of law; (3) the victim was·within the defendant's custody or physical cootrolj
(4) the defendant specifically intended to cause severe physical or mental pain or suffering; and
(5) ... the act inflicted severe physical or mental pain or suffering." The opinion then
concluded that, in view of the understandings about the Convention that attended its ratificatio~
by the United States, the international law obligations under the Convention could not exceed
those under the criminal statute. It further concluded (hat the United States is not bound by the
ICC Treaty, which it has not ratified, and that, in any event, the interrogation of al Qae<ia
operatives and Talman soldiers could not be a crime that would come within the ICC's
jurisdiction, because the interrogation would not be part of a systematic attack against a civilian
population and because neither al Qaeda operatives nor Taliban soldiers are prisoners of war
under the Geneva Convention. The opinion did not examine specific interrogation techniques.
In a lengthier opinion of the same date, OLC expanded on the explanation of the scope of
the criminal statute. It concluded that, to constitute torture, an act must inflict pain equivalent to
that of serious physical injury. such as organ failure. impainnent of bodily function, or death.
Purely mental pain could amount to torture only if it resulted from ODC of the predicate aCt$
named in the statute - threats- of death or torture•.infliction of physical pain amounting to torture,
use of drugs that alter personality, or threats to do any of these things to a third party- and only if
it histcd for a significant dUration (months or years). A defendant would violate the statute only
if he specifically intended to inflict such suffering. The Convention on Torture, the opinion
stated. similarly designates as torture only such extreme measures. The opinion did not review
and approve specific techniques-. Instead, it observed that, in other contexts, courts have tended
to exainine the totality of the circumstances and to find torture wpere the acts in question are
shocking. Finally, the opinion found that the criminal statute would be unconstitutional if
applied in a manner that interfered with the President's authority as Commander~in-Chiefto
conduct a military campaign.

Advice to CIA
In an opinion also issued August 1, 2002, OLC advised the CIA that specific interrogation

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toohniques t if used against Abu Zubaydah t would not violate the criminal statute against torture.
The specific techniques were: a facial slap or insult slap not designed to inflict paint fonns of
cramped confinement (including confinement in a space with an insect ofwhich Abu Zubaydah
is particularly afraid), wall standing that induces muscle fatigue. a variety of stress positions
inducing discomfort similar to muscle fatigue t sleep deprivation t "walling" (in which the subject
is pushed against a wall in a manner that causes a loud noise but no injury), and the "waterboard"
(in which water is dripped onto a cloth over the subject's mouth and nose, creating the perceptio~
.of drowning). These techniques (except for the use of the insect) have been employed on United
States military personnel as part of training and have been found not to cause prolonged mental
or physical harm. Furthermore, an assessment of Abu Zubaydah by the CIA showed that he had
no conditions that would make it likely for him to suffer prolonged mental harm as a result of the
interrogation. With this' background, the opinion conciuded that none of the techniques would
cause him the se¥ere physical pain tllat would amount to torfure under the statUte, particularly
because 'medical personnel would be monitoring: the interrogation. Nor would the techniques
cause the severe mental harm that might amount to torture - a prolonged mental harm resulting
from one of the predicate acts in the statute. The only technique that might involve such an act
was the use of the waterboard, which could convey a threat of severe pain or suffering, but
research' indicated that the technique would not cause' prolonged mental harm and so would not
come within the statute. In any event, the statute would be violated only if the defendant had a
specific intent to cause severe pain or suffering. No such intent could be found here, in part
because, ofthe careful restrictions under which the interrogation would take place.
t

Advice to Department ofDefense
On March 14t 2003. OLe issued an opinion to the Department of Defense about military
interrogation of alien unlawful combatants held outside the United States. The opinion
specifically addressed at Qaeda and Taliban detainees. It considered a wider range of legal
authorities than the opinions for Judge Gonzales.and the CIA but did not assess the legality of
particular techniques, except by way of examples divorced from the specific facts of any
particular interrogation. The opinion concluded that the Fifth and Eighth Amendments do not
apply to the interrogation of enemy combatants outside the United States. It then turned to
several criminal laws. It detennined that interrogation method$ not involviitg physical contact
would not constitute assault, and techniques involving minimal physical contact (pokingt
sl.apping;> or shoving) are unlikely to produce the injury necessary to establish assault. 18 U.S.C.
§ 113. It also dismissed the likelihood. that statutes on maiming, 18 U.S.C. § 114t or interstate
stalking, 18 U.s.C. § 2261A, could apply. It found that the War Crimes Act, 18 U.S.C. § 2441,
co~ld not reach the interrogation of al Qaeda and Taliban detainees because, as illegal
'
belligerents, they do not quali fy for protection under the Geneva or Hague Conventions. The
torture statute, the opinion concluded, would not apply to interrogations withiIi the t~torial
United States or on permanent military bases outside the territory of the United States. It
nonetheless repeated the analysis of the statutory elements as laid out in the earlier opinions, as
well as the analysis of the Convention Against Torture. The opinion went beyond the earlier
TOPSE~mT~~W~ORD

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TOP SECREmC61~~RD
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ones, however, by discussing the Convention's prohibition against cruel, inhuman, or degrading
treatment. It f01md that the United States' obligations in this regard extended only to preventing
conduct that would be "cruel and unusual" under the Eighth Amendment or would "shock the
conscience" Wlder the Due Process Clause of the Fifth Amendment. As to the Eighth
Amendment, it observed that the analysis turns on whether the official acts in good faith or,
inst~d, maliciously or sadistically. Whether any pain inflicted during an interrogation is
proportional to the necessity for its use, for example, would infonn that analysis. Cases on
conditions of confinement also provide "analogUes. There, a violation can be shown only if there
is deprivation of a basic human need, combined with a deliberate indifference to the prisoner's
health and safety. The opinion specifically stated that a briefstay in solitary confinement would
not amoWlt to a violation, nor would insults or ridicule. The "shock the conscience" test, the
opinion stated, is an evolving one, but it noted that rape or beating during an interrogation could
constitute behavior so disproportionate to a legitimate need so inspired by malice or sadism as to
meet the standard. Methods chosen solely to produce mental suffering might also shock the
conscience. But some physical contact - a shove or slap - would not be sufficient. The detainee
"would have to suffer some physical injury or severe mental distress resulting from the
interrogator's conscious disregard of a known risk to the detainee. Finally, the opinion discussed
the defenses of necessity and self-defense that an interrogator might assert if charged with a
crime and found that these defenses might be available under some circumstances.

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IC'O>:#.I..(,;..WORD

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No.

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NATIONAL. SECURITY
COUNCIL
,INFORMATION

~.

Notice
The attached document contains ciasslOed National Security Counc~ Information.
It Is to be read and dlSClUlSed only by persons aulhortzed by law.

