Olc Memo to Rizzo Re Application of Detainee Treatment Act to Conditions of Confinement at Cia Facilities 8-31-06
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U.S. Department of Justice Office of Legal Counsel WashingtOrl, D.C. 20530 Office of the Assistant Attorney General August 31, 2006 '. MEMORANDUMFORJOBNA.RUZO .ACTING GENERAL COUNSEL, CENTRAL INTELLIGENCE AGENCY Re: Application ofthe Detainee Treatment Act to Conditions o/Confinement at Central Intelligence Agency D~tention Facilities . The Detainee Treatment Act of200S, in relevant part, prohibits any individual in U.S . .' custody or control from being "subject to cruel, inhuman, or degrading treatment or .punishment," "regardless of nationality or physical location." Detainee Treatment Act of2005, Pub. L. No. 109-163, tit. XIV: §1403, 119 Stat. 3136, 3475 (2006) ("DTA" or "Act"); see also Pub. L. No. 109-148, div. A, tit X, 119 Stat. 2680,2739 (2005) (same). You have asked whether particular "standard conditions of detention" at certain Central Intelligence Agency ("qA") facilities located overseas are consistent with the'applicable standards of the DTA. Letter for Steve Bradbury, Acting Assistant Attorney General, Office ofLegal Counsel, from John A. Rizzo, Senior Deputy General Counsel, CIA at I (Dec. 19, 2005) ("Rizzo Letter'). The DTA was designed to establish a domestic legal' requirement that the United States abide by the relevant substantive constitutional standard, applicable to the United States under Article 16 ofthe Convention Against Torture, in its treatment of detainees in certain limited circumstances, regardless of location or nationality. The relevant standard applicable to CIA detention facilities under the DTA is that oUhe Fifth Amendment,in particular the Amenqment's prohibition of government conduct that "shocks the conscience." See County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). To detennine whether the conditions of confiriement at issue here "shock the conscience" within the meaning ofthe Fifth Amendment, the ultimate inquiry is whether they amount to punishment-which occurs where the hardships associated'with a particular condition or set of conditions are ouf of proportion to a legitimate governmental interest. Applying that standard, we conc1u'de that the conditions at issue here, considered bQth 'separately and collectively, are consistent with the requirements of the DTA. I I The legal advice provided in this memorandum does {lot represent the policy views ofthe Department of Justice concerning any particular condition of confinement . .. __ .... _._.• _. __._-_ ...... -----------'----------- I. A. The conditions of confinement in question here are used in covert overseas facilities operated by the CIA as part of its authorized program to capture, detain, and .interrogate individuals who pose serious threats to the United States or are pIannin terrorist attacks. The . this ro am under the Ie aI authorities ranted to it in ver the history of the program, the CIA has detam a tota 0 In IVI ua s. t t IS Ime, he CIA has fewer than 20 detainees in its custody under this program, the remainder having been transferred to other forms of custody or other nations. Herein, we ~ssume that the CIA has a . sound basis for determining that each detainee it is holdin . in the rogram is an enemy co'mbatant covered by the terms 0 throughout his detention. 2 In addition, we understand that, once the CIA assesses that a detainee no longer possesses significant intelligence value, the CIA seeks to move the detainee into alternative detention .arrangements. The CIA believes this program has been critical to our national security: "the intelligence acquired from th~e interrogations has been a key reason why al-Qa'ida has failed to launch a· spectacular attack in the West since 11 September 2001." Memorandum for Steven G. . Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, f r o m _ 2 m We understand that all persons currently in CIA custody under this program enemy combatants. consider and do not discuss here the detention o(other rsons-eovered. under th We also underStand that none of the terrorist enemy combatants detained by the CIA for pwposes of this program is entitled to the privileges of prisoners of war lU1der the Third Geneva Convention or protected persons under the Fourth. Geneva Convention, and we express no opinion as to whether the conditions of confinement addressed in this opinion would satisfy the full requirements of the Geneva Conventions in circumstances where those Conventions would apply. Pursuant to Hamdan v. Rumsfeld, 126 S. Cl 2749 (2006), common Article 3 of the Geneva Conventions does apply to the anned conflict with al Qaeda and thus to the detainees at issue here who are being held in that armed ~nflict. In a letter issued today by this Office, we cpncIude that the conditions of confinement described herein also satisfy the requirements of common Article 3. Letter to 10hn A. Rizzo, General Counsel, CentJal Intelligence Agency, from Steven G. Bradbury, Acting Assistant Attorney Genera~ Office of Legal Counsel (Aug. 31, 2006). 2 ., .', DCI Counterterrorist Center, Re: EffeCtiveness ofthe CIA Counterintelligence Interrogation Techniques at 2 (Mar. 2, 2005) ("Effectiveness Memo"). As 'Ye previously have discussed at greater length, interrogations conducted pursuant to the program have I~ to specific, actionable intelligence about terrorist threats to the United States and its interests. See M~orandum for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, from Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office ofLegal Counsel, Re:. Application ofUnited States Obligations UnderArticle I6 ofthe Convention Against Torture to Certain Techniques that May Be Used in the Interrogation of High Value af Qaeda Detainees at 10 (May 30, 2005) ('Article 16Memoran(1um") (citing Counterterrorism Detention and Interrogation Activities (September 200I-October 2003), No. 2003-71 23-IG, at 85-91 (May 7, 2004)("IG Reporf'». "More generally, the CIA has informed .us that, since March 2002, the intelligence derived from'CIA detainees has resulted in more t~an 6,000 intelligence reports and, in 2004, accounted for approximatel half of CTC' s re ortin on ~a." Article 16Memorandum at 11 (citing Fax fro _DCI Counterterrorist Center, Briefing Notes on the Value ofDetainee Reporting at 1 (Apr. 15,2005) ("Briefing Notes"); IG Report at 86). According to the ,CIA, the ro ram has had a crucial s ne istic effect on other intelli ence resources in that it has been . Critical to the legal analysis that follows is the special nature ofthe detention facilities in which the CIA keeps its high value .detainees. It is clear that such detainees pose unique security risks~ not only are they a serious risk to escape and to the safety of CIA personnel in the facility, but any facility housing them is under the threat of an armed attack by their supporters in an attempt'to free the detainees or to do harm to those responsible fOf their detention. Yet the covert facilities in which the CIA houses those detainees were not designed as ordinary prisons, much less as high-security detention . an erous and often hi hi . so histicated internationaI'terrorists. B. You have asked us to evaluate the legality of six standard conditions of confinement in the facilities in question.. According to your account, the common characteristic of each condition is l<e.nsuring the safety of both Agency ~'terrorist-detainees at our overseas q)Vert detention facilities." Letter f r o n i _ o Steven Bnidbury, Re: Requestsfor Information on. Security Measures at 1 (May 18, 2006) ("Security Measures Letter"). Underlying our analysis ofall these methods is our understanding that the CIA provides regular and thorough medical and 'psychological care to the detainees in its custody. 3 .., 1. We begin with the CIA's with 'some opaque material, Letter for Steven Bradbury, Acting Assistant Attorney General, Office ofLegal Counsel, from Asso~iate General Counsel, CIA at 2 (Jan. 25, 2006) ("Janua 25 tter". Si nificantl the detainee's vision is not blocked at all times. January 25 Letter. ' We understand that the methods used y the CIA to prevent detainees from seeing do not .harm the detainees in' any way. The detainee, for example, is able to breathe easily despite the presence ofthe goggles or other eye coverings. , The Agency uses this condition of confinement for security purposes, more specifically, to "prevent the detainee from learning his location or the layout of the detention ~ Standard O;mditions 0 .CIA Detention at I to prevent the detainee from learnin~ January 25 Letter at 2, to ensure the ,safety of certain personnel Standard Conditions ofCIA Detention at I, and January 25 ~etter at 2. . , 2. Upon arrival at the detention faci lity, the head and facial hair of each detainee is shaved with an electric shaver, while the detainee is shackled to ~ security reasons.' . Standard ConrJitions ofCIA Detention at I ~ see also January 25~tter at 1. This shaving "is not done a~e step and only takes place upon the initial intake into the . program.'" January 25~etter at 2. "After the detainee is settled and being debriefed 'he , is allowed to grow his beard and head hair to whatever length he desires (within limits of hygiene and safety)." Id The CIA provides detainees "the option to shave once a week if they so choose" and offers "haircuts as needed or as requested by the detainee." ld It also provides detainees, at their request, the opti,on of shaving other parts oftheir bodies, recognizing that such shaving may relate to specific Islamic practices. Jd. Shaving helps enhance security at the detention facility "by removing hair·in which a detainee might hide small items that might be used against his interrogators and other detention personnel." Standard Conditions ofCIA Detention at 1.. In addition, "[s] having is used for hygiene." Id 3 4 thi "includes no contact with the outside world," including no mail· or.ne access. Fax from to Steven Bradbu at 4 A r. 19 2006) ("April 19 Qx"). Although "CIA etamee they are not ISO at from all human contact, nor are they in any way subject to "sensory epnvation." ld at 2. Indeed, the CIA has taken specific measures to counteract an otentiall adverse . ., ed human interaction, For exam Ie e Agency also affor s etamees ~ess to gym eqUlpmen an p YSlca exercise." ld . .Finally, each detainee receive.s_psychological examination to assess how \:Veil he is adapting to his confinement. Id . the CIA, s~ch confinement helps prevent the detatnees attack on agency personnel.4, The CIA plays white noise in the walkways of the detention facilities to prevent . detainees from being able to ' each other while they are being moved within ilities. See Letter from 0 Steven Bradbury at 2 (May 23, 2006) ("May 23 _ Lettef'). White noise is used in the walkways onI althou h it is ossible that the detamees are able to hear some of that noise in their cells, _ "At no time, however, IS the detainee expos to an exten e perm 0 ~oise in the walkways is played at all times below 79 dB. We can Safely assume that the noise level in the cells is considerably less than the level of the noise in the walkways; recent measurements taken by the CIA indiCated that the noise level in detainees' cells was in n e of 56-5 8 dB, compared with a range of68-72 dB in t~ays. See Letter from to Steven Bradbury (May 24, 2006) ("May. 24~ttef'). This level 0 nOIse IS Slml ar to tbat ofnormal conversation. According to CIA's Office of Medical SeIVices; <'there is no risk of permanent hearing loss for continuous, 24-hours-a-day exposure to sound at 82 dB or lower ...." Id "[S]ound in the dB 80-99 range is experienced as loud; abo:ut 100 dB as uncomfortably loud." 1d. . 