ACLU 2009 and DISCRETIONARY RELEASE
ACLU 2009
1.

31 August 2006 Letter to Rizzo from OLC
concerning Conditions of Confinement

2.

31 August 2006 Memorandum to Rizzo from
OLe concerning Application of Detainee
Treatment Act to Conditions of
Confinement

3.

2007 OLe opinion on Interrogation
Techniques

4.

23 August 2007 Letter from OLC to CIA

5.

6 November 2007 Letter from OLC to CIA

6.

7 November 2007 Letter from OLC to CIA
Discretionary Release

7.

11 June 2009 Memorandum for the Attorney
General written by David Barron

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U.S. Department of Justice

Office ofLegal Counsel
omu Qf the Assistant Atl~y General

Wa.shittglOll, D.C. ]0510

August31,2006

10hn A. Rizzo

Acting G-...necal Counsel
Centtal Intelligence Agency
Dear John:

You have asked for our opinion whether the conditions of confinep1ent used by, ~e
Cenlral Intelligence Agency ("CIA") in.covert overseas facilities that it operates as part of its
authorized program 10 capture and detain individuals who pose serious threats to the United
States or who are planning terrorist attacks are consistent with common Article 3 of the 1949
'Gellcva Conventions, On Friday. June 30. 2006,] advised you orally that the conditions of
confinement described herein are pennitt,ed by com~on Article 3. This letter. memorializes and
elaborates upon that advice.

Common Article 3, which appears in all four of the Geneva Convenlipns of 1949. appJies
in the "case ofarmed conflie:t not of &n international character oco.irring in the territo!)' of one of
the High Contracting Panies." E.g., Geneva Convention (ill) Rdaiive to the Treatment of
.
Prisoners of War. Aug. 12, 1949.6 U.S.T. 3316, T.I.A.S. 3364 ("'GPWj. It had been the
longstanding position ofthe Executive Branch that the phrase "not of an international character"
limited the applicabilitY of common Article 3 to internal conflicts akin 10 a ci"vii war and thus
that the provision was not applicable to lhe global anned conflict against al Qaeda and its allies.
'See Memorandum of the President for the National Security Council Re: Humane Treatment of
of Qaeda and TaMan Detainees at 2 (Feb, 7. 2002) (accepting the legal conclusion of the
Department of Justice that commOll Article 3 "does not apply to either a1 Qaeda or TaJiban
detainees, because. among.o,ther reasons, the relevant conflicts are international in'scope and
common Article 3 applies onry to 'armed conflicts not aD international character''').

or

In Hamdan \I. Rumsfeid, 126 S. Ct. 2749. 2795 (2006), however, the Supreme Court, by a
5-3 vote. concluded instead that the "term 'conflict not ofan international character' is used here
in contradistinction to a conflict between nations." On that basi~ the Court determined tbat
common Article 3 does apply to the armed c:onOict between the United States and al Qaeda. See
id. at 2795-97. The Supre~e Court's decision means that the "minimum protection» afford¢ by
.comrn,?n Article 3. id. a~ ~795, ~~... :~~~. ~!~~ ~~rs de com~ by sickness. wOI.mds, detention,

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or any other cause" now applies, as a matter of treaty law, to detainees held by the CIA in the
Global War all TClTor. GPW Art. 3. Where common Article) applies. the obligation 10 follow
it is also enforced by statute,. as the War Crimes' ACt provides that u any coni:Iuet" that "constilutes
a violation" of common Article 3 is a federal crime, punishable in some curomstances by the
"death penally. 18 U.S.C. § 24;41 (2000).
.

Common Miele 3 has been described as a "Convention in miniature." J ICRC,
Commentary: Geneva Conwntion Relat;ve to the Trealment.oj Prisoners of lYar 34
Pictet,
ed. 1960) ('GPW Commentary'). It establishes a set ofminimum standards applicable to the

(Jean

treatment of detainees held in non·international conflicts. Ihe most important aspect of common
Article] is its overarching requirement that detainees "shall in all circum~ances be treated

humanely, without any adverse distinction based on race, color, religion or faith. sex:, birth or
wealth,· or any other similar criteria." 6 U.S.T. at 3318. This requirement ofhumaoe treatment is
supplemented and.focused by the enumeration offoor more specific categories of acts that "are
and shall remain prohibited at any time and in a~y placewhatsoeve~." ld Those forbidden acts
are:

(a) Vio~nce to life and pt;rson, in paruculaJ" murder of all kinds, mutilation, cruel
treaJment and tOrture;
.
(b) Taking of hostages;

(c) Outrages upon personal. dignity, in particulaJ" humiliating and degrading
treatment;
(d) The passing ofsentences-aod the carrying out of executions without previous
judgment pronounced by a regularly constituted coort affording all the judicial
guarantees which:ice recognized ~ indispensable by civilized peoples.

ld. As applied to tho conditions ofconfinement used by the CIA, ilie prohibitions imposed by
subparn.graphs (a) and (c) are clearly the most relevant.
.
The five conditi9ns you have asked us t consid rare
facilities Ihat the CIA uses to detain individual
You .have advised us that those conditions are used to
address the unique and Sigril cant seQlnty concerns associated·with holding extremely.
dangerous terrorist..{letainees in·the kinds of cov.ert facilities· used by the CIA. The facilities in
which Ihe CIA hous~ these high-value detainees were not built as ordinary prisons, much less as .
high-security detention centers: for violent and sophisticated terrorists. In order 10 keep their
I Thi5 Iclltr is limited to ~aating the specifIC conditlans of CO'llfinemcnt discusscd ~in, at ~
We undelstand tbtthc 0;" is not cumDIJy usingany inl:emgaLion pm:tio:s at 115 ~
facilities lh1l WOlIld raiseJ U.:sn0ns ~ a;rmmo~ At!idc. J.. _

10 us by the CIA.

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ImItations, In tum, reqUIre at specla stx:urity measures be used inside the facihtles to ma}:;e up
.for the buildings' architectural shortcomings. It is in this unique context that the CIA has
imposed the conditions ofconfinement described hetcin.
To be sure, the nature and locatioll, oftheseJacilities, which prevent more elaborate and
conspicuous external security measures, is due to a choice that the United States made to hold

these persons secretly. As explained below, however, such secret detention is a condition
expressly countenanced by the Conventions themselves for the detention of same persons. Andaccomplishing such secret detention" has required increasingly discreet methods given the
advances intelligence technology since 1949. There is some evidence that common Article 3
establishes certain. "minimum" requirements for the treatment of detainees that cannot be
loosened by sale reference to the purpose of the condition of confinement. See, e.g., GPW Art.
3(l){providing that '\the following acts [subsections (a)-(d)] ar~ and shall remain prohibited at
any time and any place whatsoever"); "3 Pictet, Commentary, at 140 C'The requirements of
.
humane treatment and the prohibition ofcertain acts inconsistent with it are general and abSolute
in charncter."}. That does not mean, however; that the purpose underlying the cOnditiol1S· is
irrelevant to evaluating the nature of its prohibitions. Rather, some specific prohibitions in
common Article 3 specifying the overarching requirement of humane treatment, however, may
very wclllum on an evaluation.ofnecessity and purpose. See GPW Art 3(lXa) (prohibiting
"cruel treatme~t"); sei! also Hope 'Y. Pelzer, 536 U.S. nO,·737 (2002) (holding the '''unnecessary
and wanton infliction of pain" to be "cruel" under the Eighth Amendment). As explained below.
we believe the conditions of confinement imposed in these se<:ret detention facilities meet those
minimum standards of treatment. And we make referl!'nce to the challenges posed by the secret
and unfortified nature of these facilities 10 underscore that the United States is not imposing
wantonly whatever discomfort that these conditions might cause.

in

Before specifically evaluating each of the conditions ofconfinem~nt under common
Article 3, we offer some general9bservations on the scope ofthat provision. In doing so, we
begin with the telct ofthe treaty. See Societe Nationale Industriefle Aerospatiale 'Y. United Stales
Dist. Court, 482 U.S. 522, 534 (1987). There are other resources relevant here, including
Pictet's Commentaries;which were prepared on behalf of the Int~mational Committee ofthe Red
Cross shortly after the treaties were signed and on which the Supreme Court relied in Hamdan in
its· interpretat.ion of9Qmmon Article 3.
addition, the Supreme Court has held that the
d~isjons' offoreign lribunals charged with adjudicating disputes between signatories should be
given "respectful consideration_" Sanchez-Llamas v. Oregon, slip op. at 21 (June 28, 2006); see
also Breard v. Greene•.523 U.S. 371, 375 (1998). While not a tribunal given authority by the·
treaty to resolve such disputes, the Inlernational Criminal Tribun~1 for the former Yugoslavia
("ICTY''') has adjudicated war crimes prosecutions under common Article 3, and we address

In

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certain decisions ofthat tribunal below. 2
First, common Article J '5 overarching requirement of "humane" treatment clearly would
forbid housing detainees in conditions ofconfinement that are inhumane. That term suggests

conditions that are "not worthy of or conforming to the needs orOOman beings." Webster's
Third New International Dictionary 1163 (1967) (defining "inhuman"). Conditions that fail to'
satisfy the basic needs ofall human beings-to food and water, 10 shelter from extremes ofheat
or cold, (0 .reasonable protections from disease and infection-are thus obvious candidates for
violating cornman Article 3. This focus on the basic necessities of liCe in the require!J!.ent of
humane trealment is further emphasized by GPW Article 20, which includes its own humane
treatment requirement for prisoners ofwar under tra.ilsport and explicates thai requirement with
minimum standards offood, clothing, and shelter.- There is no'indication, however, that the
CIA's fadlit1es fall short on this score. To the contrary; we understand that all CIA detainees are
given adequat~ food and water.. The cells in which those defainees live arc kept at nomial
temperatures and are cleap, hygienic, and protected from the e1ement~. In addition, you have'
informed us, and we eonsider it significant for purposes ofcommon Article 3, that the CIA
provides regular medical care to all detainees in its custody. Please take careful note that to the
extent these basic obligations are included in common Article 3, they are binding as a matter of
domestic criminal law through the additional basis of the War Crimes Act, J8 U.S.C. § 244i.
Second, the text, structure, and purpose ofcommon Article 3 suggest that its strictures Me
aimed at treatment that rises to a-certain level'ofgravity and severity. After all, the provision
"reflects the fundamental humarutarian principles which underlie international humanitarian
law." Proseeutorv. Delalic. ICTY-96-21-A(App.) (Feb. 20, 2001) i 143. It protects against
treatment that is widely. ifnot universally. condemned 3s inconsistent with basic human values.
See id. (observing that common Article 3 incorporntcs the "most univerSally recognised
humanitarian principles"); GPWCommerilary at'35 (cOmmon Article 3 "at least ensures the
application oflhe rules ofhumanity which are recogniZed as essentiaJ by civilized nations'').
Only" conduct that is sufficiently severe Can properly be characterized as warranting and
recei~ing such widespread condemnation. This severity requirement is illustrated by tIle speci.fi.c
examples that common Article 3 gives of acts that are "prohibited at any time and in any place,"
particularly those found in subp;u:agraphs (a) and (c). As the lCRC,Commentaries explain,
.
. ~'[iltems (a) and (c) concern acts which world public opinion finds particularly revolting-acts
which were committed frequently during the Second World War." ld at 39:
.
More specifically, the prohibition in subparagraph (a) on "violence t.o life and person" .
suggeSts- that not all physical contact'with detainees is banned; the word "violence"'connotes "an

Z The anaI)'Sis sc) forth in this letter represenls oor best inlttpretation (If commoo Article J based on a
rigorous examinatiOll of the text, b.iSlory, aad structure oflbe Conventions,.as well ;IS other inlerprctive resoura:s.·
As ',\oe have slrcs:sed on JllmlelUOS occasions. howe~; there are vague terms in common Article J that lhe United
SUIts has Md liale or no opportunity previ~y 10 apply in JJl actual conflict, that are potcntWly malJcable.,·and

1113t could be illleJPf:'ed b-! c.~~,~~.~~~.~~~rent re.ru1lS.

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exertion of physical force so as to injure "or abuse." Webster.'s Third Nt!:W International
Dictionary 2554; set: alsc id. (defining "violent" as "characteriz.ed by eitreme· fo:rce''). The
text's examples of forbidden forms of violence only reinforce this meaning: "murder of aU
kinds, mutilation, cruel treatment and torture." This [ist suggests that, although the use of
physical force certainly lleed not rise to the level oftorture to be forbidden, it d9CS need· to bemore than incidental or de minimis an·~ must ~t least have the potential to cause a dli=gree of
actual hann to the detainee. Su, e.g., De/aUe, supra, ~ 443 ("[Clruel treatment is treatment
which causes serious me·ntal or physical suffering or constituted a serious attack uoIlOn human dignity, which {s equivalent-to the offense 0'£ inhuman treatm~nt in the framework ofthe grave
breaches ofthe Geneva Conventions':'); cf Whitleyv. Albers, 475 U.S. 312, 319 (1936)
(obsaving that the term "cruel" in the Eighth Amendment, requires ·'uMeteSS2.ry or wanton
in!1iction of pain"). What murder. mUtilation, crud treatment, and torture have in common ·is an
element of depravity and viciOllSness; that common dement suggests the kinds of force that
common Article 3 seele, to prohibiL &e gt.nuolly.DOle v. United Steelworkers ofAm., 494 U.S.
26, 36 (1990) ("'The traditional 'canon of ~struction, noscilur a &Odls. dictates ~hat words
grouped in a list sh?uld I)e given related meaning."). Also, the structure ofthe Geneva
Conventions makes clear that violence nec~sary to effcct detention is pennitted. Set. GPW Art.
42 (pennitting the use of force against prisoners of war attempting to escape).
Similarly, subparagraph (c)'s use of lhe.phrase "ou.trages upon personal dignity" should
be understood to mean a rdatively significant fonn of ill-treatment In this context, "outrage"
appears to carry the meaning,of"m act or condition that violates accepted standards." Webster's
Third at 1603;su also id. (defining "~trageous" as conduct that "is SO flagrantly bad that one's'
sense of decency or onc's power to $LIffer or tolerate is violated" and giving as synonyms
"monstrous; heinous, (and] .atrocious"); cf Knut DOrmann, Elements afWar Crimes·under the
Rome Statute afthe Intemaiional Criminal Court 315-16 (2002) ("Elements oj War Crimei')
(Qbserving tbat the Cambridge International Dictionary ofEnglish (1995) defines "outrage" as
"shocking, morally unaccepta~le and USlJaJly violent action"), UndeT ~ definitions,
constitute an "outrage upon perSonal dignity" within the meaning ofcommon Artic.le 3, an act
must violate some relatively clear and objective standard of-behavior or acceptable treatment; jt.
must be something t~at does not merely inSult the dignity of the victim, but that does so in an
obvious or particularly significant manner.

to

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faet fhat the basic prohibition of subparagraph (c) ·focuses on "outrages" also must
.. inform any analysis of what is covered by that provision's prohibili.on of "humiliating and
degrading treatment," suggesting that conduct must rise to 11 significant level of seriousness in
order to be ,forbidden. Importantly, the text is clear that "humiliating and degrading treatment" is
merely a subset of~outrages upon personal dignity." This text stands in contrast to provisions in
other treaties, such as Article· 16 of the Convention Against Tonure, in which prohibitions on .
"degrading" treatment stand·alone. A!; the ICTY has explained in addressing COnuIlOn Article J:

[O]utrages upon pe.rsimal dignity refer to acts which, without directly causing
harm to the integrity and physical and mental well-~in"8.ofpersons. are aimed at
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which is animated by contempt for the human dignity of another person. The
corollary is that the act must cause serious humiliation or degradation to the
victim.
Praseculor v. Alttkovski. ICTY-95-14/J. Trial Chamber I (June 25, 1999)~! 55-56. Similarly, in .
.disQlssing an identical prohibition in Article 75 of Protocol I to the Geneva Conventions, the
ICRC observed that it "refei-s to physical 2C(S, which, without directly causing harm to the
integrity and physical and m~ntaJ well-being of persons, are aimed at humiliating and ridiculing
them, or even forcing them to perform degrading acts." JeRe, Commm"tary on Additional
Pro('!C0ls of 8 June /977, at 873 (1987) Additional Protocols Commentary.'). In addition to
being pUJ1)osive, "outrages upon personal dignity" generally must be defined in relation to an
objective standard of unacceptable behavior. Thus, according 10 ICTY, tbe subjective element of
i!n outrage "must be' tempered by objective fac.lors; otherwise, unfairness to the accused would
result b~use ·his/her culpability ,",:ould dCP.tnd nbt on the gravity of the act but wholly on the
sensitivity ofthe victim. Consequently. an objecti....e component to the actus reus is apposite:
the humiliation to the victim must be so intense that the reasonable person would be ouuagtd."
Alellwvslci. supra. ~ 56 (emphasis added).
.

r

As with subparagraph (a). therefore, subparagraph (c) is properly understood as
proscribing conduct of a particularly serious nature, conduct" that is characterized by hostility 10.
burnan dignity. The prohibition does not reach trivial slights Of insults. but instead reaches only
those that represent a more fundamentarassauh on the dignity·ofme victim. See. e.g., id 131
('The victims wece not merely inconvenienced or made uncomfortab~ what they had to endure.
. under the prevailing circuII!stances, \¥ve physical and PsYchological abuse and outrages thata:ny
human being woald have experienced as sucli. j. At the same time. bo....'eVtr. it seems clear from
the text that SUbparagraph (~) prohibits a broadet" range of conduct than docs subparagraph (a).
Subparagrnph (a) is focused primarily, ifnot exclusively. on physical violence; the actions that it
foIbids arc those that can be expected to impose some direct pbysical harm on the detainee. In
contrast, the text of subparagraph (c) does not necessarily include an element of physical force; it
reaches actions that assault the detainee's mental or psychological well-being. treatment that
amounts to a signifieant attack on bis dignity as a human being without necessarily causing him
to suffer physically.

This element of intent ~nd purpose also r~ises the relevance ofcontext in applying
subparagraph (c). Certain activities may well be intended solely to humiliate and to degrade in
certain seltings, but may be undertaken for a legitimate purpose in others. For example, a
. syStematic practice of marching detainees blindfolded in public with the intcnt to humiliate miLy
so evince a "hostility to human dignity" as 10 run afoul of common Article 3. In·contrast,
obstructing the vision of the detainee during transport, with nO needless exposure to the public,
for the purpose or maintaining the security ohhe facility would not trigger the same concans
under subparagraph (c).
With these basic principles in mind, we tum (0 an ev.duation of each oflhe conditjons of

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Accordingly, detainees' vision is blocked
o y unng

ose tlm~s when ~llowing them to see could

mi he

such

e'r location, the layout of the facility
that ~~d compromise the security oft.he facjli~y.
in this way, blindfolding is
• ess a general condJlion of confinement than a specIal secunty measure employed on the
relatively infrequent occasions when the detainee is moved into or around ll1c detention facility.
We see nOlning in common Article 3 that would forbid the CIA from taking thi~ precaution.
Blindfolding no doubt requires minimal physical contact, but (thardly involves "violence"; none
. of the rnet!J6ds the .CIA uses 10 prevent detainees from seeing is painful or poses any risk of
physical harm, and the de.tainces have no difficulty breathing freely while t~eir vision. is
. obstructed. Nor QOes this limited use ofblindfolds amount to an "'outrageD upon personal
dignity." Neither its purpose nor effect is to humiliate the detainees; rather, the aim is to ensure
the security of the facilities. And the use ofblindfolds is carefully Jiniite;4 in ;;cope so that it
directly. serves that end. Moreover, the detainee is not needlessly exposed to other persons
during this process, underscoring that the intent is not to humiliate. More generally. such
blindfolding is not inhuman; although this may still not be enough to raise problems under
common Artjcle 3, this condition is not "sensory deprivaiion" aimed at weakening the detainees
psyc~ologically and undermining their sense ofpersonality. Accordingly, we concludetbat the
use ofnon-injuriou~ means of temporarily bJockin'g detainees' vision when allowing them to· see
could jeopardize institutional·seaJrity is consistent with common Artiele ~ 's requirement of
humane treatment
t

l.!sed

You also have indicated that detainees
esc practices elp relieve the strilin of prolonged
ave acq::ss to 00 s, m~lc, an movIes.
isolation by providing mental and intellectual stimulation'to the detainees. We also note that
C<lch detainee receives_psychological examination to ensure that he is suffering no
adverse effects as a resillt of this aspect of his confinement We do not conclude that these
measures 'are necessary to' satisfy common Ai.ticle 3, but they do provide significant comfort that.
the OA's detention condition does not approach common Article 3 limits.
.' .
We first address whethcr the incommunicado nature oflhe detention, whereby the

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Article 3. Examining the overall structure afthe Geneva Conventions makes clear that common
Artic!e 3 does nol give detainees an absolute right of communication that Would forbid detcntio.n
orthe sort u~ed by the efA in its covert facilities. As described above, common Articl~ 3 sets a
minjmu~ level oftreatment; its protedions are thus clearly less robust than those afforded to
other categories of privileged persons whose !reatment is regulated by the Geneva Conventions,
in particular, prison~ of war (protected by the Third Convention) and "protected perso~s't
(protected by tJ1e Fourth Co.nvention). I~eed. the provisions of the Conventions dealing with
POWs and protected persons demonstrate that the draften knew how to afford communication
rights to individuals held in detention: For example, Atticle 71 of the Third Convention requires
that POWs "shall be allowed to send and receive letters andeards." Article 107 oflhe Fourth
Convention gives the same right to protect~ persons whG lave been interned. Moreover, other
provisions in the Geneva Conventions a;pressly allow for access to detention facilities by
representatives ofthe International Conuniuee oftheRcd Cross and other $Ute parties, ~ by
family members for particular protected groups" ~ GPW Art. 126 (penniUing ICRC and state
party representatives to visit prisoner of war detention facifities); GCIV Art. 76 (allowing visits
by'leRC representatives to protecled persons); GCIV Art. 116 (allowing detained prOtected .
persons to receive visiton). In contrast, persons protected. only by common Article 3 do not
share this exprcis right of communication or to inspection by' or notification to international
bodies,
Even more important to our analysis is the fact thatArtiae 5 of the Fourth Convention
specifically provides that where in occupied territOf)' "an individual protecled per~n is d_etained
as a spy or saboteur, or as a person under definite suspicion ofactivity.hostile to the security of
the Oca:apying Power, such person shall, in those cases where absolute! military security so
requires, be regarded as having forfeited rights of communication under the present Convention."
See generally 4.leRC, Commentary: Geneva COlTWllnon Relative to the Protee/ion ofCivilian
PersOns in Time of War 57 (Jean PiCld, ed.'1958) (observing that the rights of communication
"obviously refer to [lh~ d~ained person's] relations with !he outside world"). The fact that th~
Fourti}. Convention allows protected persons, -who are afforded a panoply of righ.ts and
protections thai go well beyond the "minimum" th!lt common Article 3 provides, to be stripped
of the"ir otherwise expressly protected right to communicate with the outside world where
"absolute militBTy ~ecurity so requires" is powerful evidence that common Article:1 was not
meant to confer on individuals ineligible for any specially protected statUs under the Geneva
. Conventions a protection against incommunicado detention. Sueh a reading ofcommon Article
3 would upset the structural integrity of the Conventions. That approach also would be textually
unsound. For, immedial~ry after allowing protected persons held as spies or saboteurs to be
stripped of their express right to communicate, Article 5 insists that such persons "shall
nevertheless be treated with humanity." This proviso clearly illustrates that the Conventions do
not view incommunicado detention as·incompatib·le witn the obligation of humane treatment that
undergirds common Article 3. We therefore conclude that detainees may be prohibited from
communicating with Ihe outside world without"rendering their treatment inhumane.
Nor do we perceive a basis for a blanket conclusion that not allowing.detainees to interact

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consistent with the requirement ofhumanc:: treatment, it is appropriate to look to cases evaluating
isolation under the Eighth Amendment oftbe Constitution. After all, like common Article 3, the

Eighth Amendment has been held to require "humane conditions of confinement." Farmer lI.
Brennan, 511 U.S. 825, 832 (1994); cf Trap v. Dulles, 356 U.S. 86. 100 (1958) ("The basic
concept underlying the Eighth Amendment is nnthihg less than the dignity of man."). Conditions
that our own courts have consistently found to be humane with regard (0 ordinary prisoners are
thus likely to meet the comparable slandard imposed,by common Article) and applicable to
unlawful c o m b a t a n t s . '

.

Accordingly, it is ofgreat significance that the federal courts have: generally held that
holding prisdners in solitary confinement, wilh little or no personal contact with their fell.ow
'inmates, does not constitute "cruel and unusual punishment" in violation ortlle Eighth
Amendment. See Novack Y. &to, 453 F.2d 661, 665 (5th Cfr. 1972) (noting the "long line of
cases, to which we have found no exception, balding that solitary confinement is not itself
Constitutionally objectionable"); cf Hullo Y. Finney, 437 U.S. 678. 686 (1978) (observing that it
is "perfectly obvious that ~ decision to remove a particular inmate from the general prison
population for an indetenninate period could not be characterized as cruel and unusual"). In
Jackson v. Meachum, 699F.2d 578. 581 (1st Cir. 1983), for instance, the First Circuit held tbat
even "Yerj extended indefinite segregated confinement in a fucility that provideS satisfactoiy
shelter, clothing. tood, exercise, sanitation, lighting, hf";3t," bedding. medical ~n9 psycltiatric
attention, and personal safety~ but virtually no communication or association with fellow
inmates" is not cruel and unusual. Our courts also have rejected claims that isolation becomes
unconstitutionally ~ruel or inhumane merely because of its indefinite or ex1eJ1ded nalUre, tbough
they have noted that the temporal element may be a factor. See In re Long rem·AdministratiVe
Segregation ofInmates Designated asFi-ve Percenters. 17.4 F.Jd 464, 472'(4Ih Cir. 1999); Sweet
Y. South Carolina Dep't ofCon-eclions, 529 F.2d 854, 861 (4th Cir. 1975). The cases illustrate
lhal isolating detainees and limiting their ability to communicate with other detainees, even if
psychologically taxing, is not inberently inhumane. In9eed, as t:nut Donnann, a leading
. comment3toron international humanitarian law. has observed, "{S]OJilary confinement, or
segregation, of persons in detention, is not itself inhumane treatmenl It is permissible forreasons of security or diScipline orto protect the segrega"tec: prisoner frqm other prisoners or vice
versa." Elements ofWar Crimes 68 (further suggesting that such measures should be evaluated
on a c,ase-by-case basis).
. Nevertheless, we recognize the strain that extended isolation may exact" particularly if
!.hit isolation is not re1ieverl by giving detainees access·to other forms of mental stimulation, such
as books, writing materials. games, and music. We understand that all detainees currently have
aCGeSs to such materiaJs. We furth~ understan~ that some of lnese detainees have been Slibject
to this condition for a few years. However, we do not believe that the duration of the isolation
e){c~s the strictures ofCO!l1Illon Article 3. We view it as important that the isolation imposed is
tailored to security and intelligence purposes-thal is, preventing the coordination of attaeks on
facility personnel or false stories among co--conspirators. But we think that, at least at present,
the CIA's practice of keeping detainees in splitary co!1finement in which they are unable 10 see
===-",OT",.._ _-'",,!'f_~",3;3:'===========

9

3. The CIA plays white noise in the walkways ofthe detention facilities to prevent the
detainees from being able to'communicate with each.other while they are being moved within
the facility. Significantly,. the noise is nol piped directly into the detainees' cells, although it is
possible that the detainees are able to hear some of that noise in their cells,. as the walls that
separate the walkway from the cells are not soundproof. Nevertheless, we can safely assume that
the noise level in the cells is considerably lower than the level in the wat'kways; recent
measurementS indicated that the noise level in the cells was in the range of 56~58 dB, compared
with a range of68-72 dB in the walkways. The volume in the cells is thus cbmparabJe to that of
normal conversation. There is no risk ofhearing damage or loss even from 24.hour-a-day
exposure to sound at that level. We also understand that the CIA has observed the noise to have
.
no effect on the detainees' ability to sleep.
·u~

in this very limited way you have described, white noise does not violate ,ammon
3. There is nothing in~umane about the incidental exposure of det~inees to naif that is
no louder Ihan the level of ordinary conversation and that.is certainly not.loud enough to cause
physical harm or to interfere with sleep. Being exposed 10 such relatively insignificant noise
levels ca'n in no way be described as an act ofvioJence. Nor does it represent an "outrage upon
per~nal'dignjty" within the meaning of common Article 3. Neither tbe purpose nor effect of the
white noise is to "cause serious humiliation or degradation" 10 the detainees, A/elkovsti, supra, 1
56; instead, the noise, much like temporary blin.dfolding, is simply a limited measure aimed at
. protecting the security oflhe detention facility by preventing the detainees from communicating
with each OIher. It cannot be characterized as an affront to human dignity.
~icle

.

4. The CIA also keeps the detainees' cells illuminated 24~~of
eonfim;ment allows CtA s!affto monitor the detainees at all t i m e s _ In
evaluating this condition, we find it significant that the light is not unusually bright and that it
has not been observed to interfere with the d.etainees' ability to sleep oQnnally. Indeed, ifthey
Wish, the detainees are permitted to cover their eyes with the blankets in their cells (or with
eyeshades) in order to block out the light while they are sleeping. Although this practice
presents a closer issue than some of the other conditions ofconfinement used by the CIA. we
ultimately believe t~t it ,is consistent with common Article 3.
.
'The full-time illumination of the detainees' .cells is not inherently inhumane; it is not used
'in a manner that impairs the basic buman needs ofthe detainees. Nor is the security surveillance
that the illumination makes po~sible inhllmane'orotherwise contr to common Article 3. To
be sure, we recognize that being monitored around the clock
could result in some degree ofhuiniliation. But the very nature 0 detenlton, whIch common·
Article 3 certainly does not forbid, is such that one must surrender a certain'dcgr~ of privacy
along with one's personal freedom. Ser;. e.g., BeHv. Wo/jish, 441 U.S. 520.537 (1979)
(observing Ihat "[l]oss of freedom oC<:hoice and privacy are inherent incidenls orconfinem~nln).
This inescapable fact must infonn any analysis ofthe sorts of humiliations and degradations
forbidden by common Article 3. And where, as here. the surveillance is not undertaken

~====;gImanffiOosJY7WiGfffie'pcilfKise~rsinpplng o'elififei:S:ofiheJfl1um:iifffignTty,--oin

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instead for entirely legitimate security rea~ons, we think that it does not represent an "outrageD

.

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.

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I

OUf conclusion should not be understood lQ suggest that concerns about security win
negate common Article 3'5 prohibitions on.inhumane treatment and outrages upon persona!
dignity. Cj. GPW Cqmmen1ary at 140 C'The requirement of humane treatment and the
prohibition of certain acts inConsistent wilhoit 3re genecal and absolute in character."}. Instead,
the poi~t. which is refle<:ted in the international case law applying common Article 3, is that in
determining whether certain forms of treatment are in fact sufficiently outrageous 10 wamlllt
condemnation, one must consider the context in which that treatment is l-lsed and th~ feasons for
which it was imposed. See, e.g.;Prosecutor Y. Mucic, ICTY 96-.12 (Nov_ 16, 1998), ~.514
(holding that whether treatment is inhum~ne is a "question, offaet tribe judged in an the'
circumstances ofthe parti~u[ar case'1; AlelMvski, sup,a~ 157 ("An outrage upon personal
dignity is an act which is animated by contempt for the human dignity of ano.ther ~rson. ")
(emphasis added). Conduct, like the CIA's USe of(;(lostant illumination, that is not characterized
by a desire to humiliate or. degrade, but thai instead is carefully tailored to advance a specific an.d
manifestly legitimate security objective; and does so without causing unnecessary hardship, will
generally fall outside the proscriptions of subparagraph (c).

There is also support for this condition in other pro.visions of the COl);ventions. GPW

Article 92 allows the detaining authority to' subject even prisoners of Wllr recaptured .after an
unsuccessful escape to "special surveillance." 1)lis term is not further defined, except to exclude
surveillance that "affects the state ofthei.r health" or suppresses "safeguards granted them by the
present Cqnvention," In Fictet's Commentary, this "special surveillance" has been referred to as
"ti htened ant" 3 Pictet, Comment'!ry, at 452. Given that the illumination' and the constant
o not threaten t.he health of CIA detai~ees,
unavailable at the lime- the Conventio!lS- were r
may very we
constitute permlssl Ie "special surveillance" under Article 92. As explained above, the structure
of the Conventions makeS clear that treatment explicitly permitted in certain circumstances as to
prysoners of war or proted.ed persons cannot" be understood to Yiolate the minimum protectiOllS
provided by (;(lmmon Article J.

liII

5. We next consider the pradice of shackling detain.ees when they are being moved
around the detention facilities or~hen CIA perso,nnel are in the room with them.. You have
informed us that detainees are only shackled in situations where the CIA believes they might
poSe a threat to the facility or those who work there, Detainees thus are not shackled in their
cells unless they have previously demonstrated thal they are a threat while in their cells. L~ke
blindfolding, therefore, shackling is less a general condition of the detainees' confinement than a
particularized security measure limited in ils scope ami duration_ Indeed, we understand that, at
present, .no detainee is shacklerl24 hours per day. In addition, shackling'is done in such a
~~-~",I"ll,aHlteFaS1l€lM~ri~G<41GW:()fi,/.gg~FGalls~ny.bedily:-ha:mH.q.t.he:4etainees;::::W.hile===-====

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shackled, detainees are able to walk comfortably. Used in this limited and carefully C3libra·t~
way, shackling does not violate common.Article 3.

In setting minimum standards s~fica!ly intended 10 apply 10 those '''placed Mrs de
combat by ... delention," common Article 3 plainly contemplates thatddention may be
. effectuated by restricting th·e freedom of movement ofdetainees. 'That, after all, is inherer.t in
tbe nature cC detention. As such, common Article 3"CaIl00l be read !is proscribing the use of
restraints, such as shackles. in all circumstan:es. Indeed, if using physical restraints Wefe inherently inhumane, common Article) would effectivdy prohibit the involuntary detention of
anyone covered by the provision, a result tbat tbe text clearlydoes not contemplate. At the same
time, however, it seems obvi~s that shackles could be used in ways inconsistent with the
.
general obl.igation of humane: treatment. To restrain a detainee with shackles that injure the body
or OJt offthe flow of blood could represent "violence to life and person," if the resulting
suffering or physical hann wue; expected to be severe. Similarly, 10 keep a dd:ainee in highly·
restrictive shaclcles around the clock, at least where no genuine security coocern justifies such .
restraint,. might well raiS:C.questions.. Where 0'0 secUrity rationale exists. and the purpose oCthe
shackling is merely to humiliate the detainee or to break his spirit, additional common Article 3
considecatiQt.lS would be present. 'In evaluating the use of shackling, therefore, the task set by
common Article) is to determine whether the restraints ate be.ing used legitimately and in ways
that minimize the potential for injury or suffering.
Judged by these standards, the CIA's use of shackling, as a limited $ecurity measure, and
as yeti have described it, is permi~sible. Critical to our analysis is the fact that the CIA Carefully
tailors its s;haclding regime to the danger posed by an individual detainee. The shackles are thus
used only when the detainee is in a situation in which he'might pose a lhreat"{such as when he is
being moved around tfle facility) or when}:Us paSt conduct has clearly demonstrated his danger.
Also significant i~ our understan<ling that, while shackled, ~etainees are able to move
comfortably and that the shackles are fitted to avoid causing any bodily harm. 11lese points
illustrate that the ·shackling here is linked to genuine and legitimate concerns about institutional
security, and is not imposed on detainees vindictively or in a way indifferent to their well-being.
Indeed. ourronelusion might well be different were petainees routinely shackled in SllCh a way
as to .cause them physical p~in or suffering without regard to t~e security. risks they pose. But to
shackle a demonstr~bly violent or· escape-minded detainee while he is in dose proximity to CIA
personnel, where the shackles are merely a restraint and not a source of injury, is not inconsistent
with the requirement of humane treatment.
6. The next condition \ve consider is the CIA's practice of shaving the head and facial
hair of each detainee with an electric razor when the detainee initially arrives at the detention
faciliiy. The shaving is not done as a punitiVe measure; ils primary purpose is to prevent
detaineeS from hiding small items in their hair or beards:as well ~s to' ensure the hygiene of the
detainees. Importantly, mandatory shaving only occurs upon arrival; once the detainee is
situated int1le facility, he is allowed to grow his hair and beard to whatever length he desires
(within limits.of.hy.g.iene..and.safct.y~..)"~.i.nf2mJ~us tha,t!he CIA ~yides
detainees with the option ofshaviog other parts of their bOdies, 10 recogmtlon 01 speclhc IslamIC

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practices. Although we recognize thai facial hair has an import4I1t cultural and religious
dimension, and that some might perceive being involuntary shorn of their hair and beard as
degrading, we conchide that the very limited fonn ofshaving that the CIA. practices is consistent
witl1 common Article 3. Context is important here. The shaving is a one-time measure,
performed at ·the moment when it most clearly and directly adV21lce!l the CIA's interest in the
security of its facilities. The fact that the CIA subsequently allows detainees to grow their hair
and beards in a manner dictated by cultural or religioos preferences illustrates that shaving is not
used here as a form of humiliation or degradation. but instead as a bona fide security measure.
The CIA 10es not, shave detainees in order 10 take advantage ofthdr cul~ral or 'religious
sensitivities, or to exploit whatever psychological vulnerability that practice may create. To the
contrarY, the agency makes every effort, consistent with its overall security objectives, to
accommodate their detainees' desires, ifany, to &row their hair and thereby to (ll,I()id humiliating
them. Used as described above, therefore, shaving is not "aimed at humiliating arid ridiculing"
tl).e detainees, Additional Protocols Commenfary at 873, and dOes not amount to the kind of
outrageous or inhumane treatment forbidden by common Article 3. Nor does the incidental force
needed to accomplish the shaving remotely rise to the level of''"Yiolencc to ... person"
prohibited by subpara~ph (a).
. Finally, y!c discuss whether !be use of these conditioMin combination complies with
cornmon Article 3. To ~is.point, we have diSQlSsed whetb·er any one ofthese conditions would
violate oommon Article 3. We understand, however. that the collective weigh! ofthese
conditions·may raise different questions_ The detainee is isolated from c.ompanions of his
choosing, confined to his cell for mu~ of each day, under constant surveillance, and is never
permitted ~ m.omenl to rest in the daItness and privacy that moSt prople seek dwlnS sleep.
These are not conditions that humans strive for. But they do reflect the realities of detention,
realities that thcGeneva·Conventions accommodate, where persons will have to sacrifice SGme
measure of privacy aOd liberty while under delention. They also are justified by the
extraordinarily dangerous nature bfthese detainees, and the rislcthat they will conspire to
compromise ~ security the deten~ion fa.cility.
.
.

of

The Third Geneva Convention strikes a different balance between .security, on lhe one
hand, and privacy and liberty. on the other, with regard to prisoners ofwar. That Convention
also establishes a reciprocal arrangement be.tween captor and:ddainc.e under which d.etainees. in
exchange for these greater privileges, have an international law obligation·to follow the
. reasonable rules of the facility. AI Qaeda de!ainees, who do not follow the laws of war, are not
part of such a reciprocal arrangement. Common Article 3 rests on the premise that cenain
.
persons, not subject to the elaborate protections of the Third or Fourth ~vi Conventions, will
have to be detained during the course of non-international armed conflicts, and we do· not believe
that conditions in CIA facilities faJl below the minimum standards.that common Article 3
mandates for .such persOns.
The detainees subject to th.!! pro&aID are kept in sanitary cOnditions and are provided

=;...

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13 .

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~d other diyersions in the form o(booIa. music, videos, and games, short of
interactions with their co-combalants. Other measures--obstruaing vision and shackling-are
limited to th: times when d.etainees pose the greatest risk 10 the security of the facility and those
who work there. Wi:, do not believe tbal ihe combination ofthese features falls ~ow the
"minimum slandira" of humanity specified in common Artkle 3.
For the foregoing reasons, we conclude that none of the conditions ofconfinement used.
by the CIA at its COY¢. overseas detention facilities, 'as you have described those conditions 10
us, violates common Article 3.
Please let us know if we can be of further assistance.

Sincerely.

Steven G. Braqbury
Acting Assistant Atlomey General

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~1• • • • • • •1l!~
U.S. Department of Justice

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Office o.fLegal Counsel
Ofiicc cflhe Assistant Altomey&:n~

Washr'r:gton. D.t.. 10JJO

August 31, 2006

MEMORANDUM FOR JOHN A. RIZZO
.ACflNG GENERAL COUNSEL, CENTRAL lNTELLIGENCE AGENCY

Re: Application ofthe Detainee Treatment Ac/ fo Condilions ofConfinement at
Central [nlelligencr: Agency Df/.(ention Facilities
.The Detainee Treatment Act of2005, in relevant part, prohibits any individual in U.S.
custody. or control from being "'subject to crue~ inhuman, or degrading treatment or
: punishment, n "regardless ofnationality or physical JocaliJJn." Detainee Trc"atment Act 0[20'05,
Pub. L. No. 109·163. tit. XIV,' §·1403. 119 Stat. 3136, 3475 (2006) ("DTA" or "Act"); See also
Pub. L. No. 109-148, div. A, tit. X. 119 Stilt. 2680,2739 (2005) (same). You have asked
whether partiQ.llllf "standard conditions of detention" at certain Central Intelligence Agency
C'GIA") facililies located overseas are consistent with the'applicable standards oftiJe DTALeuer for Steve Bradbury, Acting ~sistant Attorney General, Office "ofLegal Couosel, from
John A Rizzo. Senior Deputy General Counsel, CIA at I (Dec. 19, 200S) ('Rizro Leller'').
The DTA was designed to establish a domestic legal requirement that the United States
abide by the relevant substantive constitutional standard, applicable to the United States under
Article 16 oftile Convention Against Torture. in its treatment of detaInees in certain limited
circumstances, regardless of location or nationality. The relevant standard applicable to CIA
detention facililies under the DTA i9 that anhe Fifth Amendment, -in partirular the
Amenqment's prohibition ofgovcmment conduct that '''shocks the conscience:' See County oj
Sacramenfo v. Lewis. 523 U.S. !B3. 846 (1998). To determine whether the conditions of
confirieme~t at issue here "shock the conscience" within Ihe meaning of the Fifth Amendment,
the ultimate inquiry is whether they· amount to punishment-which occurs where the hardships
associated·with a par1irular condition or set ofconditions are out" ofproportion to a legitimate
governmental interest. Applying thai standard, we conclude th'al the'conditions at issue here,
considered bQlh'Separately and collectively, are consistent with the requirements ofthe DTA.. 1
I The legal advice provided in this memorandwn does VOl represenl Ule poticyviews of the Department ot
Justice concerning my partieulucondition of confinement
.

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A.

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the history of the p ~ the CIA has detained a tot 0
I IVI ua $.
t
slime, e erA
has fewer than 20 detainees in its custody under tbis 'program, lhe remainder baving been
transrerr~d to other forms ofcustody or ottier nations. Herein, ~e a,ssume that the CIA bas a

. Sound basis for determining that each ddainee it is holdin . in the rogram is an enemy'
.
2
co'mbatant CO'Yered by the tttmS 0
throughout his detention..
In addition, we understand that. once the CIA assesses that it detainee no longer possesses
significant intelligenCe value. the CIA seclcs to move th~ detainee into alternative detC!1tion

-arrang,ements.
The CIA believes this program has been critical 10 our national security: "the intelligence
acquired from th~e interrogations bas been a key reason why al.Qa'ida has failed to launch a

5pea3'cular attack in the West since II September 2001." MemoraJ'ldum for SteVen G.
.
Bradbliry, Principal Deputy Assistant Attorney General, Office ofugal Counsel, f r o m _

We also underSt~d. that none of the terrorist QlCffi)' combatants deuined by the CIA for pwposes of this
program is entitled to Ine privileges ofprisonersolwat under the Third Geneva Convention or proteclcd pel>Ofl5
under the fourth. Geneva Convention, and we expre.;s nil opinion as to whether the conditions IIf confinement
<iddresscd in this opinion would satisfy !he full requirements oft!le Genm Conventions In circulllst1IlO':S where:
!hose Conventions would apply. Pursuant to Hamd(JJ1 "'.Rupuftrd, 126 S. Cl 2749 (1006), common ArticIeJ olthe
Ges1eya Conventions does apply to theanned conflict with aI Qaeda and thus!o the detainees al ~e hen: who are
bein& held in lhal armed!=J)nllicL In a Idler issued loday by this Office. we c.oncltlde that the oooditions of
conli~ntdescribed beJcin also salisty!be require:nlent5 of common ArticleJ. Lenet to John A.. RUm, Gc:nenJ
CouJlS(I, CellinI Intelligence Agency, (rom Stl:YCll G. Br.KIbury, Acting Assistant Attorney ~ Office orugal
Counsel (Aug.. 31, 1006).

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DCI Counterterrorist Center, Re: F/[tCliviness ofthe CIA
COun[uinlelligence lnlt"ogation Tedrniques at 2 (Mar. 2. 2005) C'Effectiven~ Memo"). As
we preViously have discus~ at greater length~ interrogations conduded pursuant to the program
have I~ 10 specific, aetionable iJllellig~ce about terrorist threats to the United States and its
interests. See M~orandum for John A Riuo, Senior Deputy General Counsel, CentraJ
Tntelligence Agency. from Steven G. Bradbury, Principal Deputy Assistant Attorney General,
Office ortegal Counsel, Re: Application a/United Stales Obligations Under Artide 16 of the
Co~nlion Against Torture io Certain Techniques that May Be Used in the Interrogation of
High Value al Qaeda Detainus at 10 (May 30, 2005) rArtiele J6M~") (citing
Counterlerrorism lRfentiOIl andlnterrogution Activities (&pfembu )fJOI..Qcrobtr 20(3), No.
200J-7123·IG. at 85-91 (May 7, 2OO4r\'IG Reporr». "More generally, lhe CIA has informed
us ~l, since March 2002, the intdligence derived from CIA detainees has resulteG in more tl}an
6,000 intelligence reporlS and, in 2004, accounted for approximate] halfofCTC's re rting on
~a." Article 16Memorandum at II (citing Fax fro
_nCI Countmeirorist Center, Briefing Notes on l~ Yolue 0/ Detainee Reporting at 1
(Apr. IS, 200S) f'Briefing Nord'); IG Report at 86). According to the.CIA.lbe
ha.s
had a Q"Ucia1
ic effect on other intelJi eoce resources in that it has been

Briefing Noles at 6. Moreover, the detention 0 these extrem
dangerow; in~lviduals as prevented them from planning. facilitating. or executing further
terrorist attacks against the United Slaes. .
.
.·Critical to the lega.l analysis that follows is the speeial nature of the detention faciliqes in
which the CIA keeps i.ts high value ~ainees. II is clear that such detainees pOsc unique security·
risks; not only are they a serious risk 10 escape and to the safety of CIA personnel in the facility.
\)!Jt any facility housing them is under the threat of an armed allack by Ihe¥" SIIpporters in an
8nempt'to free the detainees or 10 do barm to those responsible for their detention. Yet the
covert facilities in which the CIA houses those delainees were not designed as ordinary prisons,
much' less as higb-security detention ce t fi r t erne dan erous and of'ten hi hI·
so histicatecl inlemational"terrorists.

B.

You have asked us to evaluate the legality of six stand.ard conditions of confinement in
the f~cilities in questiolL According to your account, the common characteristic of each
condi.tion is "ensuring the safety of both Ageooy ~terrorist.delainees at our
overseas qlve;rt detention facilities."- Letter f r o o i - , - : o Steven Bridbury, Re:
Requests/or Information on.SecuriryMeasures at 'I (May 18, 2006) rSecuriryMeosures
LelJer'). Underlying our analysis ofall these methods is our understanding that
CIA
provides regular and thorough medical and'psychological care to the detaine:s in its custody.

the

T

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1. Webegi.nwiththeCIA's
with some opaque material,
Letter for Steven Bradbury, Acting Assista.nt Attorney General, Office ofLegaI Counsel, from
Associate General Counsel, CIA at 2 (Jan. 25, 2006)f'Janua -25
iter'. Si nificantl the detainee's vision is not blocked at all limes.

·

The Agency uses this condition of confinement for seCtlr1ly purposes, more specifically,
to "prevent the ~~tainee from learning his location or the Jayo~~ of th~ detenti~n ~ .
Standard ConditIOns 0 .CIA Detention at I to prevent the detainee from learmn~
January 25
Letter at Z. to ensure the.safety of cr;main pers(:mn~l
Standard Condiffons o/CIA Detentfon at I, and
January 25 ~tler at 2.

of

2. Upon arriyal at the detention facility. the head and facial hair each detainee is
shaved with an electric shaver, while the detainee is shackled to A.i!iiil;.!~r_ s"erority reasons.·
Standard Con.diffons ojCIA Detention at 1; see also January 25~tler at I. This
· shaving
not done ~~ step and only takes place ?Po~ the initial intak:intoth~
program. . January 25~({er at 2. "After the detamee IS settled and bemg debnefed ·he
· is allowed grow his beard and head hair to whatever length he desires (within limits of
hygiene and safety)." ld The CIA provides detainees "the option to shave once a week if they
so choose" and offers "haircuts as needed or as requested by the detainee." Ed It also provides
detainees, at their request, the opt[on of shaving other parts oftheir bodies, recognizing that such
sha.ving may relate to specific Islamic practices. ld Shavins. helps enhance security at the
detention facility "by removing hair·in which a detainee might hide smaIl items that might be
used against his interrogators and other detention personnel." Standard Conditio.ns ofClA
"
.
Detention at 1.. In addition, "[s]having isuscd for'hygiene." leL l

'::s

to

lbe initial shaving upon intake
an~ary 2J
tier al I. Arguably, this initial act of shaving
que I/liln a oopdition ofconlmemenl Here, however, we analYze stmoing ooJy as
a ~ndilion ofconfmernent, and!hus ~e only the corresponding government intett:st Jwdated with using

is more

e an mlerrogauon

_<0..'_.'_'

shaving 10 facililale
-=-instirulional security.
'7

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4

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,
Agency a!sa affurds detaInees ~ to gym eqUipment a

P)'Slca exerase." ld .
.Finally. each detainee receive:o-"pSYcOOlog;ca1 examination to assess how well be is
adapting to his confinement- ld .

• ,

4'

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.
the CIA, ~ch co
ps prevent the detamees •m p
aU'ack on agency perwnnel.·

Ing a po

..

.

p

iI. The CIA plays while noise in the walbvays of the rletenJ.ion facilities to prevent
detain~ ,from being able to ~ each other while they are being moved within

~~es.

See Letter 1 1 0 0 1 _ 0 Steven Bradbury at 2 (May 23.20(6) rMay 23
White noise is used in the walkways 0
althou h it is ssible that thedetamees are able 10 hear some ofilial noise in theircdls
~ "At no time, however, is the detainee exposed to an ext~
0
~noise in the walkways is played at all.times below 79 dB. We ~ Safely
assume that the noise level in the cells is considerably less than the level orlhc noise in the
walkways; recent mea.surements taken by the CIA indiCated that the noise level in detainees'
cells was
e of 56-58 dB, compaied with a range of68·72 dB in t~ays. See
Leller from
to Sleven Bradbury (May 24,2006) C'May U_Letler").
This level of "Olse IS Simi ar to tbat ofnormal conversation. According to CIA's Office of
Medical Services; "tlu~fe is nO risk of pennanent beanng loss for continuous, 24.hours-a-day
exposure to sound at 82 dB or lower ... ," Id "(S]ound the dB 80~99 range is eXperienced as
loud; abo!lt 100 dB as unwmfortably loud," Id
.
~tter").

ilfl!irt

in

We understand that some

detainees are p!'Ovided eyeshades to pennlt t . m to

out e 18 j when they aie sleeping.