Your slgnatul1l acknOwledges you are such a person and you promise you win
show or discuss Information eonlalne<lln the document only with persons who
are authorized by law to have such aCl)8Ss to this document
Persons hanqllng this document ackrl<\W1edge he or she knows and understands
the securlty law I1llaUng !hereto and wiI cooperate fUlly with any lawlullnvesllgation by the United States Goyemmentinio any unauthorized dlsclosul1l of c1asslfled information contained herein.
•

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•. As a matter of law, the CIA interrogation program. which is conducted outside the special"
maritime and territorial jtnisdietion ofthe United states, is not subject to the requirements of
Articlc-16 ofthe Convention Against Torture ("CAT').

o By its tenns, Article 16(1) requires that.the United States "undertake to prevent ... cruel,
inhuman or degrading treatment or punishment" only in "any territory under its
jurisdiction."

o The phrase "any territory under its jurisdiction" cannot be read to reach territory outside the
special maritime and territorial jurisdiction. Indeed, it likely does not extend that far.
• .The CAT uses the phrase "any territory under its jurisdiction" to refer to territory
over which a state may ''take ... legislative, administrative, judicial or other
measures." Art. 2(1). See also S. Treaty Doc. No. 1OQ..20, at 5 (Secretary Shultz)
(explaining that the.phrase "refers to"all places that the State Party controls as
governm«nt authority").
• The CAT uses the phrase "any territory under its jurisdi~onn to refer to areas
where a state exercises jurisdiction based on territorial control, as opposed to
jurisdiction based on other grounds, such as nationality, or regi~tion of ships and
aircraft. See Art. 5(1).

o Article 16's limited territorial reach is confirmed by a reservation,required by the Senate as
a condition of its advice and consent to the ratification of the CAT, under whicb the United
States is "bound by the obligation under Article 16 ... only insofar as the term 'cruel,
inhuman or degrading treatment or punishment' means the croel, unusual and inhumane
.treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to
the Constitution of the United States." This reservation, which was deposited with the
United States instrument ofr"atification, defines the scope of United States obligations
under the CAT.
• The enumerated constitutional amendments do not apply to aliens outside of the
United States. See, e.g., Johnson v. Eisentrager (1950); United States v. CurtissWright (1936) ("[T]he Constitution [has no] force in foreign territory unless in
. respect to our own citizens.").
.
•

•

The ratification history confirms that the reservation was intended to "limit our
obligations under [Article 16] to the proscriptions already covered in our
Constitution." CATHearing, 101st Cong. il (1990) (prepared statement of
Abraham Sofaer, Legal Adviser, Department of State).
.

Although it is a close question, we conclude that the CIA interrogation program, subject to its
careful screening criteria and medical safeguards, would not violate United States obligations
under Article 16 even if that provision applied.

."".,,,-,.,

~r
•

As noted, United States obligations ':lOder.Article 1~ extend only to "the crue~ unusuaJ and
inhumane treatment or punishment prohibited by the Fifth, Eighth. and/or Fourteenth
Amen4meots." With respect to treatment of detainees by the United States Government, as _
opposed to punishment for crimes (which is governed by the Eighth Amendment) or treatment by
state governments (which is governed by the Fourteenth Amendment), the apposite Amendment is
the Fifth Amendment. As relevant here, that Amendment prohibits treatment that "shocks the
conscience,"

o Although it is a close question, we conclude that the CIA interrogation program, subject to
its careful screening criteria and medical safeguards, does not "shock the conscience."
• Under Supreme Court precedent, whether government conduct shocks the
conscience turns primarily on ~ factors: (1) WheP1er the conduct is arbitrary in
the constitutional sense-i.e., '''without any reasonable justification in the service of
a legitimate governmentaJ objective." County ofSacramento Yo. Lewis, 523 U.S.
833, 846 (1998). "[C]onduct intended.to injure in some way unjustifiable by any
government inteI:est is the sort of official action most likely.to rise to the
conscience--shocking leve!." [d. at 849. (2) Whether, considered in light of
"traditional executive behavior, of contemporary practi~e, and the standards of
blame generally applied to them," the conduct "is so egregious, so outrageous, that
it may fairly be said to shock the contempoi1uy conscience." ld. at 847 n.8.
•

The CM interrogation program. subject to its careful screening criteria and medical .
safeguards, cannot be said to be "arbitrary" or "intended to injure in some way
unjustifiable by any government interest."
•

The interrogation program furthers the government's interest in natioaal
security. As the Court has emphasized: "It is 'obvious and unarguable' that
no government interest is more compelling than the security of the Nation. II
Haig Y. Agee (1981), The CIA believes that information obtained through
its interrogation program has "been a key reason why al-Qa'ida has failed to .
launch a spectacular attack in the West since 11 September 2001."

•

The techniques are authorized only as necessary to protect that interest.
o The techniques have been carefully.designed to avoid inflicting
Serious physical or mental pain or suffering, as well any serious or
lasting harm. Medical screening,.monitoring, and ongoing
evaluation further lower any such risk.
o Enhanced techniques are used only on individuals who are believed
to be senior members of al Qaeda, to have knowledge of imminent
terrorist threats against the United States, and to pose a clear threat to
the United States if released. The "waterboard" is used only ifthe
CIA bas credible intelligence that a terrorist attack is imminent, that

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the subject has actionable intelligence, and that other techniques
have failed or are unlikely to yield intelligence quickly.
• Whether, when considered in light of"traditional executive behavior, of
contemporary practice, and tlie standards of blame generally applied to thern," the
interrogation techniques are "so egregiol;1s, so outrageous. that [theyJ may fairly be
said to shock the coIitemP9rary conscience".is a much more difficult question.
Although the interrogation techniques would not be appropriate if applied
indiscriminately or in other contexts, we conclude that the CIA's interrogation
techniques, when carefully limited to those persons who satisfy the screening
criteria and conducted in conformity to the meqical safeguards, do not shock the
conscience.
•. Whether conduct shocks the conscience is an inherently fact-specific
question on which existing precedent provides little guidance. See id.
'"~ Asserted denial [ofdue process1is to be tested by an appraisal ofthe
totality offacts in a given case: That which may. in ·one setting, constitute a
.denial of fundamental fairness, shocking to the univer~aJ sense ofjustice,
.may, in other circumstances, and in light of other considerations, fall short
of such a denial." Lewis, 523 U.S. at 850 (qu.otingBetts v. Brady (1942)).
•

Use of the interrogation techniques in .the context of ordinary criminal
investigations might "shock the conscience." See, e.g, Roehm v. California
(1952) (holding that convicting a defendant based on evidence obtained by
pumping his stomach shocked the conscience); Chavez 1I. Martinez (2003)
(remanding for consideration ofwhether repeated police questioning of a
gunshot wound victim suffering from severe pain mighi shock the
conscience). The govemmentinterest in law enforcement, however, is
different from the government interest in national security and is S!lbjeet to
various .special constitutional limitations including, for example, the
privilege against self·incrimi~ation.

