PROM SiTE IS

OOJ

0000012

U.S. Department of J ustiee
Office ofLega! Counsel

WtlJnington, D.C. ]'!530

May 10,2005
~1EMORANDUM FOn JOIfN A. RIZZO
SENIOR DEPUTY GENERAL COUNSEL, CENTRAL INTELLIGENCE AGENCY

Re: Application of 18 USc. §§ 2340-2340A to the rt'!Jfuliiiled Use alCerlain Techniques
in the InterrogclIion ofHigh Value al Qaeda Delainees
In our Memorandum for John A. Rizzo, Senior Deputy General Counsel, Central
Intelligence Agency, from Steven G. Bradbury, Principal Deputy Assistant ArtomeyGeneral,
.Office ofLegal Counsel, Re: Application 0118 us'e §§ 2340"2340Ato Certain Techniques
That May Be Used in the Interrogcition ofa High Value a! QaedaDetainM (May ) 0, 2005)
.(<<TechniqiJes'), we addressed the application of lhe anti-torture statute, 18 U.S.C, §§ 23402340A. to certain interrogation techniques that the CIA might 'use in the questioning oCa·specific
al Qaeda operative. There, we considered each technique individually: We. now consider the
application ofthe statute to the use ofthese same techniques in combination. Subject to the
conditions and limitations set out here and in Techniques, we conclude that the authorized
combmed use of these specific techniques by adequately trained interrogatqrs would not violate
sections 2340-2340A.

Techniques, which set. out our general interpretation of the statutory elements,guides'us
here.] While referring to the analysis provided in that opinion, we do not repeat it, but instead
I

As nol<d in Techniques, the Criminal DJvision oflbe Departffi¢ljl of Justice Js satisti¢ tho! our general

int~ the legal standard$lIlIder sections 2J~o-2340A,-found in techniqiies; isconsistenl wilb its

roncurrence in·our Memornndum for J:unes B. Corney, Deputy Attorney Geneml, frjjm Daniel Levin. Acting
Assis.tant Attorney General, Office of Legal COunsel,Re: Legal SrandardsApp/icahle Under 18 u.S.C, §§ 23402340A (Dec. 30,2004). In lbe present memorandwn, we address only the application of J8 U.S.C.~§ 2340~234()A
to combinations of interrogation tectutiques. Nothing in this memorandum or in our prior advice to the CIA should
be read to suggest !hat lbe use of these techniques would confonn to the requlremcots oHhe Unifonn Code of
Military Justice lbat governs members of the·Anned Forces or to United States obligations under th,e Geneva
Conventions In circumstano::s where those Conventions would apply. We do not address the possible app~~tion of
article 16 ofthe Unit<d Nations Convention Against Torture and Other Cruel,lnhum3n, or Degl\ulihg Treatment or
Pucislunenl, De>::. J(}~ 1984, S. Treat)'Doo. No. HXl·20. 1465U:N.T.S. ~ (entered Into !OfCI: for U.s; Nov. 20,

I
I

FROM .SITE

15

{TU'€}MA¥

DOJ

1020013

17:50/sT.17:4\;VNO. 6160429715 P

TOPPT1~~RN
presume a familiarity with it. Furthermore, in referring to the individual interrogation techniques
whose combined use is our present subject, we mean those techniques as we desciibed them in
Techniques, including all of the limitations, presumptions, and Sllfeguards described there.
One overarching point from Techniques bears repeating: Torture is abhorrent and
universally repudiated, see Techniques at I, aridthe President has stated that the United States
will not tolerate it. Jd at 1-2 & n.2 (citing Statement on United Nations International Day in
Support of Victims ofTorture, 40 Weekly Compo Pres. Doe. 1167-68 (July 5, 2004». In
Teclmiques, we accordingly exercised great care in applylng sections 2340-2340A to the
individual techniques at issue; we apply the same degree ofeare in considering the combined use
ofthese techniques.

I.
, Under 18 U.S.C. § 2340A, it is a crime to commit, attempt to commit, or conspire to
,commit torture outside the United States. "Torture" is defined.s '.'an act committed by a person
acting under color oflaw specifically intended t9'inflict severe physical or menta! pain or
suffering (other than pain or SUffering incidental to lawful sanctions) upon another person within
his custody qr physical controL" 18 U.S ,G. § 2340(1). "Severe mental pain or SUffering" is
defined as "the prolonged mental harm'caused by or resulting from" any of four predicate acts.
ld § 2340(2). These aets are (1) "the intentional,infliction or threatened infliction of severe
physical pain Or suffering"; (2)"the administration or application, or threatenedadministratiort or
application, of mind-altering substances or other procedures caJeulated to ,disrupt profoundly the
senses orthe personality"; (3) "the threat of imminent death"; and (4) "the.threat that,another
person will imminently be subjected to death, severe physical pain or stiffenng, or the
administration or application of min9-altering substances or other procedures calculated to
disrupt profoundly the senses or personality."
In Techniques, we concluded that the individual authorized' use of several specific
interrogation techniques, subject to a variety 'of limitations and safeguards, would not violate the
statute when employed in the interrogation of a specific member of al Qaeda, thoUgh we
concluded that at least in ce)iain respects two ofthe iechnlques presented substantial questions
. under sections 2340-2340A. The techniques that we analyzed were dietary manipulation, nudity,
the attention grasp, walling, the facial hold, the facial slap or insult ~Iap, the abdominal slap,
cram~ccirilinement, wall standing, 'Stress positions,water dousing;'<ixtended sleep deprivation,
and the "waterboard." Techniques at 7·15,
'-',.' .<_ ...•__._-

.- _. '-',--

,-,~

"'--".

1994), nor do we address any question relating 10'<:anditions ofcom,\lem<nt or detention, asdi.tinet fulmthe '
Interrogation ofdetainees. We stress thaI our advice on theapplieatlon ofS<:Clions 2340-2340A does not represent
the policy views of the Department of Justice oon~rning interrogation practices. Finally, we note Utal s<etion
<5057(a) ofH.R. 1268 (109th Cong. 1st Sess.), ifill=lmes Iaw,wouJd forbid 'C>lpendlng oroPligatingfundsmade
availabt. by that bill "to subjoct any person ill the custody or under the physic31 control ofth. United States to
torture," but because the bill would define "torture" to have "the meaning given thaI tel1ll in >e<;tiOn 2540(1) oflitle
18, United Slates Code," § 6057(b)(I), the provision (to the e;itenr it might apply here at all) wouId merely reallinn
the preexisting prohibitions on torture in ~ons mO-2340A.
,

