Aclu v Dod Olc Combined Torture Documents 2004 Parta
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ACLU 2004 Remand Documents • • • OLC Releases 1. 13 July 2002 Letter from ,John Yoo to John Rizzo [OLC Vaughn Index #1] 2. 24 July 2002 fax between CIA and OLC regarding psychological assessment of Abu Zubaydah [OLC Vaughn Index #4] 3. 28 January 2003 Guidelines on confinement signed by DCI George Tenet [OLC Vaughn Index #11] 4. 28 January 2003 Guidelines on interrogations signed by DCI George Tenet [OLe Vaughn Index #12] 5. 28 April 2003 Draft list of bullet points discussing legal principles applicable to the CIA interrogation program [OLC Vaughn Index #17] 6. 16 June 2003 Draft list of bullet points discussing legal principles applicable to the CIA interrogation program w/attachment [OLC Vaughn Index #19] 7. 02 March 2004 Draft letter from CIA to OLC w/attached bullet points discussing legal principles applicable to the CIA interrogation program [OLC Vaughn Index #22] • 8. 25 May 2004 Letter from OLC to CIA discussing CIA OIG 2004 Special Review [OLC Vaughn Index #26] 9. 27 May 2004 Letter from OLC to CIA discussing CIA OIG 2004 Special Review [OLC Vaughn Index #28] 10. 10 June 2004 Letter from OLC to CIA discussing CIA's request for reaffirmation of a previous OLC document [OLC Vaughn Index #29] 11. 10 June 2004 Letter from OLC to CIA discussing CIA's request for reaffi~ation of a previous OLe document [OLe Vaughn Index #30] • 12. 18 June 2004 Letter from OLC to CIA discussing CIA OIG 2004 Special Review [OLC Vaughn Index #36] 13. 22 June 2004 Letter from CIA to OLC discussing CIA OIG 2004 Special Review [OLC Vaughn Index #38] 14. 02 July 2004 Letter from CIA OIG to OLC discussing CIA OIG 2004 Special Review [OL~ Vaughn Index #42] 15. 02 July 2004 Letter from CIA to Department of State [OLC Vaughn Index #43] • • 16. 07 July 2004 Letter from OLC to CIA discussing the proposed interrogation of a detainee [OLC Vaughn Index #48] 17. 13 July 2002 Letter from John Yoo to John Rizzo [OLC Vaughn Index #49] 18. 22 July 2004 Letter from OLC to CIA requesting information on certain techniques [OLC Vaughn Index #65] 19. 22 July 2004 Letter from AG Ashcroft to ADCI McLaughlin [OLC Vaughn Index #64] •• 20. 05 August 2004 Letter from CIA to OLC discussing guidelines for a certain -technique [OLC Vaughn Index #72] 21. 05 August 2004 Letter from CIA to OLC discussing guidelines fora certain technique [OLC Vaughn Index #73] 22. 6 August 2004 Letter from'Daniel Levin to John Rizzo [OLCVaughn Index #74] 23. 20 September 2004 Letter from Daniel Levin to John Rizzo [OLC Vaughn Index #79] 24. 26 August 2004 Letter from Daniel Levin to John Rizzo [OLC Vaughn Index #85] • 25.6 September 2004 Letter from Daniel Levin to John Rizzo [OLC Vaughn Index #88] 26. September 2004 Memo reflecting OLC's view on the previous and current guidance i t provided to CIA and DOD [OLC Vaughn Index #89] 27. 30 December 2004 OLCmemo prepared for James Comey [OLC Vaughn Index #96] 28. 30 December 2004 Fax from CIA toOLC providing generic description of, the CIA's combined use of various interrogation techniques [OLC Vaughn Index #97] • 29. 15 January 2005 Fax from CIA to OLC providing information ,on medical guidelines for detainees [OLC Vaughn Index #101] 30. 22 April 2005 Fax CIA to OLC elements of CIA's use of techniques in combination [OLC Vaughn Index #107] 31. Undated draft memo analyzing the CIA's interrogation program under the Convention Against Torture (CAT) [OLC Vaughn Index #112] 32. Undated draft memo analyzing the CIA's interrogation program under the CAT [OLC Vaughn Index #113] • • 33. Undated handwritten notes of an OLC attorney [OLC Vaughn Index #129] 34. Undated draft memo analyzing the CIA's interrogatio~ program under the CAT [OLC Vaughn Index #134] 35. Qndated Notes [OLC Vaughn Index #136] 36. Undated Notes [OLC Vaughn Index #137] 37. Undated draft memo listing proposed techniques and the effect of the McCain Amendment on the CIA's ROI program [OLC Vaughn Index #138] • 38. Undated draft memo discussing legal principles applicable to the CIA's ROI program [OLe Vaughn Index #151] 39. Undated Notes [OLC Vaughn Index #159] 40. Undated draft memo analyzing the CIA's interrogation program under the CAT [OLC Vaughn Index #163] 41. Undated memo outlining three previous OLC opinions [OLC Vaughn Index #164] 42. Undated Notes [OLC Vaughn Index #174] • • • • 43. 18 June 2004 Memorandum from OLC to CIA OIG regarding 2004 OIG Special Review [Not previously identified in OLC Vaughn Index] • • • .8. Departm.ent 01 J~tice •• Office ofLegaJ COlJDSe1 July .13, 2002 John Rizzo Acting G~ Counsel ·Central Intelligence Agency Washington, D.C. 20505 Dear Mr. Rizzo: Tb.iS tettel is in response to' JOur inquity at our meeting today about what is n~ to establish tho ~ of torture, auct forth in 18 U.S.C~ § 2340 tt seq. The e1cmcnU ofthe crime of . torturo aie: (1) the torture oceumd.outside the United States; (2lthe dC!endant a~d Under the coloroflaw; (3) the victim was within th6 defendant', custody orph~cal control: (4) the defendant specifically in~deO to caosc severe mental or physical paiQ or suffcJing; ao4 (5).the act .~cted severcmentaforphysiealpainor~ St, 18 U.S.C. § 2340(1); id, §,2340. Wlthrcspeclto· severe mentai pain or suffering·Specifically, prolonged mental harm must be estaQlished That ' plolo~ged mental bami mustrcsuIt lromoncofthofollowiDg acts: intentional inflietio.n ortbreat«1ed . infliction of severe physical paiaor raffering; administration or al'.Plieation of or threatened adtninistration or application ofrnind--aJtcri11g drugs or othl:J' procedures designed to profOUDdly disrupt the senses or-personality. threat of'imDWlent death; or threateDiDg to subject anotherpenon to imminent death, sev~ physical pain or St1ffering, or the administritiOD or- application of mind,altering su~ccs or othe;r p1'O~ures 'calculated to .'Ste 18' U,S.C. § 2340(2). disruPt profoundly thc sensC! or personality• . .. MoreOver, to C31ab1ish tIiAt an individuillw ae1ild with tbC"spcci.fic intent to inflict seyere mental pain orsuff~g,an individual must aetwith~ intent, ie., witb.1be expms purpose, of causingpr.oloilged mental bamtin order for tho use ofany ofthe,predicite acts to cQnsti'tute torture. ' , Specific intent can be negated by a s&owing ofgoo(ffaith. ThUs, if an individual undertook any o{ thepiedfcateaetsforseveremental ~-or suffering, batdid $0 in the good faith beliefth.a1 those: aCts wouJdnot causotheprUoncrproiongcd menf31 harm., hewouldnotliavc'actcdwith the specificint~t nc:ecssary to establish torture. It: for example, efforts waG made to' determine what Jong-cezm impact, if any. specific conduct would have and it was learned ~ the conduct would not result in prolonged mental harm, any actiam undertaken relyUig OD that advic, would have be UDdc.rtak~ in good faith. Due diHgeuce to meettbis standard might include such actionS as slUV~ying professional Jitera1Ur~ consulting with c:xpert1, or evidence gained 'from past experience. , . --:l:i a>' y~ ~ . .. ~ ' . .~': " # ..... . ~ • As you know, our office is in theco~·of.fina.lizing amore detailedmemQralldum.opinion analyzing section 2340. We look fo~ to working.witp you as we finish that project Please contact me, or if you have.any fUrther questions. ~lY' Yoot . ~ 'ji puiy Assistant Attorney General- ..... , • • • I • phone:[·--Fax: From: : Phone: j . Date~ ·24 July 2002 Pag~inCfudlng this • i • • cover page: 7 - : H~re is the PSyOhologk:ar assessment. Please feet free to can . mejat work or at horne, whenever• .llllnks-. 