• .The techniques at issue appear to be inconsistent with traditional United
States military doctrine. That doctrine. however, was developed for
traditional armed conflict and is premised on the applicability ofvarious
treaties (~uch as the· Geneva Conventions) that do not apply to the conflict
with a1 Qaeda.
• Each year, in the State Department's "Country Reports on HUOlan Rights
Practices," the United States condemns Coercive conduct employed by other
countries. Altbough some ofthe condemned conduct resembles some oftbe
CIA techniques, the condemned conduct usually goes far beyond the CIA
techniques and would constitute torture under U.S. law (for example, rap~,
severe beatings~ and electric shocks). Further, the condemned conduct is

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often applied indiscriminately or in very different contexts (for example, for
law enforcement or against political opponents).

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• By contrast, the CIA interrogation techniques art~ all adapted from the
military Swvival, Evasion, Resistance, Escape C'SERE") training.
Although there are obvious differences between military training and actual
interrogation, the fact that the United States uses these techniques on its own
troops strongly suggests that these techniques are not categorically beyond
the pale, regardless of context.
•

Given the vague nature ofthe shocks-the-conscience test and the lack 'of precedent in this context,

we cannot predict with confidence whether a court would agree with our analysis. But because of
the'territoriallimitarlon'in Article 16 and the fact that it is ~on-self-executing, we think the
question should not reach the courts.

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NATIONAL SECURITY
COUNCIL
INFORMATION

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Notice

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The anached document contains olasslRed Nallonal S~rity Coonc~ Inlormallon.
It Is to be read and lflscUSSed.only by persons author:lzed by. law.
'(our slgneture acknowledges you are such a person and you promise you wm
show or discuss Informatlon contained In the document only witl:l persons who
e,re aUUiOllzed by laW to have s!JCh acesss 10 this docu11ent.

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Persons handUng lhis doCument acknowledge he or she knows and understands
'he s~rity law rslatilg thereto and wlB <;OOPsrste fully wlth any IaWfullnvesllgallon by the United States Government Into any unauthorized d1solosure of classlned Inlormallon co.ntalned herein.

Access Li·st
DATE

NAME

DATE·

NAME

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OUTLINE OF THREE OLe OPINIONS
•

OLe bas issued three recent opinions for the CIA on the legality of iu interrogation practices.

o The first opinion concluded that the CIA's interrogation tedmiques, considered individually,
are consistent with the federal anti-torture statute, 18 U.S.C. §§ 2340-2340A., as interpreted in
OLC's Dec. 30, 2004 published opinion. lnte"oga!ion Techniques Opinion (May 10, 200S).
o The second.concluded that the combined use of the techniques is also consistent with 18
U.S.C. §§ 2340-2340A Combined Use ()pinion (May 10, 2005).
o The third concluded that the CIA's interrogation practices are consistent with U.S. obligations
under Article 16 ofthe COnvention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment rCAr). Article 16 Opinion (May ~O, 206.5).
• The CIA interrogation techniques at issue fall into three categories (all subject to medical and
psychological assessmenti and close medical ,and other monitoring):
o nCondltionlng tecbniques"-nudity, dietary manipulation (with minimum caloric intake
requirements), and extended sleep deprivation'(more than 48 hours but in no event C?'ceeding
180 hours-) (primarily relying on shackling to keep the detainee in a standing position, or
alternatively in sitting or lying position).
.

a

o "Corrective techniques"-facial slap (not done with sufficient force,Pr repetition to cause
severe pain), abdominal slap (ditto), facial hold, and attention grasp_
o "Coercive techniques"-walling (using a false, flexible wall and a collar to protect against
whiplash), water dousing (with limits on duration and minimum warmth requirements for
water temperature and.ambient air temperature), stress positions (relying on temporary muscle
fatigue), wall standing (ditto), cramped confinement (with time limits of8 hts for large box and
2 hes for small box), and the waterboard (which is sUbject to strict time limits and close
physician supervision, and which may only be used with HQ approval when the detainee is
believed to have actionable intelligence about an imminent terrorist anack and other techniques
have failed).
•

OLe interprets the anti-torture statute to incorporate three legal standanb-i.e., the statute
probibits conduct specifically intended to cause one of tbree types ofharm, as follows:

o "severe physical pain"-whicb OLe concluded means "physical pain that is extreme in
intensity and difficult to endu~";
o "severe physical suffering"-whicb OLe concluded means "a state or condition of physical
distress, ... usually involVing physical pain, that is both extreme in intensity and significantly
protracted in duration or persistent over time"; or
o "severe mental pain or suffering"-wrucb is specially defined in the statute to mean "the
prolonged mental harm caused by' one or more of four predicate aCl$, including (I) the threat
of imminent death; (2) the intentional infliction or threatened infliction of severe physical pain
or suffering; (3) the administration or threatened administration of mind-alterirtg substances or
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. other procedures calculated to disrupt profoundly the senses or the personality; or (4) such
conduct or thfeats directed at anotber person.
• OLe concluded that an intent to cause, "prolonged mental harm" is a separate element
of"severe mental pain or suffering" under the statute, although. depending on the
circumstances ora particv.lar case. the occurrence of a predicate act may give rise to an
inference of intent to cause prolonged mental hann.
• As used by the CIA, none of tbe interrogation techniques, including tbe sbackling used with
sleep deprivation, can be expected to cause, and none could reasonably be considered intended
to cause, <lsevere physical pain" within the meaning of IS U.S.C. §§ 234(l..2340A.
•

With respect to llsevere physical suffering" and "se;vere mental p"aJn or suffering," two of the
CIA teehDique5-the'~a:terboardand extended sleep deprivation (particularly in combination
with other techniques, such as walling and water doulIing}-raille s~blltantlallssues, with tbe
waterboard raising the mOllt difficult issuell; OLC concluded, however, that, subject to all of the
CIA limitations and safeguards, including careful medical monitoring and intervention if
necessary, none of the techniques used by the CIA violates the statute.

o The waterboard involves substantial physical distress, but because this distress is experienced
for only a short period of time, it is not expected to cause, and cannot reasonably be considered
intended to cause, severe physical suffering.
o The waterboard also involves a sensation of drowning, and this sensation may entail a "threat
of imminent death" for purposes ofthe statute; ho»,ever, based on experience with. many
thousands of applications ofthe'~aterboard in SERE training (albeit in a somewhat different
form and under different circumstances), this technique is not expected to cause "prolonged
mental harm" and thus cannot reasonably be considered specifically intended to cause such
harnt
.
o Extended ~leep deprivation of up to 180 hours, particularly in the standing position. may,
depending on the individual detainee, involve substantial physical distress and a risk. ofminor
hallucinations, altbough these effects dissipate rapidly "and an individual is expected to recover
with a single night's sleep; the fatigue and physical effects of extended sleep deprivation,
however, lDay also exacerbate the combined effects of interrogation wben used in combination
witb other techniques, including slaps, walling, stress positions, and water dousing.
• For these reasons, OLe stressed that it is especially important that each detainee subject
to extended sleep deprivation be carefully monitored for any signs of extreme physical
distress or hallucinations, and that the use of the technique be altered or siopped to
avoid any such result.
•

OLe's opinion was also subject to the understanding that other techniques, which
might involve some degree of physical pain, such-as walling, slaps, stress positions, and
water dousing, "would not be used during a course.ofextended sleep deprivation with
such frequency and intensity as to induce in the detainee a persistent condition of
extreme physical distress." Combined Use Opinion at 16.

