Olc Memo for Rizzo Application of War Crimes Act Detainee Treatment Act and Article 3 7-20-07
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FRO~ SIT: 15 DOJ (FRI>JUI. 20 2007 15:Ce/ST. 15:08/NO. 6teC"29776? S USDOJ Seal Department of of Justice Justice U.S. Department of Legal Counsel Office oftegal Office of thePrincipal Deputy Assistant Attorney General Office ofthe Principal DeputyAssistant Wllshfngkm. Washington.D.C. D.C.l053() 20530 July 20, 2007 JOHN A. A.RIZZO RIZZO . MEMORANDUM FOR JOHN ACTING GENERAL COUNSEL, CENTRAL CENTRAL INTELLIGENCE INTELLIGENCE AGENCY AGENCY i Re: Application of theWar WarCrimes Crimes Act, Detainee Treatment Act,Common and Common Application ofthe Act, the the Detainee Treatment Act, and ArticleArticle 31 3 of the Geneva GenevaConventions Conventions Certain Techniques that Be MayUsed Be Used theinCIA ofthe to to Certain Techniques that May by theby CIA the in the I ofHighValue Value Qaeda Detainees Interrogation Interrogation ojHigh alal Qaeda Detainees II asked whether the the Central Central Intelligence Intelligence Agency Agency may may lawfully lawfully employ employ six six You have asked . techniques" in the interrogation ofhigh value detainees who are "enhanced interrogation techniques" I members of al aJ Qaeda and associated groups. Addressing this question requires us to determine detennine whether the proposed techniques are consistent with (1) (1) the the War WarCrimes CrimesAct, Act,as asamended amendedby byth~ the, of 2006; (2) the Detainee Detainee Treatment Act of2005; of 2005; and and (3) (3) the the Military Commissions Act of2oo6; ! requirements of Common Article 3 of of the the Geneva Geneva Conventions. Conventions. ~equirements ~ I I As the President announced on 2006, the on September 6, 6,2006, the CIA has. has operated aa detention an~ and interrogation program since the months after the the attacks attacks of of September September II, 11,2001. The CIA has 2001. The CIA has detained in this program several dozen high value terrorists terrorists who whowere were believed believed to to possess possesscriti~ critical attacks, including including by by leading leading to tothe the j in.preventing preventing future future terrorist terrorist attacks, information that could assist in. of other senior al Qaeda operatives. operatives. In interrogating a small number ofthese of these terrorists, terrorists, I capture ofother as an an"alternative "alternative set set ofprocedures"-and of procedures"—and what what tlie the the CIA applied what the President described as Executive Branch internally has referred to as "enhanced "enhanced interrogation techniques." techniques." These These Ex:ecutive CIA, were approved by the Director ofthe I techniques were developed by professionals in the CIA, CIA, and were employed under strict conditions, including careful supervision and monitoring, " CIA., in a manner that was detennined determined to be safe, effective, and lawful. The President has has stated stated that. that of such techniques has saved American lives by by revealing revealing information information about about planned planned i the use of terrorist plots. plots. They have been recommended for approval by the Principals Committee of the i National Security Council and briefed to the full full membership membership of the the congressional intelligence committees. . i I I ------------------------- .- FROM SIT~ 15 OOJ (FIlI)JUL - 20 -----------------------. 20C7 15:08/ST. i5:0S/NO. 616042Q771$" on September 6, 6,2006, Prior to the President's announcement oli 2006, fourteen detainees in CIA locations where wherethey theybad had been been held held and andwere were custody were moved from from the secret location or locations transferred to the custody ofthe of the Department ofDefense of Defense at the U.S. Naval Base at Guantanamo Guantanamo CIA custody custody under under this this program. program. Now, Now, however, however, the the II Bay, Cuba; no no detainees detainees then remained in in CIA CIA expects to detain further high value detainees detaineeswho whomeet meetthe therequirements requirementsfor forthe theprogram. program, and it proposes to have six interrogation techniques available for use, as appropriate. The CIA has detennined determined that thes~ these six techniques are the the minimum necessary to to maintain an effective effective I program designed to obtain critic~l critical intelligence. . I wi~essed I months have witnessed significant significant changes changes in in the the legal legalframework framework The past eighteen months Qaeda. The Detainee Detainee Treatment Treatment Act ActeDT ("DTA"), whichth~ the applicable to the armed conflict with al Qaeda. A"), which President signed on December 30,2005, f 30, 2005, bars bars the theimposition impositionof of"the "thecruel, cruel,unusual, unusual, [or] [or] the Fifth, Eighth, Eighth, and and Fourteenth Amendments! Amendments;I inhumane treatment or punishment prohibited by the to the United States Constitution" Constitution" on on anyone anyone in in the the custody custody ofthe of the United United States States Government, Government, ; regardless of of location or nationality. The President had required United States personnel to I matterofpolicy of polity prior priortotothe theenactment enactmentof ofthe the I follow that standard throughout the world as a matter DTA; of law/11 DT A; the DTA requires compliance as a matter of]aw: On June 29, 2006, the Supreme Court 126126 S. Ct. 2749 29,2006, Court decided decided Hamdan Hamdanv.v.RumsfeM, Rumsfeld, S. Ct. 2749 (2006), holding that the military commissions established by the the President President to totry tryunlawful unlawful enemy enemy of war, which at thetime time was a general requirement combatants were not consistent with the law ofwar, of the Uniform Military Justice. the Geneva ofthe Uniform Code of ofMilitary Justice. Common Common Article Article 33 of ofthe Geneva Conventions Conventionswas was aa I part of the applicable law ofwar, of war, the al Qaeda j th~ Court stated, because the armed conflict with al Court's ruling ruling was was contrary to to tb~ the constituted a "conflict not of an international character." The Court's President's prior determination that Common Article 3 does does not not apply apply to to an anarmed armed conflict conflict j across national boundaries with an inte~tional international terrorist organization such as al Qaeda. See See ! Memorandum ofthe of the President Re: Humane HumaneTreatment Treatmentojal ofalI President for for the National Security Council, Re: Qaedaand andTaliban TalibanDetainees Detainees 2 (Feb. 2002). Qaeda at at 2 (Feb: 7, 7, 2002). . . The Supreme Court's decision concerning Article 3 Concerning the applicability of Common Aniele introduced a legal standard that had nC?t not previously applied to this conflict and had only rarely been interpreted in past conflicts. While directed at conduct that is egregious and universally some could could condemned, Common Article 3 contains several vague and ill-defined terms that some United States intelligence personnel to have interpreted in a manner that might subject tlnited unexpected, post hoc standards for their conduct. conduct. The War Crimes Crimes Act Actmagnified magnified the the significance of any disagreement over the meaning meaning of these these terms terms by by making making aa violation of Common Article 3 a federal crime. 1 1 this policy, policy, this thisOffice Office concluded concludedseven sevenmonths monthsbefore beforeenactment enactmentof ofthe theDTA DTAthat thatthe thesix six Reflecting this the substance of U.S, U.S. obligations under Article 16 enhanced interrogation techniques discussed herein complied with the'substance of the Convention Against Tortw'e Torture and Other Inhuman or Degrading ~reatment, Treatment, 1465 1465 U.N.T.S. U.N.T.S.85 85("CA ("CAT"). See ofthe T"). See Memorandum for John A. Rizzo, Senior Senior Deputy Deputy General General Counse~ Counsel, Central Central Intelligence Intelligence Agency. Agency,from StevenG. G. i MemoI3Ildum A Rizzo, from Steven Attorney General, Office Office of of Legal Legal Counsel, Counsel,Re: Re:Application ApplicationofUnited of United States Bradbury, Principal Deputy Assistant Attomey Statesj ObligationsUnder UnderArticle Article1616ofthe oftheConvention Convention Against Torture to Certain Techniques thatBeMay BeinUsed Obligations Against Torture to Certain Techniques that May Used the in the Interrogation of HighValue Value01alQaeda Qaeda Detainees (May Interrogation ojHigh Detainees (May 30,30,2005). 2005)_ I 2 4 FROM SITE;6 DOJ (FRI)JUl. ~ 20 2007 16:C8/ST.15:08/~0.6160"29770P CI~ I The The President President worked with with Congress Congress in in the the wake wake ofthe of theHamdan Hamdandecision decisiontotoprovide provide clear legal standards for U.S. personnel detaining and interrogating terrorists in the armed conflict with at the enactment ofthe of the Military Commissions Act Act al Qaeda, an objective that was a~hieved achieved in the of2006 s.C. of 2006 ("MeA"). ("MCA"). Of most relevance here. here, the the MeA MCAamended amended the theWar WarCrimes CrimesAct, Act, 18 18U. U.S.C. § 2441, 2441, to to specify specify nine nine discrete discrete offenses offenses that would would constitute grave grave breaches ofCommon of Common Article 3. 3. See See MCA § 6(b). 6(b). The The MeA MCAfurther further pnplemented implemented Common Common Article Article 33 by by stating stating that. that the prohibition on crue~ DTA reaches conduct, outsid~ theDTA outside cruel, inhuman, and degrading treatment in the of the grave breaches detailed in in the the War War Crimes CrimesAct, Act,barred barredby byCommon CommonArticle Article3.3. See Seeid id .1 ofthe 6(c). The TheMeA MCA left left responsibility responsibility for for interpreting interpreting the the meaning meaning and and application of Common I § 6(c). Article 3, except for the grave breaches defined in the amended War Crimes Act, to the . I President. To this end, the MeA MCA declared the Geneva Geneva Conventions judicially unenforceable, se~ see, id § 5(a), 5(a), and expressly provided that the President may issue issue an an interpretation interpretation of the the Geneva Ij Conventions by executive order that is "authoritative .... . . as a matter of United States law, law. in thel same manner as other administrative regulations." Id § 6(a). 6(a). This This memorandum applies these new legal developments to the six interrogation techniques that the CIA proposes to use use with with high highvalue valuealalQaeda Qaedadetainees. detainees.22 Part PartIIprovides providesaa brief history ofthe of the CIA detention program as well well as as aa description description of of the the program's program's procedures, procedures, safeguards, and the six enhanced techniques now now proposed proposed for for use use by by the the CIA CIA. Part Part II II addresse~ addresses the II the newly amended War Crimes Act and concludes that none none of of its its nine nine specific criminal 2 1 This memorandum addresses the compliance ofthe interrogation techniques with the !he two two , of the six proposed interrogation issue. We We previously previously have have concluded concluded that that these these techniques techniquesdo donot notviolate violatethe the i statutes and one treaty provision at issue. torture, codified at 18 18 U.S.C. U.S.C. §§ §§2340-2340A. 2340-2340 A. See SeeMemorandum Memorandumfor forJohn JohnA. A.Rizzo, Rizzo,Senior. Senior. federal prohibition on tor1llre, G. Bradbury, Principal Deputy Assistant Deputy General Counsel, Central Intelligence Agency, from from Steven G. Re:Application Applicationofof1818Us.c. U.S.C. §§ 2340-2340A to Certain Techniques Attorney General, General, Office ofLegal of Legal Counsel, Re: if 234(J..2340A to Certain Techniques th4t that Attomey May Be Be Used Usedininthe theInterr()gation Interrogationofa of aHigh High Value al Qaeda Detainee 10,2005) ^Section Opinion"); May Value al Qaeda Detainee (May(May 10,20(5) r'Section 23402340 Opinion"); see ste also Memorandum Memorandumfor for John John A. A.Rizzo, Rizzo,Senior SeniorDeputy DeputyGeneral GeneralCounsel, Counsel,CentIal CentralIntelligence Intelligence Agency, Agency,from from Sleven Steven G. G. a/so Bradbury, Principal Principal Deputy Deputy Assistant Assistant Attorney Attorney General, General, Office Office of ofJ8 18 Bradbuty, ofLegal Legal Counsel, Counsel, Re: Re: Application Application 0/ ; U.S.C §§ 134D-234OA 2340-2340Ato tothe theCombined CombinedUse Use of Certain Techniques the Interrogation of High al Qaeda U.s.c. o/Certain Techniques tn /heininterrogation o/Hlgh Value Value at Qaeda 'I' Detainees(May (May10, 10,2005) 2005)("Combined ('CombinedUse") Use'1(concluding ) (concluding that combined these techniques would Detainees that thethe combined useuse ofof these techniques would notnot . j torture). In additioIl,we addition, we have havedetermined determinedthat thatthe theconditions conditions0/ ofconfinement confinement the violate the federal prohibition on torture). inin th~ Article 3, 3, and and we we do do not notaddress addressthose thoseconditions conditionsagain againhere. here. CIA program fully comply with the DTA and Common Article See Memomndwn Memorandum for John A A. Rizzo, Rizzo, Acting General General Counsel, Counsel, Central Intelligence Agency, Agency, from Steven G. G. See Assistant Attorney General, Office ofLegal of Legal Counsel, Application0/ ofthe theDetainee Detainee TreatmentBradbury, Acting Assistant CoWlSel, Re: Application Treatment! Act to to Conditions ConditionsofConfinement of Confinement of Central Intelligence Agency Facilities 31,2006); Letter to John A. Rizzo, ofCentrallnte/ligenqeAgency Facilities (Aug.(Aug. 31, 20(6); Letter to John A. Rizzo, Acting General Counsel, Counsel, Central Central Intelligence Intelligence Agency, Agency, from from Steven Steven G. G. BradbUl)', Bradbury, Acting Acting Assistant Assistant Attorney Attorney Oenenil, General, Acting Re: Application ApplicationofCommon of Common Article to Conditions of Confinement at CIA Facilities Office of of Legal Legal Counsel, Counsel, Re: Office Article 3 to3 Conditions ofConfinement at CIA Facilities (Aug. 31, 31, 2006). 2006). (Aug. . i ~pinions, ~ I questions we we discuss in in this this memorandwn memorandum fully address the . Together with our prior opinions, the questions to the the lawfulness of the CIA CIA detention and potentially relevant sources of United Umted States law that Chat are applicable to i program. We understand understand that the the CIA CIA proposes proposesto todetain detainthese these persons personsatalsites sitesoutside outsidethe theterritory territory of of interrogation program. ("SMTJ"). as' as the United States and and outside the SpeGial Special Maritime and Territorial Jurisdiction of the United States ("SMTf'). the defined in 18 IS U.S.C. U.S.C. §§ 7, 7, and and therefore therefore other other provisions provisions in title tide 18 18 are arenot notapplicable. applicable. In In addition, addition, we weunderstand understand I defined that the the CIA CIA will will not not detain detain in in this this program program any any person person who who is is aaprisoner prisoner of of war war under under Article Article 44ofthe of theThird Third Geneva Geneva that Convention Relative to the Protection of Prisoners of War, 6 U.S.T. 3316 (Aug. 12,1945) ("GPW") or a person Convention Relative to the Protection of Prisoners of War, 6 U.S.T. 3316 (Aug. 12, 1945) ("GPW") or a person covered by by Article Article 44 of of the the Fourth Fourth Geneva Geneva Convention Convention Relative Relative to to the the Protection Protection of of Civilian Civilian Persons Persons in in Time Time of of I 'covered War, 6 U.S.T. U.S.T. 3516 3516 (Aug. (Aug. 12, 12,1949) C'GCV"), and and thus thus the the provisions War,6 1949) ("GCV"), provisions of of the the Geneva Geneva Conventions Conventions other other than than Common Article Article 33 also also do do not not apply apply here. here. Common i i 3 5 (FRI)JIJL 2::: zoe7 15:C8/ST. H;:08/~~O. 616c-'ze77e p ~ I offenses prohibits the six techniques techniques as as proposed proposed to to be be employed employed by by the theCIA. CIA. In InPart Partill, HI,we we consider the DTA and conclude that the six techniques as proposed to be employed would techniques as proposed to be employed would satisfy satisfy its its requirements. requirements. The War Crimes Crimes Act and and the the DTA DTA cover cover aa substantial substantial measure measure ofthe of the conduct! conduct ! prohibited by Common Article 3; with the the assistance assistance of of our our conclusions conclusions in in Parts Parts IIII and and III, III, Part IV explains that the proper interpretation ofCommon of Common Article 3 does does not not prohibit prohibit the the U~ United the CIA's proposed interrogation techniques. States from from employing the I I To make make that that determination determination conclusive under United States law, law, the President may exercise his authority under the Constitution and the Military Commissions Act to issue an We understand that the I' executive order adopting this interpretation ofCommon of Common Article 3. We President intends to exercise this authority. We have reviewed his proposed executive order: authority. have his The executive order is wholly consistent with with the the interpretation interpretation of Common Article 33 provided iI herein, ofthe order's! herein, and the six proposed interrogation techniques comply with each of the executive order's i terms. te~. I. f A. The CIA now proposes to operate a limited detention and interrogation program pursuant pursualit CIA to the authority granted by the President to The CIA does not long-term detention, or to serve a purpose similar to that of intend for this program to involve Jong-tezm ofthe U.S. Naval Base at Guantanamo Bay, Cuba, which is in part to detain dangerous U.S. dangerQUS enemy ! who continue to pose a threat to to the United United States, States, until until the the end of the armed combatants, who conflict with al Qaeda or until other satisfactory arrangements can be made. To the contrary, tije the CIA currently intends for persons introduced into into the the program program to to be be detained detained only so so long long as as is/ is the i necessary to obtain the vital intelligence they may possess. possess. Once that end is accomplished, the CIA intends to transfer the detainee to3the custody of other entities, including in some cases the States Department Department ofDef~nse.3. of Defense. United States I ~;lh""" This (.",wI. formula has has _been follow'" followed with regard (0 to .one person hdd held .. in CiA CIA .custody since the the1'<_', President's ,3 nus . . .,..,.. . . - since I September 6, 6,2006 remarks d1.Uing during which which he he announced announced that that the the program program was was empty empty at at tbat that time. time. The The CIA CIA took took I' September 2006 remarks ~ 4 ._-------"._.. _---_._-_._-~. ~--- 8 FROM SITE 15 DOJ (FR I) JUL 20 2C07 ; 5 :C8/ST. 15 :OB/NO. lit eO~2977e p thegroupofpersonstowhomtheCIAmayapplyinterrogationtechniquesalso limited :ven as 0 detainees who IA does oes notproposed propose totouse who meet meet that that standard, standard, however, however, tbe the ClA useenhanced enhanced . interrogation techniques unless the CIA has has made madethree threeadditional additionaldeterminations. determinations. First, First,the theel CIA must conclude that the detainee is a member or agent of at al Qaeda or its aff"Uiues affiliates and is likely to possess critical intelligence of high :value value to the the United United States States in in the the Global Global War War on Terror, Terror, as as I of the CIA must determine that enhanced further described below. Second, the Director ofthe i interrogation methods are needed to obtain this i this crucial crucial information information because because the the detainee detainee is is withholding or manipulating intelligence or the threat of insufficient time tim~ of imminent attack leaves insufficient . for I for the the use use of of standard standard questioning. questioning. Third, Third, the the enhanced techniques may be used with a particular detainee only if, in the professional judgment of ofqualified personnel, there there are are qualified medical personnel, no significant medical or psychological contraindications for their use with that detainee. 1. i. The The program program isis limited limited to to persons persons whom whomthe theDirector Directorofthe of theCIA CIAdetermines determinestotobe beaa member of or a part of or supporting al Qaeda, the Taliban, or associated terrorist organizations and likely to possess information that could prevent terrorist attacks attacks against against the the United United States States o~ or and its interests or that could help locate the senior leadership of al aI Qaeda who are conducting its r of terror against the United States, campaign ofterror States."4 Over O:ver the history of of its detention and interrogation program,from March 2002 2002 until until today, today, the the CIA CIAhas hashad hadcustody custodyof ofaatotal totalof"98 of 98detainees detaineesininth~ the program, from March program. Of those 98 detainees, the CIA has only used enhanced techniques with a total of 30. program. Ofthose has on)y used enhanced techniques with a total of30.! CIA bas has told told us us that that itit believes believes many, many, ifnot if not all, all, ofthose of those 30 detainees had recei:ved received training The CIA training! the resistance of interrogation methods and and that that al al Qaeda Qaeda actively actively seeks seeks information information regarding regarding in the U.S. interrogation methods in order to enhance that that training. training. U.S. ; 2. 2. The CIA has informed us that, that, even even with with regard regard to to detainees detainees who who are are believed believed to to possess possess high value information, enhanced techniques would not be used used unless unless normal normal debriefing i methods have have been been ineffective ineffective or unless unless the theimminence imminence of of aa potential potential attack attack isispelieved believed not not to to ; methods sufficient time for the use of other methods. methods. Even under the latter circumstance, the allow sufficient ! detainee will will be be afforded afforded the the opportunity to to answer questions questions before the the use ofany of any enhanced I' detainee techniques. In either case, case, the on-scene interrogation team must determine that techniques. that the detainee is withholding or manipulating information. The interrogation team then develops a written plan. Any Any interrogation interrogation plan plan that that would involve the use of of enhanced enhanced techniques techniques interrogation plan.. interrogation I _______________.......-__-!i_ . 2 placed al·Hadi al-Hadi in the custody ofthe of the Department ofDefense. of Defense. 2007, the CIA placed 4 I 'I InI The CIA informs us that it currently views possession of information regarding the location of Osama bin al-Zawahiri as warranting application of enhanced techniques, if Laden or Ayman al-Z3wahiri if other conditions are met mel 4 , 5 FROM SITE 15 nOJ (fRI)JU:' 20 2007 :5:08/S •. 15:0B/NO. 1l16C.o:2S1771S P must be personally reviewed and approved by the Director ofthe of the Central Intelligence Agency. more than than 30 30 days. days. Each approval would last for no more 3. 3. The third significant precondition far for use of any of of the the enhanced enhanced techniques techniques is is aa careful careful of the detainee by medical and psychological professionals from evaluation ofthe from the CIA's Office Office of of evaluations isis to to ensure ensure the thedetainee's detainee's safety safety ~t at Medical Services ("OMS"). The purpose of these evaluations all times and to protect him himfrom physical or or menta) mental harm. harm. OMS OMS persOJUlel personnelare arenot notinvolved involvedinin from physicaj the work of the interrogation afthe interrogation itself itself and and are are present solely to ensure the health and the safety of . assessment... the detainee. The intake evaluation includes "a thorough initial medical assessment ... with a complete, documented documented history history and and aa physical [examination] addressing addressing in in depth depth any any chronic chronic or or I complete, physical [examination] onMedical Medicaland andPsychological Psychological Support medical problems." OMSGuidelines . previous previous medical problems.» OMS Guidelines on Support to to J Detainee Rendition, andand Detention at 9 at (Dec. 2004) ("OMS Guidelines'). In In i Detainee Rendition,Interrogation Interrogation Detention 9 (Dec. 2004) ("OMS Guidelines"). addition, OMS personnel monitor the detainee's condition throughout the application of i enhanced techniques, and the the interrogation team team would would stop stopthe theuse useof ofparticular particulartechniques techniquesor or if the detainee's medical or psychological condition were to I halt the interrogation altogether iftbe See Section Section2340 2340 suffer significant physical or mental harm. harm. See indicate that the detainee might suffer Opinionat"S-6. at 5-6. Every Every CIA CIAofficer officer present present atat an aninterrogation, interrogation,including includingOMS OMSpersonnel, personnel, has hasthe the Opinion authority and responsibility to stop a technique if such harm is observed. aut~ority I i I I B. The proposed interrogation techniques are only one part of an integrated detention and I CIA. The foundation of the program is is the the CIA's CIA's interrogation program operated by the CIA. i knowledge ofthe of the beliefs and psychological traits ofal of al Qaeda members. Specifically, members members/ of at al Qaeda expect that they will be subject to no more more than than verbal verbal questioning questioning in in the the hands hands of of the United States, and thus are trained patiently to wait out U.S. U.S. interrogators, confident that th~ they can withstand U.S. interrogation techniques. At the same time, al Qaeda operatives believe that u.s. the same time, al Qaeda operatives believe tha~ they are morally reveal information information once once they they have have reached reached aa certain certain limit limit of of they are morally permitted permitted to to reveal " discomfort. is designed designed to the detainee's detainee's expectations expectations about about how how he he will, will! discomfort. The The program program is to dislodge dislodge the be treated in U.S. custody, custody, to to create create aa situation situation in in which which he he feels feels that that he he isis not not in in control, control, and and t~ to be treated jn U.S. establish aa relationship relationship of of dependence dependence on on the the part of the the detainee. detainee. Accordingly, Accordingly, the the program's establish part of program's intended effect effect is is psychological; it is is not not intended intended to to extract extract information information through through the the impositioQ imposition intended psychological; it _of_physical of h sical pain. aiD. i I 6 I FROM SITE 15 DOJ (FRI)JUL . 20 2C07 lS:0El/ST. 1S:08/NO. 6160(21177e . I The CIA has has designed the techniques techniques to to be besafe. safe. Importantly, Importantly, the theCIA CIAdid didnot notcreate createthe theI proposed interrogation techniquesfrom whole cloth. cloth. Instead, Instead, the the CIA CIA adapted adapted each ofthe of the from whole I techniquesfrom in the the United United States Statesmilitary's military'sSUlVival, Survival,Evasion, Evasion,Resistance, Resistance,and and I from those used i~ training. The The SERE SERE program programisisdesigned designedtotofamiliarize familiarizeU.S. U.S.troops troopswith with Escape ("SERE") training. I interrogation techniques they. they might experience in enemy custody and to train these troops troops to to i resist such techniques. techniques. The SERE program program provided provided e~piri~al empirical evidence that the the technique~ techniques ~ as I .resist lt in'the SERE program were safe. M As aa result result of ofsubJectmg subjecting hundreds hundredsofthousands of thousands of of ml! military used in·the at issu~ issue here here over decades, decades, the the military has has a long long I personnel to variations ofthe of the six techniques at techniques. The CIA CIA reviewed reviewed experience with the medical and psychological effects of such techniques. training. Recognizing Recognizing that aa detainee detainee in in CIA CIA I the military's extensive reports concerning SERE training. custody will be in a very different different situationfrom U.S. military personnel who experienced SERE from U.S. who experienced SERE no significant or lasting medical or training, the CIA nonetheless found it important that no I psychological harm had resultedfrom use of ofthese these techniques techniques on on U.S. U.S. military personnel ov~r over from the use many years in SERE training. arr I I All ofthe techniques we we discuss below below would be applied only by CIA CIA personnel personnel who who ar~ are ofthe techniques within the the limits limits set set by by the the CIA CIAand and described described inin highly trained in carrying out the techniques within this memorandum. This training is crucial—the techniques are not for wide crucial-tbe proposed teclmiques "'j, who might be more more likely likely to to misuse misuse olil' or application, or for use by young and untrained personnel who them. The average age techniques is is 43, 43, : abuse them. ag~ of a CIA interrogator authorized to apply these techniques would apply apply these these I and many possess advanced degrees in psychology. Every interrogator who would that lasts lasts approximately approximately four four weeks, weeks, i enhanced techniques is trained and certified in aa course that which includes mandatory knowledge of the detailed interrogation guidelines that the CIA has knOWledge ofthe bas i developed for this program. This course entails entails for each interrogator more more than than 250 250 hours hours of of J limits. An interrogator interrogator works works under under the the direct direct supelVision supervision of of training in the techniques and their limits. experienced personnel before he is permitted principally to direct an interrogation. Each ~ interrogator has been psychologically screened to minimize risk that minimize the therisk that an aninterrogator interrogator might might : technique. We understand from you that that these these procedures procedures ensure ensurethat that all all misuse any technique. from you of the interrogation techniques, and that they interrogators understand the design and purpose ofthe will apply the techniques in accordance with with their their authorized authorized and and intended intended use. use.Ss I I ,„ The CIA proposes proposes to to use use two two categories categories of of enhanced enhanced interrogation interrogation techniques: techniques: conditiOning I conditioning techniques and corrective techniques. techniques. The CIA has has determined that that the the six six effective program for techniques we describe below are the minimum necessary to maintain an effective type of critical critical intelligence from high value value detainee detainee that that the the program program isis design~ designee obtaining the type from aa high I i to elicit. ~~~ s S In descnbing describing and evaluating the proposed techniques in this Memorandum, we we are are assisted assisted by bythe the e,,:perience experience that CIA interrogators and medical personnel personnel have have gained through through the the past past adntinistration administration of of enhanced interrogation techDiques DTA At that time, those techniques were techniques prior to the enactment of the DTA. were designed designed by by CIA CIA I personnel to be safe, and this Office found them to to be be lawful lawful under under the the then-applicable then-applicable legal legal regimes regimes (I.e., {i.e.,before beforethe the enactment of the DTA and the MeA MCA and the Supreme SupremeCourt's Cam'sdecision decision Hamdon). supra atn.2. enaetment in in Hamdan). SeeSee supra at n.2. YouYou havehave informed us that the CIA's subsequent experiena: experience in conducting the the program bas has confirmed confirmed that thatjudgment. judgment. iI¥ormed I 7 p , FROM SITE 1~ DOJ (FRI)~UL 20 2007 15:0&/ST. 15:08/NO. 6:60"29775 1. Conditioning techniques techniques 1. You have informed us that the proposed conditioning techniques are integral to the program's foundational objective-to objective—to convince the detainee that he does not have control over I . his his basic basic human needs needs and and ~o to bring bring the the det,ainee detainee to to tb~ the point point w.here where h: he finds finds itit f?8rmissible, permissible, consistent with his beliefs and values,·to disclose the mformatlOn values, todisclosethe information he IS is protecting. You have alsp also i o B ^ B o i o w l e d g e of al Qaeda training, which told us that this approach is grounded i~owledge I at authorizes the disclosure of information at such a point. The specific conditioning techniques at deprivation. issue here are dietary manipulation and extended sleep deprivation. I I II Dietary manipulation would involve substituting a bland, commercial liquid meal for a Dietary detainee's normal diet. As a guideline, the CIA would use a formula for calorie intake that of activity. This formula would ensure. ensure depends on a detainee's body weight and expected level ofactivity. that calorie intake jntake will always be at least 1,000 kcal/day, and that it usually would be " significantly higher. higher.*6 By comparison, commercial weight-loss programs used within the United, United; significantly kcal/day regardless ofbody of body weight. CIA medical officerr' officers States commonly limit intake to 1,000 kcallday fluid and nutrition, and frequent frequent ensure that the detainee is provided and accepts adequate fluid monitoring by medical personnel takes place while any detainee is undergoing dietary I manipulation. Detainees would be monitored at all times to ensure that they do not lose more I than ten percent of of their starting body weight, and if if such weight loss were to occur, applicationj application ofthe i of the technique would be discontinued. The CIA also would ensure that detainees, at a minimum, drink 3S fluids, but a detainee undergoing dietary manipulation may I 35 mllkglday rmVkg/day of of fluids, drink as much water as he reasonably pleases. I ! ./ deprivation would would involve involve keeping keeping the the detainee detainee awake awake continuously continuously for for Extended Extended sleep deprivation up to 96 hours. Although the application ofthis of this technique may be reini~jated reinitiated after after the detainee ~ is of sleep, CIA guidelines provide i allowed an opportunity for at least eight uninterrupted hours of of total sleep deprivation during I that a detainee would not be subjected to more than 180 hours oftotal one 30-day period. period.?7 Interrogators would employ extended sleep deprivation primarily to weaken weakeh from statements made by al Qaeda a detainee's resistance to interrogation. The CIA knows from members who have been interrogated that al Qaeda operatives are taught in training that it is I consistent with their beliefs and values to cooperate with interrogators and to disclose information their ability to resist. Sleep deprivation is effectiv~ effective information once they have met the limits of oftheir in safely safely inducing fatigue as one means to bring such operatives to that point. I i i II 6 6 The CIA generally follows as a guideline a calorie calorie requirement requirementof of 900 900kcaJlday kcal/day ++ 10 10kca1llcglday. kcal/kg/day. This This quantity is multiplied by 1.2 for a sedentary activity level or 1.4 for a modelllte moderate activity level. level. Regardless of this formula, the recommended minimum calorie intake is 1500 1500 kca1Iday. kcal/day, and and in inno noevent eventisisthe thedetainee detaineeallowed allowedtoto .! receive less than 1000 kcaVday. kcal/day. The The guideline guidelinec:aloric caloric intake intakefor detaineewho whoweighs weighs150 150pounds pounds(approximatelY (approximately for aadetainee 68 kilograms) would therefore be nearly 1,900 1.900 kcal/day for sedentary activity and. and would be more than 2,200 kcaJldayfor kcal/day for moderate activity. I 1 In this memorandum we address address only the the lawfulness of a period of continuous sleep deprivation of no that ititwould more than 96 hours. hours. Should the the CIA CIA determine determinettiat wouldbe benecessary necessaryfor forthe theDirector Directorof ofthe theClA CIAtotoapprove approvean an of that period with respect to a particular detainee, this Office would provide additional guidance on the I extension of of the applicable legal standards to the facts of that particular case. application of . 8 ;> 10 FROM SITE 15 OOJ (FRI)Jt!!. 20 2CC7 1S:CQ/ST. 15:0S/NO. 61(1042&775 I t h e CIA uses physical restraints to prevent the detainee from falling asleep. asleep. The The front ofhis of his body, which prevents I detainee is shackled in a standing position with his hands in front him from falling asleep but allows him to move around within a two- to three-foot diameter area:. area 8 heart. Standing for! for. The detainee's hands are generally positioned below his chin and above his heart.! of time can cause the physical effects that we describe below. We are ! such an extended period oftime told, and we understand that medical studies confirm, that clinically significant edema (an :1 of the I~gs legs and feet due to the building up of excess fluid) fluid) may occur after aJl!L an excessive swelling ofthe extended period of standing. Due to the swelling, this condition is easily diagnosed, and medical personnel would stop the forced standing when clinically significant symptoms of edema were addition, standing for extended periods oftime of time produces muscle stress. stress. Though i recognized. In additi<;m, this condition can be uncomfortable, CIA medical personnel report that the muscle stress I harmful to the detainee and that associated with the extended sleep deprivation technique is not harmfu) detainees in in the the past past have have not not reported reported paia pain. detainees . I. ! I The detainee would not be allowed to hang by his wrists from the chains during the Tbe i of the technique. If If the detainee were no longer able to stand, tbe the standing administration ofthe of the technique would be immediately discontinued. The detainee would be component ofthe monitored at all times through closed circuit television. Also, medical personnel will conduct frequent physical and psychological examinations ofthe of the detainee during application ofthe of the technique.9 technique. I I We understand that detainees undergoing extended sleep deprivation might experience fatigue, including a slight drop in body "unpleasant physical sensations from prolonged fatigl.1e, difficulty with coordinated body movement and with speech, nausea, and blurred temperature, diffiCUlty see also alsoid. id.at at 31-38; 37-38; Why WhyWe WeSleep: Sleep: The TheFunctions Functionsof of vision."t Section 2340 Opinion at 37; see vision: and Other Mammals Sleep in Humans and MammQIs 23-24 (1998). Extended sleep deprivation may cause diminished cognitive functioning and, in a few isolated cases, has caused the detainee to personnel, and indeed all interrogation team members, are experience hallucinations. Medical personne~ of this technique ifthe if the detainee is observed to suffer suffer from significant significant instructed to stop the use ofthis of his mental functions, including hallucinations. We understand tbat that subjects I impairment ofhis deprived of sleep in scientific ofsleep scientific studies for significantly significantly longer than the CIA's CIA' s 96-hour 96~hour limit on I continuous sleep deprivation generally return to normal neurological functioning functioning with one nighti of normal sleep. See Section 2340 Opinion at 40. of normal sleep. Su Opinion at 40. I I I f I I . ' . Because releasing ~ele~ing a detainee detain~ from the shackles ~hackles to utilize u!ilize toilet facilities facilitie~ would present a I significant the technique, a detainee I slgt11ficant security securIty risk nsk and would interfere rnterfere with WIth the effectiveness effectIveness of ofthe Slj I I I I iI ,i II . * • The as as starting thethe clock on the 96-hour limitlimit for the TheCIA CIAregards regardsthis thisshackling shacklingprocedure procedure stalling dock on the 96-hour forproposed the proposed sleep deprivation teelmique. techniqne. Similarly, Similarly, "ith withregard regardtotothe theoverafi overallsleep sleepdeprivation deprivationlimit limitofof180 180 hours, hours, thethe CIACIA doesdoes not not i apply the the shackling shacklingprocedures proceduresfor formore morethan thana atotal totalofof 180 hours in one 30-day period. 180 hours in one 30-day period. i 9 9 If physical If medical personnel personnel detennine, determine,based basedonontheir theirprofessional professionaljudgment. judgment,that thatthethedetainee's detainee's physical J condition does notpermit permithim himtotostand standforforananextended extendedperiod, period, a detainee develops physical complications does not or or if aifdetainee develops physical complications fromfrom extended standing, standing, such suchasasclinically clinicallysignificant significantedema edemaorormuscle musclestress, stress, then interrogators may an alternative then interrogators may useuse an alternative I method of sleep sleep deprivation. deprivation. Under Underthat thatmethod, method,the thedeUlinee detaineewould would shackled a small stool, effective bebe shaokled to to a small stool, effective for for supporting his weight, weight, but butof ofinsufficient insufficient width widthfor forhim himtotokeep keephishis balance during rest. balance during rest. 9 P 11 FROM SI7E ~5 OOJ (FRI)JUL . 20 20~7 ~ 1!~:09/$T. ~ 15:06/NO. 6160.0:29776 . fo~ undergoing extended sleep deprivationfrequently frequently wears a disposable undergarment undergarment designed for adults with incontinence or enuresis. The undergarments are checked and changed regularly, and anp informed us that undergarments are used I the detainee's skin condition is monitored. You have informed solely for sanitary and health reasons and not to humiliate the detainee, and that the detainee will wil} wear clothing, such as a pair of shorts, over the under-garment during appl application of the I ication of technique. technique. 2. 2. Corrective CorrectiveteehnUJues techniques I Corrective techniques entail some degree ofphysical of physical contact with the detainee. Importantly, these techniques are not designed to inflict pain on the detainee, or to use pain to corr~ [or] startle." Background BackgroundPaper at 5. 5. This Thi~ obtain information. Rather, they are used «to "to correct Paper at category oftechniques, as well, is premised on an observed feature ofal Qaeda training and i of techniques, of al mentality-the I mentality—the belief that they will not be toUGhed touched in U.S. custody. Accordingly, these techniques "condition a detainee to pay attention to the interrogator's questions and ., ..., dislodge ex.pectations expectations that the detainee will not be touched". touched" or that a detainee can frustrate the interrogation by simply outlasting or ignoring the questioner. Section 2340 Opinion at 9. 9, There There are four techniques in this category. I The "facial hold" is used to hold a detainee's head temporarily immobile during interrogation. One open palm is placed on either side of ofthe fingertips are lU'j' the individual's face. The fingertips kept well away from the individual's eyes. The facial hold is typically applied for a period of of only a few seconds. . The Uattention "attention grasp" consists ofgrasping of grasping the individual with both hands, one hand on of the collar opening, in a controlled and quick motion. In the same motion as the . each side ofthe grasp, the individual is drawn toward the interrogator. The interrogator uses a towel or other i collaring device around the back of the detainee's neck to prevent any whiplash from the sudden coUaring sudde~ motion. Like the facial hold, the attention grasp is typically applied for a period of of only a few seconds. . seconds. the detainee ofthe The "abdominal slap" involves the interrogator's striking the abdomen of hand. The interrogator must have no rings or other jewelry on his hand with the back of his open hand. otberjewelry hanCi wrist. The interrogator is positioned directly in front of the detainee, no more than 18 inches or wrist. ofthe inches! from the detainee. With his fingers ringers held tightly together and fully extended, and with his palm ! from toward his own body, using his elbow as a fixed pivot point, the interrogator interrogator slaps the detainee in iiJ. fist, and the slap must be delivered the detainee's abdomen. The interrogator may not use a fist, above the the navel navel and and below below the the sternum. sternum. above . I I With the "insult (or facial) slap," the interrogator slaps the individuals individual's face with fingers the individual individual's oftbe is slightly spread. The hand makes contact with the area directly between the tip of chiii and the'bottom the bottom of the corresponding earlobe. The interrogator thus "invades" the chin individual's "personal space." We understand that the purpose of of the facial slap is to induce . shock or surprise. Neither the abdominal slap nor the fecial slap is used with an facial ~ intensity or .shock frequency that would cause significant pain or harm to the detainee. ! 10 P ~2 FROM SITE 15 OOJ (FRI)JUL 20 psyc~0108ical 20C7 ;;;:09/ST. 15:08/1'10.111110':29776 P I ob~erving Medical and psychological personnel are physically present or otherwise observing . whenever these techniques are applied, and either they or any other member oftbe of the Interrogation interrogation I team will intervene ifthe painful or harmfull if the use ofany of any ofthese of these techniques has an unexpectedly painful harmful detainee, I psychological effect effect on the detainee. ** * * In the analysis to follow, we consider the lawfulness of these six techniques both of the teehniquestechniques— individually and in combination. You have informed us, however, that one ofthe deprivation—has proven to be the mo~ most indispensable to the effectiveness effectiveness ofthe of the sleep deprivation-has I interrogation program, and its absence would, in all likelihood, render the remaining techniques of little value. The effectiveness effectiveness ofthe of the program depends upon persuading the detainee, early in oflittle the application ofthe of the techniques, that he is dependent on the interrogators and that he lacks ! control over his situation. Sleep deprivation, you have explained, is ct:\1cial crucial to reinforcing that i the detainee can improve his situation only by cooperating and providing accurate informat~on. information. carefull) The four corrective techniques are employed for their shock effect; because they are so carefully., significant pain. When used alone. alone, they limited, these corrective techniques startle but cause no significant If the detainee does not immediately cooperate in response to these I quickly lose their value. If techniques, the the detainee detainee will will quickly quickly learn learn their their limits limits and and know know that that he he can can resist resist them. them. The The techniques, CIA. informs informs us us that that the the corrective corrective techniques techniques are are effective effective only only when when the the detainee detainee is is first first placed placet CIA in a baseline state, in which he does not believe that he is in control of his surroundings. The in a baseline state, in which he does not believe that he is in control of his surroundings. The conditioning technique technique of of sleep sleep deprivation, deprivation, the the CIA CIA informs informs us, us, is is the the least least intrusive intrusive means means ! conditioning available to this end and therefore critical to the effectiveness of the interrogation program. available to this end and therefore critical to the effectiveness ofthe interrogation program. i I I I I II n. I The War Crimes Act proscribes nine criminal offenses offenses in an armed conflict conflict covered by 10 Common Article 3 ofthe See 18 U.S.C. , of the Geneva Conventions. Conventions.10 U.S.C. §§ 2441(c)(3). 2441(c)(3). To To list list the the prohibited practices is to underscore their gravity: torture, cruel and inhuman treatment, performing biological experiments, murder, mutilation or maiming, intentionally causing seriou~ serious bodily injury, rape, sexual assault or abuse, and the taking ofhostages. of hostages. I i I We.need We need not undertake in the present memorandum to interpret all ofthe of the offenses offenses set forth in the War Crimes Act. The CIA's proposed techniques do not even arguably implicate six si* of these offenses-performing offenses—performing biological experiments, murder, mutilation or maiming, rape, ofthese U.S.C. §§ §§ 244I(d)(IXC), 2441(d)(l)(C), (D), (D), (E), (E), sexual assault or abuse, and the taking of hostages. See 18 U.S.C. offenses borrow from existing federal criminal law; they have well-; (G), (H), and (I). Those six offenses here.'' defined meanings, and we will not explore them in depth here. 11. • I JI 10 Assistant Alto.".,. Attorneys Geoeml General "" for National Security and forthe Division have have revi..... reviewed and .. The """""" Nali""'" _ I y aodier lhe Criminal Crimmal DMsioo II's interpretation of the general legal standards applicable applicable to to the therelevant relevant War WarCrimes Crimes Act Act concur with Part Irs I offenses. o~. 1 II' Although the the WaI War Crimes CrimesAct Actdefines definesoffenses offensesunder underthe theGeneva GenevaConventions, Conventions,ititisisour ourdomestic domesticlaw lawth31 that guides the intelpretation interpretation of the Act's statutory terms. terms. Congress has has provided that "ltO "no foreign or international sourde source of law shall supply a basis for a rule of decision in in the thecourts courtsof ofthe theUnited UnitedStates Statesinininterpming interpretingthe" the"prohibitions prohibitions 11 13 FROM SI'E t5 DO·J (FRI)JUI. 2C 2007 15:09/ST. 15:0S/NO. 616C<:297711 I the three remaining offenses—torture, treatment, anc Some features of ofllie offenses-torture, cruel and inhuman treatment. anc! injury—may be implicated by the proposed techniques and intentionally causing serious bodily injury-may so it is necessary for us to examine them. Even with respect to these offenses, however, we I technique—extended sleep deprivation-requires deprivation—requires significant significant discussion, ! conclude that only one technique-extended 1 although we briefly address the other five techniques tech~ques as appropriate. 