1 • DRAFT TOP:SECRET Ps~tChQ1Qgical As~emnen~ of _laln al·' Abed.in al"AOideen ~Auban1mad Hassan. a.k.a. Abn ~uba'ldah 1'1'1:3 foilcvJing psycholcgiC1il assessment of lain al-"Abedin al-Abideen Muhamnwd Hassan. (a.k.a. Abu Zubaydah) is hased upon the re.sults of dire:l int&'r1.eWS with and q~ser"lations of the S"l1bject, and from in! l ' ti. /0.': n~. ~t . t I' JjahkgrQund Inf9tJMtioll. For at l~t adfl~ade. subject has lived and worked ~ithin an ~ll.vltcmnent that Ms condoned, nurtured, int.ensified. and rewarded his radical beUef~. th.e following is apania! list of responsibilities that the subject has held (no particular Cfder); Sobject is C':l.'tently 31 years old. · ·· . .. Abu ZUbaydah wc£ked from very low-level mujahidin {called courier by30me} by age of 31 to third C'1' fourth. man: in aI~a'ida, Noone rises to tha.t level in such a short period oftilne without being dedicated, trusted, and strong, Alleged tcd13vewritten al-Qa'ida's manual on resistanc~ teehnlques and l~t'.rred Oll the tonic. -: • Involved in every major al·Qa'ida. terrorist operation; served as the operation~,l planner fot (he rnUlenniilUl plot (2000), the Paris embassy (2001) and apkmner of the 11 September hijackings which killed and maimed thcwands of Americans. ·· · .. . Served, as St)nlcr Usama B~ LadIn lieutenant and played a key role iUthe moveme;nt ~d traitdng of opetati\ies onliehalf ofal~Qa'ida, the Egyptian IsmcJiliadt and C1Jlet terrorist elementS inside Pakistan l11ld Afghanistan. He was Ii i~y player in. the. Mi11e.unium t..itteat last year and appears to be engaged in ongoing terrorism . plaJiumg against trs interests. ZUbaydah is wanted in Jordan fot hla role in the Mill:mmum plot .. · · : ·· . : .. . Di:~~1edt1le start-up ofa Bin Ladin c-eUin Jordan that was clisrupterl in AllW:1all in De6ilmb~ 1999 for plotUl:g terrorist acts against US and Israeli targets da."'ing the Millhncillm celebrations in 1erdan. Two central figures of meplot, unde: arte3t, . identifIed Abu Zubaydah as being the primary supporter of this cell and the pIco(.. : .. . : .. 1vfunaged a ~;.etwork of traL'1ing camps. S2fehoU8e~ and mujak~din-r.elated offices .m Peshawar ~d Af?han}stari. assistedmOthe:. extteiiiiili· 'n um'crks, b moviugmer:., moofY ana matenals In support of varlouspr.adS' around the world. : • DRliFT 'TOP::ZECRET V K • !)'::~:::1' roP:'SECRET I :. : Served as PepUty camp Commudtr fer al·Qaida training camp in Afghanistan. Per~;onal1y approved emry and graduation of all traineell _ _ _ _ _ ··~rca1999¥2000. Froml996¥1999,~als ~of Afg..i!nistan to the training ca.-rnps. NOO'-::le came in and wt of Peshawar, P~.kista.n without his knowledge and approval Served asal·Qalda'6 c¢oidinator of extemal COlltaet&, or foreign commurJcatiO!l$. . . Acted as a1~Qalda's Cl oftlctf and'was trusted to ftnd spies in their midst. R~l!);xWHistors: SUbjecn:e~'Orted that h~ persistedfor a few years in holdmg cnm the po~sibi1ity that he c~uldevenroally transition from jihad life baok into college and pursuit:of his traditional educational, career, and family gQa]s, As time passed he appesIed tdfinda speciallliche it;! himself. He b~e iIKmsingly integratoo. into me jihadist id~j1ogy and Ufestyle. He periodically felt lTc1I:lgs ofb.Qm~1ekD.essllonged for the company oHamily, and fantasized about a future as a cOtIlput& expert or engineer. Howeveft overtime, the frequency and intensity ofthese1bo-llghts andieeling~ diminished; .Heb¢gan to think of any activity outside jihad as "sil1f'.Bv~lltaa.lly, he understood:that hJs ntittd andheart were devoted to s~iug Allah and. Islam through his jihad. Hea$$ooed that he ha~ had llno" doubts or regretSaboutchcosiug to pursue and devote himielf to jihad since tile rnid·1990·s. : •• : ~: Subjoot is a highly se1f~directed individUal who prizes his independeMo, He seeks to ~ess his independence by doing things his own way and having his ¢wn style to the e..T.1entthat be canwitbin the $ttUcture of raditalsa1afm environments. When hamakes concessions, it is Withintheccntext ofbis ideological and religious CQ!l.viction.s. He b.a:$ !Uli~issisti.c features that areevio.ent in hi~ attenticll to bis appearance ,ana in his obVious ~'¢fforts"to demonstrate that he is really a rather "h'Umhle • atld regtilar,!Uy/1 Stib1ectclearl~l"lossesses an airof' COnfide.llC ~e1f.:as~U!anc and authoritv. • DR~/FT TOPS:ECRET DR!~}~T • TOp·SECRET •ersistetlt ¢garding openmg up to II e:Sh an ghly capable in. with others from a variety of backgrounds. Not su.~gly. hepasse$ses the disci"pHne, drive. creativity and prag~atism that characterize effective leaders. . I i\ • interaeti(lt.~ He 1S Y$'00 I Y~ceptiv e an\l quick to recognize md assess the. moods and motivati('j,.$ of others. He is alett and keenly obseI"t'smt of others' interactions. 1-Ie is . strongly inclined to carefully gauge a situation before voicing opinions or revealing feelin.gs. He IS adept at choos~ to conceal or convey ap{l.tt1cu1ez attitude or emotion depending 1m the context and. inimediate utility. Subject tends to be a very private person who is sl¢ptic31 of ottlers' intentions and alen for uherior mQtives. He is marked1 . vi 'Iant alii te·n.ds not to .... . • amotional!Mem;~l ~t~~Cqnjng Skill!: o-verE1l, subject's background as revealed by self-report (including dIaries and interview) doe.snot indicate that he bas a history of tJ:100d disturbance C'f Qther psychiatric patholQgy .lnde~ his reported lUld known hist,jry indicates that neb remarkably resilient and confident tharhe can oveteome i:.dversity. Duringtheoccas!ons thllt he experiences incre$e4 stress and/or low mood,he may hecom.~ somev,'hat mare withdrawn, me~clYtand reflective. Howevet, ~bi5 shift in mood wiU:Jik.ely last a relatively slmrt time. He denies and there is n<J e"idellCi.} in his reuorted bisto of mOUl1 t "'ealth "\foble , joot IS genel' iy se ·sufficient and relie~ on his understanding and app catloll Of religious and psychological prmciples.lnte11igencCt and discipline to avoid snd overCCllne prcbleJIl.s. His faith.. the blessings of religjO'Js l~ers, lh"1d camaraderie of Jj~e~mindednwjahedin. b!othershave provided him wi!h a reliable and durabl~ suppcrt ~ystem. . . OfPih1icular note has bi!e1l subject's ability to ma.'1age Ills mood and emotion.5 during detention, Being circums~, calm, controlled. and deliberate is likel . r{JI"~I'r1'·~ti; ;.~' . ' • . ressure orior to c-a tIe DR!FT TO-PSEcRET ..:. • addition. ~ showed strong glgnsof sympa.theticnw,·QlJJ system arousal t»ssibly fear) when he e~enced the initial "Confrontational" dislocaticnof expectation wJring an Urterrogati.¢n session. Due to bisincredibly strong resolve, exp~i.ise in civilian warfare resistau.ee t:) interrogation techniques (the latter twowhlch he trainedbIm<h'eds of olhers on), this experience was one of the few that led torAm pwvidingsignificant actionable inteUigel1c~.; As has been. ob~c!ve<i throughoot his recent detention, he was able tQ quickly bou-uee back from these moat disconcerting moments and re;gain an air ofcsim con1idence~and strong resolve in not parijng willi other1.."lreat L.'1.fonr.ation. l • Moti~, Subject's primary motivations are (in no p'.uticuiarorder); statuslprestJ$c, power. inf'luence,sel'\-1ng the Ummah, serving the prophetand Allah. pursuing atpurejihad>l, contributing to the eStab1ish~tofShari'a amOllgMusfun. Co-Jnmell, Ctmtrlhuting to the "lifling up" of Muslims thrO'Jghout th! world, and cOOttibutingto. the ~storation cf the Palestinian hotll~land. ~ Stren~. (in no partic:Jlarordet) Ability tofoous. goal-dfrecte:d disciplin~ it:~telligence,emotional· resilience. stree~ savvy~ ability to organize and manage people. ability to delegate tasr.s, keen <mervntion skills, £n.rld adaptability (can anticipate amI·odapt $\<ler <iIl= ami wilh Ulinimat """"""~ capabl.<lf ~ • • • , .• If DRA::FT TOPSECm '.,.,n . DRAFT il25/02 S:04l"M • TOpdECRET D~t:enpo!l and. Interrp~Mkt. Subject rece-g:nize..