•

In its May 30 Article 16 Opinion t OLe concluded that Article 16 ofthe CAT, which obligates the
U.S. to take steps to prevent uCTUel, inhuman or degrading treatment OT punishment't in "any
territory under its jurisdiction,Jt is inapplicable as a matter of law to th~ CIA ts interrogation

program.

o By its own tenns, Article 16 applies only in "territory under ['United States] jurisdiction,'" and
such territory includes, at most, land areas over which the U.S. exercises dominion and
control-i.e., areas where the U.S. exercises at least de facto authority as the government; the
CIA's in~errogation program is conducted outside any such territory, and therefore it cannot
violate Article 16.

o Moreover, because of concerns about the ill-defined nature ofArticle 16, the United States
ratified tl,1e' CAT subject to aSenate reservation, which binds the U.S. under Article 16 "omy
insofar as the te~ 'crue~ inhuman or degrading treatment or punishment' means the crue~
unusual and inhumane treatment or punishment prohibited [in relevant part here] by the Fifth
... AmendmeotD to the Constitution."
.
.

•

•

There is a strong argument that the Senate and the Executive Branch intended U.S.
obligations under Article 16 to be co-extensive with the scope qfU.S. obligations under
the relevant Amendments to the Constitution, and the Fifth Amendment bas been held·
-not to create obligations on the U.S. with respect to aliens outside U.S. territory.

•

In light of the geographic limitation that appears in the text of Article 16, however, we
need not decide here the precise effect, if any, that the Senate reservation has on the
geographic scope of Article 16.

Even if we assume, fo r the sake of policy and contrary to the legal determiuation above t that
Article 16 dQes applYt OLe concluded that the CIA's interrogation program would be consistent
with the substantive requirements of Article 16, although there is very little relevant judicial
guidance on this question.

o The relevant constitutional standard is the "shocks the conscience" standard of substantive due
process under the Fifth Amendment, which entails a context~specific andfact~dependent
inquiry into whether:
•

(1) the government conduct at issue is "arbitrary in the constitutional sense," meaning

that it involves an "exercise of power without any reasonable justification in the service
of a legitimate governmental objective" or is "intended to injure in some way
unjustifiable by any government interest," County ojSacramento v. Le:wis, 523 U.S.
. 833, 846, 849 (1998); ~d

•

(2) in light of"traditional executive behavior, of contemporary practice, and the standards ofblame generally applied to them," the conduct "is so egregious, so outrageous,
that it may fairly be said to shock the contemporary conscience." Id at 847 as.

o OLe concluded that the CIA's interrogation program is not "arbitrary in the constitutional

sense" because it is limited to what is reasonably necessary to acquire actionable intelligence to
avoid terrorist attack' On the U.S. (a vital government interest), is limited to a small number of
the most high value detainees, and is carefully designed and administered to avoid injury to the
detainees and any suffering that is unn~essary or lasting.

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OLC also concluded that the CIA's interrogation program cannot "fairly be said to shock the
contemporary conscience," although this inquiry is much II!ore subJective and difficult because
of the lack ofre\evant executive practice either condemning or condomng the sorts of
interrogation practices used by the CIA.
.
• Although th~ use of coercive interrogation practices has been condemned in other
contexts-including ordinary domestic law enforcement; military interrogations of
POWs under the Third Geneva Convention (as.reflected in the Anny FieldManual);
and the State Department's Country Reports on Human Rights Pfclctices of other
nations-none of these other contexts is particularly relevant or useful in judging the
uniqu.e context of the CIA program.
• SERE training practice, from which aU ofthe CIA interrogation techniques have been
adapted, is also different from the present context in important respects; however, the
use in SERE ofsimiJar techniques on our own U.S. troops for purposes oftraining d,oes
strongly indicate that the use by the Government of techniques like these is Dol entirely
beyond the pale of what is permissible executive practice.

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• OLe !ssued threb opinions in Aubllll:i 2002 and lmQtl'1er in M.ar~h 2003 that discussed tbe legal
standards for. i~~.:r~d-et.'iin:{.'C:s, Otlc other opinion) isslle.d in Much 2002, .crmsidered a
retatetitopic. (~
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,

o In a lcttclr opinion dated August 1, 2002, OLe advised JUdg~ Gonzales that fhe-use of
an inteIT()gatiol) tcl:hnique lfi the war a~U1&t terrorism) if it did not vlola.te the United States
cdnunal statute fotbiddlng 'torture. 18 V.KC. §§ 2340-2340A~ 'wouid neither violate "the
intclmltional CoU'rention ,Against Torture {"CAT") nor create a basis for prosecution 'under. the
Rome Statu.te e1>tablishing the Internaticmal Cdlninal Court. {U)

o hl a leu$thier 0l-nnion of the sa.-ne date, OLe expanded on, the explanation of the scope
of the c.riminal statu-teo H oon.cluded that, to constitllte tOTtrtr.e. an act must inflict pain eqtn\latent
to that of serious physical inJI.;ll'Y~ such as -organ failu1'C, .imp"Jrment of-bodHy function, or death. '
Purely mental i")aih cou.ld amount to torture only if it restilted from one of the predicate act,;;
nrtlucd ill the statute fure..'lts of death or tori-ure, fufli(m.on ofphysk"'~l pain arnoundng tfl tarll.m:)
use-ofdrugs fhat ~lter personality, or tlmmts to do any 9fthesc things to ,~ third party - and only if
it lasted for a sig.~ifican.l duration (monfus or yoars). The opinion fon.'1d
. that the -criminal S"itutc
'would \-.le mlcol·IS~itu1io11.al if::Wheo iri a manner that interfered with tlle Prc."idcnt's authority as
com,r1'l.&nder~tn·(r'iefto WndH:f.~t a military campaign. ('0)
-¥

o In an obiniOl1 also IM>Uoo August 1.,2002, OLe advised the erA that s~ci.fic
interrog'<itioIl tec~nique$, if used agwnst Ahu Zubaydah, would not violate the criminal statute
a~\in~t tortm:c. the specific techniques were: a fac.ial slap or insult slap ~lOt dtl-$..ignrAi to "1ntlict
pain, fonns (Jf cramped confu:'leme.nt (including connnem:e.nt in a spa.ce with an insect. of which
Abu Zuhaydah is paiiiculm:iy afraid), waH standin;.~ that induces muscle tJ\tigue, a vari~ty of
stress- posit-it)n~ i~ducitl.g dihcomlbrt similar to ulUs-ele fiitigu.e~ :~:!eep deprivatio1l, '\,,~U,ng" (in
'\-vhich the subjec~ is pushoo against a wall in aman,'1er thatcaus-es 1'. km.d noise but 110 ,inJury).
and the "waterbq.ard'· (in whkh water i~~:== doth over the ~tbjcct' s mouth and nose,
creating the percrptk'l1 of drowning). (~
.

