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('~CRCT
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U.S. Department of Justice

Office of Legal Coui1seJ

Wc:shi"gtOll. D.C. 105JO

O"!TIc-e of the Assist.:it1l Attdmcy Gc-ncrJ1

August 1, 2002
l'vfemorandutn for John Rizzo
Acting General Counsel of the Centtal Intelligence Agency

JrderrogatiOl1 of al Qaelia Operative
You have asked for this Office's views on whether certain proposed conduct would
violate the prohibition against torture found at Section 2340A of title 18 of the United States
Code. You have asked for this advice in the course of conducting imenogations of Abu
Zubaydah. As we understand it, Zubaydah is one ofthc highest ranking members of the ?i. Qaeda
teITOr1St organization, with which the United States is cUlTentJy engaged in an intemational armed
conflict foUO\:ving the attacks on the World Trade Center and the Pentagon on September 1I,
2001. This Jetter memorializes our previous oral advice, given on July 24, 2002 and July 26,
2002, that the proposed conduct would not violate this prohibition.
I.

Our advice is based upon the foIlovfing facts, \vhich you have provided to us. \Ve also
understand that you do not have any £~cts in your possession contrary to the facts outlined here,
and this opinion is limited to these facts. If these facts were to change~ UIIS advice would not
necessarily apply. Zubayda.~ is currently being held by the United States. The interrogation tearn
is certain that he has additional information that he refuses to divulge. Specifically, he is
v!ithholding information regarding terrorist networks in the United States or in Saudi Arabia and
infonnation regarding plans to conduct attacks within the Unite,d States or against our interests
overseas. Zubaydah has become accustomed to a certain level of treatment and displays no signs
of willingness to disclose further infonnatioh. Moreover, your intelligence indicates that ~ere is
currently a level of "chatter" equal to that which preceded the September 11 attacks. In1ight of
the infonnation you believe Zuba:i-'dah has and the high lc,,tel ofthreat you believe now exists,
you \vish to move the interrogations iuto what yOll have described. as an "increased pressure
phase.'"
.
As part of this increased pressme phase, Zubaydah will have contact only with a new
interrogation specialist, whOii he bas not met previously, and the Survival, Eva'5ion, Resistance,
Escape ("SERE") training psychologist '.'vho has been involved '",ith the interrogations since. they
began. This phase will likely last no more than several days but CDuld last u.p to thirty days. In
tillS phase, you would like to employ ten techniqlies that you believe will dislocate his

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expe.ctations regarding the tre<ttmen( he believes he will receive and encourage him to disclose
the crucial infonnation mentioned above. These ten techniques are: (1) attention grasp, (2)
\valling, (3) facial hold, (4) facial slap (insult slap), (5) cramped confinement, (6) wall standing,
(7) stress positions, (8) sleep deprivation, (9) insects placed in a confine.ment box, and (l0) the
'.vaterboard. You have informed us that the use ofthese techniques would be on an as-needed
basis and that not an of these techniques \\lill necessarily be used. 111C interrogation team would
use these techniques in some combination to convince Zubaydab that the only way he can
influence his surrounding environment is through cooperation. You have, however; informed us
th~it you expect these techniques to be used in some sort of escal81ing fashion, culmillating wirh
the vvaterhoard, though hOt necessarily ending with this teduuque. l'Aoreover, you have also
orally informed us that although some of these teclmiques may be used with more than once, that
repetition wllI not be subst?-!ltial because the techniques generally lose their effectiveness after
several repetitions. You have also informed us that Zubaydah sustained a wound during his
capture, \vhich is being treated.
Based on the facts you have given us, we understand each of these tedmiques to be as
GJl!()ws. The attention. grasp consists of grasping the individual v"ith both hands, Qne hand on
each side of the coHal' opening, in a controlled and quick motion. In the same motion as the
grasp, the individual is ara"vn to\var\1 the interrogator.
For wailing, a flexible false wall will be COnEtructed. The individual is placed with his
heels lou.cli.ltig the\\'alLThe ttlte:rrogator pulls the individual fOfwardandthen -q-ui'Cklyancl
DTmly pushes the individual into the walL It is the individual's shoulder blades that hit the wall.
During this motion, the head and neck are suppOlted with a rolled hood or towel that provides a
c-coUar effect to help prevent whiplash. To further reduce the probability of injury, the
individual i.s allowed to reboundfron: the flexible wall. You have orally informed us that the
false wall is in part constructed ro create a loud sound when the individual hits it, which \vil1
fl.!rther shock or surprise in the individuaL In part, the idea is to create a sound that wilL make the
inlpact seem far worse than it is and that \vill be far worse than ful.y injury that might result fTom

the action.
The facial hold is used to hold the head immObile. One open 'Palm is placed oueither
side of the individual's face. TIie fillgertips are kept well ,,'.vay fram the individ!lal's eyes..
\Vitb the facial slap or insult slap, the iuten-ogataI' slaps the individual's face w'ith fingers
sLightly spread. The band rnakes contact with the area directly benveen the tip of the individual's

chin and the bottom of the corresponding earlobe. The interrogator invades the individual's
personal space. The goal of the facial slap is not to inflict physical pain that is severe or lastLtlg.
instead, the purpose oftlle facial slap is to induce shock, surprise, andlor humiliaticlI1.
Cramped confmement involves the placement of the individual in a confined space, the
dimensions of which restrict the individual's movement. The confined space is uSl.lallydark.

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The duration of confinement varies based upon the size of the container. For the large!' confined
space, the individual can sland up or sit do\vn; the smaller space is large enough for the subject to'
sit down. Confit1ement in the larger space can last up.. to e~g~teen hours; for the smaHer space,
confinli:ment lasts for no more than two hours,
Wall standing is used to induce muscle fatigue. The individual stands about four to .five
feet from a waH, with his feet spread approximately to shoulder width His arms are stretched