~ llult his duty-as a soldier/wai:riorimujahid is to <ielav. mislead, and lie to c·rotect wh:::.t is most c::itical to the success onus cause. He assumes'that we understand this. Tm,15, he is not likely to be intirrrldate<L or weak~ed by being '<caught" in lies. ills job h to lie. During interview he explained !hat he lierl to his neighbors, to shopkeepers, to bankers, travel agents, airport penonnel,and mllny others in order to protect his people and activities. He said, "lillo'l, lie. HeiUe, lie, :" ri t!' " '. _'" :l . - • eat8~~3s. • • •{e s talked with Ayman aI·Znwahiri and it is likely that zawah:hi talked about his e;::perience as a captive of the Egyptians and RussitmlJ. In additiollt sUbject is familiar and probably well versed regarding al·Qa'lda·s detention and tesistance training materials. :fhus, one would expect tMrsubject WQuld w un''',,' ~ . ~ . . ~. DRJ~FT TorSECRET • • • DR.flFT T9rSECRET ... ~~".h".'·.-'" ••·•• U· ••~ • • • i. Guide!ipes on Confinement Conditions For CIA ·Detainees These Guidelines govern the' conditions of confinement for CrA D~tainees, who are person ion facilities that are undar the control of '" cilities" ~ These Guidelines recognize that environmental and other conditions, .as well. as particularized considerations affecting any given Detention Facility, will. vary from· case to case and location to location. • 2. I. ; I ii • ". I ·I ,.·1 :tmplt:ml.enting Procedures • Guidelines on Confinement Conditions for CrA Detainees 3• .• ' ! . ~esponsibJ.8 en O'ffic:er The Director, ,DCI Counterterrorist Center shall ensure (,a) that:. at all tim~s. a specific Agency staff employee (the -Responsible CIA Officer-) is designated as responsible for each specific Detention Facility. ,(b) that ,each Responsible CLA Officer has been provided with a copy of tbeseGuidelmes and has reviewed and si.gned the attached, ,Ai::;knowledgment. and, (c) . that each Responsible. cn O;fficer and each CIA officer participating i . . . individuals detained ursuant to with, a suant and has , ow edgment attached thereto~' . Subject to operational and seCurity considerations; the Responsible crA Officer s~all be present at; or visit, each Detention Facility at intervals appropriate to the circumstances. I ' . APPROVED: • Intelligence • Guidelines on Confinement Conditions for.cIA Detainees . I, am the ·.Responsible CIA Officer for the Detention Facility known as • By my signature below, I acknowledge that I have read and understand' and will comply. with the -Guidelines on Confinement Conditions for CIA Detainees· of ' 2003. I Name . • ,e' Date • • • e. TOP C'l • .;. • ';" •• . : . . . .~ - • ~ .. • •• , ...:... ;t.... • • ;. addres~the.conduct of interrogations of ursuant to the authoriti.es set These Guidelines complement internal Directorate of Operations guidance relating to .theconduct of' . interrogations. In ~he event of any inconsistency between existing :00 gui.dance and these Guidelines, the provisions of these Guidelines shall control. . e l..Perm!ssibJ.e :tnterro~at1on Techniques . . Unless otherwise appro~ed by Headquarters, CIA officers and other personnel acting on behalf of CrA may use only Permissible Interrogation~echniques. Permissible Interiogation'I'ecbniques consist of both (a) Standard Techniques and (b) Enhanced Techni·ques. . . . Standard TeChniqueS are techniques that ao not . incorporate physical or substantial psychological pressure. These techniques include, but are not limited to, all lawful forms of questioning employed py US law enforcement and militarY interrogation personnel. Am9ng Standard -Techniques .are the US~ of isolation, sleep deprivation not to exceed 72 hours, reduced caloric intake (so long as the amount is calculated to maintain the general' health of the detainee), deprivation of reading material,' use of loud music or white noise (at a decibel levei calculated to avoid damage to' the detainee's hearing), and the use' of d i a p ~ eriods ... 0 to exceed 72 h o u r s , _ .ALL~Rffi e THIS . CLASSIFIED TOP Sls~~ • Enhanc@d TeclmigUes.are techpiques that do incorpOrate physical ~r psychological pressure ' beyond Standard Techniques. The' use of each gp~cific Enhanced Techn.ique ·must be approved bY Headquarters in advance, and mayb~ employed only by approved interrogators for use with the specific detainee, with appropriate. medical-and psy¢hologicalparticipation in the p~ocess. These techniques are, the attention grasp, walling, the facial hold, the .facial slap (insult slap); the abdominal slap, cramped confinement, wa.ll standing; ..stress po-~i tions ,sleep deprivation beyond 12 hours, the USe of diapers for prolonged periods, the use of, harmless insects, the water board, and such other' techniques as may . ~e specifically' approved .pursuant. to param;aph4 bel<:?w. The us.e of each Enhanced TeChnique is subject to specific temPoral, physical, and re~ated conditions, iriclu~ing a competent evaluation of the medical andpsycholog~cal .state of the .:ietainee .. 2. ro riatemedical and psychological personnel shal~ b e e a d i l y a v a i l a b l e for consultation and travel to the .interrogation site durin-g all detaiIiee .interrogations employing Standard Techniques, and appropriate medical and.psychological personnel must be on site during all detainee interrogations.employing'Enhanced Techniques. In each case, the medical and psychological personnel shall suspendtheinterro~ationif they'det~rmine that significant and prolonged.physical or mental injury, pain, or suffering is likely to result if ·the int~rrogation is not suspended. In any such instance; the interrogation team shall. immediately report the facts to Headquarters for ~agement and legal review to. determine whether the interrogation may be resumed. 3. • K~i=ii1 and psychoiogicaJ. Personnel. rn~errogation Personnel Director, ncICounterterrorist Center shall all personnel directly e n g a g e d.~ ' ofersops'detained pursuant have been appropriately s.creene rom meca , psyc 0 ogical , and security standpoints) I have reviewed ~hese Guidelines, have received appropriate training in .their implementation, and have completed the attached Acknowledgment. . . . '0 e· TO . Guideline on In,~errogations Conducted PUrsuant .to the 4. ~ . .A.pprovai~ Requ!:J;eCl . Whenever feasible, .advance approval is. required for the use' of Stanc;lard 'Techniques by an interrogation team. In .all instances, their use shall' be documented i.n cable traffic::~ P~ior approval in writing ·(e~g., by written memorandum or in cable traffic) from the Director,. DCI CoUnterterrorist Center, with the concurrence of the Chief, eTC Legal Gro~p, is ~eqUired for· the use of any Enhanced Technique(s); and' ~y~be provided·only where DJCTC has determined that· (a) the specific q.etainee is believed to possess 1nfoJ:lIlation about risks to the citizens of the United States 'other natioDS, (b) the ·.use of the Enhanced . TechniqUe(s) ~'is appropriate in order to obtain that information, (c) .appropriate me~ca~ and psychological .personnel have· concluded that the use of the Enhanced Technique(s) is not expected to produGe ·severe physical or 'mentalpain qr suff·ering,· and (d)' the 'personnel authorized' to .e,mpl(;)y the Enhanced· Tecnnique.( s) have completed the attached Acknowledgment. Nothing in these Guidelines alters the r;ght to actin self-defense. Or e 5. RecordkeepiDg In each interrogation sesslon. in which an Enha.i1ced Technique i.s employed, a contentporaneous record shall be created setting' forth the nature and duration of each such technique employed, the .identities of those present, and a citation to the required Headquarters approval cable. This information, which may be in the form of a cable, shall be provided to Headquarters. . APPROVED: -. • • .. I, -I- acknowledge that I have read and understand. and will. c01liPly with the NGuidelines Interro ations Cond~cted Pursuant to •• Name Date- -.