5. The CIA also keeps detainees' cells illuminated 24-hours-a-day. Standard Conditions .oj CIA Detention at 3. Each cell is lif by two 17-watt T-8 fluorescent tube Ii ht bulbs which illuminate the cell to about the same brightness as an office. 5 purpose. Over the course of several years, the CIA has not observed that the light has had any adverse effect on detainees' ability to obtain adequate sleep. . . 6. Finally, the CIA uses leg shackles to enhance security "in all aspects of detainee management and movement." Id Shackling, however~ is kept to the minimum required by the CIA's security concernSj the number of hours per day that a detainee is shackled is calibrated to the threat that the detainee poses to detention facility staff Jd Detainees thus are not shackled while in their cells unless they have previously demonstrated that they are a threat to themselves or to facility personnel while in their cells. You have informed us that at resent no detainee is shackled 24 hours er da ll. The.DTA provides that "[n]o individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhu.man, or degrading treatment or punishment." DTA § 1403 (a). It further provides that "[n]othing in this section shall be construed to impose any geographical limitation on the applicability of the -prohibition against cruel, inhuman, or degrading treatment orpunishment under this section." .DTA § 1403(b). The Act defines the teon "cruel, inhuman, or degrading . treatment or punishment" to include only the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution ofthe United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Conve~tion Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, ~ecember 10, 1984. DTA § 1403(d). The U. S. reservation to Article 160fthe Convention Against Torture ("CAT") provides that the United States considers itself bound by the obligation under Article 16 to prevent "cruel, inhuman or degrading treatment or punishment," only insofar as the tenn "cruel, inhuman or degrading treatment or punishment" means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States. 136 Congo Rec. 36,198 (1990). The DrA's definition of "cruel, inhuman, or degrading treatment or punishment," including its reference to the U.S. reservations to the CAT, is designed to establish a domestic legal requirement that the United States abide·by the substantive standards =0 __..._- -- __._ . -===_.~==-_""=-=. ---':~ ;':.=::~~':"'~'~~:.~_:....c=..-::''':'':''';~'''''.:':';'~';~:''':::'''''''.~~-.,.;..~ 6 ....~ = ~~-..u,~r: .~ . ~ _ applicable to the United States under Article 16 of the CAT in its treatment of detainees, . regardless of their location or nationality.4 . In evaluating the legality ofconditions of confinement under the DTA, we look primarily to the standard.$ imposed by the Fifth Amendment, in particular the "substantive" component of the Due Process Clause. The other two constitutional amendments referenced in the statute are not directly applicable in these.circumstances. The Fourteenth Amendment does not apply to actions taken by the federal Government, see, e.g., Bolling v. Sharpe, 347 U.S. 497,498-99 (I 954); and the Eighth Amendment does not apply until there has been a formal adjudication of guilt, see, e.g., Ingraham v. Wright, 430 U.S. 651,671 n.40 (1977), The Fifth Amendment, in contrast, is riot subject to these same limitations, AS'applied ~o the actions ofthe Executive Branch, substantive due process generally requires that executive officers refrain from conduct that "shocks the conscience." County oj. Sacramento v. Lewis, 523 U.S. 833,846 (1998) ("To this end, for haIfa century now we have spoken of the cognizable level ofexeeutive abuse of power as that which shocks the conscience."); see also RochiJi v. California, 342 U.S.. 165, 172 (195'2). The Supreme Court has indicated that whether government conduct can be said to "shock the Conscience" depends' . primarily on whether the conduct is "arbitrary in the constitutional sense," Lewis, 5i3 U.S. at 846 (internal quotation marks omitted), that is, whether it amounts to the "exercise ofpower without any reasonable j~stification in the service of a legitimate governmental objective," id. The Supreme Court repeatedly has held that the substantive component ofthe Due . Process Clause applies to the evaluation of conditions of confinement of persons detained in the absence ofa formal ~djudication ofguilt.' The .mere fact that a person has been detained under "proper procedures does. not deprive him of all substantive liberty interests under the Fourteenth Amendment.'·' Youngberg v. Romeo, 45? U.S. 307, 315 (1982). The "'process' thatthe 4 See 151 Cong. Rec. 814,269 (daily ed. Dec. 21. 2(05)(statement of Sen. Graham) ("In section 1403, we close the loophole in the [CAT). As National Security Advisor Stephen Hadley said, 'those standardS, as a technical, legal matter, did not apply abroad. And that is what Senator MCCAIN ... wanted to address-wanted to make clear that those would apply abroad.' We appliecfthem abroad as a matter of policy; he wanted to make sure' they applied as a matter of law. And when this legislation is adopted, it will. "'); id at 814,257 (statement of Sen. Levin) ,'This language fmnly establishes in law that the United States will not subject any individual in our custody, regardleSs of nationality or pbysicallocation, to cruel, inlu.unan; or degrading treatment or punishment The amendment provides a'single standard-'cruel, inhuman. or degrading treatment or punishment'-without . regard to what agency holds the detainee, what the nationality of the delainee is, or where the detainee .is held."); id. at S14,269 (statement.of Sen. McCain) ("With the detainee treatment provisions. Congress has clearly spoken that the prohibition against torture and other cruel, inhuman or degrading treatment should be enforced and that anyone engaging in or authorizing such conduct, whether at home or overseas, is violating the law."). See also 151 Congo Rec. H12,205 (daily ed. Dec. 18, 2005) (statement of Rep. Hoekstra) ("The principles of the conference report . relating to cruel and inhuman and degrading treatment should not be controversial or even remarkable.. '. (This conference report] does not modifY the substantive definition of cruel, inhwnan, and degrading treatment that applies to the United States under its existing treaty obligations."); id at H12,204 ("Mr. MARSHALL. Mr. Chainnan, is·it your understanding that the bill's language referencing the Senate's 1994 reservation to tlle United Nations' Convention Against Torture is intended to prohibit conduct that shocks the Conscien~ the standard adopted by the United States Supreme Court in Rochin v. California? .. _, Mr. HUNTER. That is my understanding."). 7 Constitution guarantees in connection with any deprivation of liberty thus includes a continuing obligation to satisfy certain minimal custodial standards." "Collins v. City ofHarker Heights, 503 U.S. lIS, 127-28 (1992). For example, the Court has held that persons involuntarily committed to institutions for the mentally retarded have substantive due process rights to such basic necessities as food, shelter, clothing, and medical care, as well as to "safe conditions," and "freedom from bodily restrajnt." Youngberg, 457 U.S;' at 315-16. Similarly, in the criminal context, the Court has held that "the Due Process' Clause protects a detainee from certain conditions and restrictions of pretrial detainment." Wolfish, 441 U.S. at 533. In these situations, the Court has developed. a more specific analysis than the general "shocks the conscience" test for determining whether the requirements of due process have been satisfied. This inquiry shares the core ofthe "shocks the. conscience" test, requiring the weighing of "the individual's interest in liberty against the State's asserted reasons for restraining individual liberty." Youngberg, 457 U.S: at 320. " In evaluating the conditions ofconfinement used by the CIA in its overseas covert detention facilities, we pay particular attention to the substantive due process standards applicable to pretrial detention. Like the CIA's detention program, pretrial detention involves . the confinement of individuals who have not. been convicted of crimes, but who nevertheless . may present "an identified and articulable threat to an individual or the community." United States v. Salerno, 481 U.S. 739, 751 (1987).5 Of course, the Constitution forbids the punishment of pretrial detainees, so these cases have evaluated whether the conditions "amount to punishment of the detainee." Id at 535; see also Graham v. Connor, 490 U.S. 386,395 n.l0 (1989) (stating that "the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment"); Schall v. Martin, 467 U.S. 253, 269 (1984) ("It is axiomatic that '[d]ue process requires that a pretrial detainee not be punished."') (quoting Wolfish, 441 U.S. at 535 n.16) (alteration in Schall). "[U]nder the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance .with due process of Jaw." Wolfish, 44 i S. at 535. Imposing punishment on such detainees for their past behavior u. . S Although we believe that pretrial detention ptovides a useful analogy to the CIA detention, we recognize that there are important differences between the !wo modes of detention. The detainees held by the CIA are·not ordinary accused criminals; instead., they are extremely dangerous, and often quite sophisticated, terrorist enemy " combatants detained because they pose a serious and direct threat to the national security of the United States. Pretriai detainees are held to secure their presence at trial "and because of the threat they may pose to the community. See Salerno, 481 U.S. at 751. The constitutional limits upon their detention reflect the balance struck for the . ordinary .operation of the cris:ninal justice S)'stem. By contrast, the primary purpose of detaining enemy coml)atants is to prevent their return to battle, and in the case of th.e dangerous terrorists at issue here, these individuals have . proven themselves dedicated to killing American civilians. Moreover, the facilities in which they are held are not dedicated jails that have been built specifically for the purpose of detaining potentially violent and escape-minded detainees. Detaining these individuals therefore poses special security challenges. The special status of these individuals, and the greater threat they pose~oth to CIA, persolUlel and to the Nation at large-would suggest that the Fifth Amendment balance struck in the pretrial detention cases would not necessarily impose the same limits upon the Government in this context But even taking the pretrial detention cases on their O\m terms, we are confident that the conditions of confinement at .issue here satisfy the constitutional standards recognized in that context. . __.. __._ . -_..