&1

J
FROM

sITE

15

DOJ

CTU€)MAv

10 2005

17:50/sT. t7~4S/NO.e1604'2971S P

52

TO~T~r1RN
TechnTljlles analyZed only the'use ofthese techniques individually. As we have
previou'sly advised, however, '-'courts tend to take atotality"of-the-circumstaoces approach and
consider an entire course of conduct to detennine whether torture has occurred," Memorandum
for John Rizzo, Acting General Counsel, Centraiintelligence Agency, from Jay S. Bybee,
Assistant Attomey General"Office of Legal Counsel, Re: [nterriJgatiolTo!al Qaeda Operative
at 9 (Aug, 1(2002) (:'Interrogation Memorandum") (IS). Acomplete analysis under sections
2340-2340A thus entails an examination of the combined effects ofany techniques that might be
used.
In conducting this analysis, there are two additional ill'eBS ofgeneral concern. First, it is
possible that the application 'of certain techniques might render the detainee unusually
susceptible to physical orniental pain or suffering, If that Were the case, use,cfa se>::ond
technique that would not ordinarily be expected to-and could not reasonably be considered
specifically intended to--;;ausesevere physical or mental pain or suffering by itself might in fact
cause severe physical or mental pain or suffering because of the enhanced susceptibility created
by the ftrst technique. Depending on the circumstances, and the knowledge and mental state, of
the interrogator, one mightconc!ude that severe pliin Or suffering was specifically intended by
the application of the s¢cond technique to a detainee who ""as particularly vulMrablebecallse of
the application oftht:tirstteehnique- Bceausetheuse bftfieSetei:liriiques irlcombination is
intended to, and in fact can be expected to,physieaUy w~ down a detainee, because it is '
difficult to ,assess as to a particular individllalwhethet the application ofmllltiple techniques
renders that i!,dividtial more susceptible'to pb.ysical pain or suffering, lind becauses\eep
, deprivatiOn, (jl particular, llasa /lumber ofdoournented pnysiological effe'Cts that, in some
circumstances, could be problematic it is important that all participating CIA personnel,
particularly interrogators and personnel oftheCIA Office ofMedical Servi~s ("OMS"). be
aware ofthe potential for enhanCed susceptibility to pam and suffering from each interrogation
technique. We also assume thatthere will be active and ongoing monitoring bJ' medi'cal and
psychological personnel of each detainee who is undergoing a regimen ofinterroga!ion, and'
active intervention by a member ofthe team or medical staff as necessary, so as,to avoid the
possibility ofsevere physical or mental pain or suffering within the meaning of 18 U.s.C.
§§ 2340-2340A as a r~(t ofsuch combined ,effects.
Second. it is possible that certa:ln tec!miljues that do not themselves cause severe physical
, or ll'lental rull.n, or suffering might do so in cOJ)lbinatioo, particularly ~hen used over the 3G-day
interro'~!atioii' period with which we deal here: Again,-dependUig on the circumstances, and the
mental state of the interrogator, their use might be considered to be specifically intended to cause
such severe pain or suffering. This concern ClIllsfor an)nguiry into the.t2!!l!!l:';.2ft})!'.-, '''','' .. ~ .,,'_"
,--'------circumsl1fiiCe'S; looking';rtwmcn tet:llillqu6S are'combined anifhb-,;,;(hey'are combined.

we

Your,office has outlined the mami.er in which!!lany of the individual techniques
previously considered could be combined in BackgrOUlldPaper on CIA's Combined Use of
Interrogation Techniqul'S (undated, but transmitted Dec. 30, 2004)("Backgrotll1dPapef'). The
BackgrotmdPaper, which provides the,principal basis for our analysis, first divides the process
of interrogation into three phases: "Initial'Conditions," "Transition to Illterrogau9n," and
"Interrogation." lei.. at 1. After describingth~se three phases, see id at 1-9, the Background
Paper "provides a look at a prototypical interrogation with an emphasis on ,the application of

TOP

6Tl

~T~~

__

FROM

$: I TE

1 S··

DOJ

nUE)MAY 10

2005

17:S0/ST.17;45/NO. 6160429715 P "53

TO~cRETf~~RN
interrogation techniques, in combinati~n and separately," id al 9-18. The Background Paper
does riot include any discussion of the waterboard; however, you have separately provided to us
a description of how the waterboard may be used in combination with Olher techniques,
PartiC.ularly dietary manipulation and sleep deprivation.. See Fax fClr Steven G~.
Bradbu
Principal Deputy Assistant Attorney General, Office ofLega! Cou~m
Assistant General Counsel, CIA, at 3-4 (Apr. 22, 2005) ("Apri/22

_ax' .

Phases ojthe Interrogation Process
.
The first phase ofthe interrogation process, "Initial Conditions," does not involve
interrogation ie<:hniques, and you have not asked us to consider any legal question regarding the
CIA's practices during this phase. The "Initial Conditions" nonetheless sei the stage for use of
the interrogation techniques, which come later.'
According to 'tjJe BackgrOtindPaper, before being flown to the site of interrogation, a
detainee is given a medical examination. He then is "securely shackled and is deprived of sight
.and sound throl,Igh the use of blindfolds, earmuffs, and hoods" during thti flight. Ii!. at 2. An onboard niedica! officer monitors his condition. SecurilY personnel also monitor the detainee for
signs of distress. Upon arrival at the site, thedetainre "linds himself in complete control of
Americans" and is subjected to "ptecis~ quiet, and almost clinical" procedures designed to
underscore "the enormity and suddenness ofthe change in environment, the uncertainty about
what will happen next, and the potential dread [a detainee) may have orus custody." Id. His
head and
are shaved; his physical condition is documented through photographs taken while
he is nude; and he is given medical and psychological interviews to assess his condition and to
make sure there are no contraindicaJions to the use of any particular interrogation techniques.
See td at 2~3.
.

moe

The detainee then enters the next phase. the "Transition to Intern:>gation:" The.
interrogators conduct an initial interview, "in a relatively benign environment," to ascertain
whether the detainee is willing to cooperate. The detai!l¢e is "nonnally Clothed. btlt seated and
shackled for security purposes." ld at 3. The interrogators take "an open, non-threatening
approach," but the 4etainee "would have to'provide information on actionable threats aria
location information on High-Value Taq;ets at Jarge--not lower-level information-,-for
interrogat~ to continue with (!his] neutral approach." Id. If the detainee does not meet this
"vel)i'ltlgh~sfahdard, tHe interrogators submit a detailed interrogaiion' plan to CIA headquarters
~-"

1 Although ilie OMS Guidelines cnMegical and Psych ctaglcal Supporttc Detainee R<J1c1ifian,.. _
._
.:. -.-'-"-9iiTeffog~7i'(Vet:::2Ti1Jif)~i1llFn'ei)
ierer-wureMffiilUsi'nlliori O± iiJlltiWS'QufIDr~=~
transpolt'ifn=sary to protect the detainee or the IeJldiUon tciun, iii. at4--5, !he OMS Guidelln~ do not provide for
the llS¢ ofsedatives for interrogation. The Background Paper: does not mention the~dmil1istra6onOf any dJ:l)gs
during the detainee's lransportalion to the site cftheinterrogalion or at any other time, and we do i\¢l adJ;Iress' any
such admlnlstration. OMS, we lIl1detstaM, iSun:i~o(~l\Y.lISeof sedation during the-transport ofadeUinee in
the last two years and slites that the interrogation progI1lllJ does nol.use sedaticn or medication for the l"'PDSO cf
interrogation. We caution that any use ofsedatives should be carefully evaluated, inc!ucling""der 18 U.S.C.
§ 1340(2)(B). Fer pwposes of our anaJ)'Bis, we assume !hat nc drugs are administmd duriogilie reI.,.,..nl period or
lh3t there are no ongoing effects from any administration of any drugs; if that assumption does not hold, our analysis

and conclusions could change.

TOP~RET/~~'lJ

.

.

I
I·
I·
FROM SiTE 15

I

OOJ

I

TOprT/~~RN
for approval. lfthe medical and psychoiogical assessments find no contraindications to the
proposed plan, and if senior CIA officers at headquarters approve sOmC orall ofthe plan through
a cable transmitted to the site ofthe interrogation, the interrogation moves to the·next phase. Jd.'
Three interrogation techniques are·typically used to bring the detainee to "a baseline,
dependent state," "demonstrat[ingJ to the (detainee] that he has no centrol over basic human
· needs"and helping to make him "percvive and value his personal welfare, comfon, and
immediate needs more than the infonnation he is protecting." J£1. at 4. The three techniques
used to !lslablish this "baseline" are nudity, sleep deprivation (with shackling and, at least·at .
times, with use of a diaper), and dietary manipulation. These techniques, which Techniques
described in some detail, "require little to M physical interaction between the detainee and
interrogator." BackgroundPapq at 5.
Other techniques, which ~'require physical interaction between the interrogator and
.detainee," are characterized as "corrective" and "are used principally to correct, startle, or ...
achieve another enabling objective with the detai~ee." Jet. These techniques "are not used
simultaneously but are often used interchangeably ·during an individual interrogation session."
Jet. The insult slap is used "periodically throughout the interrogation process when the
interrogator needs tei immediately correct the detainee or provide a con~uence to a detainee's
resPonse or non-response." Jd. at 5--6. Theinsult slap "can be used ill combin&tlan with water.
dousing or kneeling stress positions"-techniques that are not characterized as "corrective." 1d.
· at 6.. Another corrective technique, the.bdominal slap, "is similar to the insuitslap ill .
application and desired result" and "provid~ the variation necessary. to keep ~ high4evel of
unpredictability in the interrogation process." Jd The abdominal. slap may be simullaneouslX,
combined with water dousing, stress positions, and wall standing. A third corrective technique,
the facial hold, "is used sparingly throughOlJt interrogation." 1d. It is not painful; but
"demonstrates the interrogator's control over the (detainee}." Jet. It teo may be simultaneously
combined with water dousing, stress positions, and wall standing. Jd Finally, the attenti<lll
· grasp "may be used several times in the same interrogation" and may be simultaneously
combined with water dousing or kneeling stress positions. Jet.
. Some"techniques are characterized as "coercive." These techniques "pJacethe detainee
inmore physical and psychological stress." let. at 7. Coercive techniques "are typically not used
"

~"".""~""

....