out in front of him, ','lith his fingers resting on'the walL His fingers support all of his body
weight. The individual is not permitted to move or reposition his hauds or feet
A variety of stress positions may be used. You have iuformed us that these positions are
not designed to produce the pain associated with contortions or hvisting of the bodr Rather,
somewhat like walling, they are designed to produce the physical discomfort associated with
muscle iatigue. Two particular stress positions are likely to be used OD Zubaydah: (1 ) sitting on
the floor with legs extended straight out in front ofhi111 with his arras raised above his head; and
(2) kneeling on the floor while leaning back at a 45 degree fu'1g1e. You have also oraBy infon11ed
us that th.rough observing Zubaydah in captivity, you have noted that he appears to be quite
flexible despite his wound.
Sleep deprivation may be used. You have indicated that your pu..rpose in using this
technique is to reduce the individual's abiiity to think on his feet and, through the discomfort
associatc:dwitll 'lack of;:;teep; tomotivatehimi'O"cooperate: Theet1ectDfsneirsleep'deprivatiol1
will generally remit after one or two nightsofunlnterropte-d sleep, You haveinf{)tmed us that
your research has revealed that, in rare instances, sonle individuals who are already predisposed
to psychological problems may experience l",bnonnal reactions to sleep deprivation, EYen in
those cases, however, reactions abate after the individual is pennitted to sleep. MOl'eover,
personnel with medical trainin,g are available to and will intervene in the unlikely event of an
abn0f!11al reaction. You have orally infonned us thilt you would not deprive Zubaydah of sleep
for more than ele'ven days at a time and that )'OU have previously kenthim awake for 72 hours,
from which no mental or pl~ysical harm resulted.
You would like to place Zubayd2Jl in a cramped confinement box with an insect. You
have infof!11ed us that he appears to have :0 fear of insects. f.n p?Jiic:ular, you \liould like to teli
Zubaydah that you intend to place a stinging insect into the box with him. You would, however,
place a hannless insect in the box. You have orally inform'" ' ';131 vou would in fact
ce a
as a cate .. at in the box with .

Finally, you '.:;,ould like to use a tecbnique called the "water-board." In this procedure, the

individual is bound securely loan inclined bench, Which is approXimately four feet by seven feet.
The individual's feet are generally elevated. A cloth is placed over the forehead and eyes. Water

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is then applied to the cloth in a wmrolJed manner. As this is done, the cloth is lo\vered until it
covers both the nose and 111outh. Once the cloth is saturated and completely covers tbe mouth
and nose, air now is slightly restric.ted for 20 to 40 seconds due to the presence ofthe cloth. This
causes an increase in carbon dioxide level in the individual's blood. This increase in the carbon
dioxide level stil1lulates increased effort to breathe. This eiTon plus the cloth produces tbe
perception of "suffocation and incipient panic," i.e.,the perception of drowning. tbeindividual
does not breathe any wa.ter into his lungs. During those 20 to 40 seconds, water is continuously
applied from a beight of twelve to t\':venty~four inches. After thlsperiod, the cloth is lifted, and
the individual is allowed to breathe unimpeded for three or four n!l1 breaths. The sensation of
drowning is immediately relieved by the removal of the cloth. The procedure may then be
repeated. The water is usually applied from a canteen cup or small watering can. ,vith a SlJout.
You have orally informed us that till.s procedure triggers an automatic physiological sensation of
drov,'ning that the individual cannot control even though he may be aware that he is in fact not
dro\'il1ing. You bave also orally infomlcd. us that it is likely that this procedure would not last
more than 20 minutes in anyone application.
We also understaIld that a medical expert with SEFJ:: experience will be present
throughout this phase and uiat the procedures w~ll be stopped if deemed rnedically necessary to
prevent severe mental or physical ha..rm to Zubaydah. A5 menti.oue.d abo\'e, Zuhayd2h suffered
an injury during his capture. You have infonned us that steps will be taken to ensure that this
injury is not in any way exacerbated by the use of these metllOds and that adequate 111cdical
attention will be given to ensure that it will heal properly..

n.
In this part, we reviewtbe context within which these procedures will be applied. You
bave tnfom1ed us that you have taken various steps to ascertain what errect, if any, these
techniques would have on Zubaydah's mental health. These same techniques, \vith the exception
of the insect in the cramped confmed space, have been used and c.ontinue to be used on some
members of our miiitary personnel during their SERE training. Because of the use of these
procedures in training our own military personnel to resist interrogations, you have consulted
with various individuals v;ho have extensive experience in the use ofthese techniques. You have
done so in order to ensure that no prolonged mental haml would result from the Use ofthese
proposed procedures.
'fhrough your consultadon \'lith various individuals responsible for such traiJ:ling, you
have learned that these tecImiques have beel
<: ",1""T ~nt" ,f ~
. () c,onduct witbout any
" e It
mentaU
fthc SERE school,
las repartee lat, during the sevellyear period that he spent in those pOSI{lOllS, tlere were t\VO requests from Congress for
information concerning alleged injuries resulting from tbe training. One. of these inquiries was
prompted by the temporary' physical injury a trainee sustained as result of being placed in a

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confinem·ent box. The other inquiry involved claims that the SERE training caused two
individuals to engage in criminal behavior, narnely, fciony shoplifting and do'\vnloading child
pornography O!1to a military computer. According to this official, these claims were fi
' be
l\oreover, he has indicated that during the three and a half years he spenta'
Df the SERE program, he trained 10,000 studel1.ts, Of those students, 0111y two
cropped out of the training following the use of these techniques. Although on rare occasions
some students temporarily postponed the rer.nainder of their training and received psychological
counseling, those st.lldems \Verc. able to finish t.he program without any indication of subsequer.ll
memal healt.h effects.
You have iufonned us that you
ve,u:s of C' eriencc with SERE train'
Hestateatha.t, during t ose
ten years, inso'ara'3 he is aware, !l0neoftheitldi\'iduaJ~\,;,.h() completed the program suffered any
adverse raenial health effects. He informed yuu that there was 011'= person \':ho did not complete
the training, That person experienced an adverse mental health reaction that lasted only two
honTs. After those tV-lO hours, the individual's symptoms spont4.neolJ..sly dissipated without
requiring treatm.ent or counseling and no other syr.nptoms were ever reported by this individuaL
Accorditlg to the infol1'nation you have provided to us, this asseSSrJ.1cnt of the use of these
procedures includes the use olihe waterboard.
mthe
'hichYOll supplied to us.
has ex.perience with the use 0 . 3. ot t lese prace uresm a course of conduct, with. the e.xceptlOn
of the insect in the confinement box a'ld the waterboarcl. This mesl1onmdwl1 confimls that the
use of these procedures has not resulted in any reported instances of prolonged mental hann, and
ces of imi'l1ediate and temporary adverse psychological. responses to the training.
-eported that a sm.all minority of students have had tempora,,)' adverse
psychological reactions during training. Of the 26,829 students trained. from 1992 through 2001
in the Alr Force SERE training, 4.3 percent of those students had contact with ps'ychology
services. Ofthose 4.3 percent, only 3.2 percent wetepulled from theprog;ramfor psychological
reasons. Thus, Out of the students trained overall, only O.
recut wete<pulled from the
program for psychological ri~aSQns. Furthermore, althol
ndicated that surveys
of students having completed this tniining are not donc,hee):pressed cOnfidence that the training
did not cause aB.y long-term psychological impact. He based his conclusion On the debriefing of
students that is done after the training. J:v10re importantly, he ba:-;ed this assessment on the fact
that although training is required to be extremely stressful in order to be effe.ctive, very few
complaints have been made regarding the training, During his tenure, in \)vhicb 10,000 students
were trained, no congressional complaints have been made. While there VIas one Inspector
Genera! complaint, it was not due to psychological Concerns. tvioreover, he was aware of only
one letter inquiring about the long-term impact of these tec!IDJques from an individual trained