-....._0_...__._.__.~ __ ',- :~.::..:.:..;",,:, .:..:~~.:.:.... . ...:..:..:..:.:.::.~ .:::..:.:. :.:..:. . :..::_:'' ':'::. .:':. :. -:::..::. _.....:.::.:.:...-------.----7"-.. 8 --.----~---- ....-- necessarily "shocks the conscience:' see Salerno, 481 U.S. at 746, and is thus forbidden by the 6 . DTA. The·Supreme Court ·has made clear, however, that "the mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment." Id. ''Not every disability imposed during pretrial detention amounts to 'punishment' in the co~stitutional sense." Wolfish, 441 U.S. at 537. Because the Government is "obviously ... entitled to employ devices that are calculated to effectuate [authorized] detention," id, "[a] court must decide 'whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose," id. at 538. Accordingly, the tirst question in determining "whether a restriction on liherty constitutes impermissible punishment.or permissible regulation" is whether there is any expressed intent to punish for past criminal behavior. Salerno, 481 U.S. at 747. Even if there is no evidence of such intent, however, the inquiry is not over. «Absent a showing of an expressed intent to punish on the part of detention facility officials," the due process analysis "generally wili tum on 'whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it. appears excessive in relation to the alternative.purpose a~igned [to it].'" Wolfish, 441 U.S. at 538 (quoting Kennea)! v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963» (alterations in original). . . In Wolfish, the Court fonnulated the following test.for evaluating the conditions of confinement in pretrial detention under the Due Process .Clause: [I]f a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to "punishment." Conversely, if a restriction or condition is not reasonahly related to a legitimate goal-if it is arbitrary or purposeless-a court permissibly may infer that the purpose ofthe government action is punishment that may not constitutionally be inflicted·upon detainees qua detainees. 441 U.S. at 539 (footnote omitted).7 This is not a least restrictive means test, see Block v. Rutheiford, 468 U.S. ~76, 591 n.II (1984), but it is nevertheless relevant whether the governmental objective sought to be advanced by some particular condition of confinement ·6 Consistent with this constilutionallimitalion, certain sanctions may nevertheless be imposed on pretrial detainees who viol~te adminisuative rules while they are lawfuUy detained. See, e.g., Sandin v. Connor, 515 U.S. 472,484-85 (1995) (distinguishing administrative penalties used to "effectuateD prison management'; from the punishment without conviction that is prohibited by the Due Process Clause); West v. Schwebke, 333 F.3d 745, 748 (7th tir, 2003). 7 In Youngberg, the Court applied a similarly deferential standard to evaluate the substantive due process rights of persons involWltarily committed to mental institutions "to reasonable conditions of safety and freedom from unreasonable restraints." ;457 U.S. at 321. The Court held that "the Constitution only requires that the courts make certain that professional judgment in fact was exercised." Id. Under this standard, "liability may be imposed only when the decision by the professional is such a Substantial departure from accepted ·professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgmenl." Jd. at 323. ----_._---_.. ....::...::.:.::.:..;..:::-...:....:.:...:...:._.:.:::.:.:..-..:-,-,.:....:.:..:.:...:..-:....---;;..::_.. _. ':..::''-_ .. -" :...:.:..:...:.:..::.-.._._, --.:.~-::..:~-~-_.:: 9 could be accomplished by "alternative and less harsh methods." Wolfish, 441 U.S. at 539 n.20. The existence of such alternatives that the government either failed to consider or arbitrarily ·rejected may support the conclusion that the purpose for which tpe harsher conditions were imposed was in fact to punish. Id.; see also Block, 468 U.S. at 594 (Blackmun, 1., concurring) ("The fact that particular measures advance prison security, however,does not make them ipso facto constitutional."); Schall, 467 U.S. at 269 (observing that it is "necessary to determine whether the terms and conditions of confinement ... are in fact compatible with th[e] purposes . . [of detention]").B Although the stanqard used by the Supreme ~ourt to evaluate the constitutionality of pretrial detention conditions is relevant to our present analysis, it is important to recognize that the Court's deferential formulation is, at least in part, driven by coricern~ about separation of powers that are not directly applicable in this context. Indeed, the insistence thatjudgp not make decisions properly vested in the political Branches is a recurrent theme in the Court's conditions ofconfinement decisions: (U]hder the Constitution, the first question to be answered is not whose plan is best, but in what branch ofthe Government is lodged the authority ~o initially devise the plan.... The wide range of "judgment calls" that meet ~onstitutional and statutory requirements are confided to officials outside the Judicial Branch of Government. Wolfish, 441 U.S. at 562; see also id. at 547 n.29 (noting that the "principle of deference" in this field is derived from the fact that "the realities of running a corrections institution are complex and difficult, courts are ill equipped to deal with these problems, and the management of these' facilities is confided to the Executive and Legislative Branches, not to the Judicial Branch"); Block, 468 US. at 584 (emphasizing the "very limited role that courts should play in the administration ofdetention facilities"). In evaluating these prison management matters as members of the Executive Branch, we must take these assertions for deference to the detaining authority with a grain of salt. Although we certainly do not claim expertise in running detention facilities, and have neither desire nor cause to substitute our judgment for that of the CIA in such matters, the Executive Branch is not subject to the same constitutional limitations that require courts to defer so extensively to prison administrators. It is appropriate, therefore, that our legal advice undertake the best reading ofthe applicable legal principles. Also, we'may insist upon a somewhat closer,connection between the conditions of confinement and the governmental I In the detention context, moreover, substantive due process can be violated not merely by intentional' · harms, but also where the conditions of confinement evince "deliberate iIidifference" to the risk that detainees may suffer unjustifiable injuries. The Supreme Court has observed that "in the custodial situation of a prison, forethought about an inmate's welfare is not only feasible but obligatory under a regime that incapacitates a prisoner · to exercise ordinary responsibility for his own welfare." Lewis, 523 U.S. at 850-51; see also DeShaney v. Winnebago Country Dept. o/Social Servs., 489 U.S. 189, 199-200 (1989)(ohserving that "when the State takes a person into its custody and holds him there against his will, the Constitution imposes upOn it a corresponding duty to assume some respOnsibility for his safety and general well-being"). Accordingly, the procedures Illat the CIA has in place for mitigating the possibility that its conditions of confinement might harm detainees in ways not 'necessarily intended by the Agency are relevant to any analysis of whether those conditions comport \>iith the DTA. ... - --.•.. --c_:::-:.:.::.::..-'-·..::.:.c:::.:.:.:...::;;c.::.::....:..:=-=:.:...__ .:: 10 --=.::.c:.:;c-"-"_-..:=-c.-·· .. =---=--== .. interest at ~take than courts would demand, and may conduct a more searching examination of the detaining authority's assertions and justifications_ Even without such deference to ~he CIA, the conditions of confinement satisfy the legal standards applicable under the DTA. Finally, we note that in conducting this Fifth Amendment inquiry, the substantive standards of the Eighth Amendment remain relevant. AJthough the Eighth Amendment does not directly apply to the .detainees at issue here because they have not been subject to a formal . adjudication ofguilt. see Wolfish. 441 U.S. at 535 & n.16, coriditions of confinement that wo~ld. with respect to convicted prisoners, constitute "cruel an~ unusual" punispment in violation ofthe Eighth Amendment may very well also constitute "punishment" when imposed on otherwise similarly situated detainees protected by the Fifth Amendment. See City ofRevere v. Mass. Gen. Hosp., 463 U.S. 239. 