o Oil M'.<)rch 14, 2003, OLe issued an opiuio.n to the Dep,a:ru1lJillt' of Defense ubout
m.l litmy illt0n'og~tio.n of alien, 'unlawful combMa:nts hekl0l1tside rhe lkl..ited States, The opinion
specificaHy adclt,esse.d a1 Qaeda ana Taliban detainees. It considered. a \\>idcr HU1;ge of iegal
aufhQritk* 1h~nl the opi:r-ions r.01' Judge Gonzalc:s- and the CIA. but did not l'lSSCSS the leg.ality (~f
p-artieubr technique-s, except by way of examples divotced from the specific fact..» ofany
particLl1ar h,JerrQgatioll. In addition to repemitlgmuch ofthe analysis from earlier·opinions, this
opinion conclud~.d that the :Fifth Am0ndtmmt does not apply to the intt"ITogati.on of enemy
Gombatants outs:lde t.l:te IJnite-d States, and Eighth Amendment does not ap-ply outside t.\,e conte.xt

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of ~mnishmcnt; that the tortUre statute wouid not apply to interrogations within the territoriai

United States or on p¢rmanent military 'bases olltside the territory of the United StateE:~ and Hmt
the obligations oft'ne United States under the CAT, \\;th regard to theprohlhition against crocl.
inhuman, or degrading treatment, extend only to preventing conduct that would be 'lcruel and
ullttSual" under the Eighth Amendment or would. "shock the conscience" under the Due Process
Clause ofthe Fifth Amendment. ~

o In addition, on March 13,2002, OLe is..o;ued an opinion. to the Department ofDefunse,
concluding that the President has plenary allthority, as Commander in Chief, to transfer to otber
countries :my membert ofthe Taliban militia, al Qaeda,. or other terrorist organizations that the
United Stales anned forces- have captured and are holding outside the United States. (0)
.. The .lengthy opinion of August 1, 2002~ about the scope of the crimintl1-statute is now posted
on the WashingtoR Post's web site. A -drait-memorandum that' a Departm.t.nt of Defense working
group prepared in Marcb 2003 and that, we believe, reflects familiarity \\1th a draft of the OLe
opinion of March 2003 is available on the \\'eb site- of National Puhlic Radii), In. addition, a,dra.."1.
mcmoramiuU"l of OLe from January 2002, dealing with.·the application of the ("nmeva
Conventions to fuil.ed states, apperrrs to have been providetlto Newsweek, as has a Dcce.ltlber 28,
2001 opinion ahout the availability of habeas corpus to detainees at Guantanamo. (U)
., The Inspector General oflhe etA bas written a report about the CLA'5prognlnl using
"eriha.m:cd interrogation techniques." ·We have two basic disagreements with the repart. First,
we disagre..'e ....i th the IG - and \Yith the CIA's Office of General C.ounsel COGe") .... about
'Whether Ole cndnrsoo a set of bullet points that OGCpmrluccd in the ~pting of2oo3,
summ:ui7..1ng legal pdndples that were sai<l to apply to interrogn1tons of detained terrorists
olltside the United Stales. OLe attorne)'s reviewed and comm.ented upon drnfu of these bullet
points. lbe General CmlJlselbeHeves that rhis-procedure amoun~l to OLe's concurrence. As
v,"ol,S made clear to OGC at (I meeting on June 1i, 2003~ OLe doca not view these unsigned.,

undated butlet points as a opinion QfOLC or a statement of its vic."·",s. Second., the IG's report
states that. a.t n meeting oft.he NSC principals on July 29, 2003, til{: Attorney General app..::oved
'"'expanded "USc of the tcclm.iques.." The Attorney General did approve the u.~e of approved
1.e<:hniques Qn detainees other than Ah:l Z! aydah, but the teclmiques were not otherwise
"expanded" in any wWj.

• We expect demands for the release nfw Ol.C opinions lhat have not
Department believes that. these opinions should remain confidential.

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~ '111el:ns1'{~.ctot' G~neTaJ o:f the CIA has written :-\.rt.xporl. l~bOlJt the CIA's program using
'\mhtmce·d inte-rrog,.1timl tet~hnhIues." \Ve have two hask- ~t1sagre~meuts with the -repolt, First,
we disagree with the 1G ..., and with the CIA's OfEceof Ge·neJ.'aI Cou.nsel ('~OC") .... about
wheth.erOLC endorsed a set of bullet poinls that aGe ptoduc·ed. iathe spring of2003,
sl.Unmarizmg legal prindp1es that were said to apply t.o intelTogations of detained terrorists
ou.tside the United SUl-tes. OLe attomeys reviewed "'..nd commente.d upon drails ofthese bullet
p()iats, Th.e Geneml Counsel. beIievles th,at this 'procedure amm'l..'1ted to OLe's concurrence. A.,
wl-lsm.ade cl¢ar to 00('; at a mo-..'"ting on June 17 2003> O.LC d1,,)es not viev/ t.bese unsig;ncd,
undated hullet points as a opinion of OLe or a statement ofits 'li-l.ev;,'s. Second, the JG's ret'rOrt
states that~ at a meeting of the NSC principals on Jlll.y29, 2003, the A.ttomey C':rcnera1 appl'OVt'd.
"expanded. use of the teehniques.'·' The Attorney Gerl.eril dld appnHre the use of l'.pproved.
teehfl.iques on .detainees other fuml Ab1l7Albayuab, hut th.e tedmiques 'I,,;,ere not oiherwisc
"expanded" in any 'Yay, (~ .
j

~ \Ve expect dt:rnands -for the release of the OLe opinions that. .have not
Dep,~rlme-t)t bdieves that these opInions should rernro.n cotlfidenth1.L