~=~=~·DGtaiaM&""~l'l'O¥idcd:with-blalJkets..i:lothei~br'\l.bieh=they.ma.y.:use:fof4he:sam,e·=~~~~~~

5

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purpose. Over the course of several years, the CIA has not observed that the light has had any
adverse effect on de~ainees' ability to obtain adequate sleep.
6. Finally, ihc CIA uses leg shackles to enhance $ecurity "in all aspects of detainee
manag"ernent and movement." ld Shackling, however; is kept to the minimum required by the
CIA's security concernSi the number afhours per day that a detainee is shackled is calibrated to
the threat that the detainee poses to detention facility staff Id Detainees thus are not shackled
whi Ie in their cells unless they have previously demonstraled that they are a threat to the~selves:
or to facility personnel while in their cells. You have informed us that at Dresen! no detainee is
shackled 24.hours er day

IT.

The DTA provides that «[oJa individual in the custody or under the physical control of
the United States Government, regardless ofnationality or physical location, shall ,be subject to
~el. inriu.man. or degrading treatment tlr punishmcot." DTA § 140J(a}, It further provides that
"[nJothing in this section shall be cotlstrued to impose any geographical limitation on the
applicability of the prohibition against crue~ inhuman; or degrading trealment or.punishment
unaer this section."· DTA § 1403(b}, The Act defines tbe term "cruel, inhuman, or degrading
. treatment or punishment" to include only
the cruel, unusual, and inhumane treatment or pun.ishment prohibited by the Fifth,
Eighth. and Fourt~th Amendments to the Constitution oflhe United States, as
defrned in the United States Reservations, Declarations and Understandings to the
United Nation·s Conv·ention Against Torture and Other Potms of Cruel, Inhuman
or Degrading Treatment or Punishment done at New York, December 10, 1984:
DTA § 1403(d}, The US. J;eseJVation to Article 16·ofthe Convention Against .Torture rCAT")
provides that
the United States considers ilsdf bound by the obligation under Article 16 to
prevent "cruel, inhuman or degrading treatment or punishment," only insofar as
the term "cruel, inhuman or degrading (rearment or punishment" means the cruet,
unusual and inhumane treatmCllt or punishment prohibited by the Fit.\h, Eighth,
and/or Fourteenth Amendments to the Constitution of the United States..
136 Cong. Rec. 36,198 (1990), The OrA's definition of "cruel, inhuman, or degrading treatment
or punishment," incluqing its reference to the U.s. reservations to the CAT, is designed to
establish a domestic legal requirement that the United Stat~ abide·by the substantive standards

T
6

applicable to the United States under Article 16 of the CAT in its treatment of detainees,
.
regardless of their location or nationality.4

In evaluating the legality of conditions of oonfmement under the DTA, we look primarily
to the standards imposed by the Fifth Amendment, in particular the "substantive" component o(
the Due Process Clause. The other two constitutional amendments referenced in the statute are
not directly applicable in these.circumstances. The Fourteenth hn.endment does not apply to
aClions taken by the federal Government, see, e.g., Bofling v. Sharpe, 347 U.S. 497, 498-99
(1954); and the Eighth Amendment does not apply unlil there has been a format adjudication of
guilt, see, e,g., Ingraham v. Wright, 430 U.S. 651, 671 nAG (1977). The Fifth Amendment, ill
contrast, is riot subject to these same limitations.
As-applied to the actions of the Executive Branch, substantive due process generally
requires that ~eo.Jtive officers refrain" from conduct that "shoc.ks the conscience." County oJ_
Sacramento v. Lewis. 5lJ U.S. 833, 846 (1998) ("To this end. for haifa century now we have
spoken of the cognizable level ofexea..tive abuse of po'!Yer as that which shocks the
conscience."); see also Rocbin v. California, 342 U.5..165. 172 (1952). The Supreme Court has.
indicated that whether government conduct can be said to "shock tne ~nscience" depends
primarily on whether t!le oonduct is "arbitra.ry in the constitutional sense," Lewis, SiJ U.S, at
846 (interrtal quotation f!1arks omitted), that is, whether it amounts to the "exercise ofpower
withOut any reasonable justification in the service of a legitimate governmental objective.~' id.
The Supreme Court repeatedly has held that the substantive component ofthe Due
Process Clause applies to the evaluation of conditions of eonfinement ofpersons detained in the
absence of a formal a.djudication of guilt.' The .meee fact that a 'person has been detained under
"proper procedures does,not deprive him of all substantive lib.erty interests under the FQurtecnth
Amendment.'~ Youngberg v. Romeo, 45? V,S. 307. 315 (1982). The "'process' that the
~ !XI! lSI Cong. Ro::. 514,269 (daily ed. Dec. 21, 2005) (st3tement of Sen. Graham) ("In section 1403, we
close the loophole in the [CATJ. As National S<:ouity Advisor Stephen JbdJey Sl!id, 'those slandanls, as a
lcchIDc:1l, legal maUer, did not apply abl1,)3d. And that is wh.:J.t Sell3torMCCAlN ,.. wanted to a~wanled to
m.al:e clear that those W<l\lld apply a~' We appliofthem abroad asa maaet of policy; he w:mted 10 make~'
tbey applied. as a mattel of law. And when this legislation is adopted, it will. '~)i id. at 514,257 (statement of Sell.
Levin) (this bnguag<: ftnnly CSUblWles in law that the United States will not sUbject any irdividual in,our
CUS1:ody, regardleSs of rnitionality or phYsical location, 10 ciueI, inhuman; ordegmding treatment orpunishmenl
The amendment provides a'single standan!-'truel, inhuman, ordo:gJading treatment or punishment'-withOlJl
. reg.ud to whal agency holds the delailllX, what Lhe natiomlity orlhe deuinee i5, or wbere the &lairie¢,is held.~); ia.
at 514,269 (statement.of Sen, McCain) C'With the detainee crealm~tprovisions, Congress has clearly ~al that
the prohibil1on against tonure and othercrucl, inhumart Of degr.lding treatment should be enforced and lh11 anyone
tIlgaging in or aulhoriring such conduct, whe1ber at home oroverseas, is violating the laIC). SI!#! also lSI Coog.
Rec. H12,20S (daily at Dec. 18, 2(05) (stakinenl ofRep, Hoek.str.i) ("'The principles of the cortI~na: report
. relating to croel and inhuman and degl3dingtreatmenl should not be cootrovC:rsia1 or even rtmafkable. . [This
confen:nce report] does not modifY the substantive defmiLion of cruel, inhuinan, arxi degi'ading treatment that
applies lo the Unilro Slales under its exi5tin,g treal)' obligations."}; id at HI2,2Q4 ("Mr. MARSHALL. Mr,
Chairman, is·it your unde~ing that lhebHl's bnguage rdertncing the'Senatc's 1!194 reservation to the Unilc:t
~tions' Convention Against To~ is intendro to prohibit conduct that shocks the Conscienm, lhe standard
adqlted by the United Slates Supreme Cow1 in Rochin Y. Coli/ornia? .. _. Mr. HUNTER That is my

-----'-'--,-------------------undemanding.

M

).

T
7

T
Constitution guarantees in connection with any dep'rivation of liberty thus includes a continuing
obligation 10 satisfy certain minimal custodial standards." 'Collins v. City afHarker Heights, 503

-,

U.S. 115, 127-28 (1992). For example., the Court has held that persons involuntarily committed
to institytions fOf the mentally retarded have substantive due process rights to such basic

necessities as food, shelter, clothing, and medical carc, as well as to "safe conditions," and
"freedo~ from bodily restra.int," Youngberg, 457 U.S; at 'H5-16. Similarly, in the criminal
context, the Court has held tna! "the Due Process' Clause protects a detainee from-certain
conditions and restrictions ofpretrial detainment." Wolfish, 441 U.S. at 533. In these situations,
the Court has developed. a more specific analysis than the general "shocks the conscience" test
for determining whether the rcquiremems of due process have been satisfied. This inquiry shares
the core of the "shocks the. conscience" tes~ requiring the weighing of "the individual's interest
in liberty against the State's asserted reasons for restraining individualliberty." Youngberg, 457
U.S~ at 320.
In evaluating the conditions ofconfinement used by the CIA in its overseas .covert
detention facilities, we pay partieuiar attention to the substantive due process standards
applicable to pretrial detention. Like the CIA's detention program, pretrial detention involves
. the confinement of individuals who have not. been convicted of crimes, but who llev~less
may present "an identifio::l and articulable threat to an individual or the community." United
States Y. Sa/emo, 481 U.S. 739, 751 (19&7).5 'Of course, the Constitution forbids the punishment
of pretrial'detainees, so these cases have evaluated whether tile conditions "amount to
punishment ofthe detainee." Id at 535; see also Graham v. COlmor, 490 U.S. 386, 3~5 n,lO.
(1989) (staling that "the Due Process Clause protects a pretrial detainee from the use of
excessive force that amounts to punishment''); Schal/v. Martin, 467 U.S. 253, 26~ (1984) ("It is
axiomatic that' [d]ue process requires that it pretrial detainee not be punished.''') (quoting
Wolfish•.441 U.S, !it 535 11.16) (alteration in SChaif). ''[(J]nder the Due Process Clause, a
detainee may n,ot be punished prior to an adjudication of guilt in aCC"Ordan~ .with due process of
Jaw." Wolfish, 44 i U.S. at.53'S. Imposing punishment on such detainees for their past behavior

.

j

Altboogh we believe that pretrlal deteJlion provides a useful analogy to the ClA deterll.ioll, y,-e recognize

that there are imporUnl differences betweeo !be two modes of detention. The detainees lleId by the CIA are-not
ordinM'j aocused criminalS; instead, they :ut~mely datigerous, and often quile sop~caled, lerroristenemy

. tomoatan15 detained because they pose aserious and direct lhreat 10 !.he national securily of the Dnilo::! States. .
Pretriai detainees are held to secure lbeir pr=nce at trial'and because ofthe threat they may pose \0 theC?mmunity.
&e SalernQ, 4&1 U.S. at 75 L 1bc consliltJtiooallimits upol1 their detention reflect the balance struck for the
, ordinary .operation of the criJ:ninaljustice system. By oonlrali, t.1~ primaJy purpose ofd~g enemy comb'atanlS
is to PJ'eVlCnt their return to baltle, and in the = oftlledangcwJs terrorists aI issue here, these individuals have
proven themselves dedicated to Jalling American civilians. Moreover, the facilities in which DIe)' are heJeI are not.
dedicated jails that have been bullt specifically for the pw-pose of dctaining'po~roti:l!ly ~jolc:nl ~d escape-minded
detainees. Det.1ining these individualS therefore poses special securitychalleng~. The special status of these
individuab, and the gre.alerthreat they pose---:-..ooth to CIA. personnel and to the J-,'ation at Iarge-'WOuld suggest thal
the Fiflh Amendment balance s1rUck in the pretrial detaltion =s would not necessarily impose the same limits
.upon theGovcrrunent in this <:ontex~ But even taking the pretrial detention cases on their own terms, we m:
confident that the conditions orconfinement al.issue hue satisfy the collStitutional !;\andards =gniz:o::l in wt
context.
.

.

= =.

·=·-."'~,~·,.~o.,.====

8

.

.

necessarily "shocks the conscience," see Salerno, 481 U.S. at 746, and is thus forbidden by the

-

OrA..'
The Supreme Courtnas mad~ clear, however, that "the mue fact that a person is detained
.does not inexorably le<!d to the conclusion thaI the government has imposed punishment." Id
"Not every disability imposed during pretrial detention amounts to 'punishment' in the
CQ~stitutjonal sense." Wolfish, 441 U.S. al 537. Because the Government is "obviousl¥ ...
entitled \0 employ devices that are calculated 10 effectuate [authorized] detention," id., "[a] court

must decide'whether the disability is imposed for the purpose ofpuni~hment or whether it is but
an incident of some other legitimate govenunenlal purpose." id at 538. Accordingly, th" first
question in (fetermining "whether a restriction OD liberty constitcles impermissible punishment.of
p'ennissible regulation" is wbelher there is any expressed inlent to punish for past criminal
behavior. Solerno. 481 U.S. at 747. Even iflhere is no evidence ofsucn intent, however. the
inquiry is not over. "Absent a showing of an expressed inlent to ~nish on the pari of detention
facility officials," the due proCess analysis "8en~ly wili tum on 'whether an 'a1lernative
purpOse to which [the restrietionJ.may ratiOlia.lly be connected is assignable for it, and wh~ it.
2pp~ excessive in relation to ~e alternative.purpose ~gncd [to ill. ,n Wo!ftsh, 44] U.S. at
538 (quotingKenne4Y \1. Mendtna-Marrine:, 372 U.S, 144. 168.69 (1963)) (alterations in
original). .
.
. In Wolfish. the Court fonnulatl:d the following tcstfor evaluating the conditions of
confinement in pr~trial detention under the Due Process .Clause:

f1]f a particular condition or reStriction of pretrial detention is·reasonably related
to a legitimate governmenlai objective, it does not, without more, amoUnt to
"punishment." Conven:ely, iea restriction or condition is not reasonably related
10 a legitimate goal-ifit is arbitrary or purposeless-a court permissibly may
jnfer that the purpose of the government action is pur'isbment thatmay not
constitution~ly be inflicted'\lpon detainees qua ~etainees.
441 U.S. at 539 (footnote omiued).1 This is not a least restrictive means t~, see BlocJcv.
Rutherford. 468 U.S. ~76. 591 n.11 (1984), but i~ is nevertheless relevant whether the
governmental objeetive SOU"ght to be advanced by some particular condition of confinement
·f

Consistent wilh lhiscchstillltiooallimitllioll, ocrtain sanctions m<ly nevertheless be imposed all pretrial

dtUi'lCC$ who viol~te administr<itive rules while they are lawtiJUy detained. &6, e.g., Snndi" v, QHmor, 51:5 U.S.
471. ~84·g5 (1995) (distinguishing Ol.dministntive penaltieS used 10 "effectuateD prison nunagcment~ from the
punishn)ent without ccnvietion that is prnhibited by the DueProeess Oause); westv. Schlf'l!b.~, 333 F.3d 745, 748

(7t1a Cit, 2003).

.

, In YOtSngbug, \he Court awlicd a liimiluly dertmltial stardard to evaluate !he subswltive due proecs5
rights of per.pns involunbrily COmmitla1\o mental instilotions ·to reasonable amitions or safely Inc! freedom
(1tHJI lWClSOlRble resuaUn. ~ .U7 U.S. at 321. ne Clut held thdl"the Conslitution oaly rt:quirts that the CClIlIU
rnakee:atairl tr..at ~ressionaljudgmer.1m Cact wuexcrciso1." It!. Under this SlaDdard. ,ability mzy be imposed
only "bell the db::::ision by the professiocal is 2dI. Substmtiall!qlarture from aa::epttd 'lftI!=iolD.l judpncnl,
pl3dice, or stmd.Irds as lo'demonstrate that the pason ~Dle actually did DO( base ~ decisioa ou such a
judgmat." ld. at 323.

9

could be i!.ccomplished by "alternative and less harsh methods." Wolfish,« 1 O.S. at 539 n.20.
The existence ofsuch alternatives that the government either failed 10 consider or arbitrarily
'rejected may support the conclusion that the purpose for which ¢e harsher conditions.wert
imposed was in fact to punish. [d.; see also Block, 468 U.S. at 594 (Blackmun, I., concurring)
("The fact that particular measures advance prison seoJrity, however,.does not make them ipso
.facIo ~nstitutioiJ.aJ."); Schall, 467 U.S. at 269 (observing tbat it is "nece.~sary to determine
whether the terms and conditions of confinement ... are in fact compatible with th[el purposes
[ofdetention),,).l
.
~lhougb the slan~ard used by the SupreIi:J.e ~oUrt to evaluate the constitutionality of
pretriaJ detentiQn conditions is relevant our present analysis. it is important to rerog.niz.e thai
the Court's deferential formutation is, at least in part, driven by coricem~ aboul separation of
powers that are not directly applicable in this context. Indeed, the insistence thtltjudges not
make decisions property vested in the political Branches is a recurrent Iheme in the Court's
conditions ofconfiijement decisions:

to

(U]hder the Constitution, the first question to be answered is not whose plan isbest, but in what branch ofthe Government is lodged the authority!o initially

devise the plan.... The wide range of"judgmeni calls"·that meet .constitutional
and statutory requirements -are confided to officials outside the Judicial Branch of
Government.

Wolfish, 441 U.S. at. 562; see also M. at 547 It~9 (noting that the "principle ofdeference" in Ihis
field is derived from the fact that ''the realities ofrunning a corrections institution are complex
and difficult, courts are ill equipped to deal ~th these problems, and Ihe management ofthese'
facilities "is confided to the Executive and Legisla.tive Bra..l1Ches, not to. the Judicial Branch");
B/ocle, 468 U,S. at 584 (emphasizing the "very limited role that courts should play in the
administn.tion ofdetention facilities"). In eva..lU!ting these prison management mailers as
membm: ofthe Executive Branch, we must take these assertions for defer-ence to the detaining
authority with a grain of salt. Although-we Gertainly do not claim expertise in running detention
facilities, and have neither desire oor cause to substitute our judgment for that of the CIA. in such
mallen:, the Exerotive Branch .is not subject to the same constitutional limitations that require
courts to defer so extensively to. prison administrators. It is appropriate, therefore, that our legal
advice undertake the best reading ofthe applicable legal principles. Also, we·may insist upon a
somewhat c!o.ser·connectiqn between the conditions of confinement nnd the governmental
, In theddention contcKt,. JDO£OO'Vcr, substantive due process catl be violated not m~y by intentional
harms, bul also where the conditions of confinement evince -delibcr.lle iri£ll'erence~ to the risk that detainees may
suffer unjustifiable injuries. The SupIUIiC Court has observed that "in !he. OJStodiai sin::atioo of a prison,
forethought about an inmate's welfare is not only feasible bul obligatoty UDder a Rgime th:Ilinc:apacitllCS I prisoner
. to cxemse ordinal'!" responsibility for his own welfan:." Lewis, 523 U.s. II U()'51; su (lISQ I:>tS:anqv.
Witmtbcgo Co=try /kpt. ojSoda/~,439 U.S. 119, 199-200 (1989){obs.cr'rinr: that "whca!he Stale Ukcs I
pelSOb inlo its custody aDd holds him L'wn 2pinsl his wiD, the Coi'.stiIution imposes upcia it a c:orrcspocdillg duly 10
assume some teSpOIlSIoility for his safely andgcnmtl wdl-btiogj. Aa::ordinpy, the proc:edart:s Ihat lhe OA has in
place for mitiplling the possloility th:u its coOOiticllS oCc:cn.finemenl. mighl: harm detainees in'l,\'3J1 001I ilcassarily
inlen:bl by ~ ~~ are ~.l~t ~~_~ny ~!ys~ ~~~~ ~ ~n~~~ ~'ilh the DTA.

10

-

interest at s;ta.\ce than courts would oernand, and I!ay conduCt a more searching examination of
{he detaining authority's assertions and justifications. Even without such defer-alee to ~e CIA,
the conditions of conlinemc"nt satisfy the legal standards applicable uncler the DTA.
Finally, we nolc that in conducting this Fifth Amencfmen~ inquiry, the substantive

standards oUhe Eighth Amendment remain relevant Although the Eighth Amendment does not
directly apply to the ,detainees at issue here because they have noi been subject 10 a formal.
adjudication ofguilt. $U Wolfish, 441 U.S. at 535 & 0.16, coriditions of confinemenUhat would,
with respect to convicted prisoners, constitute '.'cruel arn:! unusual" ptJnis~menl in violation of the
Eighth Amendmenrmay very well also constitute "Pllnishment" when imposed on othe.rwise

similarly situa:ed detainees protected by !he Fifth Amendment. See City ojRevere Y. Mass. Gen.
Hasp., 463 U.s. 239, 244 (1983) (suggesting, in the context of pretrial detention, that "the due

are

process rights ofa person in [the Govmuneot's care)
at least ~ grezt as the Eighth
Amendment protections available a convicted prisoner"); Youngberg, 457 U.S. at 321-22
("Persons w.ho have beerr involuntarily committed are entitled to more tonS;iderate tr~ents
and conditions ofconfinement than aiminals whose cOnditions of confinement are designed topuoish."); Loci v. Jenkins, 641 F.2d 488,492 n.9 (7th Cir. 1981) ("Although the Eighth
.
Amendment is not applicable to pretriaJ"detainees, Eighth Amendment cases involving
conditions ofconvicted prisoners are useful by analogy bec:mse any prohibited' cruel "and
unusual punishment' under the Eighth Amendment obviously constitutes punis.hment which may
not be applied .10 pretrial detainees:'). Accordingly, where appropriate in our discussion below,
we have considered cases applying the Eighth Amendment to conditions of confinement similar
to those med by the CIA.9

to

m.
A.
ApplYing this due process anafysis, we conclude·that the conditions of confinement
described above do Dot amount to-punishrnent. Because we are aware of no evidence "of.m
expr~sed intent to punish on the part of detention facility officials" involved in the .CIA
program, the critical question uade( the DTA is whether the conditions imposed are sufficiently
. related to the. CIA's n~ed to secure its d~entio.n fac.ilities without imposing excessi.. . e or needless
hardship on the detainees. Having carefully examined thOse coitditions, as welt as the reasons·
that the CIA has adopted t~em in lieu of either harsher or more mild alternatives, w~ conclude
, Vf~ caution, hOJ.l.~et, thai: the Eighth Amc1dment is an impenect fil for the legal analysis oflhe C1A '5
conditioos oftDnfinemenl. The Eigh1h A.me:ndment does IlOlllpply until there has been a "formal adjudication of
. guilt." Set lklJ v. WolfISh, 441 U.s. sm, S3Sn.16 (979); Ingraham v. Wn·ght, 00 U.S. 651, 671 n.40 (1977). In
proscnOing ~ atninal pu1lisfrm~/IlS, the Eiglllh An'Iendmenr. necessarily seeks to" baWJce the CioYe.mment's·
perologil;2i inl.erot .1gainst 3Il iJldiviclual's i:tIleral ill.1\oOiding particular kinds of suffering and ban1ship. nllS,
lhele may be eertain t)pa oftn:atJamt lhlt m pc:uologjczl illleresl alUld support, znd d~ lUI may I\I:l afoul of the
EiPh ~ The conditions at. isSue ben,~,;ue ctwx:leriud by different tnlCftSiS, iJlcluding the·
~, of da."\ga0u5 urnxfm in a maDIlO'" lhz1 does not:i~ infonnalioa to l1le enemy fll a time of war: ~r
Ir.LIlJICing lheFiflh and.Eighth Amendmeits lII3Y R:quire in this regaro, the outcome oflbosc analyses ll21 no(
alway~be aligned:.:-~

_...,=.~-~~=-=.. _-=._._,~=======

~~.

II

-----_._-- - - - - - - '

-

that those conrlitions are consistent wilh the requirements ofsubstantive due process made
applicable by the DTA.

The primary objective that each of the coooitions of confinement seeks to advance is the
safe and secure fundioning of the CIA's detention facililies. B'y imposing those conditions, the
CIA ai'!1s ~th to protect the officials operating the (acililies from harm and to ensure that the
detainees are unable to escape or othetwise to defeat the objectives Of the detention program.
There is, of C{lurse, '~oo dispute that internal security qf detention facilities is a legitimate
governmental interest." BlocJc, 468 U.S. at ~86. "Once-the Govemmel)t has exercised-its
'con~ed authority to detain a person ... , it obviously is entitled to employ deviceS that are
'calculated to effectuate lhis detention." Wolfish, 441 U.S. at 537. In Wolfish, the Court
recognized that the "Government must be able to take steps to maiotai"n security and ord~ at the
institutlon".. id. at 540, including "appropriate action to ensure the safety of inmates and
corrections pecsonnel and to prevent escape or unauthorized entIy," id. at 54?: Indeed,
.. maintaioing institutional security and preserving internal ordel'" and discipline" cu;e DOl: merely
legitimate objectives, they ani "es.sentiaJ goal':" Id at 546; see a1~ Harris v. Chapman, 97 F.3d
499.504 (lith Cir. 1996) (obseMngthat prison administrators~ "cOmpelling interest in security
and order within their. prisons'" is partiQ.llarly acute in facilities that "contain extremely violent
. [individuaIsJ"). 'For these reasons, anyone attempting to show that detention facility officials .
have 'lex.aggented their response to the genuine SCQ.lrity cOnsiderations J~t actuated these
restrictions and practices" Clll,ries a "heavy borden." 14 at.561-62.

We underntand that the detainees held by the CIA are extremely dangerous and
e security concerns. They are individualsw~om the CIA has detennined either to
They i.nclude jnd~duals such as Khalid
Shaykh Muhammad ("KSM") aM Abu ZlJbayd&h. KSM, "a mastermind" of the stptembel'" II.
2001, attacks, ",vas r~arded as "one o~a'ida's most dangerous and resourceful open.tives."
Article 16 MeJ!7orandmn at 6 (quotin~Khalid Shaykh Muhammad at I (Nov. I, 2002)
Biograph;f'). KSM admitted that he personally murdered Wall SITut Journal
reporter Danie! Pead in February 2002 aoo rtCOrded the brutal decapitation On videotape. which
he subsequently released for broadcast See id Prior to KSM's capture, the CIA considere<fhim
to be one of al Qaeda's "most imPortant operational leaders .. , based on his close relationship
UsaJ!la Bin Lade,:! and fiis reputation among 'tIle al-Qa'ida rank and file." Jd_aJ. fr 7 (quoting
~Biographyat I). After the September 11 attacks. KSMassumed "'t1Jerote of
operntions chieffor al-Qa'ida'around the world." ld 'at 7 (quoting CIA Directorate of
Intelligence, !Chalid ShirykhMuhammad: Preeminent Source on A/-Qa.'ida 7 (July 13, 2004)
"Preeminent Source"). KSM also planned additional attacks within' the United States b:oth
before and after September 11th. See Preeminent Source at 7~8; see alSo 17Ie 9/11 Commission

tIIIKsM

a

Report: Final Report 0/ the National Commission on Terrorist Attach Upon 'he United Stales
150 (offici.al gov't ed. 2004). Prior to his capture, Zuba~!S ''one ofUsama Bin Ladc:o's
key lieutenants." Article 16 MemdrandwlI at 6 (quotin~ al·,4,bidinMulJammad
HUSQ}f1 ABU ZUBA YDAH aJ. 1 (Jan. 7, 20(2) C'Zu!Ja;.doh Biograph)l'»). '1ndeed, Zubaydah was
al Qaeda's third or fourth highest ranking member and had been invotved 'in every major
lerrorist operation carried out by aI Qaeda.'n Id (quoting Mem'orandum for John Rizio, Acting
=====6enn-al:Gmms~~ntr.a1=tntellrgen~WC)T-fr.ooJ.1~Jbeu:FAniit.anH%:tmmq.y:f.:l13l'l1.,,,,"'I.~====

•
I~

12

Office of Legal Counsel, Re: Inlerrogalio.n ofof Qaeda Operative at 7 (Aug. J, 2002) .
C'!nterrogalionMemorondum,,))_lO Upon his capture on March 27, 2002, Zubaydah became the
most senior member of al Qaeda in United States custody. Id These detainees have·
demonstrated that they are also a lhrea.! to guards in the facility. Several detainees have
pl:\ysically attacked the guards. Many have stated that they plan to kill their captors.
AJthough die primary purpose ofthe conditions of confinement we consider bere is to
maintain the security of the CIA's detention facilities this observation docs not mean that tho.se
conditions do not also serve other Ufj>OSe3.

For the reasons set
e ow, however, we .conclude that the security rationale alone is sufficient to justify each of
.the conditions of confinement in question. Accordingly, these conditions of confinement may be
applied to detainees who no longer have si ificant intelli ence Value but who nonetheless meet
the standards for detention under
and who continue to present a
clear danger to the United Sfates as terrorist enemy combatants in the ongoing armed conflict
with al Qaeda and its affiliates. See·Part IIlD., infra.

ort

B.
As an initial malter, we consider \he' legality of each of the conditions seriatim. In this·
. exercise, we are qided by judicial decisions considering the legality of many ·ofthese di.screte
conditions in U.S. domestic prisons. We recognize, howev,er, that the ultimate inquiry is to
~ssess the.legality of subjecting detaine~s to all of the conditions in combination. In addition, as
we describe below, the CIA detainees are iJ;! constantly illuminated cells, substantially cut off
from human' contact, and under ~4·hour+day surveillance. We also RWgriize that many of the
detainees have been ill" the program for several years and thus that we cannot evaluate·these
conditions as if they have occurred only for a passing moment. Nevertheless, we must also take
. into account the nature ofthe detainees whom the CIA is holding. They are not ordin
criminal suspects and they undoubtedly pose extraordinary securit' risks:

equires special conditions
to prevent the esc3pe of these dangerous terrorists. lI
.

10 Wc discuss these two detainees as c·xampIcs, but we underswxi that tile detainees as a group are of a
dangerousness lhatjuslifies the Ctlnditions of Ctlnfinement at issue, as we di..xus!i below.

II Indeed, as a.rea:nl coordinate,d hunger strike among $!:Veral Ctlnvicted aJ Qaoda turorists held al the
nuximum so;uriry prison al Florence, Colorado, demonim.tes, b.--en lh~ tarorists kepI in physical isol3l.ion within
maximum security facilities canofl<::n fllld ways of communicating and lhereby compromising institutional security.
According (0 Btl."'Ci.u of Prisons officials, lheal Qaedalo:rroiistscommunicated with eadI olher by udng the pipes in
the raci1ity to carry sound. Together, the lerrorists orChestn.terllhc beginning of their hllI1ger strike mel developed a
~===~.sophisti~t~ ~:~ to ~t:~~.puJsoly.~~in&_ yt~a.!W~_~ 10 th[~.C09.t~.iAAp.Q!!,.t,li~.ill.Q~ta:roris.ts _,
su~lrgJ1lwlg n;Ill5~ tfigll S¢lIfit)' ddeouol1. il:l Q"Cd.1 detam= at Guantanamo Bay, Cuba sirnilaIly

13

J, As d~bed above-, the pwposeofusing'blindfolds or sirnilareye~verings is "'to
prevent the detainee fro"m learning his location or the la out of the detention Cicilit .. Standard
Conditions 0 GA Derm/;on at I

Ilis~

w nt eyare onem e.trcells _ _
These Jimitations:mm clear that
e CIA does not use this condition ofconfinement as a disguised form of "sensory deprivation"
aimed at weakening the detainees psychologically, but instead as a bona fide sealnty measure,
one used onIy when necessary to advance the narrow goaJ of institutional security. Indeed, the
. form ofbliridfolding used by the CIA appears to be the least restrictive and intrusive means of .
obstructing the detainee's vision and thus of reventin deuinees from leiunin ·their location,
the layout ofthe facilities,
Blindfolding detainees on y w ep ey are moved around the facility or when they are in close
pro:cimity to security personnel prevents detainees from acquiring information tl)at C?uld allow
them to compromise the 'security oftbedetention facilities.
I

Nor is. the use of this cOndition likely to harm detainees, much less in a way that is
excessive iii light of the concrete security objectives it furthers, None ofthe TTt~S that tlle
erA uses to prevent the detainees from seeing poses any lik.elihood o(injury, and the detainees.
ha~ no difficulty breatlting fi
anal is lha1 the CIA uses

y choosing to effedliate ils security .
go 10 ways t rat lO nummlZJng e p Sica dIScomfort and psychological distress that
detainees are likely to suffer, the CIA further demonstrates the. non-pUnitive ruture oflhis
.condition ofconfinement. Accordingly, we conclude lhat the use ofnOn-injurious means of
blocking detainees' vision during limited times where allowing them to see could jeopardize
instItutional security satisfies the standards of the DTA .
1, Shaving detainees·upon intake is likewise directly related to the·CrA's need to secure
i.ts detention facilities. S,having aqvances this end "by removing hair in which a detai.ne~ miBht
hide small items that might be used against his interrogators and other detention personnel,"
Siandard Conditions a/CIA DeJention at: I. Because the detention facility is secure and because·
.the detainees' access to contraband is so limited once they are detained, safety considerations do
not require co~tinuing to shave the detain~ Accordingly, after the initial shave, the detainee i5
.staged a coordinaled riO! in recent weeks thaI ~...suJled in signifieanr property damage aM injury to some of the
gl1¥ds dispatched to pol: the uprising dawn. Tbtough IXlftI!IIUnication and planning aniongdeLainet:s, molt tJw: 7S
al Qaec!a delaineis stated a C09rdinaled bonger sttike,.apin alt~ 10 undc:nnine
COJIditioris of their
coofinernat In facilitfes coDsid.."r.l.bI)' 1= strud1nlIr
Ihan lbc Florence "Su~ udli!)', Olber means
of ~ that detainees arc ...,able 10 CDn).JlI:mia1e willi one anolba (socb. as the use of white noise ~d full-time
sun'cillaDa.;) lhus become particu1arly ll::Jparb:1l T1lESl:I evems highlight the overridiDg need for maintai:ling light
security-ind~g ripvus o:r.Jt.rols ~ ddaiRx CJXIIlJaIJ1iCltic:ns--at faciIities housing temIrisI de1aiDe:es. •
.. _..... , ,-,
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14

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"allowed to grow his beaId and head h~teVu lengrh he desires," consistent with the
ClA's safety imperatives. January 25_Lettei at 2. The CIA has even gone SO far as to
pruvide detainees, after their initial shaVlng upon intake, the option of shaving and receiving
haircuts "as requested by tlle detainee," including Qle option of shaving other parts of their
bodie~1 in recognition of ~ifi~ Islamic praclices. ld

The case law provides substantial ~upport for the conclusion that the CIA's sbaving
policy is: consistent with the substantive standard'oftheFiftlt Amendment. Most imP9rtantly, the
courts of appeals have consistently rejected prisoners' Fifth and Fourteenth Amendment
-challenges to shaving policies in domesti~ prisons and jails. See Rolls v: Wolfe, 448 F.2d 778,
179 (8th Cir. 1971) (per curiam) (lhis Court has held that an ineatcerated prisoner does n6t
have iI: constitutiof!al right to the length, style and growth ofbis hair and growing a beard and
moustache to suit his personal desires.");B/ake v. Pryse, 444 F.2d 218, 219 (8th Cir. 1971)
(bolding that 'prison regulation requiring inmate "to shave .and ~t his hair" "does not deprive
him of any federaJ civil or constitutional right"); Brooks v. Wainwright, 428 F.2d 652, 653 (5th .
Cir. 1970) (pen:uriam) (afllrming dismissal as frivolous ofprisonef's Fourt~th Amendment
due process challenge to prison rule requiring that be "shave twi~'a week and receive periodic
haircut5''); id at 653-544 (disposing of prisoner's due proCess challenge because the shaving
regulatIon was neittJc:r unreasonable nor arbitrary). AJthough these ~es j~olve individuals
convict~ ofaimes, rather than individu~s detain~ for intelligence value (or held pretrial in .
criminal cases), they nonetheleSs provide substantial support for the view that the CIA's shaving
policy' does .not "violale the DTA

The courts of appeals also have uphekl sh~ving policies against Eighth Amendment
'challenges brought by convicted prisoners. SeeMt.utin v. Sargent, 780 F.2d 1334, 1339 (8th eir.
1985) (concluding that "reasonable regulation of prisoner's hair length" satisfies the Eighth
Amendment "when necessary for security reasons"); Blah, 444 F.2d at 219 (holding that prison
-regulation requiring inmate "to shave and cut his bair" does lIQt.cbnstitute "ciueJ and unusual
punishment''). AJthouY.t these cases, like the Fifth Amendment ~ diseussed aooVt; concern
convicted piisoners, not individuaIsdetained for inldJigenoe value, theY are noneth-eless
informative in that the Fifth Amendment standani applicable to pretrial detainees is to' some
extent informed by the Eighth Amendment st2.1ldard. as explained above. These cases, too,
support the view that the CIA's wving potiey is consistent with the DTA I~

a

11 ~ndccd, some co~rt$ ~ve even upbeld prisons: shaving policies unde.rthe Rtlfgklus Freedom
Restocation Aa ("RFRAi, wh.ichj~a staDdMd of review (Mmore dern300ing thmthe Mreasonably rclaled IQ.
a legitimate goyemromuJ objective- standard that applies here. 111 Harris..... Chcpma1l, for example. the court of
appeals hcld lhat shaving pi:soners w.u the Icasl ~ctive IlIcas of fwthc:ring a compe1liD& govanm:ou.1
ill~...,....a hurc!le e'VCt higher lh.J.a.lhe:ooe tbt the F'1J\h A.nvrlrncnt imposes.iII thitcontext. Jd. at 504. Indc:cd..iII
Ihe court's view. smyjDg was the Mly me2llS oCldY2llCing!be SUle'$ ir.tcrest in -the identifiotion ofCSC3pee$ and
the pte'o'Cll-Wlg oCstcrdint; of con\nbarld or ~pons" in priso!ler's '1uiror-bcards. Mid,.a.1d thus advanced the
"compelling inlerest in secuiil)' m{onft::(" in the prison, ld at 504. Stt aisD Hamil/on v. Schriro, 74 f.3d 1545 (ltb
Cir. 1996) (rejo:::tillg similar RFR.A claim). 1M sre WwsoMrr v. Woodford, .(18 F.ld 989 (9lh Cir. 2(05) (finding
. lhat mi1!iJ(lwn SWJrity prison's hair po~icy f.aikd the least restrictive mems test of the Religioui Land Use and
Jl'lSl:iMioulitl!d Permns Act).
.

.. - ....................~~~--_.~---,~----------15

Finally, the courts have consistently credited-testimony advancing the same security
justification for shaving that ihe CIA advances here. The courts, for example, have credited
prison officials' i~stimony that "long hair poses a threat to prison safety and security" and that
"inmates could conceal contraband, including dangerous materials, in t~ei.r long hair." Hamilton
v. Schriro, 74 F.3d 1545, 1548 (8th Cir. 1996); see also, e.g.,Martinelli Y. Dugger, 817 F2d
1499, 1506 n.23 (lIth err. 1987) (noting that "[eJvidencc before the magistrate indicated that in
prisons without shaving and hair length regulations, inmates had bee.n caught with contraband or .
weapons hidden in their long hair"); Pollockv. Marshall, 845 F.2d 656, 658 (6th Cir. 1988)
(finding that prison superintendent stated "legitimate" interests, that were "reasonably related to
the regulation limiting the length of prisoners' hair," including preventing inmates from
.
"hidQngJ contraband ... in hi.s hair"); Dreihelbis Y. Marks, 742 F.2d 792, 795 (3d .Cir. i 984)
(crediting testimony of Pennsylvania, Corn:mis5ioner of Corrections that "[a] restriction on lon~
hair and beard5 prevents concealment of contraband, such as weapoll5 ... , on the_person, thus
increasing the seQlrity of the institution and limiting the potential for dangerous situations
therein")..Courts also have accepted the conclusion thaI, "without the hair length regulation,
prison staffwould by required to perfonn mo!~ frequent searchC$ of inmates, which could cause
conflicts between staff and inmates." Jd Indeed, the EightP Circuit has characterized the
government interest in regulating the hair kngth of particularly dangeJ:ous prisoners as
"'compelling": "It is more-than merely 'eminently reasonable' for a maximum security prison to
proflibit inmales from having long hair in wbic'h lhey could conceal contraband and weapons..It
is compelling. ... These are·vaIid.~d weighty concerns." Hamilton, 74 F.3d at 1555. lfthe
Govemment'~ interest in regulating detainees' hair length is "compelling" in a high-security
domestic prison or jail, id, then·we think it is at the very l.east "legitimate" in an overseas CIA
covert d~ention: facility housing extremely dangerous detainees who either pose serious threats
to the United States or were plahning.terrorist attacks at the time oftheir capture.
F~rth~ reasons,. we conclude that the CIA's shaving_policy comports with the
.requirements of the DTA.

's intended to ensure

Althougn this conditio!l presents a closer question than the previous condition~ we have
examined, the solitary confinement of nigh.value detainee:; is.sufficiently related to Ine CIA's
interest in institutional security 10 satisfy the DTA. First, preventing detainees from interacting
with one another or with the outside world is directly related to the security oftile CIA facilities.
Isolation prevents conspiracy, making it considerably more difficult for detainees to coordinate
escapes'or attacks. In addition, the CIA uses solitary confiQement nartowly in service ofits
security objectives. In this r.egard, it is importanlto emphasize that the isolation at issUe here is
not designed as or akin to "sensot)' deprivation"; it does not im ose u on de:tainees a com lete
eclusion from human contact. Althou h detainee
the CIA has taken
··-·"··-'----·--.,,,llleastlfff"t-o-eount~etel11-ia~ly_mlveFSe'e~-tea4m~nt.cl'aetiGffi'--w,,=~~~~~~~~~=·

16

~

L
demonstrate iliat the CIA is attempting to caJibrale its use of isolation so that It irect1ya
ces
the interest in security without imposing unnecessary hardship on the detai.nees. The CIA further
stokes that balance by affording detainees ~to gym equipment and physical
exen::ise, and by providing each detainee ",i~psychologicaf examination to assess
. how well he is adapting to his confinement. III The efA also rounlenc:ts the psychological
effects of isolation by providing detainees with "3 wide variety of books, putties, paper and
'safe' writing utensils, ~cherhr StlS, a peBOoalj<lurnal. and access to OVD and VCR
videotapes." January 25~ttu at 3.
Nevertheless, we.recognize 1".at the isolation exj:lerieaced by the CIA detainees ~y .
impose a psychological toll. In some cases. solitary confinement may continue for yea~ aDd
may aller the detainee's ability to interact with l;llhen This is not an area, hO\1v'CVcr. where we
"arc without judicial guidance, as the U.S. courts have repeatedly considered the conStitutionality
ofisolation used as a condition ofeonfmemenl in domestic prisons. 'These cases support ihe
~nclusion that isolation, even under coooitions similar to those considered b~ does not violate
the requirements ofsubstantive due pfocess. For example, the Fifth Circuit has held that It:le
solitary confinement ofa pretrial d~ainoc is,lPlder'~n ciraJmstances, consistent with the
Fifth Amendment 'McMahon v. Beard, 5g3 F.2d 112, 173, 175 (5th Cir. 1978). In tba1 case, the
govemment confined the detainee.stripid ofall of his clothing. and without a' mattress, sheets.
or blankets. ld Although these conditions were imposed fo~ Ihe detainoc's self-protec:tion-he ,
had attempted suicide-the case makes clear that there is no per se bar under the Fifth
Arnendll)e~t to isolating ev.en a pr~al detainee. Jd at 17~75; see also H/llto v. Finney. 437
. U.S. 678, 686 (197&) (observing that it is "perfeedy obvious that every decision lo-remove a
particular inmi\te from the g~nera.1 prison population for an indeterminat'e period could not be
characterized as cruel and unusual''). jj
.
.
The'courts of appeals ha~ often rejected Eighth Amendment challenges to the use of
solitary confinement. Tile Fourth Circuit considered convicted prisoners' Eighth Amendment
claims based on their allegations that they were "confined to their cells for twenty-three hours.
per day without radio or television." In Re. Long Tenn Administratiw Segregation of Inmates
Designated as Five Percenters, 174 F.ld 464, 471 (4th Cir. 1999). The COtlll, n.oting that
"[t]hese co.ndi.tions are indeed (cstrictive," explained that "the restrictive nature of high. security
.incarceration does not aJone constitute cruel and unusual punishment." ld The court held that
I' In a rc:cnt decision, the Supreme Court suggcsled, albeil in dicta. thai ~cxtmne isoLation- in whklt'
inrn3tes were confined (or n hoa:'s pet day dcp&.'Cd of almost any environmental or SCtlSOtY stimuli and of llroost
aU Au.'n2I\ ~tact "my well be neceswy aoo approprizle in light oflhcdanga lhat higb-risli: irinules pose both to
prison officials and 10, other prisoners."_ ~~~~;~.~:, •
S;.'?:.~,~.: :;~j (200j).

..J;:

•

11

l

"the isolation inherent in administrative segregation or maximum custody is not itself
constitutionally objectionable." Id 3,t472; see also, e.g., Novaci v. Befo, 453 F.2d 661, 665 (5th
eir. 1972) (noting the "long fine of eases, to which we have found no exception, holding that
solitary confinement perse is not 'cmel and unusual"'). Likewise, in Jackson v. Meaclwm, 699
F.2d 578 (1$1 Cir. 1983), the court held that "very extended, indefinite segregated confinement in
a facility lhat provides satisfaCtory shelter, clothing. food, exercise, sanitation,. lighting, heat,
bedding, medical and psychiatric attention, <!Jld personal"safety, but virtually no communication
or association with fellow inmates" does not violate the Eighth Amenc!rnenl, even where it
"results in some degree of depression." ld at 581. That court, sUlVcying a decade of federal
appelJate decisions, noted a "widely shared disinclination·to declare even very lengthy periods of
segregated confinement beyond the pale ofininimally civilized conduct on the part ofptison
authorities." Id at 583. More specifically, "[t]hose courts which have hzd occasion also to deal
with claims of psychological deterioration caused by confinement have rejected these claims."
ld The courts have also rejected claims based on allegedly harmful incidents of isolation, such
as idleness and lac.k ofhum.an interaction. The coutts have held that "isolation from
companionship" and "restriction·on intellectual stimulation and prolonged inactivity" are simply
"inescapable accompaniments ofsegregated confinement" that will not render such C<)flfinement'
unconstituiional "absent other iIlegitimale deprivations." 'Sweel v. Sou~h Carolina Dep 'I f)f
Corrections, 529 F.2d 854, 861 (4th Cir. 1975).

Mor~ver, the courts have not a~pted the claim that isolation becomes unconstitutional'
as a sole result of its·duration. Indeed, the Fourth Circuit rejected inmates' constitutional
challenge to over three years.of S<;llitary confinement, despite the lack of any expectation of
release, co'lcJuding that "the indefi!!-ile duration of ~e inmates' segregation does not render it
unconstitutional." '111 Re Long Tmn Administrative Segregation, '174 F;3d at 472. The court
noted that "{tlIte duration ofConfinement in some ofthyse cases has been long. but length of time
- is 'simply one consideration among many' ill the Eighth Amendment inquiry." Id (quoting
Hurto v. Finney, 437 U.S. 678,'6&7 (1978). Likewise, in Sweet, the court held that the
"prolonged and indefinite" nature of segregated confmement is insufficient to render it
unconstitutional, though it is a relevant factor.. 529 F.2d at 861. Indeed, the court noted that in
the federal prison system, "segregated confinement is 'indefinite. '" Id
In the rare cases in which coutts ruive found isolation unconstitutional it was not the
isolation alone that drove the analysis,.but instead the use of isolation in combination with
factors that left prisoners living in appalling, and indeed dangerous, conditions. For examp.Ie. the
Ninth Circuit found an Eighth AmeiJ:~mellt violation where a prisoner was sent to wlitaiy
confinement in a six foot by six foot, windowless, unclean cell. known as the "dark h<J1e," with·
no ligbts, toilet. stnle, or other fumishihgs, and where the prisoner was naked, and provided no
hygienic material," bedding, adequate food. adequate heat, or opportunity to clean himself, for
longer than twenty-four hours continuously" Gates v" Collier. 501 F.2d 1291. 1304-05 (9th Cir.
1974). Likewise, the Fifth Circuit held unconstitutionat"the use of punitive isolation in "which as
many as seven prisoners were placed in a six foot by eight fool cell, with no bunks. toilets. or
other facilities. with human excrement on the floor, and without the ability to lie down
simultaneously. McCray v. Sullivan. 509 F.2d 1332. 1336 (5th"Cir. 1975). Although these cases
leave no dOl,lbt that isolation may be a factor in det~ning th~t a sel of prison Conditions

··-"~&e~~onsfilutionaUinCfthC=U$eoof-isotation..b.)t--thc:;efAriS'".nQt03ccompani~h~pemhb--_~

18

_ _~

circumstances present where conStitutional.violations have been found. In particular, the
isolation that we consider is not-used in conjunction with those severe conditions-such as
inadequate food, inadequate heat, and filth-thaI some courts have found cruel and.unusual. We
emphasize as important to our analysis that the detainees in Ihe CIA program a~ held in clean,
sanitary facilities at all times during their detention. Those facilities are kept at appropriate
temperatures, and are adequately fum·ishcd and maintained. These accompanying ~ndrtions·
highlight that isolation here is not being used in order to punish detainees, or make them suffer
. needlessly, but instead to prevent coordination and conspiracy that may compromise the sco.irity
of the facilities and lh~ CIA persopnel who work there,
.'
Finally, recognizing that the solitary confinement con'sidered 'in much onile case law
involves high-security prison settings and dangerous, high-risk inmates, we think it ~evant that
the CIA's security concerns appear at least similarly weighty, The CIA's overseas, c/?vert
facilities house extremely dangerous detainees who, as previously explained, the CIA has
detei-mined either pose serious threats to the United States or were planning terrorist atta.cks at
the time of their c:l.pture. Certainly, there are some differences--<ietainees sent~ced to terms of
imprisonment at least have some certainty about the duration of their overall confinement, while
the C1A detainees do not know how long they will be detained. This uncertainty may impos6 ali
increased psychological toiL Although these post-conviction· cases are not squarely applicable,
they support the con~lusion that the use ofsolitary confinement in the C1A's faciliries is
consistent with the S1.!bsCantive standard ofthe Fifth Amendment, and thUS. with the standard of
the DTA.

Both the volume ofthis
block
communications among detainet;:s without posing any risk ofhanning them. Indeed, because the
noise is not piped into the detainees' cells, detainees experience the sound (at any significant
volume) only during the limited periods in which they are being moved around thl; facility. Even
-in the walkways, the noise is at all times kept below 79'dB-a volume that, according to ClA's.
Office ofMedical Services, creates no risk ofpermanent hearing loss, even if expOSUre is
continuous.for:24 hours a day. See Standard ConditionsofClA Detention·at 2. Recent
measu·rements taken Qy"th~ CIA indicate that the nois.e level in detainees' cells is in the range of
56-58 dB, compared with a range of68~72 dB in the walkways, a significant difference. ·May 24
_Letter. Indeed, nonna! conversation typical! y" registers at approximately 60 dB. In
addition, we understand that the'CIA has observed the noise to have no effect on the detainees'
ability to 'sleep, This suggests that detainees have adjusted ·to any noise that may filter into their
cells and learned to disregard it. We have little doubt that this limited use of white noise is
'
oonsistent with the requirements of the DTA
t~ so as

nOIse and the locations in which it is used have been carefully cali

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Unlike some ofthe other conditions ofconfinement, we are aW3I"e ofno direct an'alogue
.in U.S. prisons an'd jails to the white noise that the CIA emplo~. This fm is not ~lfprisjng, as
such domestic facilities have neither:a mi~sion comparable to the CIA's nor face similar
constraints, and therefore do not have an interest in masking sound and preventing detainee
communication that approaches the erA's. 'In contrast to the detention facilities at issue, U.S.
prisons
jails generally do not, for ffistanee, have a legitimate interest in denying inmates an
ability to de,tennine ~r 10C2ti0o or the idenfity of fellow priSOI)tfS. There are. bqwever, cases
in which U.S. courts have considered prisoner complaints about noise levels. These cases clearly
establish that noise thai merdy irritates is not unconstitutionaf. In-Peterkin v. Jt:.fJes, 855 F.2d
1021 (3d Cir. 1988), for e~pJe. the court concluded that prisoners on death row did not state
an Eighth Amendment violation where the noise in the ce!ls was merely "irritating to some·
prisoners." Id. aI J027. In that ease, the district court I1Qted testimony describing the noise on
one hand as a "constant din" (quoti!1g plaintiffs' expert), and on the other hand as "cyclical."
Peterkin v. Jefles, 66t F. Supp. 895, 909 (B.D. Pa. 1987). Likewise, the Seventh Circuit held
that prisont;rs failed to state an Eighth Arilendment violatiory where the record contained "no
evidence that the noise levels posed a serious risk of injl1I)' to the plaintiffs." LiJflSford'l'.
Bennett, ·17 F.3d 1574, 1580 (7th Cir. 1994).. Thus, at least to slate a claim ofcruel and unusual,
punishment under the Eight Amendment, rather than merely ofpunishment alone under !.he Fifth
Amendment, noise must be more than inereJy annoying or unpleas2nt. Moreover, it has been
hdd that noise. .even if Severe enough to cause headaches, does not give rise to an Eighth
Amendment violation where it is used for a legitimate purpose. See, e.g., Givens v. JQfl~, 900
F.2d 1229, 1234 (8th Cir. 1990)(coocluding that noise. which the prisoner alleged caused him
~graine beadaclleS, did not constitute erueJ and unusual punishment where it \\'llS an incident of
needed prison remodeling).

ana

Weare aware that SQrne COl..!rts hive concluded that a prisoner's ailtgation of
"continuou~ excessive noise states a claim under the due process c1ause, n an,d also under the
Eghth·AlTu~ndment. Sandersv.. Sheahan, 198 F.3d 626, 628 (7th Cir. 1999) (holding that
"o:-cessive noise" is a deprivation serious enough to'meet .the objective component of tile Eighth
Amendment); set: aW,·e.g., Keenan V. Hall, 83 F.3d 1083, 1090 (9th Cir. 1996) (allegationS that

"at aU times of day and night inmates were 'screaming, wailing, crying, singing and yelling,'
often in groups, and that Ihere was a 'constant, loud banging, '.. were sufficient to avoid summary
. judgment); An/one!li, 81 1f.3d at 1433 (hokling that allegation' ~f noise that "occurred every
night, often all night, interrupting or preventing [a detainee's or prisoner's) sleep" slated a claim'
under the Fifth or Eighth Amendment} As expetiencCd by detainees who spepd the vast
majority of their time confined in their cells, however, the white noise used by the CIA in the
walkways of its detention facilities is" not remotely comparable with lbe noise at issue in Ihese .
cases. In addition, none of these decisions addressed noise that was employed by prison'
administrators in dir~t furtherance of manifeslly important security objectives. There is·nothing
in the case law or in common sense to suggest that the limited use of noise loud enough to block
. communications among extremely dangerous individuals under conditions analogous lo"tbose at
the CIA detention sites, but not louder than an ordinary'conversation, and certainly not loud
enough to cause harm or. interfere with sleep, amollots 10 !he kind 'of"'punishment" proscribed by
the Fifth or Eighth Amendments. In sum, the white noise al issue hue is carefully tailored to
advance the CIA's into-esl in institutional security while minimiiing the discomfort of the
-----dd!"""Iil.n"'ee""::-•.,."am!"1d'hurre:l:tfflrsi(~~'"~...;-,-,,--~.._.._.._.