~.

, The CIA maintains ctI1ain "det~ntion conditions" at all ofits detenuan facilities. {These conditians"are
not interrogation (echniques: la. a14, and yoil have not aske<l us to "= theIr lawfulness Wlder the statute.) The

__ Q .._. _•

.$~inecj§_«k~~lill;e..ngjsqJQlJd SQll.ndsJnot tG-exg»t7.9.~~~~.moVs-eQb¢<;
In(magation process." fa. These conditions enhance security. The noise prevents the detainee fronl overhearing
conversations of sla\f members, precludes him from picking up "aUditory dues" about his Surroundings, and
disrupts any efforts to communicate wiilt oilier detainees. Ja. Thought provides better conditions fat security and·
for monitoIing by the medical ani! psychalogical sWf ~ <be intehugators. AI.thaugh we do not address the
lawfulness ofusing white noise (not to exceed 79 decibels) and constant light, n~~ thal i1CCOrdfug 10 materials
you have furnished (0 us, (I) the ~palioJ13l Safety and·Jlea]U! Adntinlsuation has determinoo that there is no risk

we

ofpermanent hearing loss from continuous. 2Hour per day exposure10 noise ofupta 82 decibels, :llld (2) detaine<>s.
· typicallya~pl fairly quickly to the coIl5tant light and it does. n,o.t inlerfere undufy~etp. S.. Fax
· for Dan LeVUl, Acting Assista11l Altomey General, Office ofLegalColll1Se~ fro~istant
Generol CoUnsel, Central Intelligence Ageney 31 3(Jan. 4;2005) ,-aX').
.
'

.,"u _._

~

FROM SITf

l~

OOJ

(T'JEHi.AY

10 20Q5

17:50/ST. 17:"lS/NO. 6150429715 ?

TOP~RBT~¥RN
in combination, although some combined use is possible_" Id Walling "is one of the most
effective interrogation techniques because it wears dowil the [detainee] physically, heightens
uncertainty in the detainee about what the interrogator may do to him, and creates a sense of
dread when the [detainee] knows hcisaboutto be walled again." Id.' A detainee "may be
walled one time (one impact with the wall) to make a point or twenty to thirty times
consecutively when the interrogator requires a more significant responsc to a question," and
"will be walled mUltiple times" during a session designed to be intense. Id Walling cannot
practically be used at the same time as other interrogation techniques.
Water temperature and other considerations ofsafety established by oMS limit the use of
another coercive technique, water dousing, See id at 7-8. The technique "may be used
frequently within those guidelines." Id at 8. As suggested above, interrogators may combine
water dousing with other techniques, such as stress positions, wall standing, the insult slap, or the
abdominal slap_ See id. at 8.
The use of stress positions is "usually self-limiting in that temporary muscle fatigue
usually leads to the [detainee'S] being unable to maintain the stress position after a period of
time" fd Depending on the particular position, stress positions may be combined with water
dousing, the insult slap, the facial hold, arid the attention grasp. See id Another coercive
technique, wall standing, is "usually self-limiting" in the same way as stress positions. fd. It.
may be combined with water dousing and the abdominal slap. See id Oll'fS guidetines limit the
technique of cramped confinement to no more than eight hours at a time and I & hours a day, and
confinement in the "small box" is limited to two hOurs_ Id. Cramped confinement cannot be
used in sim\lltaneous combination with cbITective orother coercive le<;hniques.
We understand that the erA's use ofall· these interrogation techniques is subject to
ongoing monitoring by interrogation team members Who will direct that techniques be
discontinued if there isa deviation from prescribed procedures and by medical and psychological
personhel from OMS who wiU direct that any or all.techniques be'discontinuedifin their
profession.al judgp1ent the detainee inay otherwise suffer severe physical or mental pain or
suffering. See Techniques at 6-7.
A Prototypical Interrogation

""""!n-a:·uprototypic'liJ interrogation," the"&etainee'begins his.firstlnterrogation session.
stripped of his clothes, shackled, and hooded, with the walling collar over his head and around
----------:::o:i===:==...=
..--==:.-;:j--~-~
, Although walling "wears down the [detainoo) pbyoiC311y; Background Paper at 7, and tmdOubledly Ill3.y
startle. him, we understand thatit is not significantly. painfuL The detainee hits "a flexible false wall," designed "to
create a loud sound wh<n the individual hilS It" and tflllS to cause "shock and suiprise." Intem>galion Memorandum
at 2_ But the detainee's "head:lIId neck are supported with arnlled hood or towel tllat provldes a oxollar effect 10
help prevent whlplash"; ilis the detainee's shoulder blades·that hit ille w.Jll; and ilie detainoo is allowed to rebound
froin the flexible wall in order to reduce the chances ofany injury. See iii. You have infonned us that a detainee is
e:<pecled to feel "d"",d" at the prospect of walling becauso of the shock imd surprise caused. by lhele<:hnique and
because oflhesense ofpowerlessness tllat comes from beIng ro~ghJy handled by the interrogators,.notbecause the.
t~que

cause, significant paill

-

SS

FRO~

SITE

15

OOJ

Topl~T/~"
his neck. BackgroundPaper at 9-10. The interrogators ren)ove the hood and explain that the
detainee can improve his situation by cooperating and may say that the interrogators "will do
what it takes to' get important information." Id. s As soon as the detainee does anything,
inconsistent with the interrogaters"instruetions, the interrogators use an jnsult slap or abdominal
slap. They employ walling if it becomes cl6ar thaI the ~etainee is nat cooperating irrthe
interrogation. This sequence "may coritinue for several more itetations as the interrogators
continue 10 measure the [detainee's} resistance posture and apply a negative consequence to {his)
resistance efforts," Id. The interrogators and security officers then put the detainee into position
Jor st;mding sleep deprivation, begiD dietary manipwation through a liquid diet, and keep the
de~ainee nude (eJ(cept for a diaper). See id at 10·11. The first interrogation session, which
could have lasted from 30 minutes to several hours, would tlien be at an end. See id. at n.
If the interrogation team determines there is a need to· continue, and if/he medical and
psychological personnel advise that there are no contraindications, a second session may b~gin.
See id. at 12. The interval between sessions could be as shoft asah hour or as long a~ 24 hours.
See fd. at ] L At the start of the second session, the detainee is released from the Position for
standing sJeep deprivation, is hooded, !Iild is positioned against tl,Je walling wall, with the walling
collar over his head and around his neck. See id Itven before removing the hood, the
interrogators use the attention grasp to startle the detainee. The interrogators take off the hood
arid begin questioning. Ii'the detainee does not give appropriate answers to the first questions.
the'interrogators use an insult sl;<p or abdominal sl;<p.St>e ieL They employ walling ifthey
detennine ,that the detainee "is intent on maintaining his resistance posture." Id. at 13. This
sequence "may continue for multiple iterations as the interrogatOrs continue to measUre the,
[detainee's] resistance posture." Id The interrogators then increase the pressure 00 the detainee
by using a hose to douse the detainee with water for several minutes. They stqp lUld start tbe
dousing as they continue the interrogation. See id They then end the session by placing the
detainee into the same circumstanCes as at the end efth.e first sessinn; the detainee is in th~
standing position for sleep deprivation, is nude (except for a diaper), and is .subjected to dietary
manipulation. Once again, the session couldhave.tasted froJTi30 minutes to several hours. St>e
id.
'

Again, ifthe interrogation team determInes there isa need to continue, and if the medical
and psychological personnel find no contralndications, a third session may follow. The session
begi-Uit.!?;the. detaine~ posirionedas, at the;~i?eginni~g ofthe seconcL.See id. at 14. Ifthe
detainee continues to resist, the interrogators Continue to use walling and water dousing. The
corrective techniques-the insult slap, the abdominal slap, the facial hold, the attention grasp,"may be used several times during this session based on the responses and actions of the
[detainee]." la The interrogators integt'ate stress positionsand wall standing into thesession.
Furtherrnofc, "[Untense questioning an<:l walling woul<:l be repeated multiple times." Id.
Interrogators "use one technique to support another." ld For example, they threaten the use of
walling unless the detainee holds a Stress po.silion, thus inducing the detainee to remain in the
position longer than he otherwise would. At the end of the session, the interrogators and security

, We sddress the effects o( this statement below atpp. ]8·19.