12 I' I First, the War Crimes Act prohibits torture, in a manner virtually identical to the I U.S.C. §§ §§ 2340-2340A. 2340-2340A. See See 18 18 U.S.C. U.S.C. previously existing federal prohibition on torture in 18 U.S.C. 2441(d)(1)(A). This Office previously concluded that each ofthe of the currently proposed six § 2441(d)(I)(A). ! deprivation—subject to the strict conditions, safeguards, techniques, including extended sleep deprivation-subject and monitoring applied by the CIA-does CIA—does not violate the federal torture statute. See ,and , Agency. Memorandum for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, from Steven G. Bradbury, Bradbury. Principal Deputy Assistant Attorney General, Office Office of of Legal • Counsel, Application of of18 U.S.C. §§ 2340-2340A to Certain Techniques That May Used 18 u.S.C §§ 2340-2340A to Certain Techniques That May BeBe Used in in! the Interrogation ofa of a High Value Value al al Qaeda QaedaDetainee Detainee("Section ("Section2340 2340 Opinion")(May (May10,10, 2005). Opinion") 2005).1 As we explain below, our prior interpretation of the torture statute resolves not only the proper ! of the torture prohibition in tbe the War Crimes Act, but also several ofthe of the issues interpretation of . presented by the two other War Crimes Act offenses offenses at issue. I II' of "cruel and inhuman treatment" in the War Second, Congress created a new offense of"cruel offense is directed at proscribing the "cruel treatment" anc Crimes Act (the "CIT offense"). This offense and of the Geneva Conventions. See GPW Ar(, An. inhumane treatment prohibited by Common Article 3 oftbe 3 1fl| 1, 1(a). In addition to the "severe physicaLor mental pain or suffering" prohibited by the 31m1, 1(a). physical.or i torture statute, the CIT offense reaches the new category of "serious physical or mental pain or I' offense's separate definitions of of mental and physical pain or suffering suffering extend to suffering." The offense's a wider scope of conduct than the torture statute and raise two previously unresolved questions ,: definition when applied to the CIA's proposed techniques. The first issue is whether, under the defmition of "serious physical of"serious phystcal pain or suffering," the sleep deprivation technique intentionally inflicts 2.a . I "bodily injury that involves ... . . . a significant significant impairment ofthe of the function of of a bodily member member... «bodily ... can or mental faculty," 18 U.S.C. § 2441(d)(2)(D), due to the mental and physical conditions that ea.tt be expected to accompany the CIA's proposed technique. The second question is whether, under of "serious mental pain or suffering," the likely mental effects effects ofthe of the sleep the definition of"serious deprivation technique constitute "serious and non-transitory mental harm." Under the ' procedures and safeguards proposed to be applied, we answer both questions in the negative. i i enumerating gJave gravebreaches breachesofofCommon CommonArticle Article3 3inin War Crimes MCA § 6(a)(2). fa context the context enUmerating thethe War Crimes Act.Act. MeA § 6(a)(2). In the of of Common Article3,3,however, however,wewedodo find that Congress forth definitions under Crimes find that Congress bashas set set forth definitions tJDder the the WarWar Crimes construing Common'Article Act that thaiare arefully fullyconsistent consistentwith withthe theunderstanding understandingofofthethesame same terms reflected in such international sources. Act teOns reflected in such international sources. SeeSee I , infra 61-64. infraatat51-52, 51-52,61-64. I I i I f I . I some physical contact with the the detainee, the thej '2 For For example, example,because becausethe thecorrective correctivetechniques techniquesinvolve involve some physical contact with detainee, extent to Crimes ActAct merits some consideration. As we at variods to which whichthose thosetechniques techniquesimplicate implicatethetheWar War Crimes merits some consideration. As explain we explain at varioiis andand thethe procedures Wlder which theythey are are usedused leaveleave themthem ; points below, below,however, however,the themildness mildnessofofthese thesetechniques techniques procedures under which outside the thescope scopeofthe of theWar WarCrimes CrimesAct Act 12 12 l> 14 FROM SITE 15 OOJ (FRI)JUL 20 2007 .5:0e/ST. 16;OS/NO. e160~29776 ;0 16 Third, the War Crimes Crimes Act prohibits prohibits intentionally intentionally causing causing "serious "seriousbodily bodilyinjury" injury" (the (the "SBI offense"). The SBI offense raises only one additional question with regard to the the sleep deprivation technique-whether technique—whether the mental mental and andphysical physical conditions conditionsthat that may mayarise ariseduring duringthat that technique, s)" under the CIT offense, are "protracted technique, even if not "significant impairment[ impairment[s] "protracted U.S.C. § 2441(d)(2)(iv), with id. id. impainnents" Compare1818 U.S.C. § 2441(d)(2)(iv), with impairments" under under the the SBI SBI offense. offense. Compare § 1365(h)(3)(D). of"prolonged 1365(h)(3)(D). Consistent Consistent with with our prior prior analysis analysis ofthe of the similar requirem~nt requirement of "prolonged mental harm" harm" in the the torture torture statute, statute, we we conclude conclude that thatthese theseconditions conditionswould wouldnot nottrigger triggerthe the 13 apphcability ofthe SBI offense. 13 applicability 13 13 In the the debate over the Military Commissions Act, Members of Congress expressed widely differing differing views as to how the terms of the War Crimes Act would apply to interrogation techniques. In light ofthese of these divergent views, we do not regard the legislative history ofthe of the War Crimes Act amendments as particu1arly particularly illuminating, although we note that several of those most closely involved in drafting the Act stated that the terms did not address any particular techniques. As Rep. Duncan Hunter, the Chairman of the House Armed Anned Services Committee and the Act's leading sponsor in the House, House, explained: explained: me Let me he clear: The bilI bill defines the specitic specific conduct that is prohibited under Common Article 3, be clear: but it does not purport to identify interrogation practices ptactices to the enemy or to take any parlicular particular means of interrogation off off the table. Rather, this legislation properly leaves the decisions as to the me&cds of interrogation to the me Presideni Presided and to to the me intelligence imeUigentt professionals at the CIA, so that methods they may caay that. as the President explained, serves to galher carry forward this vital program that, gather the critical intelligence necessary to protect the country from another eatastrophi.c catastrophic terrorist attaclc.. attack. ciitical'in1elligence I similarl~ 152 2006). SenatoiMcCain, 152 Cong. Rec. H7938 (Sept. 29, 29,2006). Senator McCain, who led Senate negotiations over the Act's text, similarly any legislation could pro"ide provide an an explicit and all-iDclusive all-inclusive list ofwhat i "it is UDttaSonable unreasonable to suggest that any stated that ''it permitted," aIlhougb although be he did did state state that that the the Act "will "will criminalize certain .; specific activities are illegal and which are peunitted," interrogation techniques, like waterboarding and other techniques that cause serious pain or suffering that need not ~ prolonged." Id. Id at 810,413 S10.413 (Sept (Sept. 28, 28,2006). be prolonged.... 2006). Other Members, who both supported and opposed the Act, agreed : rather than than proscribing specific specific techniques. techniques. See, See, e.g., id. id. at that the statute itself established general standards, tather I S 10,416 (statement (statement of of Sen. Sen. Leahy) (the bill "saddles the War War Crimes Act with a definition of croel cruel and inhuman S10,416 aD manner of cmel cruel and extreme interrogation teebniques"); techniques"); id. id at r treatment so oblique that it appears to permit an S10.260 (Sept. 27, 27,2006) 510,260 2006) (statement of Sen. Bingaman) (stating that the bill "retroactively revises the War Crimes ; criminal liability does not resul.t resultfrom Act so that crinIinalliability from techniques that the United States may have employed, such as ,I deprivation"); id id. at S10,381...g2 S10.381-82 (Sept. (Sept 28, 2(06) 2006) hypothermia, and prolonged sleep deprivation;'); simulated drowning, exposure to h,"pothennia, Sea Clinton) (recognizing that mat the ambiguity of of the text "suggests that those who employ techniques tell.1"suggests techniques! (statement of Sen. as waterboarding, long-time stAnding standing and h)'}>Othennia hypothermia on Americans cannot be charged for war 010165"). crimes"). ! such as I I At the same time, other Members, including Senator Warner, Warner, the the Chairman Chairman oftbe of the Senate Senate Armed Aimed Services Services At. Committee who also was closely involved in negotiations over the bill's text, lext, suggested that the bill might mighl I criminalize certain interrogation techniques, including variations of ofcertain of those proposed by the CIA (although (although; certain of these Members did not discuss the 510,378 (statement (statement. die detailed safeguaJds safeguards within the CIA program). See, e.g., id. at S10.378 (staring that the conduct in the Kennedy Amendment, which would have prohibited "wat~ "waterboarding of Sen. Warner) (stating standing... techniques, stress positions, including prolonged standing ... sleep deprivation, and other similar acts," is "in my I opinion... atS10,390 S10,390(statement (statement of of Sen. Sen. Warner) Warner) (opposinB (opposing the the opinion ... clearly prohibited by the bill."). But see id. /d. at J Kennedy Amendment on the ground that "Congress should not try to provide a8 specific specific list of of techniques" because i "[wje don't know what the future holds."). See olso also id. id at S10,384 S10.384 (statement of "[w]e of Sen. Levin) (agreeing with Sen. ; Warner as to the prohibited techniques); techniques); id. id at SlO,235-36 S10.235-36 (Sept 27,2006); it!. id. at S10,235-36 (statement of of Sen. I CTTlhe biD bill would make it a crime to use abusive interrogation techniques like tike waterboarding, induced Durbin) ("[T)he I hypothermia, painful stress poSitions, positions, and prolonged sleep.deprivation"); sleep.deprivation"); td. id at H7553 (Sept, 27, 27,2006) hypothennia, 2006) (statement of Rep. Shays) (stating that "any reasonable person would conclude" that that "the "the so-called so-called enhanced .or or harsh harsh tecltniq~ techniques Rep. that have been implemented in the past by the CIA" CIA" "would "wouldstill stillbe be criminaI criminal offenses offenses under under the tie War WarCrimes Crimes Act Act ; that suffering'"). because they clearly cause 'serious mental and physical suffering"'). 13 ------ ------------------.1 FROM SITE IS OOJ (FRI)JUL 20 2007 15:09/51. lS:08/NO. 61604211776 P A. I I in a manner virtu2.lly virtually identical to the general The War Crimes Act prohibits torture ~n 18 U.S.C. U.S.C. §§ §§2340-2340A: 2340-2340A: federal anti-torture statute, 18 commits, or conspires or attempts to commit, an act The act of a person who commits, severephysical physical or or mental mentalpain pain or orsuffering suffering(other (other specifically intended to inflict severe than pain or suffering incidental to lawful sanctions) upon another person within of obtaining information or a his custody or physical control for the purpose ofobtaining confession, punishment, intimidation, coercion, or any reason based on confession. . discrimination of any kind. 2441(dXlXA) (emphasis added). added). The War Crimes Act incorporates by reference th~ the 18 U.S.C. § 2441(dXl)(A) 2340(2). See See 18 18U.S.C. U.S.C. Ii of the tenn term "severe mental pain or suffering" in 18 U.S.C. U.S.C. § 2340(2). definition of 2441(d)(2)(A).14 This This Office Office previously concluded concluded that the the CIA's CIA's six six proposed interrogation interrogation § 2441(d)(2)(A).14 18 U.S.C. U.S.C. §§ §§ 2340-2340A 2340-2340A. See See Section Section 2340 2340 techniques would not constitute torture under 18 Opinion. On the basis of of new information obtained regarding the techniques in question, we Opinion. have reevaluated that analysis, stand by its conclusion, and incorporate it herein. Therefore, we I of the techniques in question, as proposed to be used by the CIA, constitutes i conclude that none ofthe torture under the War Crimes Act. ' I B. The War Crimes Act defines the offense offense ofcccruel of "cruel or inhuman treatment" as follows: follows: The act of of a person who commits, or conspires or attempts to commit, an act suffering (other intended to inflict severe or serious physical or mental pain or suffering suffering incidental to lawful sanctions), including serious physical than pain or suffering abuse, upon another person within his custody or control. 18 U.S.C. U:S.C. §§2441(d)(I)(B). 2441(d)(1)(B). Although Although this thisoffense offense extends extendsto to more moreconduct conduct than than the thetorture torture offense, we conclude for the reasons that follow that it does not prohibit the six proposed techniques as they the.y are designed to be used by the CIA. I I I I "severe physical physical or or mental mental pain pain or or The CIT offense, in addition to prohibiting the "severe suffering" suffering" covered by the torture tonure offense, also reaches "serious physical or mental menta! pain or 14 H The torture offense in in the the War War Crimes CrimesAct Actdiffers differsfrom fromsection section2340 2340inintwo twoways waysimmaterial immaterialhere. here.FFirst, J section 2340 applies only outside the territorial the United United Stales. Stales. The Theprohi."bition prohibitionon onlOrtllre tortureininthe the i tenitorial boundaries of the War Crimes Act, by contIast, contrast, would apply apply to to activities, activities,regardlesS regardlessoflocation, of location,tha1 thatoccur occurin in"the "thecontext contextof ofor or : association with" an anned armed conflict "not of.an of an international character." Second, to constitute War constiblte torture under the wal Crimes Act, an activity must be "for the purpose purpose ofobtaining of obtaining information information or oraaconfession, confession, pWlishment, punishment,intimidatioh, intimidation, coercion, any kind." 2441(d)(1)(A); see seeDlso alsoCAT CATAn. ArtIJ coerci~ or any reason based on discrimination of ofany kind," See 18 U.S.C. § 2441(d)(1)(A); (imposing a similar requirement for the treaty's definition oftorture). activities dlat diat we wedescnbe describe herein hereinare are"fdr "for lOrtuTe). The aCfi\.iries the purpose of "m the the context context ofor of or association with with a Common Articlel3 Articled of obtaining information" and are undertaken "in conflict," new requirements requirements would would be be satisfied satisfied here. here. conflict," so so these these new . I f L! 14 16 FROM SITE 15 OOJ (FRI)JUL 2C 2007 15:11/ST. 1S:10/NO. 8160 .. 2'1777 ? offense explicitly defines both of of the two! two suffering." In contrast to the torture offense, the CIT off~nse key terms-"serious physical pain or suffering" and "serious mental terms—"seriousphysical menial pain or suffering." Before; Before: turning to those specific definitions, we consider the general structure of of the offense, as that of those specific terms. structure informs the interpretation of First, the First, the context context ofthe of the CIT CIT offense offense in in the the War War Crimes Crimes Act Act indicates indicates that that the the term term "serious" in the statute is generally directed at a less grave category ofconditions "serious" in the statute is generally directed at a less grave category of conditions than than falls falls within within the the scope scope ofthe of the torture torture offense. offense. The The terms terms are are used used sequentially, sequentially, and and cruel cruel and and inhuman: inhuman treatment treatment is is generally generally understood understood to to constitute constitute a a lesser lesser evil evil than than torture. torture. See, See, e.g., e.g., CAT CAT Art. Art. 16: 16 (prohibiting (prohibiting "other "other cruel. cruel, inhuman, inhuman, or or degrading degradingtreatment treatment or or punishment punishment which whichdo do not not amount; amount to to torture") torture") (emphases (emphases added). added). Accordingly, Accordingly, as as aa general general matter, matter, aa condition condition would would not not constitute "severe physical or mental pain or suffering" if it were not also to constitute constitute "severe physical or mental pain or suffering" if it were not also to constitute "serious: "serious physical or mental pain or suffering." Although it implies something less extreme than the term "severe," the term "serious" still refers to grave conduct. As with the term "severe," dictionary definitions ofthe of the term underscore that it refers "of a great degree or an undesirable or harmful harmful'~ ref~rs to a condition "of "serious" undersco.re element." Webster's Third Int Int'l'f Dictionary at 2081. When specificalJy specifically describing physical pain. pain, "serious" has been defined as "inflicting "inflicting a paino! pain or distress [that is] grievous." grievous." Id Id. (explaining . that, with regard to pain, "serious" is the opposite of"mild"). of "mild"). That the term "serious" limits the CIT offense offense to grave conduct is reinforced by the purpose ofthe of the War Criines Crimes Act. The International Committee of the Red Cross ("JCRC") ("ICRC") "acts which world Commentaries describe the conduct prohibited by Common Article 3 as "aets public opinion finds particularly revolting." Pietet, Pictet, gen. ed., ill HI Commentaries on the Geneva 50 (explaining the the significance ofthe of the ICRC ICRC Conventions 39 (1960); see also infra at 50 Commentaries in interpreting Common Article 3). Ofthe Of the minimum standards oftreatment of treatment directed consistent with humanity that Common Article 3 seeks to sustain, the War Crimes Act is directea only at at "grave "grave breaches" of Common Common Article Article 3. 3. See See 18 18 U.S.C. U.S.C. §§ 2441(c)(3). 2441(c)(3). Grave Grave breaches breaches of! of; breaches" of only of such severity that the Conventions oblige signatories to : the Conventions represent conduct of effective penal sanctions" fOf, for, and to search for and to prosecute persons committing, "provide effective of the Conventions. See, See, e.g., e.g., "GPW" "GPW Article 129. 129. The Conventions themselveS themselves such violations ofthe "willful killing, torture; torture in defining "grave breaches" set forth unambiguously serious offenses: "willful willfully causing great suffering suffering or or inhuman treatment, including biological experiments, -willfully . serious injury to body or health." GPW Art. 130. In this context, the term "serious" must not be read lightly. Accordingly, the "serious physical or mental pain or suffering" prohibited by the ! offense does not include trivial or mild.conditions; rather, the offense offense refers to the grave : CIT offense conduct at which the term "serious" and the grave breach provision ofthe of the Geneva Conventions; Conventions are directed. . Second, the the CIT CIT offense's offense's structure structure shapes shapes our our interpretation interpretation ofits of its separate separate prohibitions prohibitions i Second, against the infliction of"physicaJ of "physical pain or suffering" and "mental pain or suffering." The CIT offense, like the anti-torture statute, envisions two separate categories of of harm and, indeed, separately defines each tenD.. term. As we discuss below, this separation is reflected reflected in the requiremeJlt requirement that "serious physical pain or suffering" involve the infliction ofa of a "bodily injury." : To permit purely mental conditions to qualify as "physical pain or suffering" suffering" would render the 15 FROM SITE 15 OOJ (FRI)JUL 20 2:lC7 :5:11/ST. 15:10/NO. e160~2~777 p 2 carefully considered definition ~f«serious of "serious mental pain or suffering" surplusage. Consistent with carefully the statutory definitions provided by Congress, we therefore understand the structure of CIT. of the CIT, offense : offense to involve two distinct categories of harm. The CIT offense offense largely borrows the anti-torture statute's statute' s definition of mental pain or suffering. Although the CIT offense offense makes two important adjustmenf$ adjustments to the defiJ.lition, definition, these these; revisions preserve the fundamental purpose of providing clearly defined circumstances under ; of the statute. Extending the offense's offense's which mental conditions would trigger the coverage ofthe to solely mental conditions outside oftbis of this careful definition would be inconsistent with coverage to.solely Cf. Section 2340 Opinion at 23-24 (concluding that mere mental distress is not this structure. Cj. enough to cause "physical suffering" within the meaning ofthe of the a;llti-torture anti-torture statute). We offense separately therefore conclude that, consistent with the anti-torture statute, the CIT offense proscribes physical and mental hann. harm. We consider each in tum. turn. 1. 1 The CIT offense offense proscribes an act "intended to inflict inflict... ... serious physical... physical ... pain or suffering." 18 U.S.c. U.S.C. § 2441 2441(d)(1)(B). Unlike the torture torture offense, offense, which does does not provide provide an an (d)(l)(B). Unlike of "severe physical pain or suffering," suffering," the CIT offense offense includes a detailed explicit definition or of "serious physical pain or suffering," as follows: f o l l o w s : t definition of«serious [B]odily injury that involvesinvolves— (i) a substantial risk of of death; (ii) extreme physical pain; of a serious nature (other than cuts, (iii) a burn bum or physical disfigurement of abrasions, or bruises); or (iv) significant significant loss or impairment of the function of of a bodily member, organ, or mental faculty." Id § 2441(d)(2)(D). Id § 2441(d)(2)(D). of that definition,ofthe the physical component the CIT offense has two core In light of that definition, In thelight physical component CIT offense has twoofcore features. First, it requires that the defendant act with the intent to inflict a "bodily injury." features. First, it requires that the defendant act with the intent to inflict a "bodily injury." Second, it requires that the intended "bodily injury" "involve" one of four effects or resulting Second, it requires that the intended "bodily injury" «involve" one offour effects or resulting conditions. conditions. Q. a. I As an initial matter, the CIT offense requires that the defendant's conduct be intended to' to inflict a ''bodily "bodily injury." The term "injury," depending on context, can refer to a wide range of; of ; "harm" or discomfort. See VII Oxford English SeeVU English Dictionary Dictionaryatat291. 291. This Thisisisaaterm termthat thatdraws draws ' substantial meaning from the words that surround it. The injury must be "bodily," which "of the body." II Oxford English English Dictionary Dictionary at at 353. 353. The The term term "bodily": "bodily": requires the injury to be "ofthe body:' IT of the human body from the mind. Dictionaries most distinguishes the "physical structure" of term "bodily" to the term "physical" and explain that the word "contrasts withclosely relate the tenn with· 16 FROM SITE 15 OOJ (FR I) JUL 20 2007 15:: ~ /ST. 15: I 0/11I0. &15042ll777 P mental or spiritual." Webster's Third Int In! 'I7 Dictionary Dictionary at 245. 245. Therefore, the term "bodily injury" is most reasonably read to mean a physical injury to the body. body.IS,s As explained above, the structure of the CIT offense offense reinforces the interpretation interpretation of of "bodily injury" to mean «physical "physical injury to the body." The term "bodily injury" is defining "seriousphysicai qualify would be to : "seriousphysical pain or suffering." To permit wholly mental distress to qualify separate definition ofthe of the "serious mental pain or suffering" suffering" that could circumvent the careful and ~eparate of this structure, Congress chose not to import definitions implicate the statute. In furtherance oftbis definitions of of injury" from other parts oftitle of title 18 (even while, as explained below, it expressly did so :; . "bodily injury» different for the SBI offense). This choice reflects the fact that those other definitions definitions serve seNe different purposes in other statutory schemes-particularly schemes—particularly as sentencing enhancements—and enhancements-and they potentially could include purely mental conditions. The CIT offense offense differs differs from these other criminal offenses, which provide "bodily injury" as an element but do not have separate 1 definitions of physical and mental harm. 16* For example, the anti-tampering statute defines "impairment of of "bodily injury" to include conditions with no physical component, such as the "impairment of a ... . . . mental faculty." 18 18 U.S.C. U.S.C. §§ 1365(h)(4). 1365(h)(4). If If the the definition definition in in the antiantithe function ·ofa control here, however, die tampering statute were to coptrol the bodily injury requirement would be of a significant significant impairment of the function indistinct from the required resulting condition of ofthe function of of a mental faculty. See 18 U.S.c. U.S.C. § 1365(b)(4j(D). 1365(h)(4)(D). Thus, "bodily injury" must be construed in construed a manner consistent with its plain meaning and the structure of the CIT offense. Accordingly, we; ofthe must look to whether the circumstances indicate an intent to inflict inflict a physical physiCal injury injury to the body? body; when determining whether the conduct in question is intended to cause "serious physical pain or s u f f e r i n g . " j suffering." ~ I ! * suffering, the intended physical injury Second, to qualify as serious physical pain or suffering. injury to i of four resulting conditions. Only one of the body must "involve" one offour of the enumerated enumerated conditions conditiorls sleep deprivation, or any of the CIA's other proposed merits discussion in connection with sle'ep ofthe 15 At the the close close of of the the debate debate over over the the Mititaly Military Commissions Commissions Act, Act, Senator Senator Warner Warner introduced introduced aa written written At himself, wherein wherein they they stated stated that mat they they "do "do not notbelieve believe that thatthe theterm term 'bodily 'bodily : colloquy between Senator McCain and himself, injury' adds aa sepamte separate requirement requirement which must must be be met metfor for an anact act to toconstitute constituteserious seriousphysical physicalpain painor orsuffering." suffering." :: 152 Cong. Cong.Rcc. Rec.510,400 S10.400(Sept (Sept 28, 28,2006). Wecannot cannotrely relyon onthis thisexchange exchange(which (whichwas wasnot notvoiced voicedon onthe theSenate Senate : : 151 2006). We floor) as as itit would would render the the tenn term "bodily "bodily injury" injury" in in the thestatute statutewholly whollysuperfluous. superfluous. See, See,e.g., e.g., Duncan v. Walker, Duncan v. Walker, 5~3 533 U.S. 167, 167,174 C'[A] statute statute ought, ought, upon the whole, whole, to tobe beso soconstrued construedthaI. mat,ififititcan canbe beprevented, prevented,no noclause, clause,i U.S. 174 (2001) ("[A] sentence, or or word word shall be be superfluous, void, void, or insignificant."); insignificant.")', Platt Piatt1'.v. Union UnionPacific Pacific 99 U.S. sentence, Ry.Ry. Co.,Co., 99 U.S. 48, 48,58 58 (1879) r{L]egislation ("{Legislation is is presumed presumed to to use useno nosuperfluous superfluouswords. words. Courts Courtsare aretotoaccord accordmeaning, meaning,ifpossible, if possible,totoevery every (1879) statute."). word in a statute."). 15 ! 16 criminal statutes expressly expressly define "bodily injUJy" injury" those other criminaJ 16 Many of those i cross-references to 18 18 through cross-refetences U.S.C. § 136S(h). 1365(h). See, See, e.g., e.g.,18ISU.S.C. U.S.C.§§§§37(a)(1), 37(a)(1),43(d)(4), 43(dX4),113(b)(2), 113(b)(2),IlJ UJ1(c)(5), 1(c)(5)..I153(a), 1153(a),1341,2119(2). 1347,2119(2).AA j U.S.C. provision under the United United States States Sentencing Guidelines, Guidelines, though similarly worded to the the crr CIT offense offense in inother other i respects, separately provides a specific definition of "bodily injury" injur}"" and thus our interpretation of the term term "bodily: "bodily, respects, injury" in the the CIT CIT offense offense does does not not extend extend to to the the construction construction of of the theterm terra in inthe theGuidelines. Guidelines. See SeeU.S.S.G. 1B1.1;: injury" U.S.S.G. §§IBLl M. Application Note M 17 3 FROM SITE 15 ~OJ (FRI>JUI. 20 2007 16:11/ST. H.:10/NO. 616C"2i777? significant loss or impairment ofthe of the function of a bodily member, organ. organ, or techniques: "the significant 17 mental faadty."l' faculty." , The condition requires a "loss or impairment." Standing alone, the term "loss" "loss" requires a of three specified specified objects. See ( "deprivation," and the term "impairment" a "deterioration," here ofthree Webster's Int'l'i Dictionary Dictionary at at 1338, 1338, 1131. 1131. Both Both ofthese of these terms, terms, of of their their own own force force and and Webster's Third lnt without modification, carry an implication of duration; the terms do not refer to merely momentary conditions. Reinforcing this condition, Congress required that the "loss" or "impairment" be "significant." The term "significant" implies that the intended loss or impairment must be characterized by a substantial gravity or seriousness. And the term draws ;. "significant loss or impainnent" impairment" is employed to additional meaning from its context. The phrase "significant would define "serious physical pain or suffering" and, more generally, the extreme conduct that would; of seriousness called fOI! fon constitute a "grave breach" of Common Article 3. In reaching the level of in this context, it is reasonable to conclude that both duration and gravity are relevant. An . "significant ii extreme mental condition, even if it does not last for a long time, may be deemed a "significant of a mental faculty. A less severe condition may become significant significant only if if it has ~a impairment" of longer duration. a to; The text also makes clear that not all impairments ofbodily of bodily "functions" are sufficient sufficient to i affecting three important· importantimplicate the CIT offense. Instead, Congress specified that conditions affecting of functions could constitute a qualifying impairment: the functioning of of a "bodily types of member," an "organ," or a "mental faculty." The meanings of"bodily of "bodily member" and "organ" are member," of the arms and the legs, including the ability to walk, ~ straightforward. For example, the use ofthe of a "bodily member." "Mental faculty" is a term of of art in, in= would clearly constitute a "function" ofa of the powers or agencies . cognitive psychology: In that field, "mental faculty" refers to "one of into which psychologists have divided the the mind-such mind—such as as will, reason, or intellect-and intellect—and through the interaction ofwhich of which they have endeavored to explain all mental phenomenon." Webster's ThirdInt at 844. 844. As As we we explain explain below, below, the the sleep sleep deprivation deprivation technique technique can can cause cause aa 1m'/'I Dictionary at Third temporary diminishment in in general mental acuity, but the the text of of the the statute statute requires more than :; an unspecified unspecified or amorphous impairment of of mental functioning. The use ofthe of the term "mental that we we identify an an important important aspect of of mental functioning that has has been faculty" requires that I 1 The "substantial "substantia] risk of death" death" condition clearly does not apply to sleep deprivation or any of of the CIA'~ CIA's other proposed techniques. None of the six techniques would involve an appreciably elevated risk of '. of death. Medical personnel would determine for each detainee subject to interrogation that no con1iaindications contraindications exist. exist for the the application of of the techniques to that detainee. Moreover, CIA procedures require termination of of a technique when It it leads to conditions !hat that increase the risk of death, even slightly. 1 11' Opinion makes makes clear clear that that the the "extreme "extreme physical physical pain" pain" condition condition also also does does not not apply apply ~. here. Our Section 2340 Opinion See 18 U.S.C. § 2441(d)(2)(D)(ii). 2441(d)(2XD)(ii). There, we interpreted lhetenn the term "severe physical pain" in the torture statute to ; mean "extreme physical pain." Jd. Id. at 19 ("The use of the word 'severe' in the statutory prohibition on to11Urc torture clea.r;ly cleariy denotes a sensation or condition that is extreme in intensity and difficult difficult to endure."); id id (torture involves activitieS activities "designed to mtlict inflict intense OJ or extreme extreme pain"). pain"). On On the the basis basis of of our our determination determination that that the the six six techniques techniques do do not not involve the imposition of"severe 31-33. 35-39, we of "severe physical pain," see id id. al22-24, at 22-24,31-33,35-39. weconclude concludetbatthey that theyalso alsodo donot; not i a. visible physical alteration or burn bum of any involve "extreme physical pain." And, because no technique involves a.visible kind, the condition of "a burn or disfigurement disfigurement ofa of a serious nature (other than cuts, abrasions, or bruises)" not kind., bmises)" is also nol implicated. TO 18 L 4 FROM SITE 15 OOJ (FRI)JUI. 20 20:;7 lS:~t/ST. 15:tO/NO_ 616:)"'29777 i impaired, as as opposed opposed to to permitting permitting aa general general sense sense of of haziness, haziness, fatigue, or discomfort discomfort to to provide; impaired, ofthe required conditions conditions for for "serious "serious physical physical pain pain or or suffering." suffering." one of one the required Read Read together, together, we we can can give discernable content to how mental symptoms would come come to! to: constitute constitute "serious physical physical pain pain or suffering" suffering" through the fourth resulting condition. The ; "bodily injurytotothe thebody bodythat thatwould wouldbebe . . "bodily injury" injury" provision provision requires requires the intent to inflict physical physical injury expected expected to to result result in a significant significant loss or impairment of aa mental faculty." faculty.18 To constitute aa : "significant mental condition must display display the the combination of duration "significant loss or impairment," that mental and gravity of the law of war. Finally, we must identify a gravity consistent consistent with a "grave breach" ()fthe ofwar.discrete and important mental function function that is lost or impaired. The physical conditions that we understand are likely to be associated associat'ed with the CIA's proposed extended sleep deprivation technique would not satisfy these requirements. requirements. As an an initial matter, the extended sleep deprivation technique is designed to involve minimal physical . contact contact: with the detainee. The CIA designed the method for keeping the the detainee detainee awakeawake— . primarily by shackling the individual in a standing position-in position—in order to to avoid invasive physical; physical: contact or confrontation confrontation between the detainee and CIA personnel. personnel. CIA medical personnel have. have. informed us that two physical conditions are likely to result from the application of this ofthis technique: Significant the; Significant muscle fatigue associated with extended standing, and edema, that is, the swelling of the tissues the lower legs. CIA medical personnel, including those who have ofthe tissues of ofthe in past interrogations, interrogations, have observed the effects ofextended of extended sleep deprivation as employed in informed us that such conditions do do not weaken weaken the legs legs to tothe thepoint pointthat thatthe thedetainee detaineecould couldno no longer stand or walk walk. Detainees subjected to extended sleep deprivation remain able to walk technique. Moreover. Moreover, if if the detainee were were to stop using using his his legs and ;: after the application of the technique. ceiling, the application ofthe of the , to try to support his weight with the shackles suspendedfrom from the ceiling. terminated. The The detainee detainee would would not not be be left left to to hang hangfrom fromthe the technique would be adjusted or terminated. shackles. By definition, therefore, the function oftile of the detainee's detainee's legs legs would not be be significantly significantly:f shackles. impaired—they would be expected to continue continue to to sustain sustain the the detainee's detainee's weight weight and and enable enable him him ~ to impaired-they walk. walk. j I is simple simple edema edema alone alone aa qualifying qualifying impainnent. impairment. ItIt isis possible possible that that clinically clinically Nor is j legs may may occur during later stages of the the technique, technique, and and medical medical;: significant edema in the lower legs terminate application ofthe of the technique technique if if the the edema edemawere werejudged judgedto tobe be personnel would tenninate : i.e., ifit if it posed posed aarisk to health. health. For For example, example, if if edema edema becomes becomes sufficiently sufficiently serious,! serious, risk to significant, i.e.• increase the therisk riskof of aa blood blood clot clotand andstroke. stroke. CIA CIAmedical medical personnel personnelwould would monitor monitorthe the it can increase detainee and and terminate terminate the the technique technique before the the edema edema reached that level level of severity. severity. Edema detainee subsides with only only aa few few hours hours ofsitting of sitting or or reclining, reclining, and and even even persons persons with seVere severe edema can subsides walk. The The limitations limitations set set by by the the CIA CIA to to avoid avoid clinically clinically significant significant edema, edema, and and the the continued walk. 11 i crr Tobe besure, sure,the the CIToffense offenserequiJ:es requires"bodily "bodilyinjwy injurythat thatinvolveS' involvef aasignificant significantimpainnent; impairment;ititdoes doesnot not I 11 To require requireaashowing showingthat thatthe thebodily bodilyinjury injury necessarily necessarilycause causethe theimpairment impairment.The Thetenn term"involves," "involves,"however. however,r.:quires; requires. mote more than thanaa showing showingof ofmere merecorrelation. correlation. Rather, Rather,the the"bodi.Iy "bodilyinjwy" injuiy"either eithermust roustcause causethe theimpairment impairmentor orhave havebeen been ,' necessarily necessarilyassociated associated with withthe theimpainnent. impairment. This Thisreading readingof ofthe thestatute statuteisisnecessary necessarytotopreserve preservethe thestatute's statute's fundamental distinction distinction between between physical physical and and mental mental bann. harm. A Abodily bodilyinjmy injury will willnot not"involve" "involve"an animpainnent impainnent fundamental merely on on aa showing showingof ofcoincidence coincidencebetween betweenthe theindividual's individual's impairmenl impairmentand anda.."l anunrelated unrelated physical physicalcondition. condition. merely 19 ? • '''_.'. _ I t.oJ .... ,",'-'..I I ability ofthe of the detainee to use his legs, demonstrate that the mild edema that can be expected to legs. occur during sleep deprivation would not constitute a "significant "significant impairment" ofthe of the legs. sleep deprivation deprivation also also are are not not "serious "seriousphysical physical The mental conditions associated with sleep pain or suffering." To satisfy the "bodily injury" requirement, requirement. the mental condition must be body. We We understand from from the CIA's medical experts i traceable to some physical injury to the body. and medical literature that the mild hallucinations and diminished cognitive functioning that may be associated with extended sleep deprivation arise largelyfrom that;i from the general mental fatigue that any physical phenomenon that would be associated accompanies the absence of sleep, notfrom from associated: sleep. These mental symptoms develop in far less with the CIA's procedure for preventing sleep. at liberty to to do what they please. pleasedemanding forms of sleep deprivation, even where subjects are at awake. We We understand understand that that there there isis no no evidence evidence that that the theonset onset ofthese: of these but are nonetheless kept awake. mental effects effects would would be accelerated, severity aggravated, accelerated, or their their severity aggravated, by by physical physical conditions that that may accompany the means used by the CIA to prevent sleep. may accompany the means used by the CIA to prevent sleep. i if such diminished cognitive functioning or mild hallucinations were attributable tb to Even if body, they would not be be significant significantimpairments impairmentsof ofthe tbefunction function of ofaa : a physical injury to the body, of the statute. The CIA will ensure, ensure. through monitoring and i mental faculty within the meaning ofthe in cognitive regular examinations, that the detainee does not suffer a significant reduction in ~ functioning throughout the application ofthe of the technique. If the detainee were observed to suffer. Ifthe immediately discontinued. discontinued. For For evaluating evaluating other other ; any hallucinations, the technique would be immediately of cognitive functioning, at a minimum, minimum, CIA CIAmedical medical personnel personnelwould wouldmonitor monitorthe the aspects ofcognitive detainee to determine that he is able able to to answer answerquestions, questions, describe describe his his sUrroundings surroundings accurately, accurately, . and recall basic facts about the world. world. Under these circumstances, circumstances, the the diminishment of cognitive 1 functioning would not be '<significant. "significant."nI9 * . , In addition, CIA observations and other medical studies tend to confirm that whatever ! effect on cognitive function may occur would' would be short-lived. short-lived. Application ofthe of the proposed sleep! effect sleep: deprivation technique will be limited to 96 hours, hours, and and hallucinations or other appreciable appreciable cognitive effects are unlikely to occur until after the midpoint ofthat period. Moreover, we we night of of normal normal sleep, sleep, which which understand that cognitive functioning isfolly fuJly restored with one night of the technique. Given the relative mildness of of I detainees would be permitted after application ofthe would permit to occur before the the technique technique is' is the diminished cognitive functioning that the CIA would discontinued,20such mental effects would not be expected to persist for a sufficient sufficient duration to be "significant." . ; significant.')2o be U !t 19 *9The Thetechniques techniquesthat thatwe wediscuss discussherein hereinare areofcourse of coursedesigned designedtotopersuade persuadethe thedetainee detaineetotodisclose disclose information, which he wish to to do. do. These Thesetechniques techniques are arenot notthereby therebydirected, directed,however, however, at at be would not otherwise wish significant impairment of the detainee's will, will, arguably a "mental faculty." faculty.'* Instead, the techniques are causing significant impainnentofthe designed to alter assumptions that lead tbe the detainee to exl:TCise exercise his his will will in in aa particular particular manner. manner. In In this thisway, way, the the techniques are based on the presumption that the detainee's win will is functioning properly and that he will react to the conditions, in aa rational rational manner. manner. techniques, and the changed conditions, 20 in the the CIT offense offense is h the the addition addition ofthe of the phrase "including serious physical abuse" abuse " See 18 U.S.C. U.S.C. §§ 2441(d)(2)(iv) 2441(dX2)(iv)(prohibiting (prohibitingthe thein1liction inflictionof of"severe "severeor orserious serious: ... including serious physical abuse'}. physical or mental pain or suffering suffering... abuse*'). Congress provided "serious physical 20 A A:final finalfeature featureof "serious physical pain or suffering" 20 FROM SITE 15 OOJ (FRI)JUL 20 2007 n;:1 LIST. 15:10/NO. 5;601;29777 1 2 ( The The CIT offense also also prohibits prohibits the the infliction of "serious "serious mental mental pain pain or suffering," suffering," under! under; which purely mental conditions are wewe ~ are appropriately considered. considered. In the the Section Section2340 2340Opinion, Opinion, concluded that none none of of the the techniques techniquesatat issue issuehere hereinvolves involvesthe theintentional intentionalimposition impositionof of"severe "severe mental pain or suffering," as as that that term term isisdefined defined inin 18 18U.S.C. U.S.C.§§2340. 2340.The TheCIT CIToffense offenseadopts; adopts -: With the the differences differences from from section section 2340 2340 italicized, italicized, that definition with two modifications. With pain or suffering" is is defined as follows: follows: "serious mental paiD seriousand andnon-transitory non-transitory mental harm (which need The serious mental harm (which need notnot be be prolonged) caused prolonged) causedby byororresulting resultingfromfrom— physical (A) the intentional infliction or threatened infliction of serious serious physical pain or suffering; (B) the administration or application, application, or threatened administration..or administration/M" application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; death; or or eC) (D) the threat that another person will imminently be subjected to death, death. seriousphysical physical pain painor or suffering, suffering, or orthe theadministration administrationor orapplication applicationof ofmindmindserious to disrupt profoundly the the senses senses altering substances or other procedures calculated to or personality. • U.S.C. §§2441(d)(2)(E) 2441(d)(2)(E)(specifying (specifying adjustments adjustmentstoto18 18U.S.c. U.S.C.§§2340(2». 2340(2)). See 18 U.S.C. modifications expands the scope None ofthese of these modifications scope ofthe of the definition definition to to cover cover sleep sleep the CIA or any ofthe other proposed techniques. The deprivation as employed by by the CIA or any of the other proposed techniques. TheCIT CIToffense offense t replaces the term "severe" with the term "serious" throughout throughout the thetext text of of 18 18U.S.C. U.S.C.§§2340(2). 2340(2). . : The CIT offense the requirement of "prolonged "prolongedmental mentalharm" harm"inin18 18U.S.C. U.S.C.§§2340(2). 2340(2), offense also alters the replacing it with a requirement of "serious and non-transitory mental harm (which need not be ~ of"serious as with with the the definition definition in in the the anti-torture anti-torture statute. statute,the thedefinition definition ini in prolonged)." prolonged).» Nevertheless, just as , of a category of of harm hanD that falls abuse" as an example of fails within the the otherwise defined term of "serious physical pain of or Suffering." construing any ambiguity as to whether a particul2r particular suffering." "Serious physical abuse" therefore may be helpful in constIUing category of "serious physical pain or suffering." We do not find it of physical pbysical harm falls within the definition of Of"ser10US : relevant here, term "serious physical abuse" abuse" is.directed is. directed a.t.a at a category of conduct that that does does not not 0<:aJ.i occur here. however, as the tenn in the CIA's interrogation program. The word "abuse" implies implies aa pattern pattern ofconduct of conduct or or some some sustained sustained activity, activity, ;• although when the intended injury is particularly severe, the term may be be satisfied satisfied without such such aa pa.tlem. pattern. It It term "abuse" may also suggests an element of Dictionaryatat88(defining (definingabuse abuseas asan an of wrongfulness., wrongfulness, see, e.g., Websters Webster's ThirdInt Third In! V '/ Dictionary "improper or incorrect use, an application to a wrong purpose"), and and would not tend to cover justified ""TOng or bad purpose"), physical contact. While the CIA uses some "corrective techniques" that involve physical contact with the detainee,. detainee,; the CIA has stated that they are used to upset the detainee's expectations and to regain regaili his attention, attention. and they would not be used with an intensity or frequency to cause significant significant physical pain, much less to constitute the type of of ; . beating implied by the term "serious physical abuse." 21 P ~KOM SITE 15 OOJ (FRI>"U!. :<0 2007 ;5:11/ST. 15:10/tJO. 6.6c':2Q717 t the CIT CTToffense offense requires requires one oneof offour four predicate predicateacts actsor orconditions conditionstotoresult resultininor orcause causemental mental harm, and only then is it appropriate to evaluate whether that harm is userious and Donharm, "serious non.transitory'" at 24-26. Three ofthose predicate acts or or conditions areare ~ See Section Section2340 2340Opinion Opinion at 24-26. Three of those predicate acts conditions transitory." See not implicated here. ' here. Above, Above, we we have concluded that Done none of of the techniques techniques involves involves the the imposition of"serious of "serious physical pain or suffering." suffering.ft The techniques techniques at at issue issue here here also also do do not not involve the "threat ofimminent of imminent death," death," see seesupra supraatatn.17, n. 17,the thethreatened threatenedinfliction inflictionofofserious serious 21 physical pain or suffering, or threats of any kind to persons other than the detainee. detainee?1 Th~ The only predicate act that requires a more extended analysis here is "the administration) administration application... altering substances or other procedures calculated to disrupt or application ... of mind alteiing personality!' The text profoundly the senses or the personality." text ofthis of this predicate act is the same as in 18 U.S.C § 2340(2)(B). 