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The light, however, is not unusually bright.-Id We
understand that detainees are provided eyeshades or blankets, which they may use to block oUt
light by covering.their eyes while sleeping. Cf Chavarria v. Stacks, No. 03-40971, 102.F~d.
Appx:. 433,437 (5th eir. 2004) (unpublished) (Reavley, J_. specially concurring) (noting that
judicial attention to prisoner's constant illumination complaint is "much ado about nothing"
because "[aJ little doth over his eyes would solve the problem"). In addition, we understand,
. and think it significant, that the CIA has observed no adverse effects on any detainee's sleep as a
result of the constant illumination, suggesting that the burden imposed by this condition of.
confinement is relati\!cly minimal.
. .
Also relevant to our analysis are the holdings of several courts that constant light, ev~n
for pretrial detainees,.does not violate the Fifth Amendment, at least where that illumination is
-.reasonably related to the government's legitimate objective of maintaining institutional security.
The Eighth Circuit in 0 'Donnell v. l1idmas, 826 F.2d 788 (8th Cir. 1987), for example, held that
a pretrial detainee, held for over haifa yw in a cell with "continuous lightingn and who alleged
he could not sleep, failed to establish a constitutional violation because the lighting was "not
unreasonable given tbe need for jail sccl;lrity and the need to monitor {the detainee]," wh? had
tried to, kill himself. lei. at 790, See also Chavarria, 102 Fed. Appx. at 436- (holding that. a
"policy·ofconstant illumination" is "reasonably related" to the legiti~ate'interest of "guard
security"); Sharman v. Graves, No. 98·3395, 2.o00WL 206315, a~ ·.13 (D. Kan. Jan. 5:2000)
(unpublished) (stating that facility "officials need lights to observe inmate activity in cells, to
'maintain safety and security" and that "(sJuch concerns are a legitimate interest"); Fillmore v.
Ordonez. 829 F. Supp. 1544, 1568.{D. Kan. 1993) (holding "as a matter oflaw that the electronic
surveillance system, with its atol,lnd.the-clock.beeping and soft ligtiting, was reasonably re14ted
to tbe maintenance of internal serority of the [pretrial detention facility], and as such did not
amount to punishment prohibited by the Due Process Clause"). Similarly, in Ferguson v. Cape
Girardeau COIJnty, 88 F.3d 6~7 (8th !=ir. 1996), the Eighth CirOJit held'that pretrial detentio!l
"under bright lights, which were 00 twenty-four hours a day," was reasonably related to a
legitimate govelllment interest of"keep(ing) the detainee under observation for both h,is medical
condition as welt as general safety concerns," and thus did not violate the detainee's Fifth
Amendment rights, jd at 650. Although, in that case, the detainee ~as confined under bright
lights for a relatively short duration, the cOurt ofappeals, which applied a "totality" oftbe
circumstances" analysis, did not suggest that the limited duration was a preq)ndition to finding
constant light to be constitutional. Id at 650. J5
,
We recognize that detention with constant illumination has been held unconstitutional
under certain circumstances. For example, in Keenan;. Hall, 83 F.3d 1083 (9th Cir..1996), the
N.inth Circuit held that "[t]here is no legitimate penological justification f9r requiring [inmates]
IJ

In dieta, the Supreme Court-recently suggested thaI constant light in o:lls holding high·risk detainees

"may well he n=ry and aPVlopri;!tc in light orlbe danger-tlul higb+risk inmates pose both to prisl:In officials and
HI other prison=." Wilkillson v. Austill, 125 S. Cl2J84, 2]95 (2005). This suggestio!! applial. even where ~an

,inmate who attempts to shi"::d the lighllO slee.t~ subject 10 further::.::di:,,~;p:H~~~·._J:d~. ,:t~23~g~9.,-

21

_

..,-

to suffer physical and psychological harm by living in constant illumination. This practice is
unconstitutional." ld at 1090 (alternationS' in original) (quoting LeMaire v. Maass, 745 F, Supp.
623,636 (D. Or. 1990), vocated on other grounds, 12 F.ld 1444, 1458-59 (9th err, 1993)). The
court concludl;d that summary judgment against a convicted prisoner was inappropriate where
the prisoner alleged that his cell's constant illumination caused him "'grave sleeping problems'
and other m~ntal and psychological problems." "Jd at 1091 (quoting plaintiffs amended
complaint and motion). Likewise, the district court opinion eonclud~. that although constant
illumination is a legitimat.e security measure "[iJn the abstldct," it was unconstitutional where
there was "no evidence" that facility staff needed to, or even attempted to, monitor the cells 24
hours a day: leMaire, 745 Fe Supp. at 636, 'Likewise, in Shephmi v. Au/t, 982 F. Supp. 64.3,
648 (N.D. Iowa 1997), the court found that the plaintiff stated an Eighth Amendment·cJaim
where he .alleged that constant illumination of his cell 'Prevented him from sleeping, and.where
there were triable issues regarding the facility's need or desire to monitor his cells 24 hours a
day. That case also suggested that "different inferences arise conceming the effects of constant
.
illumination when exposure t? that condition is long term." ld. . .
The uni.que ciicumst.!Iices of the CIA's detention facilities constitute grounds to
distinguish theSe cases. As noted above, however, the circu~stances the CIA's program'
demonstrate'a speciar need for 24-hour monitoring. See id. at 645 (noting that "[t]he reason
for .. , mixed results on 'constant illumination' claims ... is that such cases are fact-driven").
The CIA's interest in observing the detainees at at! times is acute. Because the CIA detains only
.extremely dangerous individuals whom it has detennined to pose serious threats to'the United
States or to be planning terrorist attacks, see supra p. 12, its interest in being able to observe iti
detaiI\ees at all times is considerably greiter, in most circumstances, than the need to keep a
pretrial detainee under constant ~rveillance in a U.S, prison orjail. The uniquely vulnery,ble
nature ofthe eIA's detention facilities further hei htens the need for s cial means ofsecuring
those facilities from within. As described ·above,

of

significant trairung

the CIA must house extremely dangecous terrorist detainees; who often have
the making and use ofimprovised weapons.

In

These unique characteristics of the etA detention faciliti.cs make the use ofunusual
security conditions like constant illumination defensible in a way that such a condition might not
be in a more tldditional facility. By keeping the facilities under constant iIJumrnation and closed·
circuit slllveillance, the CIA is attempting to do with technology what other detention facilities
do with architecture or manpower. Accordingly, our analysis ofthe use ofilluinination is limited
10 the CIA's covert det~ntion facilities and would not necessarily carry over to more permanent
·priSO!)S where alternative ways of keeping walch ovec delalnees might be· possible. Indeed, we
find it relevant that the CIA has'considered, only to reject as im rncticable or inad uate,
alternative l:fIethods of keeping detainees under surveillance,

22

constant illumination further illustrates the nexus between the CIA's security needs'and the'
condition it has imposed.
We therefore conclude that the use of constant iUuminatiol\ under these special
circumstances, .satisfies the substantive Fifth Amendment sta.. .ldird relevant here,' and thus is
consistent with the DTA

6. The ClA's purpose in shackling detainees is 10 enhance security "in all.aspects of
detainee management and movement" Sfondard Conditions ojCIA Detention at 3. The u~ of
shackles is calibrated to advance this purpose: the number of hours per day that a detainee is
shackJed is directly linked to the security threat that the detainee has been shown to pose to
detention facility st.af[ It! We UOOersl:and,'and think it highly signi6cant, that detainees are not
Shackled while in their cells unless they. are a demoostraled threat 10 themselves erto facility
personnel while in their cells. Thus, allhough detainees whose demonstrated history
misconduct has shown them to pose a serious threat, or who otherwise are reasonably believed to-.
be exceptionelly dangerous, might Wcir shackles at all timeS, others might'be shackled only
when CIA personnel are in the room with them,. such as during an intem?gaJion.session. Id. You
recently informed us that, at present, no detainee is shackled 24 hours per day.

of

Also significant to our aiIa.Iysis is our under!if.anding that detainees, While shackled, are
able to walk comfortably' and that the shackles are fitted "in such a manner as to not restrict the
flow of brood or cause any bodily injury." Standard Conditions ojCIA Detention at 3. This fact
helps confinn that such shackling is in fact telated to the CIA's in.terest il.l security and.tha.t.il
does not cross ~e line into impermiSsible punishment. Indeed, our conclusion might well be
different were detainees routinely shackled without any individualized determination about the
sewritY risks they pose or i£1 such a way as to cause them physical pain or suffering. C/
W"Uliams v. BljTton, 943 F.2d 1572, 1574-75 (11th Ci... 1991) (per curiam) (keeping a prisoner in
foor.point res<raintsj even for more than twenty-four hours at a time, ~es not violate the Eighth
Amendment where 00 actuaJ injury is intlicted): Bufto sb:!clcle a demonstrably violent or
escape-minded detainee whil.e he is in close proximity to CIA per$OlH).eJ, wbere the shaclcles are
merely a restraint and not a soun:eofinjury, undoubtedly has a direct connection to the CL,,"'s'
interest in protcetirlg its facilities and its employees. Used in tbat careful way, shackling is not
i.ntended as punishment.and cannot be said·to be so excessive in relation to the legitimate
objective it advances that it ~ only be understood as punishment.

Shackling, moreover, is it condition ofconfinement that is addressed in the case Jaw..
. Courts have often rejected constitutional claims alleging impennissiole shackling. For example,
in Keenan Y. Hall, 83 F.3d 1083 (9th Cir. 1996), a priso.ncr asserted an Eighth Amendment claim
based on his a.1Jegation that "every time [prison] guards moved him from his cell, they placed
him in restraints that caused pain and eets." It! at 1092. The court ofappeals, however, rejected
t.hat claim., concluding that, "for the protection of sta1f and other inmates. prison ~utborities may
place a dangerous. inmate in shackles and band<:uff's when lhey move him from his ceIl." It!
Likewise, fnUk/aiTt! v. MOiJSS, l2FJd 1444, 1457 (9th Cir. 1993), the court ofappeab: rejected
an Eighth Amendment claim brought by prisoners who were put in handcuffs and shackles when
removed from their cells to shower, staling that the claim was "manifestly without merit," In

~=~~'l%irimrf;,a~ne-purpo~lffi~lirofel::;ftfil~1'i:t""'fllartOud'1rr~~~~-

T

23

-

also upheld the use ofin-<:ell restraints, concluding that, where used to control behavior of
dangerous prisoners and maintain security. the use of such restraints does not violate the Eighth
Amendment Jd at 1460. Finally. in Bruscino Y. Carlson, 854 F.2d 162 (7th Cit. 1988), the

court of appeals found that a mzxirnum security prison's policy ofhandcuffing an inmate and
shackling his legs whenever he is Otltside his cell was a ''reasonable measure in view o(the
history of violence at the prison and tile inconigible, undeterrable c.halOlcter of the inmates." Id
at 166.
We therefore conclude that the CIA's use of shackling. as you have described it to us, is
sufficiently refated 10 the CIA's objective of institutional security, and sufficient!y uiliikely to
cause needless hardship for detainees, that it does not constitute the kind of"cruel, inhuman, or
degrading treatment or punishment" prohibited by the DTA

c.
ThusJar. we have ana.lyzed the CfA's condillons ofconfinement individually. Courts,.
liowever. at least. wheo evaluating an Eighth Amendment ctlndilions-or·confiaement cla.im. l~d
to take a totality--o(·the-cirallnstances approach. As the Supreme Court bas staled, "[s}!JrAe
coOditioos ofconfmement may establish an Eglith Amendment viol,dian 'in combinatiOn' when
each would not do so alone." Wilson v. Slifer, 501 U,S. 294, 304 (i991); see a/so pQjm~r v.
Johnson, 193 F.3d 346,153 (5th Cir. 1999) (stating thaI "we must consider the totality of the.
specjfic ~mst.ances' that constituted the Conditi~ns of [the prisoner's] coDfinement, 'with
particular regard for the manner in which some ofthose conditions had a mutually reinforcing
effect"); Bf?iSdno v. Car/s{J", 854 F.2d 162, 166'(7th Cir. 1988) ('!be whole is sometimes
greatQ"lhan the sum of its parts: the Qlmulat~ effect of the indignities, deprivations. and
constraints to which inmates are subjected determines.whether they are receiving cruel and
unusu~ punishment.").
This totality-<lf-the.-eircumstanees approach has its limits, however. Conditions of
con!in~ment.maygive rise ~ a oonstitut"ional violation together, ,yhere they would not do so
alone, "only when they have a mutually enfo~ng effect." Wilson, 501 U.S. at 305; see alsO .
Palmer, 193 F.3d at 353 (c:c>ffiideringthe manner in which certain conditions had a "mutually
l~inforcing effect''); Bruscillo, 854 F.2d 301166 (analyzing conditions' "cumulative effecl"). The
Supreme Court has explained that
[1)0 say that some prison C:Qoditions may interact in this fashion is a far cry from
saying that 1111 prison conditions aie a seamless web for Eighth Amendment
purposes. Nothing SO am1?rphous as "ovmll conditions" can rise to the level of
cruel and urlUsual punishment when no specific deprivation ofa single human
need exists.
We have examined the conditions of confinement employed by the CIA in its covert
detention program and sec nothing to suggest that they might produce such an effect. In
particular, it does not appear that any of the oonditions rcoder the detainees unusually susceptible
to harm. from any ofthe other conditions. To the contrary, 'the eVidence that we have considered
--~,<Imft~-gmre'l_!l!ngt~~'-"""j"fll,,,,"lyl,~~~~

24

I

I~jnforcing harmful effects oflhe conditions of detention, including by giving each. detainee a
quarterly psychological examination to assess how well he is adapting 10 his confinement. Jd In
this way• .the CIA has instituted procedures to ensurt that any unforeseen, mutually reinforcing
harmful effects ofthe conditions of confinement would be brou@1t to the attention of facility
personnel and addressed in an appropriate manner.

Nevertheless, we"approach this question with no illuoons about the cumulative strain URt

may

these conditions
impose on detainees. The detainee is isolated from most human contact;. .~.
confined to his cell for much ofeach day, under constant surveillance,. and is never permitted a

moment to fest in the darlcness and privacy that most people seek during sleep: .These conditions
are unrelenting and, so~e cases, have been in plac¢ for several years. That these condili,ons,
taken together and extended over an indefinite period, may exact a significant psychological toll
illustrates the importance ofthe-medical monitoring conduct¢ by the CIA. But CIA's periodic
monitoring is oot, on its own., sufficient to ensure the non-punitive nature of the combined
condilions. Instead, our determination thaf these conditions are pennissible, even when used in
combination, rests ultimately on two critical points: (l) the detaip.ees in question are
exceptionalfy dangerous terrorists who pose a serious and continuing threat to the United States .
~ension, the CIA p~sonnel effectuating their ~etenti.on; (2~
~nature of the CIA facilities does not permit the use ofoth~
means of detecting and preventing threats against the security of the facilities.
points
highlight that the CIA's-sccu·rity concerns a,re not exaggerat.ed and, indeed, that in many ways
they exceed even. those that exist in maximum $CCllrity domestic prisonS: M~ver, the CIA b.!.s
atttmpted to calibrate its conditions of confinement so that they not only dfrectly advance its
security interests, but so that they so in Ways that avoid causing the detainees excessive or
unnecessary hardship. We exp«;t that the CIA will oontiooe iO engage in this calibration and
will be prepared to modify conditions of confinement (whether for individu.!.l detainees or
colJedj~e1y) ifexperience DC new circumstances suggest tlut sOme of the conditions discussed
aJ>oye are 00 longer needed to secure a particular facility or are in fact Causing the delaint:e$
unjUstifiable harm. On the basis of current circumstanc.es, however, we cooclude that these
conditions, conside.-ed bOlh individually and cOllectively, are consistent with the 0:rA. 16

in

'These

do

If Oll May 18, 2006, the Committee Against Tol1ulb-a body established by Article 11 oft!le Convention
Against Torture rCA I)--issued a series of recommendations p\11SU3l1l to the Second Periodic Report ofttle United
Stales to the Committee. In lho'se recommendations, the Committee sblcd withOlltelaborallon or irgumenl that lhe
.detention oC3.ny person "in any secret del:cntion bcility tinder its de fado dfediVe contJtll . .'. constitutes, ptr st., •.
violation o(the Conventioa." As lhe J)epartmentofSute has explai.ned, tl}e Commiita:'s summary conclusion on
this issue is neither authoritatin: nor correct. As an initial malter,lbe Commitk:c's mandille under Ankle 18 is
mad)' to make "suggestions," not to $I:fVC as m iluthoritatiye inlcrpettr ¢lhe ConvCntion UJI matter of
in:en:ational taw. Moreover, ill arguing tb2t incommuricado dctelltio:'l is ucl:wful, the Committoe did not indicate
wbal: provisions of the CAT su:h deteltiOll 'WOUld violate. Thlt omissioa is DOt surprising, as the CAT says nothing
whalSOl:VU 3boul affording detainees the ability to oommunicale 0UlSide of the facility iII which \hey are being
detained. St.:t. Slatemenl. or John Bdl. m to U.N. Committee Api:lst Torture at 2J (Mily S, 2006).
_'_

~

' .• ,

".,.,_

,

25

•• , n

~
. . ,~
.• ~...;...,;....;.",~~~_

L

IV.

For these reasons, and subject 10 all the limitations described above, we conclude th,ilt the
conditions of confinement that are the subject ofyauf inquiry do not constitute "cruel, inhuman,
or degrading treatment or punishmenr' forbidden by the DT A.

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

~€~
Steven G. Bradbury

A~ing Assistant Attorney General

__. _ - . - - - - - - - - - - - - -

~------_.

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26

U.S. De.partment or Justice
Office ofLegal Counsel

W.u.&lqIm. nc lam

July 20. 2007

.
MEMORANDUM FOR JOHN A. RIZZO
ACTING GENERAL COUNSEL, CENTRAL INTELUGENCE AGENCY
I

&: Application oJthe War Crilr.e.s Act, tM Detainee TreatmentAet, andComnwnAnic1e 31
ofthe Genewz Ccn.lIention.s to ~rttzbl Techmquu rhat May Be UsW by 1M CIA in Jhe
Interrogation ojHigh Value aJ Qatda [Rtai~&S

You have asked whether the Central Intelligence, Agency may lawfully employ six
I
"enhanced interrogation tecltniques" in the interrogation of high value detainees who are
members of aJ Qa.eda and associated groups. Addressing this question requires us to determine
whether the proposed techniques are consistent with (1' the War Crimes M as amended by th~
Military Commiuions Act of2006; (2) the Detainee Treatment Act of2oo5; and (3) the
i
!C<juirementsofCommon Article 3 of the Geneva. Convections.

I

anJ

As the President announced on September 6, 2006, the CIA has operated a detelltion
interrogation program since the months after the attacks ofSeplember 11. 2001. The CIA has i
detained in this program several dozen high value terrorists who were believed to possess criti~l
information that wuld assist in.preventing future terrorist attacks, including by leading to the
capture of other senior al Qa.eda operatives. In inlerrogating a small numbel of these terrorists, I
the CIA applied what the President described as an "alternative set oCprocedures"-and what
Executive Branch intemaHy bas referred to as "enhanced interrogmon techniques." These
techniques wele developed by professionals in the CIA, were approved by the Director of che
CIA. and were employed u,!der strict conditions, including careful supervision and monitoring, 'I
in a manner that was deternUned to be safe, effective, a.nd lawful. The President has stated that
the use of soch techniques has saved American lives by revealing information about planned I
tCIT?rist plots..They hav~ been recommended for approval ?y Ihe Principals ~0nu:t.tittee. of the I'
NauonaJ Security Counell and briefed 10 the full membership of the congresslOnaltntelhgence
.
committees.

!
me

I

Prior to the President's 2.DflOunceroent on September 6, 2006, fourteen deta.illees in CIA

custody were moved from the seaet location or locatioos where they bad been beld and were
transferred to the wstody ofthe Depanu:ent ofDefense at the U.S. Naval Base at Guantanamo I
Bay. Cuba; no ddainees then remained. in OA custody under lhi.s prognm. Now, howcver. the
CIA expects to detain further bigh value detainee! who meet the requirements for the progrun,
and it proposes to have six interrogation techniques available for we, as appropriate. tbc erA
has detennined that th~ six techniques are the mininwm DewSa!}' to maintain an effective
program designed to obtain aitica1 iotelli&toce.
I'
The past eighteen months have witQessed significant changes in lM I~ framework
applicable to the armed conflict with al Qacd3. The Detainee Treatment Act ("DT Aj, which tbp
President signed on December 30. 2005, bus the imposition of"tbe e:euel, unu.sual, [or)
j
inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendmenu:
to the United States Constitution" on anyone in the custody aCme United States ~ ...eromtlrt, I
regardless of location or nationality. ThePresideot had required United States personnel to
follow that standard throughout the world as a matter OfpoUcy prior to the enactment ofthe
DTA; the DTA requires compliance as a t:l.atteroflaw.

I

On June 29, 2006, the Supreme Court decided Hamdan l'. RumsfeJd, 126 S. a. 2749
(2006), holding that the military commis!OOM e5lablished by the President to try unlawful enemy
combatants were Dot consistent with the law of war, which at Ute time was a general requirement.
ofthe Uniform Code of Military Justice. Common Article 3 ofthe Geneva Conventions W2j a
part oftbe :tpplieable law of war, th~ CoUrt staled, because the armed conflict with is! Quda
constituted a "con1liet. not ofan international character." The Court's ruling was contrary [Q thq
PTesident's prior determination that Common Article 3 does not apply to 3D anned confliCl
I
across national boundariC! with an internacioaal terrorist organization such as al Qaeda. Se.e. I
Memorandum ofthe President far the National Security Council, &: HumalU Treatme.nt ojal i
Qaeda and Taliban Detainees at 2 (Feb; 7, 2002). .
J

I

The Supreme Court's decision Concerning the applicability of Common Aniele 3
introduced OJ. legal standard that had not previously applied to this conflict and had only rarely
been interpreted in past collflicu. whil.e directed at conduct that is egregious and univmally
condemned, Common Article 3 contains severn! vague and ilI·defined terms that some could
have interpreted in a mannu that might subject t1nited States intelligence personnel to
unexpected, pasJ hoc standards for their conduct. The War Crimes Act magnified the
significance of any disagreemCClI oYer the meaning oflhese terms by making a violation of
Common Article 3 a federal crime.

I
I

I

, Reflecting Ibis policy. this Offil::e OODduded SCYCA momhs before CA3Cll%lClll ot the DrA th3Ilhe six
tcdmiqucs discusstd tu:mn.oxuplkd willi lbc·~otU.Stoblipti(lllJ uMet Article 16
of ~ ConveJUiOIl Apiml. TOltUn ;wi 0thC2" i:lltu.a:Iwa or Degadiq T.re3llDenl, 146' U.N.T.S. "('CAT'). Sa
McmonndwDfof Jolin A. Rizzo, &nior Dc:pul)' Ocncnl Counsd, CentDI ID:dIigcncc Agcnq. from Stc\= G. '
BndbuJ?'. PrincipaJ Deputy AmsbJlI: ~qGcncnl, Office ofLcpl Counsel, 1W: Applia:/lcllojUrdtzd $lJ:.1I'~
ObligotlOlU U1tdcr Arlkk 16 ojthe c.:.rtwntfon AlaUrst Ttit1JJn tD Cutdn T~dulfiplU du1J M4}' Bt U#d In 1M I
Inft~on ofHlgJt YahleDiQoc*,DctDiMa~30. 200S).
~iGtcmlptio.D