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over l\venty years ago, I..Ie found that it \vas impossible to attribute this individuai's symptoms (0
his tmining.
onduded that if there are any tong-term psychological effects of the
United States Air Force training using the procedures outlined above they "are certainly
minimal."
With respect to the \'/aterboard, you have also orany infonned us that the Navy contini-V;::;
to use it in training. You have informed us that )'otlr on-site psychologist'S, 'Nho have extensive
experience with the use of the waterboard in Navy training, have not encountered any significant
!ong-tel1:h i11ental health consequences £i'om its use. Your on-sitepsychcrlogists have also
indicated that JPRA has like\'Y'Lse not reported any sigl'liilcant long-tenn mental health
consequences from the use oftlle waterboard. You have infolmed us that other 'services ceased
use of the waterboard because it was so successful as an interrogation teclmique" but not because
of any concerns over suy harm, physical or mental, caused by it. It \Vas als
almos.! 100 percent effective in producing cooperation among the trainees.
~lso
indicated that he had observed the use of the watetbbard in Nay)' training some te11. to hve've
times. Each time it resulted in cooperati,ol1 but it did not result £n 1n)' physical harm to the
student,

You have also revievled the relevant literature and found no empirical data on the effect
of these tecl1l1iqu.es, with the exception of sleep depri vatiol1. Vlith respect to sleep deprivation,
you have infoffiled us that is not uncommon for someone to be deprived of sleep for 72 hOUlS and
still pertoffil excellently on visHal-st'Hltia! motortasks and shGrt-termmernory tests. Although
some individuals may experience haHucinations, according to the literature you surveyed, those
who experience such psychotic symptoms ha\r~ almost al\vays had such episodes prior to the
sleep deprivation. You have indic.ated the studies of lengthy sleep deprivation showed no
psychosis, loosening ofthoughts, flattening oremotions, delusions, or paranoid ideas. In Ol1C
Cilse, even after eleven days of deprivation.. no psychosis orpennal1ent brahl damaged occurred.
In fact the individual reporte;d feeling almost back to nonnal after one ni,gh.t's sleep. Further,
based on the ex.periences 'vlith its use in military training (\Nhere it is indueed for up to 48 hours),
you found that rarely: if ever, \vill the individual suffer harm after the sleep deprivation is
discontinued. Instead, the effects remit after a few good nights of sleep.
'{au have taken the add;tional step of consulting with 1J.8, inten-ogations experts, and
other individuals ,vith oversight over the SERE training process. None of these individualS was
8,vare of any prolonged psychological effect caused by the use of any of the above teclmiques
either separately or as a cour:;e of conduct. tvforeover, you consulted with outside psychologists
who reported that they were unav,'are of any cases where long-term problems have occuned u::; <1result of these techniques,

Moreover, in consulting with a number of mental healib experts, you have learned that
the effect of any oftbese procedures will he dependant on the individual's personal history,
cultural history and psyr.hQlQgk.all\'·.ndl'~tjdes. To thateml, yo\.] h&ve infoffiled us that you ha-,,·c

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completed
a l.JSvcho!o~ica)
aSSeSSlrJent of Zubadvah. This assessment is based on il1lervie,vswith
~
.......Zubaydah, observations of him, and information conccted from other sources such as intelligence
and press reports. OUf understanding of Zubaydah's psychological profile, which we set forth
below, is based On that assessment.
,)

According to this assessment, Zubaydah, though only 31, rose quickly from very low
level mujahedil~ to third or fourth man in al Qaeda. He has served as Usam::: Bin Laden's senior
iieutenant. In that capacity, he bas managed a netWork of training camps. He has been
instnmlental in the training ofoperatives for al Qaedn, the Egyptian Is1ar111c Jihad, and otber
terrorist dtl11ents inside Pakistan fE1C. AfghcU1istall. He acted as the Deputy Camp Com.mandcrfor a1 Qaeda training camp in Afghani.stan, personally approving entry and graduation of all
trainees during 1999-2000. From j 996 umil 1999, he approved all individu81s going ill and out
of Afghanistan to the trai.ning camps. Purd1er, no one went in and out ofPeshavlar, Paldstan
\vithout his k11o'wledge and approval. He also acted as al Qaeda's coordinator of extemal
contacts and foreign communications. Additionally, he has acted as 201 Qaeda's Counterintelligence ofticer and has been trusted to find spies \vithiti the organization.
Zubaydah has been involved in every ma.jor terrorist operation carried out by al Qaeda.
He \vas a planner for the Ivfillennium plot to attack U.S. and Israeli targets during the Millennium
celebrations in Jordan. Two of the central figures in this plot whQ w(:re &':Tested have identified
Zubaydah as the supporter of their cell f:...'1e1 the plot. He also sen-cd as a planl1er for the Paris
Embassy plot in 2001. Moreover; he was one of the planIlcrs ofrhe September 11 attacks, Prior
to his capture, he \NaS engaged in planning future terrorist attacks against U.S. interests.
vLour psych
I ' 1assessment Hi
. d'lC·ates
ooglea

1."
'1 \\Tote a1Qacaa's
tliat
it 1S 1.ce l'levee,....
LUi)aYUH.l
manual on resistance techniques. You also believe that his experiences in al Qaeda make him
\vell-acquainted with and weE-versed in such techniques. As part ofhisroie ill at Qaccia,
Zuhaydah visited individuals in prison and helped them upon their rele.ase. Through tlliscontac.t
and aqtivities with other al Qa.eda mujahedin, you believe that h.e kJl0WS many stories of capture,
interrogation, and resistance to such interrogation. Additionally, be has spoken with Aymart a1Za\vahiri, and you believe it is likely that the two discussed Zawah.iri's experiences as a. prisoner
oftlle Russians and the Egyptians.
l'

Zubaydah stated during interviews that he thinks of any activiryoutside of jihad as
"·silly." He has indicated that his heart and mind are devoted to serving AHah. and Islan1 through
jihad and he has stated that he has no doublS or regrets about committing himself to jihad.
Zubaydah beUeves that the global victory orIsIn])1 is ine.viLahle. You have informed ns that he
contumcs to express his unabated desiTe to kill Arnericans and jel,'.!,::>.
Your psychological assessment describes his personality as follows. He is "a highly self·
directed individual who prizes his independence." He has "narcissistic features," which are
evidenced in the attention be pays to his personal appearance and his "obvious 'efforts' to