FROM SITE

15

DOJ

(TVE}MA't

102005

17:50/sT.17:4!5/NO.615042971S?

personnel place the detainee into the same circumstances as at the end ofthe first two sessions,
with the detainee subject to sleep deprivation, nudity, and dietary manipulation. -lei .
In rater sessions, the interrogators use ihose techniques that are proying most effective
and drop the others. Sleep depriYation' "may continue to the 70 to 120 hour range, or possibly
beyond for the hardest resisters, but inno case exceed the IgO-hour time limit." lei at 15.' If tbe
medical or psychological pwonnelfind contraindications, sleep deprivation will end earlier. See
iei at 15-16. While 'continuing the uSe ofsleep deprivation, nudity, and dietary manipulation, the
.interrogators may add cramped confinement. As the detainee begins· to cooperate, the
interrogators "begin gradoal1y to d'ecrease the use ofinterrogation techniques.'" Jd at 16. They'
may perinit the detainee to sit, sopply clothes, and provide more appetizing food. See id
The entire process in tltis "prototypical interrogation" may last 30 days. Ifadditional
time is required and a new approval is obtained from headquarters, interrogation may go longer
than 30 days. l"{evertheless, "[o]n average," the actual use of interrogation techniques coverS a
period of three to seven days, but can yary upwards to fifteen days based on the. resilience ofthe
[detainee]." Ed. As in Techniques, our advice here is limited to an interrogation process lasting
no more than 30 days. See Techniques at 5.

U"e of the Walerboard in Combination with Other Techniques
Weonderstand that for a small number of detainees in yery limited cirmimstances, the
. CIA may wish It) use the waterboard technique. You have previously explained that the
wateriJoard technique would be \l:sed ooly if: (I) the CIAhas credible)ntelligence that a terrorist
attack is imminent; (2) there are "substantial and credibl e indicators the subject has actionable
intelligence that can prevent, disrupt or delay this attack"; and (3) other interroglition methods
.have failed or are unlikely to yield actionable intelligence in time to prevent the attack. See'
Attachment to.Letter from John A- Rizzo, Acting General Counsel, CIA, to Daniel Levin, Acting
Assistant Attorney General, Office ofLeg;l1 Counsel (Allg. 2, i004). You hilye also inform~' us
that the wateriJoard may be approved for use with a given detainee only during, at most, Ol;e
single 30,day period, and tliat during that period, the wateriJoard techiJique may beiJsed on no
more than fiVe days. We further understand that in any 24-hour period, interrogators may use no
more than twO "sessions" ofthe waterboard on a subject-with a "session" defined ti) mean the
time.that the detainee is strapped to the wateriJoard--and that no session may last more thin two
houts~feo"'er, during any sesslo"n,the nu'iUber offndividual applications ofwater lasting I0
seconds or longer may not eXl:eed six. The maximum length of any application ofwater is 40
seconds (you have infonned us ·that this maximum has rarely been reached). Finally, the total
=o:----'-1oomttlative limeof-al .
.•
- .. ngtlrnra·:t4~ffuUt'~rrmr-maYfioreXCeoo 12 .
minutes. See Letter IrO
sociate yeneral Counsel, CIA, 'to Dan Levin;
Acting Assistant Attorney .enera, Office ofLegal Counsel, at 1-2 (Aug. 19; 2004).

• As in'Techniques, our advice here is lestriete4 to one application ofno more than lEO·ho1JIS ofsleep

deprivation.

. . '

'.

57

(TUE)MAY

FRET!

TOP

10 2005

17~$,O/ST. 17:"SI'NO.lfl()04~~715 ~

N~RN

You have advised us that in those limited cases WQere the waterboard would be used, it
would be used only in direct combination with two other techniques, dietary manipulation and
.sleep deprivation. See April 22.ax at 3-4. While an individUal is physically on the
waterboard;the CIA does not use theatteritiongrasp, walling, the facial hold, the faciafor insult
slap, the abdominal slap, cramped-confinement, wall standing, stress positions, or water dousing,
though some or all ofthele techniques may tie used with the individual before the CIA needs to
resort to the waterboard, ahd we understand it is possible .that one or more of these techniques.
. might be used on the same day as a waterboardsession, but separately·from that session and not
in conjunction with the waterboard, See Id at 3.
As we discussed in Techniques, yoU have informed us that an individual unaergoing the
waterboard is always placed on a fluid diet b~fore he may be subjected to the waterboard in order
to avoid aspiration offood matter. The individual is kept on Ihefluid diet throughout the period
the waterboard is used. For this· reason, and in this way, the waterboard is used in combination
with dietary manipulation. See April22_m: at 3 . '
.
You have also described how sleep deprivation may be used prior to and during the
.waterboard session, lei. at 4. We understand that the time limitation on use pfsleep deprivation,
_il,S, s§J.:fo.rtlUn.1'e:phn;ques, c<;ntinuesto be-strietl;v monitore<hnd'>mforcenWhen sleep
. deprivation is used in comhina.'
. h the waterboard (as it is when used in combination with
other techtiiqucs). See April iJ
. ax atA. You have also informed us· that there Is no
evidence in literature·or experience at sl ee,p deprivation exacerbates any harmful effects of the
waterboard, tbough it does reduce .the detainee's will to resist and thereby contributes to tlie
effeqtivenessof the waterboard as an interrogation technique, Iii As in Techniques, we
understand tha.t in the event the detainee were perceived to be unable to withstand the effects of
the w.aterboard for any reason, any member ofthe. interrogation team has t~~tion to
intervene and, ifnecessary, to halt the Use of the waterboard. See April ZZ. . . .ax at 4.
..

. The issue of the combined effects oflnterrogaiion techniques raises complex ~d difficult
questions· and comes to us in a less precisely defined form than the questipnstreated inour .
earlier opinions. about individual techniques. In evaluating individual techniqUes, we turned 10 a
body: of ex~rience developed in the·use of analogous techniques in military training by the
Unit~ates, ·to mediclI literature, arid to thh judgment of medical personnel. Because there is
. less certainty and definition·about-the use of techniqu~ in combination, it is necessary to draw
more inferences·in assessing' what may be expect,d.· You have informed us that, although "the .
. •··exemji1ar[tfuifiS";·t1te'protb1'ytmjjinIiterrogauorlJm~lmpresenmti5tfili1fovjffies~tec1fiJfqtfes ..
are actually employed," "there IS no template or script that states with certainty when and how
these techriiques will be used in combination during interrogation,~ .Bqckgr01liid Paper at 17.
Whether aJiy other combination oftechniques would, in the relevant senses, be like the ones
presented-whethei-the combination would be iwmore Jil;ely to cause severe pkysical or mental
pain or suffering within the meaning ofsections 2340-2340A-would be a question that cannot
be assCI;sed in the context of the present legal opinion. For that reason, our· advice does no!
e:ittend to combinations oftecbniques uhlike the ones discussed here. For the same reason, ilis
especially important that the CIA use great care in applying these various techniques in·