I

T

2

-

~~~

..

clJ.

TbePresident worked with Congress in the wake of the Hamdan decision to provide
Iega! standards for U.S. personnel dcUiwcg and interrogaiing ttrrOnsts in the anned conflict
with al Qa.eda, an objective that was i~eve3 in the CtIadmeut of the .Miliwy Commissions Act

I

0(2006 ("MCA"). Ofmast relevance here, the MCA amended the War Crimes Act, 18 U.S.c.
§ 2441, to spt.cify nine discrete offenses that would constitute grave breaches ofCommon
Article 3. Su MeA § 6(b}. The MCA further pnplemented Commoo Article 3 by stating t~
the prohibition on aueI. inhumm, and degrading treatment in the DTA reaches conduct, outside:
of the grave breaches detailed in the War Crimes Act, bmed byCornmon Article 3. Su id .1
§ 6(c). The MeA ieft responsibility for interpreting the meaning and application of Common I
Article J. except for the grave breaches defined in the amended War Crimes Act, to the
President. To tJUs end. the MeA declucd the ~CVI. ~nventio~s judiciallr unenforceable,
id. § Sea). and expressly provided tbzt the Presldent may Issue an mterprdatloo of the Geneva r
Conventions by exeOJtive order that is "authoritative ... as a matter ofUnited States law, in
same manner B$ other administrative regulation5." Id § 6(8),

sr,I

thl'

I

This memorandum applies these new legal devdopments to the six. interrogation
techniques that the CIA proposes to use with high value al Qacda detainees.' Put I provides a
brief history ofthe CIA detention program as wen as a desaiption of die program's procedures,
safeguards, and the six enhanced techniques now proposed for use by tbe OA. Part II addresse~
the newly amended War Crimes Ad and concludes thal none of its nine specific criminal

I

I

1 Thls memorandum addJcucs the aln:pliaJlCe. oflbe six poposcd lJUc:IJ"opdon tc:chniquc.s with Lhe two
IUtutes IJ\d oce treaty provision al issue. We prmOll.S!y bavc concllldt.d that 1hese teebniquQ dG not \ioJ~ the j
federal prohibition OD tol11lfC, cadUicd alii U.S.c. H 13.0-1340.... SuMetnof1l\dum1or 10\lll A. RIzzo, Scmor,
Depnly Gc~ Counsel, Cuttnl In1ellilenct Agency, b'oIn StcvCl1 G. BrallbW}', Priodpal Deputy Assistanl
I
Attolllcy Oeneral. Office o(Lcgal Counsd, R;;.4ppllcalian 0118 U.s.c. JJ 2J4~2J4Q( 10 Cutof" T~cJmiquu Ibt?i
MayBe Uud ill rhe Interrogation of 0 Hlp V4101t 0/ Q.udl> D'ID~t ~y 10, 2(05) ('Stello" 2340 Opinlon~); s~
4/14 Me~ for John A. Riz7D, Smior DtpI1ly Gcmnl Coumd, Ca.tn.I InttUlge:oce AgEDC)', from Steven G.
Bradbury, Principal DeputJ Assistant Attorney Gew:raI, Office ofLepl Ccunstl. R,; Appi/catJM 0118
;
U.s.c. IJ 2J4Q.234fl4. to fhl! ContblMd Uu ofCtrtmn Ttc1ulfpm /" Urt lnftn"OgotfC/l o/lfliJ! V...fut alQotdQ I·
D,/oJIl"u (May 10, 20(5) C'Combintd Usc; (alocluding thrttbeeomblnod IlSC (l(the~ tecllniqU£.S would not
violate the (a:kRi prohibition on tornJ'C). lruddition, we Ju.vedelermin~ thaI the ecndltlOlltofcellfi1lemtnt in ~
CIA progatll fully colJlply with the DT" and Cammon Mide 3, DU1 we do not addtess thosc:conditiollS z@ini'lc:tc.
St, Mcmomldum Cor John A Rino, Acting General CaDnseI, CtntrallnleUigence Agency, from Steven G.
.
Br.ulbwy, Acting Assistmt Attorney Gell,Cr.l1, Office otLepl Colllllcl,Rt: AppflcotiOll o/tJI, [Mt(Jjntt Trtal1r~nl,
Act 10 Q!/tdl//tmtD/Co"flllt/1/t", olCentrol lllkfliSt1l~.4gt1lcyFQCl1ifiu(Aug. 31,10(6); Letter ttl John A. Ri':tlo,
Acting Gencnil Counsel, CenIT.lJ Intelligence A:enq, from Stn'en a. Bradbtlr)', Actin!: Assistant Attorney £knecll,
otfico ofLcp,l Counsel, Ri!: .4pplicnlioll r;/C4m",oll.4n1clt J fa ClHldifionJ ojConjinlf/\tnJ aI CiA Ft:lClfItltJ
.

(All&-

n, 2006).

~pimOIl$,

~lI;Tl

I

. Together "'ith Out prior
the questions we discuu ill this
fully :addrC$S the
potentWly relcmnt sources of UIllted States law 1ll:at ~ appUcable 10 the la\o\-1\lIDe5S of the ClA detention ~
I
intcn"optioll program. We undtrStaDd !l'.al the OA proposes [0 deUiP lbese persons al sites outside the [ariltlry 01
the U~ &.t.es Illl1 0Ulside the Special Maritime and TeuiloriJJ lurisdictiou oIlhe-United Stztcs rsM'TT'). as' ;
defined ID 11 U.s.c. § 1, aOO therefore Dlherprovi~ ill aile IhrcDOf applicable. III addition, ~ Ulll1emmd I
that !he CIA will not detain Ut this pmgwo..any pcrsoll who is a prisoxrol ~ under Attidc 4 of the Third GeAcv3
Conventioa Relative to me Protection ofPrisoner:s 01 War ,6 U.S.T. n 16 (Alt&- 11, \9.U) ("OPW") ora perSOD I
covered by Altidc 4 oIl:hc Fourth ~'a Coaveoticn Rd.a!fve 10 thc ProtediO!l ofCiYilia.D.Po'soas ill Tuneo( J
War,6 U.S.T. "16 (Aug. 12, 19~91 rGCV'1,ar.d dtus tbc pt"amions ol"lhe. a~ ConvcotiOll$otbcrtfwt
Common Article J a~ do not apply me.

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offenses prohibits the six techniques as proposed to be employed by the CIA. In Part
we
amsider the DTA and conclude that the SLx lcdlniques as proposed 10 be employed would satisfY
ils requirements. The War Crimes Aa and the OrA cover a substlntiaJ measure ofthe condud I
prohibited by Common Article J; with the assistance of Oill cotlclusions in Parts n md ill,
I
Part IV explairu that the proper interpretation ofCommon Article) does not prohibit the United
States from employing the CIA's proposed interrogation techniques.

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To make that dd:ennination. conctusive under United SWe$ law, the President may
c:xerc;ise his authority under the Constitution and the Military Commissions Act to issue an
executive order adopting this interpretation ofCommoQ Article J. We undC'sstand that the
President intends to aercise this authority. We have reviewed his proposed executive ordtt:
The executive orderiJ whoUy cxlllsistem with the interpretation of Common Article 3 provided ,
b«ein, and the six proposed interrogation techniques comply with each of the aecutM: order'5!

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The erA now proposes to operate a limited detention and intcrrogaJion program puTSU
to the authority granted by the President
The CIA docs no~
intend for this program to involve long-term detention, or to serve a purpose similar to that ofQJe
U.S. Naval Base at Guantanamo Bay. Cuba, which is in part to d~ain dangerQUS enemy
t
combatants, who continue to pose a threat to the United States, until the end of the armed
i
conflict with al Qaeda or until other satisfactory arrangements can be made. To the contrary, tHe
CIA currently intends for persons introduced into the program to be detained only so long as i51
nece~sary to obtain the vital intdligence.lhey may possess. Once that end is accomplished. the
CIA mtencU 10 transfer the detainee to the custody of othcs entities, including in some cases the:
United Stales Department ofDe~se?
-

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This {Qnnn!a has been folJoltcd wilhrep1d 10 me perlOlI bdd in C1A QJS!ody sUlcI: the PresidcDl:'s

Septernbu 6, 2006 r~mrts during "'bicb t.eJDDlJUJJC=llhJ1 tIie proglltR \fU empt}' allbat DOe. The CIA took

4

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ven as

0

detainees who meet that standard, however, the CrA oes not propose to use enhanced. .
interrogation techniques unless the CIA has made three additional determinations. First. the CI
must conclude that the detainee is a member or agent ofat Qaeda or its affiliateS and is likely to
possess critical intelligence ofhigb value to the United Sutes in the Global War on Terror, as I
further described below. Second, the Director nfthe CIA must detennine that. enhanced
i
interrogatioll methods are needed to obtain this ClUcial information because the d.claineo .is . i
withholding or manipul<\ling intelligence or the threat of imminent atta.ek.lea.ves insufficient time
. for the use ofstandil.rd questioning. Third, the enhanced techniques may be used with a
particular detainee only if, in the professionaJ judgment of qualified medical persqnnel, there ar~
no significant medical or psychological contraindications for their use wim that detainee.

I

1.

. The p~ogram is limited to persons whom the Director of the CIA determines to be a
member of or a part ofor supporting at Qaeda, the TaJibao, or associated terrorist organizations
and likely to possess infonnation that could prevent lerrorist attacks against the United States or
its interests or that could help loate the senior leadership of al Qaeda who are conducting its i
campaign of terror against the United Stales, 4 Over the history of its detention and interro~o~
program, from March 2002 until today, the CIA has !lad custody ofa total or98 detainees in the;
program. Ofthose 98 detainees, the CIA has only used enhanced techniques with a total ODO.l
The CIA bas told us that it believes many, ifnot aU. oftbose: 30 detainees bad reccive9- trainingl
in the resistance of interrogatiort methods and that al Qaeda actively seeks information regarding
U.S. interrogation methods in order to en.~ance that training.
.

The CIA has informed us tbat. even with regard 10 detainees who are believed to possess
high value information, enhanced techniques would not be used unless nonnil debriefing

i

methods have been ineffe~ive or unless the imminence of a potential attack is .believed not to ;
aJlow sufficient time for the use of other methods. Even under the latter circumstance, the
!
detainee will' be afforded the opportunity to answer questions before the use of any enhane«i
t~hniqu:s. In eith~r~, th~ on-sce~e interro~ation tea~ must determine that the d~nee is
wlthholdmg or marupulahng mformatlon. The mterrogatJon team then develops a wntten
interrogation plan.. AJ1y interrogation plan that would involve the use of enhanced techniques

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custod of 'aM tl·Hadi at Ira i .

CIA otIicials

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estJooed

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must be penonaJly reviewed and approved by the Director afme Central Intelligence Agency.
Each approval would last for no more than 30 days.
J.

The third significant precondition for U$C of any of the ~ techniques is a eartfu]
evaluation ofthe dClainee by medical and psychological professionals from the CIA', Office of
Mcdi cal Services ("OMS"). The purpose of ~ evaluations is to ensure the detainee's safety ~t
all tim~ and to protect him from physical or mentallwm. OMS personnel arc not involved in
the worlc ofthe ioterrogaticn itself and are presetJt sclely to ensure the healeh and the safety of ,
the detainee. The intake evaluation includes "a thorough initial medical asses3ment ... with a I
comptete, documented history and il phylical [cumimtion) addressing in depth any chronic or I
previous medical problems." OMSGuithlinu on MmJrol andPsychologkal Support to
,
. D~taine« Rendinon. InUrTogaDOn and [ktennon at 9 (Dec. 2004) rOMS Guide/inLJ'1. In
addition, OMS pmoMcj monitor the detainee's condition throughout the application of
i
enhanced technique$, and-tbe interrogation team would stOp th6 use ofparticular techniques or i
halt the interrogation altogether iftbe del2inee', medical or psychological condition were to
indic;ate that the detainee might suffer significant phy.sical or mental harm. S~~ S~crton 1340
Opinion at·S-6. Every CIA officer present: e.l an interrogation, including OMS personntl, bas th
ilut~Ority and responsibility to stop a technique if such hann is observed.

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B.
The proposed interrogation techniques are only one part of an integrated detention and
interrogation program operated by the CIA The foundation ofthe program is the CIA's
knowledge of the beliefs and psychological traits ofal Qaedi. members. Specifically, members
of a.l Qacda expect that they will be subje<:t to no more than verbal questioning in the hands of
the United States, and tbuS" are trained patiently to wait OUI U.S. interrogators, confident that th~y
can withstand U.S. interrogation techniques. At the same lime, al Qaeda operatives believe thai
tl;ey are morally permitted to reveal information once they bave reached a certain limit of
dlScomfort. The program is designed to dislodge the detainee's expectations about how he willi
be treated in U.S. custody, to create a situation in which he feels that be is not in control, and to
establish a relationship ofdependence on the part ofthe detainee. Accordingly, the program's
intended effect is psychological; it is not intended 10 extract information through the impositiori
of h sical pain.

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The ClAhas designed the tedmiques to be we. Imporuntly, the CIA did not createthel
proposed intenogatioo techniques from whole cloth. Instead. t~ CIA ~pled ~h of me
i
teehniques &om those used 4J the United SWCS military's SUMva~ EvasIOn. Resistaoc:e.- and
Escape C"SERE") tnining. The SERE program is designed to familiarize U.S. troops WIth
t
interrogation ttdmiques they.might experience in enemy custody and to train these tJ'O?PS to I
.resist such teehniques. The SERE program provided empirical evidence that the te<:hniqu~ ~
used io"the SERE program \\'eft safe.. A:J a rc&Jh of subjecting hundreds ofthousaros of mdrt.a1?'
personnel to v.ui..a.tions of the six techniques at issu~ bere av« decades. the military bas a long
experience with the medical and psychological effects of such techniques. The ~ ~eWed
tbe military's extensive reports concerning SERE training. Recognizing mil a detamee m CIA
custody will be in a very different situation from U.S. miliWy personnel who experienced SERE\
training, the CIA nonetheless found it important that no significant or lasting medical or
psychological harm bad resulted from the U5C ofthue techniques on U.S. militzry personnel ov~
many years" in SERE training.

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cur

All ofthe techniques we discuss below would be applied only by OA personnel who
highly tnined in carrying out the techniques within the limits set by the CIAand described in I
Ibis memorandum. This training is cruci..aJ---the proposed tedlniques are not for wide
:>j
application, or fOT use by young and untrained personnel who might be more likely to misuse od
abuse them.- The avernge a3~ of a CIA interrogator authorized to apply U\e$e techniques is 43,
and many possess advanced degrees in psychology. Every interroga!or who would apply these i
enhanced techniques is trained ar.d certified in a course that lasts approximately four weeks, i
which includes maDdatory knowledge ofthe detailed interrogation guidelines that the CIA bas I'
d.weloped for thiJ program. TIW cOUNe entails for each interrogator more than 250 hoW"$ of
training in the techniques and their limits. An interrogator works under the direct supervision of
experien~ personnel before he is pennitted principally 10 direct an interrogation. Each
j
interrogator has been psychologically screened to minimize the risk Ihat an. interrogator might
[
misuse any tcclutique. We understaIld from you that these procedum ~e that all
intmogaton undersrand the design and purpose ofthe interrogation techniquesj and thai they
will apply the techniques in accordance with their authorized and intended usc.

!

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• The CIA proposes fo use two categories. of enhanced interrogation techniques:
conditioning techniques and corrective tecluuques. The CIA h15 determined that the six
I
tecbniques- we describe below are the minimum necessary to maintain ao effective program for
obtaining the type of critical intelligence from a high value defainee that the program is designed
to elicit.
_
.
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, In·dc.scn"btnJ and evaluating Ibe proposaIltdlniques inlhis Memorandum, we Ul: U5istcct by the
t)..peritllCe~

OA 1llICLfOgators and medicalpenonntl. bYe pined tbrOIIgb IJIc pastadminlslr21ion af ~
inlmopticu kduUqDcs prior 10 the emctmcI1[ of !he DTA. AI thai. time, those I.:Cbniques ""CTO ck:ri&D~ by CIA.
petSCJ1Dd to be de, .and this
found tlwD to b: law1bJ uDlkr dlt tbcn-applic:able lepi ~ (/.A., before Ihc
enxtment aCthe UTA and the MCA and the StIpmJt Ccw1's ckdsiOllo in Hamdan). s" ntpr'QallL2. You have 1
infonnc:d u.s tbal the (]A's subsapent apuiaKt in wDductinllhe program bas coltfimwllh1t judgmeaL

omc:

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.......- - - - - - _ - - 1

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I. CotuJjtioNngt«1urUzutS

You have informed us thal the proposed o:mditioning techniques are integral to the
program's foundational objective-to convince the detainee that he does IIO! have c:ontrol over I
. his bl.$ic human Deeds and to bring the detainee to the point where he finds It pernussib1e.
consistent with his beliefs ind values, to disclose the information be is protecting. You have also
told us thatUUs approar.h is grounded i~wledge (If al Q.teda crainiog, which
authorizes the disclosure ofinformatiof1 at SlICb il point. The specific conditioning techniques J
issue here are diet2ry manipulation and extended .deep depnvz.rion.

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Dfdary manipulation would involve substituting a bland, commerc;iaJ liquid meal for a
detainee's normal diet. A$ a guideline, the CIA would use a formula for calorie intake thai
depends on a deuinu's body weight and expected level ohetivity. 'Ibis formula would ensure
that calorie Intake will always be at least 1,000 kC3J/day, and lha1 it usually would be
I
significantly bigber.' By comparison, commercial wcight·loss progr2lUs used within the Unit~
States commoaIy limit iolm to 1,000 ~day regardless ofbodyweigbL CIA medical
ensure that the detainee u provided 11id accepts adequate fluid and nutrition, and frequent
monitoring by medical personnd takes pb.ce while any detainee is undergoing dietary
manipulation. Detainees would be monitored at all times to ensure dut they do not lose more
than ten percent of the it starting body weight, and ifsueh weight loss were to occur, application
of tho Icchnique would be diKOntinued. The CIA also would tn$UTC tha.I: detainees, at a.
minimum, drink. 35 mlIkglday of fluids, but a detainee undergoing dietary manipulation may
drink as much water as he reasonably pleases.

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Officerr

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E:crended sleep ckprivation would involve keeping the detainee awake continuously for
up to 96 hours. AJthough the application afthis technique may be reini~iated aftu the detainee is
allowed an opportunity for at least eight unintenupted hours of sleep, CIA guidelines provide I
that a detainee would not be subjected to more thaa 180 boun aftala! sleep deprivation during
o,:e 3()..day period.? Interrogators would employ extended sleep deprivation primarily to weaker
a detainee's resistance to il?terrogation. The CIA knows from sta1emonts made by al Qaeda
members who have been interrogated that al Qaeda operatives are taught in training that it is
consistent with their beliefs and values to cooperate with interrogators and to disclose
I
information oncc they have met the limits oftheir ability to resist. Sleep deprivation is effect.iv~
in safely inducing fatigue as one means to bring such operatives to that point.
I

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• The et.. . llcnerally follows II a iuideline a calorie ttqube.mtlltof900 kca1Ida1 + 10 halJq/dJy. This
q\WItity is multiplied by 1.2 for & sedemary actin!}' Ie"/el or 1.4 Cot a moderate activity level. Regardl~oCthis
fonnula, the ro:.olll1l1CIldcd nrinirnum calari: intake i5 1500 kcalIday. aDd in 510 evecI is lbc deQinocallowed to .
rcaJ\'C less lh2n 1000 kc:aVcb)'. The guidcJinc Q/oric Imake !OJ" a dct&iDc:c who n:c::iaJls 150 pollDds (:Ippro~
6l.ki1opams) MlIlld therefore be oearly 1,900 ktaJldl}' {or scdCfltNJ activity ud would be more !han 2,.200
I
kc:allday (or qlodrnUc ICtivity.

'I·

I 1Jl this manormdum ...~ address onlJ U:e lawfUlness of. period of coetinllOUS docp deprivation ofno
man: th2n 96 boars. SboWd the CIA detcncine lbat ;1 \IIOOld be I'ICCICSW)" {Of the DW:::ror r:L Ole C1A [0 appJ:OVl: ~
cxtensioa of thai period with mpc:ct to a particular dctJiDa:.1his 0Bi0e woold pmidt: a4lfitiorul pdallc:c tID the I
applicail.on at the applicahk !ega! stmdanis colbe facts oIlhat. pzrlculzr case.
.
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The CIA uses physical restninu 10 prevent the detainee from falling asleep. The
detainee is $ha.clded in a standing position with his hands in front orbis body, which. prevents I
him from falling asleep but allows him 10 move around within a two- to ~ree-fool diamet:r
The deuiaee's hand.5 are genlnlly positioned below his chin and abo'le hiS heart.' Standing COT]

af9-

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such an ~eoded period ohime c;an cause the physial effects that we oesaibe below. We are
told. and we understand that medical studies confirm, that clinically significant edema (an
~
excessive swelling of the I~ and fed due to the building up of excess fluid) may occur after

extended period of standing. Due 10 the swelling, this condition is easily diagnosed. and medi I
personnel would stop the forced standi.cB when clinica.lly significant symptoms of edema were
recognized. In additiQn, standing for e::xtended periods of time produce! muscle stress. Though
this condition can be unoomfurtable. CIA medical personnel repon tIu.t the iTllJSCle stress
!
associated with the extended sleep deprivation technique is not hannfu,l to the detainee and that
detainees in the past have not reported pain.
.

I

II

The detainee would DOt be allowed to hang by bis wrists from the chains during the
administration ofthe technique. If the ddainee were no longer able to stand, the standing
j
component ofthe technique would be immediately discontinued. The detainu wouJd be
monitored at ail firrteS through closed circuit television. Also, medical personnel. will conduct ,
frequent t*ysical and psychological exlminations of the detainee during application ofthe

I

technique.'

We understand that detaioees undergoios extended sleep deprivation might experience
"unpleasant physical sensations from prolonged fatigue. including a slight drop in body
temperarurc, difficulty wilh coordinated body movement and with speech, nausea, wd blurred
vision." $eclfon 2340 Opinion at 37; saa1so Id. at 37·38; Why We Sleep: The FU1JCJionsoj I
Sleep in Humans and Other MammlJs 23-24 (1998). Extended sleep deprivation may cause
diminished cognitive functioning and. in II few isolated cases, has caused the detainee to
experience hallucinations. Medical personnel, and indeod all interrogation team members. are
instructed to stop the use of this techniquc ifthe dctainee is observed to suffer from significant
impairment of his mental functions, including hallucinlltions. We understand tbat subjects
'
deprived ofsleep in scientific studies for significantly longer than Ihe CIA's 96-hour limit on
continuous sleep deprivation generally rewryJ to nonnal neurological functioning with one
of nonnal steep. See Section 1340 Opinion at 40.

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nighl

Because releasing a detainee from Ihe shackles to utilize toilel facilities would present a
. significant security risk and would interfere with the effeClivencss oftbe technique, a detainee I
I The

CIA regards this sb3dUing procedurE

SIJ

<IS .a:aniDg lhc dock 011 the 96·hour lirrtiI for me proyoscd
Similarly, l\itb ~egard to the oman s1eepdcprivation lim.i.Ioll&O boM;, lIIe CIA docs DOC J
procedUl"es for more !han atoIaI or Jao boon in one 3lMl.Jy period.
j

dcpriv:ltiollleclJni~

apply the shacklin,

i

'If medical pa:so1llld detenoinc, basedOJl their ~kuinn.aljudamem. that the dc:Wncc's phy$ical
colldUioo. ~ nol pennlt him 10 SWId for an cxtaJdcd period, orif a cktain.c:e c1tve!ops physical almplbdocs frok
ClCltlIded m.ading, suc:ll as clinieally sipific:a.n.l akm:I or m:usdc stl'e$$, lhaJ lcJ:erroplorl mzr IISC In a ~ I
meJ:hod of sleep deprivation.. UDdcJ Ih:lt meIbod, Iht dtUinclc W'C!Wd be sbctlcd 10 J small Aoo~ c:tr~\"l: for
supportir.J his 1I'cigbt. but of insuffidcol wicl!h for l:ia to kttp hili tabnc:e dtlriD.& TC5l.. •

TO
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undergoing extended sleep deprivation frequently wears a disposable undergarment designed
adults with incontinence or enuresis. The undergarments are checked and changed regularly,
the detainee's skin condition is monitored. You have informed us that undergarments are used
solely for sanitary and health reasons and not to humiliate the detainee, aDd that the detainee wil,
wear clothing, such as a pair of shom, over the under-garment during Ipplication of the
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technique.

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Corrective techniques entail some degree ofphysicaJ contact with the detainee.
Importantiy. these techmques are not designed to inflict pain on the detainee, or to use pain 10
obtain information. Rather, they are used "to oorr~ [or] startle." Btu:kground P~r at 5. Thif
category of'tecbniques, as well. is prj:mised on an observed featUre of aJ Qaeda tralmng and
I
mentality-the belief that they will oot be touched in u.s. custody. Au;ordingly. these
I
techniques "condition a detainee to pay attention to the illlerrogator's questioos and ... dislodge
expectations that the detaioee will not be touched", or that a detainee can ftustrate the
interrogation by simply outlasting or igooring the questioner. Section 2340 Opinion at 9. Th]
are four techniques in this category.

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The "facial hold" is used to hold & detainee's head temporarily immobile during
interrogation. One open palm is placed on either side afthe individual's face. The fingertips e
kept well away from the individual's eyC1. The f2cial hold is typically applied for a period of
only a rew seconds.
The "attention grasp" consists of grasping the individual with both hands, one band on
each side oftbe collar o~ning, in a contrnUcd and quick motion. In the same motion as the
grasp, the individual is drawn toward the inlt:mlg1lor. The interrogator uses a towel or other j
collaring device around the back oflbe detainee's neck to prevent any whiplash l'rom the sud~
motion. Like the facial hold, the attention grasp is typically applied for a period'of only a few
seconds.
.

The "ab~orninal slap" involves the interrogator's striking the abdomen of the detainee
with the back of his open hand. The interrogator must have 00 rings or other jewelry on his hanU
or wrist. The interrogator is positioned directly in front ofthe detainee, no more than 18 inchei I
from the delainee. Wrth his fingers held tightly together and fulfy e:rteoded, and with his palm I
toward his own body, using his elbow u .. fixed pivot point, the interrogator slaps the detaiaee in
the detainee's abdomen. The interrogator 10ly not use a fist, and the slap must be delivered
above the navel and below the sternum.

I

With the "insult (or facial) slap," the interrogator slaps the individual's face with fingers
slightly spread. The hand mues contact with the area directly between the tip oftbe individua.J\s
chin and tbe'bottom of the corresponding earlobe. The interrogatoc thus "invades" the
individual's "personal space." We understatld that the purpose of the facial slap is to induce i
shock or SUJPrise. Neither the abdominal slap nor the £adz! slap is used "';lh ~ intensity or
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frequency that would eause significant pain or barm to the detainee.

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Medical and psy,*"logica1 personnel are physica:.lly present or otherwise

ob~ng

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whenever these teclmiques are applied, and either they or any other member off:he mterrog;dJonl
team will intervene if the use ofany ofthcsc techniques 1w an unexpectedly painful or harmful
P3Ychological effect on the detainee.

•

•

•

In the analysis to follow, we consider the lawfulness of these six techniques both
individually and in combination. You idve informed us, however, that Qne of the techniquessleep deprivation-bas proven to be the most indispensable to the effectiveness ofthe
I
interrogation program. and its absence would, in allliketihood, render the remainin.g teChniqu~1
oflittle value. The effectiveness of the program depends upon pcm1ading the dcta1nee, early In
the .application afthe techniques, that he is dependent 00 the interrogators and tMt he Jacks
I
(;(Iotrol over his situation. Sleep deprivation, you have explained, is C(Uciai to reinforcing that I
the detainee can"improve his situation only by coopen.ting and providillg acoJrate infonnat~on.~
The four corrective tecluUquu are employed for their shock effect; because they are 50 carefull
limited. these corrective techniques startle but caJJSe no significant pain. When used alone, the
quickly (ose their value. Hthe detainee does not immediately cooperate in response to these I
lWutiqu~ the detainee will quickly learn th.eir limits and know that he can resist them. The
CIA informs us that the corrective techniques are effective only wh.~ the dctaiDoe is first plac.cd
in a baseline state, in which he does not believe that he is in control oftus surroundings. The
conditioning technique of sleep deprivation, the CIA informs us, is the (east irtl:nUive means
available to this end and therefore aiticz.l to the effectiveness of the interrogation program.

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n.
The War Crimes Ad. pr-oscribes nine aiminal offenses in an armed conflid. covered by
Common Article 3 ofthe Geneva Conventions. 10 See IS U.S.C. § 244I(c)(3). To list the
prohibited practices is 10 underscore their gravity: torture, cruel and inhuman treatment,
performiTlS biological experiments, murder, cnutilatioTl or maiming. intentionally causing serious
bodily injury, rape, sexual assault or abuse, and the taking ofbostages.
I'

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We .need not undertake in the present memOfllldum to interpret all ofthe offenses sel
forth in the War CrimC$ Act. The CIA's proposed techniques do not even arguably implicate si*
ofthcsc offenses-performing biological expcrlments, murder, mutilation or nuiming, cape,
sexual assault or abuse, i10d the taking of hostages. Stt 18 U.S.C. §§ 2441(d)(lXC), (D), (E),
(G), (H), and (I). Those six offenses borrow from existiog federal criminal law; they have well~i
defined m~n8$"; and we will not explore them in depth here. I I
•

I

J'

liThe

Cl:lACUJ"

Asslsl&ot AntlrnC}'S Geoeral for NaUolW Sccuril)' mdear!he Crinli.naI Divisionmve reviewed

with PDt Ifs iJIlerpn:tztioo of the tacrallq;d SUDdzrds; applicable to the rdewnt War Crimes Ad.

0«=

I

I

II A1tbougb the Wu Crimes Act defines affmses uoda lbe: Geneva ConvcntI.ClDS, it is our doUlCSlic ~ tto.al
gWdei: the iDlapret<JOon ollhc Ad..~ $UtU:o.y rmns. Conpcs:$Iu:s provided !hat -110 forei!" or ~ ~
of liJW shaU supply I basis fot a role cl decision ill ~ (:OUI1S ofthe United SQIcS in inl:crprUiDg the'" prohibiticms

TO
II

."

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I

Some features orthe three rc:maioing offenses-Cortu:re, autl and inbuaian treatment, anq
intentionally causing serious bodily injury-may be implicated by the proposed technique! and
so it is necessary for us to examine them Even with respect to these offenses. ho\WVef, we
I

I

conclude that only ODC technique--exteDdcd sleep deprivation-requlrts significant discussion.
12
although we briefly address the ather five techniques as appropriate.

!

First. the Wu Crimes Act prohibiu l~ in a manner vinu.a.lly identical to the
previously existing federal prohibition on torture in 18 U.S.C. §§ 2340-2340A Suo 18 U.s.C.
§ 2441(d)(IXA). This Office previously concluded that each ofthe currently proposed six
techniques, including mended sleep deprivatiol)-$lJbjcd to the strict conditions, safeguards.
and monitoring applied by the CIA-does noc: violate the fedem torture statute. Su
j
Memorandum for John A. Rizzo. Senior Deputy Genem Counsel, Central Intelligence Agency, 'I
from Steven o. Bra<!bury, Principal Deputy Assistatlt Attorney General. Offiu ofLeg.tl
Counsel. Application of 18 u.S.C §§ 13-10-2J40.4 to Certain Tcchllique31ha' May Be Usuf in !
the Interrogation ofa High Value al Qaeda Detainn rS«tJOll 2J40 Opinlmf') (May 10, 2005).j
As we explain below, our prior interpretation ofthe torture statute resolves not only the prope:r

!

interpretation ofthe torture prohibition in the W81 Crimes Act, but also several of the issues
presented by the two other War Crimes Act offeiUes at issue.

'

Sewnd, Congress created a ~ offimse of-auel and inhuman treatment" in the War
Crimes Act (the "crr offense"). This offense is directed at pmsaibiug the "cruel treannent" and
inhumane treatment prohibited by Common Article 3 oflbe Geneva. Conventions. See. GPW ~.
3 111 I, l(a). In addition to the "severe physic.al.or menta1 pain or suffering- prohibited by the
torture statute, the CIT offense reaches the Dew category of "serlous physical or mental pain or
suffering:' The offen~e's separate def1nitioll5 armental and pbysical pain or suffering extend to
a wider scope of conduct than the torture statute and raise two previou$ly unresolved questions 'I
when applied to the CIA', proposed techniques. The first issue is whether, under the definition
of "seriousphysJcal pain Ot sufferinB," the sleep deprivation technique intentionally inflicts z. . I
"bodily injury that involves ... a significant impairment ofthe function oia bodily member ...
or mental faculty," 18 U.S.C. § 2441(d)(2){D), due to the mental and physical conditions that cap
be expected to acrompany the erA's proposed tWtnique. The second question is whether, under
the defipition·of"llerious mental pain or suffering," the likely mental effects ofthe.sleep
f
deprivation technique constitute "serious and non-transitory mental harm." Under the
i
procedures and safeguards proposed to be applied, we answer both questions in the negative, I

I
i

enilmmtUtg grave breaehts of Common Anidt 3

mlhe WarOinlu Ita, MeA § 6(a)(2}.

II

In the contof of
construing Common·Artide 3. ba1\l:\'er, 1\1: do fiqd thlt Congms Jw Sl:l forth deflnitiolU IlIldtrlhe War Crir:tes
Act lhal m fully OJ:lslslent with the uuderswld:.agoflhc samelenns rdlected in s~ inlemational sourteS. ~~ I
flffta ae

51-52, 61-64,

I

c:o~

For example,. bec:ausc 1M;
tcdWques involve SCh:K phydeal eolllXt wit.... tht dcl2ilw:, be
I'I'hich ~ tethniques intplk.att the Wu CriIIles Ad. merits 5QDIt coa.sidaatioll. M weexplainal various
points bclo"lll', bc:rwever, the mildnts.s of these tecllniqaa; and the procx4ura under wblch they aR used leave Ul2 ~
outside !he SCClpC afthe W~ ClimtS Ad.
IJ

txtetl1 to

12

I

,-

I

Third. the War Crimes Act prohiliits intentionally causing "serious bodily injury" (the
"SBI offense;. The SBI offense raises only oce additional question with regard to the sleep
deprivation teehnique-whether the mental and physical CQuditions th3l may arise during Hut
technique, even if not "significant impairment{sr under the aT offense. are ..procrv::tcd
imp~rmc:nts" under-the SBI offense. CumplUt. 18 U.S.C. § 2441(d)(2)(iv), with id
§ lJ65(h}(J)(D). Consistent with ourprior malysis ofthc similar requirem~ of"prolonged
mentallurm" in the torture statute, we coociJde that theM conditions would not trigger the
applicability ofthe SBI offense. 1.3
I) In the debate aver du: MilitaIJ CCCl:m!<cinrs AI:I.. Mt;mben;ofCoagressapressed 'lI'idd)' difl"erin:;
views as [0 bow tile tenIlS oflhl: WU Qiw:sArJ 'ffWld apply to intemlp%icD ~ In lilJd of~
divuJcn1 viAS, _do tIOC repr4lbe 1~:i~ bisblY oldie War Crilne5 Aa ~ 3lI pWcuWty
iUl:minalill& allhougb. we rlQ(C lllal seven1 of those IlIC4t ~ invoMd ill draJlia& !he Act staled th.n tile tt:rms

did nol Pire.ss my FarticuIM l=dmiqaes. As, R.ejl. Duzx:;an Hur:1cr.lhe CbinIIIIl of l\e Ho-s An:ntd ~
Commil1U aDd !be Aa.'s leading sponsor in lhs~ ~a:I;

me

Let
be dar: The bill defines ~speci&ca:mc:t!hat b: proItibitc.d UIUkr Coonmo!I MidI. 3,
bu1 itdocs not ptllpOrt to ida1tify inIemIpioll.paak:cs ll)tbe c:oe:DJ or III Wet; any particular
mum of intel:l'Ogillioa cif the able.. Ratbcr, lhb lesisWloD PJOPerlY leaves the dcdsiocs as 10 the
methods of in~gatioo 10 llu Pftsldm: pd 10 1m IntelliFJOt prafc:ssionals al k aA, so lhzr:
\hey may Q.Il'J forward this TiuJ. propDI tbll, as lbc President apbined., wves to gaOler tlw:
ennui iNdligl:nCC II~ tv pl"OlttC 1he COlIIl!JY from anodlu cal1SUOjIhic terrorist attadt..

•
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i
simil:lr1t

152 CoIlg. Ref;. H793S (Sept 29, :r006).. ScNtorMcCzio. who led Senate II:Ptiations anr 1M Ad:'s lellt,
,u.ted Ihlf "il Is tJDIl2S(Inable to S'JggCSl that UiJ ieg;Watioll c.oUId ptovidc an explicil a:Jd aU..w:]usi¥e 1isl at wtI3f. j
~I: acLiviticsare illegal mel Ivhil:b arc pemlim:d,~ allhou;h he did state tbat tbc AD. ~ aimlrWiu: c:eltain ;
inlc:m)pDOO ~hn.iques, like wa~B aJ:d oIbu tcduliqlJC$ that <:2l1SC .scriollS pain or sutrerina thaI need 1101 i
be prololl&ed. Iii at 510,413 (Sept 1&, 2006). 0Ibc:rManben" wbo boda supported iIIld opposed the ht, agreed i
tbaI the mrute itselfC5tlblishcd &ell.eral standanls, raWrI1wl proscnllillgspoclfic t~ques. Set. t.g., Iii. at
I
510,416 (stalemc:nt roSen.. Leahy) (me bill-SiIddies the Wu Crime5 Ad: with I defioitiGlI cJ CJ\IeI and Intwman
treatment so oblique lhal it appears to permit all manner of mel and exttcmc intcm:Iption tedmiques"'); Id at
I
510,260 (Sept. 27,1006) (Slatemetl( ofSen. Biagamaa) (stalin! that the blll'.'telrolClivtly revius the Wax Crimes ;
Act so thai crlininalliability doc~ lIat result Ii"olll tethniques that the United St&teS llI.Iy hive employed. such as ,
simuated drowning, exposure to h}'pothetmla,1Dd prnloo,ged s1e<:p deprivation"); id. al 510,J81-12 {Sepl2&, 200@
(statemenf of Sell. Clinton) (rtcogNling that the ambiguity of the tcltt"suggesl.s that those who employ t«hJ!lqllCS
such as ..... atuboatding.lol1g·tlme Slallding and bypothenni.a on A.n\eriaDs ca.M0l be charged for war c:rime1').
!
W

I

,

I

At the.5llllle time, other Members, including: Senator Wanl«. the QIa1rmarI ofthc Scml:e AnIle.:!. Services
Contmillec. who also wu closely ill\;Otved ill negotialionsOl'CTthc bill's text, S\llll~ed thn thebill mipt
criminaliu ~rtai.D interrogation techniques, iIlchIding variations n(ceruln o(tbose proposed by tile CJA (althou&hj
these Members did not diSCIIS$ the detailed safcpmds within !hI CIA program). s.~. ~.g.,Id. at: 510,371 (SUternem

of Sen. Wamer) (stating that!JIe ronducl in the Kennedy ~llt, which would have. prohibited .......'3~
ttthniqIIes, str= po.siticw, includin: proionsed SWlding ... sleep deprivation, and othel similar aets,.. is ~in my
opinion ... clc:uly P:OlUbited by the bill"). B"t Iff hi. II S10.39O (I1Itm1a'lt of Sell. Waruer) (opp:asinl the
;
Kellll.cdy Amendmmt on the ground th;.t ~CollPSS sl:oWd ool. try lU provide ;II specifie list of tedmiques~ be:cause r
..(....Je don't 1mo" ....1W the ful1lle 1IoJM.j. Su tho kl at SJO,l!4 (sU.tcmelll of Sell. Levin) (asrtdnl wilh Sea ,
Wmt,Uu lO thc~.Il.ibiled.tec~ucs); Id uSlo.m~J(j~Scpl.17,1OO6);~ aISI0,.n5.J6(~entof~ I
Durbin) rrnllcbW would make It a crimt to lISl: ~e 1lI1r:lTopdm tt.chniqua tikc ~"IteIbo:ud1J\& illdoced I

I

hypotJlCl'lJlb.· pa.:nful stress positions., aM. p-olODgcd slcep.d=privalionj; It! at: HUSJ (Sept, 27, 2006) (~teme:nt d
Rep. 5hays) (SWing lh:It"l1f1 rcasomblc pctiCID wouIdOl;lndIJdtt' thJt "the so--alIed cnlwa:d orbar1h 1OdllIiq~
fllat. Nve bcc1:I iIlIpIemented in tbe past by the CIA" "would stiR be aUrdrtaJ otrcnscs u:n6er Ihe Wilt Oime:s Aa. I
becltISC!bey dearly
'scriGllS ~ md p/IJsiQ.I su1I"erilll;'

come

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·A.

The WII Crimes Act prolu1liu torture!n a manner virtutlty identical to the general
fedenl anti-torture statute. 18 US.C §§ 2340-2340A:
The act of a petSOp. who commits, or CDnspires or tttemplS tQ commit, an act
specifically intended to inftia .tt\o'U8 physical or m~lltal patn or srtfft.ring (~~
than pain or suffering incidental to lawful saoctions) upon wother peJSOD WIthin
his custody or physical control for the pwpose ofobtaining information or a
confession, punishment, intimidation, coeIcion, or any reason based on
discrimination ofany kind.
.
IS U.S.C. § 2441(dXIXA) (emphasis added). The War Crim~ Act incorJlOrates by reference the
definition oftbe term "severe mental pain or suffering" in 18 U.S, ~ 2340(2). ~I! 18 U.S:C. II
§ 2441(dX1XA). H This Office previously coocluded that the CIA S SIX proposed mterrogatton
techniques would not constitute torture under 18 U.S.C. §§ 134o-2340A &e Section 2340
Opinion. On the basis ofpew information obtained regarding the techniques in question, we
I
have reevaluated that analysis. stand by its conclusion, and incorporate it berein. Therefore, \ye I
conclude that nooe ortbe ted:miques in question. as proposed 10 be used by the ClA. oonstitutes j
lorture under the War Crimes Act.
.

7"

B.
The War Crimes Act defines the offense of "cruel or inhuman treatment'" as follows:

or

The act ofa person who commits, or conspires attempts to commit, an .lct
intended to iaflict severe or seriow ph.ysical or mental pain or suffering (otber
than pain or suffering incidental to lawful sanctions), including serious physical
abuse, upon another person within his custody or control.
18 (,J:S.C. § 2441(dXI){B). Although this offense extends to more conduct than the torture
offense, we conclude for the reasons that follow that it does not prohibit the six proposed
techniques as the.y are designed to be used by the CIA.
The crr offense, in addition to prohibiting the "severt. physical or mental polin or
suffering" covered by the tonure offense, also reaches "serious physical or mental pain or
1< The IortDce offense in !be WU Crimes Ad cIiffr:rl; from scaiOJl1J40 in two ways irwnalaial here. r J
sediOD 2).40 applies only outside the tenitorial bwnduie$ orllle Unlt.ed Stales. The pro1vbWoD UII tortnrc iD lh~ ,
Wv CrimC$ Act. by COIltnst, would apply ID acthitics, .epnllcsS of location, thai. (ll;CUt ill "1he QlnltXl. at OJ"
:
Llsociaticn witif' 111 armed contlicl: "'not of 211 int.mlltional c.Iw1der." S=olld, to conWt.ule fOrtin under !he wJ
Crimes Ad, an adhit'f Il'IlJSl be -roc !he purpose orobU.lnin& infomutioll Of. COll!e$rioa. plIDJshment, iDtiIJIida1ich.
eoerdot!. or iIIl)' realiOD bue<I ondisainrinatioJl or~ Idnd." &, l8 U.S.c. § 2"1(4)(lXA); $U QIm CAT An.. ,
rutlpOSins: a similaTrr.quircDcl:I.t!cr the treaty'tddiDitio::l oftor1llR). The aMities l!u.t wedesaibe h«cill are -for
the purpose: of abWniaS iofvmutiClll- W are ~ -itl.1be eorcat aror usociafiOll \tit!J a Coa1:IKm Article~
con1lia... 10 thtsc ru:w ~ 'lItlIl.Id be satisfied bcrc.
•

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14

--_.-

1---I ...
-

,

!

suffering." In cootrast to the torture offense, tilt CIT off~nse explicitly defines both ofthe two
key tenns-"serious physical pain or suffering" and "'serious mOltaI pain or suffering," Before:
turning to thOSl!l specific definitions. we consider the general structure of the offense, as that .
structure infonns the interpretation of those specific terms.
:

i

First the context ofthe CIT offense in the War Crimes Act indicates that tbe term
I
"serious" in statute is generally directed at aless gra\'e cateSO-ry of coodruom than falls
'
within the scope oftbt torture offense. The terms are used sequentially, and cruel and inhu~
treatment is genera1.ly understood to collStitute a lesser evil than torture. See,l.g_. CAT An. 16 ~
(prohibiting "'other CTUf.1. inhuman. or degrading treatment or punishment which do not amOlm1'

the

to !ortUu") (emphases added). k:cordingly, as a general matter, a condition would not
.
constitute "Severe physical Of mental pain or suffering" if it wete not also to constitute "serious i
physical or mental pain or Suffering."
I
Although it implies som~ng less extreD1e than the term "severe," the term "serious"
still refers to grave conduct M with the term "severe," dictionary definitions of me tenn
"serious" undersco.rctbat it ref~ to a coodition "of a great degree or an undesirable or harmful!
clement." Webster 'J Third Int '/ Dictionary at 2081. When specifically describing physical pail!-"serious" has been defined u "inflicting a pain1lcdisue5.S (that is] grievous." ld. (explaining
that, with regard to pain, "serious" is the opposite o("miJd").

That the term "serious" limits the CIT offense to grave cooouet is teinforced by the
purpose of the War criine$ Act. The International Committee oftbe Red Cross ("JeRe")
Commentarie..s de.scri.be the conduct prohibited by Conunon Article 3 as"acts which world
public opinion finds panic:ularly revolting." Pietet, gen. ed.1 mCom11Ientariu on the Gen~
Conventions 39 (1960); su also infra at 50 (explaining the significance ofthe ICRC
Commcntarz"es in interpreting Common Article 3). Oflhe minimum standards of treatment
consistent with huml.!'lity that Common Article 3 seeks to sustain, the War Crimes Act is directeO
only at "grave breaches" of Common Article 3. See 18 U.S.C. § 2441(c)(3). Grave breaches of
the Conventions represent conduct ofsuch severity tMt the Conventions oblige signatories to .
"provide effective penal sanctions" for, and to search for and to prosecute persons committing,
such violations ofthe Conventions. See, e.g.• "GPW' Article 119. The Conventions themselveS
in defining "grave breaches" set forth unambiguously serious offenses: "willful killing, tOffilre ,
or inhuman treatment, including biological experiments, willfully causing great: suffering or
serious injury to body or health." GPW Art. 130. [n this context, the term "serious" must not be
read lightly. AccordingJy, the "serious physical or mental pain or suffering.' prohibited by the I
CIT offense does not include bivial or rnild,c.onditions; nuher, the offense refers to the grave :
conduct at which the term "serious" and the grave breach provision of the Geneva Conventions;
are directed.

Second, the CIT offense's structure shape5 our interprdation of its separate prohibitions 1
against the infliction of "physical pain or suffering" uu1"menw pain or suffmng." The CIT :
offense, like the anti-torture stahlte, envisions two separate categories of harm and, indeed,
separatdy defines ez.ch tertIL A3 we diSOJSS below, tbis separation is ref]eded in the
requirement that "serious physical pain or suffering" involve the jnfliction ora. ''bodily injury," :
To permit purely mental eonditions (0 quality IS "physical paio or suffering" would render the

T
15

carefully considered definition of "serious men[al pain or suffering" surplusage. Consistent with
the statutory definitions provided by Congress, we therefore understand the Sln.u::t~ of the CIT:
offense to involve twa dist~ categories of harm.
The CIT offense largely borrows the anti-torture statute's definition of mental pain or
suffering. Although the CIT offense makes two important adjustment$ to the defiJ.lition, these
revisions pr~tIVe the fundamental pUIpOSe ofprovidiog clearly defined circumstances under
which mental conditions would trigger the coverage ofthe $taMe.. Extending the offense's
coverage to.solely menul COnditiollS auUide of this careful definition would be inconsistent v.ilh
this soucture. q. &etion 13tO Opinion 1123·24 (conc.luding that mere meDial distress is not .
enough to cause "physical suffering" withiD the meamng ofthe 3.!Iti.torture statute). We
therefore conchIde that, consistent with the antj..torture statute, the CIT offense separately
proscribes physical and mental harm. We consider ez.eb in twn.
1.

The CIT offense proscribes an act "intended to inflict ... serious physical •.. pain or
suffering." 18 U.s.C. § 2441(dXl)(B). Unlike the torture offense, which dOe:! not provide an
explicit definition of"severe physical pain or suffering." the CIT offense includes a deta11ed
defioition of"serious physical pain or suffering," as follows:
.
[BJodily injury that involv~

(i) a substantial risk of death:
(ii) extreme- physical pain;
(ill) a. bum or physical disfigurement of... serious nature (other tban cuts,
a.brasions, or bruises); or
(iv) significant loss or impairmenl of the function of a bodily member,
organ, or mental faculty."
Jd § 2441(d)(2)(D).

In light of that definition, the physical component of the crr offense has two core
features. Fi~t, it requires that the defend&nt act with the intent to inflict a "bodily injury."
Second, it requires that the intended "bodily injury" "involvo" one of four effea.s or resulting
conditions.

,
As an initial maner, the CIT offense requires tbat the defendant's conduct be intended to'
inflict a ''bodiJy injury." The tenn "injury," depending on context, can refer toa wide range of:
"harm" or discomfort. See VD Orford English Dictionary at 291. This is a term that draws
'
$ubstantii1.l meaning from the VI'Ords that surround it The injury must be "bodily," which
requires the injury to be "of the body." II Oxford English Dictionary at 353. The term "bodily":
distinguishes tho ''physical stillcture" ofthe lnJnJan body from the mind. Dictionaries most
closely relate the teon "bodily" to the tenn "physicaJn and explain that the word "contrasts with·

16

r
mental OT spiritual." Webster's Third 1m'Z Dictionary at 245. Tberefore. the term "bodily
injury" is m~st reasonably read to mean a physical injury to the body."
As explained above, the structure of the CIT offense reinforces the interpretation of
"bodily injury" to mean "physical injury to the body." The term "bodily injury" is defining
"serious phyrical pain or suffering." To permit wholly mental distress to qualify would be to ,
circumvent the careful and separate definition ofthe ~serious mental pain or suffering" that could
implicate the statute. In furtlJerance of this structure, Congress chose not to import definitions
"bodily injUI}'" from other pans oftiUe i8 (even while,. as explained below, it expressly did so .
for the SBI offense). This choice reflects the fact that those other definitions serve different

or

purposes in other statutory sch.emes-particularly as sentencing enhancements-and they

potentially could include purely mental conditions. The CIT offense differs from these other
criminal offenses, which provide "bodily injury" as an element but do not have separate
definitions ofphysical and mental harm. For example, the anti·tampering statuto.defines
"bodily injury" to include conditions with no physical (:omponem, such as the "impairment of
the function ,of a ... mental fal:wty." J8 U.S.C. § 1365(h)(4). lfthe definition in the antitampering statute were to coptrol here, however, the bodily injury requirement would be
indistinct from the required resulting condition of a significant impairment ofttle function of a
mentil faculty. See 18 U.S.C. § IJ65(bX4j(D). Thus, "bodily injury" must be construed in a
manner consistent with its plain meaning and the structure ofthe CIT offense. Accordingly, we;
must look to whether the circumstances indicate an intem to inflict a physical injury to the bodYI
when determining whether the conduct in question is intended to cause "serious physical pain or

I'

suffering."

b.
Second, to qualify as serious physical pain or suffering, the intended physical injury to I
the body must "involve" one offour resulting conditions. Only one oithe enumerated conditions
merits discu.ssion in connection with sle"ep deprivation, or any of the CIA's other proposed

,
u A1. 1M close of the dWale over the Mitittry Commlssiolls Act, Smalor Warner introduced a wr1ntl1
I
coUoquy b~Q. Senalor McCai.rI andb.ilnseJl, wh.ereil:I they mud that they ~do not believe thai. the: tam 'bodily :
injusy' adds a separalt: requiremenl which must be met for aD ad (0 C:',HlStitu!C serious pllyskal pain or $lJfi"ciDg. ~
IS1 Cong. Rcc. 510,400 (Sept 28, 2006). We cannot rdyOll this exchange (which was not voic:ed on Ibe Senate ,
floor) as it would fender !be [am"bodilr tojury"' in ~ sutute \\'hoUy SUpedlUOU5. ~L. tog, DUllcan v. Wollcer. ~p
U.S. 167, 174 (2001) C'(A) staMe ought, upon the whl)le, to be so construed that. itil c:an be prevented, ooc:luse, i
sentence, or word. sh&Il be supe.rlluoll$, void, or insignifiQ./ll ~); Plorrv. UnIon Pacific Ry. Cb.., 99 U.S. 48, ~8
(1879) ("[L)egislaJ:ion is presumed to use. no superflllOUS wolds. Courts are to acoord lI'IQJIing. ifpossible, 10 every
word in a mlUte.. j.

,
i'

It Many of those othet" critninaJ statutes expressly define "bodily injlUY" throut:h tro$S-Td"eten<:a to 18
U.S.c. § 136S(b). St., r.g.• 18 U.S.C §§ 37{aXIl, 43(d)(4). lIJ(b)(2), 11I1(c)(~), IISl{a), Bol?, 2119(2). A
pK,lVision under thl! United States Senl~g Guidelines, tboagb 1imiJarfy worded 10 the crr offense in other
'

respects, sepantely pnJVi"des a specitk dclinition of"bodily injury" and thus our in~rplWJion oflhe teml"bodily:
injury" in l1le CIT offense does not extend to ~eQ)llstruction of the leml in (be Guidclines. So U.S.S.G. § lBU \

Appliea.tion Note M

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17

f
techniques: ''the significant loss or impairment afthe function ora bodily member, organ, or
mental faadty."n

.,

The oonditio~ requires a "loss or impairment.. Standing alone. the term "loss" requires a
"deprivation." and the term "impairment" a "deteriontion,.. here ofthtee specified objects.. See.!
Web.ster's ThirdfnJ'! Dictionary at 1318, 1131. Both oftltese terms, arthor own force and
....ithout modification, carry an implication of duration; the terms do not refer to merely
momcnt2ry conditions. Reinforcing this condition, Congress required tlu1 the "10.5$" or
"impairment" be "significant." The term "significant" implies that the intended loss or
impairment must be cbaracterized by a substantial gravity Of seriousncu. And the term draws .
additional meaning from its coot..'"Xl. The phrase "signifiQnt loss or impairment'" is employed to
define "se.rious physical pain or suffering" and, more generally, the extreme conduct that lWUld;
constitute a "grave breach" ofCommon Article l. In rucbiDg the level ofscriowness called foi
in this context, it U rea.sonahlc to conclude Uat both duration Illd gravity arc relevant. An
.
e:rtrernc mental condition, even if it does not last for a long time, may be deeDl.ed a "significant j
impairment" of a mental faculty. A less severe condition may bCGome significant only ifit has '!longer duration.
,i

,

The text a.lso makes clear that not all impairmenu ofboclliy "functioos" ace sufficient toi
implicate the CIT offense. Instead. Congress specified that conditions affectiog three important.

types offunetions could constitute a qualifying impairment: the functioning of a "bodily
member;' an "organ," or a "mental faculty." The meanings of"bodily member'" and "organ" ue
straightforward. For example, the use of the iIJll1.S and the legs, ioeludiD8 the ability to walk, :
would clearly constitute a "function" ofa "bodily member." "Mectal facultY' is a term of IlJt in.
cognitive psychology: In that field, "menial faculty" refers to "one of the powers or agencies .
into which psychologists have divided the mind-such as will, reason. or intellect-and through
the interaction ofwhich they have endeavored to explain all mental phenomenon." Webster's
Third In! 'I Dictionary at 844. As we explain below, the sleep deprivation technique can cause a
temporary dimioishmenr in general mental acuity, but the text ofth.e statute requires more than :
an unspecified or amorphous impairment of mentaJ functioning. The usc oCtile tenn ··mental
faculty" requites that we identify 010 important aspect of mental functioning that has been

,,

l' The "subSWldal risk of dcalh~ eonditicn clearly docs DoC apply to sle-ep deprivaJlon Of any olthe OA'~
other propoKd 1.cchnlqul:$. NODe of the six te<;hniques would involve an a.ppre.dably elevated rhk ofdam.
I
Medical personnel Wll\1ld determine Cor eachdWineeSllbj~ to intaTOptiOQ th.:lt liD OOmiaindicatiDIIS exist Cor thC
application ollhc lo;hniques to thaI deuin::c. MOICOVU, erA preadura require lemlinatiOD cI. ta;hnjque when i,
Je3ds to conditions thu increase me n)k 01 dea:ll, eveo sUghlly.

hClc.

Ow Stc~ lUOOplllloll make; dcar1hal1hc "extrtllle pb)'siaJ pain" amdilion also does not awlY
Su 1& U.S.c. § 24.41(d)f2}{D)(ii). Thae, we inlCl'plClcd the ttrnI"sefcre pbysial p;ain~ ill !he Iorlure SUtulc to :
UlevI "extreme physical pain.. Id. atl9 \lbe ~ ollhc word 'scvtlt' in \!Ie ~tll7y prohibilion on tortlR clc:uh
deootes a scrwtioo oro)Qdhion ltul. is utnmt in wcnsily "'" difficult to ClIW."); It! (tllrtw"e in\olO!vc:s activitieS
"clesIpacd to inflict iIl~ cr ulrtlrr.t paiD"),. On tile basis of our de.'vmiDlliaa thallhc: six ta:lmiquc:s do no!
involve the imposition of~severc pbysical paiD," sa Id. at 22-14-, ll-n, lSO:i9, ....'C coat/Ddo dl:Il: they a1sodo 110: :
inYoIve ~cxtrcmc ph~cal ptiD." And, bo:anst: IlQ ttd:Inlcp= i:/l'.-olves a.visibtc phY'ica1 altcr.ttion orbmnof 'IiI)' .
idnd, the t:01ldmoo of"a bum or disfiguremenC cra saic1.ls nature{Olbcrllwl cuu. .brUiollS, mbmisesj" is me. net
implicated.

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18

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impaired, as opposed to permitting a general sense ofbaziness, fatigue, or discomfort to provide;
one ofthe required C(lnditions for "serious physical pain or suffering."
j
Read together, we can give discernable content to how menta! symptoms would come to.:
constitute "serious physical pain or suffering" through the fourth resulting condition. The
"bodily injury" provision requires the intent to inflict physical injury to the body that would be
expected to result in a significant loss or impairment of a mental faculty.lI To constitute a
"signifieaot loss or impairment:' that mental condition must display the combination of duration
and gravityccnsistent with a "grave breach" ofthe law ofwar. Finally, we must identify II