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TOP SECRI~T!CIU.iIGST

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Adct.eudum.: Suuunary of Ad-1ice
Advice to the CQunae110 the President
k a lettt.'T opinion dated August 1, 2001, OLe ?..dvised Jndge Go:o~es that the use of all
interrogation technique in the \Var a.gainst terrorism, if it did not violate ihe "United States
crimhml statute forbidding tOrture, 18 U.S.C. §§ 2340~2340A, would tleither violate the
international Convention·Against Torture nor create a. basis for prosecution under the Rome
Statute establishing tbe ,mtemationat Criminal Court. The opinion set out the element" of the
criminal statute as follows: '"(1.) the torture ocewred, olililidc the United States; (2) the defendant
acted under colotof law~ (3) the vktim was within the defendant's custody or physical contrQl;
(4) the defendant specifically intended to cause severephysicllI or mental pain or :.mffering.; and
(5) , .. the act inflicted severe physical or mental pain or mlffering," The opinion then
condud¢d that, in view of the: \mderstandillgs aboilt the Convention that attended its farificatiOJ)
by the Ucited, States, the rnternationallaw obligations nndertb:e ('xmventiol1 could not exceed
·those under the criminal statute. It further concluded that the United States is not bound by the
ICC Treaty. which it has no1 rdtified. and that, inal.'ly event, tbc interrogation of at Qaeda
operatives and Talihan soldiers could not be a crime that would corne within the ICC's
jurisdiction, because the interl'Ogation would not be part of a systentatic attack against a civilian
population and because neither al Qaeda operatives nor Talman sordiers are prisoners of war
under the Gene"'a Comrentiotl. The opinion did not t,..,.am.ine specific interrogation techniques,
In a lengthier opinion oJ the same date, OLe expande,d -on the explanation of the scope of
the criminal statute. Jt conduded tbat~ to constitute torture, all act must inllict pain ~uiva1ent to
that of serious physical injury, Bach as organ failure, impainnent ofbodily function, or death,
Purely mcntal:pain could amount to torture only ifit resulted from one of the predicate acts
named in the statute ..-O1reats of death or tortu~ infliction of physical pain amounllng to torture,
uae of drugs that alter personality, or threats to do any of these things tD a third party -- and only if
it lasted for a significant duration (months or years). A defendant would violate tbe statute onlyifhe speci.fically intended to inflict such suffering, The Convention on Torture, the opinion
stated, similarly designates ao torture only such extreme measures. The opini.on did not review
and .approve sp\.,'cific techniques. Instead, it observed that, in other comextsJ conrts have tended
to ex:amine the totality oftbe circumstances and to find tortUre where the acts in qne.'"iUon arc
shocking. The opinion f~:ntrl.d, that the criminal statute would be uncom~-1itutiona1 if applied 1n a
I.nanner Ihat interfered with the President's authority as Com.tnander~in-Chiefto condm::l a
rniliro.ry campaign, It argued, finatly, that an interrogator·might be able to assert defenses: of
m.><::cssity and sfM-defeuse if cbarged with violating the torture statute.

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hl .m opinion also issued AUgllst l~ 2002, OLC ad'iised the CL!\. that. sp«-:iftc interrogatiol1
t;;.chniques, uusecl against Abu Zubaydoo f w'ould not viol~te the crhninal statute agaim,'t torture, .
'111e specific r.tduri.queswere: a ·fI.\~~hu Ship or insult slap not de-signed to in.met paiu, fOTIllS of
t:ramped confinement (including confmement in. a space v-'1th an insect., ofwhich Abu Zubaydah
is pfu"11q,l1ady afu-rit{), waH standing that indm;cs muscle fatigue, a variety of 5"11\":$ pO$itions
inducing discomfort similar to muscle tatigue, sleep deprivation, '....vaHing" (in which the subje-.;-:t·
is pJshed agai.nst a waH 1n a man.nt..'f that ~~a.lJses a loud noise bu" no injury)., a.nd. the '·"Jat~rboard."
(:in which \-vater is dripped onto a. cloili. over the suhject's mouth and nose.• creating the percept~m
of drowning). The.'>.e techniques (e.'Ccept for the 'Usc of the insect) ~"illve 'been. el'l3p!oyed ori. Uniled
Std.es milita:ry PCTSDlUl.el as part of training and have been fOlmdI'lot. to caUSe prolonged mental
-or physical harm. Furthermore.• au assessment of Abu Zubaydah by the CTA showed that he had
no c(mditio-os that would make> it Hkely fur him to <~uff.er prokmgt:d menta! harm as a TesUlt of tile
:interrogation, Wttlt this hackgrOntld} the opinion t.(m<:·luded that llone ofthe tcdmiqucs wcruld
caUS-0 him the severe physical pain that '\vould amount t.o tOi"U.l1'e lXn{l<~r the sMute. particdady
becm$(~ mod.jc,.\! personnel wO'lud be mOll.ltnring the intell");)gation, Nor \vould the tec·hrtlque,s
C«l.use the severe mental harm that migbt amoUnt ti) torture .... 1\ pl'o.longed mental hann l'cRul.ting
fro.m one of the predicate acts in the statu.te. l1:le only teclmique that might involve such an act
was the use of the waterhoard., whiCh could l>onvey a thr~~t nfsevere pain or suffering, but
resea~\:'b indicated. that the technique would li'{)t. cause prolonged mental hann and so would not
come witbiJl th~ statute. In any ev-cnt, the statute would be violated 01'lty iftlw defendarl:t had. a.
st'1ecific intent to (;ause severe p.,in or st.ffering. No sud.'! intellt cmdd be ftJund het't~, in part
hec·ause (~.fthe careful restrictions undt.'JT which the inte.rrogation would 1~lke ph-ceo

01.1 M1"xch 14, 2003, OLe isSl1ed 1m opinion to the Department ofDef.ense ahout military
intcrrogati<.}H of alien unla'\vful cornhuiants hel.d outs~de th~ United Stater;. The opinion
Speci.fiCtlUY. addressed a1 Qaeda and Taliban detainees, It considere.d .a .",rider range of legal
authori.ties than the opinions fOJ Judge Gonzales and the CV\ but did not a....sess the legality of
.particular techniques exc.~v-t by way ,of exampk~<; divo-rce.d [Tom the specific facts (,)1' .any
pm1:icu[ar mtx."ITogatim.l, The opinion ~{)t!cloot!d that the Fifth A.m.endmt.m.t docs do not apply to
the interrogation of enemy combatants outsidt'.! the United States, and Eighth Amendruent does
not l~pply outside the context of punif<h'mell1. It then tU:."11cd to ~veni! crim.il1f.llaw-s, It"
determined that inteno,g;-ition rndhods not illvolvrng pbysical <xmiact \vou1d not constitute
.",isanit, and techniques involving minimal physical COl)tact (poking, slapping;, ~)r :sho\'.ng) are
unlikely to produce the rrJ my necessary toc,.<;tahlish assault 1g U.S.C § 133. Ii also fOl'Hln it
unii,~ely that stairltes on maiming, 18lJ.S.C. § 114. m:lntexstate staBeing" 18 u.s.,c. § 2.261 A!
Gould apply. It found 1h~u the War ("'rn:u(')S Act, 18 U$.c. § ?A-U~ con1d nDtreaeh th.e
lr>ttJlmgation.of 0.1 QM.,<(a a.'1d Taliban ·detainees because. as illegal belligerents, they do not