2340(2)(B). " U.S.C. In our substantial onon thethe requirement that thethe our Section Section2340 2340Opini011. Opimon,weweplaced placed substantialweight weight requirement that thesenses:' senses,"explaining explaininghow howthe therequirement requirementlimits limitsthe thescope scopeof of l procedure "disrupt profoundly profoundly the conditions. We We acknowledged, acknowledged, however, however, that that a;a: the predicate act to particularly extreme mental conditions. hallucination could constitute a profound disruption ofthe of the senses, senses, if ofsufficient of sufficient duration. Id. Id ~ of the senses may occur during ; at 39. Nevertheless, it is not enough that a profound disruption ofthe of a procedure. requires.that that the procedure be "calculated" "calculated"t~to the application ofa procedure. Instead, the statute requires of the senses. See Webster's ThirdInt Dictionaryatat315 315(defining (defining cause a profound disruption ofthe Webster's Third Int'l7Dictionary to accomplish accomplisha apurpose purposeorortotoachieve achieve effect: "calculated" as "planned or contrived so as to anan effect: does not license license indifference to to thought out in advance") (emphasis added). added). This requirement does conditions that are very likely to materialize. But we can rely rely on on the the CIA's CIA's reactions reactions to to conditions that may occur to discern that a procedure was not "calculated" to bring about a proscribed result. CIA medical personnel would regularly monitor the detainee according to accepted medical practice and would discontinue the technique should any hallucinations be 21 21 It II is true that the detainees detainees are are wilikely unlikely to to be be aware aware of of the the limitations imposed upon upon CIA CIA interrogators • under their interrogation does not not cooperate, cooperate, the the CIA CIAmay may ;. intenogation plan. A detainee thus conceivably could fear that if he does escalate the severity of of its interrogation methods or adopt techniques that would amount to "serious physical pain or suffering." That the the detainee detainee may may harbor harbor such such fears, fears, however, however,does doesnot notmean meanthat thatthe theCIA CIAinterrogators interrogatorshave haveissued issued . madeclear clear that thatan an individual individual issues issuesaa "threat" "threat**only onlyififthe thereasonable reasonable a legal "tbreal" "threat." The .federal iederal courts courts have have made observer wouldregard deeds as a "serious expression of an intention to inflict bodily hann." harm." United regard his words or deeds United Sra~sv. Mitchell, Mitchell, 812 States ..... Zavre/, 3843S4 F.3dF.3d 130,136 (3d (3d Cir. Or. Sratesv. 812F.2d F.2d 1250, 1250,1255 1255(9th (9thCir. Or. 1987); 1987);see seealso alsoUnited United States v. Zavrel, 130, 136 125 (2d 2004) (same); United UnitedStatesv. States v.Sovie, Sovie,122 122F.3d F.3d122, 122,125 (2dCir. Cir.1997) 1997)(fuz'ther (furtherrequiring requiringaashowing showingthat, that,"on "on[the [the . threat's] face and in the circumstances to which it is made, made, it is is so so unequivocal, unequivocal, unconditional, unconditional, immediate and specific as to the person threatened, as to convey a gravity of pwpose purpose and imminent prospect of execution") (internal quotation omitted); see see generally generally44Wharton's Wharton'sCriminal Criminal Law § 462 (15th 1996) constitute a threat, Law § 462 (l5th ed. ed. 1996) (to (to constitute a threat, . "the test is not whether the the victim feared for his his life or believed he he was was in indanger, danger,but but whether whetherhe he was wasactually actuallyin in . danger," carry out the the proscn'bed proscribed acts). acts). CIA CIA interrogators interrogators do do not not danger," presumably due to the intention of the defendant to can)' tell that would rise rise to the the level level of "serious "serious physical physical tell the the detainee that, that, absent absent cooperation, they will inflict conduct that w pain or suffering. that "serious physical pain or suffering." Nor do they engage in suggestive physical acts that indicate that suffering** will ensue. Prosser and Keeton, The Lawa/Torts, of Torts,§ §10, 10at 44(5th (5thed. ed.1984) 1984)(actionable (actionablenon-verbal non-verbal f at44 The Law suffering" threats indicate that it it may the defendant defendant presents presents aa weapon weapon in in such such aa condition condition or or manner JIla."U1er as as to to indicate may threats occur occur "when "when the immediately such affirmative affirmative conduct conduct by by the the CIA, CIA. the the detainee's detainee's general general immediately be be made made ready ready for for use**). use"). Absent Absent any any such uncertainty uncertainty over over what what might might come come next next would would not not satisfy satisfy die the legal legal definition definition of of "threat." "threat." 22 P tHO~ SITE 15 OOJ (FO'tI)JUL 20 2007 15:.1/ST.15:10/NO. 6150"';2'777 ;> diagnosed. Such precautions demonstrate that that the the technique technique would would not not be be"calculated" "calculated"to to diagnosed. 22 22 hallucinations. produce hallucinations. I ! Whether the duration Whether or or not not aa hallucination hallucination of of the duration at at issue issue here here were were to to constitute constitute aa profound profound ofthe senses. we have concluded that the hallucination would not be long enough disruption disruption of the senses, we have concluded that the hallucination would not be long enough to to : constitute "prolonged mental harm" under the definition of<Csevere mental pain or suffering" constitute "prolonged mental harm" under the definition of "severe mental pain or suffering" in in ( Section 1340 Opinion at 3940. The adjustment to this definition in the . the anti-torture statute. the anti-torture statute. Section 2340 Opinion at 39-40. The adjustment to this definition in the CIT offense-replacing offense—replacing "prolonged mental mental harm" harm" with with "serious and non-transitory mental harm; harm; (which need not be prolonged)"-does sleep deprivation technique. technique. The The prolonged)"—does not reach the sleep severity-some combination of ofduration modification is a refocusing refbcusing ofthe definition on severity—some duration and intensity-instead ofits prior reliance on duration alone. The new test still excludes intensity—instead of its on duration alone. The new test still excludes mental mental harm that is "transitory." Thus, mental harm that is "marked Thus, "marked by by the the quality qualityofpassing of passingaway." away," is: is; "of Dictionary at at "of brief duration," or "Iast[s] "lastfs] for minutes minutes or or seconds." seconds," see seeWebster's Webster'sThirdInt'J ThirdInt V Dictionary 244849, 2448-49, cannot qualify as "serious mental pain or suffering." Also relevant is the text's negation ofa requirementthat thatthe themental mentalharm harmbebe"prolonged." "prolonged." 1818U.S.C. U.S.C.§ §2441(d)(2)(E) 2441(d)(2)(E) of a requirement (providing that the mental harm that would constitute "serious physical pain or suffering" "need' "need not be prolonged"). prolonged"). These adjus"lll1ents, adjustments, however, do do not eliminate the inquiry into the duration of mental harm. Instead, the crr GIT offense separately requires that the mental hann harm be "serious." "serious." As As we we harm. ' explained above, above, tbe the tenn term "serious" "serious" does doesconsiderable considerablework workininthis this context, context,as asititseeks seeksto to breach of Common Common Aniele Article 3---conduet 3—conduct that that isis describe conduct that constitutes a grave breach mental harm harm be be "serious" "serious" directs directs us us to to universally condemned. The requirement that the mental appraise the totality of the circumstances. circumstances. Mental harm harm that is is particularly intense need not be long-lasting to be serious. Conversely, mental harm that, once meeting a minimum level of only jf if itit continued for aa long long period :. intensity, is not as extreme would be considered "serious" only of time. time. Read together. together, mental harm certainly "need not be prolonged" in ail all circumstances to of of mental effects would constitute "serious mental pain or suffering," but certain milder forms of of a significant duration to be considered "serious." "serious." For the the same reasons reasons that that the the need to be of short-lived hallucinations and othec other forms of of diminished diminished cognitive cognitive functioning functioning that may occur short-lived with extended lack of sleep would not be "significant "significant impairments ofa of a mental faculty." faculty," such mental conditions also would not be expected to result in "serious mental harm." crucial mental to mentaJ harm.» Again, crucial' to our analysis is that CIA personnel will intervene should any hallucinations or significant to that hallucinations or significant declines forms declines in cognitive functioning be observed and that any potential hallucinations or other fonn$ of of diminished cognitive functioning subside quickly when rest is permitted. I I 22 In determining that that sleep sleep deprivation deprivation would 'would not Dot be be "calculated in determining "calculated to to disrupt disrupt profoundly profoundly the the senses,.. senses," we we als~ also find it it relevant relevant that that the the CIA CIA would he find would not not employ employ this this technique technique to to confuse confuse and and to to disorient disorient the the detainee detainee so so that that he might inadvertently inadvertently disclose disclose information information_ Indeed, Indeed, seeking seeking to might to cause cause the the detainee detainee to to hallucinate hallucinate or or othernise otherwise (0 to become disoriented disoriented would would be be counter counter to to CIA's CIA's goal, become goal, which which is is to to gather gather accurate accurate intelligence. intelligence. Rather, Rather, CIA CIA interrogators would would employ employ sleep sleep deprivation deprivation to to wear wear down down the the detainee's detainee's resistance resistance and to secure and to secure his his agreement agreement to to interrogators talk in in return return for for permitting pennittjng him him to to sleep. sleep. Fatigue Fatigue also 21so reduces reduces the the detainee's talk detainee's confidence confidence in in his his ability ability to to lie lie convincingly and and thus thus suggests suggests to to the the detainee convincingly detainee that that the the only only way way of of obtaining obtaining sleep sleep isisto toagree agreeto toprovide provideaccurate accurate information. Once Once they they have have secured secured u^t that agreement, agreement, interrogators interrogators generally genenDy would would stop stop the the technique, technique, ·permit information. permit the the . detainee to to rest, detainee rest, and and then then continue continue the the questioning questioning when whenhe heisisrested restedand and in inaa better betterposition. positionto toprovide providemore more accurate and complete information, information. • j33 • i 23 ~~OM SITE 15 OOJ (FRI)JUL 20 2007 lS:11/ST. 15:10/NO. e150;;211777 cc. The The third offense offense at issue is "intentionally causing serious bodily injury." injury:' 18 U.S.C. U.S.C. 2441 (d)(l )(F). The Act defines defmes. the SBI SBr offense as as follows: follows: "The "The act act of of aa person person who who §§ 2441(d)(1)(F). attempts to cause, serious bodily injury to one or more InOje intentionally causes, causes. or or conspires conspires or or attempts intentionally persons, including including lawful lawful combatants, combatants, in in violation \<iolation of ofthe ofwar.',23 persons, the law of war." The War Crimes Act borrows the definition definition of of"serious bodily injury" injury" directly directlyfrom from the the federal federal assault statute, 18 18 "serious bodily borrows See 18 U.S.C. U.S.C. § 113. See U.S.C. § 2441(d)(2){B). 2441(d)(2)(B). The Thefederal federal assault assaultstatute, statute,ininturn, turn,incorporates incorporates i by reference the definition of of"serious bodily injury" in the "serious bodily the federal anti-tampering statute. statute. See See 18 U.S.C. § 113(b)(2). The anti-tampering statute states that: [T]he term "serious bodily injury" means bodily injury which involves— pTjhe iovolvesofdeath; (A) a substantial risk of death; exireme physical pain; (B) extreme (C) protracted and obvious disfigurement; or (0) protracted loss or impairment ofthe of a bodily member, (D) of the functions of faculty. organ, or mental faculty. I' 18 U.S.C. §§ 1365(h)(3). 1365(h)(3). Three Threeof ofthese theseresulting resultingeffects effects are areplainly plainlynot not applicable applicable to tothe the 18 U.S.C. above, the thetechniques techniquesinvolve involveneither neitheran an techniques under consideration here. As explained above, appreciably elevated risk of of death, much less less aa substantial substantial risk, risk, nor northe the imposition imposition of of extreme extreme physical pain, nor a disfigurement of any kind. kind. Indeed, Indeed, no no technique techniqueisis administered administered until until no medical medical contraindication to to the the use use of ofthe medical personnel have determined that there is no technique with that particular detainee. detainee. For reasons reasons we we explain explainbelow, below,sleep sleepdeprivation deprivation also also does not lead to "the 'the protracted loss loss or impairment impairment of the functions ofa bodily member, organ, faculty." or mental faculty." I I term in inthe thecontext contextofthe of the sleep sleepdeprivation deprivationtechnique technique This Office has analyzed a similar term example, we we determined determined that thatthe themild mildhallucinations hallucinationsthat thatmay mayoccur occurduring duringextended extended before. For example, Section2340 2340Opinion Opinion at 40. Both term "prolonged" sleep deprivation are not "prolonged." Section at 40. ·Both thethe tenn "prolonged" and the term."protracted" term, "protracted" require requirethat that the thecondition condition persist persist for for aasignificant significant duration. duration. We Wewere were :and be "prolonged." "prolonged." Nevertheless, Nevertheless, ; the amount oftime of time a condition must last to be reluctant to pinpoint the judicial determinations that mental harm harm had had been been "prolonged" "prolonged" under under aa similar similar definition definition of of the Torture Torture Victim Victim Protection Protection Act, Act,28 28U.S.c. U.S.C.§§1350 1350note, note,involved involvedmental mentaleffects, effects, , torture in in the torture stress syndrome, syndrome, that thathad hadpersisted persistedfor formonths monthsororyears yearsafter afterthe theevents; events.; including post-traumatic stress in Mehinovic v.v.Vuckovic, F. Supp. 2d 2d 1322, 1346 (N.D. Ga.Ga. 2002) (relying on on in question. question. See SeeMehinovic Vuckovic,198198F. Supp. 1322, 1346 (N.D. 2002) (relying the the fact fact that that "each "each plaintiff plaintiff continues continues to to suffer suffer long-term long-term psychological psychological harm harm as as aa result result ofthe of the ; ordeals they they suffered" suffered" years years after after the the alleged alleged torture torture in in determining determining that that the the plainti~ plaintiff experienced experienced ordeals "prolonged mental mental harm"); harm"); Sackie Sache v.v. Ashcroft. Ashcroft,270F. 270 F. Supp. 596, 601-02 (E.D. 2003) "prolonged Supp. 2d2d 596, 601-02 (E.D. Pa.Pa. 2003) The requires as TheSBl SBIoffense offenserequires asan anelement elementthat thatthe theconduct conductbebe"in "inviolation violationofofthe thelaw lawofofwar." war."There Thereare are i certain certain matters matters that thatthis thisrequirement requirementplaces placesbeyond beyondthe thereach reachof ofthe theSBL SBIoffense. offense. If,If,for forexample, example,aamember memberofofanan armed armed force force enjoying enjoying combatant combatant immunity immunity were weretotocause causeserious seriousbodily bodilyjnjuJy injuryononthe thebattlefield battlefieldpursuant pursuanttoto legitimate legitimate military militaryoperations, operations,the the SBl SBIoffense offense would wouldnot notapply. apply. The Theimposition impositionof"serious of "seriousbodily bodilyinjwy" injury"on onthose those in incustody custody in in certain certain circumstances, circumstances, such suchas astotoprevent preventescape, escape,would wouldalso alsonot notviolate violatethe thelaw lawof ofwar. war. See, See,e.g., e.g.. GPW An. 42. GPWAit42. 13 1] 24 P (FRIJJU,- 20 20C7 :S:11/ST. 15:10/11I0. e:5C.<:29771 ;> 1 (holding that that victim victim suffered suffered "prolonged "prolonged mental mental hann" harm" when whenhe hewas wasforcibly forciblydrugged druggedand and (holding threatened with with death death over aa period of four years).~4 years).24 By By contrast, contrast, at at least one one court has has held held that . the the mental mental trauma that occurs occurs over the course course of ofone oneday daydoes doesnot notconstitute constitute"prolonged "prolongedmental mental harm." Fresh DelDel Monte Produce, Inc.,Inc., 305 F. Supp. 2.d 1285, 1294-95 (SD. (SD. harm " Villeda ViUedaAldana Aldanav. v. Fresh Monte Produce, 305 F. Supp. 2d 1285,1294-95 Fla. 2003) 2003) (holding (holding that that persons persons who who were wereheld heldatatgunpoint gunpointovernight overnightand andwere werethreatened threatenedwith with . Fla. death throughout, throughout, but but who who did did not allege allege mental mental harm harm extending extending beyond that period oftime, of time, had TVPA). Decisions interpreting "serious bodily "prolonged mental harm" harm" under the the TVPA). not suffered ·'prolonged 18 U.S.c. U.S.C. §§1365(hX3) 1365(hX3)embrace embracethis thisinterpretation. interpretation. See SeeUnited UnitedStates Statesv.v.Spinelli, Spinelli, : injury" under 18 352 F.3d F.3d 48, 48, S9 59 (2d (2d Cir. Cir. 2003) 2003) (explaining (explaining that that courts courts have have looked looked to to whether whether victims victims "have "have 352 s, a traumatic physical injury suffered from lasting psychological debilitation" persisting long after from debilitation" a traumatic physical injury :' "protracted impairment" impairment" has has occurred); occurred); United UnitedStates Statesv.v.Guy, Guy,340 340F.3 F.3d in determining whether a "protracted d t .655 (8th Cir. Cir. 2003) (bolding (holding that persistence ofpost-traumatic of post-traumatic stress syndrome more than one ' 655 of the function of a ... . . . mental mental faculty")~ faculty"); year after rape constituted a "protracted impairment ofthe Statesv.v.Lowe, Lowe,145 145 F.3d 1998) (looking to psychological months UnitedStates United F.3d 45,45, 53 53 (1st(1st CiT.Cir. 1998) (looking to psychological carecare ten ten months . after an incident as as evidence ofa of a "protracted impairment"). impairment"). In the absence ofprofessional of professional .-. psychological care in the the months months and years years after an an incident incident causing causing bodily bodily injury, injury, courts courts have have on occasion turned away claims that even extremely violent acts caused a "protracted function of of a. a ... faculty." See, See, e.g., States v. v. Rivera, 83 83 F.3d impairment ofthe of the function .. mental faculty." e.g..United United States Rivera, F.3d ' 542, 548 (Ist (1st Cir. Cir. 1996) (overturning sentencing enhancement based on a "protracted impairment"when impairment" when victim had not sought counseling in the the year year following incident). incident). Thus, Thus, whether medical professionals have diagnosed and treated such a condition, after these techniques have been applied, is certainly relevant to determining whether a protracted impairment of a mental faculty has occurred?S occurred.25 t i i Given the CIA's 96-hour time limit on continuous sleep deprivation, the hours between < when these mental conditions could be expected to develop and when they could become ofaa severity that 'CIA CIA personnel terminate the the technique technique would would not not be be of of sufficient sufficient duration duration to to satisfy; satisfy; the requirement that the impairment be "protracted." This conclusion is reinforced by the <. with one night of ofnormal medical evidence indicating that such conditions subside wira normal sleep. • I 1 i • '• " — i . I . i „.,i •—•• / " We We have have no nooccasion occasion in inthis thisopinion opinion to todetermine determinewhether whetherthe theintentional intentional infliction infliction of ofpost-traumatic post-traumatic I offense, CIA's CIA'S experiences with the thirty detainees with whom enhanced ii stress syndrome would violate the SBI offense. techniques have been used in the past, information from mililal:y military SERE SERE tJaining, training, suggest suggest that that neither neither the the *i past. as well as infunnation sleep deprivation technique, nor any ofthe of the other six six enhanced enhanced techniques, techniques, isislikely likelytotocause causepost-uaumatic post-traumaticstress stress ;.• syndrome. CIA medical personnel have examined these detainees for signs of post-traumatic stress S)'Ildrome, syndrome, and ;•• none of of the detainees has bas been diagnosed to surfer suffer from it. it. 24 M . 2$ There is also a question about the meaning of "bodily injul)'~ injury" in in the the SBI SBI offense. offense. As As explained explained above, above, ;i broader ami-tempering anti-campering statute defines the dte term "bodily injury*' injury" such that any "impainnent of the function of of . the broader "impairment of a .... . . mental faculty U.S.C. § l365(h)(4). 1365(h)(4). If this were the governing faculty" would woUld qualify qualify as a bodily bo4ily injury. 18 JSUS.C. , definition, physical injury injwy to fo the body would be required requiRd for one of of the specified specified conditions to constitute "serious "seriouS definition, no physical reasons to believe that incolpOrating incorporating this definition of "bodily injmy" injury" into the SBI offense offense bodily bodily injury." injuzy." There are l'ea5ons is wammted. Nevertheless, Nevertheless, whether whether a "bodily "bodily injury" injury" involving a physical condition is required for for the SBI : is not not warranted. offense the four offense is is not not a matter we must address here because because none of of the techniques at issue would implicate any of the'four conditions required definition of of "serious bodily bodily injury," injury," even in the absence of of any separate physical . required under the definition injury injury requirement. 25 ~----------- - _... _ - - - - - . _ - _.. _ . _ . - -_. -_.-._-_. __ .. _ - - .. -------------' (FRO';UL :1:0 2C01 15:11/ST.15;;O/'':O.e;IlO.c29777 P D. Our analysis ofthe of the War Crimes Act thus far has has focused on whether the application of a; a proposed interrogation technique-in technique—in particular, extended sleep deprivation—creates deprivation--creates physical or the specific thresholds thresholds established in in the the Act. Act, We We have have addressed addressed ; mental conditions that cross the the context context ofthe of the anti·torture anti-torture statute, statute, and concluded there ; questions of combined use before in the here did did not not result result in in the the imposition imposition of of of the six techniques at issue here that the combined use ofthe A Rizzo, Senior Deputy General Counsel. Counsel, "extreme physical pain." Memorandum for John A. Central Intelligence Agency, from G. Bradbury. Bradbury, Principal Deputy Assistant Attorney from Steven G. of Legal Counsel, Re: Application Applicationofof1818u.s.c. U.S.C 2340-2340A toCombined the Combined §§§§ 2340-2340A to the General, Office ofLegal of CertainTechniques Techniques in the Interrogation of High al Oaeda Detainees (May :10, Use afCertain Use in the Interrogation a/High ValueValue al Qaeda Detainees (May 10, 2005). Thi.s This conclusion is important here because CCextreme "extreme physical physical pain" pain" isis the the speCified specified pain pain j; 2005). CTToffense offenseand andthe theSBI SBIoffense, offense,ininaddition additiontotothe thetorture tortureoffense. offense. See See1818 threshold for the CIT 2441(dX2)(D)(2), 113(b)(2)(B). 113(b)(2)(B). With With regard regard to to elements dements of of the the War War Crimes Crimes Act Act U.S.C. U.S.C. §§ §§ 2441(dX2)(D)(2), concerning "impairments," CIA observations of the combined use of these techniques do ofthe of these techniques do not not : concerning"impairments,'" suggest that the addition of other techniques during duringthe theapplication application of ofextended extendedsleep sleepdeprivation deprivation to' would accelerate or aggravate the cognitive diminishment associated with the technique so as ~ and SBI SBI offenses. offenses. Given Given the the particularized particularized elements elements set set reach the specified thresholds in the CIT and of the six techniques now proposed by forth in the War Crimes Act, the combined use ofthe by the CIA . the Act. Act. would not violate the E. . The War Crimes Act addresses conduct that is is universally universally condemned condemned and and that that constitutes grave breaches breaches of Common Article 3. 3. Congress Congress enacted the statute to to declare· declare our ; Nation's comm.i.tment commitment to those Conventions and to provide provide our our personnel personnel with with clarity clarity as as to to the the boundaries ofthe of the criminal conduct proscribed under Common Common Article Article 33 ofthe of the Geneva Geneva . conclude that that the the six sixtechniques techniques proposed proposed for for Conventions. For the reasons discussed above, we conclude CIA, when used in accordance with their accompanying limitations and safeguards, do use by the CIA, the specific offenses established by by the theWar WarCrimes CrimesAct. Act. .• . not violate the m. m For the reasons discussed in this Part, the proposed interrogation techniques also are consistent with the Detainee Treatment Act. Act. A. I ! The DTA DTA requires requires the the United United States Statesto tocomply complywith withcertain certain constitutional constitutional standards standards in in the the of all persons in the custody or control ofthe of the United States, regardless of the ofthe I treatment ofall nationality ofthe ofthe provides that "(n]o of the person or the physical location of the detention. The DTA provides individual in the custody or under the physical control ofthe of the United States Government, of nationality or physical location, shall be subject regardless ofnationality subject to cruel, inhuman, or degrading : 1403(a). The Act defines "cruel, inhuman, or degrading treatment or punishment." DTA § 1403(a). follows: treatment or punishment" as follows: 26 1 <FR Il JUL 20 2007 ; S: 11 /ST. is: I O/NO. ei 50'29777 P 1 I In la this section, the term "crueL "cruel, inhuman, or degrading treatment or punishment" means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution ofthe of the United States. States, as defined in the United States ReseIVations, Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms ofCruel, of Cruel, Inhuman or Degrading Treatment or Punishment done at New York,DecemberlO,1984. York, December 10, 1984. i 1403(d). 226* DTA § Taken as a whole, the DTA imposes a statutory requirement that the United {{ States abide by the substantive constitutional standards applicable to the United States under its :" reseIVation reservation to Article 16 ofthe of the CAT in the treatment of detainees, regardless oflocation of location or citizenship. citizen~hip. ; ! terms, Article 16! The change in law brought about by the DTA is significant. By its own tenns, 16. [the] jurisdiction" ofthe of the signatory signatory party. party. In In addition: addition,' of the CAT applies only in "territory under [the] of the constitutional provisions invoked in the Senate reservation to Article 16 generally do not . of their own force to aliens outside the tenitory territory of of the United States. See Johnson apply oftheir Johnson v. Eisentrager, 339 U.S. 763, 782 (1950); United States Slates v. v. Verdugo-Urquidez, Verdugo-Urquidez,494 494U.S. U.S.259, 259,269 269 s (1990); see also United States v. v. Belmont. Belmont,301 301U.S. U.S.324, 324,332 332(1937); (1937);United UnitedStates Stalesv.v.CurtissCurtiss- l , (1990); Wright Export Export Corp., 299 U.S. U.S. 304, 318 (1936). Thus, before the enactment ofthe of the DTA, United States personnel were not legally required to follow these constitutional standards outside the " of the United States as to aliens. Nevertheless, even before the DTA, it was the policy territory ofthe policy.• of the United States to avoid cruel,. cruel, inhuman, or degrading treatment. treatment, within the meaning of of the ,. ofthe • U.S. reservation reservation to to Article Article 16 16oftbe of the CAT, CAT,of ofany anydetainee detainee ininU.S. U.S. custody, custody, regardless regardless ofJocatiort of location .U.S. &\n.l. n.l. The Thepurpose purposeofthe of theDTA DTAwas wastotocodify codifythis thispolicy policyinto intostatute. statute. i ; or nationality. See supra at B. Although United States obligations under Article 16 extend to "the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of of the United States." States," only the Fifth Amendment is directly relevant here. The Fourteenth Amendment provides, in relevant part: "No State shall. .. , shall... deprive any person of of life, liberty, liberty. or property, without due process of oflaw." (Emphasis added.) law." added.))I This Amendment Amendment does not apply to actions taken by the federal Government. See, e.g., e.g.• San San ; I i ' . 26 The purpose of the U.S. reservation to Article 16 of of the the Convention Convention Against Torture Torture was was ro to provide provide CIJ clear ofllie "cruel, inhuman, or degrading" treatment or punishment based on United States law, ; . meaning to the definition of of"croel, particularly to guard against any expansive interpretation of "degrading" under Article 16. See Summary and of"degrading" Analysis of of the Convention Against Torture and Other Cruel, Crue~ Inhuman Inhwnan or Degrading Treatment or Punishment, in : S. Treaty Treaty Doc. Doc. No. No. 1()()'20, 100-20, at at 15-16 15-16("Executive ("ExecutiveBranch BranchSummary Summaryand andAnalysis Analysisof ofthe theCAT"); CAT);S.S.Exec. Exec.Rep. Rep.101-: 101-: 30, Convention AgainstTorture Torture Other Cruel, Inhuman or Degrading Treatment or Punishment at 25-26 (Aug' COllVention Against andand Other Cruel. hlhuman or Degrading Treatment or Punishment at 25·26 (Aug.' to be be coexrensive coextensive with with the the constitutional constitutional guarantees guarantees against against cruel; cruel; 30,1990). 30, 1990). The reservation "construes "'construes the phrase to unusual, and inhumane treatment" Executive BranchSummary Summary andAnalysis of the S. Exec. 101-30 Execuffve Branch andAnalysis o/the CA CAT'at T at IS: 15; S. EXeG. Rep.Rep. 101-30 at 25. Accordingly, the DTA does not prohibit all "degrading" term; instead, ;• "degrading" behavior in the ordinary sense of the lenn; the prohibition extends "only insofar as" the specified constitutional standards. 136 136 Congo Cong. ReG. Rec.36,198 36,198(1990). (1990). Ui 27 FRO~ SITE IS DOJ . (FR1)JU!.. 2C 2007 lS:11/ST. 15:10/NO. 6160L29777 & Athletics, Athletics,Inc. Inc. v.v. United UnitedStates StatesOlympic OlympicComm., Comm.,483 483U.S. U.S.522, 522,542 542n.21 h.21 Francisco Arts & (1987); Bollmgv. Bollingv. Sharpe, Sharpe, 341 347 U.S. U.S. 497, 497,498-99 (1954). (1981); 498-99 (1954). . I Amendment prohibits the infliction of "cruel and unusual punishments." As ! The Eighth Amendment the Supreme Court repeatedly has held, the Eighth Amendment does not apply until there has been a "formal adjudication of guilt." See See Bell v.v. Wolfish, Wolfish,441 441U.S. U.S.520,535 520, 535n.16 n.16(1979); (1979); v. Wright, Wright, 430 430U.S. U.S.651,671 651,671n.40 n.40(1977); (1977);see seealso alsoInInrereGuantanamoDetainee Guantanamo DetaineeCases,: Cases,: Ingraham v. 355 F. F. Supp. Supp. 2d 443,480 443, 480 (D.D.C. (D.D.C. 2005) 2005) (dismissing detainees' Eighth Eighth Amendment claims 355 . "the Eighth Amendment applies only after an individual is convicted of a crime"). crime"). The ! because ''the of the Eighth Amendment under the the reservation to Article Article 16 16 was expressly: expressly limited applicability ofthe deliberations: recognized by the Senate and the Executive Branch during the CAT ratification deliberations: of cruel and unusual punishment is. is, of of the The Eighth Amendment prohibition of reservation], the most limited three [constitutional provisions cited in the Senate reservation], in scope, as this amendment has consistently been interpreted as protecting only Wright,430 430U.S. U.S.651. 651,664 664(1977). (1977). The The of crimes." Ingraham Ingraham v.v. Wright, "those convicted of does, however, afford protection against torture and iIlillEighth Amendment does, of criminalpunishment. criminalpunishment. treatment of persons in prison and similar situations of of the Convention Against Torture and Other CrueL Cruel, Inhuman or Summary and Analysis ofthe S. Treaty Doc. No. 100-20, at 9 (emphasis added) Degrading Treatment or Punishment, in S. ^'Executive Branch Summary and Analysis ofthe of the CA CAT'). none of the high value value C'Erecutive T'). Because none of . detainees on whom the CIA might use enhanced interrogation techniques has been convicted of any crime in the United States, the substantive requirements of the Eighth Amendment are not 2 here.27 ' ; directly relevant here.: ! I The Due Process Clause ofthe of the Fifth Amendment forbids the deprivation of of "life, liberty, liberty,) of law." Because the prohibitions of the DTA are directed at or property without due process of "treatment or punishment," application ofthe of the procedural aspects ofthe of the :: punishment, n the Act does not require appJication Fifth Amendment. The DT DTA Fifth A provides for compliance with the substantive prohibition against : "cruel, inhuman, or degrading treatment or punishment" as defined by the United States reservation to Article 16 of of the CAT. The CAT recognizes such a prohibition to refer to serious. serious ~ abusive acts that approach, but fail fall short of, the torture elsewhere prohibited by the CAT. See . CAT Art. 16 (prohibiting "other cruel, inhuman, or degrading treatment or punishment which do dti not amount to tQ torture"). tonure"). The term "treatment" therefore refers to this prohibition on substantive 1 conduct, conduct. not to the process by which the Government decides to impose such an outcome. The , addition of the term "punishment" likewise suggests a focus on what actions or omissions are ofthe "punishment"likewise i v 27 This is not to say that that Eighth Eighth Amendment Amendment standards standardsare areof ofno noimportance importanceininapplying applyingthe theDTA DTAtotoprepre- . conviction interrogation practices. The Supreme Court has made clear tha1 that treatment amounting to punishment : Salerno, 481481 U.S.U.S. 739,746-47 (1987); . without a trial would violate the Due Process Clause. Clause. See SeeUnited UnitedStotesv. States v. Salerno, 739,746-47 (1987); City ofRevere of Revere\'.v.Mass. Mass.General General Hasp., Hosp., %3463 U.S.U.S. 239,239,244 244 (1983); (1983); Wolfish, Wolfish, 441 U.S. 441 at U.S. 53S·36 at 535-36 & nn.16-17. & rm.16-17. . Treatment amounting to "cruel and unusual punislune!J1" punishment" under the Eighth Eighth Amendmem Amendment also also may may constitute prohibited "punishment" under course, the theConstitution Constitution does doesnot notprohibit prohibitthe theimposition imposition;i Wlder the Fifth Amendment. Of course, of violate administrative administrative rules rules while whilelawfully lawfully detained. detained See, See,e.g., e.g.,Sandin Sandin of certain sanctions on detainees who \iolate v. v. Connor, 515U.~. U.S.472, 472,484-85 484-85(1995). (1995). Connor, 515 28 p 1 <FRI),IUL 20 2C07 ,5:11/ST.1S:10/NO. 6:eO<l29777 ultimately effected effected on on aa detainee-not detainee—not upon uponthe theprocess processfor fordeciding decidingtotoimpose imposethose thoseoutcomes. outcomes, ultimately Cf. v. Ada,' 528528 U.S. 250, 255255 (2000) (observing thatthat the the interpretation of aofstatutory Cf.Guitie"ez Guitierrez v. Ada, U.S. 250, (2000) (observing interpretation a statutory term term "that "that isis capable capable of of many many meanings" meanings"isisoften often influenced influenced by by the the words wordsthat that surround surround it). H). Moreover the DTA itself includes extensive and detailed provisions dictating the process Moreover,, the DTA itself includes extensive and detailed provisions dictating the processto tobe be .: afforded certain detainees detainees in military custody. custody. See SeeDTA DTA§§1405. 1405. Congress's Congress'sdecision decisiontotospecify specify : detailed detailed procedures procedures applicable applicable to to particular detainees detainees cannot cannot be be reconciled with with the the notion notion that the the DTA DTA was wasintended intended simultaneously simultaneously to to extend extend the theprocedural procedural protections protections of ofthe theDue DueProcess Process theUnited United Statts. States. Clause generally generally to to all all detainees detainees held held by by the Rather, Rather, the the substantive component of the the Due DueProcess ProcessClause Clausegoverns governswhat whattypes typesof of treatment, including what forms of interrogation, interrogation, are are permissible without trial trial and and conviction. conviction. is one that that the the Supreme Supreme Court Court confirmed confirmed as asrecently recently as as2003 2003ininChavez Chavezv.v. This proposition is Martinez,538 538U.S. U.S.760 760(2003). (2003).See Seeid.id.at at 779-80,jd.idat at 773 (plurality opinion); at 787 Martinez, 779-80, 773 (plurality opinion)~ id. id. at 787 (Stevens. (Stevens, J.,conCUITing J., concurring in part and dissenting in in part). part). Further Further reinforcing reinforcing this this principle, principle, aa majority of the Justices recognized that the Self-incrimination Self-Incrimination Clause—instead Clause-instead of of proscribing from being used . particular means means of interrogating suspects-only suspects—only prohibits coerced confessions from criminalconviction. conviction.See See Chavez, at 769 (plurality opinion, joined by four to secure a criminal Chavez, 538538 U.S.U.S. at 769 (plurality opinion, JOIned by four . ("[Mjere coercion does not violate the the text text ofthe of the Self-Incrimination Self-incrimination Clause absent use use ;i Justices) ("[MJere the V'.-itness."); witness."); id. id.atat778 778(Souter. (Souter,J.•J., of the compelled statement in a criminal case against against the ofthe concurring in the judgment) (rejecting the the notion notion of of aa"stand-alone "stand-alone violation violation of ofthe the privilege privilege subject to compensation" whenever "the police obtain any involuntary self-incriminating statement"). process protects protects against against interrogation practices that In this regard, substantive due process "shockfj the conscience." Rochin California,342 342 U.S. 165,172 (1952); also County "shock£] Rochin v.v.California, U.S. 165, 172 (1952); seesee also County of of Sacramentov.v.Lewis, Lewis,523 523 U.S. 833, 846 (1998) ("To half a century now have Sac:r:.amento U.S. 833, 846 (1998) ("To thisthis end,end, forfor half a century now wewe have spoken of the cognizable level of power as that which shocks the ofthe of executive abuse of ofpower 28 conscience."). focus on on whether whether the the interrogation: interrogation . conscience. 'l21 The shocks-the-conscience inquiry does not focus was coercive, which is the relevant standard for whether a statement would be admissible in in court. SeeMalloy v. Hogan, 378 U.S. 1, 7 (1964) ("Under [the Self-incrimination Clause], See Malloy v. Hogan. 378 U.S. 1, 7 (1964) ("Under [the Self-Incrimination Clause], thethe : constitutional inquiry is not whether the conduct of the state officers confession • ofthe officers in obtaining the confession, was shocking, but whether the confession wasfree voluntary."). Instead, the "relevant free and voluntary."). liberty is notfreedom from freedom from unlawful interrogations but butfreedom freedomfrom from severe bodily or mental harm inflicted an interrogation." WiMns May,872 872F.2d F.2d190, 190,195 195(7th (7thCir. Cir. , ofan Wilkins v.v.May, inflicted in the course of 1989) (Posner, in the the law law enforcement context. context, there' there (posner, J.). 1.). In order to cross that "high" threshold in must be "misconduct that a reasonable person would find so so beyond beyond the the nonn norm ofproper of proper police police 28 28 It publicly recognized thatthat theihe Fifth Amendment's "shocks the conscience" test test Uhas hasbeen beenwidely widelyand and publicly recognized Fifth Amendment' s "shocks the conscience" intelrogation of suspected terrorists regarding futuR terrorist. attacks, supplies the thelegal legalstandard standardapplicable applicabletotothethe interrogation of suspected terrorists regarding future terrorist attacks,I pursuant to the theU.S. U.S.reservation reservationtotoArticle Article1616ofof CAT theA.DTA. conclusion was reached, thethe CAT andand thusthus the DT ThisThis conclusion was reached, for for example, by a bipartisan group of policymakers, chaired chaired by byPhillip PhillipHeymann, Heymann, Deputy Deputy Attorney Attorney of legal scholars and policymakers, General during the Clinton LongTerm TermLegal LegalStrategy Strategy Projectfor Preserving Security Ointon Administration. See Long Project/or Preserving Security and and Democratic FreedomsininWar WarononTerrorism Terrorism (Harvard 2004). The Department Justice also publicly announced 23 23 (HlUVard 2(04). 11le Department of of Justice also pubUcly announced Democratic Freedoms this part of the DTA. See of its interpretation interpretation of of Article 16 in congressional testimony, prior to the enactment enactment of ofthe See . Prepared Prepared Statement Statement of ofPatrick Patrick F. F. Philbin, Philbin, Associate Associate Deputy Deputy Attorney Attorney General, General, before the Permanent Pennanent House Select Committee ofDetainees Detaineesininthethe Global on Terror 14,2004). Committee on on Intelligence, Intelligence, Treatment Treatment 0/ Global WarWar on Terror (July(July 14,2004). 29 ? 1 F~OM $I,e IS 00.1 (FRI>JUL 2':: 2007 '1S:;2/ST. 15::0/NO. 816C42e777 po . I •i 1 procedure as to to shock shock the the conscience, conscience, and and that that isiscalculated calculated totoinduce inducenot notmerely merely momentaty momentary fea:r fear anxiety, but severe mental suffering. suffering." [d. Id. or anxiety, , IS I As we discuss in more detail below, below, the the"shocks "shocksthe theconscience" conscience"test testrequires requiresaabalancing balancing of interests that leads to a more flexible standard than the inquiry into coercion and of standard than the inquiry into and voluntarines~ voluntariness that accompanies the introduction ofstatements trial, and and the governmental interests of statements at a criminal trial, at stake may vary with the context. context. The The Supreme Supreme Court Court has has long long distinguished distinguished the the government: government •: interest in ordinary law enforcementfrom from the more compelling interest in safeguarding national; national! made this this distinction distinction clear clear in in the the due due process process context: context: Th~ The security. In 2001, the Supreme Court made "appl[ied]| government interest in detaining illegal aliens is different, the Court explained, when "appl(ied]! narrowly to a small segment of particularly dangerous individuals, say, suspected terrorists." Zadvydas Davis,533 533 U.S. 678, 691 (2001). This proposition is echoed in Fourth Amendment Zadvydas v.v.Davis: U.S. 678, 691 (2001). This proposition is echoed in Fourth Amendment jurisprudence as well, well, where "special needs, needs, beyond the normal need for law law enforcement," enforcement," can; canVernoniaSchool SchoolDist. 47Jv. Acton, justify searches. Vernonia justify warrantless or even suspicionless searches. Disl. 47Jv. Acton, 515515 U.S"U.S. 646, 653 (1995). (1995). In this way, way, "the [Supreme] [Supreme] Court Court distinguishe[s] distinguished] general general crime crime control control 646,653 of citizens against • programs and those that have another particular purpose, such as protection ofcitizens special hazards or protection ofour of our borders." re Sealed SealedCase, Case,310 310F.3d 717,745-46 745-46(For. (For. borders." In re F.3d 717, Intel. Surv. Ct. Rev. 2002). Indeed, in one Fourth Amendment case, the Court observed that Swv. case, the Court observed that "sanction [automobile] stops justified only only by by the thegeneral general interest interest inin crime crime . while it would not «sanction control," a "roadblock set up to to thwart thwart an an imminent imminentterrorist terrorist attack" attack"would wouldpresent presentan anentirely entirely contro~" different constitutional question. Indianapolis Edmond, (2000). different Indianapolis v. v. Edmond, 531 531 U.S.U.S. 32, 32,44 44 (2000). c c. I . - ! ! Application ofthe conscience" test test isis complicated complicated by by the the fact fact that that there there are are ! of the "shocks the conscience" relative}y relatively few cases in which courts have haveapplied applied that that test, test, and and these thesecases cases involve involvecontexts contextsand andi > interests that differ differ significantly from those of of the the CIA CIA interrogation interrogation program. program. The TheCourt Court in in . County emphasized thatthat there is "no calibrated yard stick" with which to to CountyofSacramento of Sacramentov. v.Lewis Lewis emphasized there is "no calibrated yard stick" with which 523 U.S. U.S. 81847. at 847. To To tbe the contrary, contrary, "[rJules. "[rules determine whether conduct "shocks the conscience." 523 of due process are not not... territory." Id. Id. at at 850. 850.:: ofdue ... subject to mechanical application in unfamiliar tenitory." A claim that government conduct "shocks the the conscience," conscience," therefore, therefore, requires requires «an "an exact exact analysis analysis of circumstances." Id Id. The Court has has explained: explained: of The phrase [due process oflaw] of law] fonnulates formulates a concept less rigid and more fluid fluid of than those envisaged in other specific and particular provisions ofthe of the Bill of Rights. Its application is less aa matter matter of of rule. rule. Asserted Asserted denial denial is is to to be be tested tested by by Rights. an appraisal ofthe totality of facts in a given case. That which may, in one of the of a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal setting> sense ofjustice, of other considerations, ofjustice, may, in other circumstances, and in light of denial. fall short of such a denial. Id. 316U.S. U.S.455, 455,462 462(1942»; (1942));Robertson Robertson v. City ofPiano, Id at 850 (quoting Beits Betts v.v. Brady, Brady, 316 v. City ofPlano, 70 70 F.3d 21, 24 (5th Cir. 1995) ("It goes without saying that, in determining whether the constitutional line has been crossed, the the claimed claimedwrong wrongmust mustbe beviewed viewed ininthe thecontext contextininwhich whichitit occurred."): ; occurred."); In evaluating the techniques in question, Supreme Court precedent therefore requires us to analyze the circumstances underlying the CIA interrogation program-limited program—limited to ; 30 L__ _ 0 --' (FRI)JUL 2C 2007 1~:n!/ST. 15:10/NO. 615C~2~777 high value terrorist detainees detainees who who possess possessintelligence intelligencecritical critical to tothe the Global Global War War on on Terror-and Terror—and this , this clearly is not a context th~ that has has arisen under existing federal court precedent. In context, however, two general principles areare relevant forfor determining whether >Inany any context, however, two general principles relevant determining whether The test requires first an inquiry into whether the . executive conduct "shocks the conscience." executive conduct "shocks the conscience." The requires first into conduct is "arbitrary in the constitutional sense," that that is. is, whether whether the conduct is proportionate to· to the government interest involved. See Lewis, involved. See Lewis,523 523U.S. U.S.atat846. 846.Next, Next,the thetest testrequires requires consideration of whether the conduct is is objectively "egregious" "egregious" or "outrageous" in light of traditional executive behavior and contemporary practices. See See id id at at 847 847 n.8. n.8. We We consider each element in tum turn. 1. 1- the~ Whether »Whethergovemment governmentconduct conduct"shocks "shocksthe theconscience" conscience"depends dependsprimarily primarilyononwhether whether the. conduct IS "arbitrary in the constitutional sense," that is, whether it amounts to the "exercise of is of . power without any reasonable justification in the the service service of a legitimate governmental objective:' objective." Id, Id, 523 523 U.S. U.S. at at 846 846 (internal (internal quotation quotation marks marks omitted). omitted). "[C]onduct "[CJonduct intended to to injure in some way unjustifiable by any any government government interest interest isis the the sort of official action most likely to rise to the conscience-shocking level," although deliberate indifference indifference to the risk of of inflicting such unjustifiable . unjustifiable injury might also "shock the the conscience." conscience." [d. Id.atat849-51. 849-51. The The "shocks the conscience" conscience" test therefore requires consideration of the justifications underlying such justifications determining its propriety. propriety. conduct in detE:rmi.ning Thus, we must look to whether the relevant conduct furthers a government interest, and to Thus, .&, the nature and importance ofthat ...; of that interest. Because the Due Due Process Process Clause Clause "lays "lays down down [no] [no]...; imperative," the the Court Court has has"repeatedly "repeatedly held held that that the the Government's Government's regulatory regulatory intereSt interest categorical imperative," can, in appropriate circumstances, circumstances, outweigh an individual's liberty in community safety can, UnitedStates Statesv.v.Salerno, Salerno,481 481 U.S. 739, 748 (1987). U.S. 739, 748 (1987). i interest." United i Al Qaeda's demonstrated ability to launch sophisticated attacks causing mass casualties AI within the United States and against United States interests worldwide and the threat to the United States posed by al Qaeda's continuing efforts to plan and to execute such attacks indisputably implicate a compelling governmental interest of ofthe highest order. order. 'Tt "It is is 'obvious 'obvious the highest and unarguable" ofthe . unarguable' that no govemmental governmental interest is more compelling than the security of the Nation." U.S, v. Agee, Agee,453 453U.S. U.S.280. 280,307 307(1981) (1981)(citations (citationsomitted); omitted);see seealso alsoSalerno, Salerno,481 481 U.S: Nation." Haig v. 748 (noting that "society's interest is at its peak" "in times of war or insurrection"). The CIA at 748 ofwar CIA: interrogation program-and,·in interrogation techniques—is techniques-is i program—and, in particular, its use ofenhanced interrogation intended to serve this paramount interest by producing substantial quantities ofotherwise of otherwise intelligence. The CIA believes that this program "has been a key reason why alunavailable intelligence. 11 September 2001." Qa'ida has failed to launch a spectacular attack in the West since 11 Stevei^JSradburv^rincipal Memorandum for Steven G. Bradbu Principal Deputy Assistant Attorney General, Office Office of of : Chief Legal Counsel, fro fr°™flHHHHH|i > ^ a l Group, DCI Counterterrorist Center, Chief, Legal DCI Counterterrorist Center, • Re: Effectiveness Effectivenessof oftheUACounterintelligence InterrogationTechniques Techniques 2 (Mar. 2, 2005): .Re: t, e ounterintelligence Interrogation at 2at(Mar. 2, 2005) ^Effectiveness Memo"). Memo"). We We understand that use ofenhanced of enhanced techniques has produced (''Effectiveness ; h2s used used to to keep keep the theNation Nation safe. safe. As Asthe thePresident President,i significant intelligence that the Government has we could could not get anywhere else, else, the . explained, "by giving us information about terrorist plans we 31 p (FR I) JUl 20 2007 15: 1 2/ST. 15: 1 O/NC. 6160~2e777 program has has saved innocent lives." Address ofthe of the President, East Room, White House, September 6, 2006. 