discrete and important mental function that is lost or impaired.

The'physical conditions that we undemand are likely to be associated with the CIA's
proposed extended sleep deprivation teclmique would not satisfy these requirements. As an
initial matter, the extended sleep deprivation technique is designed to involve minimal physical
.
contact with the detainee. The CIA designed the method for keeping the detainee awakeprimarily by shackling tile individual in a standing position-in order to avoid invasive physical<.
contact or confrontation between the detainee and CIA personnel. CIA medical personnel have.
informed us that two physical conditions are likely to resulr from tbe application of this
technique: Significant muscle fatigue associated with extended standing, and edema, that is, the:
swelling oftbe tissues of tile lower legs. CIA medical personnel, including those who have
observed the effect! of extended sleep deprivation as employed in past interrogations, b3ve
informed us that such cooditions do not weaken the tegs to the point that the detainee could no
longer stand orwalk. Detainees subjected to extended sleep deprivation remain able to walk
after the application of the technique. Moreover, if the detAinee were to stop using his legs and;
to try to support his weight with the shackles suspended from the ceiling, the application ofthe ,
teclutique would be adjusted or terminated. The detainee would not be left 10 bang from the
shackles. By definition, therefore, the function of the detainee's legs would not be significantly i
impaired-they would be expected to continue to sustain the detaint;e's wcight and cnable him ~o
walk.
Nor is simple edema alone a qualifying irnpainnent. It is possible that clinically
significant edema in the lower legs may occur during I.ater stages ofthe technique, and. medical:
personnel would tenninate application (lfthe technique if the edema were judged 10 be
;
significant, i.e., ifit posed a risk to health. For example, if edema becomes sufficiently serious,!
it can increase the risk of a blood clot and stroke. CIA medical personnel would monitor the
detainee and tenninate the technique before the edema reacbed that level of severity. Edema
subsides with only a few hours of sitting or reclining, and even persons witb severe edema can
walk. The limitations set by the CIA to avoid clinically significant edema, and the continued
II To be rure. the crr ofI"= requires ''bodily injwy lhal ;lIVClvi? a significant impainnen~ it doe$ nOI

$

require a sbawing that the bodily injury n~ =ff!be illI~1ll.. The term "inwlvcs,~ however, ~uirei

mo.re !.han a showing ofmere conelatioa Ratber. the '"bodily lojwy" either mun cause the i.mpaimI~1 or have ~
neees:sarily associated with the impaimlent. ~ readingofthc $taMe U ~ssiZY lD pteSl:lVC the statnu's
fundamental distinction between physical and tnaltal Iwm. Abodily injury 'l\'i1l UOl vinvolve~ an iropairmeru

merely on a sl1owingof coinddence between the individu.l.l's i~ and an unrellted physk:aI condition.

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19

L
ability aCthe detainee to use IUs legs, demonstrate that the mild edema that can be expected to
0Calt duriDg sleep deprivation would not constiMe a "significant impairment" afthe legs.

The mer.tal conditions associated with sleep deprivation aJso are not «serious physical
pain or suffering." To satisfy the "bodily injury" requirement, the mental condition must be '
traceable to some physical injury to the body. We understand from the crA's medical experts i
and medica1literature that the mild hallucinations and diminisbed cqgnitive functioning that tn4)'
be associated with extended sleep deprivation vise largely from the general mental fatigue thati
accompanies the absence of sleep, not from wy physK:aJ phenomenon that would be associated!
with the CIA's procedure for preventing sleep. These menul symptoms develop in far less
demanding foons of sleep deprivation, even whm subjecl5 are atliberfy to do what they please.
but are nonetheless kept awake. We undust:m:l that there is no evidence that tbe onset ofthesc:
mental cffocu would be 8cOOerated, ortheir severity aggravated, by physical conditions that ~
may accompany the means used by the CIA to JRVcnt sleep.

~

i

Even if such diminished cognitive functioning or mild hallucinations were attributable to
a physical injury to the body, they would not be significant impairments oftbe function of a .
menta.l faQ.llty within the meaning of the statute. The CIA will ensure,. through monitoring and 1
regular examinations, that the detainee does not suffer a signifiClDt reduction in cognitive
:
functioning throughout the.application ofthe technique. If the detainee were observed to suffer.
any hallucinations, the tecbnique would be immerliately discontinued. For evaluating other.
aspects ofcognitive functioning. at 2 rrunimum, CIA medical personnel would monitor the
detainee to determine that he is able to answer questiOIl5, describe his surroundings accurately, .
and recall basic facts about the world. Under thC:sc circumstances, the diminishment of cognitive
functioning \VOuld not be "5ignificam.,.,It
In addition, CIA observations and other medical stUdies tend to confrrm that whatever j
effect on cognitive function may occur would· be short·lived. Application of.the proposed sleep~
deprivation technique will be limited 10 96 hours, and ballucinations or other appreciable
cognitive effects are unlikely to occur unol after the midpoint o(thu period. Moreover. we
understand that cognitive functioning is fully restored with one night of nonnal sleep. which
detainees would be permitted after application of the technique, Given the relative mildness of,
the diminished cognitive functioning that the CIA would permit to OCOJt before the technique is:
discontinued. such mental effects would not be Clq)Cded to persist for a sufficient duration to be.
"significaot:,2o
.
,.

., The techniques thaI we disc;u$s harin an: of COUlIC designed to petSU2de !he detlinee to disclose
1n!onnUioll, which be would nol olhnwisc wistllD ISo. 1lIesoe teehrliques an: not Ibe:dJy dire:t:e4. ho....e vu. u
ea\l.$irla sigNtieaJd impainnentofthc CdaiI!ee's will, ~Jya ~menul !acul1)',. lJlstad. thc.lCdu\i.ques arc
dtslplOd 10 ahtt ;mu1Ol~ tJw lead the dcUillec 10 ~ bls WIll ill a paalaolat mum~. In lhis~. ~
leehRlques a.rc ba$Od on the presumption lInl the dc:WIM:c's WIll is fu~ proper1r and tlIZl he will IQCl to t1Ie
leehnJqut.s, and the thacgr.d condililJllS, in a l2Uonall!l3JllleJ.
,

,

10 A final. ~ of"senous physiaJ p.ain0l:5IIl!ain&'" La the crr otrttI5C is 1M addilicnoflhepbnsc !
lnctudinaseriO'JS ~ abo.se." &e II U.5.c. i 2441(d)(2)(1Y) (pfCbibitinalbc iaIllaion of"~n: orsc:iws;
pb:ysiaI Of maua1 pUll Of rotrerinS ' .. iD~ scrillw pbysiaI abuse~. Congress ptOYldt.d ·serious pbysicaJ ,

,i

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20

!

The CIT offense also prohibits tbe infliction of"serious menul pain or sufferi~~" uoo~
which pw-ely mental conditions uc appropriately considered. In me Sec/ion 1340 OpIniOn, we ;
concluded that none of the techniques al issue here involves the intentional imposition of"severe
mental pain or suffering," as that term is defined in )8 U.S.C. § 2340.. The CIT.on:e~se adopts !

that definition with two modifications. With the differences from sedlOD 2340 ItaliCIZed,
"serious mental pain or suffering" is defined as follows:

The .seriOlis and non-transitory mental harm (Which need nol be
prolonged) caused by or resulting from(A) the intentional infliction or threatened infliction of serious physical

pain or suffering;
(B) the administration or application, or threatened administratioll.or
application, of mind altering substances or other procedures calculated to disrupt
profoundly the senses or the personality;
(C) the threat ofimminenl death; or

(0) the threat that another person will immioently bl: subjected to death,
serious physical pain or suffering. or the administration or application ofmind·
altering substances or other procedures eak:ulltcd to disrupt profoundly the senses
or personality.
See 18 U.S.C. § 2441(dX2)(E) (specifying adjustments to 18 U.S.c. § 2340(2».

None of these modifications expands the scope of the definition to cover sleep
deprivation as employed by the ClAor any oflhe other proposed techniques. The crr offense 1
replaces the term "severe" with the term "serious" throughout the text of 18 U.S.C. § 2340(2).
The CIT offense also alters the requirement of~prolo"sedmental hann" in 18 U.S.C. § 2340(2},
replacing it with a requirement of "serious and non-lransitory mental harm (which need not be i
prolonged)." Nevertheless, just as with the definition in the anti-tottw"e statute, the definition in!
abuse"

Q

all

example of a Cllfegoryo(!wm thai hils withintbe otherwise dcficc:l tenD o'''smous physical pain ot

sutferiDg." "5erilJU! physical abu5c:"lhadme ~y be betpM ill CoOlI$tII1l11g lOy ambiguil)' as 10 whether ... particu1ir
category o( physical harm falls withIn tMddiJlition cf"seriaw; p1a)'Sical pain or $UfferiJl&.~ We. do not find it
;
rclc.vanl here, bowever, as the term ~serious pbysic:al abuse" is directed at a ea1egory of r.olldua ~I does IlOl occw:
in !he CIA's u.envplion p~ The word"~ iaIplie:s a pallCrn ofCOlldlll;C or some rusuiDed activily,
;
although when Ih: irtended injury is putk:uWly sn~ tile Iefm "'abuse" rrt3j' be nWticd wilboul suclI a pUlem. It
i1lso suggeus an e1UllCot of wrongt'alnes:s. #t, t.1., Wtbstc.r ',11JJrd Inn Dtt:Ji«rory at I <ddininI abuse. as aJI
~iJJIproper fA' inatl1ClCt use. an ,w1iaiicm 10 a 1\TOIlC or bad~ UId MIlld DOl tcDd tD CO'o'el" jllStitied
ph)'Sial CO!ltlCl. While the CIA U!ZS some Meoncaive ICChniqaes'" du1 myohoe ph)'Sial COIlba vr.1b die cSetamee,!
the etA has sblt.d Iha !!ley are used. tD apsel tl::e 4eWnee', c::rpe.:t.ttioru and to re:pill his dlt:DtiOI\ md tlaey would
not be: taed ~lb aJI Ul1cnsity OJ frClj.-ency 10 ause sipific;n pby$ic:al paip, lJ'udlles.s 10 COlI$titDte die type of
beatinS implied by !be term "seriQUJi phyriQI abuse.
M

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2\

l
the OT offe1J~e requires one of four predicate acts or conditions to result iD or cause mental
harm, and only then is it appropriate to evaluate whether that hann is "serious and Don"transitory," See Section 2340 Opinion at 24.26. Three ofthose predicatcam «conditions arej
not implicated here. Above, we have coi1duded that DODe Ofth8 techniques involves lhe
.
imposition of":serious physical pain or SJffering." The techniques at issue bere also do not
involve the "threat of imminent death... sec.o at n.t?, lIle threatened infliction of serious
2
physical pain or suffenng. orthre2.ts of any kind to persons other tban the detainee. \
The only predicate

lU:t that

requires a. more extended analysis bere is "the administratio~

or appliutioo ... ofmind altering substances or ethel procedures calculated to disrupt
profoundly the senses or tbe personality," The lextoftbis predicate act is the same as in 18
U.S.C. § 2340(2){B).
.

,

In our Section 2340 Opi,rlon, we placed substantial weight on the requirement that th!: i
procedure "disruptprojoundly the Setlses," explaining how the requirement limits the scope of !
the predicate act to partiQJlarly extreme mental conditions. We acknowledged, however, that ai

hallucination could constitute a profuUDd disruption of the senses, ifof sufficient dunrtion. Id. ~
at 39. Nevertheless, it is nOl enough that a profound disruption oCtile senses mayocwr during i
the application of a procedure. Instead, the starute requires.that the procedure be "calcuimelf" to
cause a. profound disruption of the senses. Su Webster's Third ITlt 'I Dfc/foruuy 31·315 (defining
"calculated" a5 "planned or conlrived so l1l' /0 atxompUsh a purpose or /0 Dchitv4 an effect: ,
tbought oui in advance") (empbasis added). This requirement does not license indifference to
conditions that are very likely to materialize. But we can rely on the CIA's reactions to.
conditions that may occur to discern that a pr0ce4ure was nOl"caleulaled" to bring &bout a
proscribed result. CIA medical personnel would regularly monitor the delainee according to
aCGCpted medical practice and would discontinue the technique should any hallucinations be

II It is tr\.le thU the detainocs are un.1il<d)' 10 beawarcolthe lim.iJ.ttions impou:d upon CIA intenogalom
unl1er their inteuogalion pltln. A,detainee lJuuconceivabl)' eouM (ear Ihlt it lie does notcooperate,lbe etA may ,
esealate the severity o(its UttemlSlltion methods or adopt 1e<;lInique.s WI wooJd amoUlll fO u~rious physlcal pain or
sufJ'erill.g." That the det:aine-e may harbor rorofem, however, doe:snol mean thallhe CIA interroptol"1 have issued
a legal "threat" The federal couns have madeclear ttI1Il tin indivldual issues a "rbnar onl)' l(th~ reasonable
observcr~uJd reprd his words or deeds 1.5 a useriOIlS Illlpression oftn inlention fO inflict bodily harm." Urtil~d
SraUtv. Mlldldl, 812 F.2d 1250, 12'5 (9th ar. 1917); stt I'!&Q {/lilted $Jl'frs Y. Zav,.,I, 354 F.3d no, 136 (Jd Or.
2004) (wne); United $IDfrtV. Sovic, 122 fJd 122, 12$ (2d Cit. 1997) (fu."1her nquiringa showing that, ~OQ [th:
threat's} racc and in the circ::umstancts to whidl ilisllllde, it is so unequivoc.al, Wfcondidoncl, imma,liale and
specific as to Ule person threatened, as to convey a vMtY ofpwposc and iIMlillCflt prospc.d of execution;
(wtemaJ quobltoo omitrod): stc gtlW'aUy4 Wharltm's O'imflllll lAw § 462 (15th cd.. 1996) (to constitute.11hml1,
"the leSt lsnot wbctber the victim feaRd for his life orbe&vcd he was In daager, but wbeW:r he v.lS 2CtU4lty in ;
danger," pzuu:nably due 10 the intention of the dcfe.nd.aa1 fO cany ont tile ~ribe4 aetJ). CIA In:emlpnrs do nll4
ldllbe detaillee wt, absent coopentlon, they \lil! iDfti<:t toDdoct thic \,'vuJd rise 10 the levd of "serions ~
pain or sulferin&.- Nor do Ihq engage in suuestiw pl:rysicaI actS thaI indkale wt "serious physical pain or
suffering" will tll$UC. Prosser ilnd KeetQn, 17u 1AI'I 0/1om, flO, al44 (Sth cd. 19&4) (attionable non-~"trlW
thrUts /lCICUr -wben L'J.C ddeodant jmSUts:a weapoo in suclIa aJD¢tiOI\OT JlIa,."1IItf as to iDdia1e ttw il JII.1)'
imrncdi21ely be nWl.~ ready far use}.....b$cnl any $Ddl zffimwive DOlldua by the CIA, lhedcta.irJee's ~
unattaimy OVtf whaI might corne OQ;! 'l\IOUId not satirlJ the kpI ddinido:\ of -thR:at."

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22

I. __ .

,diagnosed. Such prte2Utions demonstrate lb3t the technique would not be "calculated" to
n
produce hallucinations.

,
I

Whether or not a hallucination ofthe duration at issue bue were to constitute a prof~
disruption of the senses. we have concluded thattbe hallucination would not be tong en~gh t? :
constitute "prolonged mental harm" under the definition oC"scvere mental pain or suffering" m ~
the anti-torture statute. Section 23.{O Opinion at 39-40. The adjustment to this definit~n in the .
CIT ofl'ens&-f"eplacing '"prolonged mem.al ha:m>t with "sc:riow and non-transitory mental ha.-m'
(which need oot be prolonged)"-d0C$ DOt reach the.sleep deprivation tt.ehnique. The
.
modification i! • refocusing of the definjlion on severity-SOme combination ofdwation and
intensity-instead. orits prior reliance on duration alone. The new test still excludes mentaJ
j
harm. that is "'transitory." Thw. mental bum that is "marked by the quality ofpassing away," is:
"of brief dunltion," or "Ia.st[s] for minutes or seconds.," see W.bner's 17Jjrd Inri Dktianary at .
2448-49, cannot qualify u "serious meo1al pain or StIfferiog.n Also relevant is tho ted's
negation of a requin:mOJJ that the mental hum be "prolonged," 18 U.S.C. § 2441(d)(2)(E)
;
(providing tim the mental harm thlt would constitute "serious physical pain or suffering" "need'
not be prolonged").
These adjustments, however, do nor. eliminate the inquiry into tbe duration of mental
harm. Instead, the CIT offense sepantely requires that the mental harm be "serious," As we
explained above, !be term "SC'rious" does considerable work in this context, as it seeks to
describe conduct that constitutes.e. grave breacb of Common Aniele 3-corxluet that is
universally condemned. The requirement that the mental barm be "serious" directs us to
appraise the totality of the circumstances, Mental barm that is particularly intense need not be
long·lasting to be serious. Conversely, mental hann that, once meeting a minimum level of
intensity, is not as extreme wouJd be considered "serious" only if it continued for a long period:
ofUme. Read together. mental harm certainly "need nOl be prolonged" in atl circumstances to
constitute "serious mental pain or suffeting," but certain milder fanns of men1al effects would
need to be of a significant duration to be considered "serious." For the same reasoru: that the
short·lived hallucinations and other fonns ofdiminished cognitive functioning that may 0CGUi'
with extended lack of sleep would not be "significant impairments of a mental faa.J1ty," such
mental conditions also would not be expecled to result in "serious menW harm." Again, crucial;
to our ana1ysis is that CIA personnel will intervene should any hallucinations or significant'
decline, in e.ognitive functioning be ob!uved and that any potenti!l hallucinations or other form~
ofdiminished cognitive functioning subside quickly when rest is perm.itted,

~ III deurTllining thai sleepdepJ"ivatioll ....w Id DOt be "ca.k;ulxed to disrupe profov.ndly the senses, we a.ls~
rand It rdev.ant ttw lbc: CIA would lICIt employ thisu::dlllique to ~ and to dlsorienllhe ckl3inee so tlw. he
might ilwNettendy disclose infonnatiOIL Indeed, ~ tocausc the detainee ttl IW1ucblale or olherwise (0
be«l~ disoriented would be counter to OA's JoaI, .. hi~ is 10 ga1her acante imeUigcnr;e. Rather, CIA
i.nlwogalOrS WOllId employ sleep dq:riv:aJiorl to \R3I" down the doineo's rcsisunce ud 10 SlCUI'e his agroe:nc:nt 10
r.alk in mJ:un bpe:mrlttins him 10 sleep. fdi&ue also reduces lhedeWnec'l CXlIIfideDc:e in his ability 10 lie
conviDcill&iY ;mel lbus suggests to !he debinec tlta1lhc onlJ way or obWniJIg s1=p Is to ap.e to pnMde ~
inJ'orru.alion. Qac:z they 1uve so:ured dWagrtelWlt, illlmo:aton ~D1 wouJd Ilop!be laJlnIque, perm/tlbc .
deIainc.c (0 rc:st, 0I.lld thcu Cl)ntinllC the ~onicB wben ~ is ~ and in a bencr positioD 10 provide nJo~
&c:t:UBlc and wmplcu: iDCortnalinn.
K

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23

-

,
c.
The third ofl'ens=- at is~e is "intentionally causing serious bodily injury." 18 U.S.C.
§ 2441(d){1)(F). The Act defines.the sal offclUC as follows: "The act ora person who
intentionally causes. or conspires or attempts to cmse, serIous bodily injury to one or more
persons. including lawful combabnts. in violation oftlte lawofwu.~'2J The War Crimes Act
borrows the definition of "serious bodily injury" directly from the federal assault statute., 18
U.S.C. § 113. See 18 U.S.c. § 244I(dX2}(B). ThefcderaJ assault statute, io tum, incorporates l
by rl!fertnce the definition oC"seriou.s bodily injury" in U:.e fedeB.! anti-tampering statute. See 18
U.S.C. § 1I3(b)(2). The &nti-wnpering sWule.stales that:
[T]he term "serious bodily injury" means bodily injury which iovolves-

(A) l substantial risk of death;
(8) eJcrreJnC physical pain;
(e) protracted and obvious disfigurement; or
(0) protracted loss or impairment ofthe func;tioI1$ of a bodily member,
organ, or mental faculty.
'
18 U.S.C. § 1365(h)(3), Three ofthesc resulting effects are plainly not applicable to the
techniques under consideration herc. As explained above, the techniques involve neither an
appreciably elevated risk of dea.th. much less a !o1.lbstantial risk, nor the imposition of extreme
physical pain, nor a disfigurement of any kind. Indeed, no technique is administered until
medical personnel have detenniDed that thete is no medical contraindication to the use ofllie
technique with that particular detainee. For reasons we explain below, sleep deprivation also
does not lead to ''the protracted Joss or impairment of the functions oca bodily member, organ,
or mental faculty."

,

This Office has analyzed a. similar tenn in the context oflhe sleep deprivation technique!
before. For example. we determined that the mild hallucinations that may occur during extended
sleep deprivation arc not "prolonged." Section 1340 Opinion 4140. ·Both the term "prolonged"

and the term."protracted" require that the condition persist for a significant duration. We were :
reluctant to pinpoint the amount of time a condition must last to be "prolonged." Nevertheless, ;
judicial determinations that mental harm had been "prolonged" under a similar definition of
torture in the Tonure Victim ProtectioD Ad, 28 U.S:C. § 1350 notc, in\!o[ved menta! effeas, ,
including post-traumatic stress syndrome, that had persisted for monlhr or years after the events;
in question. See Mehinovic v. Vuclwvic, 198 F. Supp. 2d 1322, 1346 (ND. Ga.. 2002) (relying on
the fact that "each plaintiff continues to suffer locg.tcnn psychological harm as a result of me ;
ordeals they suffered" 'fears after the alleged torture in determining thal the plaintitrexperienced
"prolonged mental harm'1; Socki, v. Ashcroft, 270 F. Supp. 2d 596, 601-02 (ED. PL 200])
D The SBl otrC1SC mpIiIes lS m elernclllllWl!:£ ~ be ~in violation of the b>;ll' of~r." That ~ ~
certain ~ Ihat this requiremeo:t plac= be)'tIlld lhc. rt:adi of the SHI offense. If, fer =mple, a member of .1JI
.anntd f = cnjoyins eornboitaat ilnlllUIli()' were 10 c:use 5trioln bodily injllJy CD the mtlJefidd purs:.wc to
legi.rim.alll mililary opentiOJl$, the SBI o[fense MlIl1d 110II appJy. The imposition al"Hwiws bodily injury" on thost
in custody in cutain cim:JttUtUl~such as to pmotnl c:sape, W'Ilukl21so tIOI. vjoJ~ the llw of WH. SU, ".,.,
GPW An. 42.

l

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24

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(holding thu vktim suffered Kprolonged mental harm" when he was forcibly drugged and
threatened with death over a period offour years).14 By contnSl, at [eaSt one court bas held that
the mental trauma that. occun over the course of one day does not constitute "prolonged mental
h:ann." VilJedtJ Aldana v. Fresh DelMonte ProdPu, Inc., 305 F. Supp. 2d 1285, 1294 95 (SD.
Fla. 2003) (holding th2J: persons who were held at gunpoint o~mi!!ht and were threatened with
death throughout, but who did DOt. allege mental bum mending beyond that period oftime, had
not suffered "prolonged mental harm" ultder the TVPA). Decisions interpreting "serious bodily
injury" under 18 U.S.C. § 136S(h)(3) embrace this interpretation. Sn United S!at6S Y. Spinzlli.
352 F.3d 48, 59 (2d CiT. 200)} (explaining that courts have looked to whether vidims "have
,
suffered from lasting psychological debilitation" persisting Ions after a t:rawnat.ic physical injury:
in determilling whether a "protnl.eted impaimJent" has 0C0JlTed); United StilUS \I. Guy, 340 FJd •
655 (8th Cir. 2003) (holding that persistence ofposHraumatic wen syndrome more than one :
year Uter rape constituted a "protracted impairment ofLhe function of a.
mental faculty');
Uniful Statu Y. Lowe, 145 F.3d 45, 53 (1st Cir. 1998) {looking 10 psychological care teo months .
after an incident as evidence of a. "protracted implirmentj. In the absence ofprofessional
psychological care in the month" and years after an incident causing bodily injury, eouns have
on occasion turned away claims tMi even extremely violent acts caused a "protre.cted
impairment of the function of a ... mental fawlty." See, e.g., United ~USl'. RilJutI, 8J F.3d
542, 548 (lst Cit. 1996) (overturning sentencing enhancement based on a "protracted
impainnent"'wben victim had not sought coun:leJing in the year following incidem). Thus,
whether medical profe!lsiooals have diagoosed aod treated such a condition, after these
techniques have been applied. is certairJy relevant to dc(ennining whether a protrad:ed
impairment of a menta.! faculty has occurred.1J
4

0

••

Giveo the CIA's %-hour time limit on continuous sleep deprivation, the hours between
when these mental conditions could be expected to develop and when they could become of a.
severity that "CIA personnel terminate the techoique would Dot be of sufficient duration to satisfy:
the requirement that the impairment be "protracted." This conclusion is rdllfon:~ by the
'
medical evidence indicatillg that such conditions subside with one night of normal sleep.

3. We h3....e no occasiou in this opinion 10 <lclenWue whelhettl:e lDlentioll11 iuflictiou ofpon-tIa\l:llUuC
stress ~drome would violate the SBI offense. OA's experiences wllh tho thirty deU.inces with whom enhanced.
tecMiques have boen usediu the past. as .....ellas inIonnation from miliW)' SERE tlULins. suggest fh21 neither'the !
sleep dl:privation tr:cl\I\ique, Dor any of the other six eManc:ed ~hniques, is lilely 10 cause post-traumatic IDess ;
S}lldromc. CIA lMdleal persoMei h:l...e examined these detalnu.s tor sipu: otpostotraumatic mess syndrome, and ;
lIone otthe detlinees has been diagnosed 10 suffer froID it

13 Thef'e is also a qu~on about the m~& of-bodily injUf)'~ ill the S8l olf«lse. As expla.ined above. ;
the broader anTi-tamp::ring ~te defines theterm ~Iy ilIju.ry'" SUoCb thataJ/'j ~impairment oClhe function ot
a ... mental f.acultY' would qualily as a bodily injlU)'. 18 U.S.c. J IJ6S(l:K~)' If this wm the &oYauing
,
definition, no physical injlll)' to the body would be requi.roi lorone otlhe spcci&d conditions 10 collS'tittllc "So!riou.s
bodily injUl}'. ~ 1ltCJ1l aJ'E rusolU 10 bclie\'l: that in<:orpoa1iD& this definition oC '"bodiJy injwy"" illlO !he SBl otr~
is no( wamDted. Nevuthdeu, whethera "bodily injwy'" boMns. physical Olndition is rc:qWR.d for the SBI
:
offense is not a matter we must adllm.s here because 110M of the IccbniqUCS at iSSU8 \\tluld illIplieatc 3lIJ of thdoe.;r
conl1itions rt.qUim1 unda the dclinition of~scrious bodily Jnjury,'" eym in lbe absence ofany stpmlC phy$ical
injury rcquilement.

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25

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D.
Our analysis of the War Crimes Aa tbJs fu bas focused on whether the tpplieation ofa
proposed interrogation technique-in partiwlar, exttllded sleep deprivatioD-(;feates physical or
mental conditions that aoss the specific thresholds established in the Aa. We have addressed :
questions ofcombined use before in the con1l:Xt oflhe anti-torture statute, and concluded there ;
IW the combintd usc oftbe six techniques at issue here did not result in the imposition of
"extreme physical pain. Memorandum for John A. RilZO, Senior Deputy General Counsel,
Central Intenigence Agency, from Steven G. BndOOry, Principa1 Deputy Assistant Attorney
General, Office of Legal Counsel, Re: ApplJcationoJ 18 U.S.C §§ 2J~0-}J40A to the Combind
Use olCcrtotn TuJmiques in the InturogaliOlJ afHigh Value al Qaeda Detainees (May 10. :
200S). Thi.s conclusion is important here because "ex1reme physical pain" i, the specified pain ;
threshold for the CIT offense and the SBI offense, in addition to the torturcoffense.. See 18
U.S.C. §§ 2441(d)(2}{D)(2), 113(b)(2)(B}. With regard to elemenu nfthe War Crimes Act
eoneeming "impairments," CIA observatiom ofthe combined use ofthese tochniques 00 not
suggest thaI the addition of other techniques during the application of extended sleep deprivatioh
would accclerate or aggravate the cognitive diminishment associated with the technique so as ~
reach the specified thresholds in the CIT and SBloffenses. Given the particularized demems ttt
forth in the War Crimes Act. the combined use of the six techniques now proposed by the CIA '
would not violate the Act
to

E.

The Wu Crimes Act addresses CQnduct that is universally condemned and thaI
constitutes STave breaches of Common Article J. Congress enacted the SlaMeto declare our
Nation's commilment to those Conventions and to provide our ptrSOMel with clarity as to the
boundaries of the criminal conduct proscribed under Common Article 3 of the Geneva
.
Conventions. For tbe reasons discussed above, we conclude that the six techniques proposed fo~
use by the CIA, when used in accordance with their ac.compmying limitations and safeguards, do
not violate the specific offenses established by the War Crimes Act. .
:
OJ.
For the reasons discussed in this Part, the proposed interrogation techniques also are
consistent with the Detainee Treatment Act.

A.

,

,,
i

The OTA requires the United States to comply with. certain constitutional standards in tile
treatment of all persons in the custody or CQnb'ol ofthe United States, regardless of the
i
~at~o~ality .of the person or the physical location oflhe detention. The DTA provides that "'[nJo
IndiVidual In the cUSlody or under the physical control of the United Stales Govenunent,
fcgan;lless ofnationality or physical location, shall be subject to crud, inhuman, or degrading
treatment or punishmenL" DTA § 1403(a). The Acl define! "cruel, inhuman. or degrading
treatment or punishment" as fonows:

26

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T
In this section, the term "cruel, inhuma.n. or degrading treaL-nent Of punishment"
means the CI\Icl. unusual, and inhumane: treatment or punishment prohibited by
the Fifth, Eighth, and FourtCClth Amendments to the Constitution of the United
Stale~ as defined in the United States Reservations, Declarations and
Undemandings to the United Nations Convention Against Torture and Other

Forms ofCruel, Inhuman or Degrading Treatment or punishment done at New
York, December 10, 1984.

,

I

DTA § 1403(d),16 Taken as a whole. the DTAimposes a st.?t1.Itory requirement that the United
States wide. by the substantive COll$titutional standards applicable to the United State5 under its .
reservation 10 Article 16 crthe CAT in the treabnent of detainees, regardless of location or
.
citizen~hip.

i

l~

The change in law brought about by the DTA is slgnific.a.nt. By its own terms, Article
of the CAT applies only in ''territory under (the) jurisdiction" ofthe signatocy party. In addition:
the constitutional provisions invoked in the Senate reserYation to Article 16 gcnerally do not
apply of their own forcc to aliens outside the tenitory of the United Stues. St.. Johnson v.

"

Eist.ntragt.r, 339 U.S. 763, 782 (I95O); UrritM Statu v. Ytrdugo-Urquidu, 494 U.S. 259, 269 ;
(1990); ue also Uniud Statu \'. Bebnont, 301 U.S. 324, 331 (1937); United Statu v. Curtiss- l
Wright Export Carp., 299 U.S. 304, 318 (1936). Thus, before the enactment ofthe DTA. United
Stales pcrsoMe) were not legally required to follow these constitutiomJ standards outside lhe
territory ofthc United States as to aliens. Ne...t.rtheicss, even before the DTA. it was the policy.
ofthe United Slates to avoid crue1,-inhuma.n, or degruling trC.?!ment, withio the meaning of the .
. U.S. reservation to Article 16 ofthc CAT, ohny detainee in U.S. custody, regardless oflocat;oo
or nationality. Su supra at n.l. The purpose of the DTA was to codify this policy into statute. i

B.
Altbough United Slates obligations undct Article 16 extend to "the crue~ unusual and
inhumllne treatment or punishment prohibited by the Fifth, Eighth, andlor Fourtctnth
Amendments to the Constitution oflhe United States," only the Fifth AJnendment is directly
releviI.Ill here. The Fourteenth Amendment, provides, in relevam part: "No State shall. .
,
deprive any person oflife., liberty, or proptrty, witbout due process of law." (Emphasis added.) I
This Amendment does not apply to actions taken by the federal Government. See, t.g., San

ii

16' The purpos.c of the U.S. resuvati,on to Article. 16 of the Co;Jvention A.gainst Torture. 'r'iU to pr<Mdc cle4r
. lIle:UIing to the dtfinitioa of"auel, iahDraan, Ot dcpadill(' Ire:aJmaII orpwtiWncm.bascd 00 United Stlles~, '
particul;ujy lO,gtWd apinslaoy upamh·c. ~ctation o(~delndinll~ WIIkJ Article 16. Su Samntary Uld
Anal}"'$is of the Convwion ApiD1t To.~ andOlbc.r Cnatl, InhummOl" Dq;rac!illgTD2tJIlaJI or PunishJncn.. iff '
S. Treaty Doc. No. 100-20, at 15-)6 ("'Exceutiyc BtaDCk SWIllJIl[}"and A.aaJysU of the CAl); s. Exec. Rep. 101-:
30, Q:mvmllon Alflbul Tom,., aNlOIhr 01r'~ "'''_or DtgrDt/iJrr 1'natmurior P.mJJlrmmI It ]5-26 (Avg.'
30, 1990). The resem.U<ll'l "00DSllUeS the. p1Insc. to be eoexrc.nsiYe with the. ~ ~ ap.iost aceI;
uausuaI, a.'1dinhuroanctlatrnc.tlt~ ~QlfMBrIZ1ldl~fINIAn~r;11MetTallj; 5.Exee..~. 101-30
at 25. AlX'Ordingly, the DrA does nat pTo!llbil all "d.cgndiPI" belmior in the ordi.vuy sense of the tc.rm; in.srt3d, ,
!he prohibition mends "0lIIy iMofuu'" tbc: speci5ed COllStitutiONI ~ 136 Con&- JW:. 36,198 (1990).

27

Francisco Arts & A.thletics. 1m;, v. United Staus Olympic Comm., 483 U.S. 522, 542 n.21
(1987); Bolling v. sm,p.. 347 U.S. 497. 498-99 (1954).

.

,

The Eighth'Amendment prohibits 1M infliction of"auel and unusual punishments." M
thc Supremo. Court repeatedly has held, the Eighth Amendment does not apply until there has
been a "formal adjudication ofgwll" Su &11 v. Woljish, 441 U S. 520. 535 n.16 (1919);
Ingrahmn v. Wright, 430 U S 651,611 n.40 (1917); see also Inn Guantanamo~~eCasts,
355 F. Supp. 2d443. 480 (DD.C 2005) (dismissing detunus' Eighth Amendment c!a.nr.s
.
because"'thl;; Eighth Amendment applies only after an individual is convicted ofa <;rime"). The ~
limited applicability of the Eighth Amendment under the reserv:uion to Article 16 was exprcssly:
recognized try the Senate and the Executive Branch during the CAT ratification delibentions:
The Eighth Amendment prohibition ofaueI and unusual punishment is, of the
three [consritution2.1 provisions cited in the Senate reservation], the most limited
in sco~e, as this amendment has consistently been inttrpreted u protectiog only
"those convicted ofcrimcs." Ingraham v. Wright. 430 U.S. 651, 664(1917). The
Eghth Amendment docs, however, afford protection against lortLlre and iIItreatment of persons in prison and similar situattcns of criminal puni&hmenl.
Summary and Analysis of the Coovention Against Tonure and Other Crue~ Inhuman or
Degrading Treatmcnt or Punishment, in S. Trea!)' Doc. No. )(lO-20, a19 (emphasis added)
("Executive BranCh Summary aJ1dAna.rym oftM CAr). Bea.use none of the high value
detainees on whom the CIA might use enhanced interrogation ICGbniquC3 has been convicted of .
any crime in the United States, the substantive requiremenLS of the Eighth Amendment are not ,
directly relevant here?1
;

,

I

The Due Process Clausc oflhe Fifth Amendment forbids the deprivation of "life, libcrty.!
or property with'out due process of law." Because the prohibitions of the DTA are directed at
"treatment or punishment," the Act does not require application of the procedural aspects of the :
Fifth Amendment. The DTA provides for compliance with the substantive prohibition against
"cruel, inhuman, or degrading treatment or punishment" as defined by tho United States
,
resccvation to Article 16 of the CAT. The CAT recognizc3 such 8 prohibition to refer to serious,
abusive aets that approach, but fall short of, the lorture elsewhere prohibited by the CAT. See :
CAT Art. 16 (prohibiting: "OthCl crud, inhuman, or degrading treatment or punishment which do"
not amount tQ torture"). The term "treatment" therefore refers to this prohibition on substantivc!
conduct, no~ to the process by which the Government decides to impose such an outcome. The ,
addition of the term "punishment" likewise suggests a focus on what actions or omissions are

~l This is POt to say Ihal Eigh.tb Amendment sbnlb.nIs are or no importanc.t in applying lhc: DT /I. to preeotlV!ction i~on praaic:cs. The ~ Colin Iw ma4e dear that ueatlnela aI11ouating; 10 punislun.enI
vritbaut a frial woaId viobte Ihe Due Procus a..use. Su Uniud $JD:tSl'. So/U7ID, 481 U.S. 739, 746-47 (1987);
CltyDfJUw,.. Y. MDA Gmlum HDJP., 4(i) U.S. 2)9. 2M (191'3); Wolfish, «I U.S. at "S.36 .t.IUl.I~I7.
l'reatmellt ~ouotin8 to "cruel 3114 unusoaI ~.UDder II:ll! Eiihtb ~ aIso EU)' C)nslitute
prohibited "plllisbmenL" under lbc F"Jfib ArowdmtUI . or c.ou.rse, tbc Co1tstitudo. does nolprm'billbe impcsition;
of c.crtaiA AnCI:i0n5OD l!et;;ainecs who violateadlninlslntive m1eswhilc: la'Jdillly dcaJned. Set, L~.• St:JndiII...
.
Ow!or, $ISU~ 4;2, 4&4-85 (1995).

T
28

T
ultimately effected on a dctainee---not upe!! the process for deciding to impose those outcomes.
Cf. G1iillt"t!z v. Ada, 528 U.S. 250, 255 (2000) (observing thzt the interJlretztion ofa ~bJtotY
term ..that is capable of many meanings" is often influenced by the words that surround It).
Moreover, the DTA itself includes cxtmsive and dmiJed provisions dictating the process to be ~
afforded certain detainees in military rosIDdy. Su DTA § 1405. Congress" decision to specify :
detailed procedures applicable to pmicular deWnee3 cannot be reconciled with the Dotion that .
the DTA was intended simultaneously to cdend the proetdural proteetiotl! afme Due Process
Clause genenily to all detainees held by the United States.
Rathes-, th& substantive component ofthe DueProuss Clause governs what Iypts of
treatment, including wha1 forms of intClTOgation, are permissible wilhoul trial and conviction.
This proposition is one that the Supreme Court confirmed as reuotly 23 2003 in C1urvez v.
MarliM¥.. 538 U.S. 160 (2003). Su id. at 719-30, Id. at 773 (plunJity opinion); Ui. at 787
(Stevea.s. J" concurring in part and dissenting in part). Further reinforcing this principle, a

majority oflhe Justices recognized that the Se1f·Inaimination Clause-instead of proscnoing
puticular means of interrogating suspet.ts--only prohibits coerced confessions from oong used .
to secure a criminal conviction. Set. Chavu, 538 U.S. at 769 (plurality opinion, joi'ned by four .
Justices) ("(M}c:r.e coercion does DOt vlolate the text oftha SeIf-locriminatioD Clause zbseDt use j
of the compelled statement in a criminal case against the ....itDeU."); fd. at 77i (Souter, J.,
conaming in the judgment) (rejecting the notion ofa ..stand·a1one violation oftbe privilege
subject to compensation" whenever "the police obuin any involuntary self·incriminOlting
statement").
ill this regard, substantive due process protecb agairlSt interrogation practices that
"shockO the conscience." Rrxhin v. California, 342 U.S. 165, 112 (1952); sec also County of
Sacr.c.mcnto v. lAwis, 523 U.S. 833, 846 (1998) ("To this end, for haIfa cenlWy now we have
spoken oftbe cognizable level of executive abuse ofpowcr as tlat which shocks the

conscience.,,).11 The shocks-the-conscience inquiry docs not focus on whether the intCITogation ,
was coercive, which is the relevant standard for whether a 51..ltement would be admissible in
court. See MaJID)' v. Hogan, 378 U.S. 1,7 (1964)("Under [the Self.Incrimination Clause), the
constitutional inquiry is not whether the conduct ofthe state officers in obtaining the confession·
was shocking, but whether the confession was free and voluntary."}. Instead, the "rdevam
liberty is not fr~edom from unlawful interrogations but freedom from severe bodily or mental
hann inOicted in the course ofan interrogation." Wilkinsv. May, 872 F.2d 190, 195 (7th Cir. .
! 989) (posner, 1.). In order to cross that "high" threshold in the law enforcement context, there .
must be "misconduct thai a reasonable person would find so beyond the norm of proper police
l:f It Iw beell wieldy and publicly realpiml that abe Fdth A1llcodmau's -sbod:s tbcoonscicnec~ test
supplies lilt: lepl sunda:td a;ppliable to the iIllClropliOll of5USpCtted. terrorist:s ~g;ardinll'utlm 1C:rl"<IrUt:uue:b,
pllrnWlt to the U.S. rrscrvation to Article 16 ofthc CAT md thus thcDTA. ~ c;ondusion V4S radwI. for
txaDJple, by abiputisOlzl BJOUP of1cpl scholan md poli.cymakm, chaired by Pllillip Heynwm, DepWy Attorney ;
GmeBl d~ the omron AdrPinimatioo. Su /.aIf T«m Lqlll Strllllgy Projectfor P1utrvtffJ Sccvrlty t61d
•
[HmoaDtiC Fn~doms in W<lJ'"O>:I Tmorism:23 (lUM.rd2004). 1k Depanment of JII5dc:t.,]so PJblIeIJ ara:ounced
thi.~pan of its int~tion of Article 16 ill COlIgres.sional t~moay, prior 10 the cnactnlent of tile DTA. Su
.
Prepared StItcnlent of Pzlrlck F. Philbin, As.sociatc Dqntly A1tortlCJ' Gtnen1, before tile Permmc:nl HoIlSC Select
<:ommitre:e 011 IntdHgc:x.e, TrcalmUlt (;f~"culn tJt. Gfob41 W~M TtI'TOI" (lilly 14,20(4).

TO
29

-

,'
procedure as to shock the conscience., arul that is calcula.ted to induce IKlt.l1lerely momentary f~
or anxiety, but severe mental suffering." [d.

I

As we discuss in more detail below, the "shocks the conscience- lest requires a balancing
of intecats Lbat leads 10 a more flwble standMd than the inquiry into coercion and voluntarinesS
thlt accompanies the introduction ofstnements at a crimitW trial, anrllhe governmental interesis
at stake may vary with the context The Supreme Court has loog distinguished the govenunent ~
interest io ordinary law enforcement from the mere compelling interest in safeguarding nationa~
seaJrity. In 2001, the Supreme Coon made this disrim:tion clear in the due process cor.text: T~
government i:lterest in detaioing illegal aliens is different, the Court explained, when -appl(jedl~
narrowly to a small segment ofpatticularly dangerous individuals, say. suspectai terrorists,"
.zom.,dar v. Davis, 533 U.S. 678, 691 (200t). This propositiocl is echoed in Fourth Amendme~
jurisprudence as well,. where "special Duds, beyond the DOnna! need for taw enforcement," an;
justify warr.tntlcss or even suspicionless searches. Vernonia Sdtoo/ Dist. 47Jv. Adon, 515 U.S.
646,653 (1995). In this way, "the [Supreme} Court distinguishe(s] general crime control
programs and those that have another partiaJlu purpose, such as protection of citizens against
special b.a.zards or protection ofour borders." Tn n StaltdCau, 310 FJd 717, 745-46 (For.
IDtel. Surv. Ct. Rev. 2002). Indeed. in oneFoulth Amendment cue, the Court obsuved that
while it would not "sanction [automobile] stops ju.stified only by the gellen] interest in crime
contro~" a "roadblock set up to thwarta.n imminent terrorisl attac."" would present an entirely
different constitutional question. TndianapoUs v. Edmond. 5] 1 U.S. 32, 44 (2.000).

c

!
I

Application ofthe "shock! the conscience" test is complicated by the fa.ct that There are 1
relatively few cases in which courts have applied that test, and these cases involve contexts and J
interesu that differ significantly from those of the erA interrogatioo program. The COWl in
County ofSacramento v. Lewis emphasized that there is "no calibrnted yard stick" with which to
detennine whether conduct "shoclc& the oonscience." 523 U.S. al 847. To the contrary, "[rJules.
of due process are not ... subject to mechanical application in unfamiliar territory." !d. at 850. f
A claim that government conduct "shades the conscience," therefore, requires "an exact analysis
of circumstances." ld. The Court has explained:
The phrase [due process of law) formulates a concept less rigid and more fluid
than those envisaged in other specific and particular provisions ofthe Bill of
Rights. Its application is less a matter of rule. Asserted denial is 10 be tested by
an appraisal of the totality oHacn in a given case. That which may, in one
setting, constitute a denial of fundamental fairness, shocking 10 the universal
sense of justice, may, in other circumstances, and in lighl of other considerations,
fall shart of such a denial

ld.. at 850 (quoting Betts v. Brady, ]16 U.S. 45S, 462 (1942»; Robu1SCll v. CttyojPkmo, 70
F.Jd 21, 24 (5th Cir. 1995) ("It goes without saying that. in determining whether the
constitutional line has been crossed, the claimed wrong nwst be viewed in the COlltext in which it
occurred."). In evaluating the techniques in question, Supreme Court precedent therefore
_
requires liS to analyze the circumstances underlying the CIA interrogation prognm-limited to·

30

L.

T
high. value terrorist detainees who possess intelligence critical to the Global War on Terror-an&
this clearly is not a co~te:ct th~ has arisen under exirtiog fe<leral court precedent.
.

fn any context, however, two general principles arc relevant for determining whether
. executive conduct "shocks the conscience." The test requires first an inquiry into whether the
conduct is "arl;Jitrary in the constitutional sense," thai is, whether the conduct ~ pr~portionate to·
the government interest involved. See Lewis, S23 U.S. 8t.846. Next, the test requITes
•
consideration ofwhetherthe oonduct is objectively "egregiousfl or "outrageous" in light, of
traditional executive behavior and contemporary practices. See id a1847 n.8. We consider each
element in turn.
L

Whether government conduct "shoclG the conscience" depends primarily an whether

1

tJ

conduct IS "arbitrary in the constitutional sense," that is, whether it amounts to the "exercise of '
'
power withQut any reasonable justification in the service of a legitimate governmental
objective." Id, 523 U.S. at &46 (internal quotation marks omitt~). "[Clonduct intended to
injure in some way unjustifiable by any government interest is the SOIt of officil1l action most
likely 10 rise to the conscience-shoeking level," although deliberate indiffere:nce to the risk of
inflicting such unjustifiable injury might also "shock the conscience." Id. at 849-51. The
"shocks the conscience" test therefore requires consideration of the justifications unde:r1ying such
conduct in determining its propriety.
I

Thus, we must look to whether the relevant conduct furthers a government interest, and i.o
the nature and importance of that interest Because the Due ProccS$ Clause "lays down [no]. '
categorical imperative," the Court has "repeatedly held that :he Government's regulatory interest
in community safely can, in appropriatecirroffistances, outweigh an individual's liberty
interest." United States v. Salerno, 481 U.S. 739, 748 (1987).

j

AI Qaeda's demollStrated ability to launch sophisticated attacks causing mass casualties
within the United States and against United States interests ....'Orldwide and the weat to the
United States posed by al Qaeda's continuing efforts to plan and to execute such attacks
indisputably implicate a compelling governmental interest of the highest ordec ''It is 'obvious
and unarguable' that no governmental interest is more compelling than the security oftbe
Nation." Haig v. Agee, 4SJ U.S. 280, 307 (t981) (citations omitted); see also Salerno, 481 U.S;
at 748 (noting that "society's interest is al its peak" "in times ofwar or insurrection"). The CIA:

interrogation' program-and, in particular, its use of enhanced interrogation techniques-is
intended to serve this paramount intereSt by producing substantial quantities of otheiWise
unavailable intelligence. The CIA believes th.at this ptogram "has been a key reason why atQa'ida has failed to launch a spectaCular attack in the West since II September 20m."
Memorandum faT Steven G. Bradbu Principal Deputy Assistant Attorney General, Office of :
Legal Counsel, fro
Chief, Legal Group, DC! Counterterrorist Center,
. &: Effective~oft e A ottnterfnJelJigenu Interrogation Techniques at 2 (Mar. 2, 200S) ;
\,Effecti"veness Memo"). We understand that use ofenbanced techniques hIlS produced
significant inteJligence that the Govern.·nent has used to keep the Nation safe. As thePresident ;
explaioed, "by giving us information about ten:0rist plans we could not gel anywhere: else, the

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program has saved innocent lives." Address orthc President, East Room, While House.,
September 6, 2006.

I

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For example, we understand that enhanced interrogation teclmiques proved particularly
crucial in the interrogations ofKhalid Shlyldt Muhammad aDd Abu Zubaydah. Before the eIN
used enhanced techniques in interrogating Muhammad, he resisted ghing any information abotiI
future anacks, simply warning, "soon, you will know," As the President jnfonned the Nation in
his September 6th address, once enhanced ted:J.niques were employed. Muhammad provided
infoT!l121ion revealing the "Second Wave," a plot to auh a hijacked airliner inlo the Library
Tower in Los Angeles-the tallest building on the West Coast. Information obtained from
Mu!lImmlld Jed to the capture.of my of the al Qaeda opentives planning the anack.
Inlerrogatio~ ofZulnydah--again, once enhanced techniques were employed-R:vealed two ~

Qaeda operatives already in the United Stales a.od planniog to destroy a high rise apartment
building and to detonate a radiological bomb in Washington. D.C. The techniques have r~eaItd
plots to blow up the Brooklyn Bridge and to release mass biological agentS in our Nation's
largest cities.
!

ot

United States military and intelligence operations may lave c:!egnded the capabilities
al Qaeda operative! to laun(;h terrorist attacks, but intelligl:occ indica!es that aI Qaeda remains l!
grave threat. In a speech last year, Osama bin Laden boasted oftbe deadly bombings in Lond0I!
and Madrid and warned Americans ofhis plans to launch terrorist attacks in the United States: .
The delay in similar operations happening in America has not been because of
failure to break through your SCOJrity melU\lJ'CS. The operations are under
preparation and you will see fhrnr in your hom~ the minute they are through with
. preparations, Allah willing.
Quoted at http://www.breithart.ooml2006J191D8F7Sl\'lRH5.html(Jan. 19,2006). In August
2006, British authorities foiled a terrorist plot-p1anned by a.l Qa.eda-that intended
simultaneouSly to detonate more than 14 wide-body jets traveling across the Atlantic and that
thrutcned to kill more civiliaos than al Qaeda's allacks 00 September 1L, 2001.

continues.

This intelligence reinf0rt:e3 that the threat of terrorist attacks posed by al Qaeda

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In addition to demonstrating a compelling governmeDt interest of the highest order
underlying the use ofthe te.cluJiques., the CIA 'Will apply seven! me.uues that will tailor the
program to that interest. The CIA in the past has takeo and will continue ttl take specific
;
precautions to carrow the class afindMduals subject 10 enhanced techniques.. AJ desc:n"'bt.O
above., careful screening pro<;ed\,!l"ts are in place to etlS\Jrc that enhanced techmques WIll be usedi
onlY in the interrogations of agents or members oCaI Qz.eda or Its affiliates who are reasonably ;
believed to possess critical intelligena: that can be used to prevent future terrorist attacks agai~
the United Stale5 and its interesU. The fact thaI enht.nced techniques have been used to date in !
the interrogations of only 30 high va.'ue detai~ out of the 98 detai0ee5 who, at various times, i
have been in CIA Q1StOdy d~onstrates this selectivity. This inlecroptioa program is not a
dragnet for suspected terrorists who might posses.s helpful information.
.
Before enhanced techniques arc used, the ClA will attempt simple questioning. Thus,
enhanced techniques would be used onlywben the Director afthe CIA CQosiders them oecessuy
because a high value terrorist is withholding or manipulating critical intelligence, or there is
insufficient rime to try other techniques to obtain such intelligence. Once approved, enhanced .
techniques would be used only as leu harsh techniques fail or ar iaterroglltOn ND out oftime in;
the face of an imminent threat, so that it would be WlliJcely that.a detainee would be subjected ro i
more duress thAn is reasonably necessary to elicit the information sought. The enhanced
techniques, in other words, are not the fitst option for CIA interroguOfS confronted even with a .
high value detaioee. These procedures tuget the tedlniquC! on situations where the potential for
saving the live3 of innocent persons is the greatest.
~ important as carefully restricting the number and scope of interro~ons are lhe
safeguards the CIA will employ to mrtigate their impact on the detainees and the care with which
the CIA chose these techniques. The CIA bas detennined that the six techniques we discuss
;
herein are the minimum necessary to maintain In effective progJ1lm designed to obtain the most:
valuable intelligence possessed by III Qleda operatives. The CIA interrogation team and medical
personnel would review the detainee's condition both before and during interrogation, ensuring!
that tecl1lliques will not be used jfthere is any reason to believe their use would cause the
detainee significant mental or physical hann. Moreover, because these techniques were adapkrli
from the military's SERE training, the impact oftcchniques closely resembling those proposed :
by the CIA has been the subject ofeXiensive medical studies. Each oflhese techniques also has I
been employed earlier in tne CIA program. and the CIA now has its experience with those
detainees, including long-term medical and psychological observatioru, u an additional
empirical basis for tailoring this narrowly drawn program. These detailed procedures, and
reliance on historical evidence, reflect: a limited and direct focus to further a critica!
.
governmental interest, while at the same time e1iminaling any unnecessary harm to detainees. In'
this context. the teclmiques are not "a.rbrtrary in the constitutional sense."

The substantive due process inquiry requires considenfiO!l of not only whether the
conduct is proportionate to the government interest involved, but also whether the conduct is
consistent with objective standards of conduct, as measured by traditior.al executive behavior
and contemporary pn.ctice. 10 this regard, the inquiry has a historical dement Whether,

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considered in light ar"m understanding oftraditionaJ executive bebavior, ofcontemporary
practice, and of the standards ofblitDlc generally applied [Q them," use of Ute enhanced
interrogation techniques constitutes government beha..; ot that "is so egregious, so outrageous, .
thu it may fairly be said to shock the contemporary conscience." Uwls. 523 U.S. at &47 n.8;su
also Rodrin. 341 U.S. at 169 ("Woros being.symbols do not spale: without a gloss. On the one
hand the gloss may be the deposit ofhistory, wbmby a term gains technical content."). In this
section, we consider examples ia six potentially rdt'o'tJll areas 10 determine the extent to which;
those other areas may infonn what IOnd! of adions would shod" the (;()n~e.nee in the context of
the CIA program.
.

meSally breaking into the privacy of the petitioner. the struggle to open his mouth
and remove what was tbere, the furcible extnction of his stomach', conte1'ltS--

this course ofproceeding by agents ofthc government to obtajn evidence is bound
to offend even hardened sensibilities. They are methods too close to"the rack and
the screw to pennit ofconstitutional differentiation.

;

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34

._._ _ - - - - - - - •

[d. at 172. Likewise, in wmiamsv. United States, 341 U.S. 97 (1951), the Court considered a .
conviction under a starute that criminaliud depriving an individual of a constiMional right
.:
uader color of law. After identitying foW" suspects, the defendant used ubrutal methods to abtalO'
a confession from each of them." ld. at 98.
.
A rubber bose, a pistol, a blWlt instrument, a sash cord and other implements were
used in the project. One man was forced to look at a bright light for fifteen
minutes; when be was blinded, he was repeatedly hit with a rubber bose Bod a
sash cord and finally knocked to the floor. Another was knocked from a chair and
hit tn the stomach again and again. He was put back in the chair and the
procedure was repeated. One was backed against the wall and jammw in the
chest with a club. Each Wa3 beaten, tlueatetted, and unmercifully punished for
several hours until be confessed.
Jd. at 98-99. The Court characterized this brutal conduct as "the classic use of force to make a 1
man testify against himself' and had little difficulty concluding that the victim had been deprived
of his rights under the Due Process Clause. ld. at 101-02 ('[WJhere police take matters in their i
own hands, seize victims beat and pound them until they confess, there cannot be the slightest !
doubt that the police haY~ deprived the victim of a right under the Constitution."). Williams is .
significant because it appears to be the only Supreme Court case to declare an interrogation
unconstitutiontl where its fiuits were never used as evidence in a criminal trial.
In Chavez v. Martinez, 538 U.S. 760 (2003), the police had questioned the plaimiff, a
gunshot wound victim who was in severe pain and believed he was dying. The plaintiffwas notl
charged, however, and his confession thus was never introduced against him in a criillinal case. ,
The Supreme Court rejected the plaiotiff s Self-Incrimination Clause claim but remanded for
consideration of the legality ofthe questioning under the substantive due process standard. See :
id. at 773 (opWon ofThomas, J.); id. at 778-79 (Souter, 1., concuning in judgment).
ImportanHy, tlJe Court considered applying a potentially more restrictive standard than "shocks :
the consciencen -a 'Standard that would have categorically barred all "unusually coercive"
interrogations. See id. at 783. 788 (Stevens, J.. concurring in part and dissenting in part)
(describing tbe interrogation at issue as "torturous" and "a classic example of a violation of a
constitutional right implicit in the concept ofordered liberty") (internal quotation marks
omitted); id. at 796 (Kennedy, J., concurring in part and dissenting in part) ("The (AMitution
does not countenance the official imposition of severe pain or pressure for purposes of
,
interrogation. This is true whether the protection is found in the Self-Incrimination Clause, the .
broader guarantees of the Due Process Clause, or both."). At least five Justices, however,
rejected that proposition; the context-specific nature of the due process inquiry required that the!
stAndard remaia whether an interrogation is conscience-shocking. See id. aI: 774-76 (Thomas, 1. 1
joined by Rehoquist, C.J., and Scalia, J.); id. at 779 (Souter, 1., concurring in the judgmem,
joined by Breyer, J.).