-. • , .! 4 TO • • T.QH£fifi ROUTING NAME AND ADDRESS TO: 1 2 3 4 . cno. PPRown DATE NITIAlS , DIRECT REPLY DISPATCH FILE CO.CURRENCE REMARKS: (Security Classification) INfORMATlOJl PREPARE REPlY RECDUUEIIOATIOR I RETURI SIGNATURE CONTROL NO. _ - . . , . - - - COpy _ _ FROM: N.AME ADDRESS; AND PHONE NO. DATE Handle Via Channels' Access to this.document will be restricted to those approved for the following specific activities: - • _ _" _ .... .. ---' --~- . _. ~\~ ~L\).'IV\~V'& ~cN:) ~ '(jlt'(\ /' ~-\-v'\~ Central Intelligence Agency Offi.ce of General Counsel Washington, D.C. 20505 . ~o--1< · ~,o.~"'-~6-l.\' (28 April 2003) • . To: JohnYoo Or2aDization: DoJ Phone: 1 lFax: . Subject: LegalPrinciples Applicable to CIA Detention and Interrogation of Captured Al·Qa'ida Personnel From: Scott W. Muller Oreanization: Office of General Counsel Phone: Fax: Number of Pages (Including Cover) 3 Comments: I would like to discuss this with you as soon as you get a chance. Thank you. Scott DRAFT Legal Principles Applicable to CZADetention and Interrogation of Captured Al-Qa'ida Personnel • The international Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment applies to the United States only in accordance with the reservations, declarations and understandings articulated by this country in connection with the Convention. AccorQingly, uheUnited States prohibits torture only as proscribed in 18 U.S.C. §2340j and prohibits oth.erwise "cruel, inhuman and degrading" treatment only. where, in all the circumstances (including the justification for the treatment), the treatment would violate the Eighth Amendment prohibition against cruel and unusual punishment or the Fifth and Fourteenth Amendment prohibitions against conduct that "shocks the conscience." .' Customary international law imposes no limitation on the treatment of al-Qa'ida detainees beyond the . Convention Against Torture and Other Cruel. Inhuman and Degrading Treatment, as interpr;eted by the united states, . • • 'rhe United States is at war with al-Qa'ida . Accordingly, us criminal statutes do not apply to official government actions directed againstal-Qa1ida detainees except where those statutes are specifically applicable in the conduct of war or to official act.ions. • The federal war crimes statute (18 U.S.C. §2441) does not apply to al-Qa'ida, since al-Qa1ida is not subject to the Geneva Conventions or any other applicable conventions. • CIA interrogations of foreign nationals are not within the "special maritime or territorial jurisdiction" of the United States where the interrogation takes place on foreign territory in buildings that are not owned or DRAFT • DRAFT • leased by or under the legal jurisdiction of the US Government. -The use by CIA of the following techniques (and of comparable, approved techniques) in the interrogation of al-Qa'ida detainees is lawful, and violates neither Federal criminal law nor the Fifth, Eighth, or Fourteenth Amendm~nts, in circumstances where the interrogators do not have the specific intent to cause the detainee to undergo severe physical or mental pain or suffering: isolation, sleep deprivation, reduced caloric intake (so-long as the amount is calculated to maintain the general health of the detainee), deprivation of reading material, loud music or white noise (at a decibel level calculated to avoid damage to the detainee's hearing), the attention grasp, walling, the facial hold, the facial slap (insult slap), the abdominal slap, cramped confinement, wall standing, stress positions, sleep deprivation, the use of diapers, the use of harmless insects, and the water board. . • DRAFT 2 • TOP ~TIJ !/~Xl _ . - ~ ... .. - ~ .. ~ - -- -' --- Legal Prinqples Applicable to CIA Detention and Interrogation of Captured AJ..Qatjda Personnel • • The Convention Against Torture and Other Cruel, Inh~ and Degrading Treatment or Punishment ("the Convention") applies·to the United States only in accordance with the reservations, understandings, and declarations that the Unit~ States submitted with its instrument ofratification ofthe Convention. o The Convention's defulition of torture, as interpreted by U.S. understandings, is identical in all material ways to the- definition of torture contained in 18 U.S.C. § 2340. The standard for what constitutes torture under section 2340 and under the Convention is therefore identical. o The Convention also requires that state parties undertake to prevent other cruel, inhuman, or degrading treatment or punishment. Because of u.s. reservations to the Convention, the u.s. obligation to undertake to prevent such treatment or punishment extends· only to conduct that would constitute CrUel and inhuman treatment under the Eighth Amendment or would "shock the conscience" under the Fifth and Fourteenth Amendments. Moreover, the Convention permits the USe of such treatment or punishment in exigent circwnstances, such as a national emergency or war. • • • Customary intemationallaw imposes no obligations regarding the treatment of alQa'ida detainees beyond that which the Convention, as interpreted and understood by the United States in its reservations~ understandings, and declarations, imposes. The Convention therefore definitively establishes what constitutes torture and cruel, inhuman, or degrading treatment or punishment for the purposes ofU.S. intemationallaw obligations. • CIA interrogations of foreign nationals are not within the "special· maritime and territorial jurisdiction" of the ,United States where the interrogation occurs on foreign territory in buildings that are not owned or leased by or under the legal jmisdiction of the U.S. government. .The criminal laws applicable to the special maritime and territorial jurisdiction therefore do not apply to such interrogations. Additionally CIA interrogations of foreign nationals are not within the sovereign territory of the United States. Thus, the federal criminal laws that apply within that territory do not apply to',these interrpgations. The only two federal criminal statutes that might apply to these interrogations are: the War Crimes Statute, 18 U.S.C. § 2441, the prohibition against torture, 18 U.S.C. § 234G-:-2340A. • The federal War Crimes Statute, 18 U.S.C. § 2441, does not apply to al.Qa'ida because the Geneva Conventions and the Hague Convention N, the conventions that the conduct must violate in order to violate section 2441, do not apply toal·' Qa'ida Al-Qa'ida is a non·governmental international terrorist organization whose members cannot be considered POWs within the meaning of the Geneva 1 Conventions or receive. the· protections of. the Hague Convention IV. Because these conventions do not protect al-Qa'ida members, Conduct toward those members cannot violate section 2441. • The interrogation of al-Qa'ida detainees does not constitute torture within the meaning. of section 2340 where the interrogators do not have the specific intent to cause the detainee to experience severe physical or mental pain or suffering. The absence of specific intent is demonstrated by a good faith belief that severe physical or mental pain or suffering will not be inflicted upon the detainee. A good faith belief need not"be a reasonable belief. The presence of good faith can be established through evidence of efforts to review relevant professional literature, consulting with experts, or reviewing evidence gained from past experience. • The· interrogation of members of al-Qa'ida, who are foreign· nationals, does not violate the Fifth, Eighth, and Fourteenth Amendments because these amendments do not apply. The Due Process Glauses of the Fifth and Fourteenth Atitendments, which would be the only clause in these amendments that could arguable apply to the conduct ofinterrogations, do not apply extraterritorially to aliens. The Eighth Amendment. has no application because it applies solely to those persons upon whom criminal sanctions have .been imposed. The detention· of enemy combatants is in no sense the imposition of a criminal sanction and thus the Eight Amendment does not apply. . • • ~l 2 • • • .'