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7

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denl011Strate that he is really a rather,'hull1blealld regular guy.'" He is "somewhat compulsive"
in how he organizes his environment and business. He is confident, self-assured, and possesses
an air of authority. \Vhile he admits to at times wrestling, \'.:iih ho\v to determine who is an
"'innocent," he has ackno\vledged celebrating the destruction of the World Trade Center. Heis
imeUigent and intellectually curious. He displays "excellent self-discipline." The assessrnent
describes him as a perfectionist, persistent private, and highly capable in his ~ocial interaction.s.
He is very guarded abollt opening up to others and your assessment repeated.t)! emphasiz.es that
he tends not to trust others easily. He is also "quic.k to recognize and <1..<;sess the moods and
motivations of otlu~rs." FU:ihermore, he is piotld of his ability to lie and deceive others
successfully, Through his deception he has, among other things, prevented the location of a[
Qa.eda safehouses and even acquIred a United Nations refugee identification careL
Accordin.g to yotir reports, Zubaydah does not have any pre-existing mental conditions or
probleills that would make him likely to suffer prolonged mental ba.'"1Tl from your proposed
interrogation 111etl1bds. Tbrough rC4.<-.du"l@ bis diaries and interviewing him, you have found no
hiswry of "mood disturbance or other psychiatric pathologyLJ" "th.ought disorder[,) ... enduring
rHood or mental health problen'is." He is in fact "remarkably resilient and confident that he can
overcome adversity." \Vhen he encounters stress or low mood, this appears to last only for a
short time. He deats with stress by assessing its source, evaluating the coping resources available
to him, and then taking action. Your assessment notes that he is "generally self-sufiicient and
relies all his understanding and application of religions and psychological principles, tntelligeace
and discipline to avoid and overcorneproblems." Moreover, you bave f:oundthat he has a
"reliable and durable support system" in his faith, "the blessings ofreHgl,ous leaders, and
cama.rade,rie oflike-minded mujahedin brothers." During detention, Zubayd::.th has managed his
mood, remaining at most poInts "circumspect, calm, controlled, and deliberate." He has
maintained this demeanor during aggressive interrogations and reductions in steep. You describe
that in an initial confrontational incident, Zubaydah showed signs of sympathetic nervous system
arousal, \vhieh you think was possibly fear. Altbough this incident led him to disclose
inte!1igence information, he wa." able to quickly regain his composure, his air of confidence, and
bis "strong resolve" not to reveal any infoITnation.
Overall, you summarize his primar.; strengths as the foHowing: ability to focus, goaldiredeu JisdplillC, itltelligei'lCe, emotional rlJ,SiliL:llt:C, street 5ilV\')', ability to organize and
manage people, keen observation skiUs, fluid adaptability (can anticipate and adapt under duress
and with minimal resources), capacity to assess and exploit the need5 of others, aild ability to
adjust goals to emerging opportunities.
You anticipate that he will drav: upon his vast knowiedge of inten·ogation techniques to
cope \\'lth the intenogation. Your assessment indicates that Zubaydah may be Willing to die to
proteet the most important information that he holds, Nonetheless, you are of the view that his
belief that Islam wiil ultimately dominate the world and that this victory is inevitable may
provide the chance th'iL Zubaydah will give information and rationalize it solely asa temporary

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8

setback. Additiondiv,. .VOl! be!jev(~ be rna\' be \\-iWn ,el to disclose some information, particuiarly
information he deems to not be critical, but which may ultin12.te;y be useful to us \,,-'hen pieced
together with otber intelligence information you have gained.
~

~

Ill.
Section 2340/\ makes it II crimina! offense for any person "outside of tbe United States
[to] comrnit[] or attempt[] to commit torture." SectiDil 2340(1) defines Lonnie as:
an act conunirted by a person acting under the cotOl' of law specifically intended to
inilict severe physical or mental pain or suffering (other than pain or suffering
incidental tc Lnvful sanctions) upon another perScln within his custody of physical
comrol.

1g USC. § 2340(1). As ·we outlined in our opinion on standards of conduct under Section
2340A, a violation of2340A requires a showing that: (1) the torture occUlTed outside the United
States; (2) the defendam acted under the color of law; (3) the victim 'was \.\'ithin the defendant's
custody or control; (4) the defendant specifically intended to inflict severe pain or sufferi11g; and
(5) that the acted ini1icled seveTe pain or suffering. See Memorandum for Jo1m Rizzo, Acting
General Counsel for the Central ImelJigence Agency, from Jay S. Bybee, Assistant Attomey
General, Office of Legal Counsel, Re: Standards aIConduct/ol' Interrogation under 18 U.S. C
§§ 2340-2340.1 at 3 (August 1,20(2) ("Sec,tion2340A h1enlorandum"). You have asked us to
assume that Zubayadah is being held outside the United States, Zubc.yadah is within U.S.
custody, and the interrogators are acting und.er the color of law. At issue is v/hether the last t\V0
eJements would be met by the use of the proposed procedures, namely, whether those using these
procedures would have the requisite nlental state and whether these procedures \vbuld inflict
severe pain or suffering within the meaning aftIle statute.
Severe Pain or SufferimL In order for pain or suffering to rise to the level of torture, the
stalute requires tbat it be severe. As we have-previousty explained, this reaches only extreme
acts. See id. at 13. Nonetheless, drawing upon cases under the Tonure:Victim Protection Act
(T\-'PA), which has a definition oftorture that is slltlilar to Sectioll2340"s definition, we found
that H single event of sufticiently intense pain may fall \'i'ithin this prohibition. See id. at 26. As
a result, \-Ve have analyzed each oftllese techniques separand::'. In f'urtfter draWing upon those
cases, we al.so bave JCJUnd that c.ourts tend to take a totatity-of-the-circulDstances approach and
consider all entire course of conduct to determine whether torture ha.'S occurred, See id at 27.
Therefore, in addition to considering each technique separately, we: consider them together as a
course of conduct
Section 1340 defines torture as the inf1ictioJ1 of severe physical or mental pain or
suffering. \Ve will conside.r physical pain and mental pain sepaT<\te!y. See 18 U.S.C. § 2340(1).
Vhfh respect to physical pain, we previously concluded that "severe pain" within the meaning of
9

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Section 2340 is pain tbm is difficult for the individual to endure and is of i:\n intensity {lki n to the
pain accompanying serious physical injury, See Section 2340/\ lv1emorandum at 6. Drawing
upon the TVPA precedent, vie have nOled that examples of acts inflicting severe pain that typifY
torture are, among other things, severe beatings with We<lporlS such as clubs, ::md the burning of
prisoners. See id al' 24. \\'e cOllclude below that none of the proposed techniques inflicts such
pain.
The facial hold and the aLt'~ntion grasp involve no physical pain, In the absence of such
pain it is obvious that they canrlot be said to inflict severe physical pain or suffering, The stress
positions and wall standing both may result in muscle fatigue. Each involves the sustained
holdimr of a !)osition. In wall standimr, !t will be holding...... a position inw'hich all of the
individual's body weight is placed on his finger tips. The stress positions will likely.inc1ude
sitting on the floor \.vith legs extended straight Qut in front and a.·'TI1S rBised above the head, and
kneding on the floor and leaning back at a 45 degree angle. Any pain associated with muscle
fatigue is not of the mtenslt:-' sufl1cient to amount to "severe physical pain or suffering" under the
statute., nor, despite its discomfort, can it be said to be difficult to endure. Moreover, yon have
orally informed us that no stress position will he used that could interfere with the healing of
Zubaydah's wound. Therefore, \ve conclude that these techniques involve discornfbrt that faUs
far below the threshold of severe physical pain.
~

.