The CIA program is much less invasive and extreme than much oftbe conduct that tbe i
Supreme Court has held to raise substantive due process concerns, conduct that has generally
involved significant bodily intrusion (as in Rochin) or the infliction o~ or indifference to,
extreme pain and suffering (as in Williams and Chavez). As Judge Posner oflbe Sevenlh Circul

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has observed. the threshold defining police interTogations thai exceed tbe bounds of substantive
due process is a "high" one, which requires "misconduct that a reasonwle persoa would .find so
beyond the norm of proper police proccdwe IS to shock the conscience., aod that is calculated to '

induce not merely momentuy fear or anxicly. but severe mental suffering." Wilkins. 872 F.2d .
at 195. In contrast, and as discussed in deuU below, the enhancedinterrogatioD techniques at
issue here., if applied by the CIA in the mannu described in this memorandum. do not rise to that:
level of brutal and severe condUCl The intmogators in Wlilianu chose weapons--clubs. butts of
guns.. ush cords-designed to inflict severe pain. While some ofthe techniques discussed hmiq
involve physical contact, noDe of them will illVOlvc the use of such weapons or the purposeful ;
.
inflietion ofextreme pain. As proposed by the CIA, none of these techniques involves the
indiscriminate infliction of pain and suffering, or amounts to draIU 10 "wring confessions from;
the w:used by force and violence." Williams. 341 U.S. a110l-m.
'

!

Moreover, the government ir.terest a! issue iD. each of the cases disc.ussed above w;u the !
general interaf: in law enforcement:lt That government interest is Strikillgly different from what;
is at mke in the context ofthe CIA program:: The protection ofthe United States and its
interests 19ainst terrorist attacks that, as experience proves, mty resull in massive civilian
casualties. Deriving 2I1 absolute standaro DC conduct: divorced from conlext, as Chavrz
demoostJate.s, is not the established application oClhe "shoclcs the conscience" test. Allhough
none of the above cases expressly condones the techniques lhit we consider wein, neither does;
any oftbern arise in the special eontext ofprotecting the Nation from armed attack by a foreign ;
enemy; and thus collectively they do not provide e-.ideDCe of an executive tradition directly
applicable to the techniques we consider here?O
.
United Staus Military Doctrine. The Uniled States Army hlj codified procedures for
military intelligence interrogations in theAnny Field Manual. On September 6.2006, the
D Willianu I¥JS an e:wnpleof a prosecution undawtlal is non-codified a.s II U.S.c. § 242, which makesl
il a criminal offense to violate th= coustiMional. rights oflllecher while ilering \UKlQ"color a(]zw. Prosccutiom
haY, been brought UDder section 242 for polieebe3tin,p iI,lId inwroptions mtvinA the cxoessivetl5e offoJl%, bui
couns applying.section 242 coDSinclllly have focused on whethcr me violent aetIo4s wercjll$lilied. To this cud,
federal pauanj\llY in.stroetions for seaiOll 242 pro5Cl;U/jOPl ask thcJwy to decide whdlIerthe'Vittim was
"physically anaulte:d, ilWmidatcd, orotherv.ise abu$Cd in1elltionaJly anc1 wlf~ollljllSl!/kall""." Eleventh Cin;ujl
Pattern Jwy Instruaioli 8 (Zool). Courts of appe:a.Is, particularly after the Supn:mc Court's d2rlfu:alion of the
"dlocks thc conscl=" sW:!danl. in !#wls, llavc reputedly turnc.:llo whetherlhe eonc1utltouhl beju,titied by a
legitimate govemmc:nl inlerest. Rogm v. DIY oflitt/4 &ck, J'2 F.ld 190, 797·98 (Sth Cir. 1998).

!

)Q In the tolltexl of QeletlticD for crdilwy eriminal IIw cDfOfCCDle'lll purposu, as wdJ as pursuanf to til'il
tommitmell1, the Supreme Courl hzs held thalsubstantive due POltUS sund:lJds require Msa*toDditions,M inelOOin"g
"adequate food. sheltu, clotbiDg, aolilfleWtal tafc.~ Youngbug V. RolMo, 457 U.S. 3m, 3iS (19S2). TIle flIilure to
provide $Uth raiaimum treabDellt, in most. cirazlllStilllCe5, would pre:sum.lbly "shock lbe ooosdcrc ~ The Court !lis
not considcrci1 wbetber ihc go\'eRl:IleIlI wu1d dqen from tbU cwmJ r~metlt ill a lintited 1'lWUIer, tar~led u:
pror:cctinB tbc ~I1 from prospective letrotist 1ltJct. Nevclthelcss, it.is iACormative that boIll the conditions of
conlinCDlelt at CIA facillties,:;u Memonndum for John A. Rizzo, Actinl GenenJ Counsel, CcnIraJ Intdligmce ;
AgC:<lCy, from SteVt.D Q. BndOwy, Adin&AssiSWll: Atlomey <kntnI, Office ofLcpl Cwnscl, App!icDtion ofth~
Dflt/in,. TnohllVlrAu to Conditfonso/Co¥tjilltlllUli til Cuu7tllJllrtlllZU.aAflncyDfttlllfo/l FDcilirtu III (Au!.
31, 1(06), and the inl~on teclI."1ique5 oo'3Sidmd herem, #1 irrfta at 7()'71, lXKllpiy with. the "we COlUfilionsj

........

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-Department ofDefellSC issued a: revised A.rmy FieldManuaJ 2·22.3 on Human Intelligence .
Collection Operatiow. Ibis revised version. like its predecessor A111IY Field Manual 34·S2, hsts
a variety of interrogation techniques that generally involve ooly verbal and emotional tactics. In
the "emotionaJ love approach," for example, the .interrogator might exploit tbe love a detainee
feels fOT his fellow soldiers, and use this emotion to motivate the detainee 10 cooperate. ·Army
FieldManualZ.22.3, at 8-9. The interrogator is advised to be "extremely careful that he does
not threaten or coerce a source," as "conveying a threa1 might be a violation ofthe [Uniform
Code ofMlitary Justice)." The Army Fidd Manual limits interrogations to expressly approved
t~hniques anq. as a matter ofDepartment ofDefense policy, also explicitly prohibits eight
techniques: "(1) Forcing the detainee to be naked, perform sexual a~. or pose in a sexual

manner; (2) Placing hoods oJ S3C!cs over the head of a detainee, using duct tape over the eyes;
(3) Applying beatings, electric shock, bums, or other forms ofphysical pain;
(4) 'Waterboarding;' (5) Using military working dogs; (6) Inducing hypothermia or heat injury;
(7) Conducting mock executions; (8) Depriving the detainee ofn~essary food, water or medical!
care." Id. at 5-20. The prior Army FieldManual abo prohibited other techniques such as "food 1
deprivation" a~d "abnonnal sleep deprivation."
,;
The ~ighteen approved techniques listed in the Anny Field Manual are different from andi
less stressful than those under consideration here. The techniques proposed by the CIA are not i
strictly verbal or exploitative of feelings. They do involve physical contact and the imposition
physical sensations such as fatigue. The revised Army Field Manual, and the prior manual, thus!
would appear to provide some evidence ofcontrary executive practice for military interrogations!
While none ofthe six enhanced techniques proposed by the CIA is expreS3ly prohibited under
the current Manual, two of the proposed tec;hniques- "dietary manipulation" and "sleep
deprivation"-were pro~bited in an unspecified fonn by the prior Manual.

ot

i
Nevertheless, we do not believe that the prior Anny Field Manual is dispositive. evidenc9
"oftraciitional executive behavior {andJ ofcontemporary practice" in the context l?f the CIA
program for several reasons. The prior manual was designed for traditional armed conflicts,
particularly conflicts governed by the Third Geneva: Convention, which provides extensive
protections for prisone~ of war, including an express prOhibition of all fonns of coercion. See I
Anny FieldMwrua134-52, at 1-7 to 1-8; set also id. at iv-v (requiring interrogations to comply·
with the Geneva Convention3 and the Uniform Code ofMilitary Justice); GPW Art. 17. With ;
resped: to these traditional confli~, the prior manual provided standards to be administered .
generally by military personnel without regard to the identity, value, or status of the detainee. j
By contrast, aI Qaeda terrorists subject to the CIA program \\'ill be unlawful enemy combatants;
not prisoners of war. Even within this class ofunlawful combatants, the program will be
'
aciministereid only by trained and experienced interrogators who in turn will apply the techniqu~s
only to a subset of high value detainees. Thus. the prior manual directed at executing general '
obligations ofall military personnel that would arise in traditional armed conflieu between .
UIliformed armies is not controlling evidence of how high value, Wllawful enemy combatants i
should be treated.

i

In contrast, the revised Anny Field Manual was written with ao explicit understanding

!

that it would govern how our Armed Forces would trear unlawful enemy combatants captured in
the present conflict, as the DTA requ.ired befoeo; t.he Manual's publication. The revised Army !

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Field MaT1U(.J/ authorizes an additional interrogation technique for per5OJI$ who are unlawful
combataou and who arc "likely to posSCS5 important inteUigtllGe." See Army Field Manual 2· I
22.3, Appendix.M. This appendix reinforces the tn.ditional executive Wlderstanding that ccrtai~
interrogation techniques are appropriate fOl unlawful enemy combatants that should not be used:

~

with pri",.", ofwu.

The revised Army Fie/dMan1JQl cannot be described as 11 firmly rooted tradition, having
been published only in September 2006. More significantly, the revised Army Field Manual w
approved by knowledgeable high level Executive Branch offici;.ls on the basis ofanotber
understanding as weB-that Utere has been a CIA interrogation program for high value terron
who possess information that could help protect the Nation from another catastrophic terrorist
attack..11 Accordingly, policymakers could prohibit certain lcterrogiition techniques from general
use on those in military custody 'because thi"-Y had tho option oftransferring a high value detain~
to CIA custody. That understanding-that the military operates in a diffmnt tradition of
executive action, and more broadly-is established by the text of the DTA itself. The DTA
requires that those in the "custody or effective control" of the Department ofDefense not be
"subject to any treatment or technique ofintertogation cot authorized by or listed in the U.S.
Army Field Manual OD IntclligenceIntmoga!iott." DTA § 1402(a);suaLro id. § 1406. By
contrast, the DTA does not apply this Field Manual requirement to those in the custody ofthe
CIA, and requires only that the CIA treat its deW.nees in a ma.'l.Iler consUtent with the
constitutional .staodards we have discussed herein. DTA § 1403. According! y, neither the
revised Army AddMQ1rJ.lol nor its prior iterations provide controlling evidence of executive
practice for the CIA in interrogating unlawful enemy combatants who possess high value
infonnation that would prevent terrorist attlGla on American c.ivili.ans.

I

Stale. Departmenr &pons. Each year, in the State Departmetlt's Country Reports on
Human Rights Practices, the United States condemns tonure and other coercive interrogation
techniques employed by other countries. In discussing Indonesia.,. for e;umple, the reports list

as

"[p],sychological torture" conduct that involves "food and sli"-ep deprivation," but give no specific
information as to what these techniques involve. In discussing Egypt, the reports list, as
"methods oftorture," "stripping and blindfolding victims; suspending victims from a ceiling or
doorframe wit~ feet just touching the floor; (and] beating victims [with various objects]." See
also, e.g., Iran (classifying sleep deprivation Is either torture or severe pruoner abuso); Syria
(discussing sleep deprivation as either torture or "ill.treatment").

I

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These reports, however, do not pro.vide controlling evidence that the CIA interrogation
program "shocks the contemporary. conscience." As an initial malter, the State Department ~
infonned us tbat these reports are not meant to be legal condllSioll$; but instead they are pllbli~
diplomatic statements designed to encourage foreig,n governments to alter their plXicies in a i
manner that would serve United States intertits. In any event, lhe condemned techniques are i
often pan ofa coune ofconduct !hilt involves other, more .severe techniques, and appears to ~

~

rml

M We do not mean to suuesr thu e:vtl)' milit¥y oOku \tho
m!be COOIpOSi.tioa of me
ArmyFleJdM_I was awuc of tb£ CIA ptog;r:am. lbe lO'Iior '[)qmtmem ofDdcnse crlficial5 Wbo zpprove4 ~
manual, "oweYO', bd tbepropet ck3.'DCC:$&:Jd mn nrue oflheOA proggm'saisl:ence..
:

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undertaken in ways thai bear no resemblance to the CIA interrogation program. The
the'condemned conduct as described by the State Depattmeot, for ex~le, have 00 relauonshlPI
with the CIA's efforts to prevent catastrophic terrorist attacks. In Ltben.1. and RwaDda, these
tactics were used to target critics of the government; Indonesian security ferGeS used their
I
teduUques to obtain confessions for crimin~ law enforcement, to punish. and to elttort ~ooey;
Egypt Nemploy[ed] torture to extnd: information, coerce opposition figures to cease tneu
,
•
political activities,. and to deter others 6tKn similu activities."

I

The commitment ofthe United States to oondemaing tonure, the indiscriminate usc of
force, physical retaliation against political oppouc~ and coercion of confessions in orcfuwycriminal c::vies is J:OI inconsistent with the CIA's proposed interrogation practices. The CIA's
screening procedures seek to ensure that eohanted tedmiques are wed in the ~ few
iotmogations ofterrorists who are believed to possess intelligence ofaitica.l value to the Unit
States. The CIA will use enhanced techniques only to 1M extent needed to obtain this
exc.eptionally important infonnation and will take care to avokl inflicting severe pain or suffering
or any lasting or unnecessary herm. The CIA program is duigned to subject detainees to 00 I
more dUre$! than u justified by the Government's pmmount intem;t io protecting tbe Uaited
States and its intc:rest5 from further terrorist attacb. In these essential respects, it fundamel"Jully,
differs from the conduct condemned in the SuteDepzrnneDt reports. .

1
I

Duirions by Foreign Tribunals. Two foreign tribunals have addressed interrogation
practices that arguably resemble some at issue bere. In aile orOie cuea, the question in fact was
whether certain inteO"ogaboo praeticeJ met II standard that is Iiaguislically simJlar to the "auel,.~
inhuman, or degrading treatment" standard in Article 16 ofthe CAT. These tribunals, of COUTS
did not apply a standard with any direct rdati01'l.!hip to that ofibe DT ~ for the DTA specificall
defiocs "cruel, inhuman, or degrading treatment or punishment" by reference to the established i
standards ofUnited States law. The Senate's reservation to Article 16, incorporated into the
DT~ was specifically designed to adopt a discunable standard based on the United SUles
j
~onstitution, in marked contrast to Article 16', treaty standard, which could have been subject ~o
the decisions of foreign governments or international tribunals applying otherwise open-ended
tenns such as "cruel, inhuman or degrading treaDnenl or punishment." The essence or the
Senate's reservation is that Article 16'5 standard sfmp/iciler-as opposed to the meaning given it
by the Senate reservation-is not controlling under United States law.
1

I

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The threshold question, therefore, is whether these uses ha.ve any relevan«llo the
interpretation of the Fiftb Amendment The Supreme Coun has not looked to foreign or
international court decisions in determining whether conduct shoeks the eooscience within the
meaning of the Fifth Amendment. More broadly, using foreign law 10 interpret the United Stat~s
Conslitution remains a subject of intense debate. &e ROfMr v. Simmons, 543 U.S. 551. 578
I
(2005); id at 622·2g (Scalia, J.• dissenting); AIJrin.s v. V"vginia, 536 U.S. 304, 316 n.21 (2002);
id at 322 (Rehnquist. C.l., dissenting). When interpreting the ConstitUtion, we believe that we
must look first: and foremost to United States rources. See, e.g., Address olthe Attorney Generrl
at the University of Chicago Law School (Nov. 9, 2(05) ("Those who seek 10 enshrine foreign
law in our Constitution through the courts therefore beat a heavy burden.''). This foc;us is
particularly important here because the S~e's reservation to Article [6 was designed to
.

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39

TO
provide a discemable and familiar domestic legal 5tandard that would be insulated from the
impressions offoreigo tribunals or governments on the meaning: of Article 16'5 vague language.
We

~eeognjZC. however, the possibility that members of a court might look to foreign

I"

d~isions in the Fifth Amendment context, given the increasing incidence of such legal reasonin~

in decisions ofthe Supreme Court. Some judges might regard the decisiops of foreign or
1
internationaJ courts, under arguably analogous circumstances, to provide evidence of
contemporary standuds under the Fifth Amendment. While we do llot endorse this practice, wej
find il nonetheless appropriate to consider whether the two decisions in qUe5tj~n shed any light [
upon whether the interrogation techniques al issue here would shock the conscIence.

I

We ttloclude that the relevant decisions of foreign and international tribunals are
appropriately distinguished on their face from the legal issue presented by the erA's proposed
tecbniques. In Jrelal1dv. United Kingdom, 2 EHRR 25 (1980), the European COllrt.ofHuman I·
IUghts ("ECl-pt") addressed five methods used by the United Kingdom to interrogate members
of the Irish Republican Army: requiring detainees to remain for several nours "spreadeagled I
against the waJ~ with their fingers put high above the head against th: wall, the legs spread apart
and the feet ba~k, causing ~e~ to stand .on their toes with the weight o~the body. mainly o~ thel
fingers"; covenng the detamee shead wltb a dark hood throughout the Interrogation; exposmg
the detainee 10 a continuous loud and bissiog noise for a prolonged period; depriving Ibe detainee
I
of sleep; and "sllbjeeting the detainee[} 10 a rtduetd diet during their stay" at the detention
I
facility. /d at 1196. The ECHR did not indicate the length ofthe periods of sleep depriv;l.tion or
the extent to whi~h the deta.inee'sdiets w«e modified. Id at ~ 104. The ECHR. held that, "in
combinalion," these techniques were "inhuman and degrading treatment," in part bec2.use they I
"arpus[ed in the detainees] feelings of fear, anguish. and inferiority capable ofhumili2ting and I
debasing them and possibly breaking their physical or moral resistance." Jd at ~ 167.
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The CIA does not propose to use all of the leehrJques that the ECHR addressed. With
regard to the two techniques potentially in wmmoIt-e:x1ended sleep depdvation and dietary ,
manipulation"';""the ECHR did Dot expressly consider or make any findings as to any Safeguards
that accompanied the United Kingdom's interrogation te<;hniques. A United Kingdom report,
released separately from the ECHR Iitigalion, indicated that British officials in 1972 had
recomme~ded additional safeguards for the sleep deprivation techniques such as the presence of
and monitoring by a physician similar to procedures that are now part of the CIA program.
infra at 72-75. The ECHR decision, however, reviewed those interrogation teclm.iqllCS before
such recom~endations were implemented, and llierefore, there is some evidence that the
techniques considered by the ECHR were not accompanied by procedures and safeguan:is similar
to those tbat will be applied in the CIA program.
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Seel

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i~portantly,

More
the ECHR made no inquiry into whether any governmentaJ interest
might have reasonably justified the conduct al issue in that case-which is the legal standard that
the DrA requires in evaluating the CTA's proposed inte,iTogation techniques. The lack of StIch An
inquiry reflects the fa.ct rhat the ECHR's definition of "inhuman and degrading trutment" bearl
little resemblance to [ne U.S. constitutional principles incorporated under tbe DTA. The ECHR
has demonstrated this gulf not only in the Ireland case itself, but also in other ECHR decisions
that revc:a.l an elCpansive underst<ulding of the con.Gq)t thzt goes far beyond how courts in the

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United States have interpreted our Constitution. For example, the ECHR has held that the 50called "death row eff'ect"--the years of delily betWeen the imposition ora 4eath sentence and its
execution ari~ing from thepetitionet's pursuit ofhis judicial remedies-itself constitutes
"inhuman or degrading treaLment or punishmmt." See Soering v. United Stmes. 11 Eur. 0. RR!.
439 (1989): The Supreme Court, by contrast, has routinely refused 10 entertain such claims. and
lower federal couns have not found them to have merit. Su, e.g., I...acky v. Teras. 514 U.S.
"104$ (1995) (denying certiorari to review a decision rejecting such a claim o~er a dissent by
Justice Stevens); Alfen v. Omosfci, 435 F.3d 946, 959 (9th Cif. 2006) (The petitioner "cannot
credibly argue that the evolving rt2.ndards. ofdecency that mark the progress of a maturing
society, as evidenced by the decisions of state and federaJ courts, are moving towurl recogniti01'
ofthe validity of lAckey claims."), The ECHR also has read the European Convention to granl
that court authority to scrutinize prison conditions. For example, the EOIR has concluded tha.
is inhuman &n.d degrading to confine two persons to one cell with only one exposed toilet
between them. Melnik v. Ukraine. ECHR 122286/01 (2006). Amid such expansive decisions, .
the EeHR might well regard the proposed enhanced interrogation techniques, or even the
existence oithe CIA internlgation program itself, to constitute "cruel; inhuman, or degrading"
treatment under the standards incorporated in the European Convention. Yet we do nol reSatd
the ECHR's interpretation of its own European Convention human rights standards to constirut,
persuasive evidence as to whether the CIA techniques in question here would vi9late the Fifth [
Amendmeot, ?lId thus the DTA:

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Tho Supreme Court of Israel's review of interrogation techniques in Public Commfrtee
Against Tor/IJre v. lsrae;{. He] 5100/94 (1999), similarly turned upon foreign legaJ issues not .
rolevant here. There. the Israeli court held that Israel's General Security Service ("GSS") was I
not legally authorized to employ certain interrogation methods with persons suspected oftelTOrlst
activity-including shaking tbe torso ofthe detainee. depriving tbe detainee of sleep, and forcid..g
the detainee to remain in a variety of stress positioll$. The court reached that conclusion,.
however, because it found that the GSS only had the authority to engage in interrogations
I
specifically authorized by Im:eli domestic statute and that, under the then "existing state oflaw:'
id at 36, the ass was "subject to the same restrictions applicable" to "the ordinary police
investigator," id at 29. See Id ("There is no statute that grants GSS inveruguolJ special
interrogating powers that are different or more significant !hart those granted tile police
investigator."). Underthat law, the ass was permitted only to '" examine O1'ally any persons
supposed to be ~~uainted with the facts and circumstan~ ofany offense'" a.nd to reduce theil'
responses to wnhng, and thus the statute did not permit the "physical meaJ1s" cfimerrogaticn
undertaken by the GSS. Id at 19 (citing the Israeli Criminal Procedure Stitute Art. 2(1)
I
(en:phasis added). At t~e same time. the hraeli court specifically held open whether the .
legislature could authorue such techniques by statute, id at 35.]6, and determined that it was nol
appropriate in that case to consider special interrogation methods that might be authorized wheh
necessary to save humaD life, id at 32?1

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itwr

J1Thc: Jsn,eli coon reoovUwi lhat Ismd ltad. undertaken i
oOliplion to rdr3ill from cruel, iMum;m.
Qr degrading ~tmern.Publlc Cornmfttn AgalllJl TortJut, Hel 5100194 a: n, but the ccurt$JlCCifically gmundtd
its holdiDgnot in tis intelptttltfon of any treUy, tNt in lstar;li stalulllty uw. Ind.eed, the courtrecognized that the
legisbturt cOllld"grantO GSS inverogalOTi the aulhari(y to apply physical force dnring the illterroga'"JOll of ~
mspeded of inyolvt.menllD bortile tenonst aet:iYities," id al 35, provided only ttw. the law "bdil{sllhe values o~

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As we have explained above in finding particular U.S. Supreme Court decisions to be
distinguishable, it is not t~ law in the United States thai interrogations performed by intelligence,'
officers for tbe putpOsc proposed by the CIA are subject to tbe ume rolC$ as "rtguJar police
interrogation(s]." fd 2129. Thus, the Israeli coUrt addressed a fiJDdamentzlly different question
Lhat shods little iight OIl the inquiry before us. Where the Isneli GSS Il~ aay special sU.Nto~.
authority with respect to interrogations, the CIA is expressly IUthoriz.ed by statlne to "ooUee::
intelligence through lJ.unw sources and any other appropriate means" and is expressly
distinguished from domesric law enforcelIlenl authorities. SOU.S.c. ~ 0403-4a(dXl). Indec9.
beyond the CIA's general statutory alIthority to coUect human intelligena; the MiHtuy
Commissions Act itselfwas enaeteri. specifically to peuoit the CIA interrogation pro8JZDl to go
forward. See infra at 4344. Thlls, while tbe 1sradi court rested its 1999 decision on the
I
legislature'" failure to gnnl the GSS mything otller thzo ordinary police authority, we face 2..
CIA interrogation prognm clwly authorized a::ld justified by legislative wthority sep2l'2te from
ud beyond those 2pplicable [0 ordinary law enforcement iDvestigations. ADd the Israeli
Supreme Court itself 5Ubsequentty ree.o8J1iwl the profound diffet"ences bctweea the legal
,
stan~ds thai ~~m domestic law en~orcement and those that govun mocd conflict wi~
.I
terronst orgamzalloDS. Compau Publrc Commltttt! Agrzinst T<Jrtur~ v. Israel (1999) (stabng 001
"there is no fOOUl fot balancing" under Israeli domestic law), With Public Commintt Against
T<JrtUTr. in J.rrar.l II. The Government ofIsrael, RCJ 769102 (Dec. II, 200S), 11 22 (holding thai
under the law of armed contlia zpplica.blc to a conflict ~Dst a tcrrorist organization, "hulmIl
rights are protected ... but not to their fun scopc· and emphasizing that such rights must be
"balance{dJ" agaiost "military needs").

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Survival. Eyasion. ResiSlana, and Esa:JP¥ ("SERE'1 Tr.ailling. As we noted at the
outset, variations of each of the proposed techniques have been used before by the United Stttes,
providing some evidence thit they are, in some ciIcumstances. coasistem with cxerotive
tradition and prtc:tice. Each ofthe CIA's enhmced interrogation techniques has b«n adapted
. from military SERE training, where techniqu¢s very mlJch lik.e these have long becn used on 0 r
.own troops. Individuals undergoing S~ training are obviously in a very different ·5ituation
trom detainees lJndergoing interrogation; SERE tr'ainees know that the treatment they are
experiencing is part of a training program, that it will last only a shon rime, and that they will npt
be sigDifieatltly harmed by the training.
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We do DOt wish [0 underslat~the imponanee of these differences, ortbe gravity of the
psychological tnuma thal may accompany the reialive uncertainly faced by the CIA's detainees.
On the other band, the interiog.w.on prQgram we consider here relies on techniques that have
been deemed safe enough to usc in the trlining ofourown troops. We can draw at least one
~nclusio? from the existence of SERE training-use ofthe techn.iquCJ involved in th:: CIA's
tnterrogatlOn program (or at least the similu lechniqlJCS from which these have been adapted)
cannot be considered to be calegoricafJy inconsistent with "tradifional exmJrive behavior" an
"contemporary practice" regardless ofcontext.

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Commissi~l1S

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Enactment the Military
Act. Finally, in considering "contemporary
practice" and the "standards of blame generaUy !lPplied to them," we consider the context ofth~
recent debate over the Military Commissions Act, including the views of IcgislatoT5 who have !
treen ~liefed on the CIA program. ~ PUb[ir:Commjt~ee Against Tortu~~, Her SlOO/94.lbe • I,
Israeli 'Supreme Court observed that 10 a democracy, It. w~ for th~ polltlcal br~e~, and no. IhF
courts, to strike the appropriate balance between sccunty Imperatives and humarutanan
standards, and it invited the Israeli legislature to enact a stahlte specifically delimiting the
.
security service's authority ''to ap!l[Y physical force during the interrogation of suspects
suspected of involvement in hostile tworlsa activities." Jd a135. In the United States, Congr9s
in fact enacted such a statute, responding to Ihc President's invitAtion by passing the Military I
Commissions Act.to allow the CIA intelTO~ti~n .p.rogram to go forward: W~e the is?lated
statements of partIcular legislators arc not dispositive as to whether specific mterrogatlon
techniques would shock the consci.ence under the DTA, we properly may consider the Military
Commissio'ns Act, taken as a whole, in <;pIning to an understanding of "contemporary practice,
and ofthe Standards of blame e:enerally applied to them," and what Americans, through their
representatives in Congress, g~erallY deem to be acceptable conduct by the executive officials
charged with ensuring the -national security. Lewis, 523 U.S. a1B47 n.8; cf Roper, 543 U.S. 55,
(2005) (finding the passage and repeal of state laws to be relevant to contemporary standards
under the Eighth Arnendrne.nt); Atkins, 536 U.S. 304 (same).

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The President inaugurated the political debate over what would bee.ome the Military
Comntissions Act in his speech on September 6, 2006, wherein he announced to the American
people the e:dstence oftbe CIA program, the nature ofthe a.l Qaeda detainees who had been
interrogated. and the need for new legisla.tion to allow the progra!l1 to "go fOlWard" in the wake:
of HamdarJ. A$ the President later explained: "When I proposed this legislation, J explained tHat
I would have one test for the bill Congress prOduced: Will it allow the CIA program to
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continue? This bill meets that test." Remarks of the Pre.sident Upon Signing the Military
Commission Act of2006, East Room, White House (Oct. 17, 2006). Senators crucial to its
I
passage agreed that the statute m/Jsl be structured to penni~ the CIA's program to continue. Sed
152 Congo Rec.. SI0354-02; S10393 (Sept. 28, 2006) (statement of Sen, GTaham) ("Should we
have a CIA program classified in nature that woUld allow techniques not in the Army Field
Manual to get good intelligence from high value targets? The znswer from my point ofview is
yes, we should."); id. at S 10414 (statement ofSe~. McCain) ("[MJy colleagues, bave no
I
doubt-this legislation will allow the CIA to continue interrogating prisoners within the
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boundaries established in the bill."). Represeotative Duncan Hunter, the leading sponsor ofthti
bill in the House, similaily described the legislation as "Ieavfing] the decisions as to the methods
of interrogation 10 the President and to the intelligence professionals at the CIA, so that they m~y
carry forward this vital program that, as the President explained, serves to galherthe critical
intelligence necessary to protect the country from another catastrophic terrorist attack." 152 I
Congo Ree, H7938 (Sept. 29, 2006). The Act clarified the War Crimes Act and provided a
I
comprehensive framework for interpreting the Geneva Conventions so thai the CIA program
might go rorward after Hamdan.

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Act,

The Military Commissions
to be sure. did not prohibit or license specific
interrogation techniques. As discussed sbove, Members ofCongress on both sides oflhe debate
expressed widely different views as to the specific interrogation techniques thu might or might

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not be peanitted under the.statule. See supra at n.13. Nonetheless. you have informed us that
prior to passage of the 1iilitary Comminions Aa., several Members ofCongr~s. including the
full memberships of the House and Senate lnte1ligence Committees and Senator McCain, \\ottc I
briefed by Genel'll Michad Ha}"den, Director oflhe CIA. on the six techniques that we discuss
herein and that, General Hay.den explained, would likely be necessary to the erA detention and
interrogation program should the legislation be enacted. In tbose classified ~d private
conversations, none oftbe M~btrS expressed the view that the CIA interrogati.on program ,
should be Slopped, or that the techniques aJ issue were inappropriate. Many of those Members I
thereafter were critical in ensuring Ihe passage ofthe legislation: making clear through their
public statements and thiough their votes that they believed that a CIA program along the lines
General Hayden described could and should continue.

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Beyond those wjtb specific Icnowledgc ofthe c1usified details of the program, all OCthC
M::mbers who. engaged in the legislative debate were aware ofmedia nports-some accurate,
some not-describing the CIA i~errogl1ion program. Those media reports suggested that tbe
United S~es had used techniques iocluding. tnd in some cases exceeding, the coerciveness of
. the six teclmiques proposed here. The PreW1ebt's request that Congress permit the CIA progrtl{l1
to "go forward," and the c:arefuUy negotith:d provisions oftbc bill, clearly presented Congress
with the question whether the United Staies should opente 2. classified intetmgation progarn,
limited to high value detainees, employing techniques thtt exceeded those employed by ordinaIiy
law enforcement officers and the United Stales military, but that remained lawful under the
. torture sta111te and the War Crimes Act. Thea ea.tl be little doubt thJ~ the subsequent passzge of
the mtute reflected an endorsement byooth the President and Congress ofthe political bnoche':s'
shared view tltat the CIA interrogation program was. consistcnt with contemporary practice, and
therefore did not shock the conscience. We do not regard this political endorsement of the cIA!
interrogation progrnn to be conclusive on tbe constitution!l question, but we do find that. the
passage of this legish!.~on provides a relevant me~e ofcontemporary standards.

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The· subslanCive due p~ocess .enalysit, U always, muSt remain highly sensitive to cont .
We do not regard anyone of the contexts discussed h~e, on its own, to answer the critice.1
question: What interrogation techniques are perrnis,sible for use by trained professionals of the
CIA i~ seekinl;J to protect the Nation from foreign terrorists who operate through a diffuse and
stt:et UlternatlOnal network of cells dedicated to launching catutrophic terrorist attacks on the
Uruted S~tes and its citiz,ens .and allie,S? Nonetheless, we read the constitutional tndition
refle~ed m the DrA to penmt the Untted States to employ a narrowly drawn, extensively
momtored., and carefully sa.feguarded interrogation prognrn for high value terrorists that uses
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enhanced techniques that do not ionia significant: or lasting physical or mental harm.

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D.

. Applying L"lese 'egal.sta.,duds to the six proposed techniqucs used individmJly ~ in
·comblDatloo, we conclude that these techniques ase ronsis:ent wIth the DTA

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Dietary Manipulation. The CIA limits the use of dietary manipulation to ensure th2.t
detainees subject to it suffer no adverse health effects. The CIA's ru!es ensure that the detcinee I
receives 1000 keel per day as an absolute minimum, z. level (hat is equivalent to a wide range of
commercial weight Joss programs. Medical personnel closely monitor the detainee during the
application ofthis technique, and the technique is terminated at f~e prompting ()f medical
personnel or if the detainee loses more than ten percent ofhis body weight While the diet may
be unappealing, it exposes the detainee to no appreciable risk of physical harm. We understU1d
from the CIA that tbis technique h.u proveD effective, especially with detainees who have a
particular appreciation for food. In light ofthese safeguards and the technique's effectiveness.
the CIA's use oftros technique does not violate the DT A.

Coi-uclive T~chniquts. Each (If the four proposed "corrective techniques" iovolves SOJ'
physical contact between the inte:rrogator and the detainee. These corrCctive techniques are of
tWQ types. First, there are two "holds." With the facial hold, the interrogtlOr places his palms n
either side ofthe dewoee's face in a manner careful to avoid any contad with eyes. With the
attention grasp, the interrogator grasps the detainee by the collar and draw~ him 10 the
interrogator in order to regain the detainee's attention, white using a collar or towel around the
back ofthe detainee's neck to avoid whiplash. These two techniques inflict no appreciable
on the detainee and are directed. wholly at refucusing the detainee on the interrogation and
frustrating a detainee's efforts to ignore the interrogation. Thus, the described techni'!ues do n I
violate the requirements of substantive due process.
.

Pail

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Seecnd, the CIA proposes to use two "slaps." In the abdominal slap, the interrogztor may
begin with his hands no farther than 18 inches away from thedetunee's abdomen and may striie
the detainee in an area of comparatively little sensitivity betwun the waist and the sternum. ~
The facial slap involves a trained interrogator's striking the detainee's cheek with his hand. L· e
the holds, tlle slaps ue primarily psychological techniques to make the detainee uncomfortable
they are not intended, and may not be used, to cxtrnct information from detainees by force or
physical coercion.
There is no question, however, that the slaps may momentarily inflict some pain. But
careful safeguuds ensure that no significant pain would occur. WIth the facial slap, the

interrogator must not wear any rings, and must strike the detainee in the area berween .thetip 0
the chin and the corresponding earlobe to avoid a'ny contact with sensitive areas. The
inten'ogator may not use a fist, but instead must use an open hand and strike the detainee only I
with his open finget'S, not with his palm. With the abdominal slap, the interrogator also may nOt
use a fist, may not wear jewelry, and may strike only betwun the sternum and the: navel. The
interrogator is required to maintain a short distance between himself and the detainee to pr-event
a blow of significant force. Uocioubtedly, a single application ofeither of these techniques
presents a question different from their repeated use. We understand, however, that interrogators
will not apply these slaps with an intensity, or a frequency, that will cause significant physiC2.11
pain.or injUly. Our conclusion that these techniques do no.t shock the conscience does not m~
that mterrogators may pur:teh, beat, or otherwise physically abuse detainees in an effort to exU-I~t
information. To the contrary, the result that we rea<;h here is expressly limited to the use off
more limited slap teclmiques-that have carefully been designed to affect detainees

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psychologically, without harming tnem physically. Slaps or other forms of physical conrad
go beyond those desCribed may raise different and serious question, under the DTA.

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that!

MOnito~ng

by medical personnel is also important. Medical personnel observe the
administration ofany slap, and should a detainee suffer significant or unexpected pain or hz.rm,

the technique would be discontinued. In this context, the very limited risk- ofharm associated
with this technique does not shock"the conscience.

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Erfend£d SleepDeprivatiOl1. Of the techniques addressed in this memorandum, extende.
sleep deprivation again,. as under the War Crimes Act, requires the most extended analysis.
. NOlletheless, after reviewing medicallitmture, the observations of CIA medical staff in the
application ofthe technique, and the detailed. procedures and safeguards t!tat CIA interrogators
and medical staff must follow in applying the technique and monitoring its application, we
conclude tbat the CIA's proposed use ofmended sleep deprivation would not impose haffil
unjustifiable by a governmental interest and thus would not shock the conscience_
Tbe.~cope of this technique is limiterl: The detainee would be subjected to no more than
96 h0t:!rs of continuous sleep deprivation, absent specific additional approval, including legal
approval frnm this Office and approval from the Direaor of the CIA; the detainee would ·be
allowed an opportunity for eight hours ofunintenupted steep following the applicatioo of the
technique; and he would be subjected to 00 mOre than a total of 180 hours of the sleep
deprivation technique in one 30·day period. Notably, humans have been kept continuously .
awake in excess of250 hours in medical studies. There are medical studies suggesting that sleep
deprivation has few measurable physlcal effects. Su, e.g., Why We Sleep: The Functions of
. Sleep in Humans and Other Mammals 23-24 (1998). To be sure, the relevance of these medica~
studies is limited. These studies have been conducted under circumstances very dissimilar to 'I
those u issue here. Medical subjects are in a relaxed MvirOlUllent and at relative liberty to do
whatever keeps their interest. The CIA detainees, by contrast, are undoubtedly under duress, d
their freedom of movemenl and activities are extremely limited. CIA medical personnel,
however, have confirmed that these limited physical effects ue not significantly aggravated in
the unique environment of a: ~IA interrogation.
.

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As described above, th: CIA's method ofkeeping detainees awake--continuous
cause edema, or swelling in the lower legs and feet. Maintaining the standing
pO.sltlon for as many as four days would be extremely unpleasant, and under some cireumstanClis.
painful, although edema and ffil»Cle fatigue subside quickly when the detainee is pennitted to ,.,
31
Qr to recJine.
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JJ W.e underst:md lhatduring Ihe IISC oflhepropose.d exl.::1lded sleep dcpri~tion technique, tiledetainee/
would aficn wear a disposable uadapnneal deUgned for ad-.1lts suffering fTOm incontinence. The und~gannctli
would be. used to avoid the need ~guWly to umbackle lile ~ Cor use of the toiler, and WQuld be ~gularly
cllccked to zvald skin irritation or unn~ disoomfon.. The prtlpo;al uoSe oft'"tc undcrgmncnt Is justified not!
j~ Cor saAitaIy reasons, bU!a1so to pro\~ both Ihcdcttincc atld IJte inlorogaton from unnecessary:!Cd P(Ile."\tiaUy
dangerous pfu-ncal contact. We alll) und:tmnd tIla! the dealnee would wear lddirionaJ ~lllthiog, sumas a pair dc
shorts, ovenhe undergarment during applicalioD of this t«bD.ique.
.

--

At the same time, howe-"ei, the CIA employs many safeguards to ensure that the.deW.neel
does not tndure signifiCUll: pain or suffering. Tbc detainee is nol pcrnlitted to support his WClght
by han~t1.g from his wrists md thereby ris~ injury to hims:lf. Tbi,s precauti?n to:sures that
the deta1J'.ee's legs are capa1Jle offu.nd:iomng norma1ly at aU tuneS-lftne detWlce ca.noot
support his own weight, administration oftbe technique ends. In additioll" the OA's medical
personnd monitor the deta.intt throughout the period of extended sleep deprivation. They wiU
bait use efthe technique should they diagnose the detainee as experiencing hallucinltions, other
abnornW psychological reaaions. or clinicaUy significw. diminishmt.nt in cognitive
functioning. Medical personnel also will moJ1itor lilt detainee's vital signs to ensure that tbey
stay within oormal parzmeters. If medical petsonnef ddeonine that the detainee develops

I

clinically significant edema Ot is expet1trlcing significant physical ~n for any reaSOJli the
technique either is discontinued-or other rnetOOds ofkeeping the detai!;1u awake are used: Thes I
accommodations arc significant, bcc.au.se they highlight that the CIA uses atended steep
.
deprivation merely to weaken ll. detainee's psychological resistance to inturogation by keeping
him awake for longer than nonna.! periods oftimc.
Combimd F/f~c.ts. We do not emuatc these tocbniques in isolation. To determine
whether I. coune ofintesrogation "shocks the conscience," it is important to evaluate the effect
of the potential «Imbined use ofthe:setedmiql,les. &r, Lg., Williams v. UnilalSlatu, 341 U.S
97, 10J (1951) (evaluating a thrce-day course ofintcrrogation tecbniques to deu:nnine whether a
constitutional violation occumd). Previously, this Office hu been putiaJJarly concerned z.boul
techniques that may have a nurtually reinforcing effect such that the combination oftecluiiques ,
might inaease the effect that each would impose on the detaincc. Combined Cfs~ el 9-1).
Specifi~ly, medical ~dies provide some evidence thai sleep deprivation may reduce tolerance
to some forms of pain in ,rome wbjecls. &e, e.g., B. Kundermann et al., Sleep Deprtvation
Affects Thermal Pain Thresholds but not Somatosensory Thresholds in Htallhy Vo/lmteers, 66
Psychosomatic MOd. 9]2 (2004) (finding a significant dwease in heat pain thresholds and some
decrease in cold pain thresholds after one night wilhout sleep); S. Hakk:i Onen el aJ., The £/feed
of Torof Sleep Deprivation, Stlutiw Slup'InterfTJprion and Sleep Recovery on Pain Toleram:e
Thr~sholds in Healthy Subjects, 10 I. Sletp Rucarch ]5, 41 (2001) (finding a statistic:ally
significant drop of 8·9% in tolerance thresholds for mcchlnical or pressure paio dter 40 hours)~
rd. at 35-36 (disa.lssing other studies). Moreover, subjects in these medical ~dies have been
observed to increase their consumption offood during a period of sleep deprivation. See Why
We Sleep at 38. A separate issue thdeforecould arise as the sleep deprivation technique may be
used during a period of dietary manipulation.
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Nonetheless, we are s3tisfied that there are safeguards in place to protect against any
significant enhancement ofthc effccts ofthe techniques at issue when used ill combination
sleep deprivation. Detainees subject. to dietary manipulation are closely monitored, and any
statistically significant weight loss would result in cessation o~ at a minimum, the dietary
manipulation teclllnque. With regard to pain sensitivity, none ofthe tec:h.-uqu~ at iuuc here
involves such substantial physical contact, OJ would be used with such frequency, that sleep
deprivation would aggravate the pain associated with tbese techniques to a level that shoclcs the
conscience. More generalIy, we have been assured by the erA that they will adjust and monitJr
the frequency and intensity of the use ofother techniques during a period of .sleep dq>rivation.
Combined Us, at 16.

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. In evaluatinS thC$c techniques, we also recognize the emotional stress lhat th~ .a1a:Y
impose upon tbe detainee. While Vr'e know the careful procedures, safeguards, and hillitabons
under lhc CIA's interrogation plan. the detainee would not. In the course ofundergoing these
techniques, the detainee might fear that more severe treatment might fonow, or tbn, for cxzmplc,
the sleep deprivation technique may be continued indefinitely (even though, pursuant to CIA
procedures., the technique would end within 96 hours). To the extent such fear and unceruinty

mz.yocasr. however, they would bear a close relationship to the important go~ent purpose
of obtaining information crucial to preventing a future terrorist aruck.. Accordmg to the CIA, th
beliefof aI Qatd11eaders tb2l they will nOf be harshly rruted by the United St2k:S is the prim&r)'
obstacle to etIc;ounging them to disclose aitical intelligence. Cruting uncertainty over whether
that assumption holds-while at the szme time avoiding the infliction (or even the thre2.tentd
infliction, su supm at n.21) of any significant. harm-is. necessary put oftne effectiveness of
these techniques and lbus in this contcxl does not iJOOIlrrt to the arbitraly or egregious COllduct
that the Due'Proce:ss Clause would forbid. When used in combination and with the safeguuds
described above, the techniques at issue here woold nol impose hann that constitutes "aue~
inhuma.n, or degrading treatrnmt or punishment" .within the meaning of the DTA

IV.
The final issue you have asked us to ilddreu is whet.het the CIA's use ofllle proposed
interrogation lechniques would be consistent with United Stales trW)' obligations under
Common Article 3 of the Geneva Conventions, 10 the extent those obligations are nol
encompassed by tl'tc War Crimes Act.'~ As we e:cplain below, Common Article)" does not
disable the United States from employing the CIA's proposed interrogation techniques.

.

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we WldttSWldtlw. the CIA lolOllbfor thepro~ to comp.ly with Co:nmon Article J, IDd OllnnalysL~ below is
premised on that policy dttemlination.

In addition, we note that the MCA pro"ides aootbu meoolwdnn whcn:by the PrcsIdetl1 eoulcl. ensure that c
CIA inlerrogition pro,gr:am fully eomplJcs\\il1l Common Artlcle 34y rtaSSCrtinS his 'fIR."Hamdlm concltcicm lh.al.
Common AnIcIe] does not apply to the anncd t;Qlltlieiapinst II Qaeda. ScctioJl ~(a)(3) of the MeA proyi~s thd
Prui~t with the authoril)'to ~interpm lhe meaning andappllctJl/an of the OctleYJ COllventions" thI'llu&h
I
executive orders that ·shall be authoritative ill the wne nu.nnCf u otberadmininnU\'e re~atians" (emphasis
added). By specifieaUy invoking admInislTatNe liw,lhe MCA provides the Prcsid:nt with at leu. the $1ntC
authority 10 inlttpTcl the trealy a~ an 2drninistnlive qmcy would bJ.vc 10 Interprela l'ederal stllll.le. The suprem'l'
Coun ~s held.that an 3dmi"listtative .2gcK;y', rcasorgbleitllUp:'CU1ion ofa fed~nl SUMe is to be ~pven
.
controllin, WClght" ~ ifacowt has held ill a prioreasc \hat MOtltc:r ilucrprcWlon \Vas hlter thin tile o~
conWiJedin tb.e agenq regulation. Sire Nat'J Cable of TrltCOIrlJft. Au'" Y. BrDlld X f"ttnrtt $tno.,.14$ U.S. 961,
980-9S~ (200.51. k the Courtt.'tplained, the. "prior judicW construc(jon of a su:tu1e uumps;Lll agency coJ\$UUCtiOll
othervruc entitled to OrolTOl'l ~renoe DIlly lfrf.e pr1Dr <:ourt decisiOn holds UW Its co:mn:aJoo (0110....." fro:n ihd
un;unbi~Uli lermsofd,,:. SWlItt;md thu5leavcs no room roc~ discretion" Jd. aIm. Humtk" did not Itoili
llw. Common Article} was lDlaIitbi!Uous. Rather,1be Court lick! OQly Wlibe but intcrpn:tltion 01 CoilUllllll
Artil;:le } was tha.t il ap;:Iliallo iii)' conflict that was I\lII a coQflia. bctweu stalCS. The Court did nat tddtess tile ua
I!w Ihe Pr~dtN: had ceacbed tbcopposite corv:!Ilsion iJI his Fdlnury " 200111lda, mel ~ th.u view 10 the

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A.
Common Article 3 bas been described as a "ConvcDtion in miniature." International
Committee ofthe Red Cross, Jean Pictet, gen. ed., ill CDmmentaries on the Geneva DJ1TVentions
at 34 (1960). It was intended to establish a set of minimum standards applicable to the treatment
of an detainees held in non-international armed conflicts.
1.

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--

Our interpretation must begin "with the text oftha lrtaly and the context in which the
written 'words are used." Societe NationaTe IndustrieJle Airopo:stiaTe v. United Sta1e~ District
Caurt, 482 U.S. 522, 534 (1987); Eastern Airltnu,lnc. .... Floyd, 499 U.S. 530, 534 (1991); see
also Vienna. Convention on the Law ofTreati~, May 23, J969, q44 U.N.T.S. Article 31(1) ("Ail
treaty shall be interpreted in good faith in acroIdance with the ordinary meaning to be glVen to
the tenns of the treaty in their Gontext and in tight orits object and ptlfJX)S8."); see also Ian
Brownlie, Pr{nclples ojPublic International Law 629 (1990) ("The language of the treaty must
be interpreted in light of the rules ofgeneral international law in force at the time of its
conclusion, and also in light ofthewotemporaoeoos meaning oftheterms,")?~ The foundation
of Common Article 3 is its overarcbiog requirement that detainees "shall in all circumstances b
treated hUlt)anely, without
adverse distinction based on race, color, religion or faith, sex,
birth or wealth, or any other similar criteria." This requirement of humane trettmcnt is
supplemented and focused by the. enumeration offour more specific categories of acts that "are
and shall remain probibited at any time and in any place whatsoever." Those forbidden acts are

any

(8) Violence to life and ·person. in particular murder of aU kinds, mutilation, cruel
treatment and torture;
(b) Taking of hostages; .
Kerrono;lus"litig:uingposition oflhe Solicitor General. Su 126 S. Ct. 312795; IJ. Jl284S046 (TnollU$, 1.,
dissenting) (m:ogni2inglhal the majorily did IIOla~ whdher the treaty '\'AS an'Ibigoous Of deference
appropriate).
B~

\I.'M

the MCA expressly allows th: Pn:sldmt lei IntCrpld. the"applic:;¢oil~ OfComnJ4il Article 3 by

.~eculiveoroer, hI: lawfully could reassert hispre·Hamdon irUerpmation oftb: treaty. While: WC'1It¢l1lO1 fully

,-Ii
i

explore Ihe issue !Jere, we have littfe doubt that as a matla oftexl antllUstory, the Prtsiden1could I=nablyfind
that an "~co:illid nac of an international clI=cta oceunillg in the telritory of onc (If the High ConLndi.ng
Parties" does nOl include an armed eonfiitt witb aninteroational terrorist ocganizatlon o<X\Ulingacro~ temtorial
boundaries. Stf, '.g., Pictet, m CommtnJorUs, al 34 rSpe:d:ilIg gcner.1Uy, it must be r«x>gniud lbat the eonflicu
rcl'errcd to in Article 3 are mned conflicts, wim armed forces OD either~de enga~ i., hostilities.. i.'l sholl. WlUdl[
are in ~ respects similarto
international wu, bullabploa wit1l!1l1he cemjlnes o/a sillglt COVIiI'ry.]
(emphasis ad~. Therefore, although we assum::: in lightoJ lfamdatllMl Common AJticle J applies 10 the presc I
conflict, \\'Cnote thaI thePre:!idcnt pennini'bly c;wld Inteq>rcl Common Article 3 nal to applybyan uecutive ord::r

an

issuod under me M C A '

I

15 Allhwgh the United States hu l\Otratificd the Vien.u COtIVcntiOD on the Law olTttaties we have often
looked to Articles 31 ar.d 32 of (he Comutian as a fGlurttfor rJks oft=\y irJerpretltion widc1y~~:ted iJ
intern.atioaal b.w.
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(el Outnges upon personal dignity, in partiQ.llar, humiliating z.nd ~j!!.g
treatment;
(d) The passing of sentences md the unying out of executions without. ~..,~ous
judgmert.t pronounced by a regularly constituted court affording all tbe JUdiCl1l.
guarantees which ue rcrognized is iodispensable by Givilized peoples.

Ofthese-provisions. two have no OIppliwKm here. ~ proposed CIA ir.tarogation. methods wiU
involve neither the "uking of hostages" cor the ·passlOS of sentences (or] the canymg out of
executions." Thus. our analysis will focus on pu2grtphs I(a) and I(el, as weD IS Common
Article 3's introduaory text.

I

Where the texi docs not finnly resolve the application ofCornmon Article 3 to the QA'!!.
proposed interrogation prawus, Supreme Court precedent a:nd tbe practices oCthis Office direcl
us to several other interpretive aids. As with any treaty, the negotiuiog record-1lso known as l
the trauma priparatoires-ofthe Geneva Conventions is relevant. Set, t.g., Zichemum v.
KOTtanAir Urw Co., 516 U.S. 217, 126 (1996) ~'Because a treaty ratified by the United StzleS
is not only the law aflhis land. but alsO an agreement among sovereign powers, we have
traditionally considered as aids to its interpret:arion the negotiating and drafting history (trOVQlD:
priparatoire.s) and the post-ratifiQool1 understanding of the colltncting patin"); see also
_
VieM& Convention on the Ltw of Treaties Art. 31(a) (stating that "supplemental)' means of
I
interpretation, including the preparatory work ofthe treaty," may be appropriate where the
meaning ofthe teld: is "ambiguous or obsCUl'c"). Wrth regard to the Geneva Conventions. an
additional. related tool is available: In 1960, staff members ofthe IntematiorW Cornmittu of
the Red Cross, many ofwhom had assisted in drafting tho Conventions, published Commenrarie _
·on each of the Geneva Conventions, under the gen~1l1 editorship of run Pictet:. Se~ Jean Pidet,
gen. cd.• COhlmentar/~son the GenffQ Ccnve1l/iol1s (lCRC 1960) (hereinafter, "Commentaries" .
These Commentaries provide some in5ight inl0 the negotiating history, as well LS a fairly
contempor~eous effort to explain the JeRC's views on the Conventions' proper interpretBtion.
The Supreme Coun has found the Commentaries persuasive ia interpreting the Geneva
Conventions. See Hamdan v. Rumsftld, 126 S. Ct 2749, 2796-98 & n.48 (2006) (citing the
Commentaries ten times in interpreting Cammon Article 3 to apply to the armed wnflict with alj
Qaeda and explaining that "(t]hnugh not binding law, the (JCRe CammentaryJ is, as die parties
recognize, relevant in interpreting the Geneva Conventions"),

l
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1D addition, cenain international tribunals have in recent yeus i!pplied Cammon Aniele