TOP.¢RET/~Ol~tRN

58

FROM $ITE

15

(TUE)~'AY

DOJ

TOP

102005 17:50/ST.17:4.S/NO.6160449115 P 59

sfCRET~~RN

,combination in a real-world scenario:and tJiat the members of the interrogation team, and the
attendant medical staff, remain watchful for indications that the use of techniques in combination
may be having unintended effects, so that the interrogation regimen may be altered or halted,if
necessary, to ensure that it will not result in severe physical at mental pain or suffering to any
detainee in violation of 18 U,S.C, §§ 2340-Z340A.
Finally, in both ofour previous opinions about specific techniques, we evalua.ted the use
of those techniques on particular ideniified individuals. 'Here, we are asked to address the
combinations without reference to any particular detainee. As is relevant here, we know only
that an enhanced interrogation technique, such as most of the techniques at issue in TechniqUes,
may be used on a detainee only ifmedical and psychological persOnnel have determined that he
, is n<Jt likely; as a result, to experience severe physical or mental pain or suffering:, Ti'chniques at
5. Once again; whether other detainees would, in the relevant ways; be like the' ones previously
at issue, would be aJactuat question we cannot now decide. Our advice, th~efore, does not
extend to the use of techniques on detainees unlike those we have 'previously considered.
Moreover, in this regard, it is also especially important, as we pointed out in Techniques with
respt:ct to certain techniques, see, e.g., id at 37 (discussi~g sleep deprivation), that the CIA will '
carefully assess the condition of each individual detainee and that tbe CIA' 5 use of these
,techniques in combination will be sellSitlve to the IndiVi,dualized physicat condition and reactions
of each detainee, so ,that the regimen-of interrogation would be altered'or halted, ifnecessary, in
the event ofunaoticipated effects on a particulatdetainee.
Subject'to theSe cautions and to the conditions, limitations,and safeguards set out below
arid in Techniques, we nonetheless can rw;h some concJusi<?ns about the co~bined use of these
techniques; Although this is a'difficult question that will depend on the: particular detainee, we
do not believe thattne use ofthe techniques in combination as you have descn'bed them would
be expected to inflict "severe physical or mental pain or suffering" within the meaning ,ofihe,
statute. 18 U.S,c. ,§ 2340(J). Although the combination of interrogation teChniques will wear a
detainee ,down physically, we understand thattlie principal effect, as well as the primary goal, of
interrogation using these techniques is psychological-"to create a state oflearned helplessness
and dependence conducive to the collection ofinteUigence in a predictable, reliable, and
sustainable manner," Background Paper at I-and numerous precautions are designed to avoid
inflicting "severe physical or men1al pain or suffering."
"''''Fo'r'present purPoses, ;'e may dividi"severe physical or meilt.;:! pain or suffering" into
three categories: "severe physiciU ... pain," "severephysic.al ... sufferlng," and "severe; ..
l11entalpain or suffering" (Ihe Iast~eing a defined term under the statute), See Techniqt!es,at 22-

As explained below, any physical pain resulting from the use ofthese techniques, even iri
combination, cann<t'reasonably be expected to meet Ihe level of "severe physical pain"
contemplated by the statute. We conclUde, therefore, Ihatthe authorized use in combination of
these te?hni=r adequately trained interrogators: as describ~ in th~ Background Paper and
the Apnl22.,axi could' not reaso~bly be consldered specdically Intended to do so.
'

TOP~RET/~oImlN .

'FROM

SITE

15,

DO,)

{TUE)MAY

10 200S

17:50/SY.17:45/NO'. 616Q4ZS715

Moreover, although it presents a closer question under sections 2340-2340A, We conclude that
the combined use of these'techniques also cannot reasonably be expected to-and their
combined use in the authorized manner by adequately trained interrogators could not reasonably
be considered specifically intended te>--Wuse severe physical suffering: Although two
teclmiques, extended sleep deprivation and, the waterboard, may involve a more substantial risk
of physical distrlfs
' thing in the other specific techniques discussed in the Backgratil1dPaper
and the April 22
ax, or, as we understand it, in the CIA's experience to date ."''ith the '
interrogations 0 more than 'two dozen detainees (three ofwhose interrogationsinvo)ved the usc
of the waterboard), woilld lead to the expectation that any physical discomfort from the
combination of sleep deprivation or the watethoard and other techniques would involve the
degree ofintensity and duration of physical distress sufficient to constitute severe physical
suffering under the statute. Therefore, the use of the technique could not reasonably be viewed
as specificalJy intended to cause severe physical suffering. We stress again, however, that these
questions concerning whether the combined effects of different techniques may rise to the level '
of physical suffering within the meaning of sections 2340-2340A are difficult ones, and they
reinforce the need for close and ongoing monitoring by medical and psYchological personnel and
by all members ofthe interrogation team and active intervention if necessary.
Analyzing the combined techniques in·terlrts of severe mental pain or suffering raises two
. questions under the statute. The first is whether the risk ofnallucinlltions.from sleep deprivation
may become exacerbated when combined with other techniques, such that a detainee might be"
expected to experience "prolonged mental harm" from the <Xlrt1bination oftechniques. Second,
the description in the Background Paper that detainees may be specifically told that interrogators
will "do what it takes" to elicit infonnation, id. at 10, raises the question whether this statement
might qualify as a threat of infliction ofSevere physiCal pain or suffering or another of the
predicate acts required for "severe merital pain or suffering" under the statute. After discussing
both ofthose possibilities below, however, we conclude that the authorized use by adequately
, trained interrogators of the techniques in combinatioll, as you haVe -described them, would not
reasonably be expected to cause prolonged mental harm and could not reasonably be cOJlSidered
specifically intended to cause severe mental pain or suffering. We stress that these possible
. questions about the combined use of tho techniques ujlder the statutory category "Of severe mental
pain or suffering are difficult ones a"nd they serve to reinforce the need for close and ongoing
monitoring and active intervention if necessary.

Seve;'ff1hysical Pain "

"

Our two previous opinions have not identified an techni ues that would inflict, ain that
--approac
e 'Severtiff]" reqUired to vloliife the statute.-A num&er of the technique&-<:!iclaty manipulation, nudity, sleep deprivatioll, the faciai hold, and the attention grasp-are not
expected to cause physical pain at alL See Techniques at 3Q.36.' Others might cause some pain,
but the level ofpain would not approach that which would· be considered "severe." T!lese
techniques. are the abdominal slap, wat~ doilsing, various sq-ess po-sitions, wall standing,
cramped confinement, walling, and the facial slap. See tel. We also understand that the
waterboard is not physically,painful. Ie£. <It 4L In part becaUSe none oftbese techniques would
individually cauSe pain that even apprcraches the "severe'~ level required to violate the statlite, the
combined use ofthe techniques,under the conditions outlined here would not be expected to-

TOP s:sCRET~{)",.{l'''''·T

P

60

fRo~

~lTe

15

(TU~>"MAY

OOJ

10

200S

(7:S0/sT. i7:45/NQ.5toS04-2:$71'5 P 51

TOPS~'f/~~RN
and we conclude·that their authorizeOuse by adequately tralned interrogators could not
reasonably be·considered specifically intended to-reach that leve!.'

yve recogni~e the theoretical possibility that the use of one or more techniques would
milke a detainee more susceptible to severe pain or that the techniques, in combInation, would ..
operate. differimt.ly from the way they would inqividually and thus cause severe pain, 'But as we
understand the experience involvIng the combination of various techniqtJes, the OMS medical.
anq psychologIcal personnel have not observed any such incr~e in susceptibllity. Otherthan
·the waterboard, the specific teciuiiques under consjqeration in this me.dum~inCIUding
sleep deprivation--'have been applied to more than 25 ·detainees. See
ax at 1-3, No
apparent increa,se in susceptibility to severe pain has been observed ei er when techniques are
used sequentially orwhen they are used simultaneously-for example, when an insult slap is
simultaneously combined Mth water dousing ora kneeling stress position, or when wall standing
is simultaneously combined with anabqominal slap and water dousing. Nor does experience
show that, even apari from changes in susceptibility to pain, combinations ofthese techniques
,cause the technilj\les to operate differently so as to cause severe pain. OMS doctors and
psyohologists; moreover, confirm that tpey expect tharthe techniques, when combined as
described in the BackgroundPaper and in theApr/i22 .ax,would not operate in a different
manner from the way th~y <to iodividua~ly, sO·JlS to cause·w"er-e pain,
. .
We understand that ·exp.erience ~upports these conclusions. even though the BackgrOilnd
Paper does give exanlples ",here the distress caused by one teclinique would be increased by use
of another,. The "conditfoning techniques"-nudity, sleep deprivation, and dietary .
manipulatio1)~app~r designed to wear, dO,wn the detainee, physically and psychol~gic~ ..
to allow .()ther techniques to he more effectiVe, see BackgroundPaper at 5,12; Apnl 22"ax
at 4; and ".these [conditioning] techniques are used in coJIlbination ill almost all cases,"
13ackgroundPaper at 17. And, in·another example, the threat ofwalling is used to cause a
.. detainee to hold stress position longer than he otberwj~e lVo.uld, .See id 14. The issue raised
by the statute, however, is whether the techniques w<:luld be specifically intended to cause the
·detainee to experience "severe ... pain." IS U.S.c. § 2340(1), In the case of the conditioning