244{I983) (suggesting, in the context of pretrial detention, that "the due process rights of a person iri [the Government's care] are at least as great as the Eighth Amendment protections available to a convicted prisoner"); Youngberg, 457 U.S. at 321-22 ("Persons who have been involuntarily committed are entitled to more con~iderate treatments and conditions of confinement than criminals whose conditions of confinement are designed to . punish."); Lock v. Jenkins, 641 F.2d 488, 492 n.9 (7th Cir. 1981) ("Although the Eighth Amendment is not applicable to pretrial detainees, Eighth Amendment cases involving conditions of convicted prisoners are useful by analogy because any prohibited' cruel·and unusual punishment' under the Eighth Ame'ndment obviously constitutes punishment which may not be applied to pretrial detainees."). Accordingly, where appropriate in our discussion below. we have considered cases applying the Eighth Amendment to conditions of confinement similar to those used by the CIA.9 ill. A. Applying this due process analysis, we conclude·that the conditions of confinement described above do not amount to punishment. Because we are aware of no evidence "of an expressed intent to punish on the part of detention facility offiCials" involved in the CIA progr~m, the critical question under the DTA is whether the conditions imposed are sufficiently . related to the. CIA's need to secure its d~tentio.n facilities without imposing excessiye or needless hardship on the detainees. Having carefully examined those conditions, as well- as the reasons that the CIA has adopted t~em in lieu of either harsher or more mild alternatives, we conclude , We caution. however, that the Eighth Amendment is an imperfect fit for the legal analysis of the CIA's conditions of confinement. The Eighth Amendment does not apply until there has been a "fonnal adjudication of . guilt." See Bellv. Wolfish, 441 U.S. 520, 535 n.16 (l979);Jngraham v. Wright, 430 U.S. 651, 671 nAO (1977). In proscribing certain criminal punishments, the Eighth Amendment necessarily seeks to balance the Govenunent's· penological interest against an individual's interest in avoiding particular kinds of suffering and hardship. Thus, there may be certain types of treatment that no penological interest could support, and thus that may run afoul of the Eighth Amendment. The conditions at isSue here, however, are characterized by different interests, including the· securing of dangerous terrorists in a manner that does not give infonnation to the enemy in a time of war: Whatever balancing the Fifth and. Eighth Amendments may require in this regard, the outcome of those analyses may not ________._ ._~~~.1s_b_e_~!i~~:. :__.. .__ _.. _.._ .. __.. . . . _ . _._._. _ ------- ._-... _--.-_.--_._-_.-_.--.- -_._-----_._~._ ---~-- 11 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _...J . that those conditions are consistent with the requirements of substantive due process made applicable by the DTA. The primary objective that each of the conditions of confinement seeks to advance is the safe and secure functioning of the CIA's detention facilities. By imposing those conditions, the CIA aims both to protect the officials operating the facilities from harm and to ensure that the detainees are unable to escape or otherwise to defeat the objectives of the detention program. There is, of course, "no dispute that internal security of detention facilities is a legitimate governmental interest." Block, 468 U.S. at ~86. "Once the Government has exercised its 'con~ded authority to detain a person ... , it obviously is entitled to employ devices that are ·caleulated to effectuate this detention." Wolfish, 441 U.S. at 537. In Wolfish, the Court recognized that the "Government must be able to take steps to maintafn security and order at the institution," id. at 540, including "appropriate action to ensure the safety of inmates and corrections personnel and to prevent escape or unauthorized entry," id. at 547: Indeed, "maintaining institutional security and preserving in1(~rnal order and discipline" are not merely legitimate objectives, they are "essential goals." Id at 546~ see also Harris v. Chapman, 97 F.3d 499,504 (lIth Cir. 1996) (observing that prison administrators' ucompeIling interest in security and order within their. prisons'" is particularly acute in facilities that "contain extremely violent . [individuals)"). 'For these reasons, anyone attempting to show that detention facility officials have "exaggerated their response to the genuine security considerations that actuated these restrictions and practices" carries a "heavy burden." ld: at 561-62. We understand that the detainees held by the CIA are extremely dangerous and ose uni ue security concerns. They are individuals whom the CIA has determined either to They include individuals such as KhaHd Shaykh Muhammad ("KSM") and Abu Zubaydah. KSM, "a mastermind" ofthe September 11, 2001, attacks, was regarded as "orie o~a'ida's most dangerous and resourceful operatives." Article 16 Memorandum at 6 (quoting"Khalid Shaykh Muhammad at 1 (Nov. 1,2002) Biography'». KSM admitted that he personally murdered Wall Street Journal reporter Daniel Pearl in·February 2002 and recorded the brutal decapitation on videotape, whiCh he subsequently released for broadcast. See id Prior to KSM's capture, the CIA considered' him to be one of al Qaeda' s "most important operational leaders ... based on his close relationship ~ UsamaBin Lade~ and his reputation among the al~Qa'ida rank and file." Id.at"6-7 (quoting ~ Biography at 1). After the September II attacks, KSM assumed "the role of operations chief for al-Qa'idaaround the world." Id 'at 7 (quoting CIA Directorate of Intelligence, Khalid Shaykh Muhammad: Preeminent Source on Al-Qa'ida 7 (July 13, 2004) ("Preeminent Source"). KSM also planned additional attacks within the United States b.oth before and after September lIth, See Preeminent Source at 7-8; see also The 9/11 Commission Report: Final Report ofthe National Commission on Terrorist Attacks Upon the United States 150 (official gov't ed. 2004} Prior to his capture, Zubaydah was '~one of Usam a Bin Laden's key lieutenants," Article 16 Memorandum at 6 (quotin~Zayn al-AbidinMuhammad' Husayn ABU ZUBAYDAH at 1 (Jan, 7,2002) ("Zubaydah Biography')), "Indeed, Zubaydah was al Qaeda's third or fourth highest ratlkirtg member and had been involved 'in every major . terrorist operation carried out by al Qaeda.'" Id (quoting Mem'orandum for John RizZo, Acting -..cSM =-==-=,;,:·.::..-==::geflera(':'Qn:lr:rs~~ntrat;Intell.rgence=-Agency,:-fr-om-Jay::g:;'::B:y-b~-Bsi:ot.ant:Attem&~G6nend, 12 =:.:--,----- Office ofLegal Counsel, Re; Interrogation ofal Qaeda Operative at 7 (Aug. 1, 2002) ("Interrogation Memorandum")). 10 Upon his capture on March 27, 2002, Zubaydah became the most senior member of al Qaeda in United States custody. Id These detainees have' demonstrated that they are also a threa.t to guards in the facility. Several detainees have physically attacked the guards. Many have stated that they plan to kill their captors. Although the primary purpose ofthe conditions ofconfinement we consider here is to maintain the security of the CIA's detention facilities this observation does not mean th those conditions do not also serve other ur ses. For the reasons set art e ow, owever, we .conclude that the security rationale alone is sufficient to justify each of the conditions ofconfinement in question. Accordingly, these conditions of confinement may be ,!-pplied to detainees who no longer have si nificant intelli ence value but who nonetheless meet the standards for detention under and who continue to present a clear danger to the United States as terrorist enemy combatants in the ongoing armed conflict with al Qaeda and its affiliates. See Part m.D., infra. B. As an initial matter, we consider ~he legality of each of the conditions seriatim. In this· . exercise, we are ~ded by judicial decisions considering the legality of many ofthese di.screte conditions in U.S. domestic prisons. We recognize, however, that the ultimate inquiry is to assess the.legality of subjecting detainees . . to all of the conditions in combination. In addition, as we describe below, the CIA detainees are in constantly illuminated cells, substantially cut off from human contact, and under 24-hour-a-day surveillance. We also recognize that many of the detaiilees have been in the program for several years and thus that we cannot evaluate·these conditions as if they have occurred only for a passing moment. Nevertheless, we must also take into account the nature ofthe detainees whom the CIA is holding. They are not ordina criminal suspects and they undoUbtedly pose extraordina securit risks: equires special conditions . to prevent the escape ofthese dangerous terrorists. I! 10 We discuss t11ese two detainees as examples, but we Wlderstand that the detainees as a group are of a dangerousness that justifies the conditions of confinement at issue, as we discuss below. JI Indeed, as a.recenl coordinated hunger strike among several convicted al Qaeda terrorists held at the maximum security prison at Florence, Colorado, demonStrates, even those terrorists kepI in physical isolation within maximum security facilities can often find ways of comnllUlicating and thereby compromising institutional scx:urity. A~ording to Bureau of Prisons officials, the al Qacda terrorists communicated with each olher by using the pipes in the facility to carry sound Together, the terrorists orchestrated the beginning of their hunger strike and developed a sophisticated method to resist-compul_~ry_~e.ed~~!L ~.!!n.!<I!e'!y',_~~~ to tIli.~ ~Qo.J:~in~~QD..Ut~_al._Qa.~.tmQris.ts_ .-,__= ====== ====--succeeued:i"irwmrm-g1rroiSfertrOiri Mgli secumy aelenfiOrl.ArQaed3Qetamees at Guantanamo Bay, Cuba similarly 13 1. As described above, the purpose of using blindfolds or similar eye..:coverings is "to prevent the detainee fro'm learnin his location or the la out of the detention facilit "Standard Conditions 0 CIA Detention at 1 Itis~ e went eyareaonemt e l r c e l l s _ These limitations'make clear that t e CIA does not use this condition of confinement as a disguised form of "sensory deprivation" aimed at weakening the detaineespsychologicaUy, but instead as a bona fide security measure, one used only when necessary to advance the narrow goal of institutional security. Indeed, the . form of blindfolding used by the CIA appears to be the least restrictive and intrusive means of . obstructing the detainee's vision and thus of reventin detainees from leamin 'their location, the layout of the facilities, Blindfolding detainees on y w en t ey are moved around the facility or when they are in close proximity to security personnel prevents detainees from acquiring information tbat could aUow them to compromise the 'security of the detention facilities. ' III 0 Nor is, the use ofthis condition likely to harm detainees, much less in a way that is excessive iii light ofthe concrete security objectives it furthers. None ofthe n1~thods that the CIA uses to prevent the detainees from seeing poses any likelihood of injury, and the detainees, have no difficulty breathing fi anal sis ihat the CIA uses th y choosing to effectuate its security , goa In ways ca 1 rate to mlmmlzmg t e p YSlca Iscomfort and psychological distress that detainees are likely to suffer, the CIA further demonstrates the. non-punitive nature of this condition of confinement. Accordingly, we conclude that the use ofnon-injurious means of blocking detainees' vision during limited times where allowing them to see could jeopardize institutional security satisfies the standards of the DTA. . 