in war crimes prosecutions-the International Tribunal for the Former Yugoslavia ("1Cl'Y") and
the Intemational Criminal Tribunal for Rwanda ("'ICTRj. Their decisions may have relevance
a$ persuasive authority. Su Vienna Convention on the Law ofTruties Art. 31(3)(b) (stating
that "subsequent practice in application ofthe treaty" my be relevant to its interpretation). The
Supreme Court recently explained that the interpretation ofa treaty by an interm.tional tribunal
charged with u1judicating disputes be..'ween signatories should receive "respectful
consideration:" Sanch~l-Llamas Y. Oregon, 126 S. Ct. 2669. 2683 (2006);:ree olro B,em-d \I.
Greene, 523 U.S. 371, 375 (1998) (per <:uriam). The Geneva Conventions themselves do not
charge eith~ ICTY or [CTR "'7th this duty, lca~g their views with somewhat less weight than

II
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such a aibunal otherwise might have.. We do, however, find sevecil decisions ofthe l~ of

use. and that our analysis aligns in many mas with lhededsiort$ of these tnoonals proVides

some co~ort th&t ~ have 2.C<:lJretcly interpreted the treaty's turns.
Fanally, we also recognize that the prarous ofolher state patties in implementing
Common Article 3 (as opposed to the statements of officials from other oations. W&lpported by

ariy conaete cir~ and conduct) may RIVe as "t supplementary meaos of
interpretation." See Vienna CcJnyention on the Law ofrlUties Ali. 31(3)(b). We have found
ooly onc country, the United Kingdom, 10 bYe Cllgaged in a sustained effort to interpret
Common Article J in a similar context, and we discuss the rclevaoeeoftmrt aample bdow.~

.

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In addition,. the Prcpantory Committee forthe Intemuional Criminal Cowt established
uoder the Rome Statute bas developed elements for aimes under Common Article 3 that may
tried before that court. and an aCCXlmpanying commentary. See Krut Wl"tl1anI1, £,kmOl1s of

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Oime.s undu tht Rome: Statute ojlntunational Criminal CO/I11: Sourcu and Cummrntary

I

(Cambridge 2002). The United Stz1es is oot a party to the Rome Statute, stt Letter from John Rl.
Bolton, Up.denec:retary ofState,. to U.N Seaetary General Koi Anan (May 6, 2002)
(announciD~ intention ofthe Uaited S~ nolle becOme.a party to the Romc $utute). but .
sevenl parues to the Geneva Convenoons arc. Thus. while the Rome Statute does DOt constltl.ite
a legal obligation of the United States, and its intetprmtion of the offenses is not binding as a
matter of law, the Stz.tute provides evidence of bow other state panies view1.besc offenses. Lik~
the decisions ofintcrnationaJ tn"bunaJs. the general correspornknce between the Rome StaMe
and our interpretation ofCommon Article 3 provides some confinnatioo ofttle correctne:>s of the
interpretation herein.

I
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In a~ditioD to the guidance provided by these traditional tools oftretty ioterpretatiol\ th
Military Commissions Act substantially assists ourinquiry.

The MCA amends' the War Crimes Ad to include nine specific criminal offenses definin~
the grave breaches oftbe Geneva Com'entions, which we ha.ve discussed above, These
I
amendments. constitute authoritative statutory implementation of a treaty.3"1 As important, by
lI' The p-aetict of~' othel" state parties in ~nse 10 cMI oon1llas 8Ppe.m to have been dmply til
violate ColllJl1on Article 3 wilhout eon<1uctizlg:ul)' iDwpretalio.o. The ~nunmt ofFnnce, fOT instance,

Teponedly instiMed IllttuR as an official practice 1Ja scekin& 10 SIlppR:5.l insumaion in the tben-Fmldl 1e."ritOTY of,
Algeria between 195. and 1962. &t. ,-g., ShiV1..Efteldwi,FrDtl~ an4IIttAlgufan War: From II Poli%f
I
'F0'i.lfillt' /0 a Fr=rtlO'Orl;; ofA=:rJntabi/jry, ~ CoIlUJ1. HUITl Rts. L. R,(v, '13, 4]1·21 (2003). Morczeoently,
~ ~IJ wsage<1 in $tlSttiD:d violatiOI1f or COll1lUOn Article 3 in dealinl with lh= infernal c;onflia in
Ot~. We'do not take wcluaions as I guide 10 tbe maaln& of OllmnOll Article J, aoI indt.Cd lIWl)' of the
reported 1Cli0lU Dl these natioll$ are tolll1annab1e. Bullhcse cumples do rtW"Ol'a" the oced to distiIlguisil wlW
stales Sly trom \vballJ:lq iR ba do when c.lnfrollted wilh lbeir 0\1'11 lWiarul security dWJ~.
~'Congess provilb;I a OOlJ1prtb~'ii\'C ~ fofdisdo~ theoblipcions ofthe' UniUrl States·
under the GeDcY4 Conve:ntions, and sudllezislaticll properly infllIeIlc:cs OW" c:oASlilJaion d1hc: Gen~
ConveatiOll$. ~ regu!arlr enuts Iegi.s1atiOD implemeaina our ~oblip1kw, u4 WI. legi:sbli~
I
plO'o'ides ddbLitions for tmdcfined treaty It:nns or otherwise specifies the Come:slic l,<pl dfctt of soch trtatie:s. Se~

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sta1Utorily prohibiting certain specific acts, the ameodmer.ts allow our interpretation of Common
Article 3 to focus on the margins ofrelative1y Jess serious conduct (i.e.• conduct that ~l1s short
of a. grave breach). Accordingly, we need not decide the outer limits of conduct pcmutte.d by
certain provisions of Common Article J, so long ~ wedetennine that the CIA's prEctices, .
limited as they ue by clear statutory prohibitions. and by the conditions and ~feguar~ applied
by the CIA, do not implicate the prohibitions ofCommon Article J. For that tnterprenve task.,
the War Crimes Act addresm five specific terTn$ ofComm<ln Article 3 by nll.me-~torture:'
"cruel treatment," "murdu," "mutilation," and the ''taking ofbostage.s." Although the War
Crimes Ad does not by name mention the three remaining relevant 'lerms-"violence to life and
person," "outrages upon personal dignity, in patti.cular, humiliating and degrading treatment:'
and the overarching requirement of"humaneQ" treatment.-:....the Ad: does address thcm in part by
identifying and prohibiting four other "grave breaches" under Common Article 3. Three ofthes ,
offenses-performing biological experiments, rape, and stxUaI assault or abuse, "se~ 18 U.S.C. I
§§ 2441(dXl)(C}, (G), lJi)-involve rcprchensibletonductthit Common Article 3 surely
1
prohibits. The Act includes another offense-intentionally causing serious bodily injury-whicg
may ha.ve been intended to address the grave breach of "willfully causing great suffering or
serious injury to body or heatth," specified' in Article 130. This grave breach fs not directly
linked to Common Article 3 by eilher its text, its drafting history, or (he ICRe Commen.taries;
nevertheless, the "serious bodily injury" offense in the War Crimes Act may subnantially
overlap with Common Article 3' s prohibitions on "violence to life and person" and "outrages
upon personal dignity."
Congress also stated in theMCA that the amended uprovisions of [the War Crimes ACt}
fully satisfy the obligation under Article 129 ofthe Third Geneva Convention for the'United
. States to provide effective penal sanctions for grave breaches which are encompassed in
common Article 3 in the context of an armed conflict oot oran international character-" MCA
§ 6(a)(2). This statutory conclusion suggests the view of Congress Ihat the terms "murder,"
"mutilation:' "cruel treatment," "torture," and the "taking ofhostages" in Common Article 3 are
properly int~reted to be coterminous with the identically named offenses in the War Crimes
Act. Article 130 of Ihe Third Geneva Convention elCpressly states that two of these offenses- I
~orture ~d murder r'willful killing" in Article l30}-are grave breaches. As explained below,
International commentators and tribunals believe that a third offense--cruel treatment-1s
.
identical to the grave breach of "inhuman treatment" in Article 130. To criminalize only a subset
of those acts would not be consistent with the obligation of the United States under Article 129 I
of GPW. and Congress believed it "fully satisfIie.df that obliga.tion in the MCA. lJ In any event,
no le;gislative history indicates that Congress believed t.he War Crimes Act left a gap in coverage

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(.g., 9 U.S".c. §§ 201·203 (ad~jlg the S:OOPC: oflh~ Convcllllon ~n thcRctognition of Foreign Artitral A....ard.);
IS U.S.c. § IQ9J (unplemtnting and definmg tc:nns Of~Co~OIl on the Prevention and Punlshmenl0fthe
Crime of Genocide); 11 U.S.C. § 1J6(3) (ddinillg terms oC~ CollVtntion for the Protection of Litemy and Artistic
Works?; 13 U.S.c. § 2339C (det:mtn: mms of the tnlematioml Colwcnltcnfor the Suppmssion oCUle finmdneof i
Terroro5lll); 26 U.s.C. j 894(c) (Ullerpn:tinr th UnitedSUl«.Q!;NtIa Income Trcly of 19&0).
r

~cecI

.11 We
JlO( deflnilely resolve the qaestion IlfConp='s intention <1$ trI the twtl othUletlllS ofC0!l\!i10J
Article 3 ~efin«t in the War CriItIes Act_'"mutilaliOlln and the ·'ta..'d"ng of ho~tales'" ~eitb~ otwhieh ap~

expressly 10 ArtIcle 130 ofGPW. These offenses arc Ilot implicated by the ptapose4 CIA bUcrogatiOll me1hods.

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52

off~nses

with respect to any of its
tbat expressly address by name specific probibitl.ons in
Common Arnde 3. Combining Congre5s's vi~ in iu implementing legislation with our own

analysis ofCommon Article ]'s relevant terms. including the alignment ofCongrcss's

II'

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definitions with interpretations of international tribunals, we conclude bdow that Congress S
view is correa and that it hu in the War Crimes Act fully and correctly ddined tbeterms at
issue, rwnely "torture" and "cruel treatment"

!

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th.,

Con",,,, in the MeA d,o mwe dear, : . . " , ito view
the gr... h<uehes defin
in tbe War Crimes AGt do not exhaust the obligations of the United States under Common
Article 3. The War Crimes Act. as amended. $Utes tlw: "the definitions (in the War Crimes Act,
are intended only to define the grave breaches ofCommon Article 3 and not the full scope ofth.e
United Swes obligations under that Article. n 18 U.S.C. § 2441(d)(~): As ~o the rest, .the Aa
states that the President may "prorwlgare higher $W\duds and adrnlJuslrat\Vc regulations for
vior.tions of treaty obligations which are not grave breaches of the Gtneva Conventions." Me,,"
§ 6(.)(3)(A),

l

I

Our inquiry withrespect to the residual meaning ofCommon Article) is therefore'
confined to the three tc:rms DOt expressly defined in the Wu Crimes Acl-"violcnce to life or.
person," ·outnges upon personal dignity,.. and "buma.ne" treatment-to tbe extent tho~ terms
have meaning ~nd what is covered by the r~r additional offenses under the War Crimes
described above. The President, Members O(CoDgrCSS, and even Justices oflhe Supreme
Court in Hamdan have recognized that these provisions are trol.lblingly ngue and thu post hoc
interpretations by courts, international tribunals, or other state parties would be difficutt to
predict with an acceptable degree of certainlY. See, e.g., Address oftbe President. East Room,
White House (Sept, 6, 2(06) ("The problem is that these (e.g.• 'outrages upon personal dignity,
in partiCUlar, humiliating and degrading treatment') and other provisions of Common Article
Three are vague and undefmed, and ea¢h could be interpreted in different ways by American ana
foreign judges."); 152 Congo Rec. 510354-02, 510412 (Sept 15,2006) (Statement of5en.
McCain) ("Observers have commented that, though sUch 'outrages [upon personal dignity]' are
difficult to define precisely, we aU know them when we see them. However, neither I nor any
other responsible member oftb.is body should want 10 prosecute and potentially sentence to death
any individu'BI for violating such a vague standard."); HamdDn, 126 S. O. at 2798 ("Common
Article 3 obviously tolerates a gr~t degree of flexibility in trying individuals captured during
armecl conflict; its requirements are general ones."); Id at 2848 (Thomas, 1., dissenting)
(characterizing provisions in ~nmmon Article 3 as "vague" and '·nebulous").

this

They were not the first to remark: on
unterlz.inty, nor is the uncertainty an accident.
The Commtntari,s explain that the Conventions' negotiator's found it "dangerous to try go
into too much detail" and thus sought "flexible" language that would keep up with unforeseen
circum!tances. Pictet, ill Comm~nlaries,at 39; st~ IV Co'!'mentaTies, at 204-05 ("II seems

to

n M~ explain below. Co:l.gress. correcttf dc&cd 1he0C7llle:lt or Common Anicle J's pohibitions on
crud treatmUit ill the Was Crimes Act's '"enid udWllnZlllJUlment" offense. Stt in/r1t at panIV.BJ.b.

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53

useless or even dangerous to aGempt 10 make a list of all the factors which make treatment
·humane...·); H~ also 2A Final R~cord ofDiplomaJic Confmna.r o/Geneva of 1949. 21248
("'Mr. Maresca (Italy) ihought lhafit gave grwer force 10 a rule ifhe merely staled its
I
fundamental principle without any comments; to MIt.- into too many deuils could only limit itsj
scope.").
.

The dimwll task of applying these remaining terms i5 substamially assisted by two
interpretive tools established in United Stales prac:Uce as ",'ell as intematio~ law. The fits( of
these turns to more developed United States legal standards-similar to lbose set forth ;n
Common Article 3-to provide content 10 Common Article 3's othetWise general terms. This
approach'is expressly recOmmended by Congress in the Milituy Commissions Act. which
reaffirms the constitutional sta.nd¥ds of treatment extended abrozd and to aliens by the Detain~
Treatment AJ:t. the MeA further provjdes thai any violation oflhe constitution~ stand~ds in
the Detainee Treatment Act in connection with 1 Common Article 3 armed COnflict constitutes ..
violation of Common Article 3. Su MCAg 6(a}(l}. TbeMCA thus botb points us to PartiCUI~
domestic law in applying Common Article 3 and leaves open the pO$sibility-advance.d by many
during the debate over the MCA-tha.t compliance with the DTA as well u the specific crimincl
prohibitions in the War Crimes Act would fulJy satisfy the obligations ofthe United Srates undJ
Common Article 3 . '
~

I

During the legislative debue over the Military c;ommissions Act, Secrewy ofState
Condoleczza Rice explained .wby the State Department believed that Coogrcss reasonably caul
declare that compliance with the DrA would satisfy United States obligations under Common
Article 3:

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In a case where the treaty's lerms are inherently vtgue, it is appropriate for a nate
to look to its own legallhmework. precedents. concepts and norms in interpreting
these terms and canying out its inlcrt1!tional obligations. ... The proposed

legislation would strengthen U.S. adllerence to Common Article 3 ofme Geneva
Conventions because it would add meaningful definition and clarification to
vague tenns in the treaties.
In the department's view, there is not, and should not be, any ioconsisttncy with
respect 10 the substantive behavior that is prohibited in paragraphs (a) and (c) of

Section I ofCommon Article 3 and the behavior that is prohibited as "cruel.
inhuman, or degrading treatment or punishment," as that phrase is defioed in the
U.S. relelvation to the Convention Against Torture. ThaI substantive standard
was also utilized by Congress in the Detainee Trulrr.ent Act. Thus it is a
reason~le. good faith interpretation of Common Article J to stale ... that the
prohibitions found in the Detainee Treatment Act of2oo5 fully satisfy the
obligatiollS of the United States with respect to the standards for detention and
treatrn~nt established in those pangraphs of Common Article 3.

I.

Letter from Secretary of State Condoleena Rke to the Honorable John Warne<. Chairman ofth
Senate Armed Services Committee (Sept. 14. 2006) ("Rk.e letter"). In enacting the MeA,
I
Congress did not specifically decl.a.re that the satisfac:tion ofthe DTA would satisfy United Stat I
TO

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under COttLmOD Aniele J, but CongrmlOOk measures to leave open such.an
interpretive dc:eisioa. In panicular. section 6(a)(3) of the MeA expressly delegates to the
I
President the authority 10 adopt such a "reasooable, good faith interpretalio~ o~Coaunon
.1
Article J," and section 6(aX1) provides "that the probibition under the DTA IS dIrectly relevant I'
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interpreting the scope of United States obligations under Common Article 3.

violati~n

I

~~ A . .

It is.strikiog that C<Jngress expressly provided that tl'U)'
oftbe
"constitutes [a} violationO ofcommon Article 3 aCme Geneva ConventIons p.mhlbrted by Umt'¥
States law." MeA § 6(a)(1). Especially in the conle~1 of me legislatived~a1e that Ilcco~anja1'"
the passage of the Military C<Jcnmissions Act, this st2Jement sugg~s a beILefthat the tradItion
constitutional standards incorporated into the DrA very closely track the humanitarian standardk
of Common Article 3. If the fit were loose, it would be difficult to foreclose the possibility
some violatio,ns of the DTA would ,not aJ~o ,be vlolation~ ofCommo,n Article 3, unless ,?ongres
were ofthe·Y!ew that Common ArtIcle 3 IS In all cases more protective than the domestl~
constitutional provisions applicable to our own citiuns,
I

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The manner in which Congress reafti.rmcd the President's authority to interpret the
Ger.eva. C¢nvcntion~ outnde of gave breaehes, is consisteDt with the suggestion that the
Detainee Treatment and War Crimes Acts are subsuntially congruent u.ith the tCl:1uirWll!.llts of
Common Article 3. The Military Commissions Af.1., dl:Cf identifying both the &nve btez.c.hes s
out in the War Crimes Act and transgressions oftheDTA as violations ofCommon Article 3,
stales that the President may "prornuJgate higher standuds and administrative regulations for
violations oftruty obligations which are not grlNe orUlChu ofth: Geneva Conventions."
MCA § 6{a)(3XA) (emphasis added), The provision does not mention tbeDTA: While the
provision indicates that there ue violations ofCommori Article J that ue not grave breaches
co~rcd b)' the Wu Crimes Act, it also implies that th: DTA may address those additional
violations, .Su also 18 U.S.C. § 2441(dX5), u amended by MCA § 6 (stating that "the
definitions [in the Wac Crimes Act] ase intended only 10 define the grave breaches of Common
Article] and not the full scope ofthe United States obligations under Imt Article").

,

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In applying Ihe DIA's standud ofhumanetrwment to OJmmon Article 3, Congress
was acting in aCcordance with a practice grounded in the lext and history ofthe Geneva
Con.ventions. The Co~vemions themselves recognize thai, apart from "grave breaches," the stat~
parties have; some flexibility t9 consult their own legal traditions in implementing and
I
dischuging their treaty obligations. Allhough parties are oblisated tQ prohibit grave breaches. .
with "penal sanctions," see GPW Art. 129 W1-2, the Conventions require parties "to take
measures necessary for the suppression ofother breaches ofthe Convention[sl," id ~ J. The
CommenJaries also suggest such an approach when they explzin that CommOD Article 3 wc.s
drafted with ref~ence to the: then~xisting domestic laws of state pmies: It "merely demands
respect fur certain rules, which were already recognized as e53"enlial in all civilized countries, and
eml;lodied in the national legislation of the S1ales in question." Pietet, mCommentaries, at 36. !
Not only was the United States among the Conventions' leading draftas, but it was then (as il: is
now) ~ong the leading constitutional demCKnciC3 ofthe ~vorld. It is therefore manifestly
appropnate for the United States to consider ils own constitutional traditions-those rules
"e:nbodied in the ~tionz.l !egislnion" ofthe United States-in determining the mez.ning ofthe

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i~rporated constitt.ltio~

general. standards embodied in Common Article 3. The DrA
standuils from our Nation's legal tradition thlt predate the adopooo o(the Geneva ConventlO

.

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Indeed, the United St21e! previously bas looked to its own law to eluify ambiguous
in similar manes. A leading example is now embodied jo the DTA itself. Faced
with an otherwise undefined and diffiClJIt·t~ply obligation to refrUn from "croel. inhuman,~
degrading treatment" in Article 16 ofthe CAT, the Senate turned to our Nation's constiMional
standards and made clear in its advice and consent that the obligtrion oethe United Stztes und
this provision would be detmnined by reference to the fifth. Eigbth, and Fourteenth
Amendments ofthe U.S. Constitution. Su. EreevlM Brandl SwnmaryandA1lC1ly.siS ofth~ CAT
at ]5-16; S. Exec. Rep. 101.30. ConwnJionAgainst TOI1UTe andOthu Out' Jnhumanor
Degrading lr~enJ or PunishmenJ at 25-26 (Aug. ]0, 1m); stt also ~ v,. •
Commissioner, 313 F.2d 461, 46) (4th Cir. 1963) Qooking to. more detailed defulltl~o ora tennl
in a domestic U.S. tax statute to interpret i compantively geueral treaty term). As \\Ilth the
Geneva Conventions, this approach w!.s at least suggested by the treaty itself which required
selle parties to utindeTla~ to prevulf ... auel, inhuman, or degrading tfeatmenl or punishment!'
CAT Art. 16 (emphasis added); see Eucutiw BrQlfch SllT1UfU11JI and Analysis, t:('f1u CAT, S.
Treaty Doe. 100-20 at IS (explaining that this language is u more limited.. than t "stringent
prohibition" and "embodies an undertaking to take measures to prevent" violUions within the
rubric ofexisting domestic legal struaures).co
treaty terms

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The second interpretive too) applicable here attempts to reconcile lIle residual
imprecision in Common Article) with iu application to the novel conflict against 31 Qleda.
When treal), drafters purpos~ly employ vag\Je and iIl-defincd language, such language can reflea
a COD.Scious decision to alJow state parties to elaborate on the meaning ofthose tenns as they I
confront circumstances unforeseen at the time oflhe treatfs drafting.
1

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,
.'

Like our first interpretive principle, this approach shuts the suppon ofCongress throug~
the framework established in the Military Commissions Act. In that Act, Congress chose to ke4p
the Geneva Conventions out oftha cou~s, md reCQgDized that the E.\(ectltive Branch has
J.
discretion in interpreting Common Article 3 (outside the grave breaches) to provide good faith
applications of its vague lerms to evolving circumstances. The e>.llHcit premise behind the Act
comprehensive framework for interpreting the Geneva Conventions is that our Govenunent
needed, and the Conventions parmltted, /I range of discretion for addressio,g the thrat age.inst tHe
United Stales presented by al Qaeda. As we discussed ill the conteKt ofthe Dr~ Congress
kn~w ~hat a CIA interrogation progra.m had to be pan Ofth2t discretion, Uld thus a guiding
obJect1ve behind the MeA's en.tctment was tha.I the CIA's program could "go forward" in the
wake ofHamdan. Set supra at 43-44. J!lis is not 10 say that theMCA declares that any condu4t

r
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.

.'. As I fomul mmer, the.United Slates \llldQtoolc a resm-atiOlllo iJleCAT, altering United St31es

I

obllganons, r.r.thcr tl:.an ur..okingdomestic la..... IS a mcalUi of interpreting \he ouly. The UlliI:cd Stiltes made cJezr.

b.~r, lhatit undtrstood the constiru1iG'llal tradidoltS of the UnltM S~:es til be more than adcq,azre to Win,. ~
MCf\!eI, Inhuman or degradJagttatmenr. Of pmi$IlInenI~ slaOOard I'U(U~ by the mty, a:d lbcrefore, it W'.dertcloki
ihtll"CSCl'nllon. O"Jtof an abundanoe of QuDoa and noI bcQuse tl. believed tNt Unikd Sb~ law ~uld WI :lholt riI
the obliptioas under Article 16. properly undcmood. S. ~ Rep. 101·30, CDn'NI(/onAgllllUl TorflW end OIh~r
Cnte~ ffl1llt_ or lkgraJing Trr~nl or p,;"W,mDlI al25-26 (Aq.~. 1990).
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falling under (he auspices ofa CIA interrogation prognrn must be consistetlt with Common
Article 3. To the CQattazy, Congress recognized that Common Article] establishes some clear
limits on such a program. Nevertheless, the result of lingering imprecision in Conu-non..
Article 3's tt:mLS shouHi not be institutional pu1lysis, but rather disattiOD roithe Executive
Bnneh in developing an effective CIA program within those clear limits.

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Common Article 3 certainly pia.ces clear limits on how a sule party may address sucll
challenges and absolutely bars certain COIlt!ua offensive to"all civiliz.ed natiODS." Pidr;t. m
Commenlarlu. at 39. For instance. the provision prohibits "murder o(all kinds.... "mutilation,"
and '"the tiling ofhostages"--terms that are sU.5(,eptible to precise definition and that "are and
shall remain prohibited at aIly time and in any piau whatsoever." When it comes, however, to
Common Article J's more general prohibitions upon "violence 10 life or person" rod "outrageS
upon personal dignity," it may become necess~ (or states to define the meaoing ohOOse
prohibitions, not in the distract, but in their application to the specific circ:umstanees that arise.
Indeed, the ICRC OJmmenJariu themselves contemplate that "what constitutes humen
treatment" would require a sensitive balancing ofbotb security and humatlitarian concems.
Depending on the circumstances and the purposes served. detainees may well be '"the object of
strict measures since the dictates ofbumanity, &nd measures ofsecurity or repression. e...en IVhep they are selleTe, are not IlllCeSsarily incompatible." Td at 20S (emphasis added). Thus, Commop
Article 3 recognizes that $Ute parties may act to define the meaning of humane trearmenl, and
related prohibitions, in tight of the specific security challenges 2.t issue.
I"

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its

The conflict with al Qaerla reflects precisely such a novel circumstance: The applicatio
orCommqn Article 3 to a war against intemarionallelTOrists tugeting civiliails was not one
contemplated by the dr.rlters and negotiators orthe Geneva Conventioos. AJ Common Article!
was drafted in 1949, the fOOlS was on wars between uniformed annies, as well as on the
atrocities that had been committed during World War II. A common feature of the conflicts tnat
served as the historical backdrop for the Geneva Convenlions was the objective of the panies
engage the other's military forces. As Ul2. lCRC described the mtner, "Speaking generally; it
must be recogni~ Ibt the conflicts referred to in Aniele 3 arc armed conllicu. with anned
lOTUS on either side engaged in hosri/iti~-<.onf1icts, in short, which ue in many respects
I
simill!r to an international war, but take place within tbe confines of a single country." Pictet, ill
Commentaries, at 37 (emphases in original).il

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AI Qaeda in its war against the United Scales and its allies is not organized into
battalions, under responsible oommand, or dressed in unifonns. although we need not decide
whether these hallmarks of unlawful wmbatancy set al Qaeda into a class by itself. What is
undoubtedly novel from the slandpoiOlt of the Geneva Conventions is lhat al Qaeda's prima."')' I

l

., llIus. although tile SUjlfQttC: Court rejected 1M Presi6enl:' J de:l:rmiJWjon tlrat Common Artide J did
zpply to the Cl?nfIia against al C@tda. there "", be little doubt lhlt the pandlgm;ati( use (or the cla.llen of ~n
ArtIcle J ~ p iIlttmal etviI VoW. 18 Fillol Rtt:ordoflJrr Dipl4mDlf.e Coll./vtnc, ojGU/IWI of 19/9, at Ul;:u
also Piacr, m CDmml!lltaries• .1129..... tborouCh inIapn':tation ofConlfl\Ofl Article) must rdlect d:aI"Common
Aniele 1, at a minimum, i5 debc:bed fium its historiaJlIll:QrirJp wbeu IP¢kd til me prCICDI ~~ 1Ilumc:d
conftict with al Qacda.

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~l iM~t civili~

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means ofwarDrc is not to vanquish otber uniformed armies but rather to
In this way, a1 Quda does not resem~le.the insurgent forces ortlle domestic re~ho~ ~owhich
the drafters and negot.iators ofCommon Article 3 intended to apply long·s tandm8 pnnoples of
the law of war developed for natio,u:1 armies. Early explanations ofthe perwns protected from ,
action by.a state party under Common Article 3 referred 10 the "patty in revolt ag,?/nst flit de i
JUTe GcMrnmtnl." 2B Final Record ojliM Diplomatic Con/e't~. oj Genna ofJ9"~. 21. 121
(emphAsis added};ste abo Pietet, mCommtnJariu, at 29 (expl.a;iDlng ~ the histo~~llm~

I
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of Common Article 3 wa.s bloody "civil wars oc:socill or revolutionary disturbances to whicn
the Red Cross had trouble intervening because they were entirely within the territory of a
sovereign SWe)i id. at ]2 (discussing the pandigm model or"puriots mggJing for the

independence a.nd dignity of their country"). AJ Qaeda's general means of engagement, on the
other band. is to avoid direa hostilities ~nst the military forces orOte United Stmes and

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instead to cc:immit llGts oftarorism against civilian targets.

Further supporting a cautious approach in applying Common Article 3 in the prcsenl
novd context, the negotiators z.nd signatories ofCommon Article 3 were not under the
impression thJ.t Common Article 3 wu brealcing new grouOld regllding tJle substantive rules
1
govern stilte parties. apart from applying those rules to a new ce.tegory of persons.· They sought
to formalize."principles (that tad] developed as the result of ceoturjes of warfare and had tlrudj
become customary law at the time oflhe a60ption of the Geneva Conventions because tbey
reflect the most universally recosnised humanitarian principles." Prosecutor v. Delalic, Case
No. IT.96-21·A(lCTV Appdlate Cbamber2001); nealso Pietet., m CornJTJentarles, at 36
I
(explaining that Common Article 3 establishes rules "which were already rtcognized as essential
in all civilized countries'1 (emphasis added). Ofcourse. the applie&tion ofComrnon ·Article 3'5 1
general standards to a conflict with terrorists who are focused on the destroe:tion ofcivilizn
targets, a tYPe of conflict not clearly anticipated by tbe Cooventions' drzfters, would not merely
utilize the axiomatic principles that had "developed u the result of centuries ofo;wrfare." Thus,
we must be CAUtiOUS before we construe these precepts to bied a state's hands in addressing SUt#
a threat to its civilians.

thlt/

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That a treaty should not be ligh.tly construed to take away such a fundamental s.ovueign
responsibility-to protect its homeland, civiliws, and allic! from ea.u..strophic aftack-is an
interpretive principle recognized in international law. See Opptnheim 's International Law
§ 633, at 1276 (9tb ed. 1992) (explaining Ihal tbe in dubio mltilLS canon provides that treaties I
should not be construed to limit a ,sqvereign right of states in the absen~ of an expre.ss
agreement); cj Merrion v. JicariJJa Apache Tribe. 4SS U.S. 1)0, 148 (1982) ("sovert!ign powerl
cannot be relinquished "unless surrendered in unmistakable tenns~). 4l The right to protect its I

!

upb.ined~lx1vc,

i

q As
lhe iJulo\'iolion OfCoI:llRlOIlArtide 3 ll'iI$ rna to iDttJOsc wholly nowl $wduds on
but to ~Jll;y ~ kw of "-u Il) civil 'll"alS ItY.t I;llIdy $but4 ll\t ehmd:crisliC$ or mtemalioo;L] armed
I
ronflias, while ladciJlg a$Qtc patl). on Il;e opposing side tbar couJd be a partic:ipanl ina Mlyl"CCiprocal fJ'eal).
I
alnllgtlllClll ~, Pietet, Dl C»tsm~nlarit1, at 31. A1~&h rbs ~en 9.'l:rt iMrMting by bindinl: sates to ~w cf
w~r rtandtrds 1bsc.4t an IssuranGe that theentmy would do lhe 53mt. thl:]' bdlcvc:d lhJt the gMml baseline
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S~Ic:s..

SWldvds 1hz! would a~I}' under Commro Article J wen: uncontrO'ltni.ll md -II csublJshcd.

.

. a The ca:xm!1f ill thbiolfritiou (litaafly......1leo iD dedit, brinI: CiIin") lwbeell.applitd by numerous
tribuRZls to consoue llUbigtlCll:S cnaty tanIs ag;ainst the relinquishment of fund2mc:.!al SOY<Teign

lnlUllaliocu.l

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citizens from foreign attack is an eSsential attribute of a state's sovereignty. .Advisory Opinioll
tk LegaJityOJtJu ThrmJ or Use ofNudwr Wtapons, 1996 [C.J. 226, 266. To be sure, the
states negotiating Common Article 3 clearly understood that they were disabling themselves
from undenaJcing certain measures to defend their governments against insurgents seeking to
ovenhrow those goveruments, which inarguably is an impoiUJ"lt part of sovereignty. We would,
however. expect darity, in the ten or a.t least in the Conventions' negotiating history, before we
would interpret the treaty provision to prohibit the United SlUtS from taking aaioIlS deemed
aitieal 10 the sovereign function of protectiog its citizens from catastrophic foreign terrorist
attack.. Crucial here is that the CrA's program isdetennined 10 be ~sary 1(1 obtain critical
intelligence to ward off catastrophic foreign terrorist attacks, and ~at it is carefully designed to
be sUe and to impose no more discomfort than is neeesu.ry to !Chicve that crocial objective,
fundamental to state sovereignty. Just 2.$ the "Constitutioa [of the United States} is not a suicide
pact," Ktnnedy v. Muu/o:D-Marlinez. 314 U.S. 144. 159 (1963), so llso tbcvague and genecal
terms of Common Article 3 should not be lightlY interpreted to deprive the United States ofthe
means to protect its citizens from terrorist attack.

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This insight informs passages in the JCRe C011J1Tf.~ntarl~ that some have cited to suggest
that the provisiom of Common Article'3-to the extent they are not precise and specific-should
be rQd to restrict stale patty discretion whenever possible. The Commentaries indeed recognize
that, in some respects, a.dopring more detailed prohibitions in Common Article) would h2ve
been undesirable because the drafters ofthe Conventions could not anticipate the measures that
men of ill will would develop to avoid the teons ora more precise Common Article 3:
"However great the care undertaken in drawing up a list ofall the vuioos fOnTl5 of infliction, it
would never be possible to catch up with the imagination offurure tOrturers who wished to
satisfy tfieir bestial instincts; and the more specific and complele a list tries to be, the more
restrictive it becomes," Pictet, ill Commentaries, at 39. II is no doubt true therefore that
Common Article 3's general prohibitions do establi.sh prinCiple.$. that prct[ude a range of
conducl, and .that they should not be subject to a technical reading that parses amoog conduct.
To the contrary, the principles in Common Artk:le 3 are generally worded in a way that is
"flexible, and at the same time precise," id., and tbey call upon state parties to evaluate proposed
conduct in a. good faith mAnner, in an effort to make compatible both "the dictates of humanity"
towards combatants and the "measures ofsecurity and repression'· .appropriate to defending
one's people from inhumane attacks in tbe anned conflict at issue, id at 205, We, therefore,
undertake such an inquiry below.

B.
These interpretive tools inform our analysis oflhe lhree relevant terms under Common
Article): paragraph l(a),s prohibition on "violence to life and p~on, in particular murder of a1~

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poweB. Su W.T,O, Appcll.att Body, EC Me~u OmctmJng MtQl (IlIdMtDl PrrH!lIcu (lfomlones).
\VTfOS261/IBIR/116j, n. 134, 1998 WL 13520, at •.(6(1111. 16, 199&) (UP!.ainin& th2tlbt -.iDtoprdi\'cprlnciple
of tn dtlblo mfllll$ is ~dcly I'ttogniwl. in ~tionallaw a:$ • wpp1emtll'IrY me:ans or Iraerprewjol1. j. Far
I
eJCalDpJe.lbe InterrmiolUl Court of Iustit:e tdustd IOco:lSln:e an 1.lllbiplliS trt.Ity tum to tt:de sovereignty owr .
dispUltd lerrilCl1)' without a dear sWemtnl Set Cos.r eo...cv..ln. $1wrtlpty OR' Pulltll Ugilt»! aM hlmt
SJ~n, 2002 J.CJ. 625, 643.

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kinds, mutilation, crud trewnen1 and tOrture"; pmgrapb l(c)'s ~ohibition 00 "outrag~ upo,o
personal dignity, in particular, humiliating and degrading trtiunem"; tnd Common Articl~ 3 s
ovcracchiog requirement that covered pcnons '"be lrea1ed humandy." AJt~gb iC is first Itt the
syntax ofCommon Artide 3, we addn:ss the general bwnanc treatment reqwement I.a.st, as the

question becomes the extent army ;esidul1 obligations imposed by this requirement thaJ: are not)
addressed by the four specific examples ofinhumant treatment prohibited in pangnphs I(aHd) .

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Against those persons protected by Common Article J. the United States is obligated not
to uodCfUke "violence to lif.e and person. in panieulu murder of aU kinds, cruel treatment and
tort\ln:." GPW Art. 11(a). Paragraph l(a) tJ.iscs two reJcVIIlt questions: Will the QA

program's use oflhe six proposed techniques meet Common Article J's general requirement to
avoid "violence to life and persoo," and will their use inv<llvc either oflhe potentially relevant
examples oC"violence to life 20d person" denoted in patllgraph I(a}-torture aqd autl
treatment?

Tbe proposed techniques do not implicate Common Article 3's general prohibi6oo on
"violence to life and persoIL" DietionariC! define the term "v;olence" as "the exertion of
physical force so as to injure or abuse," Webster's 11u'rd Jill 'I Dictionary at 2554. The
surrounding text and structure ofparagnph lea) make clear t~t "violence to life and person"
does not etIcompus every usc of force or tNtr'J physical injury. Instead. Common Artide 3
provides specific examples of severe conduct covered. by thal: tenn-murder, mutilation, torture,l
and Mlel treatment. As indicated by the words "ill panicular," this list is not exhaustive.
Nevertheless, these surrounding tenus strongly 5llggcst that paragraph I(a) is direcr.ed at only
serious acts ofphysicd violence. Cf. Dole v. United SI~~1K'oTkersof Am., 494 U.S. 26, 36 (1999}
("The traditional canon of construction, noscitur a sociis, dictates that words grouped in a list I
should be given related meaning:').

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This reading is supported by the ICRC Commentaries, which explain that the prohibition
in paragraph 1(a) "concern acts which world public opinion finds particularly revolting-acts
which. were committed frequently during the Second World War." Pictet. mCommentarftS,
at 39. International tribunals and other bodies ~imilarly have focused on serious and intentional
instanc.c:s of physical force. At the same time, these bodies have had difficulty identifying any
resid~~ con~elll to the term ~violence to life and person': beyond the foUr specific examples of
prohlbaed Violence that Common Article 3 enumerates. The ICC's Elements of Crimes does not
define "violenCe to life or person" as an offense separate from the four specific examples. The j
lcor: similarly has suggested that the term may. DOt have disGCnable content apart from its four
specified componen~. The tribunal initially beld that "violenc.c: to life or per&On" i~ "defined by
the accumuhuiOll of the elements ofihe specific offen$oC$ of'murder, mutilation, cruel tru:rment,
and torture,'" and declined to define oth.e; sufficient conditions for the offense. P~CJJlor v.
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Blas~1c, IT-95-14-T. 1182 (Trial Chamber). In bttt cases. the tribuoal put a finer point on the ,
matter; at: lust for purposes ofimposing aiminal sanctions, the court could not identify a
residual content to ~ lerm "violence to life and person" and dismissed charges!hu tbe

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defendant had eng1ged in "violence to life or person" tbat did not constitute torture, aud
treatment. murder, or mutilation. ~I! PrO$i!cutor v. Vaii/je~'ic. Trial Chamber, Yl194-205
(2003). Even when proseeuton~empled to proffer elements ofthe "vio1ern:e to life.and . _
person" violation as a freestanding offense, they argued that the offense reqUired the ImposttlOn
Of"SerlouS physical ~1I. or suffering," which would make it duplicative of the prohibition 00
"CflJellteatment.."

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We Conclude that the proposed CIA techniques are coDSistcnt with Common Article 3's
prohibition on "violence to life and person." & we explained above. Congress strictly
prohibiled seven! serious fonns ofviolenc:e to life acd' persOn,. and the techniques do not involYej
My of these. The ICRC Commentaries have suggested that "petformin.8 .bio'~gical experiments"1
would be a type of"violence to life and penon" that, although not expliCitly listed as an
example, is also prohibited by paragrapb 1(3). See, e.g.. Pictet, mCommostaries, at 39. The i
CIA techniques do DOl inv:olve biological experiments, and indeed the War Crimes Act
•
absolutely prohibilslbem. See 18 U.S.C. § 244J(d)(l){q. Whether or not those grave breach I
offenses exhaust the scope of"violellce to life and person" pmilibited by Common Article 3.
are confirltJIl that "viole.,ce to life and person" refers to ae:u ofviolence serious enough to be
considered c:Ompanble !o the four examples Iist<;d in Common Article 3-cnurdeo, mutilation,.
tortu~e. and crud treatmenl The CJA techniques do not involve the applicUion of p~ysical for
rising to this sWldlld. While the CIA does on oceuion employ limited physica.l contact, the
"slaps" and "holds" that comprise tbe CIA's proposed corrective tecllniques are carefully limited:
in frequency and intensity and subject to important »feguuds to avojd the imposition of
signifiCUIt pain. They are designed to gain the attention of the detainee; they do not constitute
the type of serious physical force th2.t is implicated by paBgOlpb l(a}.

I

WJ.

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b.
The CIA interrogatinn pramices also do not in....olve any of the four more specific forms
of"violence to. life or person" expressly prohibited by paragraph lea). They obviously do no!
involve murder or mutilation. Nor, as we have elCpJained, do they involve torture. See Section
.2340 Opinion and supra at 14-""

<l In this opinion iUld the StcJiOll ,310 Opin;t;n, we lu.ve eonr;;luded WIU1c enhanced intwuptiOll
toeb.nIqueIJ In question would not vfolateth~ feden! proh.ibition on lol't11Te in 11 U,S.C. § 2HQ-2J40At;1 tile
prohibition on lIJrtuR: i.D the Was Crimes Act. fU 18 U.S.c..§ 2441(d)(I)(A). 8Qth of those offenses require a5 an
clement the hnpos.ition of$e\o'tlepbysiczl or mental pain or sulfcrin!, whichis conslstel'll .,nIh in1ematJonai pn...-ticc"
:lS' ren~ed ill Article I of the Conve:ll.tilTol Against torture and lh~ICC'$ dclilli,tion "Of Common Article )'s
prohibition on IO~. Sn DOnnaruJ, £lenuntsc/O//nI!S II 401 (rtqUlrlng theekmetll o/lntlIctilIg ~seveu ph)-sicaJ
or m:mal pain or sutrerinC fur TOl't\U'C under Common Artide J). The WI:. Czitms ACI atld!he h:der.tI protubition i
on torture funher d~ .~ mcnral pain or sufferiag.- and this wn spedlk: definition does DOl 1ppC3f in the ;
text of the CA.T or In the Rome SlZtut;. Instead, the source oflhis d:tinidon is an IlJIl1erstzlldin~ofthc U~cd
f
S~leli to ilS ralifkarion of the CAT. Scot' 136 COIlg. Rcc. 36,178 (1~). TtJrtIUe is DOl ~ddined in Common
Article J, and the U4iled Stale:: <lid not alter an ilJIcknw1diq 10 t;hal insIn.mlCDt. That th~ JI1(Irt dd:alled
explanation Or"SCOIICl'C tllClla1 pain or 5Il.fferint' b wt.as an -wuIC1'SW1lfillJ· of the fliddy aco:pkd dtfiniTion of
torturn, I3lba than as a RSCMtion. rdIects the position or ~ U!1ikd Slik.s Ibat this rJiOrC dcWkd ddinilion of
tortun: is coDSisl:cn1 with iDlemWOll1l p.."actia:, as rdkaed. ia Anitle 1 of lht CAT, and Deed DOl bYe been entered
'" ~..,. A........ RI.... ,,, f.ld 12l. '<J.1O Ild
2002); ". "" " ' _
~'l.>'1

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a,.

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"""''''"on

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The remaining specifically prohibited Coon o("violence to life or person" in commo~
ArticleJ is "cruel treatment." Dictionaries define "'QUel- primarily by rd'erenc.e to conduct
imposes pain wantonly: that is. for thesakc of imposing pain. W~b.stu 's Third In/'l Dictionary
at 546 ("disposed to inflict pain. upeciaUyin a wanta... insensate, or vindictive manner"). If~1
purpose behind treatment desc.ribed as "enJeI" is put aside, common ~ge would at least reqwre
the treatment to be "severe" or "extremely painful." Id Ofeourse, we arenot called upon he.-e
to evaluate the term "cruel treatment" s1:anding alone. In Common Article 3, the prohibition on
"cruel. treatment" is placed between bans on extremely severe and depaved aets of violence- '
murder, DlUtilation,
torture. The serious nature afthis list underscores that these terms,
including croclllutmenl, share a common bond io referring to conduct that is particularly
depraved. See s.iJ. Warren Co. \.I. Maine Bd. ofbrvironmental Proll!ctfon, 126
aggravated
S. Ct. 1843, 1849-50 (2006) (the noscitur a sociis canon "is no help absent some sort of
gathering with a common feature to extrapolate"). In addition, Common Article 3 lists "cruel
treatment" u a form of "violence to tife and person," suggesting that the term involves some
dement ofphysical force:
I

I
I

and

and

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I

lnJ:ema1ional tribunals and olher bodies have addrr:ssed Common' Article 3's prohibltlon
on "cruel treatment" at Iellglh. For (J'J.rp0se.5 of the Rome Statute establishing the,International
Criminal Court, the U,N. preparatory comminioo defined "~eJ treatment" under Common
Article l to require "severe physical or mentll pain or suffering.'" DOrmann, ElnMnJs ofCrim t'4
at 397. The oommiueeexplained that it vi~ "cruel treatment as indistinguishable from the II
"inhuman treatment" tbu constitutes a grzve breach orthe Geneva Conventions, See id u 398;
su also GPW Art. 130 (listing "tortureOf inhuman treatment'" as a grave breach of the Geneva
Conventions). This view apparently also was embraced by Congress when it established the
offense oC"cruel and inhuman treatment" in the War Crimes Act as part ofib effort to
I
criminalize the grave breaches oCCommonArticle l. See 18 U.S.C. § 2441(d)(1)(B); uea/so
MCA § 6(1)(2), Construing "cruelrreatment" to be cotcnninous with the grave breach of
I
"inhuman treatment" funher underscores the severity ofthe conduct prohibited by paragraph
Ha).
W

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!

Aligning Common Article 3's prOhibition on "cruel treatment" witb the grave breach of
"inhuman treatment" also demonstrates its close linkage to "torture." See GPW Art, \30 (stating
that "Iorture or inhuman treatment. including.biological experimCl1u:' is a grave breach of the J
Conventions) (emphasis added). "fhij relationship was crucial for the ICTY in defining the . I
elements of "cruel treatment" under Common Article.3. The frihunal explained that crud
1
treatment "is equivalent to the offense ofinhuffian treatment in the framework oftbe grave
breaehes provision of the Geneva Conventions" and that both terms perfonn the task of barring
"treatment that does not meet the purposive requirement for the offense ortorture in common
article 3." Prosecutor'll. Delalic, Case No. IT-96-21-T, 1542 (Trial Chamber I. 1998). The
.
'
International Criminal Court stopped at achieving this tt1d, definine the: offense ofucruel

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-

I

ofneatics Ad. 2.1(<1) (a reservation "p~ to exclude or lD m;xlify't!;e IePJ effi:d ofoetUin provWo:u of!he
lTeaty in lh:irilpPliation to l%Jat Sta<e"). There It no 1'QI.$(Q ID mish WtIQ:l!-standi!:t poslti=. hete; 'lIilb ~pn:I .
to tonure, CO.lMIDI1 ~clc ) imposes QD ~Ier cbUptioD 011 the Unilod SI31e.s dwl docs the CAT, Uld thus
I
co:u1uet CC~ ",,1m L\e t'oo'V £eden.! !'t2lUtOfJ prctu:1ritions 011 toltUre ilio satisfies Commoo AJticte ]'s
I
prolIibitio" an lornIre ill armed co.nlliw nol. of an int=na.LiCltll dlarar;ta.

TO
62

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treatment" under Common Article 3 identically to that oftorture, except removing the
requiremenl that "$cvere physical or mental pain or suffering" be imposed for the purpose of
"obainirig information or a confession. punishment. intimid:nion or coercion or for any reason
based on discrimination ohny kind." DOOnann, £ItmtnlS ofCrirrus, at 391, .401. The ICTY
went further., suggesting that there may be another diffuence from torturo-that crud trt2~1U
is directed at: "treatment which ddiberatdy ewses serious mental or physical.suffering that falls
short ofthe severe mental or physical suffering required for the offence oftorture," Delaltc.
~542.
.
In the Wu Crimes AQ, C<lngrt:$s, like the ICTY, adopted a somewhl.!: broader defil'jtio1l
of"auel trutment," prohibiting the relevant conduct nb mattuthe purpose mi defining a level
of"serious physical or menal pain or suffering" that is Jes.s extreme than the "severe pbysical on
mental pain or sufferingn required fur torture.. In this way, Congress's approtcb 10 prohibiting
the "cruel treatment" barred by Common Article J is consistent with the broader ofthe
.
intupreWiOns applied by international tribunals." Coog:rus. howt:Ver, provided a specific
definition ofbotb "serious physical pain or suffering" and "serious menuJ pain or suffering."
The rCTY found it impossible to define further "serious physical or meoW pLin or suffering" in
!dvance and: instead adopted a case-by-ase approach for evtIuating wheiher the pain or
suffering imposed by past conduct was sufficiently serious to satisfy the elements ofncruel
treatment." Delalic, 1533. This ,approach, however, wu tailortd to the ICTY's wk: of applying
Common Articte 3 to whoUy put conduct. Congass in amendi~g the War CrimC$ Act. by
contrast. was seeking to provide cleu ruleJ for the conduct of future operations. Congress's
more detailed definition of "serious physical pain Of wffering" and "serious mental pain or
suffering" cannot be said to contradict the feqtJ1remenU ofComlJlon Article ),

I

We conclude, with. Congres~ that the "cruel ueatulent" term in Gommon Article 3 is
satisfied by compliance with the War Crimes M. As we have explained above, the CIA
techniques are consistent with Congress's prohibition on "cruel and inhuman treatment" in the
War Crimes Act, se~ supra at 14-24; and thus do Dot violate Common Article 3's prohibition on'
"croel treatment:'

z.
Paragraph l(c) of Common Article·) prob.ibil.s "outrages upon personal dignity, in
particular, humiliating and degrading trutment." Ofthe terms in Common Article 3 with
1
uncertain meaning, the imprecision inherent in paragraph I(c) Wl.$ the cau.se of greate~ concernl
among leaders of the Executive 2Jld Legislative Branches. S~e Sf/pra at 53-54 (citing statements'
by the President and Senator McCain),

at'

., The ICIY defiues ~ClUl:1 ~tll.t" a.s "tTe:UaleDl lbx cause, senow lI\ell1al pm or mrtring Of'
co/Urillitu (J uriOJdalliJcJ; on hwnan dignity'- Dtla/le,
S«
The t:ribunaInMr ba.5
tllJl1a.lnc::l iu rtImoce to z ~scrillW' mack 00 hUllWl dignitr," Common Altide J tw III QPlCU pn7Yision
addresslnJ QCtta.in types ofaffum15 [0 personal dign!l:y in its prohibition of ~O'Jt:r.l&d upon per.;onal dignity, in

(emp~.asisaddedJ,

pardcilJu, humiUlIIin,; llIId degrading trea.anmt· GPW Art. j , I(c). Th: ~ ofthr: ~ Comentiol1S
su&geSl3 thatztl3cks on p::rsoll2J dignity should. be aJUJyzr.d. under pI."1IIgDjlh 1(e), thcrt:quircmtlllSof wbith "..c
an!Iyzc below.

TO

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•
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Despite the gen~al nature oritl lUlguage, there are sevei31 indications that
.paragraph l(c} y.'U intended to (tfet to putieularly serious conduct. The term "humiliating and
degrading trealment" does not stand alone. Instead, the
j~ ii, speci~c type or su~s~ of.the
somewhat clearer prohibition on "outrages upon penonal dlglilty." This str\ICtUJ"e dlstltlgUlshes
C()mmon Article 3 from other international treaties thai include freestanding p~bitio~s on
"degrading tr~ent," unIet~red to any requiremeol: Ihtt such tre.atment constrtute U1. outrage.

I

ten.n

I

upon personal dignity," Cmnpau CAT An. 16 (prohibiting "cruel, inhuman or degrading

or

I

treatment punishment which d~ not amount to torture") with Enropean Convention on
Human Rights Article J ("No one shall be wbjeded to tonUle or to inhuman or degradiog
treatment or punishment.'1.' Thus. paragraph I(c) does not bar "humiliating and degrading
treatment" in the abstract; instead, it prohibita "humiliating and degrading treatment" that rises to
the level ofan "outrage UJlOD personal dignity." This interpretation has bun broadly accepted br
international tribunals and committees, as it ha3 beeu adopted both by the fCC Preparatory
Committee and theICTY. See ~nnann,EltmUJts o]Crimu, z1314(stating. as an element of
the tee offense corresponding to pm-graph 1(c) of Common Article 3, dw: "the severity of the
humiliation, degradation or other violation was of such degJU as to be generally recognized as
.an outrage Upon personal dignity"); l'roucufor "" A/dwvsJi, Case No. IT-95-14/1 at i 56 (Tria!
Cbamber 1 1999) (requiring that the condua rise to the lcvd of an outrage upon personal
dignity).
.

or

The tenn "outrage" implies a relatively flagrant or heinous fonn ill-treatment.
Dictionaries define "outrage" as "descno(ingJ whatever is so flagranlly bad that one's sense of
decency or one's power to Suffer or tolerale is violated" and list'<monsuous, heinous, [and]
i
atroCious" as synonyms of"outra.geous:' Webs/u',s Third 1111'1 Dict10muy at 1603. lntbis way,l
the term "outrage" appeals to the common sense standard. ofa reasonable person's assessing
conduct under all the circumstances. And the judgment that term suks i, not a mere opinion tM
the behavior should have been difR:rem-to be 8Jl outn;ge. a. reuonable person must useu the
conduct 5.$ beyond all reasonable bounds of decency. This ruction iJ not to leave room for
debate, as the tcnn is directed.e.t ''the few essential rules of humanity which aJJ civilised nalions
consider as valid ewrywhere t11Jd undu altcircwtutances and as being aheM and qul.side war
irself.'- Pictet, m Commentaries, at 32 (emphases added). Accordingly, in applying the "OUtr2g~
upon personal dignity" term, the ICTY bas recognized that it does not provide many clear
standards in advance, bu.t that it is confined to extremely serious misconduct:, "An outrage upon
personal dignity within Article 3 ... is a ,pecies ofinbuman treatment that is deplorable.
occmioning more serious suffering lhan most prohibited acts within the genus." AleJc.rov..s1d, at
'j 54 (emphasis added).

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The ICRC Commentaries on the Geneva Conveations underscore the severity ofthc
.
misconduct paragraph l(c) addresses. Stt Pidet,m Commentaries, at 39 Qinking paragraph
I
1(c) I~ ~e prohibitions on to.-nJre. aueJ treatment, murder, and mutilation in lW'I8!"apn I(a) and I
explammg t~ both puagraphs "concern acts which world opinion finds particularly revolting-4
act' whieh were CO~ed frequently during the Second World War''). The IClY similarly
looks to a ~vere reaction from a reasonable person examining the totality ofthe circumstalme5.
~te ~/eksovski, at 1 55-56 (10 violate paragnph 1(0), th~ hUmiliatio~ and degradation must be
so mtense that the reasonable person would be outraged"'). An examination ofpurpose also
informs paragraph l(c)'s focus on "humiliating and degradiog treatment" tlat rises to the level of

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.
64

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an "outrage upon personal dignity." The: same international tribunal ~as c;cpl~ned that
paragraph I(c) requires an inquiry not only into whether the cond.u~ IS objectively ~uln.gtOUS,

J

but also into whether the purpose ofthe conduct is purely to huauhatt and degrade In a

contempt~lOu9 snd outrageous manner. Thus, the ICTY has looked to the In/en.l ofthe accused.....,
it is 001 enough that a person feel "humiliated," ralber the conduct must be "ammated by
conlempt for the human dilmity of wother person." Id ai ~ 56 (emphasis added). For the
,

I

Yugoslavia tribunal, parag;pb lee) captures a ooncept ofwal}lon disregard for humanity. of
reckle$sness. or of a wish to humiliate Of to degrade for its OYID sake.

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'I1U5 inquiry into a reasonable person's evaluUio.1 ofcontext, purpose, and intent wilh
regard to the treatment ofdctainees is familiar to United States law. In ~ccoJJt~o~p~rsonsn
convicted ofany crime, but lio~theless detained by the Government, thiS same IDqurry IS
demanded by Ihc DT A, and the Fifth Amendmenc: sttndard tbat it incorpontes. As we have
explained above, the DTA prohibits treatment, and interrogation techniques, that "shock the
conscience," Rocmn v, Cab/amfa, 342 U.S. 165. 172 (l952); $t6aJSO CountyoJSacramm{a v.
Lewis, 523 U,S, 833, 846 (1998) ("To this ~od. for half a century now we have spoken of the
cognizable level of executive abuse of power as that which shocla the consvience."). Much like
the lest contemplated by the term "outrage," the "shocks the conscience" test looles to how a
reasonable person would view the conduct "within the full conltxl ill which it ocmrred" Lewis,
523 U.S at 849 (emphasis added); ne id (requiring "an exact analysis of circumstance"); WI .
v. May, 872 F.2d 190, 195 (7th Cit. 1989) (Wlthregud to pre·con.. .iction treatment, the test is
whether thue wu "misconduct that a reasonable person would find so beyond tlte norm of
proper police procedure as to shock. the co05Cience.j. Indeed, our courts in applying the
substantive due plOGe$$ mndarci have asked "whether the behavio£ oftbe government officer is
so egregious, so outra~(1/Is. that it may fairly be .said to shock tt..e contemporary conscience," i