a

at

.'1 .we ar,;not suggestij1g tlult combinations or repetitions of a<;IE iliat do ~Ol indiYidtclly cause severe
physical win could not reSult in severe Physical paiD' Olher than the repeated use of ilie "walling" technique,
h~<>tbirig'in the &<kgroundpaper- sugg¢sts .!he kind o(repetition tlult might "'is< an issue aboul severe
· physical pain; ~ In !he case of walling, wiiun~~d .that this techniqiIe Involves a false, flexi"l. wall aixI is n<>t
signLfiC!"ltly painful, even;1i1th rep<titiOIL Our ~ce with IeSpeOt to walling in the present memorandum l.s based
on Ille undctstanding that lite repetitive use of W;i.lfUJg is intended oidy io increase the shock and dtamaoflhc
==""",==="".ilhtcl_m,"j~a-weaf-doWn-tbe-detajD::.. t¢~tF.ttiSttIp,expwtatiiliE UJj;11C:-\in.l1~t &5.tieated WIth Iofcc,
and that suoh use is not intende!J to, and doeS not:in fact, eaUSi: severe physicarpaln to the delaiJJee. Along these
lines, We 1llIders!aIldth.(l! the~~ use oflb.e\\lsUllsJapandlhe alJdominal slap.gIlIduaIlrreduces their
.
. .effectiveness lllId tlult lb.eif use is -th~rl> limited to times when tile defainoo's own disreSpect ror lbe question or

· questionerrequlres il!llllediale com:ction, when tberlelaiJJee displar< o!>vioiJs efforts lomiSdirect or ignore the
question or questioner, or.when the det!inee attempis to provide ail obvious lie In response.!o a'specific question.
Our advice assumes tlult the interrogators will apply those teclm).ques as designed and will not strike the delainee
with excessi"" force or repetition ill a iIlal\l1er thatmight result inwverepbysical p~ As to all techniques, our
advice assumes that the use ofthe te::lutique Will be stopped inhere is any indication that it is or may be causing
severe physical.pain 10 the detainee,
.

\
\

\

\
\

FROM SITE

15

DOJ

(TUE)MA,Y

10

20o-S

17,SO/ST, 17:45/NO,6160<l2971S P 62

TOP ,¢5'RET/~O~
techniques, the principal effect, as y~~ have described it, is on the detainee's will to resist other
techniques, rllt
than on !he pain !hat the other techniques cause. See BackgroundPaper at 5, .
12;Apri! 2l
ax at 4. Moreover, the stress positions and wall standing, while inducing
muscle fatigue, 0 not cause "severe physical ... pain:' and there is no reason to believe that a
position, held somewhat longer than otherwise, would create such pain. See Techniques at 3)~~

.

In any particular case, a combination bfteclmiques might have unexpected' results, just as
an indi_da
echniquecould produce surprising effects: But the BackgrowulPaper and the

April 22
ax, as well as Techniques, describe a system of medical and psychological
monitoring 0 the detainee that would very likely identify any such unexpected results as they
begi n to occur and would require an interrogation to be modified or stopped if a detainee-is in
danger of severe physical pain. Medical and psychological personnel assess the detainee before
any interrogation srarts. See, e.g., Techniques ats. Physical and psy.chological evaluations are
completed daily during any period in which the interrogators use enhanced techniques, including
those at issue in Teclmiques (leaving aside dietary manipulation and sleep deprivation of less
\han 48 hours). See id at 5-7. Medical andpsycnological personnel are on scene throughout the
interrogation, and are physically present or are otherwise observing during many ofthe
techniques. See id at 6-7. These safeguards, which were critically important to our conclusions
about individual techniques, are even lIlore i;ignificant when techniques are combined.
In one specific context, monitoring the effec~etainees appears Particularly
important. The Background Paper and theApril22.,ax illustrate that sleep deptivation is a
'central part of.the "prototypical interrogation." We noted in Techniques that extended sleep
deprivation may cause a small decline in body"temperature and increased food consumption. See
Techniques at 33-34. Water dousing and dietary manipulation and perhaps even nudity may thus
raise dangers of enhanced susceptibllity to hypothermia or other medical conditions for a
detainee imdergoing sleep deprivation. A1J in Techniques, we assume that medical personnel will
be aware of these possible interactions and wilt monitor detainees closely for any. signs !hat such
. 'interactions are developing. See id at )3·35. This monitoring, along with quiCK intervention if
.any siSns ofproblematic symptoms develop, can be expected to prevent a detainee from
. experHmcing severe physical pain.

w W~so unders~and that some studi~.'suggestJhat extended ~L~~p deptiva~jon may be
asSOCIated WIth a reduced tolerance for some forms of pain.' Several of the techmques used by

,.?w' advice about wall ~tanding and stress OOgtions a~s Ihat tbe.pasftions I1sedin..eaclt.techn.iWc..art'

====.'iiillQ(iifililliS§ffilgnmcdto proouce severe paln lllat migJ\lresult from cOntortions or tWisting ofthe body, but only temporary

muscle fu.ligue.

. 1 For example, one study found a statistically significant drop of 8-9>1t insubjects'· tolerance thresholds for
mechanical or pressure pain after 40 hours o!total'sleep deprivatioll See S.HakId Onen, et at, The Effects ofTotal
Sleep Deprivofion. Selective Sleep 1111el71lplion and81eep"Recovery on Pain Tolera/fce Thresholds InHealthy
Su!JJ~t., 10 J. Sle<:p Research 35,41 (2QQI); ..e ol.m Id. a135-39 (diSC\lssing oiber studies). .A!Iol:h~ study of
exten~ total sleep deprivation found a signifiCant dCC(CalC in the threshold for heal pain and some decrea~e in tile
ccld palll threshold. See B. Kundermann, et aI., SleepDepriYation Afficti TherilUll PaIn Thresholds bul nor
Somatosensory Thnsnofds in Healthy Volunteers, 66 Psychosomalic Med:932 (2004).

_.

FROM SITE

15

DOJ

(TUE)M'"y 10 2005

17:S<l/sT. f7;45/NO. 616'Q4:'2:97IS P 6'3

the CIA may involve a degree of physical pain, as we have previously noted, including facial and
abdominal slaps, walling, stress positions, and water dousing. Nevertheless, none ofthese
techniques would cause anything approaching severe physical pain. Because sleep deprivation
appears to cause at most only relatively moderate decreases in pain tolerance, the use of these
techniques in combination with extended sleep deprivation would not be expected to cause
severe physical pain.
'

16 (Ill). Ga. 21)~ (stlUidard met uUdeJ me: I YEA 6y a course of condu.ct that inclUded severe
beatings to the genitals, head, and other parts ofthe ,body with metal pipes and various other
Items; removal ofteeth with Illters; lOcking iidheface and ribs; breaKing ofboiies inildbs and
dislocation of fingers; cutting a figure into the victim's forehead; haIiging the victim and beating
him; extreme limitations offood and water; and subjection to games of"Russian rouletten ).
In Techniques, we recogniz;ed that, depending on the physical condition and reactions of
'. agiven individual, extended sleep deprivation might cause physical distress in some cases. Id at
34. Accordingly, vie advisedtbat the strict limitations and safeguards
adopted by the CIA are
.
,