6,2006. t i For example, example, we underst3J1d understand that enhanced interrogation techniques proved particularly ! crucial in the interrogations of Khalid Shaykh Muhammad and Abu Zubaydah. Before the CIA! CIA used enhanced techniques in interrogating Muhammad, he he resisted resisted giving giving any any information information abolit aboiit future attacks, attacks, simply warning, "soon, you will know." know." As As the thePresident President informed informed the the Nation Nation iIi in his address, once enhanced techniques were employed, Muhammad provided his September 6th address, Wave," aa plot plot to to crash crash aa hijacked airliner into into the the Library Library information revealing the "Second Wave," Angeles—the tallest building on the West West Coast. Coast. Information obtained from from Tower in Los Angeles-the planning the the attack. Muhammad led to the capture .of many ofthe al Qaeda operatives planning Interrogations ofZubaydah-again, employed-revealed two al at of Zubaydah—again, once enhanced techniques were employed—revealed Qaeda openitives already in the Unrted States and planning to destroy a high rise apartment : operatives United building and to detonate a radiological bomb in in Washington, Washington, D.C. D.C. The techniques have revealed plots to to blow up up the the Brooklyn Brooklyn Bridge Bridge and and to torelease releasemass massbiological biologicalagents agentsininour ourNation's Nation's largest cities. cities. ! i United States military and intelligence operations may have degraded the capabilities of of al Qaeda operatives to launch terrorist attacks, but intelligence indicates that al Qaeda remains ~a grave threat. threat. In a speech last year, Osama bin Laden boasted of the deadly bombings in London and Madrid and warned Americans ofhis of his plans plans to launch terrorist attacks in the United States: States: : The delay in similar operations happening in America has not been because of failure to break through your security measures. The operations are under andYIJU you will willsee seethem iheminInYlJUr yourhlJmes homesthetheminute minute theyareare throughVYith with preparation and they through preparations. Allah 'Willing. willing. . preparations, Quoted at 19, 2006). In In August August at http://www.breitbart.com/2006/191D8F7SMRH5.html http://www.breitbart.coin/2006/19/D8F7SMRH5.html (Jan. 19,2006). 2006, British authorities foiled a terrorist plot-planned by aJ Qaeda-that intended 2006, plot—-planned al Qaeda—that simultaneouSly simultaneously to detonate more than 14 wide-body wide-body jets jets traveling traveling across across the the Atlantic Atlantic and and that 11, 2001, threatened to kill more civilians than al Qaeda's attacks on September 11,2001. There is some indication that these major attacks will originate as the recent airliner plot had, from terrorists based in the United Kingdom. continues. continues. This intelligence reinforces that the threat of terrorist attacks ofterrorist attacks posed posed by by al al Qaeda Qaeda 32 ;> • ~KQM SIr5 15 OOJ (FRI)JUL 20 2007 ;S: 12/ST. lS:10/NO. 6160'-29777 In addition to demonstrating a compelling government interest of of the highest order underlying the use ofthe techniques, the CIA will will apply apply several several measures measures that that will will tailor tailor the the of the techniques, program to that interest. interest. The The CIA CIA in in the thepast past has hastaken takenand andwill willcontinue continueto totake takespecific specific precautions to narrow the class of . of individuals individuals subject to to enhanced enhanced techniques. techniques. As As described described above, careful screening procedures are in in place place to to ensure ensure that that enhanced enhanced techniques techniques will will be be used used;i above, only in in the the interrogations interrogations ofagents of agents or members members ofal of al Qaeda Qaeda or or its its affiliates affiliates who who are are reasonably reasonably ) only can be be used to prevent future terrorist attacks against believed to possess critical intelligence that can again~ the United States States and and its its interests. interests. The Thefeet that enhanced techniques have been used to date in r fact that enhanced techniques have in the interrogations ofonly of only 30 high value detainees detainees out ofthe of the 98 98 detainees detainees who, who, at at various times, times, i have been in CIA custody demonstrates this this selectivity. selectivity. This This interrogation interrogation program program is is not not aa have ; dragnet for suspected terrorists who might possess helpful information. will attempt simple questioning. Before enhanced !Before enhancedtechniques techniquesare areused, used,thetheCIA CIA will attempt simple questioning.Thus, Thus, enhanced techniques would be used only when the Director of the CIA considers considers them necessary because a high value terrorist is withholding or manipulating critical intelligence, or there is to obtain obtain such such intelligence. intelligence. Once Once approved, approved, enhanced : insufficient time to try other techniques to insufficient techniques would be used only as Jess less harsh techniques techniques fail or as as interrogators fWl run out out oftime of time in: techniques of an imminent threat, so that that itit would would be be unlikely that a detainee would would be be subjected subjected to to'j the face ofan more duress than is reasonably necessary to elicit the information sought. The enhanced more techniques, in other words, are are not not the thefirst option for for CIA CIA interrogators interrogators confronted confronted even even with with aa ; frrst option techniques,in high value detainee. detainee. These procedures target target the the techniques techniqueson on situations situations where where the the potentia.] potential for for saving the lives of innocent persons is the greatest. persons is the greatest. saving.the lives of As As important as carefully restricting tbe the number and scope of interrogations are the mitigate their their impact impact on on the the detainees detainees and and the the care care with with which safeguards the CIA will employ to mitigate the CIA chose chose these these techniques. techniques. The The CIA CIAhas hasdetermined determinedthat thatthe thesix sixtechniques techniqueswe wediscuss discuss the effective program designed to obtain the most : herein are the minimum necessary to maintain an effective valuable intelligence possessed by al Qaeda operatives. The CIA interrogation team and medical ensuring: personnel would review the detainee's condition both before and during interrogation, ensuring is any any reaSOD reason to believe their use would cause cause the the that techniques will not be used if there is adapted i harm. Moreover, because these techniques were ada~ detainee significant mental or physical harm. training,the theimpact impactof oftechniques techniquesclosely closelyresembling resemblingthose thoseproposed proposed •. fromthe themilitary's military'sSERE SEREtraining, from : by the the CIA has been the subject ofextensive of extensive medical studies. Each of these techniques also has 1 by ofthese has its experience with those been employed earlier in the CIA program, and the CIA now has detainees, including long-term medical and psychological observations, as an additional detainees, aDd empirical basis for tailoring this narrowly drawn program. These detailed procedures, and reliance on historical evidence, reflect a limited and direct focus to further a critical governmental interest, while at the same same time time eliminating eliminating any anyunnecessary unnecessary harm harmto to detainees. detainees. In: In: this context. context, the techniques are not "arbitrary in the the constitutional sense. sense."n this 2. i The substantive due process inquiry requires consideration of not only whether the The ofnot conduct is is proportionate to the government interest involved, but also also whether whether the theconduct conduct isis consistent with objective standards of conduct, as measured by traditional executive behavior and contemporary practice. practice. In this regard, the inquiry has has a historical element: element: Whether, and TO 33 P FRO~ SITE ~5 OOJ (FRI)JV!.. 2C 2C:l7 l5:12/ST. 15;lC//;/0. 51e;;42lH77 considered in light of"an oftraditional executive behavior, behavior, of ofcontemporary contemporary of "an understanding of traditional executive practice. practice, and ofthe of the standards ofblame of blame generally applied to them," use use ofthe of the enhanced interrogation techniques constitutes government behavior that "is «is so egregious, egregious. so 50 outrageous, . that it may may fairly fairly be be said said to to shock shock the the contemporary conscience." conscience." Lewis. Lev/is,523 523U.S. U.S.atat847 847n.8; n.8;see see also also Rochin, Rochin,342 342U.S. U.S.atat169 169("Words ("Wordsbeing.symbols being.symbolsdodonot notspeak speakwithout withouta agloss. gloss.On Onthe theone one hand the gloss gloss may may be be the the deposit deposit of of history. history, whereby whereby aa term termgains gainstechnical technical content."). content."). In In this this : detennine the extent to which which;' section, we consider examples in six potentially relevant areas to determine those other areas areas may may inform inform what what kinds kinds ofactions of actions would would shock shock the the conscience conscience in in the the context context of program. the CIA program. . In the proposed interrogation techniques techniques are are In conducting conducting the the inquiry inquiry into into whether whether the proposed interrogation we are are assisted assisted. by by our our prior prior consistent consistent with with established established standards standards of of executive executive conduct, conduct, we conclusion conclusion that that the the techniques techniques do do not not violate violate the the anti-torture anti-torture statute statute and and the the War War Crimes Crimes Act. Act. Congress "C?utrageous"i the federal federal criminal criminal law. law, prohibited certain "egregious" and "outrageous" Congress has, has, through through the acts, acts, and the CIA does not propose to use techniques that would contravene those standards. ~ Certain methods of interrogating even high-ranking terrorists-such terrorists—such as torture-may torture—may well violate the Due Process Clause, no matter how valuable the information sought. Clause, the information sought. Yet none none ofthe of the techniques at issue here. here, considered individually or in combination, constitutes torture, cruel or : law.· inhuman treatment, or the intentional infliction of serious bodily injury under United States law. See 2441. In See 18 18 U.S.c. U.S.C. §§ §§2340, 2340,2441. Inconsidering consideringwhether whetherthe theproposed proposedtechniques techniquesare areconsistent consistent with traditional executive behavior and contemporary practice, we therefore begin from from the premise that the proposed techniques are neither "arbitrary" as a constitutional matter nor of these federal criminal laws. violations ofthese , We have not found examples oftraditional of traditional executive behavior or contemporary practice Ii We interest—in that would condemn an interrogation program that furthers a vital government interest-in . particular, the interest in protecting United Stat~s States citizensfrom attacks— ; particular. from catastrophic terrorist attacksis carefully designed to avoid unnecessary or significant significant harm. ; and that is harm.. To the contrary, we these examples that there is is support support within within contemporary contemporary community standards : conclude from frOm these program, as it bas has been been proposed. proposed. Indeed, Indeed, the the Military Military Commissions Commissions for the CIA interrogation program. itself was proposed, debated, and enacted in no small part on the assumption that it would Act itselfwas forward. allow the CIA program to go forward. OrdinaryCriminal CriminalInvestigations. Investigations. Supreme Court addressed question Ordinary :TheThe Supreme Court hashas addressed thethe question whether various police interrogation practices "shock the conscience" and thus violate the Fifth Fifth i in the context oftraditional of traditional criminal Jaw law enforcement. In Rochin Rochin v.v.California. California,342 342 Amendment in U.S. 165 165 (1952), (1952),the the Court Court reversed reversed aa criminal criminal conviction conviction where where the the prosecution prosecution introduced introduced U.S. the forcibie forcible pumping ofthe of the defendant'"s defendant's evidence against the defendant that had been obtained by the stomach. The The Court's analysis focused on the the brutality of the the police police conduct at issue, issue, especially stomach. the intrusion into the defendant's body: the petitioner, the the struggle to open his mouth Illegally breaking into the privacy of the there, the forcible extraction of his stomach's contents— and remove what was there, ofhis contentsof proceeding by agents of the government to obtain evidence is bound this course ofproceeding to· the rack and to offend even hardened sensibilities. They are methods too close to differentiation. the screw to permit of constitutional differentiation. 34 : t P 2 (FRI)JU:.. 2::: ;:C07 ~5:'2/ST. 1S:10/NC. el~C';2e777 [d. States, 341341 U.S.U.S. 97 (1951), the the Court considered a a Id. at at 172. 172. Likewise, Likewise, in in Williams Williamsv.v.United United States, 97 (1951), Court considered conviction conviction under aa statute that criminalized depriving an individual of a constitutional right right under under color color of law. law. After identifying four suspects, suspects, the the defendant defendant used used "brutal "brutal methods methods to to obtain; obtain aa confession . 98. confession from from each each ofthem." of them." [d. Id. at at 98. A were A rubber rubber hose, hose, aa pistol, pistol, aa blunt blunt instrument, instrument, aa sash sash cord cord and and other other implements implements were in the project. One man was forced to look at a bright light for fifteen used used in the project. One man was forced to look at a bright light for fifteen minutes; minutes; when when be hewas was blinded, blinded, he hewas wasrepeatedly repeatedlyhit hitwith withaarubber rubberhose hoseand andaa finally knocked from aachair sash sash cord and andfinally knocked to to the thefloor. floor.Another Anotherwas wasmocked knockedfrom chairand and hit hit in in the the stomach again and again. again. He He was was put putback back ininthe the chair chairand and the the procedure was was repeated. repeated. One One was wasbacked backedagainst againstthe thewall wal Iand andjammed jammedininthe the chest with with a club. club. Each was beaten, threatened, and unmercifully unmercifully punished for several hours hours until he he confessed. confessed. [d. Id. at at 98-99. 98-99. The The Court characterized this brutal conduct as as "the "the classic classic use use of of force force to to make make aa i man man testify against himself' himself and had little difficulty concluding that the victim had been deprived of his rights under hisrights under the the Due Due Process Process Clause. Clause. [d. Id.atat101-02 101-02("[W]here ("[W]herepolice policetake takematters mattersinintheir their i untilthey they confess, confess, there therecannot cannotbe bethe theslightest slightest ! own hands, hands, seize seize victims, victims, beat beat and and pound pound them them until ovy'Tl doubt that the the police have deprived the the victim victim of of aa right right under the the Constitution."). Constitution."). Williams Williamsisis . significant because itit appears to be the only Supreme Supreme Court case to declare an interrogation the only never used used as as evidence evidence in in aa criminal criminal trial. trial. unconstitutional where its fruits were never Chavezv.v.Martinez, Martinez,538 538 U.S. 760 (2003), police questioned plaintiff, In Chavez U.S. 760 (2003), thethe police hadhad questioned thethe plaintiff, a a and believed he he was dying. dying. The plaintiffwas plaintiff was notl not gunshot wound victim who was in severe pain and was never never introduced introduced against him him in in aa criminal criminal case. case. : charged, however, and his confession thus was plaintiffs Self-Incrimination Self-incrimination Clause claim but remanded for The Supreme Court rejected the plaintiffs of the legality of of the questioning under the substantive due process standard. See ; consideration ofthe id. at at 773 773 (opinion of Thomas, J.); J.); id. id. atat778-79 778-79(Souter, (Souter,1.,J.,concurring concurringininjudgment). judgment). id. more restrictive standard than "shocks: "shocks ' Importantly, the Court considered applying a potentially more conscience"—a -standard standard that would have categorically barred all "unusually coercive" the conscience"-a . See id. id. atat783, 783,788 788(Stevens, (Stevens,1.,J.,concurring concurringininpart partand anddissenting dissentingininpart) part) interrogations. See and «a "a classic example ofa of a violation of a (describing the interrogation at issue as "torturous" and ordered liberty") (internal constitutional right implicit in the concept of ofordered (internal quotation quotation marks marks id. atat796 796(Kennedy, (Kennedy,1., J.,concurring concurringininpart partand anddissenting dissentingininpart) part)("The ("TheConstitution Constitution . omitted); id. omitted); official imposition of severe pain or pressure for purposes of does not countenance the official . interrogatioa This is true whether tie interrogation. the protection is found in the Self-incrimination Self-Incrimination Clause, the ~ Due Process Clause, Clause, or orboth."). both."). At At least least five five Justices, Justices, however, however, broader guarantees of the Due , of the due process inquiry required that the i rejected that proposition; the context-specific nature of standard remain whether an interrogation is conscience-shocking. See See id. id.atat774-16 774-76(Thomas, (Thomas,J.; joined by Rehnquist, C.J., and Scalia, J.); id. at 779 (Souter, J., concurring in the judgment, J.); id. at 179 (Souter, J., concurring in the judgment, joined by Breyer, 1.). J.). tThe The CIA program is much less invasive and extreme the conduct eA.-treme than tha.'l much of ofthe conductthat that the the generally Supreme Court has held to raise substantive due process concerns, conduct that has generally Rochiri)ororthe theinfliction inflictionot:of,ororindifference indifferenceto,to, involved significant bodily intrusion (as in Rochin) extreme pain and suffering (as in Williams and Chavez). As Judge Posner of the Seventh Circuit eA.1rerne pain and suffering (as in Williams and Chavez). As Judge Posner ofthe Seventh Circui~ 35 p • n ....·1 ~. I Co I':) VV..J (FRl)J:ll 20 2C07 15:'2/ST.15:10/NO. 6160~2"777 ? bounds of substantive has observed, the threshold defining police interrogations that exceed the bounds find so due process is a "high" one, one, which which requires requires "misconduct "misconduct that that aa reasonable reasonableperson personwould wouldfind so , as to to shock shock the the conscience, conscience, and and that that isis calculated calculated to to • beyond the norm of proper police procedure as induce not merely momentary fear or anxiety, anxiety, but but severe severe mental mental suffering." suffering." Wilkins, Wilfdns,872 872F.2d F.2d at 195. 195. In contrast, and as discussed in in detail detail below, below, the theenhanced enhanced interrogation interrogation techniques techniques at at . rise to issue here, ifapplied if applied by the CIA in in the the manner manner described in in this this memorandum, memorandum, do do not notrise tothat: thatconduct. The interrogators interrogators in in Williams Williamschose choseweapons--clubs, weapons—clubs,butts buttso{of level of brutal and severe conduct. cords—designed to inflict severe pain. pain. While While some some of ofthe the techniques techniques discussed discussed hereir} herein guns, sash cords-designed will involve the use use of of such such weapons weapons or orthe the purposeful purposeful !; involve physical phy~ical contact, none of them wilJ the CIA, CIA,none noneof ofthese thesetechniques techniquesinvolves involvesthe the infliction ofextreme of extreme pain. pain. As proposed by the . to efforts efforts to to "wring "wring confessions confessions from from 1 indiscriminate infliction of pain and suffering, or amounts to violence." Williams, Williams,341 341U.S. U.S.atat101-02. 101-02. the accused by force and violence." Moreover, the government interest at issue issue in ineach eachof ofthe thecases casesdiscussed discussedabove abovewas wasthe thei enforcement29 different from what general interest in law enforcement. 29 That government interest is strikingly different from what! of the CIA program: program: The The protection protection ofthe of the United United States States and and its its is at stake in the context ofthe that, as as experience proves, proves, may may result in in massive massive civilian interests against terrorist attacks that, Chavez casualties. Deriving an absolute standard ofconduct of conduct divorcedfrom from context, as Chavez not the the established application of the the "shocks "shocks the the conscience" conscience" test. test. Although Although demonstrates, is not the techniques techniques that that we weconsider considerherein. herein,neither neither does~ does; none ofthe above cases expressly condones the of them arise in the special context of protecting the any ofthem ofprotecting the Nationfrom from armed attack by a foreign : enemy, and thus collectively they they do do not not provide provideevidence evidenceof ofan anexecutive executivetradition traditiondirectly directly . enemy. we consider consider here?O here.30 . applicable to the techniques we UnitedStates SlatesMilitary MilitaryDoctrine. Doctrine.TheThe United States Army codified procedures United United States Army hashas codified procedures forfor 2006,the the ArmyFieldManual. FieldManual. On OnSeptember September6,6,2006, military intelligence interrogations in the Army ; ~ 29 :8 Williams which makes! Williamswas wasan anexample exampleofofaaprosecution prosecutionunder under whatisisnow nowcodified codifiedasas1818U.S.C. TJ.S.C.§ 242, § 242, which makes the constitutional rights while acting acting undec tindercolor colorof oflaw. law. Prosecutions Prosecutions it a criminal offense to violate the rights of another while 242 for for police policebeatings beatingsand andinterrogations interrogationsinvolving involvingthe dieexcessive excessivense useofforce, of force,but. but have been brought under section 242 courts have focused focused on on whether whetherthe the violent violent actions actionswere werejustified. justified. To Tothis thisend, end, c:ou.~ applying section 242 consistently have jury instructions for section 242 prosecutions ask the thejury jury to to d~ide decide whether whether the thevictim victim was was federal pattern paUemjury withoutjustification."Eleventh EleventhCircuit Circuit ; "physically assaulted, intimidated, or otherwise otheIVvise abused intentionally and withoutjustification.... (2003). Courts of appeals, appeals, particularl)' particularly after after the the Supreme Supreme Court's Court's clarification clarification of of the the Pattern Jury Instruction 8 (2003). "shocks the conscience'" conscience" standard in Lewis, Lewis,have haverepeatedly repeatedlyturned turnedtotowhether whetherthe theconduct conductcould couldbebejustified justifiedbybya a Cityofoflittle Little Rock, F.3d 1998). legitimate government interest Rogers Rogers v.v.City Rock, 152152 F.3d 790,790,797-98 797·98 (8th(8th Cir.Cir. 1998). 30 30 In the oonte>..1. context of detention for ordinary ordinary criminal law law enforcement enforcement purposes, purposes,as aswell wellas aspursuant pursuanttotocivil civil(; dueprocess processstandards standardsrequire require"safe "safeconditions," conditions,"includirig including commitment, the Supreme Court has held that substantive due shelter, clothing, and medical care." Youngberg Youngbergv.v.Romeo, Romeo, (1982). failure 457457 U.S.U.S. 307,307,315 315 (1982). TheThe failure to to "adequate food, shetter, provide sw:h such minimum treabnent, treatment, in most circumstances, would presumably "shock the the conscience." conscience.'' The Court b3s has manner, targeted at; at; not considered whether the government could departfrom from this general requirement in a limited marmer, protecting the Nation from prospective terrorist attack. attack. Nevertheless, Nevertheless, it is is informative informative that thatboth both the meconditions conditionsof of facilities, see seeMemorandum Memorandumfor forJohn JohnAA.Rizzo, Rizzo,Acting ActingGeneral GeneralCowtSe1, Counsel,Central CentralIntelligence Intelligence i; confinement at CIA facilities, from Steven G. G. BradoW)', Bradbury, Acting Acting Assistant Assistant Attorney Attorney General, General, Office Office of ofLegal Legal Counsel,App/ication Counsel, Applicationofofthe the Agency, from Detainee TreatmentAct ActtotoConditions Conditions of Confinement at Central Intelligence Agency Detention Facilities Detainee Treatment ofCo1ljinement ot Central Intelligence Agency Detention Facilities at 8 (Aug.at 8 (Aug. 31,2006), herein, see see irifra infraatat70-72, 70-72,compi}' cornpiywith withthe the"safe "safeconditions'! conditions'; 31, 2006), and the interrogation techniques considered herein, . standard. 36 :< FRO~ SITE 15 DOJ (FRI).JU!. 20 . 2007 ~5:f2/ST. lS:10/NO. 6i6C429777 of Defense issued a revised Army FieldManual2-22.3 Field Manual 2-22.3on onHuman HumanIntelligence Intelligence Department ofDefense version, like like its its predecessor predecessor Army ArmyField FieldManual 34-52,lists lists ; Collection Operations. This revised version, ManuaI3~52, and emotional tactics. tactics. In a variety of interrogation techniques that generally involve only verbal and interrogator might exploit the love "emotional love approach," for example, the .interrogator the "emotionallove (ove a detainee this emotion to to motivate the the detainee detainee to to cooperate. cooperate. Army Army feels for his fellow soldiers, and use this at 8-9. The interrogator is advised advised to to be "extremely "extremely careful that he he does does FieldManual Field Manual 2-22.3, at threat might might be be aa violation violation ofthe of the [Uniform [Uniform not threaten or coerce a source," as "conveying a threat Code ofMilitary of Military Justice]." FieldManuallimits limitsinterrogations interrogationstotoexpressly expresslyapproved approved JusticeJ." The The Army Army FieldManual Code policy, also explicitly prohibits eight techniques and, as a matter of Department of Defense techniques an4. as a matter ofDepartment ofDefense policy, also explicitly prohibits eight techniques: "(1) Forcing the the detainee detainee to to be be naked, naked, perform perform sexual sexual acts, acts, or or pose pose in in aa sexual sexual "(1) Forcing techniques: the head head of of aa detainee, detainee, using using duct duct tape tape over over the the eyes; eyes; manner; (2) (2) Placing hoods or or sacks sacks over over the manner; Placing hoods of physical pain; (3) Applying beatings, electric shock, bums, or other forms forms ofphysical (4) 'Waterboarding;' (5) Using military working dogs; dogs; (6) Inducing hypothermia or heat injury; injury: , the detainee detainee of necessary food, food, water or medical medical f (7) Conducting mock executions; (8) Depriving the Jd. at 5-20. The prior Army FieldManual care." Id. Field Manualalso alsoprohibited prohibitedother othertechniques techniquessuch suchasas"food "food ; deprivation" ; deprivation'* and «abnormal "abnormal sleep deprivation." the Army ArmyField FieldManual aredifferent different from fromand! and Manual are The eighteen approved techniques listed in the here. The techniques proposed by the CIA are not 1 less stressful than those under consideration here. exploitative of of feelings. They do involve physical contact and the imposition of of strictly verbal or explOitative physical sensations such as fatigue. The revised Army ArmyField FieldManual, andthe theprior priormanual, manual,thus thus, Manual, and of contrary executive practice for for military interrogations! interrogations would appear to provide some evidence ofcontrary While of the six enhanced techniques proposed by the the CIA CIA is is expressly prohibited under 'While none ofthe of the proposed techniques— the current Manual, two ofthe t~hniques- "dietary manipulation" and "sleep form by the prior Manual. deprivation"-were deprivation"—were prohibited in an unspecified form Nevertheless, we do not believe believe that that the theprior priorAnny ArmyFieldManual FieldManualisisdispositive. dispositiveevidence! evidence; "of traditional executive behavior [and] [and] ofcontemporary of contemporary practice" practice" in the the context context of of the the CIA CIA "oftraditional . manual was was designed designed for for traditional traditional armed armed conflicts, conflicts, program for several reasons. reasons. The prior manual particularly conflicts governed by the Third Geneva Convention, which provides extensive protections for prisoners of war, including an express prohibition of of all forms of of coercion. See i Army FieldMaflual FieldManual 34-52, 34-52, at 1-7 to 1-8; see seealso alsoid.id.atativ-v iv-v(requiring (requiringinterrogations interrogationstotocomply· comply Uniform Code ofMilitary of Military Justice); Justice); GPW GPW Art. Art. 17. 17. With ; with the Geneva Conventions and the Vnifono respect to these traditional conflicts, the prior manual provided standards to be administered . the identity, identity, value, value, or status status of of the the detainee. detainee, ; generally by military personnel without regard to the By contrast, at al Qaeda terrorists subject to the CIA program 'will will be be unlawful enemy enemy combatants; combatants,not prisoners ofwar. ' of war. Even within this class ofunlawful of unlawful combatants, the program will be administered only by trained and experienced interrogators who who in turn wilJ will apply the techniqu~s techniques only to a subset of of high value detainees. detainees. Thus, the theprior prior manual manual directed directed at at executing executinggeneral general obligations of of all military personnel that would arise in traditional armed conflicts between . uniformed armies is not controlling evidence of how high value, unlawful enemy combatants i should be t reated.. ; treated. j i ! In contrast, the revi sed Army Army Field Manual was revised FieldManual waswritten writtenwith withananexplicit explicitunderstanding understanding that it would govern how our Armed Forces would treat unlawful enemy combatants captured in 10 required before the Manual's publication. The revised Army -l the present conflict, as the DTA req~ired 37 P 2 .. __ .., ~., '"' . ..., uu" <FR I) .:Ut.. 20 20C7 ; 1>: 13/ST. 15: 13/NO. 51 e04Z977e I ! Field Manual authorizes authorizes an an additional additional interrogation interrogation technique technique for for persons persons who who are are unlawful unlawful FieldManual combatants and who are "likely to possess important intelligence." intelligence," See Army Field Army FieldManual Manual2222.3, Appendix,M. certaiq AppendixM This appendix reinforces the traditional executive understanding that certain interrogation techniques are appropriate for unlawful enemy combatants that should not be used: used; with prisoners of war. .•. Field Manualcannot cannotbe bedescribed describedasas• 3firmly firmlyrooted rootedtradition, tradition,baVingj having The revised Army FieldMtmJlal been published only in September 2006. More significantly, the revised Army FieldManual Manualwas was Anny Field the basis basis ofanother of another approved by knowledgeable high level Executive Branch officials on the well—that there has been a CIA interrogation program for high value terroristS terrorist: understanding as well-that who possess information that could help protect the Nation from another catastrophic terrorist attack.31 Accordingly, policymakers could prohibit certain interrogation techniquesfrom general attack?l from gener~l use on those in military custody 'because becausethey theyhad hadthe theoption optionoftransferring of transferringaahigh highvalue valuedetainee detainee to CIA That understanding-that understanding—that the military operates in a different different tradition tradition of of CIA custody. That executive action, action, and and more more broadly—is established by the the text text ofthe of thebTA DTAitself. itself. The TheDT DTA executive broadly-is established A Defense not requires that those in the "custody or effective control" ofthe Department of ofDefense not be be "subject to any treatment treatment or or technique of of interrogation not authorized the U.S. U.S. "subject authorized by or or listed listed in in the on Intelligence Interrogation." DTA DTA §§ 1402(a); 1402(a); see seealso alsoidid §§1406. 1406.By By Army Field Manual on contrast, the DT DTA the custody of the A does not apply this Field Manual requirement to those in the CIA, and requires only that the CIA CIAtreat treat its itsdetainees detainees in inaa manner mannerconsistent consistent with with the the herein. DTA DTA §§ 1403. 1403. Accordingly, Accordingly, neither the the constitutional standards we have discussed herein. FieldManual nor nor its its prior prior iterations iterations provide provide controUing controlling evidence evidence of of executive executive revised Army FieldManual practice for the CIA in interrogating unlawful enemy combatants who possess high value information that would prevent terrorist attacks on American civilians. I I I I State Department DepartmentReports. Reports.Each Each year, State Department's Country Reports State year, in in thethe State Department's Country Reports onon I' Human Rights Practices, the United States condemns torture and other coercive interrogation techniques empJoyed employed by other countries. countries. In discussing Indonesia, for example, the reports list as 4s "[psychological no specinc specific <&[p ]sychological torture" conduct that involves "food and sleep deprivation," but give no involve. In discussing Egypt, Egypt, the reports list, as information as to what these techniques involve. I' "methods of oftorture," ..stripping and and blindfolding blindfolding victims; victims; suspending suspending victims victimsfrom from a ceiling or torture," "stripping See I doorframe with feet just touching the floor; [and] [and] beating victims [with various objects]." See also, e.g., Iran (classifying sleep deprivation as either torture 01 severe prisoner abuse); Syria also, e.g., Iran (classifying sleep deprivation as either torture or severe prisoner abuse); Syria "ill-treatment"). (discussing sleep deprivation as either torture or "ill-treatment"). I I I These reports, however, do not provide controlling evidence that the CIA interrogation program "shocks the contemporary, contemporary conscience." As an an initial initial matter, matter, the the State StateDepartment Department haS has conclusions; but instead they are publid, public informed us that these reports are not meant to be legal conclusions; diplomatic statements designed to encourage foreign governments to alter their policies in a ! interests. In Li any event, the condemned techniques techniques are are i manner that would serve United States interests. of a course of conduct that involves other, more severe techniques, techniques, and appears to to ~ be' often part of I revl 31 31 We do do not not mean mean to to suggest suggest that that every every military military officer officer who who participated participated in inthe thecomposition compositionof ofthe the revised Army FieldManual Field Manualwas wasaware awareof ofthe theCIA CIAprogram program. The Thesenior seniorDepartment Departmentof ofDefense Defenseofficials officials who whoapproved approvedthh the aware of of the the CIA CIA program's program's existence. existence. manual, however, had the proper clearances and were aware 1 . I j 38 I p ~HO~ SITE i5 OOJ (FR\}JUL 20 2007 15:i$/ST, 15:13/NO.151l10"2,,778 fori f I undertaken in ways that bear no no resemblance to to the the CIA CIA interrogation interrogationprogram. program. The Thereasons reasons for the 'condemned condemned conduct as described by the.State the State D~artment, Department, for for e~le, example,have haveno no relationship relationship with the CIA's efforts to prevent catastrophic terronst attacks. In Llbena Liberia and and Rwanda, Rwanda, these these . terrorist attacks. tactics were used I used to to target target critics critics ofthe of the government; government; Indonesian Indonesiansecurity security forces forces used used their their techniques to obtain confessions for criminal law enforcement, to to punish, punish, and to to extort money; money; I' Egypt "employ[ ed] torture to extract information, coerce opposition figures to cease their "employed] political activities, and to deter others from similar activities," i activities." The commitment ofthe of the United States to to condemning torture, torture, the indiscriminate use use of of force, physical retaliation against political opponents, and coercion ofconfessions of confessions in ordinaryordinarycriminal cases is not inconsistent with the CIA's proposed interrogation practices. The CIA's ensure that that enhanced enhanced techniques techniques are are used used in in the thevery veryfew few ! screening procedures seek to ensure United of terrorists who are believed to possess intelligence of interrogations ofterrorists of critical value to the United States. The will use use enhanced techniques only to to the the extent needed to obtain this Th~ CIA will take care care to to avoid avoid inflicting inflicting severe severepain painor or suffering suffering exceptionally important information and will take harm. The CIA CIA program program isis designed designed to to subject subject detainees detainees to to no no or any lasting or unnecessary harm. than isis justified justified by bythe theGovernment's Government'sparamount paramountinterest interestininprotecting protectingthe theUnited United I more duress than attacks. In tbese these essential respects, respects, it fundamental1~ fundamentally States and its interestsfrom from further terrorist attacks_ the conduct condemned in the State Department reports. reports. differs from from tbe I I Decisions byForeign ForeignTribunals. Tribunals. Two foreign tribunals have addressed interrogation Decisions hy Two foreign tribunals have addressed interrogation practices that arguably resemble some at issue bere. here. In In one one ofthe of the cases, the question in fact was is linguistically similar to to the the "crue~ "cruel, whether certain interrogation practices met metaa standard that is inhuman, or degrading treatment" standard in Article 16 16 oftbe of the CAT. CAT. These These tribunals, tribunals, of of course'. course, inhuma.n, of the DTA, for the DTA specifical1~ specifically not apply a standard with any direct relationship to that ofthe did not defines "cruel. "cruel, inhuman, or degrading treatment or punishment" by reference to the established i standards ofUnited of United States law. The Senate's reservation to Article 16, incorporated into the DTA, was specifically designed to adopt a discemabJe discernable standard based on the United States i Constitution, in marked contrast to Article 16's treaty standard, which could have been subject to the decisions of foreign governments or international tribunals applying otherwise open-ended I' terms such as "cruel, "cruel, inhuman or degrading degrading treatment or punishment.·' punishment." The essence of the simpliciter—zsopposed opposedtotothe themeaning meaninggiven givenit it Senate's reservation is that Article 16's standard simpliciter-as by the Senate reservation-is reservation—is not controlling under United States law. ; I I II question, therefore, isis whether these these cases cases have have any relevance to to the the The threshold question, of the Fifth Amendment. Amendment. The The Supreme Court has has not not looked looked to to foreign foreign or or interpretation ofthe international court decisions in determining whether conduetshocks conduct shocks the conscience within the meaning ofthe Fifth Amendment. More broadly, using of the broadly, using foreign law law to to interpret the the United United Stat~s States Constitution remains a subject of U.S. 551, of intense debate. debate. See See Roper Roperv.v.Simmons, Simmons,543 543 U.S. 551,578 578 j (2005); (Scalia, J., J., dissenting); dissenting);Atkins Atkinsv.v.Virginia, Virginia, 536 U.S. 304, 316 n.21 (2002); (2005); id at 622-28 (Scalia, 536 U.S, 304,316 n.21 (2002); C. J., dissent~ng).When dissenting). When interpreting interpreting the the Constitution, Constitution, we we believe believe that that wei we id at 322 (Rehnquist, C.J., United States sources. sources. See, See, e.g., eg., Address Addressofthe of theAttorney AttorneyGenerrl General must lookfirst first and foremost to Urnted at the the University ofChicago of Chicago Law School (Nov. 9,2005) who seek seek to to enshrine enshrine foreign foreign " at 9, 2005) ("Those who law in our Constitution through the courts therefore bear a heavy burden."). This focus is . particularly important here because the Sepate's Senate's reservation to Article 16 16 was was designed to I I 39 P F~OM SIT: IS DOJ (FRI)JUL 20 2007 i5:13/ST.1S:13/NO.61eO~2G77£ p , provide a discemable and familiar domestic domestic legal legal standard standard that that would would be be insulated insulated from from the the impressions offoreign of foreign tribunals or governments on the meaning of of Article 16's vague language. impression~ II. I We recognize, however, the possibility tbat that members ofa of a court might look to foreign of such legal reasonin~ reasoning decisions in the Fifth Amendment context, given the increasing incidence ofsuch of the Supreme Court. Some judges might regard the decisions of foreign or in decisions ofthe I of international courts, under arguably analogous circumstances, to provide evidence of contemporary standards ~nder under the Fifth Amendment. While we do not endorse this practice, wej we .conternporary find it nonetheless appropriate to consider whether the two decisions in question shed any light I upon whether the interrogation techniques at issue here would shock the conscience. ! I I We coaclude conclude that the relevant decisions offureign of foreign and in_ional international tribunals are appropriately distinguished on their face from the legal issue presented by the CIA's proposed I v. United Kingdom, Kingdom, 22EHRR EHRR25 25(1980), (1980),the the European EuropeanCourt.ofHuman Court of Human techniques. In Ireland Ireland v. ("ECHR") addressed five methods used by the United Kingdom to interrogate members Rights ("ECIPt") of the Irish Republican Army: requiring detainees to remain for several hours "spreadeagled o~the apar t against the wall, wal~ with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of of the body mainly on the fingers"; covering the detainee's head with a dark hood throughout the interrogation; exposing the detainee to a continuous loud and hissing noise for a prolonged period; depriving the detain~ detainee detainee[] to to a reduced diet during their stay" at the detention of sleep; and "subjecting the detaineeQ of Id at 1196. ^ 96. The ECHR did not indicate the length ofthe of the periods ofsleep of sleep deprivation o; facility. ld or the extent to whi~h which the detainee's detainee's diets were modified. Id % 104. The TheECHR ECHRheld heldthat, that,"in "in I the Id. at 11104. combination," these techniques were "inhuman and degrading treatment," in part because they i "arous[ed of fear, anguish, and inferiority inferiority capable of of humiliating and I "ar9us[ed in the detainees] feelings offear, % 167. debasing them and possibly breaking their physical or moral resistance." resistance." Jd Id. at at 11167. l I i I I I The CIA does not propose to use all ofthe of the techr.iques techniques that the ECHR. ECHR addressed. With common—extended sleep deprivation and dietary regard to the two techniques potentially in common-ex-tended manipulation—the ECHR did not expressly consider or make any findings as to to any Safeguardsl safeguards manipulation-the report, that accompanied the United Kingdom's interrogation techniques. A United Kingdom repoIt, officials i!1 in 1972 had released separately from the ECHR litigation, indicated that British officials recommended additional safeguards for the sleep deprivation techniques such as the presence of of recomme~ded that are now part ofthe of the CIA program. See and monitoring by a physician similar to procedures that Seel 72-75. The ECHR decision, however, reviewed those interrogation techniques before infra at 72·75. recommendations were implemented, and therefore, there is some evidence that that the such reco~endations safeguards similar techniques considered by the ECHR were not accompanied by procedures proCedures and safeguar4s to those that will be applied in the CIA program. I I i More importantly, the ECHR made no inquiry into whether any governmental interest I might have reasonably justified justified the conduct afissue at issue in that case-which case—which is the legal standard that theDTA CIA's of such .in an DrA requires in evaluating the CIA '5 proposed interrogation techniques. The lack of the bearp inquiry reflects the fact that the ECHR's definition of "inhuman and degrading treatment" bear~ little resemblance to the U.S. constitutional principles incorporated under the DTA. The ECHR. ECHL gulf not only in the Ireland itself, but also also in other ECHR. ECHR decisions decisions has demonstrated this gulf Ireland case itself, of the co":cept concept that goes far beyond how coons courts in the that reveal an expansive understanding ofthe I 40 FROM '.' SIT~ 15 OOJ <FR1)JUL 2(; 2007 15:14/ST. 15:1:l/NO. 61604210778 our Constitution. Constitution. For example, example, the the ECHR ECHR has has held held that that the the 50soUnited States have interpreted our called "death row effect"-the effect"—the years ofdelay between betWeen the imposition of ofa death 4eath sentence and its execution arisingfrom the petitioner's pursuit ofhis of his judicial remedies-itselfconstitutes remedies—itself constitutes fi:om the'petitioner's Soeringv.v.United UnitedStates, Slates,1111Eur. Eur.Ct.Ct. H.R. "inhuman or degrading treatment or punishment." See See Soering H.Rt. 439 (1989)! Court, by by contrast. contrast, has has routinely refused to entertain such claims, claims, and (1989): The Supreme Court, them to have have merit. merit. See, See, e.g., e.g.,~y Lackeyv. v.Te:ras. Texas, 514 U.S. lower federal courts have not found them 514 U.S. over a dissent by 1045 (1995) (denying certiorari to review a decision rejecting such a claim ov.er Justice Stevens); Allen Allen v.v. Ornoski. Ontostd,435 435 F.3d 946,959 (9th Cir. 2006) (The petitioner "cannot F.3d 946. 959 (9th Cir. 2006) (The petitioner "cannot credibly argue that the evolving standards of decency that mark the progress of a maturing credibly argue tbat the evolving standards of decency that the progress of a maturing society, as evidenced by by the decisions of state and federal courts, are moving toward recognition of the validity validity ofLackey The ECHR ECHR also also has has read read the the European European Convention Convention to to grant grant j ofthe of Lackey claims."). claims."). The that court to scrutinize prison conditions. conditions. For For example, example, the the EelIR ECHR has has concluded concluded that that itit that court authority authority to scrutinize prison is inhuman and degrading to confine two persons to one cell with only one exposed toilet is inhuman an.d degrading to confine two persons to one cell with only one exposed toilet them. Melnik v. Ukraine, Ukraine,ECHR ECHR722286/01 722286/01(2006). (2006).Amid Amidsueh suchexpansive expansivedecisions, decisions, . between between them. Melnik v. the ECHR might well regard the proposed enhanced interrogation techniques, or even the . th~ ECHR might wel~ regard tJ:e proposed e~hanced inte~ogation tec~iques, or even the existence of the CIA eXIstence ofthe CIA interrogation mterrogabon program program itself, Itself: to to constitute constItute "cruel, "cruel; inhuman, Inhuman, or or degrading" degradmg" treatment under the standards incorporated in the European Convention. Yet we do not regard regard treatment under the standards incorporated in the European Convention. Yet we do not the ECHR's interpretation of its own European Convention human rights standards to constitute the ECHR's interpretation ofits own European Convention human rights standards to constitut~ persuasive to whether whether the the CIA CIA techniques techniques in in question question here here would would violate violate the the Fifth Fifth i persuasive evidence evidence as as to Amendment, and thus the DTA. Amendment, and thus the DTA: I I I I I The Supreme Court of Israel's review of of interrogation techniques in Public Public Committee Committee Against Torture Israel,HeJ HCJ5100/94 5100/94(1999), (1999),similarly similarlyturned turned upon foreignlegal legalissues issues Torture v.v.Israel. upon foreign notnot . relevant here. here. There, the Israeli court held that Israel's General Security Service ("GSS") was not legally authorized to employ certain interrogation methods with persons suspected ofterro~st of terrorist activity—including shaking the torso ofthe of the detainee, depriving the detainee of sleep, and forcirt,8 forcing activity-including ofsleep, the detainee to remain in a variety of stress positions. The court reached that conclusion, positions. however, because it found that the GSS i GSS only only had had the the authority authority to to engage engage in in interrogations interrogations specifically authorized by Israeli domestic statute and and that, that, under under the the then then "existing "existing state state oflaw'," of law1," id 36, the the OSS GSS was was "subject "subject to tothe thesame samerestrictions restrictionsapplicable" applicable"to to..the "theordinary ordinarypolice police iei. at 36, 1 investigator," id at 29. See nostatute statutethat thatgrants grantsGSS GSSinvestigator~ investigators special special investigator." See id ("There isis no I interrogating powers that are are different or more more significant than than those those granted granted the the police police I investigator."). GSS was was permitted permitted only only to to "'examine '"examine orally orallyany anypersons persons investigator:'). Under that law, the GSS and circumstances ofany of any offense'" offense'" and to reduce their supposed to be acquainted with the facts and theil' did not permit the the "physical means" means" of of interrogation interrogation responses to writing, and thus the statute did GSS. lei. Id at 19 (citing (citing the the Israeli Israeli Criminal Criminal Procedure Procedure Statute Statute Art. Art. 2(1) 2(1)) undertaken by the OSS. I (emphasis added). At the same time, the Israeli Israeli court specifically held held open whether the the . [ legislature could authorize such techniques by statute, id at at 35·36, 35-36, and and determined that that itit was was not not when appropriate in that case to consider special interrogation methods that might be authorized wheh 32 necessary to to save save human human life, life, id id at at 32. necessary 32. I i , I ! .1 ., \ ., 1 I , '1 32 32 The The Israeli Israeli court court recognized recognized that that Israel Israel had had undmakcn undertaken aa treaty treaty obligation obligation to torefrain refrain from from auel, cruel, inh inthurman, or degrading treatment. HeI 5100194 at 23, butbut the the CX)urt specifically grounded treatment, Public Public Committee CommitteeAgolnsf AgainstTorture, Torture, HCJ 5100/94 at 23, court specifically grounded its holding not in its interpretation of any treaty, treaty, but but in in Israeli Israeli statuto,!, statutory law. law. Indeed, Indeed, the thecourt courtrcco~~ recognized that that the the legisIann legislature could "grantO "grantQ ass GSS investigatoTS investigators the authority to to apply applyph)'sical physical force force during during the the interrogation interrogation of of ~ suspects id.atat35, 35,provided providedonly onlythat thatthe thelaw law"befit[sl "befit[sjthe thevalues values0Gof suspected of of involvement in hostile terrorist activities," id i 41 P F~OM SI,: 15 DOJ CFRI)JUL 2C· 2007 15:i4/ST. lS:13/NO. e;eO~~~778 1" ~ , j As we have explained above in finding U.S. Supreme Court decisions decisions to to be be & finding particular U.S. the United States that interrogations perfunned performed by intelligence distinguishable, it is not the law in the officers by the CIA CIA are are subject subject to totbe thesame samerules rulesas as"regular "regularpolice police officers for for the purpose proposed by r 29. Thus: Thus, the die Israeli Israeli court court addressed addressed aa fundamentally fundamentally different different question question interrogation s]." Id interrogation[s).," Jd at 29. sheds little light on on the the inquiry inquiry before before us. us. Where Wherethe theIsraeJi Israeli GSS GSSlacked lackedany anyspecial special 5tatuto& statutory that shed~ CIA is is expressly expressly authorized authorized by by statute statute to to "collect "collect authority with respect to interrogations, the CIA intelligence through human sources and any other appropriate means" means" and is expressly I distinguished enforcement authorities. authorities. 