',-,'

Similarly, although the confinement boxes (both small and large) are physically
UllCiJmfottablebec:Ause, their size restricts movement, they are DDt so small as to require the
individual to contort his body to sit (small box) or stand (large box). You have also orally
informed us that despite his wound, Zubaydah remains quite flexible, which would substantially
reduce any pain associated \vith being placed in the box, We have no information frou, the
medica! experts you have consulted that the limited duration for \vhich the individual is kept ill
the boxes causes any subsmntial physical pain. /\.$ a result, \ve do not think the use of these
boxes can be said to cause pain that is oftlle intensity associated with serious physical injury.
The use of one of these boxes with the introduction of fu'1 insect does not alter this
assessment. As we understand it, no actually hannful insect 'will be placed in the box. Thus,
thol.1gh the introduction of an insect may produce trepidation in Zubaydah (which we discuss
below), it certainly does nut t:<iLtSe physic.al' puin.
As f{)r sleep deprivation, it is clear that depriving someone of sleep does not involve
severe pbysical pain witbin thj~ meaning of the statute. While sleep deprivation may involve
some physical discomfort, such as the fatigue or tbe discomfcn experienced 'in the difficulty of
keeping one's eyes open, these effects remit after the individual is permitted to sleep. Based on
the i{'lcls you have provided us, we are not HW<1re of any evidence that sleep deprivation results in
severe physical pain or suffering. As a result, its use does not violate Section 234()A.

Even those techniques Qlht invol've physical contact betwe«~n tive in.terrogator and th~

TO~RET

10

TOI~RET
individual do not result in severe pain. The facial slap and waillng contain precautions to ensure
that no pain even approaching this !e'/el results. The slap is delivered with fingers slightly
spread, which you have explained to us is designed to be less painful than a closed-hand slap.
The slap is also delivered to the fle,shy p,trt of the face, further reducing any risk of physical
carnage or seriam; pain. Tbe facial slap does not produce pain. that is difficult to endure.
Like\visc, walling involves quickly pulling the person forward and then th,rusting him against a
flexible false '.valL You have informed us that the sound of hitting the waH \vill actually be far
\Vor~;e than any possible injury to the individual. The tL"ie of the rolied lO\vel around the neck also
reduces any risk of iIljUry. While it may hurt to be pushed ftgainst tb= wall, any pain experienced
is not of the intensit:y associated with serious physical injury.
As we understand it, when the v:aterboard is used, the subject's body responds as iftbe
subject 'Yvere drO'.\'11ing-<;ven though the subject may be well aware that he is in fact not
drO\vl1ing. You have inrormed us that this procedure does not inflict aCTUal physical harm. Thus,
although the subject may experience the fear or p'anic associated with the feeling of drowning,
the waterboard does not inflict pbysical pain. As we explained in the Section 2340A
Memorandum, "pain and suffering" as used in Section 2340 is best understood as a singie
concept, not distinct concepts of "pain" as distinguished from "suffering/' See Section 2340A
l""femorandum at 6 n.3. The \vaterboard, which inflicts no pain. Of actual harm '\vhatsoever, does
not, in our view inflict "severe pain or suffering." Even if one were to parse the statute rnote
finely to atte.mpt to trea: "sufferin.g" as a distinct concept, the waterboard could not be said to
imlict severe suffering. The \''at.e;rbOilrG is simply a controUed acute episode, lacking the
ccnnota:lOl1 of a protracted period of time generally given to sufred.ng.

Finally, as we. discussed above, you have infbrmed us that in de.termining which
procedures to use and how yOil1;ViU use them, you have selected. technique.s that wiH not harm
ZUbaydah's wound, You have also indicated that numerous steps will be taken to ensure that
none of these procedures in any \va)' interferes with the proper healing of Zubaydah's wound.
Yon have also indicate.d that, shonid it appear at any time IhatZuhaydah is experiencing severe
pain or suffering, the medical person.net on hand ,'lill STOP the use ofany technique.
Even when all of these methods are considered combined in an overall course 0 [conduGt,
they Still 'Nould not inflict severe physical pain or suffering. As discussed above, a numbe.r of
these aCl;; re.'.ml! til no phyE1cal pain, other.s produce only ph)'slcnl dbcon::dint. . Y(JU have
indic(!ted that these nets \vill not be. used with substantial repetition, ;';0 that there is no possibility·
that severe physical pain conld arise from such repetition. Accordingly, we conclude that these
acts neither separately nor as part of a course of conduct would infliCT severe physical pain or
suffering within the meaning or the statute.
Vie next consider whether the use of these techniques wO\lld ianiet severe menwl pain or
suffering within the meaning of Section 2340. Section 2340 defines severe mental pain or
suffering as "the prolonged ment",l hsn.n caused bv or resultinu from" one of severa! predicate

~

TOP,IRET

~

11

""~p ,.. ,.L"
c'r)[::'l~
T {~""I-.l(
...
acts. 12 U.S.c. § 2340(2).
predicate acts are: (1) the imcmional inf1iclion or threatened
infliction 0 f severe physical pain or suffering; (2) tbe administration or application, or threatened
administration or application of mind-altering substances Of ether procedures calculated to
disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat
that any cfthe preceding acts \vilJ be done to another person. See 18 U.S.C. § 2340(2)(AJ-{D).
/\.5 we have explained, this list of predicate acts is exclusi\'e. Sec Section 2340A Memor-andum
at 8. No other acts can support 2 cbarge under Section 2340/\ based on the infliction of severe
menial pain or suffering. Se.e itt Thus, if the methods that you have described do not either i.n
and of themselves constit;w: one these acts or as a course of conduct fulfill the. predicaTe act
n:_quiremcnt, the prohibition has no: been violated. See ia. Before ad.dressing these tec.lJJ1iques,
v'e note thai it is plain 1:11at none of these proccdurcsinvoives a threat to any third party, the use
of i':.ny kind of drugs, or for the reasons described above, the infliction of severe physical pain.
Thus, the question is v/herher any of these acts, sepnrately or as a course of conduct, constitutes a
threat of severe physical pain or suffering, a procedure designed to disrupt profoundly the senses,
or a threat of imminent death. As we previously explained, whether an ~1.ctionc(Jllsti1.utes a threat
must be assessed from the stan.dpoint of a reasonable person in the subject's position. See iit. at