2. Shaving detainees'upon intake is likewise directly related to the 'CIA's need to secure i.ts detention facilities. S,having aqvances this end "by removing hair in which a detai.nee might , hide small items that might be used against his interrogators and other detention personnel." Standard Conditions ofCIA Detention at 1. Because the detention facility is secure and because ,the detainees' access to contraband is so limited once they are detained, safety considerations do not require continuing to shave the detainee. Accordingly, after the initial shave, the detainee is .staged a coordinated riot in recent weeks lhat resulted in significant property damage and injury to some of the gua;rds dispatched to put the uprising down. Through communication and plcinning among detainees, more than 75 al Qaeda detainees staged a co~rdinated hWlger strike, again attempting to Wldermine the conditionS of their confinement. In facilities considerably less structurally secure than the Florence "Supermax" facility, other means of ensuring that detainees are unable to communicate with one another (such as the use of white noise and full-time surveillance) thus become particularly important These events highlight the overriding need for maintaining tight security-incI~ding rigorous controls o~ detainee communications-at facilities h~_us~ng terrorist detaine::._ ' .. __ _.......-. ,..... , ,:,:,,-,=,:,,,,,"==-,-,=c_c=-·~-_·"=-,-,-,,-,.,--,-,-o·,,-·==-="_.,,,,,,,..~~-,.-~,~· 14 ===~~~~~ "allowed to grow his beard and head h~tever length he desires," consistent with the . CIA's safety imperatives. January 25_Letter at 2. The CIA has even gone so far as to provide detainees, after their initial shavmg upon intake, the option of shaving and receiving haircuts "as requested by the detainee," including the option of shaving other parts oftheir bodies, in recognition of s~ecifi~ Islamic practices. Id The case Jaw provides substantial support for the conclusion that the CIA's shaving policy is consistent with the substantive standardofthe Fifth Amendment. Most imp9rtantly, the courts ofappeals have consistently rejected prisoners' Fifth and Fourteenth Amendment challenges to shaving policies in domestic prisons and jails. See Ralls v; Wolfe, 448 F.2d 778, 779 (8th Cir. 1971) (per curiam) ("This Court has held that an incarcerated prisoner does not have a constitutional right to the length, style and growth ofhis hair and growing a beard and moustache to suit his personal desires."); Blake v. Pryse, 444 F.2d 218, 219 (8th Cir. 1971) (holding that prison regulation requiring inmate "to shave and cut his hair" "does not deprive him of any federal civil or constitutional right"); Brooks v. Wainwright, 428 F.2d 652, 653 (5th' CiT. 1970) (per 'curiam) (affirming dismissal as frivolous of prisoner's Fourteenth Amend ment due process challenge to prison rule requiring that he "shave twieea week and receive periodic haircuts"); id at 653-544 (disposing of prisoner's due proCess challenge because the shaving regulation was neit~er unreasonable nor arbitrary). Although these cases involve individuals convicted of crimes, rather than individuals detain~ for intelligence value (or held pretrial in criminal cases), they nonetheless provide substantial support for the view that the CIA's shaving policy does not violate the DTA. The courts ofappeals also have upheld shaving policies against Eighth Amendment cha11enges brought by convicted prisoners. See Martin v. Sargent, 780 F.2d ]334, 1339 (8th Cir. 1985) (concluding that "reasonable regulation of a: prisoner's hair length" satisfies the Eighth Amendment "when necessary for security reasons")~ Blake, 444 F.2d at 219 (holding that prison ·regulation requiring inmate "to shave and cut his hair" does nof. cOnstitute "cruel and unusual punishment"). Althoug~ these cases, like the Fifth Amendment cases discussed above; concern convicted prisoners, not individuals detained for intelJigence value, they are nonetheless informative in that the Fifth Amendment standard applicable to pretrial detainees is to some extent informed by the Eighth Amendment standard, as explained above. These cases, too, support the view that the CIA's shaving policy is consistent with the DTA I2 12 Indeed, some courts have even upheld prisons' shaving policies under the Religious Freedom Restoration Act ("RFRA"), which.imposes a standard of review far more demanding than·the "reasonably relaled 10, a legitimate govenunentaJ objective" standard that applies here. In Harris v. Chapman, for example, the court of appeals held that shaving prisoners was the least restrictive means of furthering a compelling govenunental . interest~a hurdle even higher than the one that the Fifth Amendment imposes in this context. ld at 504. Indeed, in the court's view. shavirig was the only means of advancing the stale's interest in "the identification of escapees and the preventing ofsecreting of contraband or weapons" in prisoner's "hair or beards," id, and thus advanced the "compelling interest in security and order" in the prison, id. at 504. See also Hamilton v. Schriro, 74 F.3d 1545 (8th CiT. 1996) (rejecting similar RFRA claim). But see Warsoldier v. Woodford, 418 F.3d 989 (9th CiT. 2(05) (finding . that minimum security prison's hair policy failed the least restrictive means test of the Religious Land Use and . Institutionalized Persons Act). 15 Finally, the courts have consistently credited·testimony advancing the same·security justification for shaving that the CIA advances here. The courts: for example, have credited prison officials' testimony that "long hair poses a threat to prison safety and security" and that "inmates could conceal contraband, including dangerous materials, in t~eir long hair." Hamilton v. Schriro, 74 F.3d 1545, 1548 (8th Cif. 1996); see also, e.g., Martinelli v. Dugger, 817 F.2d 1499, 1506 n.23 (lIth Cir. 1987) (noting that "[e]vidence before the magistrate indicated that in prisons without shaving and hair length regulations, inmates had bee~ caught with contraband or . weapons hidden in their long hair"); Pollock v. Motshall, 845 F.2d 656, 658 (6th Cir. 1988) (finding that prison superintendent stated "legitimate" interests, that were "reasonably related to the regulation limiting the length of prisoners' hair," including preventing inmates from . "hid[ing] contraband ... in h~s hair"); Dreibelbis v. Marks, 742 F.2d 792, 795 (3dCir. 1984) (crediting testimony of Pennsylvania Commissioner of Corrections that "[a] restriction on long hair and beards prevents concealment of contraband, such as weapons ... , on the. person, thus' increasing the security ofthe institution and limiting the potential for dangerous situations therein")..Courts also have accepted the conclusion that, "without the hair length regulation, . prison staffwould be required to perform mor~ frequent searches of inmates, which could cause conflicts between staffand inmates." Id Indeed, the Eight,h Circuit has characterized the government interest in regulating the hair length of particularly dangeI:ous prisoners as "compelling": "It is more than merely 'eminently reasonable' for a maximum security prison to prohibit inmates from having long hair in which they could conceal contraband and weapons. It is compelling.... These are'valid .and weighty concerns." Hamilton, 74 FJd at 1555. If the Government's interest in regulating detainees' hair length is "compelling" in a high-security domestic prison or jail, id, then we think it is at the very l.east "legitimate" in an overseas CIA covert detention facility housing extremely dangerous detainees who either pose serious threats to the United States or were planning'terrorist attacks at the time oftheir capture. for these reasons, we conclude that the CIA's shaving policy comports with the .requirements of the DT A: . .s intended to ensure _.-- ....- ~"'"= Although this condition presents a closer question than the previous conditions we have examined, the solitary confinement of high-value detainees is.sufficiently related to the CIA's interest in institutional security to satisfy the DTA. First, preventing detainees from interacting with one another or with the outside world is directly related to the security of the CIA facilities. Isolation prevents conspiracy, making it considerably more difficult for detainees to coordinate escapes'or attacks. In addition, the CIA uses solitary confinement nartowly in service of its security objectives. In this r~ard, it is important to emphasize that the isolation at issue here is not designed as or akin to "sensory deprivation"; it does not im ose u on detainees a com lete eel sian from human contact. Aithou h detainee the CIA has taken -=rneasufeH-creounteffiGHirtyfletent-ia1ly-otlver-se'effests=ef#m.itoo=chuma-n=-itMfaGtiGfF.-::J±oFf=====--:::=== 16 .... __ ... _ . _ - - - - - - - - - - - - - - - - - - - - - - - - - demonstrate that the CIA is attempting to calibrate its use of isolation so that It treet y avances the interest in security without imposing unnecessary hardship on the detainees. The CIA further . strikes that balance by affording detainees re_~to gym equipment and physical exercise, and by providing each detainee wit~psychological examination to assess . how well he is adapting to his confinement. Id. The CIA also counteracts the psychological . effects of isolation by providing detainees with "a wide variety of books, puzzles, paper and 'safe' writing utensils, c~hecker sets, a personal journal, and access to DVD and VCR videotapes." January 25_Letter at 3. . Nevertheless, we,recognize that the isolation experienced by the CIA detainees may' impose a psychological toll. In some cases, solitary confinement may continue for years and may alter the detainee's ability to interact with others. This is not an area, however, where we 'are without judicial guidance, as the U. S. courts have repeatedly considered the constitutionality of isolation used as a condition ofconfinement in domestic prisons. These cases support the conclusion that isolation, even under conditions similar to those considered here, does not violate the requirements of substantive due process. F~r example, the Fifth Circuit has held that the solitary confinement of a pretrial detainee is, under 'c::ertain circumstances, consistent with the . Fifth Amendment. 