50 50 U.S.C. U.S.C. §§ 403-4a(d)(1). 403-4a(d)(l). Indee4, Indeed, distinguishedfrom from domestic domestic law law enforcement beyond the CIA's general statutory statutory authority authority to to conect collect human the Military Military beyond the CIA's general human intelligence, intelligence, the to permit the CIA interrogation to go Commissions Act itself was enacted specifically Commissions Act itselfwas enacted specifically to permit the CIA interrogation program program to go forward. See infra at 43-44. Thus, while the Israeli court rested its 1999 decision on the forward. See infra at 43-44. Thus, while the Israeli court rested its 1999 decision on the I to grant grant t~e the GSS GSS anything anything other other than than ordinary ordinary police police authority, authority, we we face face a. a legislature's failure to legislature's failure CIA clearly authorized authorized and and justified justified by by legislative legislative authority authority separate separate from from CIA interrogation interrogation program program clearly law enforcement enforcement investigations. investigations. And And the the Israeli Israeli and beyond those applicable applicable to to ordinary ordinary law and beyond those f Supreme Court itself subsequently recognized the profound differences between the legal Supreme Court itself subsequently recognized the profound differences between the legal . standards that that govern domestic law enforcement and and those those that that govern govern armed armed conflict conflict with with standards govern domestic law enforcement terrorist organizations. Compare Public Committee Against Torture v. Israel (1999) (stating terrorist organizations. Compare Public Committee Against Torture \I. Israel (1999) (stating iliat that "there is no room for balancing" under Israeli domestic law), with Public Committee Against "there is no room for balancing" under Israeli domestic law), with Public Committee Against Israelv.v.The The Government of Israel, 769/02 (Dec. 2005), 22 (holding TortureininIsrael Torture Government ofIsrael, HeJHCJ 769/02 (Dec. 1J. 11, 2005), 1i 22%(holding that that . under the law law of of armed armed conflict conflict applicable applicable to to aa conflict conflict against against aa terrorist terrorist orgawzation. organization, "human "human under the rights . . . but to their their full full scope" and emphasizing emphasizing that that such such rights rights must must be be but not not to scope" and rights are are protected protected ... "balancefdj" against "military needs"). "balance[d]" against "military needs"). I I I I I i I Survival, Evasion,Resistance. Resistance, Escape ("SERE") Training. Asnoted we noted Survival, evasion, andand Escape ("SERE") Tr.aining. As we at theat the of each ofthe of the proposed techniques have been used before by the United States, outset, variations ofeach Stat6fi, i providing some evidence that they are, in some circumstances, circumstances, consistent with executive executive tradition and practice. Each of the CIA's enhanced interrogation teclm.iques techniques has been adapted t . from from military SERE training. training, where techniques very very much like like these have have long been used on our own troops. Individuals undergoing SERE training are are obviously obviously in in aa very very different different 'situation situation ,own SE~ training from trainees know know that that the the treatment treatment they they are are from detainees undergoing interrogation; SERE trainees i training program, program, that that itit win will last last only only aa short short time, time, and and that that they they will will ~bt not experiencing is part of a training ~ be significantly harmed by the training. I We do not wish to understate the importance ofthese differences, differences, or ortbe of the the gravity of psychological trauma that may accOmpany accompany the relative uncertainty faced by the CIA's detainees. On the other hand, hand, the interrogation program we consider here here relies relies on techniques that have have i been deemed safe enough to use in the the training training ofour of our own own troops. troops. We We can can draw draw atat least least one one II SERE training-use training—use ofthe of the techniques techniques involved involved in in the the CIA's CIA's . conclusionfrom from the existence of ofSERE die similar techniquesfrom interrogation program (or at least the from which these have been adapted) cannot be considered to be categorically categoricallyinconsistent inconsistentwith with"traditional "traditionalexecutive executivebehavior" behavior"and! and "contemporary practice" regardless of context. "contemporary pmctice" regardless ofcon'ext. I ' • ; I thad the State of Israel, is enacted for a proper purpose, and (infringes [infringes the suspect's h'berty liberty]J to toan anextent extent no nogreater greater than required," iid. tf. atat37. 37. 42 FROM SITE 15 OOJ (FRI)JUL 20 2007 lS:1'/ST.1S:13/NO.151S0~2977ep "conte~porary The ofof thethe Military Commissions Act. Finally, in considering f TheEnactment Enactment Military Commissions Act Finally, in considering "contemporary practice" practice" and the ··standards "standards ofblame of blame generally applied to to them," them," we we consider consider the the context context of of the the recent debate over the Military Commissions Act, including the views of of legislators who have . the CIA CIA program. program. In Public PublicCommiltee Committee Against Torture, 5100/94, been briefed on the m:en Against Torture. HCJHCJ 5100/94, the the Supreme Court observed that in a democracy. democracy, it was was for the political branches, and not th Israeli 'Supreme thi~ courts, to strike the the appropriate balance balance between security imperatives and humanitarian courts, ,. standards, and it invited the Israeli legislature to enact a statute specifically delimiting the standards, ! security service's authority "to apply physical force during the interrogation ofsuspeets of suspects suspected of involvement in hostile terrorist activities." Id ld at 35. In the United States, Congress in the PresidenCs President's invitation invitation by by passing passing the theMilitary Military in fact enacted such a statute, responding to the Commissions Act to allow the CIA interrogation program to go forward. While the the isolated I of particular legislators are not dispositive as to to whether specific interrogation statements ofparticular I' techniques would shock the consci.ence DTA, we we properly may consider the Military J conscience under the DTA, Commissi~ns Commissions Act, taken as a whole. whole, in coming coming to to an an understanding understanding of of "contemporary "contemporary practice, practice, j and ofthe of blame generally applied to them," and what Americans, through their I of the standards of to be be acceptable acceptableconduct conduct by by the theexecutive executive officials officialsI representatives in Congress, generally deem to 523U.S. U.S.atat847 847n.8; n.8;cf.cf. Roper, U.S. charged with ensuring the national security. Lewis, Lewis, 523 R'!per, 543543 U.S. 55.1551 laws to to be be relevant relevant to to contemporary contemporary standards standards (2005) (finding the passage and repeal of state laws (200S) the Eighth Eighth Amendme.nt); Amendment); Atkins, Atkins,536 536U.S. U.S.304 304(same). (same). under the I I I I I The President President inaugurated inaugurated the the political political debate debate over what would become the Military Military The 6, 2006, wherein he announced to the American Commissions Act in his speech on September 6,2006, of the CIA program, the nature nature ofthe of the al al Qaeda Qaeda detainees detainees who who had had been people the existence ofthe program, tbe new legislation to allow the program to "go forward" in the wak~ wake interrogated, and the need for interrogated. new of Hamdan. As the President later explained: "When I proposed this legislation, I explained Hamdan. explained; I proposed this legislation, I explained that would have have one one test for the bill Congress produced: Will it allow the CIA program ~o to I would I of the President Upon Signing the Military continue? This bill meets that test." Remarks ofthe '! of 2006, East Room, Room, White House House (Oct. (Oct. 17,2006). 17,2006). Senators Senators crucial crucial to to its its I Commission Act of2006, permit the CIA's program to continue. See passage agreed that the statute must be structured to pennit Se~ 152 Cong. Cong.Re<;. Rec.S10354-02; S10354-02, S10393 S10393(Sept. (Sept.28, 28,2006) (statement of of Sen. Sen. Graham) Graham) ("Should ("Should we we 152 2006) (statement have a CIA CIA program program classified in in nature nature that would would allow techniques not in the Army Army Field Field Manual to get good intelligencefrom high value targets? The answer from my point of view is from targets? The from my ofview yes, we we should."); should."); id. id. at at SS 10414 10414(statement (statement ofSe~. of Sen.McCain) McCain)("[M]y Q'{M\ycolleagues, colleagues,have have yes. nono I doubt—this legislation will allow the CIA to to continue continue interrogating prisoners within within the doubt-this bill"). Representative Duncan Hunter, the leading sponsor of boundaries established in the bill."). of the the House, House, similarly similarly described the the legislation as as ICleav[lng) "leaving] the decisions as to to the the methods methods bill in the of interrogation to the President and to the intelligence professionals at the CIA, CIA. so that they may mky that, as as the thePresident President explained, explained, serves serves to to gather gather the the critical,' critical carry forward this vital program that, attack." 152 I intelligence necessary to protect the countryfrom from another catastrophic terrorist attack." Cong. Rec. H7938 (Sept. 29,2006). The Act clarified the War Crimes Act and providedaa I Congo Re<;. H7938 (Sept. 29, 2006). The Act clarified the War Crimes Act and provided comprehensive framework for interpreting the Geneva Conventions so that the CIA program I comprehensive framework for interpreting the Geneva Conventions so that the CIA program might go go forward after Hamdan. Hamdan..' . I tJlat I I Military Commissions Commissions Act, Act, to to be besure, sure,did didnot notprohibit prohibitor orlicense licensespecific specific The MiIil8Jy techniques. As As discussed above, above, Members Members of of Congress Congress on on both sides sides of of the the debate debate interrogation techniques. different views as to the the specific specific interrogation interrogation techniques that might or might expressed widely different 43 FROM SITE.5 OOJ statute. See supra supraatatn.13. n.13. Nonetheless, Nonetheless,you youhave haveinformed informedus usthat that f not be permitted under the statute. of the Military Commissions Act, prior to passage ofthe Act, several several Members Members of ofCongress, Congr~s, including including the the I Committees and and Senator McCain, McCain, were were I full memberships of the House and Senate Intelligence Committees CIA, on the six techniques that we discuss I briefed by General Michael Hayden, Director ofthe of the CIA, be necessary necessary to to the the CIA CIA detention detention and andI herein and that, General Hayden explained, would likely be interrogation program should the legislation be enacted. In those classified and private conversations, none of the Members expressed the the view view that that the theCIA CIAinterrogation interrogation program program ofthe the techniques techniques at at issue issue were were inappropriate. inappropriate. Many Many of of those those Members Members ! should be stopped, or that the thereafter were critical in ensuring the passage ofttle of the legislation; legislation^ making clear through their thereafter public statements and thi'ough through their votes that they believed tbat that a CIA program along the lines General Hayden described could and should continue. I I I I I of the classified the program, all of Beyond those with specific knowledge ofthe classified details of ofthe ofthe the, of media reports-some reports—some accurate, accurate, who engaged in the legislative debate were aware ofm.edia Members who. some not-describing not—describing the CIA interrogation program. program. Those Those media media reports reports suggested suggested that the the United Siate~ States had used techniques including, Unit~ includin~ and in some cases exceeding, the th~ coerciveness of .' the SIX six techniques proposed here. here. The President's request that Congress Congress permIt permit the the CIA CIA program to "go forwar~:' forward," and the carefuU~ carefully negotiated provisions of thebitl~ the bill, cl~ly clearly prese~ted presented Congress to."go with the questIon question whether the Uruted United States States should operate a classIfied classified II1terrogatlOn interrogation program, program, I; WIth ordinary limited to high value detainees, employing techniques that exceeded those employed by ordinarly officers and the United States military, military, but that remained lawful under the anttanti Jaw enforcement officers . torture statute and the War Crimes Act. There can be be little little doubt doubt tha~ that the the subsequent subsequent passage passage of of the statute reflected an endorsement by both the the President President and and Congress Congress ofthe of thepolitical political brancht1s' branches' shared view that the CIA interrogation program was. was consistent ,vith with contemporary practice, and and therefore did not shock the conscience. We We do do not not regard regard this this political political endorsement endorsement ofthe of the cIA! CIA interrogation program to be conclusive on the constitutional question, but we do find that the r passage of of this this legislation legisla~ion provides provides a relevant relevant measure measure of of contemporary standards. I I .i I * It * * ' * I: J' Th~ The substantive due process analysis, analysis, as as always, always, muSt must remain highly sensitive to conte contex . We do do not not regard regard anyone any one of of the the contexts discussed here, here, on on its its own, own, to to answer answer the the critical critical We by trained trained professionals ofthe of the question: What interrogation techniques are permissible pennissible for use by who operate operate through through aa diffuse diffuse and and CIA in seeking to protect the Nation from foreign foreign terrorists who network of cells dedicated to launching catastrophic terrorist attacks attacks on on the the secret international nerv,.·ork and allies? allies? Nonetheless. Nonetheless, we we read read the the constitutional tradition United States and its citizens and reflected in the DTA to permit drawn, extensively pennit the United States to employ a narrowly drawn,. carefully safeguarded interrogation program for high value terrorists that uses monitored, and carefuily enhanced techniques that do not inflict significant or lasting physical or mental harm. D. Applying these legal standards to the six proposed techniques used individually and in •combination, we conclude that these techniques are consistent with the DTA DTA. ·combination. 44 :' ~Vfl'l. ::;" I f I:. l!':t OOJ (FR')JUL • ::0 :lOC? 15:1L/S~. 15:13/NO. 6160"'2977e ~ Dietary Manipulation. limits thethe useuse ofof dietary manipulation to to ensure that Manipulation.The TheCIA CIA limits dietary manipulation ensure that I Dietary : ru~es ensure that the detainee I detainees subject to it suffer no adverse health effects. The CIA's detainees subject to it suffer no adverse health effects. The CIA s rules ensure that the detainee receives per day receives 1000 1000 kCd kCal per day as as an an absolute absolute minimum, minimum, "level a levelthat that isisequivalent equivalent to to aawide widerange rangeof of commercial weight loss programs. Medical personnel closely monitor the detainee during commercial weight loss programs. Medical personnel closely monitor the detainee during the the I application of ofthis is terminated terminated at at t~e the prompting prompting of of medical medical application this technique, technique, and and the the technique technique is personnel or iftbe detainee loses more than ten percent ofhis body weight. While may personnel or if the detainee loses more than ten percent of his body weight. While the the diet diet may be unappealing, it exposes the detainee to no appreciable risk ofphysica1 harm. We underst2J1d be unappealing, it exposes the detainee to no appreciableriskof physical harm. We understand from from the the CIA CIA that that this this technique technique has has proven proveneffective, effective, especially especially with with detainees detainees who who have haveaa ! particular appreciation particular appreciation for for food. food. In In light light ofthese of these safeguards safeguards and and the the technique's technique's effectiveness, effectiveness, the use ofthis technique does does not A. the CIA's CIA's use of this technique not violate violate the the DT DTA. Corrective Techniques.Each Each four proposed "corrective techniques" involves some Corrective Techniques. ofof thethe four proposed "corrective techniques" involves so~e physical contact between the interrogator and the detainee. detainee. These corrective techniques are of I types. First, there are two "holds." With the facial hold, hold, the the interrogator places places his his palms palms on on two types. of the detainee's face in in aa manner manner careful careful to to avoid avoid any any contact contact with with eyes. eyes. With With the the I either side oCthe the detainee detainee by by thecoliar the coliarand anddraws drawshim him totothe the attention grasp, the interrogator grasps the while using using aa collar collar or or towel towel around around the the I interrogator in order to regain the detainee's attention, while pai~ back ofthe of the detainee's neck to avoid whiplash. These two techniques inflict no appreciable pain are directed directed wholly wholly at at refocusing refbcusing the the detainee detainee on on the the interrogation interrogation and and on the detainee and are frustrating a detainee's efforts to ignore the the interrogation. interrogation. Thus, Thus, the the desa:ibed described techniques do do not of substantive due process. process. violate the requirements of . i I I Second, the CIA proposes to use two "slaps." In the the abdominal abdominal slap, slap, the the interrogator interrogator may mayfrom the begin with his hands no farther than than 18 18 inches inches away awayfrom thedetainee's detainee'sabdomen abdomenand andmay maystrite strike the detainee in a."t an area of comparatively little sensitivity between the waist and the sternum. I The facial slap involves a trained interrogator's striking the detainee's cheek with his his band. hand. Like psychological techniques the holds. holds, the slaps are primarily psychological techniquestotomake makethe thedetainee detaineeuncomfo~a.ablel uncomfortable; they are not intended, intended, and and may may not be be used, used, to to extract extract information information from from detainees detainees by by force force OT or I physical coercion. There is no question, however, that the slaps slaps may may momentarily inflict some some pain. pain. But But that no significant pain wo.uld occur. With the facial slap, the 1 careful safeguards ensme ensure pain would occur. With the slap, interrogator must not wear any rings. a.,d must strike the detainee in the area between.the tip ot rings, and detainee in the area between the tip of the chin and the corresponding earlobe to avoid any contact with sensitive areas. areas. The interrogator may not use a fist, but instead must use an an open hand and strike the detainee only I with his openfingers, fingers, not with his his palm. palm. With the the abdominal abdominal slap, slap, the the interrogator interrogator also also may may n0t not use a fist, may may not wear jewelry, and and may may strike only only between between the the sternum sternum and and th~ the navel. navel. The The interrogator is required to maintain aa short distance distance between himself and the the detainee detainee to to prevent a blow ofsignificant of significant force. force. Undoubtedly, a single application ofeither of either ofthese of these techniques presents a question different We understand, understand, however, however, that that interrogators interrogators different from from their repeated use. We will cause significant physical frequency, that will will not apply these slaps with an intensity, or a frequency, pain or injury. Our conclusion that these techniques do not shock the conscience does not mean that interrogators may punch, beat, or otherwise physically abuse detainees in an effort to extract e>..-u-Jct limited to the use use Off11! of far information. To the contrary, the result that we reach here is expressly limited.to have carefully carefully been been designed designed to to affect affect detainees detainees techniques-that more limited slap techniques' that have I I I I 4S ? (F~l)JUL 2C 20C7 ~5:H;/Si.15:i:!/NO,eHIO"22778;> ~ I I psychologically, psychologically. without without harming harming them them physically. physically. Slaps Slaps or orother otherforms forms of ofphysical physical contact contact that that j go DTA. go beyond beyond those tbos~ described may raise different different and serious questions question$ under the nTA. i Monitoring Monitoring by by medical medical personnel personnel is is also also important. important. Medical Medical personnel personnel observe observe the the a.dministration of ofany any slap, and and should aa detainee detainee suffer suffer significant significant or unexpected unexpecud pain or harm, administration the technique would be discontinued. discontinued, In In this context, the very limited risk of harm associated the with this this technique does not shock shock'the with the conscience. conscience. .~ I ( I i SleepDeprivation. Deprivation. Of the techniques addressed in this memorandum, extendet . Extended Extended Sleep Of the techniques addressed in this memorandum, extende~ sleep deprivation again, as under the War Crimes Act. Act, requires requires the the most most extended analysis. analysis. f Nonetheless, staff in the Nonetheless. after after reviewing revjewing medical literature, literature. the observations of CIA medical staff application of ofthe the technique, technique, and and the the detailed detailed procedures procedures and safeguards safeguards that that CIA CIA interrogators and medical staff technique and and monitoring monitoring its its application, application, we we staff must follow foUow in applying the technique conclude that of extended sleep deprivation would not impose harm tbat the CIA's proposed use of unjustifiable unj~stifiable by a governmental interest and thus would not shock the conscience. and The scope of of this technique is limited: limited: The detainee detainee would would be be subjected subjected to to no no more more than than 96 hours ho'¥S of continuous sleep deprivation, absent specific additional approval, including legal approval of the the CIA; CIA; the the detainee detainee would would:be be approvaJfrom from this Office and approvalfrom from the Director of allowed an opportunity for eight hours hours of of uninterrupted sleep sleep following following the the application application of of the technique; and he wouJdbe would be subjected to no no more more than than aa total total of180 of 180hours hoursofthe of thesleep sleep deprivation technique in one 30-day period. Notably, humans have been kept continuously . of 250 hours in medical studies. studies. There There are medical studies suggesting that that sleep sleep awake in excess of250 deprivation has few measurable physical effects. See, e.g.,Why WhyWeWe Sleep: Functions See, e.g., Sleep: TheThe Functions oj ofI Sleep in inHumans Humansand andOther OtherMammals Mammals 23-24 (1998). be sure, relevance of these medical; .Sleep 23-24 (1998). To To be sure, the the relevance ofthese medicali dissi..-nilar to studies is limited. These studies have been conducted under circumstances very dissimilar here. Medical subjects are in in aa relaxed relaxed environment environment and and at relative relative liberty liberty to to do do at issue here. those at whatever keeps their interest. The CIA detainees, detainees, by by contrast. contrast, are are undoubtedly undoubtedly under under duress, duress, and and their freedom of movement and activities are extremely limited. CIA medical personnel, however, have confirmed that these limited physical effects are not significantly aggravated in unique environment environment of of aa.CIA CIAinterrogation. interrogation. the unique II I I As described described above, above, the the CIA's CIA's method method ofkeeping of keeping detainees awake--continuous awake—continuous As i standing—can cause cause edema, edema, or swelling swelling in in the the lower lower legs legs and and feet. feet. Maintaining the the standing standing standing-can as many many as as four days days would would be be extremely unpleasant, unpleasant, and and under some some crrcumstanC<Ts. circumstances, position for as painful, although edema and and muscle muscle ·fatigue fatigue subside subside quickly quickly when when the the detainee detainee isis permitted permitted to to sit sit painfu~ Qr or to to recline.)) recline.33 I i I 33 33 Weundmtmd understand that thatduring duringthe theuse useof ofthe theproposed proposedextended extendedsleep sleepdeprivation deprivationtechnique, technique,the thedetainee detainee We would often often wear wearaa disposable disposable U.tldergarm~'l undergarment designed designedfor for adoJ1ts adultssuffering suffering from from incontinence. incontinence. The TheW1dergarmcn1 undergarment would would be be used used (0 toa\-'Oid avoid the the need. need regularly regularly (0 to unshaclde unshackle the thedetainee detaineefor foruse useof ofthe thetoiler, toilet,and andwould wouldbe beregularly regularly r would checked to toavoid avoid skin skin initauon irritation or orunneccssaIy unnecessary discomfort. discomfort. The Theproposed proposed lise useof ofthe theunderg3mlent undergarmentisisjustified justified not not~ checked just just for for sanitary sanitary reasons, reasons, but but also also to toprotect protectboth boththe thedetainee detaineeand andthe theinterrogators interrogatorsfrom fromunnecessary unnecessaryand andpote_ potentially dangerous dangerous~'Sical physical contact. contact. We Wealso also und:rstand understand that thatthe thedetainee detaineewould wouldwear wearadditional additionalclothing, clothing,such suchasasaapair pairo¥of shorts,ov..-!be over the undergarmentdnring duringapp1kaIioo applicationof of1hls thisteelulique.· technique. ....... I undet_ ~ 46 (~IU}JUL 20 2007 i5:.4/ST.15:,3/NO.6HIO<l'2Q778 , At the same time, time, howe-veT. however, the the CIA CIA employs employs many many safeguards safeguards to to ensure ensure that the the detaineef detainee does not endure significant pain or suffering. Tbe The detainee detainee isis not not permitted permitted to to support support his his weight weight by hanging from from his his wrists and thereby risking injury to himself, himself. This precaution en~ures ensures that the detainee"s normally at at all times—if times-ifthe detainee cannot cannot detainee's legs are capable offunetioning of functioning normally the detainee his own weight, administration ofthe of the technique ends. In addition, the CIA's medical support his medical , personnel monitor the detainee throughout the period of of extended sleep deprivation. They will hah use of the technique should they diagnose the detainee as experiencing hallucinations, other halt abnormal psychological psychological reactions, reactions, or or clinicaUy clinically significant significant diminishment abnormal diminishment in cognitive )' functioning. Medical personnel also will monitor the detainee's vital signs to ensure that they tbey stay within normal parameters. parameters. If If medical personnel determine that tbe stay the detainee develops the or is experiencing significant physical pain for any reason; t~e clinically significant edema or.is technique either either is is discontinued discontinued ·or or other other methods methods of of keeping keeping the the detaiJ:lee detainee awake awake are are used. used. These technique Thes accommodations are significant, because they highlight that the CIA uses extended sleep . accommodations are significant, because they bighlight that the CIA uses extended sleep deprivation merely to weaken aa detainee's psychological resistance to interrogation by keeping . him awake for longer than normal periods of time. ! Combined CombinedF/fects. Effects. We We do donot notevaluate evaluatethese thesetechniques techniquesininisolation. isolation.To Todetermine determine conscience," it is important to evaluate the effect effect whether a course of interrogation "shocks the conscience," of the potential combined use of these techniques. techniques. See, e.g.,Williams Williams United States, ofthe See, e.g. v. v. United States, 341341 U.S.U.S. 97, 103 103 (l9S1) (1951) (evaluating a three-day course of interrogation techniques to determine whether a 97, occurred). Previously, this Office Office has been particularly concerned about constitutional violation occurred). effect such that techniques tbat the tbe combination combination of oftechniques techniques that may have a mutually reinforcing effect might increase increase the the effect effect that that each each would would impose impose on on the the detainee. detainee. Combined CombinedUse Useatat9-11. 9-11. might Specifically, medical studies provide some evidence that sleep deprivation may reduce tolerance Specifi~Iy,·medicalstudies provide some evidence that sleep deprivation may reduce tolerance subjects. See, e.g., B. Kundermann et ed., Sleep Deprivation to some forms of pain in some to some forms of pain in some subjects. See, e.g., B. Kundermann et al., Sleep Deprivation Affects Thermal ThermalPain PainThresholds Thresholdsbut but Somatosensory Thresholds in Healthy Volunteers, 66 Affects notnot Somatosensory Thresholds in Healthy Volunteers, 66 Psychosomatic Med. 932 (2004) (finding a significant decrease in heat pain thresholds and some Psychosomatic Med. 932 (2004) (finding a significant decrease in heat pain thresholds and some decrease in in cold cold pain pain thresholds thresholds after after one one night night without without sleep); sleep); S. S. Hakki Hakki Onen Onen et etal., al.,The TheEffectl Effects decrease Deprivation,Selective Selective Sleep Interruption Sleep Recovery on Pain Tolerance of Total TotalSleep SleepDeprivation, oj Sleep"Interruption andand Sleep Recovery on Pain Tolerance J Thresholds in Healthy Subjects, 10 J. Sleep Research 35, 41 (2001) (finding a statistically Thresholds in Healthy Subjects, 10 J. Sleep Research 35,41 (2001) (finding a statistically 1 significant drop drop of of 8·9"Al 8-9% in in tolerance tolerance thresholds thresholds for for mechanical mechanical or or pressure pressure pain pain after after 40 40 hours)! hours) significant studies). Moreover, subjects in these medical studies have been id. at 35-36 (discussing other id. at 35-36 (discussing other studies). Moreover, subjects in these medical ~dies have been J' observed to to increase increase their their consumption consumption offood of food during observed during aa period period of ofsleep sleep deprivation. deprivation. See See Why Why We Sleep at 38. A separate issue therefore could arise as the sleep deprivation technique maybF be We Sleep at 38. A separate issue therefore could arise as the sleep deprivation technique may used during a period of dietary manipulation. used during a period ofdietary manipulation. . : J I I I satisfied that there are safeguards in place to protect against any Nonetheless, we are 5lIIisfied significant enhancement ofthe of the effects ofthe of the techniques at issue when used in combination with witH sleep deprivation. Detainees subject to dietary manipulation are closely monitored, and any cessation ot: of, at a minimum, the dietary statistically significant weight loss would result in cessation manipulation technique. technique. With regard to pain sensitivity, none ofthe ofthe techniques manipulation tecimiques at issue issue here . involves such such substantial substantial physical physical contact, contact, or or would would be involves be used used with \\;;th such such frequency, frequency, that that sleep sJeep j deprivation would would aggravate aggravate the the pain pain associated associated with deprivation with these these techniques tecliniques to to aa level level that that shocks shocks the the conscience. More generally, we have been assured by the CIA that they will adjust and monito'r conscience. More generally. we have been assured by the CIA that they wiH adjust and monitdr the frequency frequency and and intensity intensity of of the the use use of of other other techniques sleep deprivation, the techniques during during aa period period of ofsleep deprivation. Combined Use at 16. Combined Use at 16. . I I I 47 P (FRI).IUL 20 2007 lS:loC/ST. Is:i3/NO. &160.(2977e I In In evaluating evaluating these these techniques, techniques, we we also alsorecognize recognizethe theemotional emotional stress stress that thatthey they may may imPose impose upon uponthe thedetainee. detainee. While Whilewe weknow knowthe thecareful carefulprocedures, procedures,safeguards, safeguards,and andlimitations limitations under under the the CIA's CIA's interrogation interrogation plan. plan, the the detainee detainee would would not. not. In In the the course courseofuodergoing of undergoing these these I techniques, more severe severetreatment treatment might mightfollow, follow, or orthat. that,for forexample, example, techniques, the the detainee detainee might might fear fear that that more the the sleep sleep deprivation deprivation technique technique may may be be continued continued indefinitely indefinitely (even (even though, though, pursuant pursuant to to CIA CIA procedures, thetechnique technique would would end end within within96 96 hours). hours). To Tothe theextent extent such suchfear fear and and uncertainty uncertainty procedures, the may occur, occur, however, however, they they would would bear a close close relationship relationship to tothe the important important gov~mment government purpose purpose may of obtaining information crucial to preventing a future terrorist attack. According to the the of obtaining information crucial to preventing a future terrorist attack. Accordmg to the CIA, thj leaders that that they they will will not not be beharshly harshlytreated treated by bythe theUnited United States States isisthe the primary primary belief of of al al Qaeda Qaeda leaders belief obstacle to to encouraging encouraging them them to to disclose disclose critical intelligence. intelligence. Creating uncertainty over whether obstacle that assumption assumption holds-whiJe holds—while at at the the same same time timeavoiding avoiding the the infliction infliction (or (or even even the thethreatened threatened that infliction, see seesupra supraatat0.21) n.21)ofofany anysignificant significantharm-is harm—isaanecessary necessarypart partofthe of theeffectiveness effectivenessof of infliction, the arbitrary or egregious conduct these techniques and thus in this context does not amount to these techniques and thus in this contex1 does not amount to the arbitrary or egregious conduct Due Process Clause Clause would would forbid. forbid. When When used used in in combination and and with the safeguards safeguards that the the Due'Process described above, the techniques at issue here would not impose harm that constitutes "cruel, described above, the techniques at issue here would not impose hann that constitutes "crue~ inhuman, or degrading treatment or punishment" within the meaning of the DTA inhuman. or degrading treatment or punishment" .within tbe meaning ofthe DTA IV. The The final issue you have asked us us to to address address isis whether the the CIA's use use ofthe of the proposed consistent with with United States States treaty obligations Wlder under interrogation techniques would be consistent of the Geneva Geneva Conventions, Conventions, to to the the extent extent those those obligations obligations are are not not Common Article 3 ofthe by the War Crimes Act?" Act.34 As As we we explain explain below, below,Common Common Article Article33does does not not encompassed by the CIA's proposed interrogation techniques. disable the United States from from employing the 34 Through operation of the Military Commissions Act, the Geneva Conventions, outside thereoturenients 1 Neve esS, for the progmn program to comply with Common Article 3, and our analysts we understand that the CIA intends fOT analysis below is premised on that policy detenninatioll determination. preznised In addition, we note that the MCA MeA provides another mechanism mecbanism whereby the President President could could ensure ensure mat that thee with Common Article 3—by CIA interrogation program fully complies compli~~ith 3-by reasserting his prt-Hamdan pre-HamdtuI conclusion conclusion that thai Common Anicle 3 does not apply to the armed conflict Section 6(a)(3) of conflict against al Qaeda. S~"'tion ofthe MCA MeA provides provid::s the ltd the Geneva Conventions'" President with the authority to "interpret the meaning and application of oftbe Conventionsw through through ! executive orders that "shall be authoritative in the same manner as other olher administrative administr2tive regulations" (emphasis added). By specifically specifically invoking administrative law, the MCA MeA provides the the President President with with at at least least the the same same . authority to interpret the treaty as an administrative agency would have to interpret interpret a federal statute. stature. The The Supreme! Supremel Court has held that an administrative agency's reasonable interpretation of ofaa federal statute is to be "given ! priorcase case that thatanother anotherinierpretation interpretation was was bette,. better than thanthe theone one controlling weight" even if& ifa court has held in a prior Cable&&Te/ecomm. Telecomm.Au'n Ass'nv.v.BrandX BrandXInternet Serv.,54S 545U.S. U.S.967, 967, contained in the agency regulation. See Nat Not V '/ Cable Internet Serv., 980-9S6 980-986 (2005). (200S). As the Ihe Court Coun explained, e..~lained, the the. "prior judicial construction of of a statute S1atute trumps tromps an agency agent)· construction construetio otherwise entitled CDtitlcd to Chevron deference deference only only //the iffue prior prior court court decision decision holds holds that that its its construction construction follows follows from from the me! unambiguous terras agency discretion." hold tenus of of the tile statute and a.id thus tlms leaves no room room for fongency discretion." Id. ld. at at 982. 982. Hamdon Hamdon did not hoIh that Common Cornmon Article 3 was unambiguous. Rather, the Court held only that the best best interpretation of of Common Article 3 was that it applied to any conflict conflict that was not a conflict conflict between states. SI8re5. The The Court Cow! did did not not address the the feci tact that that the President had reached the opposite conclusion in his February February 7,2002 7, 2001 order, and reduced red~ced mat that view view to to the the I I 1 I 48 F F~OM SITE 15 OOJ (FRI)JUL 20 2007 15:\L ....ST. ' 5 : ' 3 .... NO.$180~2li017& A. A. Common Common Article 3 has been been described described as a "Convention "Convention in miniature." International Committee of ofthe ill Commentaries on the Geneva Conventions Committee the Red Cross, Jean Pictet, gen. ed., HI at 34 (1960). It It was intended intended to establish establish aa set of of minimum standards applicable applicable to the thetreat~ent, at treatment of of all detainees held held in non-international non·international armed conflicts. 1. 1- interpretation must begin "with «with the text of ofthe context in which the Our interpretation the treaty and the context written words are used." Societe Nationale Industrielk Aeropostiale v. United States District District \vords Industrie/le v. States Court, 482 U S . 522, 534 (1987); Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 534 (1991); see U.S. 522,534 Airlines, Inc. v. Floyd, 499 U.S. 530, 534 (1991); see also Vienna Convention on the Law of of Treaties, Treaties. May 23, 1969, 1144 i144 U.N.T.S. V.N.T.S. Article 31(1) ("A (uA! treaty shall be interpreted interpreted in good faith in accordance with the ordinary meaning to be given to I the terms of the treaty in their context and in light of its object ofthe ofits object and purpose."); see also Ian Brownlie, Principles of Public International Law 629 629 (1990) (1990) ("The language·ofthe language of the treaty must afPublic International Law be interpreted in light of general international law in force at the time of of the rules of ofgeneral of its conclusion, and also in light the terms."). tight of of the contemporaneous meaning of ofthe terrns...)?5 The foundation of of Common Article 3 is its overarching overarcbing requirement that detainees "shall in all circumstances be treated humanely, without any adverse distinction based on race, color, religion or faith, sex, hUl11anely, birth or wealth, or any other similar criteria." This requirement of of humane treatment is supplemented and focused by the enumeration off of four OUT more specific categories of acts that "are are and shall remain prohibited at any ~y time and in any place whatsoever." Those forbidden acts are1· any of all kinds, mutilation, cruel (a) Violence to life and person, in particular murder ofall treatment and torture; I I (b) Taking of hostages; "enoneous" "erroneous" litigating litigating position position of of the the Solicitor Solicitor General. General. SEe See 126 126 S, S. Ct. Ct aI. at2795~ 2795; id. id 812845-46 at 2845-46 (TnoJn3S, (Thomas, J., J., dissenting) (recognizing that the majority did not address whether the treaty treaty was was ambiguous ambiguous or or deference deference was was appropriate). .J I j 'I i ,! Because the MCA expressly allows th: the President to' to interpret the "appliea.tion" "application" ofCommon of Common Article Article 33by by executive order, order, he lawfully could reassert his pre-Hamdan pre-Hamdaninterpretation interpretationofofthe thetreaty. treaty. While Whilewe we'need neednot notfully fully .ex:ecutive here, we have little dollbt doubt that that as as aa matter matter of of text text and and history, history, the thePresident Presidentcould couldreasonably reasonablyfind find explore the issue here, (hat an an .."armed conflict not not of of an an international international char.lcter characteroccurring occurring in in the theterritory territory of of one one of of the theHigh HighContraaing Contracting that ~ conOict Parries" dOes does not notinclude includean ananned armed conflict conflict with withan aninte:mational internationalterrorist terroristorganization organizationoccuning occurringacross acrossterritorial territorial Parties" Commentaries,atat34 34\Speaking ("Speakinggenmlly, generally,ititmust mustbe berecognized recognizedthat thatthe theconflicts conflict; boundaries. See, &e. e.g., Pietel PicteL ill HI Commentaries, boundaries. to in Article 3 are are armed armed conflicts, conflicts, with widi armed armedfmces forces on on either eitherside sideengaged engaged in inhostilities, hostilities, in inshon, short,which which referred to are in many respects respects similar to to an an international war. war, but but talce takeplace place Within withinthe theconfllles confinesofa of asingle singlecountry.") country.") are added). Therefore, although we assume assume in light of Hamdan Hamdanthat thatCommon CommonArticle Article33applies appliestotothe theprese present (emphasis ad~ed). t conflict, v:e we no~e note that mat the the President President permissibly permissibly could could inteJpfCt interpret Common Common Article Article 33 not not to to apply apply by by an an eXeQ1tive executive ord::r order ~nflict, issued under under the theM MCA ISSued eA' l I 35 Although the theUnited United Slates States has has not notratified ratified the the Vienna ViennaConvention Convention on onthe theLaw Lawof ofTreaties. Treaties,we wehave haveof"lCn oft :n 35 Although looked looked to to Articles Articles 31 31 and and 32 32 of of the the Convention Convention as as aa resource resource for for rules rules of of maty treaty intetpretJtion interpretation widely widely ;ecognized recognized iIi in intematicmaI I international law. law. " 49 P 1 . FROM SITf 15 OOJ (FRl>J\IL. 20 2007 15:14/ST. 15:13//110. 6i60~2"778 dignity, in particular, humiliating and degrading (c) Outrages upon personal dignity: treatment; (d) The passing of sentences and the caoying carrying out of executions without previous judgment pronounced by a regularly constituted court affording affording all the tbe judicial guarantees which are recognized as indispensable by civilized peoples. these provisions, two two have have no no application here. here. The The proposed CIA CIA interrogation methods witl will Of these.provisions, involve neither the "taking of hostages" nor the the "passing "passing of of sentences sentences [or] [or]the thecarrying carryingout outof of executions." Thus. I(a) and l(c), • executions." Thus, our analysis will focus on paragraphs 1(a) 1(c), as wen well as Common Article ~'s 3 *sintroductory introductorytext. text. I the application of Common Article 33 to to the the CIA'& CIA's text does notfirmly Where the ten firmly resolve the proposed interrogation practices, Supreme Court precedent and the practices ofthis of this Office Office direct dired aids. As As with withany anytreaty, treaty,the thenegotiating negotiatingrecord-also record*—alsoknown known as as I us to several other interpretive aids. travavxpreparatoires-of priparatoires—ofthe theGeneva GenevaConventions Conventions isisrelevant. relevant. See, See,e.g.