or

No argument can be made that the attention grasp or the facial hold constitute threa.ts of
imminent death or are procedures designed to disrupt profoundly the senses or personality. In
general the grasp and the facial hold will startle the subject, produce fear, or even insulthirn.. As
you have inforJ:ned us, the use of these techniques is not accompanied by a.specific vetbaLthre?t
of severe physical pain or suffering. To the extent thm these te,chniques could be considered 11
threat of severe physical pain or suHering, such a threat would have to be infened from the acts
thernselves. Because these actions themselves involve no pain, neither could be interpreted by a
reasol1llble. person in Zubaydah's position to constitute a threat of severe pain or suffuring.
A.ccordingly, these two techniques are not predicate acts within the Hleaning of Section 2340.
The facial sla.p likewise falls outside the set of predicate acts. It plainly is not a threat of
imminent death, under Section 2340(2)(C), or a procedure designed to disrupt profoundly the
senses or personality, under Section 2340(2)(B). Though it may hurt as discussed above, the
effect is one of smarting or stinging ,md surprise or humiliation, but not severe pain. Nor does it
alone (~onsti.tute a tltreat of severe pain or suffering; under Se.ction 2340(2)(1-\). Like the facial
hold and the attention grasp, the use of this slap is not accornpanied by a specific verbal threat of
further escalating violence. Additionally, you have informed us that in one use this technique
will typically involve at most two slaps. Certainly, the use of tiils slap may dislodge any
expectation that Zubaydah had that he would not be touched in a physically aggressive manner.
Nonetheless, this C'Jtera.tion in his expectations could hardly be construed by a reasonable person
in his situation to be tantamount to a threat of severe physical pain or suffering;. At most, this
technique suggests that the circum.stances ofhi8 confinement and interrogation have changed.
Theretore, the facial slap is nOt within the statute's exclusive Est of predicate a.cts.

TO~RET

TO~:;'ET
Walling plainly is not a procedure ([[!culated to disrupt profoundly the senses or
personality. While waHing involves vJhat 1night be characterized as rough handling, it does nOl
involve the threat of iml11inent death or, as discussed above, the infEction of severe physical pain.
Moreover, once again we understand that use of this tech,nique v/iU not be accompl~nied by any
specific verbal threat thal violence will ensue absent cooperaliorL Thus, like. the facial slap,
walling can only constitute a threat of severe physical pain if a reasonable person would infer
such a threat from the use of the technique iL'ieif. \VaHing does not in arId of itself inflict Si;verc
pain or suffering. Like the facial slap, \vaIling may alter the subject'sc>:pectlltion as to the
treatment he believes he \viH receive.. Nonetheless, the chare-cter of the action falls so far short of
intlicting severe pain or suffering \\'ithl11 the meaning of the statute thatcvcn ifhe inferred that
greater aggressiveness was to follow, the type of actiOI1$ that could be reasonably be anticipated
v/Ould still fall belo\\' anything sufficient to inflict severe physical pain or suffering under the
statute. Thus, we conclude that this technique falls oUtside the proscribed predicate acts.

Like waIling, stress positions and wall-standing are not procedures calculated to disrupt
pn,foLUldly the senses, nor are they threats of imminent death. These procedures, as discussed
above, involve the use of muscle f<:1.tigue to encourage cooperation and do not themselves
constitme the inflic.tion of severe physical pain or suf·fering. h-1oreover, there is no aspect (if
violence to either technique tbat remotely suggests future severe pain or suffering from which
such a threat of ii.lture harm could be inferred. They simply involve forcing the subject to remain
in uncomfortable positions. "Vhile these acts may indicate to the subject that he may be placed in
these positions again if he does not disclose information, the use of tl'1c.se tedmiqn.es'would not
suggest to a reasonable person in the stlbject's position that he is being threatened with severe
p3in or suffering. Accordingly, we conclude that these tv.'o procedures do not cDnstitUTe any of
the predicate acts set forth in Section 2340(2).
As with the other technique,s discussed so far, cramped ccmnnernent is not a threat of
ilnmincnt death. It may be argued that, focusing ill part on the fact that the boxes will be ',vithm.tt
light, placement in these boxes would constitute a procedure desie,'11ed to disrupt profoundly tl~e
senses. As we explained. in our recent opinion, however, to "di.srupt profoundly the senses" a
technique must produce an extreme effect in the subject. See Section 2340.A Memorandum at
UJ-12. We have previously concluded that this requires that the procedure cause substantial
interference with the individual's cognitive abilities or fundamentally alter his personality. Sec
fel. at 11. Moreover, the Slil.lute requires that such procedures must be calculated to produce this
"fr "" '"0
"i ""t 10', '10
0 l'I.,S.•,'.
C" ~'~ ''''''4()·N1)C·B)
e.le.ct.
:Jet.:: h,
':::'.:l' ,,\.:::.
, ,
Vlith respect to l.hl~ small f:onfiu0menl box, yOll haveinfim:n,ed us that he would spend at
1110st two hour::; in ibis 00X. You have i.nformed us that your purpose in using the~;e boxes is not
to interfere with his senses or his personality, but to cause him physical discomf(:lrt that ,,'>'ill
encourage him to disclose critica.l information. f\1oreover, your imposition of time limitations on
the use of either oftlle boxes alS0 indicates that the use ortllese boxes is not designed or
ca1clll:~tt.d to disrlljJt profoundly tbe senses or personality. For the larger box, i.n \.l/hicb he can