'McMahon v. Beard, ~83 F.2d 112, 173, 175 (5th Cir. 1978). In that case, the government confined the detainee ,stripped ofall of his clothing, and without mattress, sheets, or blankets. Id Although these conditions were imposed for the detainee's self-protection-he , had attempted suicide-the case makes clear that there is no per se bar under the Fifth Amendment to isolating even a pn;trial detainee. Id at 174~75; see also Hutto v. Finney, 437 . U.S. 678, 686 (1978) (observing that it is "perfectly obvious that every decision to remove a particular inma,te from the general prison population for an indeterminate period could not be characterized as cruel and unusual").l3 , a The' courts ofappeals have often rejected Eighth Amendment challenges to the use of solitary confinement. The Fourth Circuit considered convicted prisoners' Eighth Amendment claims based on their allegations that they were "confined to their cells for twenty-three hours. per day without radio or television." In Re Long Term Administrative Segregation ofInmates Designated as Five Percenters, 174 F.3d 464, 471 (4th Cir. 1999). The court, n,oting that "[t]hese conditions are indeed restrictive," explained that "the restrictive nature of high-security .incarceration does not alone constitute cruel and unusual punishment." Id The court held that l3 In a recent decisi~n, the Supreme Court suggested, albeit in dicta, that "extreme isolation" in which inmates were confined for 23 hours per day deprived of almost any environmental or sensory stimuli and of almost all hwnan contact "may well be necessary and appropriate in light of the danger that high-risk irimates pose both to prison officials and to other prisoners." Wilkinson v. Austin, 125 S. a. 2384, 2395 (2005). 17 "the isolation inherent in administrative segregation or maximum custody is not itself constitutionalJyobjectionable." ld at 472~ see also, e.g., Novack v. Beto, 453 F.2d 661, 665 (5th Cir. 1972) (noting the "long line of cases, to which we have found no exception, holding that solitary confinement perse is not 'cruel and unusual"'). Likewise, in Jackson v. Meachum, 699 F.2d 578 (I st CiT. 1983), the court held that "very extended, indefinite segregated confinement in a facility that provides satisfactory shelter, clothing, food, exercise, sanitation, lighting, heat, bedding, medical and psychiatric attention, and personal safety, but virtually no communication or association with fellow inmates" does not violate the Eighth Amenqment, even where it "results in some degree of depression." ld at 581. That court, surveying a decade of federal appellate decisions, noted a "widely shared disinclination·to declare even very lengthy periods of segregated confinement beyond the pale of minimally civilized conduct on the part ofprison authorities." Id at 583. More specifically, "[t]hose courts which have had occasion also to deal with claims of psychological deterioration caused by confinement have rejected these claims." Id. The courts have also rejected claims based on allegedly harmful incidents of isolation, such as idleness and lack of human interaction. The courts have held that "isolation from companionship" and "restriction·on intellectual stimulation and prolonged inactivity" are simply "inescapable accompaniments of segregated confinement" that will not render such confinement· unconstitutional "absent other illegitimate deprivations." ·Sweet v. South Carolina Dep't ef Corrections, 529 F.2d 854, 861 (4th Cir. 1975). . ' . . Moreover, the courts have not accepted the claim that isolation becomes unconstitutional as a sole result of its ·duration. Indeed, the Fourth Circuit rejected inmates' constitutional . challenge to over three years ofsolitary confinement, despite the lack of any expectation of release, concluding that "the indefinite duration of~he inmates' segregation does not render it unconstitutional." "In Re Long Term Administrative Segregation, ·174 F.3d at 472. The court . noted that "[t]he duration ofConfinement in some of these cases has been long, but length of tim·e is 'simply one consideration among many' i!l the Eighth Amendment inquiry." Id (quoting Hutto v. Finney, 437 u.s. 678,·687 (1978). Likewise, in Sweet, the court held that the· "prolonged and indefinite" nature ofsegregated confinement is insufficient to render it unconstitutional, though it is a relevant factor.. 529 F.2d at 861. Indeed, the court noted that in the federal prison system, "segregated confinement is 'indefinite.''' Id In the rare cases in which courts have found isolation unconstitutional, it was not the isolation alone that drove the analysis, .but instead the use of isolation in combination with factors that left prisoners living in appalling, and indeed d·angerous, conditions. For example, the Ninth Circuit found an Eighth Amendment violation where a prisoner was sent to solitary confinement in a six foot by six foot, windowless, unclean cell, known as the "dark hole," with no lights, toilet, srnl<, or other fumishihgs, and where the prisoner was naked, and provided no hygienic material, bedding, adequate food, adequate heat, or opportunity to clean himself, for longer than twenty-four hours continuously. Gates v. Collier, 501 F.2d 1291, 1304-05 (9th Cir. 1974). Likewise, the Fifth Circuit held unconstitutional the use of punitive isolation in which as many as seven prisoners were placed in a six foot by eight foot cell, with no bunks, toilets, or other facilities, with human excrement on the floor, and without the ability to lie down simultaneously. McCray v. Sullivan, 509 F.2d 1332, 1336 (5th Cir. 1975). Although these cases leave no doubt that isolation may be a factor in determining th~t a set of prison conditions =--==,",,"·:--··_·crosses4heo:constit~ti()naUine,:.:th~use:..of~solati()n-bY4he::€Ikis-not':3GGOmpanied--b.)!'--the-'Spe€ia!======= 18 circumstances present where constitutionaLviolations have been found. In particular, the isolation that we consider is nOlused in conjunction with those severe conditions-such as inadequate food, inadequate heat, and filth-that some courts have found cruel and,unusual. We emphasize as important to our analysis that the detainees in the CIA program are held in clean, sanitary facilities at all times during their detention. Those facilities are kept at appropriate temperatures, and are adequately furnished and maintained. These accompanying !A)nditions ' , highlight that isolation here is not being used in order to punish detainees, or make them suffer , needlessly, but instead to prevent coordination and conspiracy that may compromise the security ofthe facilities and the CIA persOIUlel who work there, Finally, recognizing that the solitary confinement con'sidered 'in much ofthe case law involves high-security prison settings and dangerous, high-risk inmates, we think it relevant that the CIA's security concerns appear at least similarly weighty. The CIA's overseas, c~vert facilities house extremely dangerous detainees who, as previously explained, the CIA has detei-mined either pose serious threats to the United States or were planning terrorist attacks at the time of their capture. Certainly, there are soine differences-<ietainees sentenced to terms of imprisonment at least have some certainty about the duration of their overall confinement, while the C1A detainees do not know how long they will be detained. This uncertaInty may impose an increased psychological toll. Although these post-conviction cases are not squarely applicable, they support the conclusion that the use of solitary confinement in the CINs facilities is consistent with the substantive standard ofthe Fifth Amendment, and thus with the standard of theDTA. ' s white noise in the walkwa s ofthe detention Both the volume ofthis liolse and the ocatlOns m which it is used have been carefully calibrate~ so as to block ' communications among detainees without posing any' risk ofharming them. Indeed, because the noise is not piped into the detainees' cells, detainees experience the sound (at any significant volume) only during the limited periods in which they are being moved around th~ facility. Even . in the walkways, the noise is at all times kept below 79 dB-a volume that, according to CIA's Office of Medical Services, creates no risk of permanent hearing loss, even if exposure is ' continuous for 24 hours a day_ See Standard Conditions ojCIA Detention'at 2. Recent measurements taken by'th~ CIA indicate that the noise level in detainees' cells is in the range of 56-58 dB, compared with a range of 68-72 dB in the walkways, a significant difference. 'May 24 _Letter, Indeed, normal conversation typicaJly registers at approximately 60 dB. In addition, we understand that the CIA has observed the noise to have no effect on the detainees' ability to sleep. This suggests that detainees have adjusted 'to any noise that may filter into their cells and learned to disregard it. We have little doubt that this limited use ofwhite noise is . consistent with the requirements ofthe DTA. ' , , .=r. ,. •• ,. •• • It . I' C • ':" I•• ' 19 t • • 1 h •••• tI U, r: I.' II Unlike some of the other conditions of confinement, we are aware of no direct an'alogue ,in U.S. prisons and jails to the white noise that the CIA employs. This fact is not ~.lfprising, as such domestic facilities have neither a mission comparable to the CIA's nor face similar constraints, and therefore do not have an interest in masking sound and preventing detainee communication that approaches the CJA's. 