!'; • !tY~.I1111111111 . " TOP'SECJ!ET '. . . . . . ROUTING iTO: I - ~AME AND ADDRESS' 1 2 3 4 . DATE ii ~y ~~--I-I-~::II.I..---+-"'" r.TrN N\n INITIALS , ~ m~lA!=---t ~---1 o, REMARKS: CONTROL NO. COpy FROM: NAME ADDRESS AND PHONE NO. j I &??-JY OF_--,-I_ DATE Handle via ~ Ch.nn~. ~ Access to this document will be restricted to those approved for the folloWing specific activities: ~ ~ ~ ,.• .. /1 NATIONAL sAORMATION . Unauthorized Disclosure Subject to Criminal Sanctions ~. .. ~. T~' (5ecun"ty Classification) .~ , .... ~.- _ . '. ... . Cbs:sUieaU9o fo-l~-ra Date From: ... _. _._._, . ---: Phone: . " '. To , • '. , - . \ t='QJ::y\cL .'Pn~\'oto ~ ' ,. , ~ 1i>c \{OJuC . ,J ru.ocd.s .. :rYx>. c Y.. .~a.& , C-- L-- .- ] J i, • ,o~ o~ ~.. ~WY\QOf . « ; , I I I ! Cover+ , . \3 Tcxal~ , .. • TO~~11 Legal P:r::i.nciple5 Applic:~le to CIA Oe'tent:.ion and Interrogation of Captured Al-oa'ida personnel • The Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment (~the Conventiorr') applies to th~ United States only in accordance with the reservations,understandirigs, and declarations that the United States submitted with its instrument of ratification of the Convention. o o • The Convention's definition of torture, as interpreted the u.s. understandings, is identical in all mat~rial ways to the definition of .torture contained in 18 U.S.C. S2340-2340A. The standard ·for what constitutes torture under§2340-2340A and under the convention is therefore identical. by Tpe convention also provides that state parties are to undertake to prevent other cruel, inhuman, or degrading treatment or punishment. Because of U.S. reservations to the Convention, the U.S. obligation to undertake to prevent such treatmenc or punishment extends only to ~onduct that ~ould constitute cruel and inhuman treatment under the Eighth Amendment or would "shock the conscience" under the Fifth and Fourteenth Amendments. Additionally, the Convention permits the use of such treatment Or punishment in exigent circumstancea, auch as a national· emergency or war. • Customary international law imposes no obligations regarding the treatment ot al-Qa'ida detainees beyond that which the Convention, as interpreted and understood by the United States in its reservations, understandings, and declarations, imposes. The Convention therefore definitively establishes what constitutes torture and cruel, inhuman, . or degrading treatment or p\.mishment for the purposes of U.S. international law obligations. • CIA interrogations of foreign nationals are not within the "special maritime and territorial jurisdiction" of the United S~ates where the interrogation occurs on foreign territory in buildings that are not owned or leased ·byor under the legal jurisdiction of the U.S. government. The • TO~.l'/J • criminal laws applicable to the special maritime and ter~itorial jurisdiction therefore do not apply to such interrogations. The only two federal criminal statutes that· might apply to these interrogations are the War Crimes statute, 1S u.-S.C. 52441, and the prohibition against tortu~e, 16 U.S.C. §2340-2340A . • The federal War Crimes Statute, 18 U.S.C. 52441, does not apply to al-Qa'ida because the Geneva Conventions and the Hague Convention IV, the conventions that the conduct must violate in order to violate section 2441, do not apply to al-Qa'ida. Al-Oa'ida is a nor.-governmental international terrorist organization whose members cannot be conside:red . POWs within the meaning of the Geneva Conventions or ~eceive the proteotions of the Hague Convention IV. Because these conventions do not protect al-Qa'ida members, conduct toward those members cannot violate section 2441 . • • • The interrogation ofal-Qa'idQ detainees does not constitute torture within the meaning of section 2340 where the interrogators do not have the specific intent to cause "seyare physical or mental pain or suffering." The absence of specific intent (i.e., good faith) can be e~tablished through, among other things, evidence of efforts to review relevant professional literature, consulting with experts, reviewing evidence gained from pastexperiencewhere available (including experience gained in 'the course of u.s. interrogations of detainees), providing medical and psychological assessments of a detainee ('including the ability of the detainee to withstand interrogation without experiencing severe physical or mental pain or SUffering), prOViding medical and psychological personnel on site during the conduct of interrogations, or conducting legal and policy reviews of the interrogation process (such as the review of reports from the interrogation facilities and visits to those locations). A good faith belief need not be a reasonable belief; it need only be an honest belief. • . The interrogation of members of al-Oa'ida, who are foreign nationals, does not violate the Fifth, Eighth, and Fourteentn Amendments because those amendments do not apply. The. Due Process Clauses of. the Fifth and Fourteenth Amendments, which would be the only clauses in those amendments that could arguably apply to the conduct of interrogations, do not apply extraterritorially to aliens. The Eighth Amendment has no application because it applies solely to those persons upon whom criminal sanctions have been imposed. The detention of enemy combatants is in no 2 • I~/Xl sense the imposition of a criminal·sanction and thus the 'Eighth Amendment does not apply • • Taking all of the relevant circumstances· into account (such asthe Government's need for information to avert terrorist . activities against tne ~nited States and its citizens, the good faith efforts to 'avoid producing severe physical or mental pain or suffering, and the absence of malicious or . sadistic purpose by those conducting. the interrogations), the use of the techniques described below and of comparable, approved techniques would not constitute co~duct of the type that would be prohibited by the Fifth, 'Eighth, or Fourteenth Amendments even were they to be applicable. • • • The use of the following techniques and of comparable, approved techniqu.es in the interrogation of al-Qa'ida detainees by the CIA does not yiolate any Federal statute or other law, where the CIA interrogators do not spe.cifically intend to cause the detainees to undergo severe physical or mental pain or suffering (i.e., they act with the good faith belief that their conduct will not cause such pain or sUffering): , isolation, reduced oaloric intake (so long as the amount is calculated to maintain the general health of the detaineea), deprivation of reading material, loud music or white noise (at a decibel level 'calculated to avoid damage to the detainees'. ,hearing),' the attention grasp, walling, the facial hold, the facial slap (insult slap), the abdominal slap, cramped confinement, wall standing, stress positions, sleep deprivation, the use of diapers, the use of harmless insects, and the water board . • • • .- I'~ e.$r , -- - f'!AR 02 '04 51 I , • I . IICO~ ' . Central Intelligence Agency Office of General Counsel Washington, D.C. 20505 Date: 03/02/04 To: Organi atJon: one: Fax: \. .l - ...............................................··..···....···..···..,·..····..·..··..P:1:..·..····....···..