T~RET

\]

both stand and sit, he may be placed ir; this box tor.up to eighteen hours at a time, whi.le you have
informed us that he will never spend more thq[1 an liour al time in the smaller box. These time
limits further ensure that no proflJund disruption of {;fie senses or personality, were iteven
possible, \vauld result As such, the use cfthe cdnfinemcl1t boxes does not constitute a
procedure calculated to disrupt profoundly the senses or personality.
Nor docs the use ortlle boxes threaten Zubaydah with severe pbysical pain or suffering.
\Vhile "dditional time spent in the boxes may be threatened, their use is not accompanied by any
express threats of severe physical pain or suffering. Like tbe stress positions [U1d ,".ralling,
placement in the boxe:; is physicaUy uncomfortable but any such discomfort does not rise to the
level of severe physical pain or suffering. Accordingly, a reasonable person in the subject's
position would not infer from the use bfthis teclmique that severe physical pain is the next step
in his interrogator's treatment of him. '111crefore, we condude that the use of the confinement
boxes does not faU ...\-'ithin the statute's required predicate acts.
In addition to using the cont1ncment boxes alone, you eJso 'would like tb introduce an
insect into one of the box.es \vith Zubaydah. As we understand it, you plan to ini'orm Zubaydah
that you are going to place a stinging insect into the box, but you will actually place t'. harmless
insect in the box, such as a caterpillar. If you do so, to ensure that you are outside the predic?te
act requirement, you must il1fonn. him that the insects "",ill not have a sting tbat would produce
death or Severe pain. If, however, you were to place the insect in the box without il1forrnillg him
that youiil'e·lieing sO,then; in ordertollotcommit a predicate act, you should not affirmatively
lead him to believe that any insec 's
ntwhich
.
ongasyou fa {eel. let oj:
the approaches we have described, the insect's placement in the box 'SQuid not constitute a threat
Qf severe physical pain or suffering to a reasonable person in his position. An individual placed
in a box, even an individual with a fear of insects, would not reasonably feel threatened with
severe physical pain or suffering if a caterpiUar was placed in the bog. Further, you have
informed us that you are noL aware that Zubaydah has any allergies to insects, and you have not
informed us of any other factors that would cause a reasonable person in thRt same situation to
believe that an Unkl1U\VU i1Js~~ct \vouid cause him severe physical pain or death. Thus, we
conclude that the placement ofth',:. insect in the confinCl11ent box with Zubaydah would not
constitute a predicate act.
Sleep deprivation also dearly docs not involve a threat of irnminent death. Although it
prod1Jces physical discomfort, it can..'1ot be said to constitute a threat of severe physical pain or
suffering from the perspective of a reasonable persoll in Zubaydah's position. Nor could sleep
deprivation constitute a procedure calculated to disrupt profoundly the senses, so long as sleep
deprivation (a.'S you have inforrned us is your intent) is used for limited periods, before
haliucinations or other profound disruptions of the senses would occur. To be sure, sleep
deprivation may reduce the subject's ability to think on his feet Indeed, you indicate that this is

TO~T

j4

the intended result. His rnerereducedability to evade your questions and resist answering cloes
not, however, rise to the level of cEsruption required by the Statute, As '",'t explained ab(we, a
disruption within the meaning ortlle statute is an extreme one, substantially interfering with an
individual's cognitive abilities, for exam.ple, inducing hallucinations, or driving him to engage in
uncharacteristic seif-destructive behavior. See infra 13; Section 23401'. M.emorandul11 at II.
Therefore, the limited use of sleep deprivation does not constitute one of the required predicate

Vie tind that the use of the waterboard constitutes a threat of inlminent death. As you
have explained the watcrboard procedure to us, it creates in the subject the uncorl~ronable
physiological sensation that the subject is drowning, Although the procedure will be monitored
by personnel with medical tralning and extensive SERE school experience with this pro~edure
\\'110 wiE el1sure the subject's menta] and physical safety, rhe su!:Ject is not aware of any of these
pri:cautions. From the vant"lge point of any reasonable person undergoing this procedure in such
c:rcLiIllSL:mces, be would feel as 1f11e is drov/ning at very moment of the procedure due to the
uncontrollable physiological senscJlol1 he is experiencing. Thn:.:, (hi:; procedure cannot be
vic\,vec as too uncertain to satisfy the irn.!1iinence requirement. Accordingly, it constitutes a
tbreat of inlminent 0';;a01 and fulfills the predicate act requirement under the statute.
Although tbe \vaterboard constitutes a threat of imminent death, prolonged menta! harrn
must nonetheless result to violate the statutory prohibition on infliction of severe mental pain or
suffering. See Section 2340li. MelJlOrandum at 7. \Vehave previollsly concluded that prolonged
ment(1.1 hann is mental hann of some lasting duration, e.g., mental harm hL'Sting months or years,
See fa. Prolonged mental harm is not simply the stress experienced in, for example, an
interrogation by state police. See fd. Based on your research into the usc ofthese methods at the
SERE school an.d consultation with others with expenise in the field ofps~vchoIogy and
interrogation, you do not anticipate that any prc.longed mental ha.rm would result trom the use of
the \\'aterboard. Indeed, you have advised us that the relief is almost immediate When the cloth is
n.:moved from the nose and mouth, In the absence of prolonged mental hann, no severe nlenml
r;,in or c.l1ffr,rinc; WOllIn hr,vi": hi~(~n inflicted, and the use ofthr:sc pr(\C,e.d~lre,s 'wQuldlJ,ot c.o.ustitl1(f';
tortu;'c \\'lthin the memling of the statute.

V/hen these acts are considered as a c·ourse of conduct, we arc unsure whether these acts
may constitute a threat of severe physical pain or suffering. You have indicated to us that you
have not determined either the order or the precise timing for imp\ernenting these procedures, It
is conceivable that these procedures could be used in a course of escalating conduct, moving
incrementally and rapidly from least pbysically intrusive, e.g., facial hold, to the most physical
contact, e.g., watling or the \vatcrboard. As we understand it, based on his treatment So far,
Zubaydah has come to expect that no physical haml will be done to him, By using these
techniques in increasing intensity and in rapid succession, the goal \vould be to dislodge this
expectation. Based OD the facts you have provided to us, we cannot say definitively th~t the
entire course of conduct \vould cause a reasonable person to believe that neis being threatened

TO~RET

15

T~T
severe p3in or suffcrinQ \',Athin the meaning of section 2340, On the other hand, however.
Jnder certain circurnstances-fGr example, rapid escalation in the use ofthese techniques
, . . 111
. tile
. watenoar
1 d'\,wnlC.11 we aCw10w
\,. .
Ico.ge
4
•
1 ' 01_....1111r.nmem
. . (eat
1 'j)
CUill,mal1ng
consututes
<: t :u;eal
"I
accompanied by verbal. or other suggestions that physical violence wili foHow-might cause a
reasonable person to believe tbat they arc faced with such a threat. Without more infonnation,
we are uncertain \vhether the course ofcondllct would constitute a predicate act under Section
2340(2).
I'