'In contrast to the detention facilities at issue, u.s. prisons and jails generally do not, for instance, have a legitimate interest in denying inmates an ability to determine their location or the identity offellow prisoners. There are, hQwever, cases in which U.S, courts have considered prisoner complaints about noise levels. These cases clearly estabiish that noise that merely irritates is not unconstitutionaL In Peterkin v. Jeffes, 855 F.2d 1021 (3d Cir. 1988), for example, the court concluded that prisoners on death row did not state an Eighth Amendment violation where the noise in the cells was merely "irritating to some, prisoners," ld at 1027. In that case, the district court noted testimony describing the noise on one hand as a "constant din" (quoting plaintiffs' expert), and on the other hand as "cycJicaJ." Peterkin v. Jeffes, 661 F. Supp. 895,909 (RD. Pa. 1987). Likewise, the Seventh Circuit held. that prison~rs failed to state an Eighth Amendment violation where the record contained "no evidence that the noise levels posed a serious risk of injury to the plaintiffs." Lunsford v. Bennett, 17 F.3d 1574, 1580 (7th CiT. 1994)., Thus, at least to state a claim ofcmel and unusual punishment under the Eight Amendment, rather than merely of punishment alone under the Fifth Amendment, noise must be more than merely annoying or unpleasant. Moreover, it has been held that noise, ,even if severe enough to cause headaches, does not give rise to an Eighth Amendment violation where it is used for a legitimate purpose. See, e.g., Givens v. Jones, 900 F.2d 1229, 1234 (8th CiT. 1990) (concluding that noise, which the prisoner alleged caused him migraine headaches, did not constitute cruel and unusual punishment where it was an incident of , needed prison remodeling). We are aware that some cotlrts have concluded that a prisoner's allegation of "continuous, excessive noise states a claim under the due process clause," an.d also under the Eighth'Amendment. Sandersv.Sheahan, 198 F.3d 626, 628 (7th Cir. 1999) (holding that "excessive noise" is a deprivation serious enough to meet the objective component of the Eighth Amendment); see also, e.g., Keenan v. Hall, 83 F.3d 1083, 1090 (9th Cir. 1996) (aIIegations that "at all times of day and night inmates were 'scJ:'eaming, wailing, crying, singing and yelling,' often in groups, and that there was a 'constant, loud banging,'" were sufficient to avoid summary , judgment); Antonelli, 81 F.3d at 1433 (holding that allegation of noise that "occurred every night, often all night, interrupting or preventing [a detainee's or prisoner's] sleep" stated a claim under the Fifth or Eighth Amendment). As experienced by detainees who spend the vast majority of their time confined in their cells, however, the white noise used by the CIA in the walkways of its detention facilities is not remotely comparable with the noise at issue in these' cases. In addition, none of these decisions addressed noise that was employed by prison' administrators in direct furtherance of manifestly important security objectives. There is' nothing in the case law or in common sense to suggest that the limited use of noise loud enough to block . communic~tions among extremely dangerous individuals under conditions analogous tothose at the CIA detention sites, but not louder than an ordinary conversation, and certainly not loud enough to cause harm or interfere with sleep, amOl-!nts to the kind 'of "punishment" proscribed by the Fifth or Eighth Amendments. In sum, the white noise at issue here is carefully tailored to advance the CIA's interest in institutional security while minimizing the discomfort of the ~._. ~~'"r'JdetahT~"'tlnrs-reamt\T,S"ati"Sfle-~b-e=-~·'-~·c::':,-,--,,~ ....'-'-'~~":"~=-""'_." ============= J . . J 20 The light, however, is not unusually bright.. Id We understand that detainees are provided eyeshades or blankets. which they may use to block out light by covering their eyes while sleeping. Cj Chavarria v. Stacks, No. 03-40977, 102 Fed. Appx·. 433.437 (5th Cir. 2004) (unpublished) (Reavley, 1.. specially concurring) (noting that judicial attention to prisoner's Constant illumination complaint is (Cmuch ado about nothing» because "[a] little cloth over his eyes would solve the problem"). In addition, we understand• . and think it significant, that the CIA has observed no adverse effects on any detainee's sleep as a result of the constant illumination, suggesting that the burden imposed by this condition of. confinement is relatively minimal. Also relevant to our analysis are the holdings of several courts that constant light, even for pretrial detainees, does not violate the Fifth Amendment. at least where that illumination is .·.reasonably related to the government's legitimate objective of maintaining institutional security. The Eighth Circuit in 0 'Donnell v. Thomas, 826 F.2d 788 (8th Cir. 1987). for example, held that a pretnal detainee, held for over half a year in a cell with "continuous lighting" and who alleged he could not sleep, failed to establish a constitutional violation because the lighting was "not unreasonable given the need for jail security and the need to monitor [the detainee]," who had tried to.kill himself. Id at 790, See also Chavarria, 102 Fed. Appx. at 436 (holding that. a "policyofconstant illumination" is "reasonably related" to the legitimate· interest of"guard security")~ Shannon v. Graves, No. 98-3395.2000 WL 206315, at *.13 (D. Kan. Jan. 5,2000) (unpublished) (stating that facility "officials need lights to observe inmate activity in cells, to 'maintain safety and security" and that U[s]uch concerns are a legitimate interest"); Fillmore v. Ordonez. 829 F. Supp. 1544, 1568 (D. Kan. 1993) (holding "as a matter of law that the eleCtronic surveillance system, with its armmd-the-clockbeeping and 50ft lighting, was reasonably related to the maintenance of internal security of the [pretrial detention facility], and as such did not amount to punishment prohibited by the Due Process Clause"). Similarly, in Ferguson v. Cape Girardeau County, 88 F.3d 647 (8th ~ir. 1996), the Eighth Circuit held·that pretrial detentiofl "under bright lights, which were on twenty-four hours a day," was reasonably related to a legitimate government interest of"keep[ing] the oetainee under observati<;m for both his medical condition as well as general safety concerns," and thus did not violate the detainee's Fifth .Amendment rights, id at 650. Although, ~n that case, the detainee ~as confined under bright lights for a relatively short duration, the court ofappea1s, which applied a "totality ofthe circumstances" analysis, did not suggest that the limited duration was a precondition to fmding . constant light to be constitutional. Id at 650. 15 . We recognize that detention with constant illumination has been held unconstitutional u·nder certain circumstances. For example, in Keenan v. Hall, 83 F.3 d 1083 (9th Cir. .1996). the Ninth Circuit held that "[t]here is no legitimate penological justification fc;>r requiring [inmates] IS In dicta, the Supreme Court ·recently suggested that constant light in cells holding high-risk detainees "may well be necessary and appropriate in light ofthe danger that high-risk irunates pose both to prison officials and to other prisoners." Wilkinson v. Austin, 125 S. Ct. 2384, 2395 (2005). This suggestion applied even where "an inmate who attempts to shield the light 10 sleep [was] subject to further discipline." Or'" _"'='ld. at 2389. .$,,~~~--':-":~.~_.V"."~====- 21 "':""=""~'::'..I-"' -- _ .. ~~~ _ to suffer physical and psychological harm by living in constant illumination. This practice is unconstitutional." Id at 1090 (alternations' in original) (quoting LeMaire v. Maass, 745 F. Supp. 623,636 (D. Or. 1990), vacated on pther grounds, 12 F.3d 1444, 1458-59 (9th Cir. 1993». The court conclud~ that summary judgment against a convicted prisoner was inappropriate where the prisoner alleged that his cell's constant illumination caused him '''grave sleeping problems' and other mental and psychological problems." Id at 1091 (quoting plaintiff's amended complaint and motion). Likewise, the district court opinion 'concluded that although constant illumination is a legitimate security measure "[i]n the abstract," it was unconstitutional where there was "no evidence" that facility staff needed to, or even attempted to, monitor the cells 24 hours a day: LeivJaire, 745 F: Supp. a1636. "Likewise, in Shepherd v. Au/t, 982 F. Supp. 643, 648 (N.D. Iowa 1997), the court found that the plaintiff stated an Eighth Amendment 'claim where, he ~lIeged that constant illumination of his cell-prevented him from sleeping, and where there were triable issues regarding the facility's need or desire to monitor his cells 24 hours a day. That case also suggested that "different inferences arise concerning the effects ofconstant illumination when exposure t? that condition is long term." Jd. _ . The unique circumstances of the CIA's detention facilities constitute grounds to distinguish these cases. As noted above, however, the circumstances ofthe CIA's program' demonstrate'a special need for 24-hour monitoring. See id at 64S (noting that "[t]he reason for ... mixed results on 'constant -illumination' claims ... is that such cases are fact-driven")' The CIA's interest in observing the detainees at all times is acute. Because the CIA detains only ,extremely dangerous individuals whom it has determined to pose serious threats to the United States or to be planning terrorist attacks, 'see supra p. 12, its interest in being able to observe its detainees at all tiines is considerably greater, in most circumstances, than the need to keep a . pretrial detainee under constant ~urveillance in a U.S. prison orjail. The uniquely vulnerable nature ofthe CIA's detention facilities further hei htens the need for s ecial means of securing those facilities from within. As described 'above, the CIA must house extremely dangerous terrorist significant tnurung 10 the making and use of improvised weapons. detainees~ who often have These unique characteristics ofthe CiA detention facilities make the use ofunusual security conditions like constant illumination defensible in a way that such a condition might not be in a more traditional facility. By keeping the facilities under constant illumination and closedcircuit surveillance, the CIA is attempting to do with technology what other detention facilities do with architecture or manpower. Accordingly, our analysis of the use of illumination is limited to the CIA's covert detention facilities and wquld not necessarily carry over to more permanent ,priso~s where alternative ways of keeping watch over detainees might be possible. Indeed, we find it relevant that the CIA has 'considered, only to reject as im racticable or inade uate alternative methods ofkee iog detainees under surveillanCe, 22 constant illumination fuither illustrates the nexus between the CIA's security needsand the' condition it has imposed. We therefore conclude that the use ofconstant ilhimination, under these special circumstances, .satisfies the substantive Fifth Amendment standard relevant here: and thus is consistent with the DTA. 6. The CIA's purpose in shackling detainees is to enhance security "in all.aspects of detainee management and movement." Standard Conditions a/CIA Detention at 3. The use of shackles is calibrated to advance this purpose: the number of hours per day that a detainee is shackled is directly linked to the security threat that the detainee has been shown to pose to detention