• e.g.,Zicherman Zicherman the tral.lcrux \/. v. Korean Air Lines LinesCo., Co., 516 516U.S. U.S.217, 217,226 226(1996) (1996)(''Because ("Becausea atreaty treatyratified ratifiedbybythe theUnited UnitedStates States Korean Air is not only the law of this land. land, but also an agreement among sovereign powers, we have its interpretation the negotiating and drafting history traditionally considered as aids to its bistoIy (travaux (travaux preparatoires) andthe thepost-ratification post-ratificationunderstanding understandingof ofthe thecontracting contractingparties.''); parties.");see seealso also preparaloires) and Art. 32(a) 32(a) (stating (stating that that "'supplementary "supplementary means means of of Vienna Convention on the Law of Treaties Art. interpretation, including the preparatory work ofthe of the treaty," treaty," may may be be appropriate appropriate where where the the interpretation, including the preparatory work obscure"). With With regard regard to to the the Geneva Geneva Conventions, Conventions, an meaning ofthe of the text text is is "ambiguous "ambiguous OT or obscure"). meaning an additional, related tool is available: In 1960, staff" members of the International Committee of of additional, related tool is available: In 1960, staff members ofthe International Committee .. the theRed RedCross, Cross,many manyofwhom of whomhad hadassisted assistedinindrafting drafting the theConventions, Conventions,published publishedCommentaries Commentaries. on each each of of the the Geneva Geneva Conventions, Conventions, under under the the general editorship of of Jean Pictet. . ,on gen~al editorship Jean Pictet. Pietet. See See Jean Jean Pietet,\ gen. ed., Commentaries on the Geneva Conventions (ICRC 1960) (hereinafter, "Commentaries"'. gen. ed., Commentaries on the Geneva C07lllentiOlJS (JCRe 1960) (hereinafter, "Commentaries''j. These Commentaries Commentariesprovide providesome someinsight insightinto intothe thenegotiating negotiatinghistory, history,asaswell wellasasaafairly fairly These I contemporaneous effort to explain the ICRC's views views on on the interpretation. contemporaneous effort to explain the lCRC's the Conventions' Conventions' proper proper interpretation.j, The Supreme the Commentaries persuasiveinininterpreting interpretingthe theGeneva Geneva The Supreme Court Court has bas found found the Commentaries persuasive I Conventions. See Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2796-98 & n.48 (2006) (citing Conventions. See Hamdan v. RUms/eld, 126 S. Ct. 2749, 2796-98 & nAS (2006) (citing thethe Commentariesten tentimes timesinininterpreting interpretingCommon CommonArticle Article33totoapply applytotothe thearmed armedconflict conflictwith withaIal Commentaries law, the [ICRC Commentary] is, as the parties Qaeda and explaining that "[tjhough not binding Qaeda and explaining that <I[t]hough not binding Jaw. the (leRC Commentary] is, as the parties recognize, relevant relevant in in interpreting interpreting the the Geneva Geneva Conventions"). recognize, Conventions"). I .1 \ I J In addition. addition, certain international tribunals have in recent years applied Common Article 3 Former Yugoslavia ("leTY") ("ICTY") and in war crimes prosecutions—the prosecutions-the International Tribunal for the Fonner and the International Criminal Tribunal for Rwanda ("ICTR"). (~ICTR"). Their decisions may have relevance as persuasive authority. See of Treaties Art. 31(3)(b) (stating See Vienna Convention on the Law ofTreaties that "subsequent practice in application ofthe of the treaty" may be relevant to its interpretation). The Supreme Court recently explained that the interpretation ofa of a treaty by an international tribunal ,charged with adjudicating disputes between signatories should receive "respectful "respectful J26126 S. Ct. 2669, 2683 (2006); seesee alsoalso Breard v. v.Ii consideration." Sanchez-Llamas Sanchez-Llamas\/.v.Oregon, Oregon, S. Ct. 2669, 2683 (2006); Breard Greene, 523 U.S. 371, 375 (1998) (per curiam). The Geneva Conventions themselves do not Greene, 523 U.S. 371, 375 (1998) (per curiam). The Geneva Conventions themselves do not either ICTY or ICTR duty, leaving leaving their their views views with with somewhat somewhat less less weight weight than than charge eithe~ leTR with this duty, II so ~ 1 r~v~ OJ'~ 1~ DOJ (FR l ) JUL 20 2G07 ;;;: 14/ST_ 15: 13/NO. 6i eOL2l?77e such a tribunal otherwise might have. find several have. We We do, do, however, however,find severaldecisions decisionsofthe of the ICTY ICTY of of use, use, and that our analysis aligns in many areas with with the the decisions decisions ofthese of these tribunals provides provides comfort that we ha.ve have accurately accurately interpreted interpreted the thetreaty's treaty's terms. terms. some corr(ort practicesof ofother otherstate stateparties partiesininimplementing implementing Finally, we also recognize that the practices . the statements statements of officials from nations, unsupported by Common Article 3 (as opposed to the from other nations, by! any concrete circl!JIlstances circumstances and conduct) may serve serve as as "a "a supplementary means means of any i interpretation." See See Vienna Vienna Convention Convention on onthe theLaw Lawof ofTreaties TreatiesArl. Art.31(3 3 l(3)(b). We have found )(b). We have found only one country, the United Kingdom, Kingdom, to to have have engaged in in a sustained effort to to interpret _ 3 discuss the the relevance relevance ofthat of that example below. Common Article 3 in a similar context, and we discuss below.» In addition, the Preparatory Committee for the International Criminal Court established I under the Rome Statute has developed elements for crimes under Common Article Article 33 that thatmay may be tried before that court, and an accompanying commentary. commentary. See KnutDOrmann, Dorraann, Elements Elementsof of tried. See Knut Crimesunder underthe theRome Rome Statute ofInternational Criminal Court: Sources and Commentary Crimes Statute oflntemational Criminal Court: Sources and Commentary States is is not notaa party partyto tothe theRome RomeStatute. Statute,see seeLetter Letterfrom fromJohn JohnR!.R (Cambridge 2002). The United States Undersecretary of State, to to U.N Secretary Secretary General General Kofi Anan Anan (May (May 6,2002) 6, 2002) Bolton, U~dersecretary !! the United States not to becOme become aa party party to to the theRome RomeStatute), Statute),but but (announcing intention of ofthe are. Thus, Thus, while whilethe theRome RomeStatute Statutedoes doesnot notconstitute constitute several parties to the Geneva Conventions are. as a I a legal obligation ofthe of the United States, States, and its interpretation ofthe of the offenses is not binding offenses matter of of law, law, the the Statute Statute provides provides evidence evidence of of bow how other other s'"tate state parties parties view view these these offenses. offenses. Lik~ Like, matter the decisions international tribunals, the decisions of ofinternational tribunals, the the general general correspondence correspondence between between the the Rome Rome Statute Statute I and our our interpretation interpretation of of Common Common Article Article 33 provides provides some someconfirmation confirmation ofthe of the correctness correctness of of the the and interpretation herein. be II 2. 2. I In addition by these thesetraditional traditionaltools toolsof oftreaty treatyinterpretation, interpretation,the th< a~dition to the guidance provided by inquiry. Military Commissions Act substantially assists our inquiry. MCA amends the the War War Crimes Crimes Act Act to to include include nine nine specific specific criminal criminal offenses offenses defininb defining The MeA of the Geneva Conventions, we have have discussed discussed above. above. These These the grave breaches ofthe Conventions. which we ! 37 amendments constitute authoritative statutory implementation ofa of a treaty. 37 As irnpot+4.aD.t, important, by amendments. I I 36 The practice practice of man)' many other stite state parties parties in in response response to to en-i) civil conflicts conflicts appears appears to to have havebeen been simply simply to to 36 violate Common Article 3 v.ithout without conductillg conducting any interpretation. interpretation. The The Government of of France, for instance, seeking to to suppress suppress insurrection insurrection in in the: the then-French then-French teiritolY territory ori of; reportedly instituted torture as an official practice in seeking Algeria between 1954 and 1962, 1962. See, See.e.g., e.g.,Shiw_Eftekhari., Sbivz.Efte!khaii,France the Algerian a Policy France andand the A.lgerian War:War: FromFrom a Policy of of I 'Forgetting''totoDaFramework Framework q/Accountabflity, 34 Colum. Hum. L. Rev. 413,421-22 (2003). More recently, 'Forgetting ofAccO",mtobllity, 34 Colum. Hum. Rts. Rts. L. R.e\'. 413.421·22 (2003). Morerecently. / Russia reportedly reportedly engaged insust2ined in sustained violations of Common Article 33 inindealing dealingwith withlhe (heintemal internalconflict conflictinin Chechnya. We do do not not take take such suchactions actionsas asaaguide guidetotothe themeaning meaningof ofCommon CommonArticle Article3,3,and andindeed indeedmany manyofofthe the Chechnya. reported actions of these these nations are condemnable. But these examples do reinfor<:e reinforce the the need to to distinguish distinguish what what when confroJt.ed confronted with withtheir their own ownnational national security securitychallenges. challenges. states say from what they in fact do when I I ~ro\'ided ~e 37 Congress provided a comprehensive comprehensive frameworlc framework for for discharging discharging the obligations obligationsof ofthe the United United States' States , ._under under the the Geneva Conventions, Conventions, and and such such legislation properly influences our constmction construction of the the Geneva I implementing our treaty treaty obligations, obligations, and that legislation Conventions. Congress regularly enacts legislation impleme.nting I provides definitions for undefined treaty terms or otherwise specifies lhe the domestic domestic l~gal legal effect effect of of such such treaties. treaties. See Se~ I 51 P 1 FROM'SITE IS OOJ I . ; i I! j I1 acts, the amendments allow our interpretation ofCommon of Common statutorily prohibiting certain specific acts, of relatively less serious conduct (i.e., (i.e., conduct that falls fells short Article 3 to focus on the margins ofrelatively breach). Accordingly, we need not decide the outer limits of of conduct permitted by of a grave breach). prectices, certain provisions of Common Article 3, so long as we determine that the CIA's pre.ctices, limited as they are by clear statutory prohibitions and by the conditions and safeguards applied of Common Article 3. 3. For that interpretive task, by the CIA, do not implicate the prohibitions ofCommon the War Crimes Act addresses five specific terms of of Common Article 3 by name-"torture:' name—"torture," "mutilation," and the '"taking "taking of hostages." Although the War "cruel treatment," "murder," «mutilation," Crimes Act Act does not by name mention the the three three remaining relevant 'tel111s-"violence terms—"violence to life and Crimes person," "outrages upon personal dignity, in particular, humiliating and degrading treatment," treatment,'1 person," "outrages upon personal dignity, in part:i:cular, humiliating and degrading and the the overarching overarching requirement requirement of of "human "humanefj" treatment—the Act Act does does address address them them in in part part b~ by and eO" treatment-the identifying and and prohibiting four other «grave "grave breaches" under under Common Article 3. 3. Three Three ofthes~ of these offenses—performing biological biological experiments, experiments, rape. rape, and sexual sexual assault assault or or abuse, abuse, see see 18 18 U.S.C. U.S.C. I offenses-performing 2441(dXl)(C), (G), (G), (H)-involve (H)—involve reprehensible conduct conduct that Common Article 3 surely §§ 2441(dXl)(C), ! offense—intentionally causing serious bodily injury-whicij injury—which prohibits. The Act includes another offense-intentionally of "willfully causing great suffering suffering or may have been intended to address the grave gra~e breach of"wi11ful1y I' 130. This grave breach is not directly serious injury to body or health," specified in Article 130. linked to Common Article 3 by either its text, its drafting history, or the ICRC Commentaries; "serious bodily injury" offense in the War Crimes Act may substantially nevertheless, the ··serious overlap with Common Article 3' 3'ss prohibitions on "violence to life and person" and "outrages upon personal dignity." • of [the War Crimes Act] Act Congress also stated in the MCA that the amended "provisions of fully satisfy the obligation under Article 129 ofthe of the Third Geneva Convention for the United effective penal sanctions for grave breaches which are encompassed in States to provide effective common Article 3 in the context conte>..1 of an armed conflict conflict not of of an international character." MCA 6(a)(2). This statutory conclusion sugges"1.S suggests the view of Congress that the terms "murder," "murder," § 6(a)(2). , treatment," "torture," and the "taking of hostages" in Common Article 3 are ofhostages" "mutilation," "cruel treatment," properly interpreted to be cotenninous coterminous with the identically named offenses offenses in the War Crimes Act. Article 130 of the Third Geneva Convention e>q>ressly expressly states that two of these offensesoffenses ofthe ofthese ! ("willful killing" in Article 130)—are grave breaches. As explained below, torture and murder torture and C'willful 130)-are below, I international commentators and tribunals believe that a third offense—cruel treatment—is offense-cruel treannent-is . identical to the grave breach of of "inhuman treatment" in Article 130. To criminalize only a subset of those acts would not be consistent with the obligation of of the United States under Article Aniele 129 I ofthose 38 of GPW, and Congress believed it "fully satisfied]" that obligation in the MCA. In any event'l' event, of "fully satisf[ied]" 38 no legislative history indicates that Congress believed the ~he War Crimes Act left left a gap in coverage I I I I e.g., U.S.C§§§§201·208 201-208(addressing (addressingthethe scope of the Convention Recognition of Foreign Arbitral Awards); e.g., 99U.S·.c. scope of the Convention on on the the Recognition ofForeign Arbitral Awards)~ 18 U.S.C. U.S.C.§§1093 1093(unplementing (implementingand anddefining definingterms termsofof Convention Prevention Punishment of the 18 thethe Con\'CIltion onon thethe Prevention andand Punishment of the Crime of Genocide); Genocide); 17 17 U.S.c. U.S.C.§§116(a) 116(a) (defining terms of the Convention for Protection the Protection of raJ)' Literary and Artistic (defining terms of the Convention for the of Lite and ArtistiC, Works); 18 U.S.c. U.S.C §§2339C 2339C(defming (definingterms termsofofthe theInternational InternationalConvention Convention Suppression of the Financing forfor thethe Suppression oethe Financing of iof Terrorism); 26 U.S.C. U.S.C.§§894(<:) 894(c)(intctpreling (interpretingthetheUnited United States-Canada Income Treaty 1980). TelTOrism); 26 Stales-Canada In~mc Treaty of of 1980). I x jlI We 'need the other terms of conunoJ need not notdefinitely definitelyresohre resolvethe theqaestion questionofofCongress's Congress'sintention intentionasastoto thetwo two other terms of Common Article 3 defined defined ininthe theWar WarCrimes CrimesAet-"mutilation" Act—"mutilation"and andthethe "taking hostages"—neither which appears "ta.ldng of of hostages"-neithez of of which appears expressly in Article 130 130 of of GPW. GPW. These Theseoffenses offensesare arenOI notimplicated implicatedbybythethe proposed CIA iraerrogatJon methods. proposed CIA interrogation methods. 52 FROM SITE 15 DO~ (FRI)JI.IL 20 2007 15:14/ST. 16:13/NO.e16042S778 with with respect respect to to any any of of its its offenses offenses that that expressly expressly address address by by name specific prohibitions in Common Article 3. Combining Congress's view in its implementing legislation with our own its Common Article 3. Combining Congress's s relevant s analysis analysis ofCommon of Common Article Article 3' 3 's relevantterms. terms, including including the the alignment alignment of of Congress' Congress's definitions definitions with with interpretations interpretations of of international tribunals, tribunals, we conclude below that Congress's view view isis correct correct and and that that itit has has in in the the War War Crimes Crimes Act fully and correctly defined the terms at issue. issue, namely namely "'torture" "torture" and and "cruel "cruel treatment." treatment." J. 3. Congress Congress in in the the MCA also also made made clear, however, its view that the grave breaches definedj defined) 1 in in the the Wax War Crimes Crimes Act Act do do not exhaust the obligations of the United States under Common Article Article 3. 3. The War Crimes Act, as amended, states that "the definitions [in the War Crimes Actj Act are of the are intended only to define the grave breaches ofCommon of Common Article 3 and not the full scope of th United United States States obligations under that Article." Article." 18 18 U.S.C. U.S.C. §§2441(d)(5). 2441(d)(5). A$ As to to the the rest, rest, the the Act Act states states that the the President may "promulgate higher standards and administrative regulations for MC4 violations violations of treaty obligations which which are not grave breaches ofthe of the Geneva Con~ntions." Conventions." MC §6(a)(3)(A). § 6(a)(3)(A). I I Our inquiry with respect to the residual meaning ofCommon of Common Article 3 is therefore" therefore or. confined to the three terms not expressly defined in the War Crimes Act—"violence Act-"violence to life or" dignity," and "humane" treatment-to treatment—to the extent those terms person," "outrages upon personal dignity," beyond what is covered by the fQur four additional offenses offenses under the War Crimes Act Act. have meaning be~ond above. 9 The President, Members of of Congress, described above. Congress, and even even Justices Justices of ofthe the Supreme Supreme troublingly vague and that post Court in Hamdan have recognized that these provisions are aretroublingly post hoc interpretations by courts, international tribunals, or other state parties would be difficult difficult to of certainty. See, predict with an acceptable degree of See. e.g.. e.g., Address of of the President, East East Room, Room. White House (Sept. 6.2006) 6,2006) ("The problem is that these [e.g., 'outrages upon personal dignity, that (e.g., dignitY'11 in particular, humiliating and degrading treatment'] and other provisions of of Common Common Article Three are vague vague and and undefmed. undefined, and each could be interpreted in different Three different ways by American American and ana judges."); 152 Cong. Rec. S10354-02, S10412 (Sept. 15, 2006) (Statement of Sen. foreign foreign judges."); 152 Congo Roc. 510354-02,510412 (Sept. 15,2006) (Statement ofSen. McCain) ("Observers have commented that, though such sUch 'outrages 'outrages [upon personal personal dignity)' are difficult to define precisely, we all know mem them when we see them. However, neither I nor any difficult of this this body should want want to prosecute and and potentially potentially sentence sentence to to death d other responsible member of any individual individual for for violating Hamdan, 126 126 S. S. Ct. Ct. at at 2798 any violating such such aa vague vague standard."); standard."); Hamdan, 2798 ("Common ("Common Article 33 obviously obviously tolerates flexibility in Article tolerates aa great great degree degree of offlexibiIity in trying trying individuals individuals captured captured during during armed conflict; armed conflict; its its requirements requirements are are general general ones."); ones."); id id at at 2848 2848 (Thomas, (Thomas, J., J., dissenting) dissenting) (characterizing provisions Common Article Article 33 as as "vague" "vague"' and and "nebulous"). "nebulous"). (characterizing provisions in in Common I .. cl this They were not the first to remark on this uncertainty, nor is the uncertainty uncertainty an an accident. found it "dangerous "dangerous to to try try to to go The Commentaries explain that the Conventions' negotiators found into too tao much detail" and thus sought sought "flexible" language that that would would keep keep up up with with unforeseen unforeseen circumstances. Pictet, at 39; 39; see see IV IV Co~zmentaries, Commentaries, atat204-05 204-05("It ('It seems seems Pict.et. III mCommentaries, Commentaries, at 39 weclI.-plain explainbelow, below,Congress Congresscorrectly correctlydefined definedthethecontent content of Common Article prohibitions 3' As we ofCommon Article 3'53's prohibitions onon cruel the War WarCrimes CrimesAct's Act's"crud "crueland andinhuman inhumantreatment" treatment" offense.SeeSee infra at pan IV.B. l.b. crl1cl treatment in the offense. infra at pan IV.BJ.b. 53 l. ? CFR') JUL 20 ~007 150: 1 ~/$T. 15: 13/NO. t,HIO~2G77e p useless or even dangerous to attempt to make make aa list list of of all ail the thefactors factors which which make maketreatment treatment humane."'); see Conferences ofGeneva of 1949, at 248at 248 'humane.'"); see also also 2A 2AFinal FinalRecord RecordojDiplomatic of Diplomatic Conferences of Geneva of 1949, CMr. ("Mr, Maresca Maresca (Italy) (Italy)thought thought that that itit gave gavegreater greaterforce forcetotoaarule ruleififhe hemerely merelystated staledits its I fundamental principle without any comments~ comments; to to enter enter into intotoo toomany manydetails detailscould couldonly onlylimit limitits itsI fundamental . scope."). C 'I ij The difficult applying these remaining terms difficult task of ofapplying tenns is substantially assisted by two interpretive tools established in United States practice as as well well as as international international law. law. The The first first of of these turns to more developed United States legal legal standards-similat standards—similar to those set forth in Common Article 3—to to Common Article 3'5 3's otherwise general tenns. terms. This This 3-to provide content to approach is expressly recOmmended recommended by Congress in the Military Commissions Act, Act, which approach'is reaffirms stand~ds of treatment extended abroad and to aliens by the Detainee Detain~ reaffirms the constitutional standards Treatment Act. The MCA ~rther further prov.ides provides that any violation of the constitutional standards in i the Detainee Treatment Act in connection with a Common Article Article 3 armed armed conflict conflict constitutes constitutesaa 6(a)(1). The TheMeA MCAtbus thusbotb bothpoints pointsus ustotopartiaJ1al particular violation of Common Article ofCommon Article 3. 3. See See MCA §§ 6(aXl). domestic law in applying Common Article 3 and and leaves leaves open openthe thepossibility-advanced possibility—advanced by by man~ many during the debate over the MeA-that MCA—that compliance with the DTA DTA as as well as as the specific criminai criminal prohibitions in the War Crimes Act would fully satisfy the the obligations of the United States State's under unde1r Common Article 3. f' I During the legislative debate over the Military Commissions Act, Act, Secretary ofState of State State Department Department believed believed that that Congress Congress reasonably reasonably could! could1 why the State Condoleezza Rice explained .why declare that compliance with the DTA would would satisfy United States States obligations under Common Article 3: Article 3: I In a case where the treaty's terms are inherently vague, it is appropriate for a state precedents, concepts and and noons norms in interpreting to look to its own legalframework, framework, precedents, these terms and carrying out its international obligations. obligations.... . .. The proposed U.S. adherence to Common Article 3 ofthe Geneva legislation would strengthen U.S. Conventions because it would add meaningful definition and clarification to vague tenns . terms in the treaties. treaties. In the department's view, view, there isis not, not, and and should should not not be. be, any any inconsistency inconsistency with with (a) and and (c) (c) of respect to the substantive behavior that is prohibited in paragraphs (a) ofCommon Common Article Article33 and andthe thebehavior behaviorfraat thatisisprohibited prohibitedasas"cruel, "cruel, Section 11 of inhuman, or degrading treatment or punishment." punishment," as that that phrase phrase isis defined defined in in the the inhuman. U.S. reservation to the Convention Against Torture. Torture. That substantive standard U.S. was also utilized by Congress in the Detainee Treatment Act. Act. Thus Thus itit isis aa ... that reasonable, good faith interpretation of Common Article 3 to to state state... thatthe the I II ! II. prohibitIons prohibitions found in the Detainee Detainee Treatment Treatment Act Act 0[2005 of 2005 fully fully satisfy satisfy the the the United States with respect to the standards standards for detention and obligations of the paragraphs of Common Common Article Article 3. 3. treatment established in those paragraphs Condoieezza Rice Rice to to the theHonorable HonorableJohn John Warner, Warner,Chairman Chairman of ofth the Letter from from Secretary of State Condoleezza Senate Armed Services Committee (Sept, (Sept. 14.2006) 14, 2006) ("Rice ("Rice Letter"). Letter"). In In enacting enacting the the MeA, MCA, [ Congress did not specifically declare that the satisfaction satisfaction ofthe of the DTA DTA would would satisfy satisfy United United States States I . TO , T . I . 54 ~ROM SITe 15 OOJ I obligations under under Common Common Article Article 3, 3, but but Congress Congress took took measures measures to to leave leave open open such such an an obligations I interpretive decision, decision. In In particular. particular, section section 6(a){3) 6(aX3) ofthe of the MeA MCA expressly expressly delegates delegates to to the the interpretive I President the the authority authority to to adopt adopt such such aa "reasonable, "reasonable, good good faith faith interpretatio~ interpretation of,Common of Common President .1 Article Article 3," 3,"and and section section 6(a)(I) 6(a)(1) provides provides that that the the prohibition prohibition under under the the DTA DTA ISis dIrectly directly relevant relevant 1~ in interpreting interpreting the the scope scope of of United United States States obligations obligations under under Common Common Article Article 3. 3. every violation violation ofthe of theDTA DTA is striking that that Congress Congress expressly expressly provided provided that that every ItIt is.striking .j 'I 'J ,I! . "constitutes [a] [a] violation[] vioiation[] ofcommon of common Article Article 33 ofthe of the Geneva Geneva Conventions Conventions prohibited by by Unitefl United "constitutes States law." law." MeA MCA §§ 6(a)(1). 6(a)(1) Especially Especially in inthe thecontex1 context ofthe of the legislative legislative debate debate that that accompaniqd accompanied States of the Military Commissions Act, Act, this this statement statement suggests suggests a belief that the traditional traditional the passage ofthe into the the DTA DTA very very closely closely track track the the humanitarian humanitarian standard~ standards constitutional standards incorporated into Common Article 3. 3. If If the fit were loose, loose, it w?uld.be would be difficult to forecl?se foreclose the possibility that j of Co~o~ violations oftheDTAwould of the DTA would not also also be ViolatIons violations of Common Article 3, 3, unless CongreSS Congress some VIolatIOns all cases more protective than the domestic domestic . were of the view that Common Article 33 isis in aU our own citizens. citizens. constitutional provisions applicable to oW" I I I The manner in which Congress reaffirmed the President's authority to interpret the of grave breaches, is consistent with the suggestion that the Geneva Conventions, outside ofgrave with the requirements of Detainee Treatment and War Crimes Acts are substantially congruent With set Common Article 3. The Military Commissions Act, after identifying both the grave breaches se't of the DTA out in the War Crimes Act and transgressions ofthe DTA as violations violations of ofCommon Common Article Article 3, 3, states that the President may "promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches breachesof ofthe the Geneva GenevaConventions." Conventions." MCA § 6(a)(3)(A) (emphasis added). The provision does not mention the DTA: While the provision indicates that Common Article 3 that are not grave breaches that there are are violations of ofCommon covered covered. by the War Crimes Act, it also implies that the DTA may address those additional violations. 18 U.S.C. U.S.C. §§ 2441(d)(S), 2441(d)(5), as as amended amended by by MCA MCA §§ 66 (stating (stating that that "the "the See also also 18 violations. .See definitions Common [in the War War Crimes Crimes Act] Act] are are intended only only to to define define the grave breaches breaches of ofCommon definitions [in Article 3 and not the full scope of the United States obligations under that Article"). . ,. Article 3 and not the ~ll scope ofthe United States obligations under that Article"). DIA's standard of of humane treatment to Common Article 3, Congress , In applying the DTA's histoJ)' of ofthe I was acting in accordance with a practice grounded in the text and history the Geneva Conventions. The Conventions COJ:.lvemions themselves recognize that, apart from "grave breaches," the state stat~ parties have some flexibility flexibility to t9 consult consult their own legal traditions in implementing implementing and I discharging their their treaty tre&"y obligations. Although parties are obligated obligated to prohibit prohibit grave breaches, discharging ft 1-2. with "penal sanctions," see GPW Art. 129ffl] 1-2, the Conventions require parties "to take necessa..")' for the suppression suppression of of other breaches of ofthe Convention[s]," id id. <$ ~ 3.3.The measures necessary the Conventionls]," The Commentaries Commentaries also suggest suggest such such an approach approach when they explain e),plain that that Common Common Article Article 3 was drafted state parties: It drafted with reference reference to the then-existing then-existing domestic laws of ofstate It "merely "merely demands respect for certain rules, which were already recognized as essential in all civilized respect for certain which were already recognized essential civilized countries, and ane embodied in the national legislation of the States in question." Pictet, III Commentaries, at 36. I em\;>odied in the national legislation of the States Pietet, ill Not Not only only was was the the United United States States among among the tbe Conventions' Conventions' leading leading drafters, drafters, but but itit was was then then (as (as itit is is now) the world. now) among among the the leading leading constitutional constitutional democracies democracies of ofthe ~vorld. It It is is therefore therefore manifestly manifestly appropriate appropriate for for the the United United States States to to consider consider its its own own constitutional constitutional traditions—those traditions"':'-those rules rules "embodied "'embodied in in the the national national legislation" legislation" of ofthe the United United States—in States-in determining determining the the meaning m~ning of ofthe the I I 5S FROM SITE:5 DOJ (fRI)JUl.. 20 2007 t5:iS/ST.l!S:IS/NO.l5111042G778 general standards embodied in Common Article 3. The DTA incorporated constitutional . standards from our Nation's legal tradition that predate the adoption of ofthe the Geneva Conventions; Conventions II . Indeed, the United States previously bas clarify ambiguous has looked to its own law to clarify treaty terms in in similar treaties. A leading example is now embodied in the DTA itself. Faced with an refrain from from "cruel, "croel, inhuman, inhuman. oorr an otherwise undefined and and difficult-ta-apply difficult-to-apply obligation to refrain degrading treatment" in ~i~le Article 16 ~f of the CAT, the Senate turned to our Nation's constitutional tu~ed ~o Nation:s I and made clear In in Its its adVice advice and and consent that the obligation the United standards and obligatIon of ofthe Untted States under undcrl j this provision would be determined by reference to the Fifth, Fifth. Eighth, and Fourteenth See Executive ExecutiveBranch BranchSummary SummaryandAnalysis and Analysis ofthe of theCAT CA of the U.S. Constitution. See Amendments ofthe 15-16, S. S. Exec. Exec. Rep. Rep. 101·30, 101-30, Convention ConventionAgainst AgainstTorture TortureandOther andOther Cruel. Cruel,Inhuman Inhumanoror at 15-16; Degrading Treatment Treatment or Punishment at ~5-26 25-26 (Aug. 30: 30, 1990); see see also ~ Samarmv.v._• F.2d 461, 463 (4th Cir. 1963) (looking to a more detailed definition of a term Commissioner, 313 Commissioner, 313 F.2d 461, 463 (4th Clr. 1963) Oooking to a more detatled definItion in a domestic U.S. tax statute to interpret a a comparatively general treaty term). tenn). As with With the the Geneva Conventions, this approach was at least suggested by the treaty itself, which required I itself. to "undertake "undertafcetotoprevent prevent... cruel,inhuman, inhuman,or ordegrading degradingtreatment treatment or orpunishmenti' punishment/' state parties to ... cruel, Art. 16 (emphasis added); see Eucutive ExecutiveBranch BranchSummary Summaryand andAnalysis. Analysisof ofthe theCAT, CAT,S.S. CAT Art. Doc. 100-20 at 15 15 (explaining (explaining that that this this language language isis "more "more limited" limited" than than aa "stringent "stringent Treaty Doc. and «embodies "embodies an undertaking to take meas-Ilres measures to prevent" violations within the prohibition" and rubric of existing domestic legal iegal StIUCtureS).40 structures).40 . I I I The second interpretive tool applicable here attempts to reconcile the residual conflict against al Qaeda. imprecision in Common Article 3 with its application to the novel conflict When treaty drafters purposely employ vague and iJI-defined ill-defined language, such language can reflect a conscious conscious decision to to allow state parties to to elaborate on the meaning ofthose of those terms as they confront circumstances unforeseen at the time ofthe of the treaty's drafti drafting. c.cnfront ng. in I I I first interpretive principle, this approach shares the support of Like our fIrst of Congress through the framework established in the Military Commissions Act. In that Act, Congress chose to keep ke4p of the courts, and recognized that the Executive Branch has the Geneva Conventions out ofthe /; in interpreting Common Article 3 (outside the grave breaches) to provide good faith discretion in terms to evolving circumstances. The explicit premise behind the Act's Act'j applications of its vague tenns Government comprehensive framework for interpreting the Geneva Conventions is. that our Government and the the Conventions permitted. permitted, a range ofdiscretion of discretion for addressing the threat against the needed, and tlie al Qaeda. As we discussed in the context of the DTA, United States presented by al ofthe DTA, Congress Con2Tcss knew that a CIA interrogation program had to be part of l'1lew of that discretion, and thus a guiding MCA : s enactment was that the CIA's program could "go forward" objective behind the MCA's could«go fOJWud" in the offfamdan. Hamdan. See supra at 43-44. This is not to say that the MCA declares that any conduct condu~ wake of I <0 the United Slates States undertook a reservation co As a formal matter, the. JeSCl'\'lltion to the CAT, altering United States J treaty. The United States made clear, than invoking domestic law as a means of interpreting the treaty. obligations, rather than clear. that itit understood understood the the constitutional traditions traditions of of the the United United States Statesto tobe be more more than thanadequate adequate to tosatisfy satisfy the' the] however, that or degrading degrading treatment treatment or or punishment" punishment"slandard standardrequired requiredby bythe thetreaty, treaty,and andtherefore, therefore, ititWldertook! undertook! "cruel, inhuman or the reservation out· out'of not because the of an abundance of caution and Dot beQuse it believed that United States law would fall short of elf the obligations wtder under Article 16, 16, properly understood. S. aec. E*ec. Rep. 101-30, Convention Against Torture Tortureand andOJh~r Other the UJnvention Agafnst Cruel, Inhuman InhumanororDegrading DegradingTreatment Treatment Punishment at 25-26 (Aug. 19°0). Crue~ oror PunlsllmDlI at 25-26 (Aug. 30,30, 1990). ' 56 P 1 FROM SITe 15 DOJ (FRI)JUI. 20 2007 15:"l!~/ST. 15:1!/r40. 61604:2.776 falling under the auspices of a CIA interrogation program must be consistent with Common Article 3. To the contrary, Congress recognized that Common Article "33 establishes some clear limits on such a program. Nevertheless, the result of lingering imprecision in Common Article 3'5 3's terms should not be institutional paralysis, but rather discretion for'the for the Executive . Branch in developing an effective CIA program within those clear limits. limits. i ,I I I I I Common Article 3 certainly places clear limits on how a state party may address such offensive to "all civilized nations." Pictet, ill III challenges and absolutely bars certain conduct offensive Commentaries, at 39. For instance, the provision prohibits "murder of all kinds," "mutilation," Commentaries, of taking ofhostages"-terms of hostages"—terms that are susceptible to precise definition and that "are and and "the takiog whatsoever." When it comes. comes, however, to shall remain prohibited at any time and in any place whatsoever," Common Article 3's more general prohibitions upon "violence to life or person" and "outrages of those upon personal dignity," it may become necessary for states to define the meaning ofthose prohibitions, not in the abstract, but in their application to the specific circumstances that arise. Indeed, the ICRC Commentaries themselves contemplate that "what constitutes humane • treatment" would require a sensitive balancing of both security and humanitarian concerns. Depending on the circumstances and the purposes served, detainees may well be "the object of strict measures since the dictates of humanity, and measures of security or repression, even when • they are severe, are not necessarily incompatible." Id at 205 (emphasis added). Thus, Common Article 3 recognizes that state parties may act to define the meaning of humane treatment, and i; 5 related prohibitions, in light of the specific security challenges at issue, The conflict with ai Qaeda reflects precisely such a novel circumstance: The application of Common Article 3 to a war against international terrorists targeting civilians was not one contemplated by the drafters and negotiators of the Geneva Conventions. As Common Article 3 was drafted in 1949, the focus was on wars between uniformed armies, as well as on the atrocities that had been committed during World War II. A common feature of the conflicts that served as the historical backdrop for the Geneva Conventions was the objective of the parties to engage the other's military forces. As the ICRC described the matter, "Speaking generally, it must be recognized that the conflicts referred to in Article 3 are armed conflicts, with armed j forces on either side engaged in hostilities—conflicts, in short, which are in many respects similar to an international war, but take place within the confines of a single country." Pictet, III Commentaries, at 37 (emphases in original).41 Al Qaeda in its war against the United States and its allies is not organized into battalions, under responsible command, or dressed in uniforms, although we need not decide whether these hallmarks of unlawful combatancy set al Qaeda into a class by itself. What is undoubtedly novel from the standpoint of the Geneva Conventions is that al Qaeda's primary · .j " Thus, although the Supreme Court rejected the President's determination that Common Article 3 did not apply to the conflict against al Qaeda. there can be little doubt that the paradigmatic case for the drafters of Common Article 3 was an internal civil war. 2B Final Record ofthe Diplomatic Conference of Geneva of 1949, at 121; see a/so Pictet, m Commentaries, at 29. A thorough inteipretation of Common Article 3 mustreflectthat Common Article 3, at a minimum, is detached from its historical moorings when applied to the present context of armed conflict with al Qaeda. ·• i .i 57 P 2 r - - - - - - - - - - - - - . -_._-_ ..... FROM $ITE 15 OOJ {FRI)JUL 20 2 .. 07 15:16/5._ '5:iS/IolO.lli60~211775 i" means of ofwarfare is not not to to vanquish vanquish other otber uniformed unifonned armies armies but but rather rather to to kill kill innocent innocent civilians. civilians. warfare is not resemble.the resem~le.the insurgent insurgentforces forces of ofthe domestic rebellions rebellionsto towhich which the domestic In this way, al Qaeda does not drafters and negotiators of ·ofCommon Article 3 intended to apply long-standing principles principles of of I the drafters Common Article ofwar for national national armies. armies. Early Early explanations explanations of ofthe personsprotected protected from from ! the persons the law of war developed for by.aa state party action by. party under Common Article 3 referred referred to to the the"party "party ininrevolt revoltag'!-inst againstthe thedede i jure Government." 2B Final Record ojthe Diplomatic Conference ofGeneva of /949. at 121 at I121 jure Government." 2B Final Record of the Diplomatic Conference of Geneva of 1949, at 29 (explaining thatthat thethe historical impetusl see also alsoPietet, Pictet,ill IHCommentaries, Commentaries, at 29 (explaining historical impetus (emphasis added); see of Common Article 3 was bloody "civil wars wars or or social social or or revolutionary revolutionary disturbances" disturbances" in in which which ! of the Red Cross had trouble intervening because they were entirely within the territory ofa of a sovereign state); id. 32(discussing (discussingthe theparadigm paradigmmodel modelof"patriots of "patriotsstruggling struggling for for the the id. atat32 digiUty of oftheir country"). Al A1 Qaeda's Qaeds's general means of engagement, on the independence and dignity hand. is to avoid direct hostilities against the military forces of ofthe United States States and and I other hand, the United cOmmit acts of ofterrorism instead to commit terrorism against civilian targets. I I I I I Further supporting a cautious approach in applying Common Article 3 in the present novel context. ofCommon Article 33 were not under the context, the negotiators and signatories of Common Article was breaking new new ground regarding the sUbs~ve substantive rules that! that impression that Common Article 3 was parties, apart from to aa new new category category ofpersons. of persons. They They sought sought govern state parties. from applying those rules to formalize "principles [that had] warfare and to formaHze,uprinciples had] developed as the result of of centuries of ofwarfare and had had already already the adoption of the Geneva become customary law at the time of ofthe ofthe ·Geneva Conventions Conventions because because they they Delalic,Case Case reflect the most universally recognised humanitarian principles." principles.'" Prosecutor Prosecutor v.v.Delalic. No. IT·96-21-A IT-96-21-A (ICTY Appellate Chamber 2001); 2001); see seealso alsoPietet, Pictet,illmCommentaries. Commentaries, at 36 i No. at 36 (explaining that Common Article 3 establishes rules "which were already alreadyrecognized recognizedasasessential essential in all civilized countries") (emphasis added). Ofcourse. Of course, the application ofCommon of Common 'Article Article 3's I conflict with with terrorists terrorists who who are arefocused focused on onthe thedestruction destructionof ofcivilian civilian general standards to a conflict targets, a tYPe type ofconflict of conflict not clearly anticipated by the Conventions' targets, Conventions: drafters, would not merely the result resuit of centuries of warfare." Thus, utilize the axiomatic principles that had "developed as the we must must be be cautious cautious before we we construe construethese theseprecepts preceptstotobind bindaastate's state'sbands handsininaddressing addressingsuch' such. we threat to to its its c civilians. aa threat ivilians.' i I That aa treaty treaty should should not not be be light lightly construed to to take take away away such such aa fundamental fundamental sovereign sovereign I}' construed catastrophic attack-is attack—is an responsibility—to protect its its homeland, homeland, civilians, civilians, and and allies from responsibility-to from catastrophic interpretive principle principle recognized in in international law. law. See SeeOppenheim's Oppenheim International 's International Law Law interpretive 633,atat 1276 1276(9th (9th ed. ed. 1992) 1992) (explaining (explaining that that the thein indubio dubiomitius mitius canon provides that treaties I §§ 633, canon provides that treaties should not not be be construed construed to to limit limit aa sqvereign sovereignright of states states in in the the absence absence of of an an express express should right of I agreement); cf cf.Merrion Jicarilla Apache Tribe, (1982) ("sovereign power' agreement); Merrion \I.v.Jicarll/aApache Tribe. 455455 U.S.U.S. 130,130, 148148 (1982) ("sovereign power'j cannot be be relinquished relinquished "unless "unless surrendered surrendered in in unmistakable unmistakable terms»)."3 terms").'" The The right right 10 to protect protect its its I cannot I I <~ <2 Asexplained explained above, above, the the innovation innovation of of Common CommonArticle Article 33 was was not not to to impose impose wbolly wholly novel standzrds standards on As states, but toapply apply the the Jaw law of of \\oat war to tochit civil W31$ wars that that largely largely shared sharedthe thecharacteristics characteristics of of intcmational international armed armed states, but to I conflicts, while whilelacking lacking aastate state part). partyon onthe the opposing opposing side side that thatcould could be beaaparticipant participant in inaafully fully reciprocal reciprocal trealy treaty conflicts, I 111Commentaries, Commentaries,atat37. 37.Although Althoughthe thedrafters drafterswere wereinnovating innovatingbybybinding bindingstates statestotolaw lawofof arrangement See See Pietet. Pictet ll1 arrangement warstandards standardsabsent absentan anassurance assurance that thatthe theenemy enemy would would do do the the same, same, they they believed believed that that the the general general baseline wac standardsthat that would would apply apply under underCommon Common Article Article 33 were were unconltoversial unconiroversia! and and well well established. established. standaIds i 43 Thecanan canonaf ofin indubio dubio mitiilS mitius(literally, (literally, "when "whenin indoubt, doubt,bring bring calm") calm")has has been been applied applied by by numerous numerous The internationaltribunals tribunalsto toconsnue construeambiguous ambiguous treaty treaty tenos termsagainst againstthe the relinquishment relinquishment of of fundamental fundamental sovereign sovereign international 43 58 FROM SITE 15 OOJ CFlll)JUL T 20 2007 le:IlI/ST.Hj:15/NO.SlllO~2S77S" T . citizens citizens from from foreign foreign attack attack is is an essential essential attribute attribute of of aa state's state's sovereignty. sovereignty. Advisory .Advisory Opinion on onl Legality of a/the I.CJ. 226, 266. To the Legality the Threat or Use o/Nuclear of Nuclear Weapons, Weapons, 1996 19961.CJ. 226,266. Tobe besure, sure,the the negotiating Common Common Article 3 clearly understood understood that that they were disabling themselves ! states negotiating from undertaking undertaking certain certain measures to defend defend their governments against against insurgents seeking to i overthrow overthrow those governments, which which inarguably is an important important part part of of sovereignty. We would, I however, expect a-peet clarity, clarity. in the text or or at least in the Conventions Conventions'1 negotiating history, before before we i would interpret interpret the treaty provision pro\~sion to prohibit the United States from taking actions actiops deemed critical to the sovereign function function of of protecting its citizens from from catastrophic foreign terrorist attack. Crucial here is that the CIA's program is determined to be necessary to obtain critical ,. intelligence to ward off off catastrophic foreign terrorist attacks, and that it is carefully carefully designed to . be safe and to impose no more discomfort discomfort than is necessary to achieve that crucial objective, fundamental to state sovereignty. Just as the "Constitution [of the United States] fundamental [ofthe States} is not a suicide suicide' pact," Kennedy v. v. Mendoza-Martinez. Mendoza-Martinez, 374 374U.S. U.S. 144, 144,159 (1963), so so also alsothe thevague vague and and general general 159 (1963). of the ofComrnon terms of Common Article 3 should not be lightly interpreted to deprive the United States of means to protect its citizens from terrorist attack. I I I This insight informs passages in the JCRC ICRC Commentaries Commentariesthat thatsome somehave havecited citedtotosuggest suggest that the provisions of specific—should of Common Article Article' 3—to 3-to the extent they are not precise and specific-should be read to restrict state party discretion whenever possible. The Commentaries indeed recognize that, in some respects, adopting more detailed prohibitions in Common Article 3 would have i been undesirable because the drafters of the Conventions could not anticipate the measures that 1 men of of ill will would develop to avoid the teons terms ofa of a more precise Common Article 3: "However great the care undertaken in drawing up a list of of all the various forms of of infliction, it ccHowever of future torturers who wished to would never be possible to catch up with the imagination offuture , satisfy dieir their bestial instincts; and the more specific and complete a list tries to be, the more satisfy restrictive it becomes." Piclet, Commentaries,atat39. 39. ItItisisno nodoubt doubttrue truetherefore thereforethat that Pictet, ill HI Commentaries, 3 's general general prohibitions prohibitions do do establish establish principles. principles that that preclude preclude aa range range of of Common Article 3's conduct. conduct, and that they should not be subject to a technical reading that parses among conduct. To the contrary, the principles in Common Article 3 are generally worded in a way that is "flexible, and at the same time precise,n precise," id, id, and they call upon state panies parties to evaluate proposed' proposed manner, in an effort to make compatible both "the dictates of humanity" conduct in a good faith manner. "measures of security a.,d and repression" appropriate to defending defending towards combatants and the ·'measures from inhumane attacks in the armed conflict at issue, issue, it!. id at 205. 205. We. We, therefore, therefore, one's people from below. undertake such an inquiry below. I I B. of the three relevant terms under Common These interpretive tools inform our analysis ofthe 3: paragraph l(a)'s prohibition on "violence to life and person, in in particular murder of a1~ all Article 3: i powers. powers. See Sec W.T.O. W.T.O. Appellate Appellate Body, Body, EC Measures Measures Conceming ConcerningMeat MeatandMeat and MeatProducts Products(Hormones), (Hormones), WT/DS267AB/R/ 1165, % 165,n.n.154, 154,1998 WL25520, 25520,atat*46 *46(Jan. (Jan.16, 16,1998) (explainingthat thatthe the"interpretive "interpretiveprinciple principle \1.t-rlDS261ABIRJ 1998 WI.. 1998) (explaining of ft). For of In in dtlbio dubio m/tius mitiusis is widely widely recognized recognized in in intemationallaw international lawas asaa supplementary supplementarymeans meansof of interpretation. interpretation.''). For example, the the International International Court Court of of Justice Justice refused refused to to construe construe an an ambiguous ambiguoustreat)' treaty tem termto tocede cedesovereignty sovereigntyover over example, disputed territory territory without aa clear clear statement. statement. See See Ca.re CaseCO/lCUTling ConcerningSovereignty Sovereigntyover overPulav Ligitan andPulau disputed Pulau Ligitan and Puft11L Sipaaan, 648. Sipadan, 2002 2002 le.I. I.C.J. 625, 625,648. ·59 t,JI. I ~ I Q UU.I (fAl)JUL 20 2007 IS:\6/ST. IS:Hi/NO. 6'6Q42977S.? kinds, kinds, mutilation, mutilation, cruel treatment and and torture"~ torture"; paragraph l{c)'s l(c)'s prohibition on "outrages upon dignity, in particular, humiliating and degrading treatment"; and Common Article 3's ; personal dignity. humanely." Although it isisfirst in the the overarching requirement that covered persons "be treated humanely." first in of Common Article 3, 3, we we address the the general general humane humane treatment treatment requirement requirement last, last, as as the the syntax ofCommon becomes the extent of any residual obligations imposed by this this requirement requirement that that are are not not I question becOmes in paragraphs paragraphs l(a)-(d). 1 (a)-(d). . addressed by the four specific examples of inhumane treatment prohibited in 1. i. by Common Common Article Article 3,3, the theUnited United States Statesisisobligated obligated not not Against those persons protected by "violence to life and person., person, in particular murder murder of aU all kinds, kinds, cruet cruel treatment treatment and and to undertake '.'violence torture." GPW Art. Art. ~1}l(a). 