Even ifrhe course of conduct were thought to posea threat ofphysicaJ pain or suffering,
it \vcmld neverthcless--..on the facts before us-not constitute a violation of Section 2340A. Not
only Inust the course of conduct be a predic<1t:e act, but also those who use the procedure must
act1Jally cause prolonged mcntlll harm, Based on the information that you have provided to us,
indicating that no evidence exists that this course of conduct produces any prolonged mental
ha.n:n, v,Ie condude that a course of conduct using these procedures and culminating in the
'Naterboar:d would not vioiate Section 2340A.
Specific ImenL To violate the statute, an individual must have the specific intent to
inlliet severe pain or suffering. Becrtuse specific intent is :.'in element of the offense, the absence
of specific intent negates the charge of torture. As we previously opined, to hmie the required
speciilc intent, an individual must expressly intend to cause such severe pain or suffering. See
Section 234·0A Memorandum at 3 citing Carter v. UniTed STares, 530 U.S. 255, 267 (2000). V/e
ha\'e further found that if a defendant acts with the good faith belief that bis actions v'lill not
cause such SUffering, he has nm acted \vrib specific intent. See fei. at 4 citing South Arl. Lmtd.
Ptrshp. o{Tenn v, Reise, 218 F.3d 518, 531 (4th Cir. 2(02). }', defendant acts in good faith
\.then he has <1D honest belierthat his actions \'iillnot result in severe pain or suffering. See ia.
citing Cheek v. United States, 498 U.S. 1. 92,202 (1991). !\.1rhough an honest belief need not be
reasona.ble, such a belief is easier to establish where there is a reasonahle basis for it. 8ee id. at 5.
Good 1:a.it11 may be establislH:d by, among other things, the reliance on the ad.\iic.e of ex.pel1s. See
iii. at 8.
Based on the infoilllation you have provided us, Vie believe that those carrying out these
procedures would not have the specific intent to inflict severe physical pain or suffering. The
objective of these techniques is not to cause severe physical pain. First, the constant presence (if
personnel. with medical training \\'ho have the authority to SlOp the interrogation should it appear
it is medir..3Uy nec.essi'lTy j!1dir?ti~" thaI it is not your intent to cnuse severe physical pain. The
personnel on site have extensive experience \vith these specific techniques as they are llsed in
SEIU:; school training. Second, you have infonned us that you are taking steps to ensure that
Zubaydah's injury is not 'Norsened. or his recovery impeded by the lL<;¢ of these tecImiques.
Third, as you have described them to us, the proposed techniques involving physical
contact between the intelTogalOr and Zubaydah actually contain precautions to prevent any
serious physical harm to Zubaydah.. In "walling," a rolled hood or towel will be used to prevent

TO~RET

16

TO~RET
whiplash and he will be permitted 1.(j rebound from the flexible wail to reduce the likelihood of
injury. Similarly, in the "facial hold," the fingertips will be kept well a'Nay from the his eyes to
ensure that there is no injury to them. The purpose of that facial hold is uotinjure him but to
hold the head imrllobile. Additionally, "'lihile:tbe stress positions and waH starlding win
undoubtedly result in physical discomfort by tiring the muscles, it is obvious that thes'~ positions
Hrc nOt iniende;d to produce the kind of extreme pain required by the statute.
Furthermore: no speciftc intent to cause severe menta.! pain or suffering appears to be
present. As \\le explained in our recent opinion, an individual must have the specific intent to
cause prolonged mental harm in order to have the specitlc intent tu inflicL severe mental pain or
suffering. See Section 2340A i\1emofanCum al 8. Prolonged menial ham) is substantial mental
harm of a sustained duration, e.g., harm lasting months or even years after the acts were inflicted
upon the prisoner. As \,ve indicated above, a good faith beliefcan negate this element.
Accordingly, if an indivldual conducting the interrogation has a good faith belief that the
procedures he will apply, separate!y or together, would not result in prolonged mental hanll, that
individual lacks the requisite specific intent. This conclusion concerning specific intent is further
bolstered by the due diligence that has been conducted concerning theeffccts ofthese
interrogation procedures.

The mental health experts '(hat you have consulted have indicated that the psychological
im.pact of a course of conduct must be assessed \vith reference to the subject's psychological
history and CUl1'ent mental health status. The healthier the individual: the less likely that the use
of anyone procedure or set of procedures as a course of conduct wi.n result in prolonged mental
harm. A. comprehensive psychological profile of Zubaydah has been created. In creating this
prot1le, your personl1el drev..' 011 direct interviews, Zubaydah's diaries, observation of Zubayd.ah
since his ea ·ure., an

ress reports.

r

/\s we indicated above, you have informed us that your proposed intenogatiol1methods
have been used and continue tQ be u-sedin SERE training. It is our understanding that these
ttc.hnioucs are not used one by one in isolation, but as a ilill course {)fconduct tb resemble a real
int,~rrogation. Thus: the information derived from SEIZE training bears both upon the inlpact of
the use of the individual techniques and upon their use. as a course of conduct YOLl have found
that the use of these methods together or separately, including the use of the waterboard, has not
resulted in any negative long-term mental health consequences. Tbecontinued use of these
methods without mettral hc.ah.h consequenc:e<s to the trainees i.ndicates that i.t is highly improbable

TO~ZET

17

T~RET
tb~t such consequences would result here, Because you have conducted the due diligence to
determine that these procedures: eiT.her alone or in combination, do not produce prolonged mental
bill'Ll1, \\le believe that you de not mee::he specific intent requirement necessary to violate
Section 2340A,

You have also informed us that you have: rcvic'Ned the relevant literature on the subject,
and consulted with outside psychologists. Your revie\v of the literature uncovered tlO entpirical
data on the use of these procedures, \vjtb the cxcepti.on of sleep deprivation for \Nhich no long~
term health consequences resulted. Tbe outside psychologists "lith \'>'hom you Consulted
indicated \1I'erc un8.v-;are of any cases where long-term problems have occurred as a result of these
techniques.
As descrihed above, it appears you have conducted an extensive inquiry to ascertain what
impact if any, these proced ures individually and as a course of conduct \vould have on
Zubaydah. You have consulteD with interrogation experts, including those with substantial
SERE school experience, consulted with outside psychologists, completed a psychological
assessment and reviewed the relevam literature on this topic. Based on this inquiry, you believe
that the use of the procedures, including the waterboard, and as a course of c.onduct would not
result in prolonged mental harm. Reliance on tbjs information abou~ Zubaydah and about the
effect Gfthe use of these techniques more generaHy demonstrates the presence of a good faith
belief tbat no prolonged mental barrn will result from using these methods in the iJ1terrogatioll of
Zubaydah. Moreover, we think that this represents not only 8.n honest belief but also a
reasonable belief based on the infor:nationthat you have supplied to us. Thus, \VC believe. that
the specific intent to inflict prolonged mental is not present, afld consequently, there is no
specific intent to inflict severe mentai pain or sufi"eriug. Accordingly, we conclude that on the
facts in this case the use of these methods separately or a course of conduct would not viOLate
Section 2340A.
Based on the foregoing, and based on the facts that you have provided, we conclude that
the interrogation procedures that you propose would not: violate Section 2340A. We wish to
emphasize that this is our best reading of the la.,\.; however, you should be aware that there are no
cases construing this statllte; just as there have been no prosecutions brought under it
Pk:ase Jet us know i't\.ve can be of further assistance.

is