facility staff. Id We understand, and think it highly significant, that detainees are not shackled while in their cells unless they. are a demonstrated threat to themselves or to facility personnel while in their cells. Thus, although detainees whose demonstrated history of misconduct has shown them to pose a serious threat, or who otherwise are reasonably believed to.' be exceptionally dangerous, might wear shackles at all times, others might he shackled only . when CIA personnel are in the room with them, such as during an interrogation session. Id You recently informed us that, at present, no detainee is shackled 24 hours per day. . Also significant to our analysis is our understanding that detainees, while shackled, are able to walk comfortably' and that the shackles are fitted "in such a manner as to not restrict the flow of blood or cause any bodily i~jury." Standard Conditions o/CIA Detention at 3. This fact helps confirm that such shackling is in fact related to the CIA's in~erest in security and.that.it does not cross the line into impermissible punishment. Indeed, our conclusion might well 'be . . different were detainees routinely shackled without any individualized d~termination about the security risks they pose or in such a way as to cause them physical pain or suffering. Cf Williams v. B~rton, 943 F.2d 1572, 1574-75 (lIth Cir. 1991) (per curiam) (keeping a prisoner in four-point restraints~ even for more than twenty~four hours at a time, does not violate the Eighth Amendment where no actual injury is inflicted); But'to shackle a demonstrably violent or escape-minded detainee while he is in close proximity to CIA personnel, where the shackles are merely a restraint and not a source ofinjury, undoubtedly has a direct connection to the CIA's' interest in protecting its facilities and its employees. Used in that careful way, shackling is not intended as punishment.and cannot be said -to be so excessive in relation to the legitimate objective it advances that it ~an only be understood as punishment. Shackling, moreover, is a condition of confinement that is addressed in the case law. .Courts have often rejected constitutional claims alleging impermissible shackling. For example, in Keenan v. Hall, 83 F.3d 1083 (9th Cir. 1996), a prisoner asserted an Eighth Amendment claim based on his allegation that "every time [prison] guards moved him from his cell, they placed him in restraints that caused pain and cuts." Id at 1092. The court of appeals, however, rejected that claim, concluding that, "for the protection of staff and other inmates, prison authorities may place a dangerous inmate in shackles and handcuffs when they move him from his cell." Id Likewise, in LeMaire v. Maass, 12 FJd 1444, 1457 (9th Cir. 1993), the court of appeals rejected an Eighth Amendment claim brought by prisoners who were put in handcuffs and shackles when removed from their cells to shower, stating that the claim was "manifestly without merit" In =:"-===:L:eiriaif~aS1Iere~ne:=ptifj5ose:of-{ne---shatldlng=wa-~-o:pf6{ecl""stafI-and'n:mates~fd=fffat=cOl.imnF-=-=-·~ 23 ==== also upheld the use of in-cell restraints, concluding that, where used to control behavior of dangerous prisoners and maintain security, the use of such restraints does not violate the Eighth Amendment. Id at 1460. Finally, in Bruscino v. Carlson, 854 F.2d 162 (7th Cir. 1988), the court of appeals found that a maximum security prison's policy of handcuffing an inmate and shackling his legs whenever he is outside his cell was a «reasonable measure in view of the history of violence at the prison and the incorrigible, undeterrable character of the inmates." /d at 166. We therefore conclude that the CIA's use of shackling, as you have described it to us, is sufficiently rerated to the CIA's objective of institutional security, and sufficiently uniikely to cause needless hardship for detainees, that it does not constitute the kind of "cruel, inhuman, or degrading treatment or punishment" prohibited by the DTA. c. Thus.far, we have analyzed the CIA's conditions of confinement individually. Courts, however, at least when evaluating an Eighth Amendment conditions-of-confinement claim, tend to take a totality-of-the-circumstances approach. As the Supreme Court has stated, "[s]ome co·nditions of confinement may establish an Eighth Amendment violation 'in combination' when each would not do so alone." Wi/son v. Seiter, 501 U. S. 294, 304 (i 991); see also Palmer v. Johnson, 193 F.3d 346, 353 (5th Cif. 1999) (stating that "we must consider the totality of the . spec.ific circumstances that constituted the conditions of [the prisoner's] confinement, ·with particular regard for the manner in which some of those conditions had a mutually reinfore.jng effect"); B71Iscino v. Carlson, 854 F.2d 162, 166 (7th Cir. 1988) ("The whole is sometimes greater than the sum of its parts: the cumulativ~ effect of the indignities, deprivations, and constraints to which inmates are subjected determines whether they are receiving cruel and unusual punishment."). This totality-of-the-circumstances approach has its limits, however. Conditions of confinement. may give rise to a constitutional violation together, where they would not do so alone, "only when they have a mutually enfore.ing effect." Wilson, SOl u.s. at 305; see also. Palmer, 193 F.3d at 353 (considering the manner in which certain conditions had a "mutually reinforcing effect"); Bruscino, 854 F.2d at 166 (analyzing conditions' "cumulative effect"). The Supreme Court has explained that [t]o say that some prison cJ>nditions may interact in this fashion is a far cry from saying that all prison conditions are a seamless web for Eighth Amendment purposes. Nothing so amorphous as "overall conditions" can rise to the level of .cruel and unusual punishment when no specific deprivation of a single human need exists. We have examined the conditions of confinement employed by the CIA in its covert detention program and see nothing to suggest that they might produce such an effect. In particular, it does not appear that any ofthe conditions render the detainees unusually susceptible to harm from any of the other conditions. To the contrary, the evidence that we have considered =--==--==-i1eiiltffistrates:=thar-:tlre=€Ikhlls-goi'fe'lO""gr:ear-te'ngth-s-.:.ttTe"OID1teflIeHh-e-:putentiaHuAffiy=ml:JtuaJly===== 24 reinforcing harmful effects of the conditions of detention, including by giving each detainee a quarterly p~ychological examination to assess how well he is adapting to his confinement. Id In this way, .the CIA has instituted procedures to ensure that any unforeseen, mutually reinforcing harmful effects of the conditions of confinement would be prought to the attention of facility personnel and addressed in an appropriate manner. Nevertheless, we· approach this question with no illusions about the cumulative strain that these conditions may impose on detainees. The detainee is isolated from most human contact; .... , confined to his cell for much of each day, under constant surveillance, and is never permitted a moment to rest in the darkness and privacy that most people seek during sleep. These conditions are unrelenting and, in some cases, have been in place for several years. That these conditions, . taken together and extended over an indefinite period, may exact a significant psychological toll illustrates the importance ofthe·medical monitoring conducted by the CIA. But CIA's periodic monitoring is not, on its own, sufficient to ensure the non-punitive nature of the combined conditions. Instead, our determination that these conditions are permissible, even when used in combination, rests ultimately on two critical points: (1) the detaipees in question are . exceptionally dangerous terrorists who pose a serious and continuing threat to the United States . ~ension, the CIA p~rsonnel effectuating their detention; (2_ _ _nature ofthe CIA facilities does not permit the use of oth'e~ means of detecting and preventing threats against the security ofthe facilities. These points highlight that the CIA's secu'rity concerns are not exaggerat.ed and, indeed, that in many ways they exceed even those that exist in maximum security domestic prisons. Moreover, the CIA has attempted to calibrate its conditions of confinement so that they not only directly advance its security interests, but so that they do so in ways that avoid causing the detainees excessive or unnecessary hardship. We expect that the CIA will continue to engage in this calibration and wilJ be prepared to modify conditions of confinement (whether for individual detainees or. col1ectively) if experience or new circumstances suggest that some of the conditions discussed a.bove are no longer needed to secure a particular facility or are in fact causing the detainees unjustifiable harm. On the basis of current circumstances, however, we conclude that these conditions, considered both individually and collectively, are consistent with the D!A. 16 16 On May 18,2006, the Conunittee Against Torture-,-a body established by Article 17 of the Convention Against Torture ("CAT')-issued a series of recommendations pursuant to the Second Periodic Report of the United States to the Committee. In those reconunendations, the Committee stated without elaboration or argument that the ·detention of any person "in any secret detention facility under its de facto effective control .. '. constitutes, per se, a violation of the Convention." As the Department of State bas explained, the Committee's sununaJy conclusion on this issue is neither authoritative nor correct. As an initial maUer, the Committee's mandate under Article 18 is merely to make "suggestions," not to serve as an authoritative interpreter ,of the Convention as a matter of intemationallaw. Moreover, in arguing that inconununicado detention is W1Iawful, the Committee did not indicate what provisions of the CAT such detention 'Would violate. That omission is not swprising, as the CAT says nothing whatsoever about affording detainees the ability to communicate outside of the facility in which they are being detained. See Statement of John Bellinger ill to U.N. Committee Against Torture at 23 (Jvfay 8, 2006). 25 ... IV. For these reasons, and subject to all the limitations described above, we conclude that the conditions of confinement that are the subject of your inquiry do not constitute "cruel, inhuman, or degrading treatment or punishment" forbidden by the DrA. . Please let us know if we may be of further assistance. Steven G. Bradbury Acting Assistant Attorney General _.~._-_._--------------- 26