1(a).Paragraph Paragraphl(a) 1(a)raises raisestwo tworelevant relevantquestions: questions:Will Willthe theCIA CIA torture." program's use ofthe of the six proposed techniques meet Common Article 3'$ 3's general requirement to avoid "violence to life and person," and will tbeir their use involve either ofthe of the potentially relevant avojd 1(a)—torture at!d and cruel examples of "violence to life and person" denoted in paragraph I(a)-torture treatment? a. techniques do do not not implicate implicateCommon Common Article Article3's 3's general generalprohibition prohibition on on The proposed techniques "violence" as as lethe "the exertion exertion of "violence to life and person." Dictionaries define the term ·'violence" abuse." Wehster Websters'sThird Third Jul '1 Dictionary at 2554. physical force so as to injure or abuse." /I1J '1 Dictionary at 2554. TheThe I make clear cleart~at that "violence "violence to to life life and and person" person" surrounding text and structure of paragraph 1(a) make Instead, Common Article 3 does not encompass every use of force or every physical injury. Instead. I provides specific examples of severe conduct covered by that tenn-murder. term—murder, mutilation, mutilation, torture, torture, and cruel treatment. As indicated by the words "jn "in particular," this list is not exhaustive. Nevertheless, these surrounding terms strongly suggest that paragraph l(a) 1(a) is directed at only only serious acts of Steelworkers ofAm., 494494 U.S.U.S. 26.36 (1999) of physical violence. Cf. Cf.Dole Dolev. v.United United Steehvorkers ofAm., 26,36 (1999) ("The of construction, noscitur noscituraasoens. sociis,dictates dictatesthat thatwords wordsgrouped groupedinina alistlist i C'The traditional canon of meaning."). should be given related meaning."). J' I I s~pported .This explain thethe prohibition. This reading is supported by the ICRC Commenraries, Commentaries,which which explainthat that prohibitions lea) "concern acts which world public opinion finds particularly revolting—acts revolting-acts I in paragraph 1(a) frequently during the Second World War." Pictet, Pietet, III m Commentaries, Commentaries, which were committedfrequently at 39. International tribunals and other bodies similarly have have focused on on serious serious and and intentional ofphysical At the the same time, time. these bodies have had difficulty difficulty identifying any instances of physical force. At foUr specific examples of residual content to the term "violence to life and person" beyond the four enumerates.· The ICC's Elements ofCrimes prohibited violence that Common Article 3 enumerates. of Crimes does not not; from the four specific examples. "violenCe to life or person" as an offense separatefrom define "violence examples. The ICTY similarly has suggested that the term may may.not nothave havediscernable discernabiecontent contentapart apartfrom fromits itsfour four specified "violence to life or person" is "defined by I specified components. componen;s. The tribunal initially held that '\.r:iolence the accumulation of the specific offenses of the elements of ofthe offenses of'murder, of'murder, mutilation, cruel treatment, and torture,'" torture, '" and declined to define other sufficient sufficient conditions for the offense. Prosecutor Prosecutor v.v. II Blaskic, IT-95-14-T, 1i%182 182(Trial (TrialChamber). Chamber).InInlater latercases, cases,thethetribunal tribunalputputa finer afiner pointonon BlasJ..ic, IT-95-14-T, point thethe , matter; at least for purposes of imposing criminal ofimposing crimina! sanctions, the court could not identify identify a residual content to the ~e term "violence to life and person" and dismissed charges that the I! i I ' 60 • • •• ........ ..... (Fl'lI)JUL ....'" of 20 2(,07 '5:le/ST.15:15/NO.61110~2917ep to life or person" person" that did not <OlIStilute constitute torture, cruel defendant had engaged in "violence to treatment, murder, or mutilation. See Prosecutor v. v. Vasiljel-ric, Vasiljevic, Trial Trial Chamber, Chamber, mJ ffij194-205 194-205 treatment. (2003). (2003). Even when prosecutors attempted to proffer elements of the "violence to life and person" violation as a freestanding offense, they argued that the offense required the imposition of"serious of "serious physical pain or suffering," which would make it duplicative ofthe of the prohibition on "cruel treatment." Id Id II I We Conclude conclude that the proposed CIA techniques are consistent with Common Article 3's 3's prohibition on "violence to life and person." As we explained above, Congress strictly forms of violence to life andperscin, and person, and the techniques do not involve, involveprohibited several serious fonns of these. The ICRC Commentaries have have suggested that "performing biological experiments'j experiments' any ofthese. of "violence to life and person" that, although not explicitly listed as an would be a type of"vioJence ! paragraph 1(a). Pictet, ill HI Commentaries, at 39. The example, is also prohibited by paragraph] (a). See, e.g., Pietet, involve biological experiments, and indeed the War Crimes Act CIA techniques do not lov.oIve absolutely prohibits them. See 18 U.S.C. U.S.C. § 2441(d)(I)(C). 2441 (d)(1)(C). Whether Whether or or not not those those grave grave breach breach offenses exhaust the scope of "violence to life and person" prohibited by Common Article 3, we offenses 3. person" refers to acts ofviolence of violence serious enough to be are confident that "violence to life and person" 3-—murder, mutilation,. mutilation, considered comparable to the four examples listed in Common Article 3-murder, of p~ysicaI physical for force torture, and cruel treatment. The CIA techniques do not involve the application of rising to this standard. While the CIA does on occasion employ limited physical contact, the carefully limited: limited: "slaps" and "holds" that comprise the CIA's proposed corrective techniques are carefulJy in frequency avoid the imposition of of frequency and intensity and subject to important safeguards to avoJd significant pain. They are designed to gain the attention of the detainee; they do not constitute significant of the type ofsenous of serious physical force thet th2t is implicated by paragraph paragrapb 1(a). l(a). ! I I I WJ' I I b. The CIA interrogation practices also do not involve any of of the four more specific forms of "violence to.life to. life or person" expressly prohibited by paragraph l(a}. 1(a). They obviously do not of"violence explained, do they involve torture. See Section Section involve murder or mutilation. Nor, as we have explained: 2340 Opinion and supra at 14. 44 ** .2340 ** «1nInthis thisopinion opinionand andthe theSection Section2340 2340 Opinion, Opinion, we have we have concludecllhat concluded that the enhanced the enhanced interrogation interrogation techniques in question would not U.S.C. §§234o-2340A 2340-2340Aor orthe rhe nOl violate the federal prohibition on torture in 18 U.S.C. see 18 1(d)(1)(A). Both prohibition on torture in the War Crimes Act, see 18 U.S.c.. U.S.C.§§244 2441(d)(1)(A). Bothof ofthosc thoseoffenses offenses require requireas asan an of severe physical or menlal element the imposition of mental pain or suffering, 'wroch which is consistent with international practice: practice; refl~ted in Article 1 J of I asreflected ofthe theOmvention Convention Against ApinstTorture Tortureand andthe theICC's ICC'sdefinition definition ofCommon CommonArticle Article3's 3 's prohibltion on torture. See DOnnann, J (requiring prohibition Dormant!, ElelMnts ElementsofCrimes of Crimes8140 at 401 (requiringthe theelement elementofofinflicting inflicting"severe "severeph}'Sical physical su1fering" for torture under Common Article 3). The War Crimes or mental pain or sufferins" Crimes Act and the federal prohibition i on this more specific definition does does not appear in in the i Gn torture further define "severe mental pain or suffering," and this ~ of of the CAT or in the Rome Statute. ! text Statute. Instead, Instead, thc the soUC(:e sourceof of this thisdefinition definition isisan anunderstanding understandingof ofthe theUnited United States to its ratification Cong. Rec. Rec. 36,198 36,198(1990), (1990). Torture Torture isisnot notturthezdefined further defined inhiCommon Common j ratification of of the CAT. See See 136 Congo entcr an understanding to that instrument. instrUment. That 1'bat the more detailed . Article 3, and the United States did not enter explanation of of"severe suffering'" is cast as an "understanding'" of the widely accepted definition of "severe mental pain or suffering" "understanding'"- of of of the United States that this more detailed definition ddinition of of I' torture, rather than as a reservation, reflects the position of torture is consistent with international practice, as reflected in Article 1 of ofthe theCAT, CAT,and andDeed neednot nothave havebeen beenentered entered) as a reservation. Auguste Auguste v.v.Ridge, Ridge,395 395 F.3d12j, 123,143 n.20 Cir. 2005); also Vienna Convention Law F.3d 143 1120 (3d(3d Cir. 2005); seesee also Vienna Convention on on the (he Law I ' I of I ~ . 61 I f~OM SITE is (FRJ}JUL OOJ 20 2007 l'5:i6/ST. l5:Hi/NO.lllec;;:2G7711 I I II The fonn of"violence Theremaining remainingspecifically specifically prohibited prohibitedform of "violencetotolife lifeor orperson" person"ininCommon Common Article·3 Articles isis"cruel "cruel treatment." treatment." Dictionaries Dictionaries define define "cruel" "cruel" primarily primarily by by reference reference to to conduct conduct that wantonly, t.~at thatis, is, for forthe thesake sakeof ofimposing imposingpain. pain. Webster's Webster'sThird Third Int'/ Dictionary 7 Dictionary imposes pain pain wantonly. 1m i imposes at 546 546("disposed ("disposedto toinflict inflict pain, pain, especially especiallyinina \vanton, a wanton, insensate,orvindietive or vindictivema.nner"). manner').Ifth~ If the at insensate, purpose behind behind treatment treatment described described as as "cruel" "cruel" isisput put aside, aside, common common ~sage usage would would at at least least require,' require' purpose the the treatmentto treatment tobe be"severe" "severe"or or"extremely "extremely painful." painful." Id Id Ofcourse, Of course, we wearellot are not called calledupon upon he.--e here the term "cruel treatment" standing alone. In Common Article 3, the prohibition on to evaluate to evaluate the tenn "cruel treatrnenf' standing atone. In Common Article 3, the prohibition on "cruel treatment" is placed between bans on extremely severe and depraved acts of violence— "cruel treatment" is bans severe and depraved acts ofviolencemurder, mutilation, mutilation, and torture. torture. The The serious serious nature nature of of this this list list underscores underscores that these these tenns, terms, murder, I common bond bond in in referring referring to to conduct conduct that that isis particularly particularly including cruel cruel treatment, treatment, share share aa.common including I aggravated and and depraved. depraved. See SeeS.D. S.D.Warren Warren v. Maine Bd ofEnvironmental Protection, 126 1 126 aggravated Co.Co. \I. Maine Bd o/Environmental Protection. Ct. 1843, 1843, 1849-50 1849-50 (2006) (2006) (the (thenoscitur noscitura asociis sociis canon help absent some sort s.S. Ct. canon "is"is nono help absent some sort ofof to extrapolate"). In addition, Common Article 3 lists gathering with a common feature gathering with a common feature to extrapolate"). In addition, Common Article 3 lists "cruel "cruel I treatment" as as aa form form of"violence of "violence to to life life and and person,., person," suggesting suggesting that that the the tenn term involves involves some treatment" some element of of physical physical force: force: element ! i I International tribunals and other bodies have addressed Common· Common Article 3's prohibition on on "cruel treatment" treatment" at length. length. For purposes ofthe of the Rome Statute Statute establishing the the International International I Court, the U.N. U.N. preparatory commission defined "~ruel "cruel treatment" under Common Criminal Court, torequire require"severe "severephysical physical or ormental mental pain painor orsuffering." suffering." Dormann, Dorrnann, Elements Elementso/Crimes, of Crimes Article 33 to 397. The committee explained that it viewed "cruel treatment" as indistinguishablefrom at 397. from the the Geneva Geneva Conventions. Conventions. See See id id at at 398; 398;I "inhuman treatment" that constitutes a grave breach of the see also alsoGPW GPWArt. Art.130 130(listing (listing"torture "tortureororinhuman inhumantreatment" treatment"asasaagrave gravebreach breachofthe of theGeneva Geneva I see Conventions). This view apparently also was was embraced embraced by by Congress Congress when when itit established established the the Conventions). of "cruel and inhuman treatment" treatment" in the War War Crimes Act Act as as part part of of its its effort to to offense of"cruel i 18u.S.C. U.S.C.§§2441(d)(1)(B); 2441(d)(1)(B);see seealso also criminalize the grave breaches of Common Article 3. See See 18 6(a)(2). Construing Construing "cruel "cruel treatment" treatment" to to be becoterminous coterminouswith withthe thegrave gravebreach breachof of MCA § 6(a)(2). I "inhuman treatment" funher ofthe conduct prohibited prohibited by by paragraph . further underscores the severity of the conduct 11(a)(a). I I ! Aligning Common Article 3's 3'5 prohibition on "cruel treatment" with the grave breach of of , "torture." See See GPW Art. Art. 130 130 (statin~ (stating "inhuman treatment" also demonstrates its close linkage to "torture." "tortureor orinhuman inhumantreatment, treatment, including biological experiments," a grave breach of theJ that "torture including.biological experiments," is aisgrave breach ofthe Conventions) (emphasis added). This relationship was crucial for the ICTY in defining the . I elements of "cruel treatment" under Common Article 3. The tribunal explained that c-ruel cruel i treatment "is equivalent the grave equivaJent to the offense of inhuman treatment in the framework of ofthe breaches provision of the Geneva the task task ofbarring of barring " ofthe Geneva Conventions" Conventions" and that tbat both terms perform the offense of oftorture in common "treatment that does not meet the purposive requirement for the offense Delalic, Case No. IT-96-21 -T, \ 542 (Trial Chamber 1,1998). Prosecutor v.v.Delalic, Case No.IT-96-21-T, 1" 542 (Trial Chamber I, 1998). TheThe ! article 3." Prosecutor Internationa] Criminal "cruel International C~iminal Court stopped at at achieving this end, defining defining the offense offense of of"cruel I • — — ^ _ _ _ _ _ _ _ _ ^ _ ^ _ _ _ _ _ _ _ _ _ _ _ _ _ i I . of certain provisions of of Treaties Art. 2.1(d) (a reservation TesetVation "purports '·pu.rports to exclude exclude or OT to Lo modify modify the legal le8aJ effect effect of ofcertain of the fhe treaty in their application to that Slate"). State"). There Tnere is no reason to revisit that long-standing position here; with ~ith regard Il:gard . to torture. torture, Common Article Anicle 33 imposes no greater obligation obligation on on the the United United States States than than does does the the CAT, CAT, and wd thus thus I conduct consistent with the two federal statutory prohibitions prohibitions on on torture torture also also satisfies satisfies Common Common Article Article 3's 3 '$ I prohibition on international character. on torture tonure in armed conflicts conflicts not not of of an an international character. ' in 62 P "' • • Co. • ~ uu ... CFRI)JUL ~O 2007 15:.8/S•• 15::5/1'10. 6HlO.c29779 I treatment" under Common Article 3 identically tothat thatoftorture, of torture, except except removing removing the the identically to requirement that "severe physical or mental pain or suffering" be imposed for the purpose of of "obtaining information information or a confession, punishment, intimidation or coercion or for any Teason reason ! based on discrimination ofaoy of any kind:' kind." D6rm DSrmann, of Crimes, at 397, 397,401. ICTY ann. Elements cjCrimes, 401. The leTY went further, suggesting that there may be another difference difference from torture-that torture—that crue1 cruel treatment is directed at "treatment which deliberately causes serious mental or physical suffering suffering that falls " of the severe mental or physical suffering required for the offence oftorture." of torture." Delalie, Delalic, short ofthe 1542. ~ 542. I I Congress, like the ICTY. ICTY, adopted a somewhat broader definition definition In the War Crimes Act, Congress. of "cruel treatment," prohibiting the relevant conduct no matter the purpose and defining a level of of "serious physical or mental pain or suffering" that is less extreme than the "severe physical or of on,· way. Congress's approach to prohibiting mental pain or suffering" required for torture. In this way, of the the "cruel treatment" barred by Common Article 3 is consistent with the broader of I' tribunals.''5 Congress. Congress, however. however, provided a specific interpretations applied by international tribunals.';5 of both "serious physical pain Or or suffering" and "serious mental pain or suffering." suffering." definition ofOOtb The ICTY found it impossible to define further "serious physical or mental pain or suffering" in and instead adopted a case-by-case approach for evaluating whether the die pain or advance and; suffering imposed by past conduct was sufficiently serious to satisfy the elements of "cruel suffering sufficiently of treatment." Delalic, "tIS33. f533. This approach, however, was tailored to the ICTY's task of approach. rCTY's of applying wholly past conduct. Congress in amending the War Crimes Act, by Common Article 3 to whoUy of future operations. Congress's contrast, was seeking to provide clear rules for the conduct of definition of of "serious physical pain or suffering" and "serious mental pain or more detailed definition t of Common Article 3. suffering" cannot be said to contradict the requirements of I ! I conclude, with Congress, that the "cruel treatment" term in Gammon Common Article 3 is We conclude. satisfied by compliance with the War Crimes Act. As we have explained above, the CIA satisfied techniques are consistent with Congress's prohibition on "cruel and inhuman treatment" in the 3's prohibition on' on War Crimes Act, see supra at 14-24, and thus do not violate Common Article 3'5 "clUel "cruel treatment." 2, 2 1(c) of of Common Article') Article 3 prohibits "outrages upon personal dignity. dignity, in Paragraph l(c) particular, humiliating and degrading treatment." Ofthe Of the tenns terms in Common Article 3 with I 1(c) was the cause ofgreatest of greatest concemj concern uncertain meaning, the imprecision inherent in paragraph l(c) of the Executive and Legislative Branches. See supra C).t at 53-54 (citing statements among leaders ofthe by the President and Senator McCain). I 4S or I or suffering suffering or or attack on hI/man human dignity." dignity." Delalic, at ^ S44 544 (emphasis (emphasis added). added). The The tribunal tribunal never never has has constitutes (Ja serious seriOllS alrock Delalie, at" , explained its reference to a "serious attack on human dignity." Common Article 3 has bas an express provision ! of affronts affronts to personal dignity in its prohibition of "outrages upon personal dignity, in addressing certain types of particular, 1(c).The Thesaueture structureofofthe theGeneva GenevaConventions Conventions partiallar, humiliating and degrading treatment." GPW Art. 3j ~%l(c). that attacks on personal dignity should be analyzed under paragraph 1l(c), (c), the the requirements requirementsof ofwhich which we we I , suggests that analyze below. 45 The IClY ICTY" defines defines "cruel "cruel treatment" treatment" as as"treatment "treatment that that causes causes serious serious mental mental pain pam 63 P FROM SITE IE (FFlI)JUL OOJ 202007 ;5:15/ST.1P,:15""'O.6150.:20779? I! Despite the the general nature of its its language. language, there are sevenl several indications that .paragraph . paragraph 1(c) 1(c)was wasintended intendedto torefer refer toto particularly particularly serious serious conduct. conduct The Theterm term"humiliating "humiliating and and degrading of the degrading treatment" treatment" does not stand alone. alone. Instead, the term is a specific type or subset of somewha.t somewhat clearer prohibition on "outrages upon personal dignity." This structure distinguishes . Common Common Article 3 from from other international treaties that include freestanding prohibitions on "degrading treatment," untethered to any requirement that such treatment constitute an ··outrage. "degrading "outrage CompareCAT CATArt. Art. 16 16(prohibiting (prohibiting"cruel, "cruel, inhuman inhumanor or degrading degrading upon personal dignity." Compare I· vnth European Convention on treatment or punishment which does not amount to torture") 'with treatment I Human Rights Article 3 ("No CNo one shall be subjected to torture or to inhuman or degrading Human punishment."). Thus, Thus, paragraph l(c) 1(c) does not bar "humiliating and degrading treatment or punishment."). treatment" in the abstract; instead, it prohibits "humiliating and degrading treatment" that rises t6 the level ofan of an "outrage ~pon upon personal dignity." This interpretation has been broadly accepted by b~ international tribunals and committees, as it has been adopted both by the ICC Preparatory ICTY. See See Dormant'l. Dormann, Elements ofC-rimes, of Crimes, at 3]4 314 (stating, as an element of Committee and the ICTY. of 1(c) of Common Article 3, 3, that that "the severity of of the the ICC offense corresponding to paragraph l(c) humiliation, degradation or other violation was of such degree as to be generally recognized as Prosecutor'V.v.Aleks<Jvski, Aleksovski,Case Case No. No. IT-9S·)4/l IT-95-14/1 at at 1f^ S6 56 (Trial (Trial an outrage upon personal dignity"); dignity"); Prosecutor ,an of an outrage upon personaJ personal Chamber I11999) 1999) (requiring that the conduct rise to the level ofan dignity). dignity). ' I I I ta I I I of ill-treatment. The term "outrage" implies a relatively flagrant or heinous form of Dictionaries define "outrage" as "describ[ing) of "describ[ingj whatever is so flagrantly bad that one's sense of suffer or tolerate is violated" and list "monstrous, heinous, [and] ;. decency or one's power to Suffer [and) of "outrageous." Webster's Webster's Third Int'l atrocious" as synonyms of"outrageous." Int'/ Dictionary at 1603. In In this way waY,i the term "outrage" appeals to the common sense standard standan~ of ofaa reasonable person's assessing I conduct under all the circumstances. And the judgment that term seeks is not a mere opinion that different—to be an outrage, a reasonable person must assess the the behavior should have been different-to conduct as beyond all reasonable bounds of of decency. This reaction is not to oonduct to leave room for i debate, as the term is directed at "the few essential rules of humanity which all of all civilised civilised nations consider as valid everywhere and under under aIlcircumstances all circumstancesand andas asbeing beingabove aboveand. andoutside outsidewar war I itself." Pictet, i n Commentaries, at 32 (emphases added). Accordingly, in applying the "outrage itself." Pictet, ill Commentaries, at 32 (emphases added). Accordingly, in applying the "outrag~ upon personal personal dignity" dignity" term. term, the the ICTY ICTY has upon has recognized recognized that that itit does does not not provide provide many many clear clear " standards in advance, but that it is confined to extremely serious misconduct: "An standards in advance. but that it is confined to extremely serious misconduct: "An outrage outrage upon upon . personal dignity dignity within within Article Article 33 ... . . . is deplorable. personal is aa species species of of inhuman inhuman treatment treatment that that is is deplorable. occasioning more more serious serious suffering suffering than than most most prohibited prohibited acts acts wirhin within the the genus." genus." Aleksovski, Aleksovski, at at occasioning 54 (emphasis added). 11^j 54 I I I I I The IeRC ICRC Commentaries Commentaries on on the the Geneva Conventions underscore the severity ofthe of the misconduct paragraph l(c) 1(c) addresses. See Pictet, HI Commentaries, at 39 (linking paragraph See Pictet, ill Commentaries, at 39 Oinking paragraph I 1(c) to the prohibitions on torture, cruel treatment, murder, and mutilation in paragraph ICc) paragraph 1(a) 1(a) and I that both paragraphs "concern acts which world opinion finds particularly explaining t~t particularly revoltingrevolting--i acts which were committed frequently frequently during the Second World War"). The ICTY ICIT similarly similarly I' the circumstances. , looks to a severe reaction from from a reasonable person examining the totality of ofthe See Aleksovski, Alekrovski, at fl ~ 55-56 (to violate paragraph 1(c), l(c), the humiliation humiliation and degradation degradation must must be purpose also "so intense that the reasonable reasonable person would be outraged"). An examination examination of ofpurpose I informs paragraph paragraph l(e)'s l(c)'s focus informs focus on on "humiliating "humiliating and and degrading degrading treatment" treatment" that that rises rises to to the the level level of of I ~ ; 64 I FROM SITE is I .r OOJ (FRI)JUL ~O 2007 1;;:16/ST.1S:1S/NO.6;601.2G779 P an an "outrage "outrage upon upon personal personal dignity." dignity." The The same same international international tribunal tribunal has has explained explained that that paragraph paragraph 1(c) 1(c) requires requires an an inquiry not only into into whether the conduct is is objectively outrageous: outrageous, but but also also i~to into whether the the purpose of the conduct is is purely purely to to humiliate humiliate and and degrade degrade in in aa contemptuous and outrageous manner. Thus, tbe ICTY has looked to the intent of the contemptuous and manner. Thus, the ICTY has looked to the intent of theaccused, accuseditit is I is not not enough enough that aa person feel «humiliated," "humiliated," rather the conduct must be "animated by contempt n Id at ~ ! contempt for for the the human human dignity of another person. person." 1}5656(emphasis (emphasisadded). added).For Forthe the Yugoslavia Yugoslavia tribunal, tribunal, paragraph ICc) 1 (c)captures capturesaaconcept conceptofwat:'ton of wantondisregard disregardfOT forhumanity, humanity,of of ! recklessness, or of a wish to humiliate or to degrade for its own sake. ' recklessness, a to to for its own sake. This This inquiry into into aa reasonable reasonable person's person's evaluation evaluation ofcontext, of context, purpose, and intent with law. In the context ofpersons of persons not to the treatment treatment of of detainees detainees is is familiar to to United States law. regard to nolt of any crime, but nonetheless detained by the Government, this same inquiry is convicted ofany DTA, and the Fifth Amendment standard that it incorporates. As we have by the the DT demanded by A, and above, the DTA prohibits treatment, and interrogation techniques, that "shock the explained above, conscience." RochinY.v.California, California, (1952); County ofSacramento v. conscience. n Rochin 342342 U.S.U.S. 165,165,172 172 (I952); see see alsoalso County ofSacramen~o v. Lewis, 523 U.S. 833, 846 (1998) ("To this end, for half a century now we have spoken of the Lewis, 523 U.S. 833, 846 (1998) ("To this end, for half a century now we have spoken of the cognizable level level ofexecutive of executive abuse of mat which which shocks shocks the conscience."). Much like of power as that like the test contemplated by the term "outrage," the "shocks the conscience" test test looks looksto to how howaa the test contemplated by the term "outrage," the "shocks the conscience" reasonable person person would wouldview viewthe theconduct conduct"within "within thefull context in which it occurred" reasonable thefull context in which it occurred" Lewis,Lewis, 523 U.S at 849 (emphasis added); see id (requiring "an exact analysis of circumstance"); Wilkins 523 U.S at 849 (emphasis added); see id (requiring "an exact analysis of circumstance"); Wilkinf v.May, May,872 872F.2d F.2d190, 190,195 195(7th (7thCir. Cir.1989) 1989)(With (Withregard regardtotopre-conviction pre-convictiontreatment, treatment,the thetest testisis I v. whether there there was was "misconduct "misconduct that that aa reasonable reasonableperson personwould wouldfind sobeyond beyond the the norm normof of whether find so . as to shock the conscience."). Indeed, our courts in applying the proper police procedure proper police procedure as to shock the conscience.....). Indeed, our coutts in applying the substantive due due process process standard standard have have asked asked "whether "whether the behavior ofthe of the government the behavior government officer officer is is substantive so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." i Lewis, 523 523U.S. U.S.at at 848 848 n.8 n.8(emphasis (emphasis added). added). Because Because 2.areasonable reasonableperson person would would look look to tothe the ! Lewis, reason or justification for the conduct, the "shocks the conscience" test under the DTA also reason or justification for the conduct, the "shocks the conscience'" test under the DTA also I 846 (asking (asking whether whether the the c-onduct conduct amounts amounts to to the the "exercise "exercise of contemplates such such an an inquiry. inquiry. Id at 846 contemplates. Id at power without without any any reasonable reasonable justification justification in in the the service service ofa of a legitimate legitimate governmental governmental power I I or I objective"). ~~. "outrages upon personal dignity" invites, not For these reasons, we conclude that the term «outrages forbids, an inquiry into the justification for governmental conduct, as the term calls for the I To be be f outrageousness of the conduct to be evaluated in the manner a reasonable person would. To sure, the text ofCommon of Common Article 3 introduces its specific prohibitions, including its reference sure. reference to "outrages upon personal dignity," by mandating that such acts "are and shall remain prohibited any time time(Old andin inallY anyplace whatsoever."This This textcould couldbebe read disapprove any evaluation at an>, place whatsoever." text read to to disapprove any evaIuztion the considerations behind or justifications for specifically prohibited conduct of circumstance, or the conductl See, e.g., Pictet, IV Commentaries, at 39 ("That is the method followed in the Convention when See. e.g.• Pictet, IV Commentaries, at 39 ("That is the method followed in the Convention when it proclaims four absolute prohibitions. prohibitions. The The wording wordingadopted adoptedcould could not not be be more moredefinite. definite . .. No No excuse, no no attenuating circumstance. circumstance."). possible loophole is left; there can be no excuse, n). ' I I ofjustifications and Nevertheless, this introductory text does not foreclose consideration ofjustifications and context in detennining determining whether a particular act itself would constitute an outrage under the conte"t itselfwould conclusion is supported by other terms in in Common Article 3. For example, treaty. This ConClusion i Common Article 3 prohibits prohibits "murder," "murder," but but murder murder by by definition definition isis not not simply simply any any homicide, homicide, but but 65 F~OK $I,E 15 DOJ lawful justification. Common Article Article 3 may may not not pemtit pennit aa "murder" "murder" to be be killing without Ja",,-fuJ justified, but committing a homicide in self-defense simply would not constitute a "murder." "murder" "outrage" seeks to identify conduct that would be be universally considered considered Similarly, the term "outrage" few essential rules rules of humanity which all beyond the bounds of decency, as transcending "the few as valid everywhere everywhere and and under all circumstances." circumstances." Pictet, Pictet, ill HI civilised nations consider as Commentaries,atat32. 32. An Anapproach approachthat thatforeclosed foreclosedconsideration considerationofofpurpose purposethroughout throughout Commentaries, 3 cannot be squared with the ICRC Commentaries in evaluating whether Common Article 3cannot conduct is humane-a humane—a requirement ofCommon of Common Article "outrage upon Article 3 that that the the "'outrage upon personal personal dignity" term is expressly stated to advance. The humane treatment requirement is said said to to dignity" term is expressly stated to advance. The humane treatment requirement is prohibit «any "any act act ofviolence of violence or inspirednot notby bymilitary militaryrequirements requirementsorora a prohibit or intimidation, intimidation, inspired 1 legitimatedesire desirefor forsecurity, security,hutbut a systematic scorn human values. ' Pictet, legitimate byby a systematic scorn jor for human values." Pictet. IV IV Commentaries, at 204 (emphasis added). Commentaries, at 204 (emphasis added). I , I An of the term An evaluation of circumstance therefore is inherent in the plain meaning ofthe concept, following relatively clear prohibitions on particularly grave acts, that "outrage." It is a concept. vile as as to to I turns to the objective judgment of reasonable people and proscribes conduct that is so vile be universally condemned under any standard of decency. Because it relies on such common ! do, by weighing the I judgment, the term "outrage" must evaluate conduct as reasonable people do, justifications for that condu:ct. conduct. As the the Supreme Supreme Court Court ofIsrael of Israel recently explained in appl)'ing applying th~ the "rules of intemationallaw" international law" to Israel's "fight against international terrorism," the principles ofth~ of the "rules law of war in nothing/" PublicCommittee CommitteeAgainst AgainstTorture Torture in Israel ofwar in this context context "are "are not not *aIJ <aU or nothing. ,n Public ;1'1 IsraelI v. Government of Israel,HCr HCJ769/02, 769/02,atat34 34(Sup. (Sup. Ct Ct,Israel, Israel,Dec. Dec. 13, 13,2006). 2006). v. Government ofIsrael, .11 of "outrages upon personal dignity" looks behind conduct for its That the prohibition of"outrages justifications illuminates the decisior.s decisions of the the ICTY inte£llreting interpreting this term. term. For example, example, in in ! Prosecutor v. Kovac,IT-96-238 IT-96-238(Appeals (AppealsChamber, Chamber,June June12, 12,2002), 2002),the thetribunal tribunalheld heldthat thatforcin~ forcing Prosecutor v.Kovac, girl in detention to dance dance naked naked on on aa table table was was an an "outrage "outrage upon upon personal personal dignity." dignity." Id 1a teenage teenage girl $ 160. These facts involved clearly outrageous conduct undertaken for no no purpose purpose other other than than the the 11160. prurient gratification ofthe of the defendant. None oftbe of the CIA's proposed techniques bears a passing ! resemblance to the prurient and outrageous conduct at issue in Kovac. Kovac. l I I The The proposed techniques also contrast sharply with the outrageous conduct documented at the Abu Ghraib.prison in Iraq. As General Antonio Taguba's official official investigation reported, the detainees at Abu Ghraib were subjected to "sadistic, '"sadistic, blatant, and wanton criminal abuses." See Investigation 800th Military Policy Brigade Sef! General Antonio M. M Taguba, Article Article J15-6 5-6 Investigation ofof thethe 800th Military Policy Brigade 16 J6 (May 4, 2004) ("Taguba Report"). The report repon charged the offending offe,nding military personnel with ! <4 forcibly arranging detainees in various sexually explicit positions for photographing"; nforcing "forcing «forcibly naked male detainees to wear women's underwear"; "forcing groups of male detainees to underWear"; ofntJle masturbate themselves while being photographed and videotaped"; "arranging naked male I mastutfcate detainees in a pile and then jumping on them"; them"; "positioning a naked detainee on a MRE MRE Box, Box, with a sandbag on his his head, and attaching wires to to his his fingers, toes, and penis to simulate electric II torture"; "placing a dog chain or strap around a detainee's neck and having a female soldier soJdier pose for a picture"; and "sodomizing a detainee with a chemical light and perhaps a broom stick." Id witb stick." 'ld at 16-17. 16- 17. These wanton acts were undertaken for abusive and lewd purposes. They bear no I resemblance, either in the techniques CIA, in purpose or effect, effect, to any of ofthe techniques proposed proposed for for use use by by the the CIA, whether employed individually or OT in combination. I I I I I 66 rnV~ ~ll~ l~ OOJ (l'RI).JUL ~o 2001 1S:17/$T.'S:l!io/NO.&160~2977SP The contrast with Kovac Kovacand andthe theacts actsatatabu abuGhraib Ghraibgoes goessome someway waytotohighlighting highlightingthe the does reach. reach. As Asthe therCRC ICRCCommentaries Commentaries have explained, paragraph conduct that paragraph 1(c) does have explained, paragraph, 1(c) is is directed at "acts which world public opinion finds revolting—acts which which were were committedl committedl(c) finds revolting-acts frequentlyduring duringthe theSecond SecondWorld WorldWar." War."Pictet. Pictet, IDCommentaries, Commentaries, at 39. World E was at 39. World WarWarwas I frequently typified by senseless acts ofhatred, of hatred, and humiliation or degradation, for no reason other than to for no Ii . had been vanquished or ~at that mer they were were viewed viewed.as as i~eri?r inferior ~ecause because of of ., reinforce that the victims h~d. their nationality nationality or or their their rehglOn. religion. Needlessly exposmg exposing pnsoners prisoners to publtc public cunostty curiosity IS is part ofthl~ of this their dark history, history, see see GPW GPW Art. Art. 13, 13, and and commentators commentators cite cite as as aa paradigmatic paradigmatic example example ofsuch of such dark public. See SeeDormann, Ddrmann,Elements ElementsofCrimes, of Crimes,at at 323 (referring conduct the parading of prisoners in public. 323 (referring to the the post~World post-World War War IT II prosecution prosecution ofMaezler of Maezler for marching prisoners through the streets of celebrations). In another case. case, i Rome in a parade emulating the tradition of ancient triumphal celebrations). Sikh prisoners prisoners ofwar of war "to a post an&, and; Australian authorities prosecuted Japanese officers who tied tied Sikh beat them with sticks until they lost consciousness." Trial Trialof of Tanaka TandkaChuichi Chuichi and Two Others and Two Others (1946), XI XTLaw LawReports ReportsafTrials of TrialsofWar of WarCriminals: Criminals:United UnitedNations NationsWar WarCrimes CrimesCommissions Commissions (1946), 62. In addition, they shaved the prisoners' prisoners7 beards and forced them to smoke cigarettes, cigarettes, inin of the Sikhs' religious practices requiring facial hair and forbidding the ! deliberate denigration ofthe I of tobacco, all as aspost posthoc hocpunishment punishmentfor forminor minorinfractions infractions ofthe of therules rulesofthe of theprison prison ,I handling oftobacco, 46 6 camp. ld. Id.* camp. m n I ! i I intendedto tohumiliate, humiliate,andand nothing more—there was security These acts were intended nothing more-there was nono security justification, no carefully drawn plan to protect civilian lives. These were part of a justification. lives. ofa panoply of of I C meant to "reduce men to to the the~..ate stateof ofanimals,'" animals," merely merelybecause becauseofwhd. of who atrocities in World War n were. See See Pictet, ill DI Commentaries, Commentaries,at at627. 627.These These actswere were undertaken wholly acts undertaken forfor wholly i they were. prurient, of what made pruri.ent, humiliating, or bigoted ends, and that feature was an inextricable part ofwhat them "outrageous,', . "outrageous." ..*77 I I I I. **In InIbis thisway, way,acts actsintended intendedtotodenigrate denigratethe thereligion religionof ofdclaine::s detaineesimplicate implicateCommon CommonArticle Article3.3. Although Although <16 pumJaDt to a different standard applicable to to prisoners prisonersat of war war under underthe the 1929 1929Geneva Geneva Convention, Convention, the the Australian Australian I pursuant tlw: some consideration of of (he Ihe cultural culnua1 sensitivities of of detainees may be relevam war crimes prosecution suggests that relevant i determining whether there has been a subjective intent to humiliate. There, the Japanese defendants sought I when detennining of the Sikh religion and sought to exploit those in particular particu.lar, with \lith no purpose pwpose other than to hwnili.ate out the features of humiliate the detainees. This is not what occurs in the CIA program. It should be noted that, upon intake into custody, custod)', the CIA does trim the hair and the 8I1d shave the beards of detainees to prevent pxevent the introduction of disease and weapons into th~ facility. After this initial shaving, detainees length. We have a1read}l. already). d~ees are permitted pennitted to grow their hair to any desired length. concluded that such limited use of of involuntary grooming by the CIA is consistent with Common Article 3. See . Letter to John A. A Rizzo, Acting General Genezal Counsel, Central Intelligence Agency, from Steven G. Bradbury, Brad'oUlY. Acting Assistant Attorney General, Office 12-13 (Aug. 31,2006). of Legal Counsel, at 12·13 31, 2006). Again, the difference here is that Office of the purpose legitimate security PUl'pOSe is not to humiliate hwniliate the detainee, or to exploit any particular sensitivity, but to serve legitim:!te and hygiene purposes. pwposes. I ~, Our interpretation here is also consistent with the fact that thzt paragraph 1(c) 1(c:) is not a prohibition on simp/idler, but instead proscribes "outrages upon IIpon personal dignity. to (Emphasis "outrages" smptidter, dignity." (Emphasis added) added) The The words words "upon may be read to specify specif}- the injwy injury tlJa1 that must occur before we e\-aluatc evaluate whether the causing u upon personal dignity" IDa)' conduct constitutes an "outrage." Put differently, differenUy. paragraph paIagraph 1(c) 1(<;) is not a frec-fioating free-floating inquiry into the justifications justifications; for state party conduct during cot of of an international character. Instead, there must be some dwing an armed conflict not i affront affront to "personal dignity" before that inquiry inqllUy is triggered. The words "upon personal dignity*' dignity" may also be read to tJ constrain "outrage" has occurred. c:onstIain the considerations oonsiderations that niay may be brought to bear in determining whether an "()Utrage" oocurred. In this lhis regard, theterm termmay maybe bedesigned designedtotofocus focusparagrapb paragraphl(c) 1(c)on onthe theperson personsubjected subjectedtotostate stateparty partyconduct, conduct,and andhis his . regard, the ! I 67 1 FROM $IT£ 15 OOJ CFRIlJUL 20 2007 15:17/Sj. 15:16/1'(0. &1&OL29779 these principles in mind, mind, we we tum turnto to whether whetherthe theproposed proposedCIA CIAtechniques techniquesare are With these 3 's prohibition prohibition on on "outrages "outragesupon upon personal personal dignity, dignity, inin consistent with Common Article 3'5 . particular. particular, humiliatiog humiliating and degrading treatment." treatment." We We already alreadyhave havedetennined determined that that the the CIA. CIA i program does does not "shock the the conscience," conscience," or thereby violate violate long·standing long-standing principles principles of of Urnted United StateS founded in in the the Fifth Fifth Amendment Amendment to to our ourConstitution Constitution and and incorporated incorporated into intothe theDTA. DTA..t States law founded term that, that, in in many many ways, ways, provides providesaaprotective protectivebuffer buffer around aroundthe the Especially regarding a term 1 I. States comparatively specific prohibitions in Common Article 3, it isis appropriate for the United Statesl legal tradition to to provide aa familiar, familiar, ciiscernable discernable standard standard for for the the inquiry inquiry I turn to its domestic legal to tum that paragraph l(c) 1(c) requires. requires. As Aswe weeXlllained explainedabove, above,the theMeA MCAreflects reflectsaaconsidered consideredjudgment judgment that by Congress Congress that that the DTA tightly tightly fits fits the therequirements requirementsof ofCommon Common Article Article 3, 3, and and this this by the proper proper interpretation interpretation of of Common Common Articlf Article congressional judgment is important in determining the the United States. States. The The DTA DTAasks askswhether whetherconduct conduct"shocks "shocksthe thecontemporary contemporaryconscience:l conscience," 33 for the the reasonable reasonable person, person, and and it tracks tracks the the inquiry inquiry that that the the plain plain it evaluates the judgment of the the program is is consistent with wit of the term "outrages" invites. invites. Thus, Thus, our conclusion that the meaning ofthe does not involve "outrages uponl upon DTA determining that the program does the Dr A is a substantial factor in detennininf 3.4 personal dignity" under Common Article 3. I I But consistency with the DTA DTA isis not not the theonly onlybasis basisfor for our ourconclusion. conclusion. In Inthe thelimited limited here, the CIA program's program's narrow narrow focus. focus, and and its itscompliance compliancewith with the the careful careful context at issue here, safeguards and limitations incorporated into the the program, program,provide provideadequate adequateprotection protectionagainst againstthe the Common Article Article 3. 3. Of particular importance is "outrages upon personal dignity" prohibited by Common that the interrogation techniques in the the CIA CIA program program are arenot notaastandard standardfor fortreating treatingour ourenemies enemies. them, jn~luding including those those in in military military custody. custody. Instead, Instead, the the CIA CIA program program isis wherever wefind find them, at a small number of the most dangerous and knowledgeable of terrorists, terrorists, I narrowly targeted at kill civilians throughout the. those whom the CIA has reason to believe harbor imminent plans to kin th~ world or otherwise possess information information of of critical intelligence value concerning the leadership or Of activities of Qaeda. For those few, the United States takes takes measures measures to to obtain obtain what what they they know, know, of at al Qaeda. I i dignity, rather.tDan rather than tile the intention intention of of the the state state actor actor or or Ihe theIea5DtlS reasonsfor forthe theactor's actor'scondu.ct conduct This This latter latterinterpretation interpretation of departure from of would constitute a point of from international practice, which has bas looked to the intention and purpose of the state actor, as well as the context ofandjustificariODS of and justifications for the conduct In any any event, the foregoing histori<:al historical examples demonstrate (he conduct is Wldertaken undertaken to to determine whether it is an an "oull'age "outrage demonstnne that we need to know why lhe upon personal dignity." Marching captured prisoners as a means of t.-ansport transport does not evoke the same reaction, I I rising to the level as the the senseless senseless parading paradingofprisoners of prisoners to to humiliate humiliate them. them. In In this this W3)', way, the the words words I Jevel of of an "outrage," as "upon personal dignity" dignity" cannot be read to confine paragraph paragr.aph 1(c) l{c) to demarcating an absolute lev-el le....el of of hardship that will not "personal dignity" dignity" OCcurs occurs depends to'some to some degree on Ihe the reason nol be tolerated. tolemted. Instead, whether an affront to "personal why a hardship is being imposed. on the the arbitrary, arbitrary, the the wanton, wanton, or or the the prorienti prurient! 'why imposed, The term is bestread read as a prohibition on discomforting discomforting of of persons persons protected protected by Common Common Article Aniele 3, 3, as as well wen as, in some some cases, cases, unnecessary unnecessary or or careless l' mistreatment, justification is legitimate. As wc mistreatment. even when wben the overarching o\'crarchingjustification we explain below, these principles do not describe and limited limited CIA CIA interrogation interrogation techniques. techniques. descnbe the the carefully carefully drawn drawn and I G As ** As we we did did with with the theDTA, DTA, we we believe believe ititappropriate appropriate to toevaluate evaluatenot notjust just each eachtechnique techniquein inisolation, isolation, but butthe the effects AleksovsM, 15i \ 57 ("Indeed, ("Indeed, the the seriousness seriousness of of an an act act and and its its effects of of the techniques t~ques in combination. See, e.g., Aleksovsld. J consequences may arise eitherfrom from the die nature of of tic the actperse aetpel'le or from nom the repetition of the aOl act or from from a j combination of the meaning of of different diff'erent acts which, taken individually, would not constitute a crime within °the of Article Azticle 3~ of of the" Geneva Conventions.). We have concluded that the techniques teeb...-uques in combination would not violate the i constitutional constitutional standards incorporated in the DTA, see see supra SlIpI'D at 4748, 47-48, and we again agai."l conclude that par;graph paragraph 1(c) l(c) I would not be violated by the techniques, used either individually or in combination. comllination. 68 P . FRO!': SITE IS OOJ CFItI)JUL 20 2007 .,.:.;/ST. 15:15/NO. E160!='29779 i circumscribed by but each technjque technique is limited to keep the detainee safe and its application is circumscribed extensive procedures and oversight Those ~ho who implement these techniques are a small number of CIA professionals trained in the techniques"careful interrogation plan is techniques' careful limits, and every interrogation approved by the Director of the CIA. of II In addition, as we have emphasized throughout this opinion, the CIA's detailed procedures and safeguards provide important protections ensuring that none of of the techniques would rise to the level of an outrage upon personal dignity. With regard to the corrective i techniques. the CIA has assured us that they would not be used with an intensity. or a frequency:j techniques, intensity, or frequency. that would cause significant physical pain or injury. See SteAleksovski, i Aleksovski, 157. With.all With all the techniques, the etA safety with respect to I ClA would wouid determine in advance their suitability and their safety each individual detainee, with the assistance of I of professional medical and psychologie:aI psychological examinations. Medical personneLfurther i personnel further would monitor their application: CIA personnel, including medical professionals, would discontinue, for example, the sleep deprivation technique suffering from extreme physical distress. ! if they determined that the detainee was or might be suffering differently to the combination of Each detainee may react differently of enhanced interrogation techniques to I which he is subjected. These safeguards and individualized attention are crucial to our j of the techniques would not violate Common Article 3. See t' conclusion that the combined use of supra n.50. supran.50. As such, the techniques do not implicate the core principles of of the prohibition on "outrages upon personal dignity." A reasonable person, considering all the circumstances, would woul, not consider the conduct so serious as to be beyond the bounds of of human decency. The I carefully limited to the I techniques are not intended to humiliate or to degrade; rather, they are carefully of obtaining critical intelligence. They do not manifest the "scorn for human values" or purpose ofobtaining o~ of humiliating and degrading the detainee—the reflect conduct done for the purpose ofhumiliating detainee--the dark past oof War II. n , against which paragraph l(c) 1(c) was set. As we explain above, a reasonable person World 'War justification for the conduct and the full context of would consider the justification of the protective measures , put in place by the CIA. Accordingly, the careful limits on the CIA program, the narrow focus of the PrQgram. program, and the critical purpose that the program serves are important to the conclusion I ofthe be beyond the bounds of human that the six techniques do not constitute conduct so serious as to to·be ofhumarl I decency. decenCY... , I . . I The CIA has determined that the interrogation techniques proposed here are the minimum to maintain an effective effective program for fortius necessary tc, this small number of of al a1 Qaeda operatives. That the CIA has confined itselfto ClAhas itself to such a minimum, along with the other limitations the CIA has of wanton contempt for humanity—the placed on the program, does not reflect the type ofwanton humanity-the atrocities "were committed frequently during the Second World War" animated by hatred for others that '~were "public opinion finds particularly revolting"-at revolting"—at which the prohibition on "olruages "outrages j and that "pu.blic Commentaries,atat39. 