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quality tor protectiorl under t.~e Geneva 01' Hague Conventions. The tortllt-e statute. the opiniDn
coudude-d, '\vottld not apply to l:Plen:()'gations \""ithin the territorial United States or on pe..l'nmnent
military bases outside the territ<lry of the tJuitcd State.~, It 'M,nethcless repeated the analysis of
fhe statutory elements as laid out in the earlier opinions.. as we:ll as the analysis of the C-onve·nnon
Agm.'1St Torture. The opinion. went heyond the oarlier ones, boweve.f, hy dJsCll&"ing the
Convention's prohibition <igl.tinm -C'nlet irl1Iuman, or degrading treatment. It found that the
United States' obligations in this reg~'d extended only to preventing cotmduct that wonln be
«t-'mel and unullual" under the Eigrl1h Amendntent or would '\'1hock the t~onsdence" under the
Dm) .Process Cl:ause of fhe :Fi1'th Amendment. As to th~ Eighth Amen.dment, .it observed (h8.1 the
lmilysis 'lmw on whether-the official acts in good t~1itl\ Of} bstead, lnluk.iously or sa.disti.caJly.
Whether any pain infli.ctcd during an interrogatiQllis. propo.rt1A:maJ to the Uli.lCeSSlty for jt.~ use, for
£-xampk.. would inform thut analysis.. Ca.s;eg on -conditions of confinemei.rt also provide .
~ma~ogltt.'S. There, a violation can be shown only if there is depri,raHon. of a hasic bU.''UaIl need,
comhine-d w·ith a deliherate lnd.ifTerencc to the p.risoner's ht.~th and safety. The l\pinion
i;~ci_fi>ca11y stated. tbat a hri.cf stay in 'solitary COnfinellle:nt wewd fK'lt .amount to a violation, nor
would iUillilt8 or ridicule. The "shock fuc conscien~e" test1 the opinion stated. is an evolving one,
but it noted tnllt .ra.pe"'or beating. during all inttlITogatiou could constitute beha'rior so
di.spf{"'P~)rtio:nate to a legitima.te need so iMtl'ited by rmuice ot' ~adis;rl'l ~~5 to m.eet the stand;;u\1.
Method.~ cJlOsen solely to produce munta'l suffering 'might also shoCk the cOllscience. .Bnt some
pnyskal contact·- ~ shove s:lap·.· >>\'nuld no1' be l'iuffici.ent. The d.etainee \V(lUtd have to sufter.
some physical injlll)' or seve'l'l'.t mental distress resulti11.g fh')m the intcrrogat(}r'~ c(j!l&dou~
disreg;,rrd of ., kl10\Vl1 risk to tbe detainee, Hmdly, the opin.km dise.t~'a1 the defenses of
nece.ssityand sclf..defeuf:e that an int0..'t'fogator·might as.'lert i.fcharged. V.'itll a cTI'l:ne aild f<:n.nu.1 that
these defenl1;t':s might he <lvf.\ilabk~ undor some c:ircumstances.

or

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...('''lO,FnRN
-~MEMORANDUM
{

~

To:

'.Mr. John HelgeI'$on,
fu~~~G~~~C~tr~furelli~reA~~

From: Jack Goldsmith III
Assistant Attorney

OM-

Gena;;;, Office ofLeg~ Counsel

Date: June 18, 2004
Re:

"Special Review: Counterterrorism Detention and Interrogation Activities"

As I m~tioned in my letter ,of25 May 2004, the DepartD1ent ofJustice has
recently had its first opportunity to reviewyout report concerning'the CIA's program of
eIib.anced interrogation techniques. A1? a result of our review, we have concerns with two
areas of ambiguity or mistaken characterizations in the report I am. writing, therefore, to
request that you make some modifications to the report to clarify ambiguities or correct
what we believe to be mistake:Q cb~t~ations.
,,'---t.' ~

."-

The first area of concern rei~te~'to '~'meeting of select National SeCurity COlmci1
on"July 29,2003. The Report states that at this meeting the Attorney General
approved of "expanded use" of enhanced interrogatio:Q' ~echniques. The r~ference to
"expanded use" oftecbniques is somewhat ambiguous. In context, it ,appears to mean
simply the use of approved techniques on other detainees in addition to the particular
detainee (Abu Zubaydah) expressly addressed in an OLC opinion to the Actiilg General
,Counsel, John Rizzo, on August I, 2002. If tlJ,at is the intended meaning, the statem.~t in
,fue Report is entirely correct. .ID. the attached addendum, therefore, we suggest some
'
minor revisions to clarify this point.
P$.eip~

On the second issue, OLC disagrees with the CIA's Office ofGeri~,COllDSel
(OGe). The disagr.:eym~t revolves aro1ll'ld the statUs of a document containing a set of
bullet points'outlining legaJ prindples and entitled ''Legal Principles Applicable to CIA
Detention and Interroga1;ion ofCapfured Al-Qa'ida Personnel." The bullet points were
drafted by OGC in consultation with OLC attorneys in the Spring of2003. There is no ,
dispute that OLC attomeys review~d and provided comments on several drafts of the
bullet points. fu OGC's view, OGC secured. foimal OLC cQncurrence in the' bullet points'
and thu$ believed that the bullet points reflected a formal statement of OLC's views of
-the la~. OLC's view, however, is that the bullet pomts - wlllch, unlike OLC opinions,
~ not signed Cir dated - were not and are not an opinion frOD;1 OLC or formal statemeI;lt
of views. OLe als~ believes that the status ofthe bullet points was made clear at a

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meeting on June '17. 2003 sooIi after the Deputy Assistant Attorney General with whom .
.OGe bad consulted on the bullet points' had departed from the Department ofJuStice,

IlHlJiy event, when OGC. pursuant to a recommendation from your Report,
sought an opinion from OLC confuming the conclusions outlined in the bulletp.oints, the .
disagreement concerning the statuS of the bullet points became clear. As a result, I am
suggeSting revised language for the Report that I believe would accurately reflect the
riri.sunderstanding that arose concerning the bullet points.

I understand that you have already forwarded the Report in :final form to the DCI.
Where, however, the actions of another Department are described in the Report; where no
personnel from that Depa.rtment were interviewed in the preparation ofthe,Report; and
where that Departinent had no opportunity to comment on the Report in drafHorm we
believ~ that it would make sense for your office to consider making the proposed
revisions.
.