F~OM

SITE

15

(TUE)MAY

DOJ

TOP

10

<005

17:50/ST. 17: 45,t'NQ. 6160429715

p 6<1

~RET/~Oy6R.-'N

important to ensure that the use of exiende'd sleep deprivation would not cause severe physical
suffering. Id. at 34-35. We pointed to the close medical monitoring by OMS of each detainee
subjected to sleep deprivation, as well as to the power ofany member of the interrogation team
or detention facility staff to intervene and, in particular, to intervention by OMS if OMS
concludes in its medical judgment that the detainee may be experiencing extreme physical
distress. With those safeguards inpIace, and based on the assumption that they would be strictly
followed, we concluded that the authorized use ofsleep.deprivation by adequately trained
interrogators could not reasonably be considered speciflca!lyintended to cause such severe
physical suffering. Jd. at 34. We pointed out that "[d]ifferenUndividual detainees may react .
physically to sleep deprivation in different ways," Id., and we assumed that the interrogation
team and medical staff "will separate!ymonitoreach individual detainee who is undergoing
sleep deprivation, and that the application ofthis technique.will be sensitive to the individualized
physical condition and reactions of each detainee." Iii.
AlthOUgh it is difficult to calculate the additional effect of combining other techniques
with sleep deprivation, we do not believe that the ad9ition of the other tecnniques as described in
the Background Paper would result in "severe' physical ... suffering." The other techniques do
not themselves inflict severe physical pain. They are not ofthe intensity and duration that are·
necessary for "severe physical suffering"; instead, they only increase, over a short tillie. the
discomfort that a detainee subjected to sleep deprivation expenences. They do not extend the
time at which sleep deprivation would end, and although it is possible that the other techniques
increase the physical dis.comfort associated with sleep deprivation itself, we cannot say that the
effect would be so significant as .to cause "physical distress that is 'severe' considering its
intensity and duration or persistence." Techniques at 23 (internal quotation marks omitted). We
emp~size that the question of"severe physical suffering" in the context of a combination of
techniques is a substantial and difficult one, particularly in light ofthe imprecision in the
. statutory standard and the relative lack ofguidal)ce in lhe eaSe law. Nev~heless) we believe
thatlhe combination oftechniques in question here would not be "extreme and outrageous" and
thus would .not reach the high bar establishedby Congress in sections 2340-2340A, which is
reserved for actions that "warrant the univerSllI condemnation that the iertn 'torture' both
connotes and invokes:" See Price v. SocialiSt People s Libyan Arab Jamahiriya-, 294 FJd at 92
(interpreting the TVP A)
-"RjlJt,-~ explainet!,.in Techniqt{es., exjle,genCll wlthelClended si~ deprivation shows that
"'[s]urpnsingly, little seemed to go wrong with the subjects physically. The main effects lay
with sleepiness and impaired brain functioning, but even these were no great cause for concern.'''
ld. at 36 ( uotin James Home Wh
ca'
Mammals 23-24 19&8». The aspects ofsleej> deprivation that might result in substantial
physical discomfort, therefore, are limited in scope; and although thedegtee ofdistress
associated with sleepiness, 8$ noted above, may differ from person to person, the CIA has found
that malty of the at least 25 detainees subjected to sleep deprivation have tolerated it well. The
general conditionS in which sleep deprivation takes place would not change this conclusion.
Shackfing is employed as a passive means ofkeep inS a detainee awake and is used in a way
designed to prevent causing significant pain. Adetainee is not aHowed to hang by his wrists.
When the detainee is shackled in a sitting position, he is on a stool adequate to bear his weight;
and if a horizontal position is used, there is no additional stress on the detainee's arm OT leg

\

\

\
\

FROM

S'~TE

15

nUE)MAY

DOJ

TOP

fO .200'5

17:S1/ST.17:45/~O.G160<429?1? P as

S,lRET/~~RN

joints that might force his limbs beyond their natural extension or create tension on any joint.
Furthermore, team members, as well as medical staff, watch for the development of edema and
will act to relieve that condition, should significant edema develop. If a detainee subject to sleep
deprivation is using an adult diaper, the diaper is checked regularly and changed as needed to
prevent skin irritation.
Nevertheless, we revognize, as noted above, the possibility that sleep deprivation might
lower a detainee's tolerance for pain. See supra p.l3 & n.9. This possibility suggests that use of
extended sleep deprivation in combination with other techniqueslllight be morl} li\CelX than the
separate USe of the techniques to place the detaineein a state ofSevere. physical distress and,
therefore, that the detainee. might be. more likely to expe.rience Be,'ere physical suffering.
. However, you have informed us thatthe interrogation techniques at issue would not be used
dUring.a cOurse of extended sleep deprivation with such frequency and inte.nsity as to induce in
the d'etainee a persistent condition of extreme physical distress such as may constitute"severe
physical suffering" within the meaning ofseetiqns 2340-2340A. We understand that the
combined use ofthese techniques with extended sleep deprivation is not designed or expected to
cause that result. Even assuming there could be such an effect, members ofthe interrogation
. team and medical stafffrom OMS monitor detainees and would intercede ifthere were
indications that the combined use of the techniques may be having th8.t result, and the use of the
.techniques would be reduced in frequency or intehsity or halted altogether, as necessary. Inthis
regard, 'we assume that ifa detainee started to show an atypical, adverse reaction during sleep
deprivation, the system for monitoring would identify this development.
These considerations underscore that the combination of other techniques with sleep
deprivation magnifies the importance of adhering strictly to the limits and safeguards applicable
to sleep deprivation as an individual technique, as well as the understanding that team personnel,
as well as OMS medical personnel, would intervene to alter or stop the use ofan interrogation
technique if they conclude that a detainee. is. or may be experiencing extreme physical distres·s.
The waterboard may be used simultaneouslywith two other techniques: it maybe used
during a course of sleep deprivation, and as explained above, a detainee subjected to the
waterboard must be under dietaty manipulation, because a fluid diet reduces tlle risks of the
technique. Furthermore, although the insult sIap, abdominal slap, attention grasp, facial hold,
wall~w~r. dousing,~stress jJositi~Ils" andf,o/amped_confinement c~ot bee,mployoo,du?ng
tJ;1e ac.. iil session when t.he wa:erboa:rd IS bems. employed, they ~~sed at a pomt m time
close to the waterboard, mcludmg on the same day. See April22~ax at 3.

In·"nchniques, we expJamedWfiynelther sleep deprivation nor the waterhbard Would
impose distress of such intensity and duration as to amount to "severe physical suffering," and,
depending on the circumstances and the individual detainee, we do not believe the combination
of the techniques, even if close in time with other techniques, would change that conclusion.
Tbe physical distress ofthe waterboard, as explained in Techniques, lasts only during the
relatively short periOds during a session when the technique is actually being used. Sleep
deprivation would not extend that period. MOfe<Jver, we understand that there is nothing in the
literature or experience to suggest that sleep deprivation would exacerbate any harmful effects of .
the waterboard. See supra p. 9. Similarly, the use ofthe waterboard would not extend the time

FROM sITE

16

(TtJE)t.'lA'I'

DOJ

102005

17:51/ST.17:4S/NO. 5:16042.9715 ?

TOP}'CRET~096RN
of sleep deprivation or increase its dis'tress, except during the relatively brief times that the
technique is actual! J' being used. And the use ofother techniques that do not Involve the
intensity and duration required for "severe physical suffering" would not lengthen the time
during which the waterboard lYould be used or increase, in any apparent .way, the intensity ofihe
distress it would cause. Nevertheless, because both the waterboard and sleep deprivation raise
substantial questions, the combination ofthe techniques only h~ightens the difficulty of the
issues. Furthermore, particularly because the waterboard is so different from other techniques in
its effects, its use in combination with other tecluilques is particularly difficult to judge in the
abstract and calls for the utmost vigilance and care.
Based on·these assumptions, and those described.at length in Techniques, we conC.lllll.athat the combination of techniques, as described in the BackgroundPaper and tile April ~2"
Fax, would not be expeci:ed by the interrogators to cause "severe physical, . , suffering," 'ilnd that
the authorized use ofthese techniques in combination by adequatelytralneq interrogators.could
not reasonably be considered specifically intended to cause severe physical suffering within the
meaning ofsections 2340-2340A.
'Severe Menial Pain or Suffering