39. Pictet, m HI Commentaries, upon personal dignity" is aimed. See Pietet, I' I J. pr~hibitions Overarching the four specific prohibitions in Common Article 3 is a general requirement requiremenl that persons protected by Common Article 3 "shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or ..,.nn~T i . 69 l I P , ~~OM SITe 15 OOJ (F~I)JV" 20 2007 15::7/ST. 15:1S/NO. e~eO"21177" F> 1 49 any other similar criteria. The text makes clear that its four specific prohibitions are directed criteria.",,49 at implementing the humane treatment requirement. See GPW Art. 33' (following the humane ^ 11 (following treatment requirement with "[t]o this end the fonowing prohibited"). following acts are and shall remain prohibited")As we have discussed above, those specific provisions describe serious conduct, and the structure ofCommon of Common Article 3 suggests that conduct of a similar gravity would be required to constitute inhumane treatment. The question becomes what, ifanything, treatment" under if anything, is required by "humane treatment" Common Article 3 that is not captured by the specific prohibitions in subparagraphs (a)-(d). We can discern some content from references to "humane treatment" in other parts of of the Geneva Conventions. For example, other provisions closely link humane treatment with the provision of of the basic necessities essential to life. Article 20 ofGPW "evacuation of of of GPW mandates that the "evacuation prisoners of VIlli! war shall always be effected humanely. humanely..... .. The Detaining Power shall supply prisoners of war who are being evacuated with sufficient sufficient food and potable water, and with the necessary clothing and medical attention:' attention." See also GPW Art. 46. This theme runs throughout the Conventions. of such basic necessities, Conventions, and indeed Common Article 3 itselfrequires itself requires a subset of by mandating, I mandating that tbe the "wounded and sick shall be collected and cared for." GPW Art. 3 \~ 2. Given these references throughout the Conventions, humane treatment under Common Article 3 is reasonably read to require that detainees in the CIA program be provided with the basic life—food and water, shelter from the elements, protection from extremes of of heat necessities of life-food and cold, necessary clothing, and essential medical care, absent emergency circumstances r beyond the me control of the United States. I I I I We understand that the. the CIA takes care to ensure that the detainees receive those basic r necessities. You have informed us that detainees in CIA custody are subject necessities. subject to regular physical '/1 and psychological monitoring by medical personnel and receive appropriate medical and dental care. They are given adequate food and as much water as they reasonably please. CIA detention detention,. care. facilities are sanitary. The detainees receive necessary clothes and are sheltered from the elements. elements. For certain detainees determined to be withholding high value intelligence, however, the technique—dietary manipulation—that CIA proposes to engage in one interrogation technique--dietary manipulation-that would of these resources. The detainee's meals are temporarily substituted substituted for a i adjust the provision ofthese that, while less appetizing than normal meals, exceeds nutrition requirements bland liquid diet that. ~equirements i ~ This language does not create an equal treatment requirement; instead, provides that the suspect classifications question may not deviation from Common Article baseline standard of humane 49 m , . I This language does not create an equal treatment requirement instead, it provides that the suspect classifications in question may not justif). justify ali}" any deviationfromCommon Article 3'$ 3 's baseline standard of human: I treatment. The Geneva Conventions elsewhere impose equal treatment requirements. See GPW Art. 16 C[A]U treatment. ("'[All! I treated Qlike alike by the Detaining Power, without any adverse distinction based on race, prisoners of war shall be treated i I nationality, tcligious religious belief or political opinions, or any other distinction founded natiOnality, founded on similar criteria.") (emphasis added). Article 16 also provides specific exceptions to its equal treatment added). neatment requirement with regard to prisoners of of j war, which which we \ve would would expect expect to to find in in Common Article 3 if it were were also also an an equal equal treatment requirement. war, requirement. The i contrast with the text of Article 16 demonstrates the linkage of Common Article 3's anti-disaimination anc-discrirtiination principle to i the PJ'O\'ision provision of humane rreannent. treatment. The CQmmentaries Commentariesfurther further e>.'P1a.in explain that that distinctions, distinctions, even even among among the the listed listed the J !: criteria, may be made under Common Article 3, so long as the treatment of of' no covered person falls below the minimum standard of humane tIeatrnent treatment. Pictet, HI Comme"ti1rle.~, Commentaries,atat4041. 40-41.Thus, Thus,we wetum turntotodetermining determiningthe thebasi£ basic requirement. content of Common Article 3's humane treatment requirement 70 FROM S/TE 16 DOJ (FI'lI}JUL 20 2~07 i5:17/ST. t6:15/NO. el/50£2Sl77Q P States. During application for safe and healthy medically approved diet programs in the United States. of the technique. technique, the detainee's weight is monitored, and the technique would would be be discontinued discontinued ofthe than 10 10percent percent oEtus of his starting starting body body weight. weight. The Theelement element of of should the detainee lose more than of the Geneva Geneva Conventions Conventions is is one one of humane treatment that we can glean from from the structure ofthe "sufficient food. food." GPW Art. Art. 46. 46. Because Because the the food food provided provided during during the the temporary temporary appJication application of of "sufficient the dietary manipulation technique is sufficient for health, we conclude that it does comply with suffi~ient healtb, conclude that it does comply , "sufficient food" element of Common Article 3's the "sufficient 3's humane treatment requirement. I Cf. Aleksovski,Case Case No. IT-95-14/1, f 108 (dismissing Common Article 3 charges against prison CJ Aleksovski. No. IT-95-14/1, ~ 108 (dismissing Common Article 3 charges against prison 1 to all all detainees detainees over over a period of months months and where where i warden who provided only two meals a day to some detainees lost over thirty pounds). pounds). U We also alsofind relevant that that the the CIA's CIA's interrogation interrogation and and detention detention program program complies complies with· with find itit relevant Amendment, which under most the substantive due process requirements of the Fifth Amendment. conditions," including "adequate food, shelter. shelter, clothing, and medical circumstances require "safe conditions,>: the DTA DTA Youngberg Youngbergv. v. Romeo, (1982). Romeo. 457457 U.S.U.S. 307.307, 315315 (1982). care" and which are incorporated into the of basic necessities is another example of how the constitutional Requiring the provision ofbasic ofhow standards incorporated in the DTA themselves provide a "humane "humanetreatment" treatment" principle principle that that can can as much much in in the the DT DTA, given the the guide compliance with Common Article 3. Congress recognized as A, given statute's explicit premise that the Fifth, Eighth, Eighth, and and Fourteenth Amendments are are directed against of "inhumane treatment or punishment." MCA § 6(c)(2)., 6(c)(2). a concept ofC<inhumane I ~h ciA The CIA program—under program-under the restrictions that we have have outlined-complies outlined—complies with with each of of the specific prohibitions in Common Article 3 that implement its overarching humane treatment 1 requirement. Outside those four prohibitions, and tbe the additional concept of basic necessities that req.uirement. of the Conventions, we confront we have discerned from the structure oftbe confront another situation where See Pietet, Pictet, IV TVCommentaries, Commentaries, of the requirement is. is underspecified by the treaty. See the content ofthe at at one, as we shaH shall see. see. On the 38-39 ("The definition [of humane treatment] is not a very precise one. hand, there is less difficulty difficulty in enumerating things which are incompatible with humane . other hand. treatment. That is the method followed in the Convention when it proclaims four four absolute ! prohibitions."). Again, this is a situation where the generality was intentional: To the Agaill: this where the generality was intentional: To the I negotiators, ((it "it seem[ seem[ed] useless and and even even dangerous dangerous to to attempt attempt to make make aa list list of of all all the the factors factors negotiators, ed] useless that would make 'humane."' Id at at 204. 204. The Commentaries Commentariesemphasize emphasizethat that"what "what ~ake treatment 'humane. constitutes humane treatment" treatment" requires requires a balancing balancing of of security security and and humanitarian humanitarian concerns. concerns. The The measures," as as the the"measures "measuresof ofsecurity securityor orrepression,/ repression, detainees may well be "the object ofstrict measures." even when they are severe," may nonetheless be compatible with basic humanitarian standards. I Id (emphasis added). added). Given Given the the deliberate deliberategenerality generality of of the the humane humane treatment treatment standard, standard, il Id at 205 (emphasis turn to our own law, law, which which establishes establishes aa standard standard of of humane humane treatment treatment that that is reasonable to tum similarly requires requires aa balance security and and humanitarian concerns, to to provide content to to similarly balance between between security h~nitarian concerns, provide content otherwise unspecified unspecified tenns terms in in the the Conventions. Conventions. Because Because the the CIA CIA program complies with with the otherwise program complies the standard of of humane humane treatment treatment provided provided in in the the Detainee Detainee Treatment Treatment Act, Act, and and the the U.S. U.S. standard i necessary constitutional standards that it incorporates, and because it provides detainees with the necess~ 3'sS humane food, shelter, clothing, and medical care, the CIA program satisfies Common Article 3' humanJ treatment requirement. I I I III Ii I( 71 t FROM SITE 15 OOJ . (fRI)JUl 2C 2007 ~5:~7/ST. lS:lS/NO.1l1ea~2fl77fl ? c. We We also also recognize recognize that that the thepractices practicesofofother otherstate stateparties partiesininimplementing implementingCommon Common Article 3-as 3—as opposed opposed to to the the statements statements of of other other states states unsupported by by concrete concrete circumstances circumstances and conduct-can conduct—can serve as "a supplementary means of interpretation." See See Vienna Convention the Law of Treaties Art. 31(3)(b). We have searched for evidence of on on Art. 31(3 )(b). We have searched for evidence ofstate stateparties, parties.,seeking seekingto to context similar to that addressed herein. herein. The one example implement Common Article 3 in a conte>.1 we have havefound found supports supports the theinterpretation interpretation of of CommOn Common Article Article 33 that that we wehave haveset setforth forth above. above. that we particular, the United United Kingdom Kingdomfrom of the the adoption adoption of Common Article 3 until untilthe the In particular, from the time time of early 1970s applied an interrogation program in a dozen dozen counter-insurgency operations that resembles in in several ways ways the theone one proposed proposed to to be beemployed employed by bythe theCIA. CIA. resemble~ Following World War 11 3. the the United United Kingdom Kingdom II and the adoption ofCommon of Common Article 3, of developed and applied five «in "in depth interrogation" techniques "to deal with a number of involving internal security." Report Reporto/the of theCommittee Committee of Privy Counsellors Appointed situations inv~lving o/Privy Counsellors Appointed to Consider ConsiderAuthorized AuthorizedProceduresfor Proceduresfor Interrogation of Persons Suspected of Terrorism, to thethe Interrogation ofPersons Suspected o/Terrorism,. 1972, Cmnd. Cmnd. 4901,110 4901, \ 10(HSMO (HSMO 1972) 1972)("Parker ("ParkerCommittee CommitteeReport"). Report"). The Thefive fivetechniques techniques 1972, (i) covering aa detainee's head at all times, times, except when the the detainee detainee was was under under involved (i) (ii) subjecting the detainee K«to to continuous interrogation or in an room by himself; (ll) continuous and and monotonous noise noise ofa of a volume calculated to isolate [him] communication"; (iii) (iii) depriving [himJfrom from communication"; depdving monotonous the detainee detainee ofsleep of sleep "during "during the the early early days" days" ofthe of the interrogation; the interrogation; (iv) (iv) restricting restri.cting aa detainee's detainee's diet diet j to "one "one round round ofbread of bread and pint afwater of water at at six-hourly six-hourly intervals"; to and one one pint intervals"; and and (v) (v) forcing forcing aa detainee detainee 1 to face-but face—but not not touch-a touch—a wall wall with with his his hands hands raised raised and and his time, to his legs legs spread spread apart for for hours hours at at aa time, with only "periodical lowering of the arms to restore circulation." Lord Gardiner, Minority with only "periodical lowering ofthe arms to restore circulation." Lord Gardiner, Minority Report, Parker Parker Committee Committee RepoI"L, Report, 1iU55("Gardiner ("GardinerMinority MinorityReport");see Report")^e«also alsoParker ParkerCommittee Committee Report, Report f 10. Broadly speaking, the techniques were designed to make the detainee "feel that he he Report 1i 10. Broadly speaking, the techniques were designed to make the detainee "feel that is in a hostile atmosphere, subject to strict discipline,... and completely isolated so that he fears is in a hostile atmosph.ere, subject to strict discipline, ... and completely isolated so that he fears what may may happen happen next." next." Id, Id^ 11. 11. From the 19505 1950s through through the the early early 19705, 1970s, the the British British employed employed what From the all of the five techniques in a dozen "counter insurgency operations" around the some or world, some or all ofthe five techniques in a dozen "oounter insurgency operations" around the world, including operations in Palestine, Kenya, Cyprus, the British Cameroons, Brunei, British Guiana, including operations in Palestine, Kenya, Cyprus, the British Cameroons, Brunei, British Guiana,! Aden, Malaysia, the Persian Gulf, and Northern Ireland. See id. Aden, Malaysia, the Persian Gulf, and Northern Ireland. See id. I' I l' I In 1971, after the public learned that British security forces had employed these supporting Irish Republican Army techniques against Irish nationals suspected of ofsupporting Army terrorist activities, the British Government appointed a three-person Committee'of Committee of Privy Counselors, activities. Counselors. : England, to examine the of Waddington, the Lord Chief Chief Justice of ofEngland, chaired by Lord Parker ofWaddington, of using the five terrorists. See See Parker Parker legality ofusing five interrogation techniques against suspected terrorists. ^ffi 1-2. Among other things, things, the committee considered whether the (' Committee Report W 1965 directive requiring that all military interrogations comply with techniques violated a 1965 "Article 3 ofthe of the Geneva Convention Relative to the Treatment ofPrisoners of Prisoners of War (1949)." "ArticJe ofWar (1949)." See See ^Jj4-6 & Appx. Appx. A majority majority of of the the committee, committee, including including the the Lord Lord Chief Chief Justice, Justice, concluded id ft 4-6 & the "application ofthese of these techniques, subject to proper safeguards, limiting the occasion that the ocasion on I which and the degree to which they can be applied, would be in conformity with the Directive i thus-with with Common Article 3 J." ]." Id Id.1i% [and thus 31.31. . I I I 72 r l'CV,", ,.' I I.. 1!:l lJOJ (FI1I)JUL 20 2007 15:i7/ST.15:15/NO.alaO-'2977$;> In reaching this conclusIon. conclusion, the Parker Committee rejected the notion that "the end justifies the means." means." Id, Id \ 27. It repeatedly stressed that aggressive interrogation techniques , I "should only be used in cases where it is considered vitally necessary «should neces~ to obtain information." inform~tio~." Id. Id·1 1f 35. It also ,emphasized emphasized that interrogators should be properly trained 135. tramed and that clear guidelines should exist "to assist Service personnel [in deciding] the degree to which in any particular Id. Similarly, it recognized the importance of of circumstances the techniques can be applied." Jd obtaining approval approval from senior government officials officials before employing the five techniques, id. obtaining id. 37, and it recommended that aggressive interrogations occur only in the presence of ~\\ 37, ofaa "senior officer" with "overall control and a n d... . . . personal responsibility for the operation." Id ld ^~ 38. The committee aJso also cOncluded concluded "that a doctor with some psychiatric training should be sbould present at all times at the interrogation centre, and should be in the position to observe times at the interrogation centre. and should be in the position to observe the the course course of of oral oral interrogation," so that he could "warn the controller if he felt that the interrogation was being jnterrogation," so could controUer jf pressed too too far" far" (although, {although, in in contrast contrast Vt'ith with the the CIA CIA program, program, the the doctor doctor would would not not have have the the pressed actual authority authority to to stop stop the the interrogations). interrogations). Id Id fl~ 41. 41. actual I The Parker Committee emphasized. ofaa pure "ends-means" emphasized, howevElf. however, that its rejection of to the analysis did not mean that Common Article 3 barred countries from giving some weight to citizens against the harII) harm ~eatened threatened by terrorist or insurgent operations. need to protect their Citizens interrogatiol? The committee, for example, emphasized that, when properly administered, the five interrogation techniques posed a "negligible" "risk ofphysical of physical injury" and "no real risk" of "long-term mental tce;:bniques of"long-tenn mentall Id 'd11'14-17. fffi 14-17. Yet they had "produced very valuable results in revealing rebel effects." Jd Orders.'" Id 1 %18. 18.InInNorthern NorthernIre1and, Ireland,the theCommittee Committee organization, training and 'Battle Orders. to. Jd . observed, use of the techniques after "ordinary police interrogation had foiled," led to, among observed. ofthe failed," among.. things, the identification identification of more than 700 7001.R.A. other things, I.R.A. members, details about "possible I.R.A. I.R.A plans," and the discovery of of large quantities of operations" and "future plans, of arms and explosives. Id. Id.l fflj21-22. 21-22.The TheCommittee Committeeemphasized emphasizedthat thatthe thetechniques techniqueswere were"directly "directlyand andindirectly. indirectly... 1i~ .. I 24. of jn~cent innocent citizens." Id Id <| 4'dj24. responsible for the saving of lives of I I tf 3's More broadly, the Parker Committee explained that the meaning of of Common Article 3'5 restrictions must be interpreted based on the nature ofthe id. U 11 30 of the conflict. See id 30(explaining (explaining that that fall to be be judged judged by [a "'humane,' 'inhuman: 'inhuman,' 'humiliating.' 'humiliating,' and 'degrading' fell terms such as '''humane,' of the circumstances in which the techniques are applied"). dispassionate] observer in the light ofthe the, Accordingly, the committee concluded that Common Article 33 must be interpreted interpreted in light of ofthe, of war in its ordinary sense," terrorism is "in unique threats posed by terrorism. Although "short ofwar "i~ Id 1i 132. many ways worse than war." Jd 32. It occurs "within the country; friend and foe will not be I determined to achieve their ends by indiscriminate i identifiable; the rebels may be ruthless men detennined If information is to be obtained, time must be of the essence of the attacks on innocent persons. If ofthe ofthe Id Moreover, factors that might facilitate interrogation in traditional war—such operation." Id. war-such as "a number of prisoners who dislike the current "ample information" to assist interrogators and <&a ofprisoners talk"—are often absent "in counter-revolutionary enemy regime and are only too willing to talkn-are i operations." Id ffif 25-26. See also id. (noting difficulty in obtaining information "quickly"). operations." Id W25-26. See also id. (noting difficulty in obtaining information "quickly"). " Consequently, the Parker Committee concluded that in light of the terrorist threat, of the the nature of ofthe Consequently. the interrogation techniques employed by the United Kingdom were consistent the interrogation techniques employed by the United Kingdom were consistent with with Common Common Article 3. I I I 73 I (FRDJUL 20 2007 IS: 17/ST. lS:15/NO. 616C~29779 I Shortly after after the the Pllrlcer Parker Committee Committee issued issued its its report, report, Prime Prime Mini_ Minister Edward Edward Heath Heath Shortly that as as a matter of policy, policy, Britain woul~ would not not use use the:: the five five techniques in in future future announced that, i interrogations. See Debate on Interrogation Techniques (parker (Parker Committee Report). Report), 832 832 ParI. Pari. interrogations. Deb., Deb., H.C. H.C. (5th Ser.) Ser.) 743-50 (1972); (1972); see see also alsoRoger RogerMyers, Myers,AARemedyfor Remedyfor Northern NorthernIre/and: Ireland: The The Case for United Nations Peaceheping Intervention In An Internal Conflict, 11 N.YL. Sc~ J.. Case for United Nations Peacekeeping Intervention In An Internal Conflict, 11 N.Y.L. Sen. J.. Int'I Int'l & Camp. Comp. L. L. 1,52 1, 52 n.220 n.220 (1990). (1990). The The Prime Minister did not, not to to our knowledge. knowledge, take Issue issue Chief Justice's interpretation ofthe United Kingdom's treaty obligations under with the Lord ChiefJustice's 3, however. Indeed. Indeed, in announcing what he stated was a change in policy, the Common Article 3, of the Committee "conclude[d] "concluded] that use ofthe of the Prime Minister emphasized that the majority ofthe methods could be justified in exceptional circumstance~." circumstances," subject to safeguards. [d. Id. at 743. 743. i ! That for more than two decades following the enactment of Common Article 3, 3, one ofth~ of the of the rule of law law and human rights rights employed I world's leading advocates for and practitioners ofthe Common techniques similar to those in the CIA program and determined that they complied with Commoh also Article 3 provides strong support for our conclusion that the CIA's proposed techniques are alsol consistent with Conunon Common Article 3. The CIA's proposed techniques are not more grave than found stress /. those employed by the United Kingdom. To the contrary, the United Kingdom found positions to be consistent with Common Article 3, but the CIA currently does not propose to include such a technique. Consistent with recommendations in the Parker Committee's legal I opinion. i opinion, the 'CIA CIA has developed extensive safeguards. safeguards, including written guidelines. guidelines, training, of high level close monitoring by medical and psychological personnel, personnel,' and the approval ofhigh officials to ensure that the program is confined to safe and necessary applications of of the officials I techniques in a controlled, professional environment While the United Kingdom employed thes r these techniques in a dozen colonial and related conflicts, the United States proposes to use these of high value terrorists engaged in a worldwide armed techniques only with a small number ofhigh conflict conflict whose primary objective is to inflict mass civilian casualties casuaJties in the United States and I throughout the free world. i I I The United Kingdom's determination detennination under Common Article 33 also sheds substantial light on the decisions of other international tribunals applying legal standards that fundamental1)\' fundamental!) ofother differ Human Rights later i differ from Common Article 3. 3, As discussed above, the European Court of ofHuman found that two of of the interrogation techniques approved by the Committee—diet Committee--diet manipulation and sleep deprivation—violated deprivation-violated the stand-alone prohibition on "degrading treatment" in the European Convention on Human Rights, to which the United States is not a party. Ireland Ireland v. United Kingdom, 2 EHRR 25 (1980). The court explained that "degrading treatment" under the ECHR Id ECHR. included included actions directed at "breaking [the] physical or moral resistance" of of detainees. II!. ^-;r 167. The court's capacious interpretation of the European Convention's prohibition on 167. coun's of ! "degrading ° Indeed, the European "degrading treatment" _em" is is not well-suited well-suited for Common Cnmmon Article 3. 3." European Court , I i M .so The The Israeli Supreme Supreme Court in in Public Public Committee OJmmitteeAgainst Against Torture Tor/ure v.v. Israel, Israel, HCJ ReI 5100/94 5100/94 (1999), (1999), also also cited citeC:1 the ECHR observed that aa combination ECHR decision decision and and.observed combination of ofinterrogation interrogation techniques techniques might might constitute constitute "inhuman "inhuman and degradi.,g" treatment. See See Id at 27-28. As As discussed discussed above, see see supra svpra at at 41 41-42, turned primarily primariJy degrading" -42, the Israeli decision (umed statuto!)' law law and did not specifically specifically purport pwport to define define what wNt constitutes consUtute5 "inhuman and degrading degradingi' upon that nation's statutory treatment under under any particular partic:ular treat}-, treat}·, much much less less what rises to (0 an "outrage "outrage upon personal personal dignity" or other other violation violation i treatment of law applicable ofCommon Common Article Article 3. Six Six years years later, the same same court court recognized recognized that the international intemationallaw applicable to domestic domestic i criminal ~riminal law J~w enforcement e~~ment and that th~t applicable applicable to an armed anned conflict conflict fundamentally differ: While the former places pla~ I "absolute" armed conflict absolute restrictions reslnetJons oh on degrading degradmg treatment treatment generally, generally. the the law law of ofarmed conflict requires requires aabalancing balancing against against . I 74 ? CFRI)JUL 20 2110i 15:17/ST.15:15/NO. 6'60':2977~ ~ ! II bas has interpreted interpreted that that provjsion provision not only to impose detailed requirements on prison conditions, but also to prohibit any action that drives an individual «to also "to act against his will or conscience," a standard standard that might well rule out any significant interrogation at all. all. See Greek Case, 12 Y.B. . ECHR js a peacetime treaty that tha.t ! ECHR 186. 186. Those decisions reflect that the European Convention is prohibits prohibits any any form of"degrading of "degrading treatment," while Common Article 3 prohibits only "humiliating "humiliating and degrading treatment" that rises to the level of an "outrage upon personal dignity." of dignity." Common Article 3 isis a provision designed for times of war, where the gathering of intelligence, often by by requiring a captured enemy "to act against his will or conscience" or by intelligence, undermining thai undermining his his "physical or moral resistance," is to be expected. Furthennore, Furthermore, it is unclear that the the ECHR ECHR in Ireland \I.v. U.K U.K. was was confronted with techniques that provided adequate food and I that that were carefully designed to be safe, such as those proposed by the CIA CIA. I I j It is the United Kingdom's interpretation of relevan of Common Article 3 in practice that is relevam ofthe United to our detennination,not determination, not the ECHR's subsequent interpretation ofthe of the legality of different treaty. The practice of of the United Kingdom in Kingdom's techniques under a.a different Common. Article Article 33 S'IJPpons supports the the interpretation set forth above" above. implementing the interpretation of Common. , D. D- For these reasons, reasons, we interpret Common Article 3 to pemit permit the CIA's interrogation and this interpretation detention program to go forward. Part of the foundation of ofthis interpretation is that Congress has largely addressed the requirements of Common Article 3 through the War Crimes and Acts. These provisions include detailed·prohibitions detailed prohibitions on particularly Detainee Treatment Acts. particularly serious serious, of the Nation's own constitutional standards to conduct, in addition to extending the protection of of fighting against America, persons whom the Constitution aliens detained abroad in the course offighting would not otherwise reach. And the CIA's interrogation program, both in its conditions of of confinement and with regard to the six proposed interrogation techniques, is consistent consistent with the War Crimes and Detainee Treatment Acts. Acts. To the extent that Common Article 3 prohibits Acts. the CIA additional conduct, unaddressed by the War Crimes and Detainee Treatment Acts, program is consistent with those restrictions as well. . I this program. This program is narrowly IJust ust as important is the limited nature of ofthis narrowly targeted targeted of the highest order—preventing to advance a humanitarian objective ofthe order--preventing catastrophic catastrophic terrorist I attacks—and indeed the CIA has determined that the six proposed techniques are the minimum I attacks-and necessary for a program that would be effective effective in obtaining intelligence critical to serving this of high value terrorists who, after end. It is limited to a small number of after carefui carefui consideration, officers of of the CIA believe to possess crucial intelligence. i.ntelligence. The program progr professional intelligence officers is conducted under careful procedures and is designed to impose no pain that is unnecessary unnecessary for I the obtaining of of crucial intelligence. At the same time, it operates within strict limits on AJ. on'conduce, condu~ including those mandated by the War Crimes Act and the prohibition on torture regardless of of the of the conduct. Common Article 3 was not drafted drafted with witb the threat threat posed posed by by al a1 Qaeda' Qaedal motivation ofthe in mind; it contains certain specific specific prohibitions, but it also contains some general principles principles with with thi:l' , . legitimate military needs. Public Committee Against Torture Torturein inIsrael Israelv.v. The TheG(Ntmmen( GovernmentofIsra'I, of Israel,HCJ HCJ769102, 769/02, 11,2005). 1iij 22 (Dec. 11, 2ooS). 75 L I p \ ~RO~ SITe 15 CFRI)JUL DOJ d~finition. 20 IOi~~'TI 2007 15:07/ST. 15:H;/HO. 6i&OoC2i77S1 e~entuali~ies : less definition. The The general general principles principles leave leave state state parties partiesto toaddress addressthe the new new eventualitiesofw4 of war less Geneva Conventions Conventions by by their their conduct. conduct. We WeWill will not notlightly lightly to mold the interpretation of the Geneva I sovereign state statefrom defending against against the the new new construe the Geneva Conventions to disable a sovereign from defending of terrorist attacks carried out by at al Qaeda. Qaeda. types ofterrorist in this memorandum reflects what we believe to be the the correct , The interpretation in . of Common Article 3. 3. B~use Because certain general provisions in Common Article 3 i interpretation ofCommon designed to to provide provide state state parties parties with with flexibility flexibility to to address address new newthreats, threats, however, however, the the natur natur; were designed is that that other other state state parties parties may may exercjse exercise their their discretion discretion in in ways ways that that do do not not of such flexibility is United States. States. We We recognize recognizeCommon Common Article Article33may may len. lend perfectly align with the policies ofthe of the United may disagree in itself to other interpretations, and international bodies or our treaty partners may Ii 51 interpretation.SI some respects with this interpretetion. e 1 Just'as Acts, other states states ma~ may Just as we have relied on the War Crimes and and Detainee Detainee Treatment Acts, with similar similar language, language, but but drafted for for dissimilar purposes, purposes, as as aa source source of of turn to treaties with example, the European Court Court ofHuman of Human Rights Rights above, for example, disagreement. As discussed above, I I determined that certain of the interrogation techniques proposed for use by the CIA—diet detennined ofthe the CIA-diet I deprivation—violated the European Convention's stand-alone manipulation and sleep deprivation-violated Ireland11.v.United United Kingdom, 2EHRR25 (1980). prohibition on "degrading treatment." Ireland Kingdom. 2 EHRR 25 (1980). ForFor ! does not constitute the basis for a correct reading reasons we have explained, the ECHR decision aoes of Common Article 3 in our view, but the openness openness of of"humiliating "humiliating and and degrading degrading treatment" treatment" I an interpretation. interpretation, and the State might not prevent others from, from, incorrectly, advocating such an f Department informs us that given the past statements of our EUropean European treaty partners about the War War on Terror, Terror, and and notwithstanding some some of of their their own own past past United States actions in the practices, see supra supraatatn.36, n.36,the theUnited UnitedStates Statescould couldreasonably reasonablyexpect expectsome someof ofour ourEuropean European treaty partners to take precisely such an expansive reading ofthe of the open open terms tenns in Common Common Article 3. 3. i I I Recognizing the generality of some of Cornmon Common Article 3's provisions, provisions. Congress the I provided a mechanism through which the President could authoritatively determine how the United States would apply its tenns terms in specific contexts. contexts. The Military Military Commissions Commissions A~ Act ensureJ ensures that the President's interpretation ofthe of the meaning meaning and and applicability of the the Geneva Conventions Conventions MCA is squarely directed at would control as a matter of of United States law. Section 6(a) of of the MeA at j therisk risk that the interpretations that would guide our military and intelligence personnel could be be! cast aside after the fact by our own courts or international tribunals, tribunals, armed 'with with flexible and j general language in Common Article 3 that could bear the weight of of a wide ",,"ide range of of policy I preferences or subjective interpretations. To reduce this risk, Congress rendered the Geneva Conventions judicially unenforceable. See See MCA MCA§§5(a). 5(a). The Therole roleof ofthe thecourts courtsininenforcing enforcingthe! the Geneva Conventions is limited to adjudicating prosecutions under the War Crimes Act initiated i by the Executive Branch and. and, even then, then, courts may not rely on "a foreign or international source ! I .' ~ JI 11 extend* only only ,. to""",nabl, reasonable interpretationsof_I"" of unclearknus terms of CommonAdick Article3.3. Where " This 'l1nsflexibility J1e,"",Dty ....... ofC<>...... clear, state patties parties are are obliged as as aa matter matter of of international international law law (though (though DOl not necessarily necessarily their their Common Article 3 is clear, own domestic laws) to follow it, and states international law to to adopt unreasonable stales have no discretion under intemationallaw interpretations at odds with the language of the provision. . 76 l __ P I FROM $ITE is (FRI)JUL OOJ 20 2007 ~5:~7/ST.15:15/NO.151150"2~7711 F I law" to to decide decide the thecontent content ofthe of the statutory elements in the the War War Crimes Crimes Act. Act. See See id §§ 6(a)(2)1, 6(a)(2) of law" Congress Congress also also expressly expressly reaffirmed that that the the President President has has authority authority for for the the United United States States to to interpret the meaning and applicability ofthe Geneva Conventions. See iii. § 6(a)(3}(A). the meaning and of the Geneva Conventions. See id § 6(a)(3)(A). Should Shoul d he ... as he issue issue interpretations interpretations by by executive executive order, order, they they will will be be "authoritative "authoritative... as aa matter matter ofUnited of United . States States law law in in the the same same manner as as other administrative administrative regulations." regulations." ld Id § 6(a)(3)(C). 6(a)(3)(C).S2 We understand understand that that the the President President intends intendsto toutilize utilizethis thismechanism mechanism and andto to sign sign an an We an interpretation of Common Article 3. That action would executive order setting forth an ~ the appl~cation application of Common Common Article.3 Article 3 to to the the CIA program program as as ~a matter matter o.of conclusively determine the law.. We We have have reVlewed reviewed the the proposed proposed executIve executive order order and and have have determtned determined that that Itit United States law. above. See See Proposed Order is wholly consistent with the analysis ofCommon of Common Article 3 set forth above. is EntitledInterpretation Interpretationofthe of theGeneva Geneva Conventions Common Article As Applied to a Program Entitled Conventions Common Article 3 As 3 Applied to a Program bf of Detentionand andIntelTogation InterrogationOperated Operated Central Intelligence Agency (Executive DetenJion byby thethe Central Intelligence Agency (Executive ClerkClerk fin~ final signature, July July 20, 20, 2007) 2007) ("Draft ("Draft Order"). Order"). Because Because the the draft, presented to the President for signature, public, it cannot engage engage in in the thedetailed detailed application application of of Common Common executive order would be public, .tothe thesix sixproposed proposedtech..1.iques techniquesembodied embodiedininthis thisopinion. opinion. Instead, Instead,the theexecutive executiveorder order .! Article 3 .to sets forth an interpretation of Common Article 3 at a higher I~vel level ofgenerali1y of generality that tracks the analysis in this opinion and, and, thereby. thereby, conclusiveJy conclusively determines that the CIA's proposed program' program the six proposed interrogation techniques, techniques, complies : of interrogation and detention, including the Common Article Article 3. 3. with Common I I I confinement that The executive order would prohibit any technique or condition of ofconfinement that 18 U.S.C. U.S.C. §§2340, 2340,ororany anyact actprohibited prohibitedby bysection section2441(d) 2441(d)of of I constitutes torture, as defined in 18 See Draft Draft Order Order §§3(b}(i)(A)-(B). 3(b)(iXA>(B). This ThisOffice Office has hasconcluded concludedthat thatthe thesix six i the War Crimes Act. See proposed techniques, when applied in compliance with the procedures and safeguards put in r place by the CIA, comply with both the federal anti-torture statute and the War Crimes Act. See Section 2340Opinion Opinionand andPart Partn,n,supra, supra, Section 2340 I(a) of Common Article 3, 3.1he To ensure full implementation of paragraph. paragraph-1(a) the executive order also would prohibit "other acts aqts of violence serious enough to be considered comparable to murder, torture, or inhuman treatment, as defined in" the War Crimes Act. torture. mutilation, and cruel cruel'or Act.l Draft 3(b)(i)(C). As As explained above above (see (seepart partIV.B.I.a, TV.B. 1 .a, supra), proposed Draft Order § 3(b){i)(C). supra), thethe sixsix proposed I techniques do not involve violence on a level comparable to the four enumerated forms of of i violence in paragraph 1(a) of Common Article ofCommon Article 3—murder, 3-~urder. mutilation, torture, and cruel . to! I I I Pr~ident grants the President great authority—as authoiity-as our Nation's Nation' 5 chief organ in foreign affairs a1fairs and inn The Constitution giants as Commander Commander in Chief—to Chief-to interpret treaties, treaties. particulariy particularly treaties regulating wartime wanimc operations. Those I interpretations interpret2tions are ordinarily ordinariI)' entitled to "great weight" by the courts. See, e.g., e.g_, Sanchei-Uamas Sanchez-Llamas v. Oregon, 126 i S. s. Ct. a. 2669, 2685 268S (2006). Congress, Congress. however, determined in the MCA MeA that lhat ilit was appropriate to to affirm affirm flat that the tbe ; President's interpretations of the Geneva Conventions are entitled to protection. ofthe proteCtion. It is apparent that Congress was reacting rcacling to the Supreme Sup~e Court's decision in ffamdan, Hamdan, which adopted an interpretation of of the applicability of of the I Geneva oonIrary to to that that of ofthe the President, President, without without taking taking.account account of of the me President's President's interpretation. interpretatioIL See See j Geneva Conventions Conventions contrary Homdan, Hamdan, 126 126 S. Ct Ct. at at 2795-98; 2795.98~ id, id. at at 2847 2847 (Thomas, fThomas, J., J., dissenting). dissentins). The The MCA MCA therefore therefore reflects reflects aa congressional congressional 1 effort dfon to to restore restore the the principal principal role role that that the the President President has has traditionally uadilionally played played in defining defining our Nation's Nation's international international ! obligations. In In this regard, regard, presidential presidential orders under under the the MCA MCA would would not nO£ be be subject subject to to judicial judicial review. See Franklin Frank/ik v. 505 U.S. 788, 788,800-01 (holding that presidential action is not subject to !. v. Massachusetts, Mossachusens, 50S 800-01 (1992) (bolding to judicial review under ' under the the Administrative AdministJative Procedure Procedure Act, Act, or any other statute, absent f.bsent "an express el\press statement statement by by Congress**). Congress"). 77 :2 FROM SIT~ 15 OOJ (FRI)JUL T 2C 2007 15:17/$,. is:15/NO. 6160£ZP779 N:rQi4~~ T treatment. frequency, and teChniQUes-iJ treatment. The The limitations on the the administration, frequency, and intensity ofthe techniques—in particular, the corrective techniques-ensure that they will not involve physical force that rises rises to techniques—ensure to I the level ofthe of the serious violence prohibit~ prohibited by the executive order. I The executive order would prohibit any interrogation technique or condition of of I the "cruel, inhuman, or degrading treatment or punishment" confinement that would constitute con~n~ment woul~ '<cruel; inhu~an, degradin~ ~reatment o~ p~nishment" prohibIted prohibited by the Detamee Detainee Treatment Act and secuon section 6(c) ofthe of the Military CommIssionS Commissions Act. . Draft Order § 3(b)(i)(D). 3(b)(i)(D). We have have concluded that the the six proposed techniques, when used as in the context of this program. program, comply with the tbe standard in the DTA and the MCA. MeA authorized in See Pan Part ill, HI, supra. supra, See To address paragraph ICc) 1(c) ofCommon of Common Article 3 further, the executive order would bar interrogation techniques or conditions ofconfinemeI\t of confinement constituting "willful "interrogation "willful and outrageous acts ofpersonal ofhumiliating or degrading degrading the the individual individual in in aa manner manner so so of personal abuse done for the purpose of humiliating or serious that any reasonable person, considering the circumstances, would deem the acts to be human decency, such as sexual or sexually beyond the bounds of buman sel'.'1JaUy indecent acts undertaken for of humiliation, forcing forcing the the individual individual to to perform perform sexuai sex"Uai acts acts or orto to pose pose sexually, sexually, the purpose ofhumiliation, shield.3' threatening the individual with sexual mutilation, or using the individual as a human shield." 3(b)(i)(E). This provision reinforces crucial features of the interpretation ofthe interpretation of of Draft Order § 3(b)(i)(E). paragraph l(c) 1(c) ofCommon of Common Article Article 33 set set forth in this this opinion: opinion; To trigger the paragraph. paragraph^ .I humiliation and degradation must rise rise to the level ofan lq of an outrage, and the term "outrage" looks to the evaluation of a reasonable person that the conduct is beyond the bounds of ofhuman human decency, , j of the conduct.53) As taking into consideration the purpose and context ofthe As explained explained above, above, the the six SiX/' proposed techniques do not constitute "outrages upon personal dignity" under these principles; . thus. ofthe executive order. I thus, the techni.ques techniques also satisfy section 3(b)(i)(E) of the executive order. . "\ I I I I implementing paragraph l(c) 1(c) ofCommon of Common Article 3, the executive order would Also 'implementing religion, religious religious practices, practices, Of or religious objects" of the prohibit "acts intended to denigrate the religion, detainees. Draft Order § 3{b)(i){F). 3(b)0XF). The The six six techniques techniques proposed proposed by by the the CIA CIA are are not not directed directed at, at detainees. the religion, religion, religious practices, or religious objects of the detainees. . I The techniques and conditions of confinement approved in the order may be used only Draft Order Order with certain alien detainees believed to possess high value intelligence (see (see Draft (seePart PartlA., I. A,supra). supra).The TheCIA CIAprogram programmust mustbebe 3(b)(ii)), and and the the program·is program-is so so limited limited (see §§ 3(b)(ii», . of the CIA (see (see Draft Draft Order Order §§ 3{c)j, 3(c) conducted pursuant to written policies issued by the Director ofthe (see Part Part I.AI, LA. 1,supra). supra).InInaddition, addition,the theexecutive executive I will have such policies in place and the CIA will p'iace (see order would require the Director, based on professional advice, to determine that the techniquesl techniques detainee" (see (seeDraft Draft Order Orderatat§§3(b)(iii», 3(b)(iu)),and andthe theCIA CIAintends intendstotodo doJ, so are "safe for use with each detainee" (see Parts PartslA.3 LA.3 and and I.B, LB, supra). supra). (see Under the proposed executive order, detainees must "receive the basic necessities of of life, life including adequate food and water, shelterfrom the elements, necessary clothing, protection from clothing,. 'I 53 in\'ol\'~ se<:tiJ any se,,-ual sexual or sexually indecent acts, much less chose Nor do the techniques involve any mose referenced referenced in section 4<b)(i)(E) of the the executive executive order. order. The The techniques techniques also alsodo donot notinvolve involvethe theuse use of ofdetainees detaineesas as human human shields. shields. .. 4(b )(i)(E) of .53 78 P :i fROM SITE 15 DOJ (FROJUL 2C· :<007 li5:;7/ST. 15't5/NO.61aO~29779 ;> I from from extremes extremes9fheat of heatand andcold, cold,and andessential essentialmedical medicalcare." care." See SeeDraft DraftOrder Order§§3(b)(iv). 3(b)(iv). This This requirement is based on the interpretation ofCommon 3' S overarching humane treatment treatmenq of Common Article 3's requirement set forth above, above, and we have concluded that the proposed techniques comply with this basic necessities standard. See Part IV.BJ. IV.B.3, supra. supra. Should Should the the President sign tile the executive order, the six proposed techniques would thereby comply with the authoritative and controlling i interpretation of Common Article 3, as the i the MeA MCA makes makesclear. clear. I f v. V. ; , The armed conflict against at al Qaeda-an Qaeda—an enemy dedicated to carrying out catastrophic its aUies-is allies—is unlike unlike any any the the United United States States has has attacks on the United States, its citizens, and its confronted. The tactics necessary to defend against this unconventional enemy thus present a . . series of new questions under the law of armed conflict. The conclusions we have reached ! address. Not intended to be used use herein, however, are as focused as the narrow CIA program we address. herein, by aU all U.S. personnel who interrogate captured terrorists, the CIA program all detainees or by with all restricted to the the most knowle<;igeable knowledgeable and dangerous ofterrorists of terrorists and is designed would be restriete.d designed to to I obtain information crucial to defending the Nation. Nation. Common Article 3 permits the CIA to to go forward with the proposed interrogation program, and the President may determine that issue program. detennine : to his authority under the an executive order to that effect pursuant to conclusively by issuing an Constitution and and the the MeA MCA. As As explained explained above, above, the the proposed proposed executive executive order order accomplishes accomplishes ! Constitution the CIA's CIA's six six proposed proposed interrogation interrogation techniques, precisely that that end. end. We We also also have have concluded concluded that the precisely techniqu~, subject to all of the conditions and safeguards described herein, would comply with the subject to aU of the conditions and safeguards described herein, would comply with the Detainee Detaine~ Crimes Act. Act. Treatment Act and and the the War War Crimes Treatment Act I I I i be of of further further assistance. assistance. Please let us know if we may be I I- Steven G. G. Bradbury Principal Deputy Assistant Attorney General 79