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ADDENlJUM

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• p. 5, V10 Afterrefen:ingto the fr<quency of use of the waterl>oard, this
pllI1lgiaph states that "[i]he Agency, oii 29 July 2003, secured oral DoJ
concUrrence that certain deviations arc·Dot slgnificant for pmposeS ofDoJ's legal
oP~ons." To make clear fhatthe '.'certain dCviatjons" refcncd tobere arethe
.. frequ.ciicy 'ofuSe afthe waterboard,. we.recommend the followiDg change~ StIike.'
t;ht: last se.lJtence afthe paragraph and replace with the following two se:nteneeS:
"1b July 2003, ~lCcled PrincipalS bfllie National Security Council,
'mcluding-the Attomey.()meral, were briofed conceming the JlUlllbetof
times the waterboard 'b.acI bUn administered to ccrtaiD detainees. The
AttoIIiey General exp:ressed tb~ view that, while appropriate C3111ion
.Should be ""eteisediI1 themiInber of times the_oald was
administered, the repetitions descn'bed did not contravene the principles
underlying DOl's August 2002 opiniOo."
p. 7, V17 Insert after the pbrase ''has been subjectto DoJlegal review" the
following: ", as described elsewhere in this Report,".

•

• p. 20.141 Insert the phrase, ''the torture provisions of' be~ the word
''violate'' and the phrase "the Torture Convention." It is clear ~m the cqntext of
this letter, which never discusses any provisions oftbe ConventiciD acept those
addressing torture. that it is m~ to address only the torture provisions.
pp. 22-23, 144 This paragraph addresses the bullet points and we recommend
two revisions.

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1). Strike the seoteooe that reads, "AccordiDg to OGC, this analysis was fu1Iy .
coordinated with and drafted in substantial part by OLe." Replace it with .the
following: 'Ths analysis was drafted by OGC in constiltation with attorneys from
OLe."
2). The last sentence of the paragraph contains two points ofcpncem. Fi+st..
touching upon the point of disagreement between OGC and OLe, it sugg~ts that
the bullet points constitute formal views oftbe Department ofJustice. Second, it
has the po.tentially sweeping and unqualified statemeot that the meaDing oftbe
bullet points is that the reasoning oillie 1 August 2002 OLe opinion "extends
!>wond . .. the conditions that were specified in that opinion." We therefore
recommend striking the last sentence ofthe paragraph and replacing it with the
folloWing:

.

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[
TOP~{

1

JNOFORNIIMR

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. , . ·"OOC has explained that it beIieV~d that the document reflected a-formal
statement Of Views from OLe .on tli~ topics addressed. OLC, however, has sj:a~ed
that itdo,e$'not,consider that document, which'.(nnlike OLC opinions) is Poot date;d ':
: ar.signe~eithefto he an'OLe'opinion or to reflect formal OLe advice. OLG!'t&i
also.,stated that it has riot fully aDalyzed or evaluated some ofthe legal positions
set forth in the docuinen.t.'~ -

• p. 24;' ~ 48 This paragraph contains :the ambigtious statement.that the Attorney'
General "approved of the expanded use ofvarious Errs." To clarify what we
'believe to be the iJ+tendedmeaning'here, we recommend the following revisions..
1). Strike the phrase "to include:the expanded use ofBITs" from the end ofthe
first sentence.
.
2). .J;nsert the following sentence after the first sentence: "Specifically, the
Principals were briefed concerning the number of times the waterboarclhad been
administered to certain detainees and concerning the fact that fue pro gram had
been'e4,Pande<t"to detainees other than the ,individual (Abu Zubaydah) who had.
been the subj~ of specific Dor advice in August 2002."
3). "Afterthe sentence beginning "According t'? a Memorandum far the R~ord
prepared by the General Counsel." insert the following: "'Specifically, the
Attor;p.ey General expressed the view that the< legal principles reflected iIi DOr S
specific original advice< could appropriately pe exten,ded to allow use ofthe same
approv~ techniques' (under the same conditions.and subject to the same
safe~)·tc;l other individuals besid~ tlle subj~t ofDOI's specific original
advice.' ~e Att9mey Ge,ner;ti also expressed the vie?, that, while appropriate
ca'!J.!ion s~ou1d be exercised in the p.mnber oftimes thewaterboard'was
ac4ninistered, the repetitions described did not contravene the principles
underlying Dors August 2002 opiriion." '

In !lddition, this paragraph states that "the senior officials were again briefed
,regardipg the .CTC Program-on 16 Septemb~,20'03.'· That statement seems to
suggest that the same officials who were p1'esent at the 29 July meeting were als9
present at PJ-e 16 September meeting. The Attorney General, however, was not
·present- at the m~eting on 16 SeptemPeI", nor was any official of the Depa,tinient of
Justice.
We r~uest
that the sentence be .modified
to read: "senior officials, not
.'
"
\ '
including the Attorney General, were again 1;lriefed .. .n.
•

pp. 44--45, '99 For reasons already explained, we recommend the following
change:

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l). Delete the second to last sentence. Insert at the start ofthe last sentence ','In
July 2003." Finally, insert after the last sentence the following: "The Attorney
General expressed the'view that, while appropriate caution should be ~xercised in the
nUi'tlber'oft;pnes the waterboard was administered, the repetitions described didnot . ,
contraV'ene the prip:6iples underlying DOI's August 2002 opinion."

.~;:''!!.-"

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p. 95,1234 Insert tIle following before'the last sentence: "The General
Counsel's statement is consistent with the 2003 document drafted by OGC in
consultation with OLC. In the General Counsel's view, he had understood, :ip.
good faith, that this document represented OLC's opinion on the subjects it
addressed. OLC has stated iliat it does not consider that document, ,which (unlike.
an OLC opiilion) is not dated or signed, either to be an OLC opinion or to reflect
formaI OLC advice. OLGhas also stated that it has not :fully analyze~ or
evaluated some ofthe legal positions set forth in the document."

•

p. 101, ~ 254

1). -Insert the following after the third sentence: "Specifically, the officials
were briefed concerning the number of times the waterboard had been
administered to certain detainees and concerning the fact that the program had
. lJeen expanded to detainees- other tJWn the"individual (Abu'Zubaydah) who
had been the :suhj~t of specific DOJ advice in August 2002.'"
2). Replace the :fihal sentence with the following: "At that time, the Attorney
General expressed the view that the legal principles reflected in DOl's
specific original advice could appropriately be ~xtended to allow use ofthe
same approved techniques (under the s!U1le conditions and subject to the same
safeguards).to other individuals besides the subject ofDOr's specific original
advice. The Attorney. G~eral also expressed the view that, while appropriate
caution should be exercised in the nmnber oftimes the waterboard was
administered, the repetitions described did not contravene the principles
urlderlymg DOl's August 2002 opinion."
•

p. 101,1255: replace the phrase ''has been subject to Dol legal reYiew' to "has
been subject to the DoJ legal review descn"bed elsewhere in 'this Report"

•

Appendix B.
o 2002 August: Change "would not violate US law" to ''would not violate
18 U.S.C. §§ 2340 - 2340A or the prohibition on torture in the Convention
Agaiilst Torture."

•