··· 133; rom: Organ· don: Pone: ax: Jack Goldsmith r DOJ/OLC ] I, --l- . Scott W. Muller Office of General Counsel Numbe of Pages (Including Cover) 13 Comme ts: TO~TI. •• • • I' • • • • • • • • • • • • .. • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • - •••••••••••• ~ •••••••••• - P.2 ., . • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 0" J/N~IIXl • CENTRAL INTELLIGENCE AGENCY Washington, D.C. 20505 General Counsel 2 Xarch 2004 The Honorable Assistant Atto Office of Lega Department of washington, D. ack L. Goldsmith III ney General Counsel ustice . 20530 Dear Mr. Golds ith: e) (')It/ Agency's (CIA) program has e operates in ac by the Departm the Attorn~y G program, I am forth in the f • . As you know, the Central Intelligence Counterterrorism Detention and Interrogation ended considerable effort to ensure that it ordance with applicable law a:ld guidance provided t of Justice's Office of Legal Counsel (OLe) and eral. In light of the ongoing nature of this questing that OLe reaffi.rm its analyses set lowing documents: The unc assified letter from John C. Yoo, Deputy Assista t Attorney General, to the counsel to the Preside t, da':ed 1 August 2002/ concerning interrogation methods that may be used during the war on terrorism. •• ssified memorandum by' Jay S. Bybee, Assistant Attorne 'General, for the Counsel to the President, dated 1 Augua 2002, concerning the standards of conduct for interro tion under 18 U.S.C. 2340-2340A. • The unc • The clas ified memorandum from Jay S. Bybee, Assistant Attorney Gene::::al, to the Acting General Counsel of the CIA, dat d 1 August 2002/ concerning ~he interrogation of an al Qa da operative. . •• • .. MAR 02 '04133: 3SPl' . Goldsmith III sifiedmemorandum entitled "Legal Principles le to CIA Detention and Interrogation of Captured a Personnel II. (hereafter "sum.rnary points which.· ared with OLe's assistance ~!:.d received the.. nee your office in June 2003. (Enclosed with ter ~s a copy o~ the summary points along with'a memorandum. ) H ), 0= ~I • - ., i guidance to ass techniques. Fo on OLC's guidan previously disc summary points) Similarly, ina positions discu its list of app stress position We rely on the applicable law and OLC . ss the lawfulness of detention and interrogation example, using the applicable law and .~relying e J we concluded that the abdominal slap saed with OLC (and mentioned in the June 2003 is a permissible interrogation technique. ditioD to the sitting and kneeling stress sed earlier with OLC/ the Agency. has added to oved interrogation techniques two standing involving the detainee leaning against a wall .. <;zS/ I ~'lje also would like to share wi th you our views on three ~dditional inte.rrogation techniques, . and two u4es of water not involving the waterboard. SL1.ch as the attention grasp, walling ~nd the facial slap, all of which have been reviewed by you~ office. Like other approved interrogation techniques, is used as part of the Survival, Evasion, ReSist~ce, Escape (SERE) training provided to us !<Ii 1 i tary per son~t1. . ~/I The use of water with de~ainees has proven ctive part of some detainee interrogations. her than with the waterboard) range from pouring, flicki , 'or ':ossing (Le., water PFT) a relatively small amount of ater on detainees, to dousing detainees with water from a buc et or garden hose (Le. , war.er dousing). (We describe both te hniques in greater detail below.) Both wate·r PFT and water do sing are used as part of the SERE training provided to US . Ii tary personnel. We believe these techniques clearly fall to be a very ef uses of water ( - •. : • , , P.3 The Honorable • II 2 . ••• II . .I'm 02 ' el4 • • 03: P.4 The Honorable· ack L. Goldsmith III within. th$ leg consistent wit documents· ide~ parame·ters ~stab.lish by applicable law and are QLe's 200-2 and 2003 guidance set forth in the • 'fied above . . ·~/·· . . . Nater l;FT is intended to create a distracting eff at, to··staJ;'tle, ~umiliate, a:1d cause insult. Water PFT is i ended to wear down the detainee physically and psychoio gicall. Up to one pint of .potable water may used so long as it~ is a wl~ed in such ~. manner as to prevent its inhala-t;·~9n or ·i gestion .. Water PFT,may be used as a stand-alone· ioterrogc;Ltion t ch:piq~e or in conjl,ll1ctJ.,on wi th ot:her teclmiques in anapp.roved· nterrogatiqn,plan such as sleep deprivation. No mo~e than one p nt of water every 15 to 20 minutes may be appl~ed, Given the relatively small amount of water that is applied and the method of ~pplication, there are virtually no health o~'safet concerns with water P~T as part of an approved be • • • - interrogation pan . (~! Water dousing is intended to weaken the detainee's over 11 resistance posture and persuade him to cooperate with nterrog~tors by removing his sense of predi.ctabi'lity c1 control .. The detainee, dressed or undressed, is restra.ined b .. shackles and/or int:.errogato:rs in a standing, si tting or supi e posi tion .on the floor , bencl'~ or similar level. surface., potab ewatsr ispoured.Qn the de~ainee from a container.o,r ga d~Il: bose connected to a water source . . Water is applied so as. t not enter the no'se ·or mouth. A session can last fro~ 10 mi utes (a .single application) ::0 an hour (multiple applications). Tlle·detainee's re~ilience, level of cooperation, amount and temp ra~ure of water, temperature of the ambient air, and physical (L"1 mental state are all factors regulating the length of the w ter dousing session. 'A medical officer is present tomoni.or the detainee's physical condition during the water dousing s ssion(s), including any indications of hypothermia.n ccmpletion of the water dousing session ( s) , the detainee· is oved to. another room, monitored as needed bya medical officer. to guard against hypothermia, and steps are taken to ensure he.ce;:ainee is capable of generating necessary body heat and rna '·ntain normal body functions . 3 . •• • MAR 02 '04 .' II " ••••• ~ • • ··0 • • ~ • • • ".' _ " '" • , P.5 • CRETII The Honorable • O'... . . . . . . . . . .. . IINOjRdii/IXl ack L. Goldsmith III (:;>SI/ . :: greatly appreciate the assistance of your office and the Depart~ent of Justice with ~he CIA's Detention and Interrogat'on program. If possible, we request reaffirmation f the legal guidance provided by OLe in the \. documents cite above within 60 days. Moreover, any guidance . you choose to ovide on the interrogation techniques described \ in this hitter r any other techniques used in. this program also \ would be appre ated. Of course, at your request, we ~ill brief l you or cleared embers of your staff on any of the interrogation techniques ·use by the CIA as part of this program. Sincerely, ei Scott W. Muller Enclosure e 4 ----- .. -----_._-- - ... . •• MAR 02 '0403: 36P • •1 P.6 I/N~Xl -- Detention • Legal Principles Applicable to CIA d Interrogation of Captured Al-Qa/ida Personnel The Conve tion Against Torture and Ot~er Cruel, Inhuman, and Degrad ng T!:'eatment or ?unishment ("the Convention") applies co the C~ited States only in accordance with the reservatio 6, u~derstandir.gs, and declarations that the United Sta es s·.lJ.:;:nitted wi~h its instr.~ment of ratification of the Con enticn. The Co venticn's definition of cort1.~re, as interpreted by the U.S. t:nderstandings, is identical in all material w~ys t the definition of torture containea in 18 U.S.C. !i2340- 340A. The standard for ""hac: constitutes torture under -2j40-2340A and under the Convention is therefore identi al. 