As we explained in Techniques, the statutory definition of"severe mental pain or
. suffering"· requires that one offour specified predicate aets cause "prolonged mental harm,:' 18
U.S ,C. § 2340(2); see Techniques at 24-25, In Techniques, we concluded that only two ofthe
techniques at issue- here-sleep deprivation and. the wateri:>oard-oould even arguably involve a
predicate aet. T!)e statUte provides that "the administration or appJicatl()n .'.. of , , . procedures
calculated to disrupt·profoundty the senses orthe personality" can be a predicate act, 18 D.S.C.
§ 2340(2)(8), Although sleep deprivation may cause hallucinations, OMS, supported'bYfhe
scientific literature ofwhich we are aware, would not expect a profound' disruption ofthe senses
and would order sleep deprivation discontinued if hallucinations occurred. We nonetheless
assumed in Techniques that any hallucinations resulting from sleep deprivation would amount to
a profound disruption of the senses. Even on tms assumption, we cqncluded that sleep
deprivation should not be deemed "calcutated'~ to' have- that effe.ct. Techniques at 35-36.
Furthermore, even if sleep deprivation could be said to lie "calculated" to disrupt tile senses
profoundly and thus to quality as a predicate act, we expressed the understanding in Techniques
that, as .de\ilonstrated by the scientific literature about which-we knew and by relevant experience
in C~f(ogations, tile effeCts of siiep deiirivation,-including the e!rects of any assoqiated
hallucinations, 1Y0uld rapidly dissipate. Based on that understanding, sleep deprivation therefbre
.would not cause "prolonged mental harm" and would not meet the statuto de ..
We noted In Techniques that the use of the waterboatd might involve a predicate·act. A
detainee subjected to the waterboard experiences a sensation ofdrowning, which arguably
qualifies as a "threat ofimminenl death." 18 U.S.C. § 2340(2){C). We noted, however, that
there is no medical basis for believing that the technique would'produce any prolonged mental
. harllL As explained in TechiJiques, there is no evidence for such prolonged mental hann in'the
CIA's experience with the tecltoiql,le,and
we understand that it has been used
thousands of1imes
.
.

56

FROM

~ITE

15

CTUE')MAY 10 2005 17:51/ST.·17~15/N6.G16042:S715P 57

DOj

TOP

¢RET~9ioRN··

(albeit in a somewhat different way) during the military training of United States personnel,
without producing any evidence of such harm.
There is no evidence that combining other techniques with sleep deprivation orthe
waterboard would change these conclusions. We understand that none of the detainees subjected
to sleep deprivation has exhibited any lasting mental harm, and that, in all but one case, these
detainee:> have been subjectied to at least some other interrogation technique besides the sleep
deprivation itself. Nor does this e~rience give any reason to believe that, should sleep
deprivation cause hallucinations, the use of these other techniques in combination with sleep
deprivation would change the expected result that, once a person subjected to sleep deprivation is
allowed to sleep, the effects ofthe sleep deprivation, and of any associated hallucinations, would
rapidly dissipate.
. .
Once again, our advice assumes continuous, diligent monitoring ofthe detainee during
sleep deprivation· and prompt intervention at the first signs ofhallucinat(lry expenengeS. The
. absence of any atypical, adverse reaction during sleer deprivation would buttress theinference
that, like others deprived of sleep for long periods, the detainee.wouldfit within the norm
established by experience with sleep deprivation, both the general.experience reflected iMhe
medical literature and the CIA's specifie experience with other detainees. We understand that,
based on these experiences, the detainee would be expected to return quickly to his Jior~
mental state once he has been allowed to sleep .and would suffer no "prolonged mental harm,"
Simllarty, the CIA's experience ha'; prod\lced no evidence that combining the wateiboard .
and other techniques causes prolonged mental harm, and the same is troe of the milltary training
in which the technique wasused. We assume, again, continuous and diligent monitoring during
the use of the technique, with a view toward quickly identifying any atypical, adverse reactions
and intervening as necessary.
.
The Background Paper raIses one other issue about "severe .mental pain or suffering."
According to the BackgrwndPaper, the interrogators may tell detainees that they "wilt do what
it takes to get important information." Backiro1ll1dPaper at 10. (We understand that
interrogators may instead use other statements that might. be taken tei have a similar import,)
Conceivably, a·detainee might understand such a statement as athreat that, if necessary, the
inte_~ win immi!Jently subj~t\llm to:;scvere p'hysical pain o!:J)lffering".otto "the
admimstration or application of mind-alteririg substances or other procedures calculated to
disrupt profoundly the senses or the personality," or he perhaps even could interpret the
statement·as a threat of imminent death althou .as the detain~..hjmselfwo)Jldprnb\ilily .
rea IZe, I hng a detainee would ~nd the fIow-tifinformation). 18 U.S.C. § 2340(2)(A)-(C).
We doubt thatthis statement is sufficiently specific to qualify as a predicate.act under
section 2340(2). Nevertheless, we do not have sufficient information to Judge whether, in
context, detainees understand the statemel1t in any ofthese ways. Ifthey do, this statement at the
beginning of tbe interrogation arguably requires considering whether it alters the detainee's
perception of the interrogation techniques and whether, in light oflhis perception, prolonged
mental harm would be expected to result from the combination throughout the interrogation
process of all ofthe techniques used. We do not.have any body ofexperience, beyond the CIA's

iOP~CRE'l.'~OB6RN

"
FROM SITE

15

OdJ

(TUE}MAY

102005

17:61/ST.17:45/l'fO.6160ol29715 P

own experience with detaino:es, on whl ch to base an answer to this question. SERE training, for
example, or other eXperience with ~Ieep deprivation, does not involve its use with the standing
position used here, extended nudity, extended dietary manipulation, and the other techniques
which are intended "to create a state oflearnecl helplessness;" Background Paper at 1, and SERE
training does not involve repeated applications of the waterboard. A statement that the
interrogators "will do what it takes to get important information" moves the interrogations at
isSlie here even further from this bod yof expcrience..
Although it may raise a question, we do not believe that, under the careful limitations and
monitoring in place, the Combined use outlined in the Background Paper, together with a
statement of this kind, would violate the statute. We are informed that, in the opinion of OMS,
none of the detainees who have heard such a statement in their interrogations has experienced
"prolonged mental harm," such as post-traumatic stress disorder,see Techniques at 26 n.31, as a
result of it or the various t~hniques utilized on them. This body of experience supports the
conclusion that the use ofthe statement does not alter the effects that would be expected to
follow from the combined use ofthe techniques. Nevertheless, in light ofthese uncertainties,
you may wish to evaluate whether such a statement is a necessary part or the interrogation
regimen or whether a different statement might be adequate to convey to the detalnee the
seriousness of his situation.

•

•

•

In view of the experience from past interrogations, the judgment ofmedical and
psychological personnel, and the interrogation team's diligimtrnoniIorirtg of the effects of
combining interrogation techniques, int¢!Togators would not reasonably expect that the combined
. use ofthe interrogation methods under consideration, subject to the c.onditions and safeguards set
forth here and in Techniques, would result in severe physical or mental pain or iruffering within
the meaning of sections 2340-2340A. Accordingly, ~clude that the authorized use, as
described in the BackgroundPaper and the Apri/ 22...,-ax; oftheae techniques In
combination by adequately trained interrogators could not reasonably be considered specifically
intended to cause severe physical or mental pain or suffering, and thus would' not violate sections
2340·2340A. We nonetheless underscore that when these techniques are combined in a realworld scenario, the members of the interrogation team and the attendant medical staff must be
vigilant in :\Ut~hing for unintended effepjs, 59.that the individual charllcteristicsofeach detainee
are c~mtfy taken int;; aC<'Ount and the inteirogation-may bemodifi~d or halted, if necessary, .
to avoid causing severe physical or mental pain or suffering to any detainee. Furthermore, as
noted above, our advice does not extend to combinations oftechniques unlike the ones di~ __
. here,. and w!lellier any other combmation oftechniques would more likely to cause severe
physical or mental pain or suffering wIthin the meaning of sections 2340·2340A would be a
question that we cannot assess here. Similarly, our advice does·not extend to the .use of
techniques on detainees unlike those we have 'previously considered; and whether other detainees
would; in the relevant ways,be like the ones at issue in our previous advice would be a factual
question we cannot now decide. Finally, we emphasize that these are issues about which
reasonable persons may disagree. Our task has been made more diffIcult by the imprecision of
the statute and the relatiwabsence ofjudicial gUidance, but we have applied our best reading of
the law to the specific facts that you have provided.

oe

68

FROM SITE

15

DOJ

(TUE)-MAY

TOP

102005 17:51/ST.17:.4S/NO. 616iH29715 P 69

~RET/~~RN

Please let us know if We may be of further assistance.

~~

Principal Deputy Assistant Attorney General

.,