'I'he Co .anticr: also provides that state parties are .to underte to ?rever-t other cruel, inhuman, or degrading treatm t or punishment. Because 0: U.S. reservations to t:he onveno:ion, t.he U. S. obligati:~m to undertake to prevent such treatment or punishment extends only to conduct that ~ould constitute cruel and inhuman treatme.t under the Eighth Amendmen~ or would nshock the conscie .ce" '..:nder the Fifth and Fou::-teenth Amendments. Additio.ally, the Convention permits the use of such treatme~tor ?unisp~ent in exigen: c:rcumstances, such as a na iona: emergency or war. - ,- • • eus to!t"-ary . ternational law imposes no obligations regarding t e trea::ment of al-.Qa'ida de:ainees beyond that which the C nvent.ion, as interpreted anc understood by the United Stat s i.n its reservations, understandings, and declaration ,impcses. The Conven:ion therefore definitivel esta;:;:ishes what constitutes torture and cruel, inhuman, or degrad~ng ~reatrr:ent or punis~~ent for the purposes of T. S. i,.ternational law obliga':ions. • CIA interro ations of foreign nationals are not within the "special ma_' time and territorial jurisdi.ction" of the United Stat whe~e the interrogation occ~rs on foreign • • •• • P.? '/~1 .'. .- II territory n 'buildings that are not o~med or leased by or under the egal jurisdiction of the 0. S. goverrll1\ent. The criminal 1 wsapplicable to the specia: maritime and . territoria jur:'sdictfontherefcJ;e do :lot apply to such interroga~ ons, The oqly two federal c~iminal statutes that migh~ appl\ to chese interrogations are the War Crimes Statute, 1 U.S.C. §2441~ and the prohibition against torture, 1 U.S.C. §2340-2340A. • The federa War Crimes Statute, 18 u.S.C. §2441, does not apply to a -Qa'ida because the Geneva Conventions and the Hague Cony tio~ rv, the conventions t~at the conduct must violate in order ::0 violate section 2441, do not apply to a.l~Qa'lda. A.l-Qa'ida is a non-governmental international terr~~ist ganization whose members ca~not be considered POWs wi thi. the l'.eaning of the Geneva Co:wentions or rece{ve the protec~'ons ~: the Hague Conventior- ZV. Because these convEmtior:.s do :.10: protect al-Qa' ida r:1s!i.Ders, conduct toward those mamba s can~ot violat~ section 24~l. • The interr gatio~ of ai-Qa'ida detaineee does not ccns.titute orture within the meaning 0: section 2340 where theinterro ators do not have the specific intent to cause "severe phy ical or mental pain or 3uffe~ing." The absence of specific inter.~ (i.e., good fai~h) C~~ be established' through, am ng o~cer things, evidence of efforts to review relevant; pr fessional J,iterature, consulting with experts, reviewinge idence gained from past experience where available ( nciu~~ng experience gained ir- the course of U.S. interrogati ns of detainees) I providing :r,edicaland psychologic 1 asse~sments of a detainee (including the ability of . he de~ainee to ,<"ithstand interrogation without experiencin seve~e physical or mental pain or suffering), providing m dica: and psychologi~al persc~nel on sits during the conduct of i~~~rrcgations, or conducting legal and policy revi ws of che interrogation 9ro:::ess isuch as the review of r or~e ~rom ~he interrogation facilities and visit$to t se locaiions}. A good ~ait~ belief need noc be a reasonabl belie:; it need only be an ~onest belief. • The interro atio!"_ :)f members of al-Qa' ic.a, who are foreign .ss not violate the Fifth, Eighth, and Fourteenth endments because those amen~~ents do not apply. The Due proc S5 C:auses of the Fifth and?ourteentn Amend."'l'\ents . hieh hould be the only cla~sas in those nationalS, 2 • •• t1AR B2 .- J 04 • 03: 38PM II P.8 'NOFORNIIXl a~endments that could arguably apply to che conduct of interrogat i rts-, :::'6 not -apply extraterr':'t~rial1y to aliens, The Eighth mend,l';'lent has no applicatior, because it applies solely to ' O$e persons upon whom crim~~al sanctions have been impbsThe detention of enemy combatants is in no ' sense the i oosit':'on of a criminal sanction and thus the Eighth &"'!\e -ent do~s not apply. . , • Taking all of tee relevant circ~~stances into account (such, as the Gove nment'sneed for informatior: to avert terrorist activities gains: the United States and its citizens! the good faith fforts to avoid producing severe physical or mental pain or suffering, and the absence of malicious or sadistic pu pose cy those conducting the interrogations), the use of - he techniques described belcw and of comparable, approvedte hniques would not constitute conduct of the type that would e pro~ibited by the Fifth, ~ighth, or Fourteenth fu~endments ven ~ere they to be applicap~e. • -- • The use o! the following techniques and of comparable, approved te hniq~es in the interrogation of al-Qa'ida detainees b ~he CIA does not violate any Federal statute or other law, here the CIA interrogators do not specifically intenC.to C t:se t~e detainees to undergo severe physical or mental pain or sTEering (i,e. ,they act 'tlith the good faith belief that ~heir cor-duct will not cause such pain or suffering): isolation, reduced caloric i:,.take (so long as the amount s calc:llated to maintain the general health of the detaine s), deprivation of reading =t".ateriaJ., loud 'music or white r-o se (at a decibel level calct:lated to avoid damage to t: edeta:'nees' hearing), the at.tention grasp, walling, thfac~a~ hold, the facial slap (insult slap), the abdominal s ap, c~amped confinement, wall scanding, stress positions, leep deprivation, the use 0: diapers, the use of harmless ir. ects, and the waceX' board. • • • • u.s. Department of Justice Office of Legal Counsel • I~ Office of the Assistant Attorney General Washington, D.C. 20530 May2S,2004 Mr. John L. Helgerson Inspector General Central Intelligence Agency .Washington, D.C. 20505 Dear Mr. Helgerson: I understand that your office has been working on a report that, in part, discusses advice provided to the CIA by my Office concerning interrogations in the war on terrorism. Scott Muller, the General Counsel at CIA,recentIyprovided me with a copy ofthe report and I wQuld appreciate it if! could have time to review the description ofmy Office's advice and provide comments before the report is sent to Congress. • Thank you for your assistance. Sincerely, , Cf~~7lC ,. Jack L. Goldsmith ill T~TII 11, • • • u.s. Department of Justice • Office of Legal Counsel T~ Office of the Assistant Attorney General l~fMR Washington, D.C. 20530 May 27, 2004 Mr. Scott Muller General Counsel Central Intelligence Agency Room 7C24 Headquarters Bldg. Washington, D.C. 20505 Dear Scott: Thank you for sending us a copy of the Inspector General Report concerning the Central Intelligence Agency's program for enhanced interrogation techniques. • • 2~ Information in that report has raised concerns about certain aspects of interrogations in practice. As you know, the opinion that the Office of Legal Counsel provided to John Rizzo in August 2002 addressing ten enhanced interrogation techniques depended upon a number of factual assumptions as well as limitations concerning how those techniques would be applied, and it is my understanding that this Office subsequently agreed that the same legal principles, subject to the same factual assumptions and limitations, could be applied for interrogations ofpersons other than the specific individual addressed in that August 4002 opinion. Our initial review ofthe Inspector General's Report raises the possibility that. at least iti some instances and particularly early in the program, the actual practice may not have been congruent with all of these assumptions and limitations. . In particular, it appears that the application of the waterboard technique may have deviated in some respects from the descriptions in our opinion. We have not yet reviewed all the pertinent facts to determine whether such deviations are material for purposes of the advice we provided. Some facts discussed by the Report had clearly been discussed with Department of Justice personnel in 2003. Some other information, however, appears to have been generated in thecourseofth~ Inspector General's inquiry. It raises a concern.·for example, that the Inspector General has suggested, among other' things, that the "SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant." IG Report at 22 0.26. As you know, the use of the waterboard mSERE training was a significant factor in this Office's legal analysis. I understand that the waterboard technique has not been used since March 2003. In light of / 1) • T~fI IO~ the assertions in the Inspect9f Gen,eral's Report, and the factual assumptiooslUlderlying our advice, we strongly recominend that any use ofthis technique remain suspende4 lUltil w~ have had a more thorough opportunity to review the Report and the factual assertions in it. We recommend that with respect to the use ofthe other nine techniques, you review the steps you have already taken to ensure that in actual practice any use ofthose techniques adheres closely to the assumptions and limitations stated in our opinion of August 2002. Finally, the Report also includes hiformation concerning interrogations that are not part ofthe enhanced interrogation techniques program. As you know, we have not provided advice on practices described in those portions ofthe Report. (rJ~ • • .-j; L. Goldsmith ill TO~ • 1 • • U.S. Departinent of Justice Office of Legal Counsel • Office of the Assistant AJttJrM.y <Jc:iuonl Washington, D.C. 20530 June 10, 2004 Scott W. Muller, Esq. General Counsel Cen'tral Intelligence Agency Washington, D.C. 20505 Dear Scott: By a letter dated March 2, 2004. you asked me to "reaffirm" three pages ofbullet points, entitled "Legl,\! Principles Applicable to CIA Detention and Interrogation of Captured Al-Qa'ida Personnel. n You indicated that our Office had approved these bullet points in June 2003. ¢' • I have further inquired into the circumstances surrounding the creation oftbe bullet points in the spring of2003. These inquiries have reconfirmed what I have conveyed to you before. namely, that fue bullet points did not and do not represent an opinion or a statement ofthe views of this Office. <]81 . . As I previously advised you, to respond to your currerit request for an opinion, my Office will first need your views in writing on the legal questions to be addressed. The longstanding practice of our Department and Our Office is to require such a expression of views from an agency seeking our written opinion. The practice extends at least as far back as 1924, when Attorney General Stone issuec1 a letter to all cabinet officerS and the Secretary to the President, requesting that agencies submit "the written opinion of the chief law officer ofthe Department, Board. Bureau, or Commission, based upon the facts and documents" when asking for the opinion of the Attorney General. Letter for (Jovernment Officials, from Harlan F. Stone, Attorney General (Sept. 15, 1924) (emphasis deleted). This Office now carries out the Attorney General's opinion-writing function, 28 C.F.R. 0.25(a), and follows the same procedure. The requirement of an opinion from the requesting agency helps to ensure the completeness and legitimacy of the process by which our Office issues opinions. To be sure, our Office has not applied the policy with complete unifonnity, especially where operational needs have made such a process impractical or where the White House Counsel, OMB, or our own Department is the • TO~T/' requester. Nevertheless. this practice seems particularly prudent here, where the issues deserve the fullest exp.loration, ~~where many ofthe facts and practices necessary for the analysis fall. within your expertise.\j"D1' Uook forward to hearing from you so that we may proceed as expeditiouslyas possible on your important request. Sincerely, Q~OId&mili • TO~Tj ill • 1 • • U.S. Department of Justice . OfficeofLegal,S~~ ~nL~ • office of theAssistllIU Attorney General Washington, D.C. 20530 June 10, 2004 Scott W. Muller, Esq. General Counsel Central Intelligence Agency Washington, D.C. 20505 Dear Scott: , By a letter dated March 2, 2004, you asked me to "reaffinn" three pages ofbullet points, entitled "Legal PrinCiples Applicable to CIA Detention and Interrogation of Captured Al-Qa'ida .¢:nnel." You indicated that OUT Office had approved these bullet points in June 2003. .' ) • I have further inquired into the circumstanceS surrounding the creation of the bullet points in the spring of2003. These inquiries have reconfirmed what I have conveyed to you before, . namely, that the b~t points ~id not and do not represent an opinion or a statement of the views of this Office. !JZI As Ipreviously advised you, to respond to your current request for an opinion, my Office .will first need your views in writing on the legal questions to be addressed. The longstanding practice ofour Department and our Office is to require such a expression of views from an . agency seeking our written opinion. The practice extends at least as far back as 1924, when. Attor:ney General Stone issued a letter to all cabinet officers and the Secretary to the President, requesting that agencies submit "the wrItten opinion ofthe chieflawofficer ofthe Department, Board. Bureau, or Commission~Qased upon the facts and documents" when askingfor the opinion of the Attorney General. Letter for Government Officials, from Harlan F. Stone, Attorney General (Sept. 15, 1924) (emphasis deleted). This Office now carries out the Attorney General's opinion-writing function, 28 C.F.R. O.25(a), and follows the same procedure. The requirement of an opinion from the requesting agency helps to ensure the completeness and legitimacy of the process by which our Office issues opinions. To be sure, our Office has not applied the policy with complete unifonnity, especially where operational needs have made such a process impractical or where the White House Counsel, OMS, or our own Department is the "IN~ • ~' . requester. Nevertheloss,.-this practice seems particulatlyprudent here, where-ihe issues deserve the fullest exploration, d here I!lany of the facts and practices necessary for the analysiS" fall within your expertise. y;:'1 .. . .~. look forward to hearing on yourIimportant request. (U) from you so that we may proceed as expeditiously as possible • ) I ) TO~_ *** DATE .~ a:- . TItrE . ADDRESS 3: """;;-'-COf'Rrr--UU: .~; ~y S: ST~D A-: ASYNC MODE • • ~ISSlGf ':l:dl¥lM .. * ,. * P. 1 ITl MODE G-TS C ~IDE'HTIAL L =.I1D LATER DETAIL 1- MIL.SrD MODE D RESU.T REPcRT (JltI.10.?"M TII'E PA';£ .RESl:iT PERS.!'A'E F"IU: ._--:._----''------------:--:'2'26" P. 3 'CK ; r G- ~I'l; F'ItE RIC(}f~TI:EU: MODE .: .417 :&,: P : EOlLltiG E EJ . >: 10M • • • U.S. Department' of Justice Office ofLegal Counsel • 'N~ Office of the Assistant Attorney General Washington, D.C. 20S30 . June 18, 2004 Mr. George J. Tenet Director Central Intelligence Agency Washington, D.C. 20505 Dear Director Tenet: I am writing at the Attorney General's request concerning a report that that the Inspector General of the CIA has recently forwarded to your office. The Department of Justice did not have an opportunity to review a draft of the report and instead only had a chance to review the final report after 'it had been forwarded to your office. • The Department of Justice believes that the report contains some ambiguous statements concerning the Attorney General's remarks at a 29 July 2003 meeting of selected NSC principals that shOUld be clarified and that it contains some statements that mistakenly characterize the extent of advice provided by the Department. The Attorney General requests that you return the report to your Inspector General with a request to make the modifications suggested in the attached document, which we believe are necessary to clarifY ambiguities or correct mistaken characterizations. Sincerely, CJ~ /!)JJ4L 2 kCk L. Goldsmith III cc: Scott W. Muller, Esq. • I(~ • • •