lAwts, 523 U.S. at 848 13.8 (emphasis added). Bccausez. reasonable person would look to the I
reosan or jusffficaJlon for the conduct, the "shocks the amscience" lest under theDTA also
I
contemplates. such an inquiry. Id at 846 (asking whether the conduct amounts to the "exercise
power without any reasonable justification in the service of a legitimate goveinmenla.!
I
objective">-

or

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For these reasons, we oonclude thai the term "outrage.s upon personal dignity" invites, no~
forbids, an inquiry into the justification for governmental C(lnduct, as the term calls for the
outrageousness of the conduct to be evaluated in the manner a reasonable person would. To be
sure, tbe text ofCommon Article 3 introduces its specific prOhibitions, including its reference to
"outrages upon persona! dignity," by mandating that such acts "are and shall remain prohibittd
at any limz andin any place whatsoevu." This text could be read to disapprove any evaluuion
of circumstance, or the considerations behind or justiliWions for specifically prohibited conduetj
See, e,g_, Pictet, rv Commentaries, at ]9 ("Tha.t is the method followed in the Convention when
it proclaims foor absolute prohibitions. The wording adopted amid not De more definite.. .. , No
possible loophole is left; there c.an be no excuse, DO attenuating: circumstance.'').
.

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Nevertheless. this inttoduClOf)' text does not forceJose consideration ofjustifica1ions and
context in detennining whether a pattieulu set itselfwould constitute an outraa15 under the
treaty. This Conclusion is supported by other terms in Common Article 3. For enmple,
Common Article 3 prohibits "murd::r," but murder by definition is not simply any homicide, but

6l

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killing without la\\o-ful justification. Common Article 3 may not permit a '"murder" t6 be

justified. but committing a homicide in self~efense simply would not constitute.a "murder."
Similarly, the term "outrage" seeks to identify eoaduct thu would be ulli..-ersaJIy ~nsid.ered
beyond tho bounds of decency. as ttansceoding"thefew essential rules ofhumannywhich all
civilised nations consider as valid everywhere and \,I/\der aU circum$Wlce.s." Pictet, m
Comm,ntaries. at 32. An approadl tlat foredosed considcruioo ofpwpose throughout

Common Article 3 cannot be squared with the ICRe Commentaries in evaluatillg wbelher
condud is hulIWle-a requirement ofCommon Article J tblt the "outrage upon pcswnal
dignity" tcnn is e;qnessly stued to adVUlCC. The bumane treaunent r.emenI is slid to
prohibit "any act of violence or inlimidmon. inspirLd not by military WrJirtmtlJu or a
legitimate tUsin for security, but by (J sysIunatic scom 101' human values." PiGlet, IV
CommUlJlJries. al2C4 (emphasis added).

An evaluation of circumstance l.hOOore is inherent in the pIt-in meaning aCthe term
"outrage," D. is il. concept., following relatively c1urprobibitions on particularly grave acts, that
tums to the objective judgment of reasorable people and proscribes coDduct that is so vile 2.S to I
be univenaJly condemned under any standard ofdeeency. Because it relies 00 such common
judgment, the lcfm "outrage" IWst evaluate coDduct IS reasonable people do, by weighing the
justifications for that cond~et.. A5 the Supreme Cowl ofIsrael reec:ntly explained in applyiog thd.
"rulcs ofintemationallaw" to Israd's "fight Iglilist tnternzrional terrorism," the priaciplC$ oftht
law bfwar in this context "are not 'all or aothiDg.·.. Public Committee Against TorlW'e In Israel
v. Goo.-unment of/STtlCl, RCI 169/02, at 34 (Sup. CL Isrtel. Dec. 13, 2(06).

!

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That the prohibition of"outrage$ upon personal dignity" looks behind conduct for its
justifications illuminates the decisions oflhe ICIY interpreting this term. For example. in
Prosecutor \01. Kovac. IT-96-238 (Appeals Chamber. Iune 12. 2002). tho tribunal held that forci
a teenage girl in detemion to dance ~aked on a table was an "outrage upon personal dignity." /d t
1.1 160. These facts involved clearly outr.tgeous coo.duet undertaken for no purpose other than thel
prurient gntificatioD oftbe defendznl. None oftbe CIA's proposed teclmiques bears a pil.SSlng !
resemblance to tbe prurient and outrageous conduct at issue in Kovac.
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!

The proposed techniques also contrast sharply with the outrageous conduct documented
at the Abu Ghraib.pri$On in Iraq. As General Antonio raguba's official investigalion reported. .
the detainees at Abu Ghraib were subjected to "sadistic. blatant, and wanton cominal abuses." I
S~.e General Antonio M Tl8\lba, Article 15-6 lnvutfgation olthe 800th MlJitory Policy Brigade
16 (May 4. 2004) (''Taguba Report"). The report clJarged the offending military penonnel with

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"forcibly arranging detainees in various sexually explicit positions for photographing"; "forcing
naked male detaill«s to wear women'sund~rWear"; "forcing groups of~le defainees to
masturbate themselves while being photographed IJId videotaped"; "arranging naked male
"
.
detainees in a pile and then jumping on them"; "positioning a naked detainee on a MRE Box,
with. sandbag on his head, and .attac.hing wires to his fingers, toes, and penis to simutue clectric I
tortlJre"; "placing ~ dog dl4in or strap around a detainee's neclc and having a female soldier pose
for t pictUre"; and "sodomizing a detainee with a cllemiczJ ligi'lt and perhaps .lI broom stick. ·ld
al t6-17. These wanton acts were underWccnfor abusive and lewd purposes. They bear no
I
resemblance, either in purpose or effect, to any of the techniques propo~ for use by the OA,
whether employed individually OT in combination.
.

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The contrast with Kovac and the acts at. abu Ghraib go!S some way to highlighting the
conduct that paragraph l(e) does reach. M the ICRC Commentaries have ~Iained. paragr~ph ,
I(c) is directed at "acts which world public o~inion finds revoldn~-aets which werc commIttedI'
frequently durinB the Second World War." Plctet, m Commenlanes, tl39. World War n was
typified by senseless acts ofh.aued, an<! humiliation or degradatio~ for no ~easo~ other thz.n to
reinforce that the victims had been vanquished or that they were Viewed ~ lnfenor because of
their nationality or their religion. Needlessly exposi.ng prisoners ~o pu~lic curiosity is part Ofthi5
dark history, ue GPW Art. 13, and commenL1.ton cIle as a paradigmulC example ofsuch . 1
conduct the parading of prisoners in public. See Dtlnnann, EkmenJs ojOimes. a1 323 (referring
to the post-World War IT prosecution ofMaezler for marching prisoners through the streets of 1
Rome in a parade emulating; the tradition of ancient triumphal celebrations). In another case. I
Australian authorities prosecuted Japanese officers who tied Sikh prisoners of-war "to a post an~
beat them with sticks until they lost consciousness." Trial afTanaka ChlfichllJ/1d Two Others
(1946j, Xl Law Reports ofTTials of War Criminals: United.Nations WaI Crimes Commissions
62, In addition, they shaved the prisoners' beards and foreed them to smoke cigarettes, in
deliberate denigration ofthe Sikhs' religious practices requiring facial hair and forbjdding the I
handling o! tobacco, all as post hoc punishmenl for minor infractions oflbe rules of the prison l

I.

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These acts were intended to hum/liatg, and nothing more-thete was no setUrity
justification, no carefully drawn plan to protect civilian lives. Th!Se were part of a panoply of r
atrocities in World War U meant 10 "reduce meo to tbe state of animals." mez:ely because ofwhd,
i
they were. See Pictet, ill Commentaril!s, at 627. These acts were undertaken for wllo11y
prurl.ent. humiliating. or bigoted ends, and that feature was an inextricable part of what made

I

them "outrageous." 41

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.4 in this way, ads inlenlkd to denigra~ the rtli3ion ofdctaine:i impllea!e Common Artiele). AllJlIrogh
pw:w.ant to i di1!m.nt stmdant appllable to ~= af w:lf UIIder the 1929 (koC\'3 Convenl:ion, the AlISI.r:I1ian
war crimes p~on suggests that som: WliridtnliOIl oflhe c;ulrnr.a.I seruilfvides of ~ may be reln"llnt
when delerminillg ....1Jemer there has beo'1 • :subjective i!1lcntlO humili.ale, Th:>'e, th: Japa..a=sedd"cn.:hn1s sought I
out the fealUfC$ of the Sikh religion and sougbt to e:q>loit tho5e In putieulaJ:. with IIOpwpose other than 10 hwnilwc
the detainees. This is not what oecuTS in the CIA progrvn. It should be noled thaI, upon intake wlOcu.stoclr,!.he
CI A doe.s trim the hair IIIJd shave tilt. beards of detainca to prevelll the lntroducUOli. ordisuse and WC2pons uno Ill;
fadlity. Alter this iJdtial shaviiJl, d~ees are permi~ to grow their hair to!Ily desired length.. We have alrcad)l.
conduded Ihal such limited usc of involunlU)" grooming by the CIA is a'IlUi~cnl with Common Anicle J. ~~
i
Lettetto John ~ Rjuo, Acti.IIg Geoer.tl. Counse!, CalIr:lJ InteUigm:e Agelit)', from Sta~n G. Bndbury, Acting .
Assistanl Attorney Geaeta.l, Office of~gal Counsel, at 11·13 (Aug. 31,1006). ~ tile differeace here is!ha,
the purpose isnol to hwniliare the detair.ee. or to c~ploitllllyparticular sensitivity, but to sef..'e leghimuc seamty

I

and

h}'giene purposes.

., Our inl:erprcution ~ i.! a1soconsiSlCflI with !he fact th2t par.!,grapn He) is nota prohibition on
simplldtcr. but insread pl'Q5Q"lbes "outnges IIPonpersqnO! dignity." (Emphasil; added) The woms
"upon pemm.al. dignity" may be read to specify the injury thal must occur befou we ~-alua.tc w~thu the eattting
conauet con,rtjtul~ an "OU1ril,SC." Put dif!"ertt\[Jy, parlgrJ:ph I(e) is iIOt a (rce·fio~tin:inquiJy into !he jll.Sritic;a{jons!
for sate party conduct 41Uin1 an anncdcon1lid.IlQt ofanlntematio;,.,1 elwa~r. [ns{ead, there mllSl be some
I
affront to "p::noniLI dignity" before lhat inquiry is triggered. The words 'Upon pmonal dignity" may also bc read tJ
consttain the cottSlder.tliol\S that rri:ly be brought to bearin determIning whetbcr 1m "ClUl:Qgc"tw oo:;:urnd. In Lhis
regil11. the tom may be 4r:siped to focus pzragnpb l(e) on the penon subjected 10 slate patty conduct, tnd his .
"ou~"

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---_ ... - --

,

-------

.--_ ....

-

.
With these principles in nUnd, we turn to wbetbu the proposed CIA t~qu~s are
consistent with Common Article 3's crohibition aD "outrages upon personal dlgruty, 10
:
partiOJlar, bumiliatio!J ud degrading treatment" We alra-e1y have det~ t~l the CIA.
program
not "shock the conscieoce," 01 thereby viola1e )ocg-standlng pnrJCJ~les orUruted StateS law founded in the Fifth Amendment to our Coristitution
incorponlted rnto the DTA..\
&pecially regarding a te.'1l1 that, in many ways, provides a protectIVe buffer around the
;

does

I

an?

compua1ivety specific prohibitions in Common Article 3, it is appropriate for the Unit~ s~esl

to tum to its domestic 1~a1 tradition to provide a familiar, dis.cemable standard for.be mquuy I
that paragnph l(c) requires. As we explained above. the MeA reflects.a consider~ judgmem
by Congress that the DTA tightly flu the requiremenu of Common Article J, and this
congressional judgment i.s important in determining the proper interpretation of Common. Article
J for the United States. The DrA asks whether conduct "$hock.s the cootemponry COMc:ltDCe.1
it evaluates the judgment ofthe reasonable person. and jt VIcks the inquiry that the plain
meaning ofthe term "outngc,s" invites. Thus, ourconchuion dw!.he program is consi!tent wi~
the Dr A is a substantial factor in dcl:ennini~ tlW the prognm does not involve "outrages
pcuonaJ dignity" under Common Articlc J.

I

1

upo1

But consistency with the DTA is not the only basis for our conclusion. In the limited
context at iSSl.lc herc, thc CIA program'$ narrow rocus, and its compli."lee with the careful
safeguards and limitations llI&Ol'poratcd into Ihe progmn, provide adequate protection against
"outrages upon pcr!lOnal dignity" prohibited by Common Article 3. Otputicular imporunee is
tha.t the interrogation tedmiques in the CIA program are nOl a SWIdard for creating our enemie.$ .
\l,"hcrcver wc find them. inc;luding those in miljtary OJstody. lnstead, the OA program is
I
narrowly largetcd at a small number ofthe most daogUOlls and knowledgeablc of terrorists,
j
those whom the CIA Iw reason to believe harbor imminent plans to kill civilians throughout thtl
world or otherwisc possess infonnation of critical intclligence value concerning the leldership or
activities of aJ Qa.eda. For those few, the United StaleS takes measures to obtain what they know,

I
i

dignity, ~thu.!han th~mtelltion orthestate ador ot!hereascns ror!be actor's conduct. lbis bIIer hW:rprcta1ian
would constltute;ll point of dcpartwc fiQm intcmalionat pn.eti~ whieb has lQOked to !he lnteJllion and purpose of
the sate a<;tot. as well as th~ COlilelCl ohlldjust:ificatiollJ!orth~C'lIndutl. In lJIy event, !he fo~in& hUtOril;:J1
C.'<amples demonwalC lb.at we need to know why the CQllduct is Ill1daUkl;.ll 10 determine whc:!hcr it is '-1l "outrage
upon personal d1gnlty." Mardtlnga:ptuJed prisoncBasa mwu o1tn:lSpOn docs nolevoke the same reaetion,
rising to the level of an "outr.lge," as the ~$C1C5S parad1n,ofprisonef110 hwniliate them. Tn this way, the "';:Irds
"upon personal dignity" cannot be read 10 coniine pangraph He} to d:mm:allng a:I abso~ute I~l of hardship thai
will not be tolenlCd. Instead, whether an afrTonIlO "'personal dilRily" Q(:(UU dcpew to some: degree on the fCZOIl
. why • har4shlp Is bejllg in;poscd. The tCIYll l5 best IUd as I prohibition 011 the artIitrny, die WVltOn, or the
di$CCI:nforting ofpct5ll.ll5 ~ted.cd by Common Miele 3, all well as. in conic cues. UMo:::es:sary or careless
mlstnatmcnt, eY'l:n when the O\=\."tb.ingjustifiatiOll is legitimate. A5 we expl2.ia below, these prinCiples do IUlt
de.scnDc lbc carefully drawn :uu1limitcd CIA interrogation tccbniqtJCS.

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prurienll

I

<l As we did \lith the DTA, W~ belie\~ II apprnpriate to eo."t1uatc ;MlLjUSl eadl tcdlllique in lsolt.tioll, bot the
dfeeu of lhe techniques- in Q;lmbinaion. ~" I..t., A1WuvsJa. 'i 57 ("1ndcccI, lhe .seri0U$l'lCS$ of"an IlCI. and its
consequences nuy we eil'la from the fUlUre oftbe act: ~r s( or hom lIle ~llon dUlc lei or from .I
combilwioD of ditfa-enr.aets ",ilicb, Uhn individuilly. would not co:uti"tuIt a crime wilhb!'tbe tlleaIIi:JC of Asticl: ~
of thc~ Geneva. ConwntiOIl5..). We hlwe coodudcd t1u1 the r=uuques in t:OllIbinalion would DOt violate th:
;
constilUliolial SWlda.n:ls incolpOl'2tcd in the DTA, uc $Ilpro at 47-48, and 'Ie a,p.i., c:nncIude lhal pmgrzpb l(c) I
....owd. DOt be violated b)' tle ted\4iqlIes, used titker individQllly or In oombinalion.
.
.

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~

.

li~itcd

but each techn,ique is
10 keep the dr:tainee safe and its application is ciTCUmscn"bed by
extensive procedures and oversight Those ~ implement these tedmiques are a small number
or CIA professionals trained in the technlques"carefullimits, and every interrogation plan is .
approved by the Director of the CIA.

II

In addition. as we have emphasized thtoug,hout this opinion. the CIA's detailed

proccduns and safeguards provide important protections ensuring: that none oftbe techniques
would rise to lhe level ofan outr.!ge upon pcnonaI dignity. With regaId to the c:orrective
I
techniques. the CIA has assured us that they would DOt be used with an intensity. or a frequency'l
that would cause significant physictl pain or injuf)'_ Ste AIUsavski, 157. Wilh .all the
tcc.hniques. the erA woold determine in advmcc their suitability and dltk safety with respect to
each individuaJ detainee, with the assistance of professional medical and psyebolo~
I
CQrniniltions. Medical penonnel.further would monitor their applicatioo: CIA personnel.
including mediceJ professior:a1s, would discontinue. for enmple. the sleep deprivation technique
if they delc:nnined thet the detainee wu or might be suffering fi'om extreme physical distreM.
Ea<.h dewoce may reu:t differently to the combinatiQn of enhanced interrogation techniques to
which he is subjected. These safeguanis and individualized attention arc ccUciaJ to our
conclusion that tbe co~bined use oftbe tcchn.iques would not violate CQmmoo Article 3. See
supra n.SO.

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A3; such,

the techniques do riot impliG4~ the core priDciples of the prohibition on

I

"outrages upon pe;rsonal dignity." A rwonahle penon, cotisidering all the eirQImstwces, woulfi
not consider the conduct so serious as to be beyond the bounds of human decency. The
techniques are not intended to humiliate or to degrade; rather, they are carefully limited tathe
purpose. of obtaining critical intelligence. They do nol manifest the "scorn for human values" 0

.
1

reflect oonduet done for the purpose of humiliating and degnding the detainee--the dark past 0
World War n, against which paragrap~ I(c) wu set. As we explain above, a reasonable person
would consider the juititication"fo( the condua and the full context of the protective measures
put in place by the CIA. Accordingly, the careful limits on the QA program, the narrow focus
of the prvgram. and the critical purpose that the program serves are important to the conclusion I
that the six techniques do not constiwre conduct so serious as to·be beyond the bounds ofhumarl
decency.

.'

.

[

I

The CIA hu determined that the interrogation techniques proposed here are lIle minimum
necessary t9 maintain an effective program for this small number of aJ Qaeda operatives. That
the CIA has confined itself to such a minimum, along with rhe other limitations the OAhu
placed on the program, does not reflect the type ofwl!.nlOn contempt for humanity-the atrocities
animated by hatred for olhers that "were committed frequently during the Second World War"
and that "pu.blic opinion finds particularly revolting"-lt which the prohibition on "outrages j
upon personal dignity" is aimed. See Pidel, mCommmtaritS, at 39.

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Ov~ruching

the four specific prohibitions in Common Aniele 3 is a geoeral requirem

I

that pmons protected by Common Article 3 "sba.ll in all circumstances be trea1ed bumanely,
without any adverse distinction founded on rac.e, colour, religion or faith, sex, birth or walth, or

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any otheT similar criteria.·.., The text makes clear thai its four specific probibitions are directed
at implementing; the humane treatment requiremeot Su GPW Art. 3 , 1 (foll~8lbe. humane
treatment requirement with "[1]0 this end the foDowiog acts art and shaJl rernam prohibited").
As we have discussed above, those specific provisions describe serious conduct, and
strudUre ofCommoo Article 3 suggest! that conduct of a similar gravity would be reqwred to

th:

constitute inhumane treatment

The question becomes what. if anythillg. is requited by "lwmane trutment" uoda'
Common Article 3 that is not captUred by the specific prohibitions in subpangraphs (a)-{d). We
can discern some content from references to "'b.1manc trczancDt" in other parts of the Geneva
Conventions. For exarnpla, other provisions closely link humane tremnent with the provision of
the basic necessities essential to life. Astide 20 ofGPW mandz.tes that the "evacuation of
prisonen ofwu shall aJ.",,-ays be 'jJutedhumeuWy . ... The Detaining Power shall supply
prisooen ofwar who are being cw.teua1ed with sufficient food tnd potlble Wllter. and with the
necessary clothing and medical attention. ~c also GPW Art. 46. This theme runs tbroughol..'t
the Conventions, and indeed Common Article 3 itselfrequires & subset of such basic ~sities,
by mandlting,tbat the "wounded and sick dldl becoUected and cared for." OPW Art. J 12.
Given these refer~s throughout the Conventions. humane treatroeot under Common Miele J
is reasonably read to require that detained in the CIA program be provided with the basic
necessitie$ of life---food and water, sheller from the elements, protection from extremes ofhat
and cold, nece.ssUj' clothing, and CMential medial care, absent emergency circumstmces
beyond the control aCme United States.
n

We understand that the CIA takes cue to ensure that the detainees receive those basic
necessities. You have informed us that detainccs in OA custody are subject to regular physical
and psychological monitoring by medical personnel imd receive appropriate medical :lnd dental
care. They are given adequate food and as much water as they reasonably please. CIA detention
facilities are sanitary. The detainees receive nece5s&ry clothes and are sheltered from the
elements.
For certain detainees determined to be withholding high value intelligence, however, the
CIA proposes to engage in one interrogalion tochnique---dielA/}' manipuJalion-that would
adjust the provision oCthese resources. The detainee's meals ate lemporarily substituted for a
bland liquid diet that, while less appetizing than normal meals, exceeds nutrition ~equircments

a.,

' f This language does not create
cqul tremnc:n.trequil:emelll; inslad, [I provid(:$lh~t the. ruspect
da.uffiudol\$ ill. qoestioll ma)' natjustif), an)' devi1tion fromColllmon Nti(Jc 3's budillC st.uI4ud ofhumzn~
tra.tment. The Geneva Conventiollt elsev.htre.lIllpose equlllQtmtlll Rquitemaw.. SU GPW Art. 16 r{A1U
prlsoners or war wall be lncud Dfih by the De1ailIi:Ig Power, wid'lout~· ad\'e~ distiaction ba~ Oll ~c:e,
natlonaltt)', reUgiow bdid" orpoJitlcal opinioDs, at all)' Cltherdistinction fouDdtd on siJ'niw ai1.aia. '1 (cmplwis
added). Aniele 16 also provides specific ~ 10 itseqlll1 nemuenl rcq~Ult willi fC&UlI to priWDctS of J
war, whlcb we would ocpec1 to tiDd in Common Artkle] uit ""Cl"e abO.ln C'q1W aeatm:nl rc:quirml~m. The
i
amtrast with the le:xt of Articte L6 dmlllo.stntes lht Liobge of Common Artide )'$ ~-di..saiJnit::.pril1dplc to'
the provisiOCl r.4 hunuac trea1Inellt. The CoJrunrtllarlu furthu upl1in !hal distiAaiOJ'lS, even amq lhe listed
I
aiteria" tna.)' be made UDder Common Attidc j, JO loocuthc fleatllltnl of no (O\'l:(t:d JlCISoIlllf.&lb btIowthe
!
minimum staQd.ud or humane tIutlllenl. i'ictd. m CoI:lJMNa11u, at 4041. Thus., we !lm 10 detEmlinin, the basi I
COnltl\l or CoD:.lZlCJn Altice]'s hw::w:.c trQtml:Jll requ!rcmcnL

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'0

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for safe and bu.ltby medically appro..-ed diet programs in the United States. Durin~ appl.ication
ofthe techniq~ the detainee's weight is monitored, and the technique would be discontinued
should tbe detainee lose more than 10 percent afhis starting body weight. The elemcot of
humane treatment that we can glean from the strudu!eofthe Geneva Conventions is one of
"sufficient fo9(!." GPW AJL 46. Because the rood provided during the temporiry itJlpJicatio~ of
the dietary manipulation teehnique is sufficjent for buhb. we oonckide that it dOe! comply WIth ,
thc ..s.tfficient foodn element ofCommon Article )'s bJmanc trutmcnl requirement.
J
Cj. Akhovski. Case No. rr·95-)411.1108 (dismissing Common Article] charges against prison
warden who provided only two meals ~ day to all detainees OVCf l period of months and where i
some detainees lost over thirty pounds).

I

We also find it relevant Wt the CiA's interrogation and detention program complies with"
the substantive due p~ requirements of the FdUt AIllendment, which under most
circumstances reqUire "safe conditions," including "adequate food.. ~. clothing. and medical
care" and which are incorporated into theDTA. Youngberg v. Romto. 451 U.S. 301, 315 (1982).
Requiring the provision ofhuic n~ities is another elWnple ofbow the constitutional
standards incorporated in the DTA themselves provide a ubumme trewnent" principle that can
guide compliance with CODliDon Article 3. Congress recognized ts l1l\lch in the DTA., given the
st&tute's explicit premis.c that theFiftb, Eighth. IJId Fourteenth Amendments are directed against
• concept of "inhumane treatment or punishmcn.t." MCA i 6(c)(2).
The CIA progrun-under the restrictions that we have outlined-complies with eaCh of
the specific prohibitions in Common Article J that implement its ovetarcbing humLUm treatment
requirement. Outsi.de those four prohibitions, and the a.dditional concept ofbz.sic necessities that
we have discerned from tbe structure orthe Conventions, we confront another situation where
tbe content ofthe requirement is. underspecified by the treaty. See Pietet. IV C01TI11lenfaries, at
38-39 ("'The definition [ofhumene treatment] is not 4 very precise one, as we shall see. On tbe
otber hand, there is less difficulty ;n enumerating things which are incompatible with humane.
treatment. That is the method followed in the Convention when it proclaims four absolute
proltibitions. "). Again, this is a situation where the generality was intentional: To the
negotiators. "it scem[ed) useless and even dangerous to attempt to make a list of all the factors
that would make trea.tment 'humane.'" Id. a1204. The Cc>mme1l101'iu emphuize thtt ''what
constitutes humane treatment" requires a balancing of security and humal1itarian concerns. The
detainees may well be "the object of Jtrlcl measures," as the "mM5ures of SCCLlrity or repression,
even when they are severe," may nonetheless be tompatible with basic hum&nitarian standards.
/d at 205 (emphasis added). Given the deliberate generality of the humane treatment standud. i
i~ r~asonable ~otum to oucown Ia.w, whic~ establishes a.st~ard of humane treatment that
smularly reqUires a balance between seamly and hUlIlll:nltanan concerns, to provide content to
otherw;se unspecified tenns in the Conventions. Because the CIA program complies with the
standard of humane treatment provided in the Detainee Treatment Act. 81ld the U,S.
I
constitutional standards that it incorporates, and because it provides detainees with the necessary,
food, ~heltcr. clothing, and medical c:arc, the CIA program satidieli Common Article 3's human~
treatment requirement.

II

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c.
We aho recognize that theprw::tices of alber state parties in implementing Common
Article J-as opposed to the statements of other staleS unsupported. by conctete eircumstan~s
and conduct-<:an serve as ", supplementary means ofinlerptelaOOn." S« V1eJIna Convenuon
00 the Law of Treaties Art. 31(l)(b). We have searched for evideoc;.e of state parties, see!<ing to
implement Common Article J in a context similu to that addressed berein. The: one example
that we have found supports the interpretation of CommOn Article 3 ti\al we have SCi forth above.
In particular, the United Kingdom from the time of the adoption of Common Article 3 until the
early 1970$ applied an interrogation program in a doun counter-insurgency optzations that
rt:Semble! in several ways the one proposed to be employed by the CIA.

,.

Following World War n &nd the adoption ofCommon Article 3. the United Kingdom
developed and applied five "'in depth intrnogation" techniques "to deal with a number of
$i~tions in~lvin8 intemal security." Rtport ojth, CommftJu ofPrivy CounstJlors Appointed
to Consider Aut1lbritul ProcaJuresfor lhe Interrogation ofPerscTlS SllSfNcud oJTurorlsm,.
1972. Cmnd. 4901, 110 (HSMO 1972) \parker Com...nittee Report"). The five techniques
involved (i) coverinS a detainee's head at ali times,. except when the detainee was under
interrogation or in an room by hiiIlSeJf, Co) subj«ting the detainee "'to continuous and
monotonous noise or a volume calculated 10 isolate (him) from communication"; Cui) depriving
the detainee ofsleep "during the early dtys" orthe interrogation; (iv) restri.eting a detainee's diet
to "OM round ofbread and one pint of water al six-hourly inlerv&1s"; and (v) forcing a detainee
to face-but not touclJ-a wall with his hands raised and his legs sprud apart for hours al a li
with only "periodical lowering oCthe arms to restore cirQJlation." Lord Gardiner, Minority
Report, Parker Committl!:e Repor'.. 1 5 ("Gardiner Minority Report");Stt also Parker CoIl1!t1ittee
Report ~ 10. Broadly speaking, the techniques were designed to make the detainee "feet that he
is in a hostile atmosphere, subject to strict discipline, ... and completely isolated so that he fears
what may happen next." ld 1 11. From the 1950s through the early 1910s, the British employed
some or all ofthe five tubniques in a doun "counter insurgency operuions" aroW'ld the world,
including operations in Palestine, Kenya, Cyprus, the British Cameroons, Brunei, British Guian
Aden, Malaysia, the PersillJl Gulf, and Northern Irela.nd. Se~ id.
In 1911, after the public learned that British sOCOJrity forces had employed these
techniques against Irish nationals suspected of supporting Irish Republican Army terrorist
activities, the British Government appointed a three-person Committee'of Privy Counselors,
chaired by Lord Parker orWaddington, the Lord CbiefJuslice ofEngll.nd, to examine the
legality ofusing the five interrogation techniques against suspected terrorists. See Parker
Comminee Report Vii 1-2. Among other Ihings, the commiltee cor.sidered whether the
techniques violated a 1965 dire<:tive requiring thllt all military interrogations comply with
..Article J of the Geneva Convention Relative 10 the Treatment ofPrisoners ofWar (1949)." See
id TJ 4-6 & Appx. A majority of the committee, including the Lord Chief Justice, concluded
that the "application ofthese techniques, subject to proper safeguardS, limiting the ocusion on
which and the degree to whict. they can be applied, would be in confontlity with the Directive i
(and thus with Common Article 3]." ld. f31.

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In reacbing this COocluSIOD, the Parker Committee rejected the notion that "the end
II·
justifies the inean.s." fd 127. It repeatedly stressed thal. aggressive interr081!:ti~ tcchni~ue5
"should only be used in cases where it is considered vitally ne«5SUY to obtain InfO~O~." Idl
l' JS. It also·emphasized tbat interrogators should be properly uained ~d
clear ~.lIdehnes
should exist "to assist Service personnel [in deciding) the degree to which ID any partIcular
circumstances the techniques can be applied." Id Similarly, it recognized the importance of
obtaining approval from senior government officials before employing the five techniques, id.
t 31, and it recommended that aggressive interrog;tions ocwr only in the presence of a "senior
officer" with "overall control and ... pemlnal responsibility for the optntion." ld '1138. The
committee also concluded "that ~ doctor with some psychiatric training should be present at aU
tim~ at the interrogation centre. and should be in the position to observe the course of ocaJ
mterTogation," $0 that he c;ould ':'warn the controller irhc felt !.bat the intetTogallon was being

:tw

pressed too fa(' {although. in contraSt with the CIA program. the doctor would not have the
actual authority to stop the inteJTogttiOns}. Id 141.
The Parker Committee emphasized, howevu, that its rejection ora pure "eOOs-means"
analysis did not mean that Common ArUcle l batTed countries Crom giving some weight tome
need to prated their citizens against the ItarIl). ~ea.tened by terrorist or insurgent operations.
The committ~ for exa.mple, emphasiud thai, when properly administered, the five inteJTogati ,
te<;bniques posed a "negligible" "risk of physical injury" and "no real risk:" of"long-term menu.ij
effeas." Jd.
Yet they had "produced very valuable results in revealing rebel
I
organization, training and 'Btttle Orders.'" fd 118. In Northern lre1a.nd, the Committee
.
observed, use of the techniques after "ordinary police interrogation had £ailed," led to, among.
other things, the identification of more than 700 [A.A. members, details about "possible IRA.
operations" and "future plans," and the discovery oflarge quUltities of anns and explosives. fd
S~ 21-22. The Committee emphasized thatlhe teclut.iques were "directly and indirealy ...
responsible for the saving of lives of in~nt citizens," ld ~ 24.

,"'4-l1.

More broa.dly, the Parker Committee explained Ihat the meaning of Common Article3's
restrictions must be interpreted based on the noMe of the conflic!. Set Id. , 30 (explaining that
terms such as '" humane,' 'inhuman,' 'humiliating,' iUld 'degrading' faJl to be judged by [3
dispassionate] observer in the light ofthe circumstances in which the teduJique3 are applied").
Accordingly, the committee concluded that Common Article l mUSI be interpreted in light oflh
unique threats posed by terrorism. Although "short of war in its ordinary sense," terrorism is "i~
~an~ ways worse than war." Jd t 32. ItocQlfS "within the country; friend and foe will not be I
Identifiable; the rebels may be ruthless men detenninerl to achieve their ends by indiscriminate
attacks on innoc.ent persons. Ifinfonnalion is to be Obtained, time rouSI be oCthe essence ofthe
operation." ld. Moreover, factors that might facilitate interrogation in traditional war-such as
"ample information" to assist interrogators and "a number of prisoners who dislike the current
enemy regime I!od .are only too willing to talk"-are often absent "in counter-revolutionary
operations." [d.
25-26. See also id (noting difficulty in obtl!ining infonnation "quickly").
Consequently, the Pmer Committee concluded that in ligilt of the natllrc ofthe terrorist threat,
the interrogation techniques employed by the United Kingdom were consistent with Common
Article 3.

n

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"

7J

Shortly alter the Pader Coml'ninee issued its report, Prime Miniw:r Ed~d Hath
announced that, as a matter of policy, Britain woul~ POl use ~ five techntques UI future
I
interrogations. See Debate 00 Intenoguion Techniques (parker Committee Report), 812 ParI. !
Deb.. H.c. (5th Sa.) 743.50 (1972); see also Roger Myers, A &mtdyfor Northun Irclf1!Jd: The
Case/or United Nations Pmuheplng [rrJervtJltion In An Intunal Conflict, 11 N.YL. S~ J.. I
Int'l & Compo L I, 52 0.220 (1990). The Prime Minister did not, to our kn~edg~, take Issue

with the Lord Cbief Justice's interpretation ofthe United Kingdom's treaty obltgatlons under
Common Article 3, however. Indeed, in announcing what he stated was a change io policy, the
Prime Minister emphasized that the majority ofthe Committee "conclude[d] thai usc ofthe
methods GOuld be justified in exceptional circumSlal\~~." subjw to safeguards. !d, at 743.
That for more than hvo decades following the enactment of Common Article 3. one afthe
world's leading advocates fur and. practitioners oethe rule of law and human ri~bts e~ployed I
techniques similar to those in the CIA program and determined that they complied With Commo~
Aniele J provides strong &Upport Tor our c;onclusion that the CIA's proposed techniques are alsO\
consisteot with Common Article J. TheClA's proposed techniques are not more grave than
.
those employed by the United Kingdom. To the contrary, the United Kingdom found stress
positions to be consistent with Common ArUde J. but the CIA c;urreotly does not propose to
include such • teehnique. Consistent with. recommendations in the Puker Committee's legal
opinion, the 'CIA has developed extensive ufquards, including written guidelines, training,
.
close monitoring by medicz.llnd psychological ptr50nnel;and the approval ofbigh level
officials to ensure that tbe program is confined to safe and necessary applications oethe
techniques in a controlled, professional eavironrnent While the United Kingdom employed
these techniques in a dozen colonial and related conflicts. the United States proposes to use th
techniques only with a smdl number of high value terrorists engaged in a worldwide armed
connict whose primary objeaive is to inftid mass civilian casualties in the United States and I
throughout the free world.

I
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1
J

The Umted Kingdom's detennioation under-Cammon Article J also sheds substantial
light on the decisions of other intemational tribunals !flplyinglegal standards that fundamentall .
differ from Common Article J_ As diSCUssed above, the European Court ofHllrnan Rights later i
found that two of the interrogation techniques approved by the Committee--diet manipulation
and sleep deprivation-violated the stand·a1one prohibition 0::1 "degradiog treatment" in the
European Convention 00 Human Rights, 10 which the United States is not a party. Ireland v.
United Kingdom, 2 EHRR 25 (1980). The court explained Ihat "degrading treatment" under the
ECHR induded actions directed at "breaking [the} physical or moral resistance" of detainees. I .
~ 161. The court's capacious interpretation oflhe European Convention'S prohibition on
I
"degrading treatment" is not well-suited for Common Article J. ~ Indeed, the European Court

J

I

JOlbe [snell Supreme Court in Pvbli~ CcmIn;tfttAtcdlut TorllUt P. [gad, HCJ 510C1194 (1m). a.Is:o OIJt
the EOiR dcdsion aDd.obser.~ lhat a coll'lbina1lon of int~tiOIl letbniques migN ooostitatt "'in!luIIIIn aDd
de:radinf" tteamcnl St, Id at 27-21. AswSC\U.SlClCl almt, Ie. "'P""tJ .tl41-U.. the lsndi ckdsion llJmcd prilr..vilr
llpon :hal natioU:, mtIa10ty 1m and did 1UII. ~ pwJlOIt to d&~ wh21 QlIlStinncs -jMWllaII tnd degndir.£'1
ltatrllClJ! u.:ader my pznIClilar b'eU}., ttweb less _tat rises 10 an "oornsc upon pcmma1 dipliry" or otha violaDCIft
of ColNriOll Midc 3. Six yean: W:r, !he .same COIIIt recoPttd tIw. die intemational bw appliablc to domtstil; !
~ ~I\' c~~ and ~ 3pp1icable ti) III armed co."1flia fandiinaltaIly differ: Whilcthe tbl11lCf pIaas
absolute rcsI11CDOns an degtad!n,: tre.tlrJ.ent :eucnlty. the ..... d.rmcd c:on."lic:l requires a bmncin: against

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has interprded that provision not only to impose detailed requirements on prison conditioM, but
also to prohibit any ldien that drives &It individual ''to aet against his will or consciencc," a
standard that might well rule out any significant interrogation at !II. See Gruk Case, 12 Y.B. .
1
ECHR J86. Those decisions reflect that the Europeu Convention is a pw:etime treaty th:u
prohibits any Form of"degrading treatment." while Common Article 3 prolu"bits only
I
"humiliating and degrading treatment" th&t rises to the level of an "outrage upon personal
I
dignity:' Common Anicle J is a provision designed for times ofwar, where the gaIhering of
intelligence, often by requiring a captured enemy "to act against his will or co~e.nce" or by I
undermining his "physical or moral resistanee." is to be ~cted. Furthermore, It IS unclear mal
the ECHR jofre/and v. UK was confronted with techniques that provided adequate food and I
that were wefully designed to be safe, such as those proposed by the CIA

!

It is tnc United Kingdom's interpretation of Common Artic;le 3 in practice that is relevan
to our detennination,·not the ECHR's subsequent interpretation oflhe legality ofthe United
Kingdom's techniques under. different treaty. The practice of the United Kingdom in
implementing the interpretation ofCornmolL Article 3 suppons the interpretation set forth above I
D.

For these reasoos, we interpret Common Article 3 to pem:it the OA's interrogation and
detention program to go forward. Part of the foundation ofthi$ interpretation is that Congress
hu largely addressed the requirements of Common Article 3 tfuoogb the Wu Crimes and
Detainee Treatment Aeu. These provisions include detailed-prohibitionl on particularly serious
conduct, in addition to extending the protection orlne Nation's own COlUtitutionaJ standard; t0
aliens detained abroad in Ihe course or6ghting aga.inst Aroeria, persons whom the Constitutio
W<lUld not otherwise TesCh. And the CIA's inttn'oS1tlOn program, both in its conditions of
confinement and with regud to the six proposed interrogation techniquas, is consistent with the
War Crimes and Detainee Treannenl Acts. To the extent that Common Article 3 prohibits
additional conduct, unaddressed by the War Crimes and Detainee Treatment Acts, the CIA
program is consistent with those restrictions as well.

I

1

.

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I

Just as important is the limited nalureofthis program. This program is narrowly targeted
to advance it. humanitarillll objective ofthe highest order--prevtnting catastrophic: terrorist
attacks-and indeed the CIA bas dCleonine<! that the six proposed techniques are the minimum
necessary for a program that would be effective in obtaining intelligence critical to serving this
end. It is limited to a small number of high value terrorists who, after carefui consider2.lion,
professional intelligence officen oflhe CIA believe to possess crucial intelligence. The pro
is conducted under careful procedures and is designed to impose no pain that is unnecessary for
the obtaining ofcrucial intelligence. At the same time, it operates within strict limits on condu .
including tho.se mandated by the War Crimes ACl. and the prohibition on tocture regardless of the
motivation oflhe conduct. Common Article:$ was not drafted ",,;tb the thTeat posed by ~ Qae&!
in mind; il cootains certain specific prohibitioD$, but it also contains some general principles

I

wit

legitim.itc militltJ nf.C:ds. P:.bfic Ctmtmi1ln ,fgatu( Torf¥Tt III lSTCltI 1'.

122 (Dec. 11,1005).

T1r~ Govonmorf rifltrruJ. HCJ 769~1,

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d~finition.

p-M:CliElTI

'

e~entuali.ties OfWJ

less
The genml principles leave state parties to address the new
to mold the interpretation oflhe Geneva Conventions by their conduct. We Will not Ilghuy
construe the Geneva Conventions to disable a. sovereign ~tc from defending against the new
types of terrorist attacks carried out by al Qa.eda.
The interpretation in tbis memorandum reflects what we believe to be the correct.

interpretation ofCommon Article 3. B~se certain general provisions in Common Article 3

!

were designed to provide state parties wilh flexibility to address new threats, however, !.he nature
of such fleXIbility is that other state parties may exercjse their dis.cretion in ways ~at do Dot
I
perfectly align with the policies ofthe United Statcs_ We rerogruze Common Arti~le 3 m~y ICO+
itself to other interpretations, and international bodies or our treaty partnm may disagree 10 J'
some respects wilh this interpret2tion,5!

I

Just as we have relied on the War Crimes and Detainee Treatment Acts, other states rna
turn to treaties with similar language, "but drafted for dissirnilu purposes, as a sou~ce of
disagrument. As discussed above, for example, the European Court ofHumau Rights
determined lIlat certain of the interrogation teGhniques proposed ·for use by the ClA-diet
manipulation and sleep deprivation-violated Ihe European Conventioo's stand·a.Ione
prohibition on "degrading treatment." Ireland v. United Kingdom, 2 EHRR 25 (1980). For
!
reasons we have explained, the ECHR decision (foes not constitute the basis for a correct reading
ofContmon Article 3 in OUT view, but the openness oC"humiliating and degrading treatment"
might not prevent others from, lllcorrecdy, advocating such an interpretation, and the State
Departmenl informs us that given the past staements of OUT EUropean treaty partners about
United Stat~ actions in the War on Terror, and notwithstanding some of their own past
practices, see supra at n.36, the United States could reasonably expect some of our European
treaty partners to take precisely such an expansive reading ofthe open terms in Common
Aniele 3.

I

II

Recognizing the generality of some ofCommon Article 3's provisions, Congress
provided a mechanism through which the President could authoritatively determine how the
United States would apply its terms in specific contexts. The Military Commissions A~ en5urJ
that the President's interpretation ofthe meaning and applicability of the Geneva Conventions I
would control as a matter of United States law. Section6(a) of the MeA is squarely directed at. i
the risk that the interpretations that 't\'Ould guide our military and intelJigence personnel could bd
Gut aside after the fact by our own «Jults or international tribunals, anned ·with flexible and
·1
general language in Common Article 3 that could bear the weight of a .....i de range of policy
preferences or subjective interpretations. To reduce this risk, Congress rendered the Geneva
Conventions judicially unenforceable. See MeA § 5(a). The role of the courts in enforcing the
Geneva Conventions IS limited 10 adjudicating prosecutions under the War Crimes Act initiated
by the Executive Sra..."lch and, even then, courts may not rely on "3 foreign or international source

""'"."",m. ,~~" 00" • ,,~,""bl,""""",,,,,,,,,,r~,w ,_ ,re""""oo

JI

,.,;<" J.
Common ArtIcle J is clw, SUle panies are obliScd.iS' ITUlluolinternal:lC/l'.1Il:aw (thoughnol neo=arily their
own dtImestic laws) 10 follow it, and S1:a\es Il.a~·e no 4iscretion und~ inlemationallaw to~pt WlI'QSONbJe
int~wtioos 2.t odds with the lUIguage ofl1leprovi!ion.

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oflaw" to decide the content oftne statutory elements in the W~ Crimes Act.• See id § 6(aX2)11
Congress also expressly reaffirmed t1}at the President has authonty for the Umted States to
jnfctpret the meaning llt\d applicability of the Geneva Conventions. See id. § 6(a)(J)(A). S~ould
he issue interpretations by executive order, they will be "authoritative ... as a matter ofUmted
States iaw in the same manner as other administrative regulations." {d. § 6(a)(J)(C).52

We understand that the President intends to utilize this mechanism and to sign an
executive order setting forth an interpretation ofComrnon Article 3. That action would
~
conclusively determine the application of Common Article 3 to the CIA program as ~ matter o.
United States law.. We have reviewed tbe proposed executive order and have dctmmned that It
is wholly consistttlt with the analysis of Common Article 3 set forth a'oove. See Proposed Ord<f
Entitled lnt~rprelation a/the Geneva Conventions Common Article 3 A.s Applied r~ a Program
DeteJl1ion and Interrogation Operated by the Centrallntelligence A.gency (Executive Clerk filial
draft., presented to the President for signature, July 20, 2007) ("Draft Order"). Because the
executive order would he public, it cannot engage in the detailed application ofCom~D
Article J .to the six proposed techniques embodied in this opinion. Instead, the executIve order
sets fo~ an ~nt~r~ation of Common Articl.e 3 at a high~r l~vel ofgenera!ity that tracks the
analYSIS In thiS 0plfUon and, thereby, conclUSively detenmnes that the CIA s proposed program
of interrogation and detention, including the six proposed interrogation techniques, complies
with Common Article 3.

rf

I

The executive order would prohibit any technique or condition of confinement that
constitutes torture, as defined in 18 U.S.C. § 2340, or any act prohibited by section 2441(d} of
the Wu Crimes Act. See Draft Order § J(bXi)(A}(B). This Office has concluded tbat the six
proposed tedutiques, when applied in compliance with the procedures and safeguards put in
place by tbe CIA. comply with both tile federal anli-torture staMe and the War Crimes Act. See

!

Section 2340 Opinion and Part ll,supra.
To ensure full implementation of puagraph.l(a) of Common Article 3, the ex.eQltive
order also would prohibit "other aqts ofviolence serious enough to be considered comparable t
murder, torture. mutilation, and cNel'or inhuman treatment, as de6ned in" Ihe War Crimes Act.
D,a1t Order § J(bXi)(C). As explained above (see part rv.B.l.a, supra), the six proposed.
techniques do not involve violenC8 on a level comparable to the four etIumerated fonns of
violence in paragraph I(a) of Common Article 3-iT!urder. mutilation, torture, and cruel

~nstitutioo

Pr~idenl

fo~g:n

I

andl
l

n The
grants lhe
geat atltltority-as our Nation's cltieforg,an in
iffnrs
as ColllJtl.aTlder Ul Chid-to i.nterprct ue.lli~s, puticuJ-art)' maties regulating wartime operations.. Tnost
i.ntetptel2!ions areordlnaril)· entitled to "grul ....'tighl~ by the CQllrts. Su, l.g.,$arichn·Uomarv. &tgon, 126 j
S. o. 2669, 2685 (2006). Co~gr~, howtvu.lkltmtint.d in lheMCA that il was appropriate loaffirm lhall1le
Presid.ent's imerprcutions of the Gent\~ Conventions an: entitled to protection. rl is IpiWcnt thaI CtmgTeSS was ~
~cling to lbe S~prp:nc Court's<1eci~on inHamdon, whichadClined 8JIlolerpretalion oflhe applit:lbHity or!hc:
I
Geneva COlJVCtlliollS COIUt3ly to thatofthe Prt::sideDt, wilbou! takiDg.=wu ofth: Presl~l's in!erpretatiOtl 51l I
Hatrnkm. 126 S. Cl al 2795,98; id. 312347 (Thomas, 1., diS$Cnting). The MCA the~fole ceIIectIi a conw=ional [
d!01110 restore the principall\'lle that me Presidcnl has uaditioll2lly played in <1efining our Nation's Iolernational !
obliptiolls. In !his regard., pItSidenlUJ. orden; un&r!he MCA would I\G( be subjca lD judicial revl.ew. Sa FrCt,kfi~
v. Massadul!ltfs, 50S U.S. 788, g~1 (19!>2) (bolding Ilutpresideiltial action is not subjed. to judicial revicw
;
under the Admioistr.ltive Proccdult ACI, or any c!her stl1UIe, lIbsenl "an cxpress stltl:ment by Congress").
!

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- - •• - - lIequency. and'intensIty
- 0r'c..
trutrnent. Th e limitatIons
on th c ....mlQlstrUion,
l.l... '-=lUuquC5-1n

partiaLIar, the corrective techni'iU~sure that they will not involve physkal force that rises
the level nftbt serious violence prohibited by the executive order.

fa

The executive order would prohibit any interrogation technique or tondition of
confinement that would constitute ~ "etue1; inhuman, or degrtding tIutmeot OJ punisbment'"
probibit~ by the Detainee Treannent Aa. and section 6(e) of the Military Commissions AcL
Draft Order § J(b)(i)(D). We have concluded tha1 the six proposed techniques, when used as

I

authorized in the context ofthis prognra. comply with the standard in the DTA and tbeMCA.

See Put III. supra.
To addte3$ paragniph I(c:;) ofCommon Ani~e:; further, lhe excrotivc order would bar
intetrogWoo techniques or conditions of eonfioemcqt constituting "willful aDd outn:geous aas
ofpersooal abuse dODe for the purpose ofhulOiliating or degrading the individual i.D a manner
serious that any reasonable penon, considering the circumstances, would deem the acts to be
beyond the bounds ofbuman decency, such as sexual or sn\laUy indeu:nt .as undertaken for
the purpose ofhumiliariOll, forci.llg tbe individual to perform sexual acts or to pose 5eXUalJY.
threatening the individual with sexual mutilation, or using the individutl as a twman shield."
Draft Order § 3(b)(i)(E). This provi$ion reinforces Q'\lcial fcalUres of the interpreta1.ioD of
paragrapb l(c) ofCoounon Article 3 set forth in this opinion: To trigger the paragnph.
humiliation and degradation must rise to the level of an outrage. and the lOon uoutnge" looks 10
the evaluation ofa reuonabJe pmon that the conduct is beyond the bounds of human decency,l
taking into consideration the purpose and COnlext oCthe conduct. fi As explained above, Inc sixl
proposed techniques do not constitute "outrages upon personJ.l dignity" under these principles;
thus, the tcdutiqucs also satisfy section
3(b)(i)(E)
ofthe executive order.
.i
.
.

!
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II

Also implementing paragraph l{c) ofCommon Article 3, the cxtclJtive order would
prohibit "acts !Btended to denigrate the religion, religious practi~s, or religjow objects" of the
detainees. Draft Order § 3(b){i)(p). The six techniques proposed by the CIA are not directed at
the religion, religious practices, or religious objects ofthe detainees.

I

The t~hniques l'.Ild conditions of confinement approved in the order may be used only
with certain alien detainees believed to possess bigh value intelligence (sell Draft Order
§ 3(b)(ii», and the program·js so limited (sce PartI.A, supra). The CIA program must be
conducted pursu.snt to ",,'fitten policies issued by the Director of the CIA (see Draft On1er § J(e) ,
and the CIA will have such policies in p'l&ce (see Part lA.I, supra). In addition, the exewtive
order would require the Director, based on professional advice. 10 determine thallhe techniques
are "safe for use with each detainee" (sel! Draft Order at § 3(b)(iii»), and the CIA jn~s to do sh
(see PartsiAJ and LB, supra).

I

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.
. Under the proposed executive order, detainees must "receive the basic necessities oflifo
lnciud108 adequate food and water. shelter from the elements, necessary clothing, protection

~

"l Not do tile
illwlvt any SCJ:Ual or stnallJ indecent ae:ts, m-..cll less Ihose refi:re:lc:cd in
. 4(b){i)(E) of the excaui\~ or<k:r. The techniques also d1J DOC involve the us::: ol4euim:cs as bumansbields.

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Order § 3(b)(iv}. This
requirement is based on the interpretation ofCommon Article )'5 overarching humtne trez1men1

from extremes 9fheat and cold, and essential medical C&Je." Su Draft

requirement set forth ZOO\'c, and 'we have concluded that the proposed techniques comply with
this basic necessities .standard. Su Put IV.B.l, supra. Should the Pusident sign the executive.
order, the six proposed techniques would thereby CQIllpiy with the authoritative and «mtrolling !
intetpfd.2tion of Common Article 3. as the MCA maUl clear.
i

v.
The armed conflict against a1 Quda-sn t:llem)' dedicated to carrying out catastrophic
attacla on the United S~es. its citizens, and its aDies-is unlike any the United Stales has

,confronted. The tactics necessary to defend agaillSl this unconventional enemy thus present a
. series of new questions under the law of umed conflia:. The con,lusions we have readlcd
,
herein, however, are as focused 3.$ the narrow CIA program we address. Not intended to be use4
with aU detainees or by !.ll U.S. person.,cl who inlenogare ctptured tetJ'Or\sts the CIA program I
would be restricted to the most lcnO\vtt4geable and dtngerous orterrorisu and i3 designed to
obtain infonnation a:ucial to defeoding the NUion. Common Artiel!. 3 permits the CIA to go
fcrwud with the proposed interrogation program, and the President may determine that issue '
conclusively by issuing an exCO+tive orner to that effect pursuant to his authority under the
Constitution and tho ~CA As explained above. the proposed executive order acoomplisbes
preci&ely that end. We also bave concluded that the CIA's six proposed interrogation techniquC$,
subject to aU of the condi.ions and safeguards des.cnO!d herein, would comply with the Detainet
Treatment Act and the War Crimes·Act.
•
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Please let us know if we mey be oFfurthet assistance.

I'I
Steven G. Bradbury
Principal Deputy Assistant Attomey General

79

u.s. Department of Justice

-

Office of Legal Counsel

Offit:<: of the Principal Deputy Assistant Attorney General

Wa.,;hingCOn, D.C. 20530

August 23, 2007

~counsel
Central Intelligence J\.gency

De~

of

eiPt afyauf August 23, 2007, letter regarding the interrogation
and our Office has had various discussions with
thrall out the da .
u ave ann us that as of
as t at tet? .que is described in CIA
guidelineS~ThiS
Office has
ded tbat
application of the
technique
complies wlth applicable legal.requirements. See
Memoran urn or·John A.. Rizzo, Acting Ge.neral CounseJ, Central Intelligence Agency,
App'lication ofthe War Crimes Act, the Detainee Treatment Act, and Common Article 3 a/the
. Geneva 'Convention to Certain Techniques that May Be Used by the CIA in the Interrogation of
High Value Detainees (July 20, 2007). In that opinion. we recognized that the CIA contemplated
,applying the technique for up to
We ~dvi,sed" however, that
"should the CIAdetertrime that it w Id be necessary for the Directdr of the CIA to approve an
extension
with respect to a pacti,cular detainee. thi.s Office wouJd
provide 'l.;dditioilal gUidance on t e app lcatiori·ofl~gai standards tq'the facts of that particular
case." Id at 8 n.7.. Under CtA guidelines. the Director would approve extensions afup to.
_
after seeking.guidan·ce tram this Office as·tb.the legality of such ~ additional period;
considering the current physipal and psychological condition of the ·detainee and the need for
such an extension: You have requested legal guidance with,regard to an extension continue to.·
apply the
technique until 1205 E.D.T., August 24. 2007.
_

,

.\

au

to

A$ s~t forth, below, we conclude that the additional 'period requested .would C9mply.with
altapplic'able legal standards•. includmg the fedcraranti~torture statute,
War Crimes Act, the
D~tain~eTreatment Act. and Common Article 3 of the Geneva Conventions, as interpreted by

the

.-:\

•

This memorandum is cJassifi~~ in its entirety..-

\

the President in Executive Order 13440 ~). You have informed us that medical and
psychological personnel have examined_and determined him not to be suffering
from any physical or psychological contraindications. In articular s chala leal ersonnel
have described him as "mental! alert."
ffis vital signs are within normal parameters.

Based on your r~po~oes not appear to be suffering from the physical and
psychological conditions that would implicate any of the applicable legal constraints. The
continuation ofthe technique, based on the infonnation you have provided us, also would be in
. tlose service of an important governmental need. We,understand that CIA personnel will
-administer the technique under the.procedure5 and safeguards described in this Office's July 20,
2007 opinion: Specifically, we understand that the technique will be discontinued within the

period oftbe extension if any' of the psychological'or medicaJ oontraindications are observed
through regular psychological and medical monitoring, as described in the July 20 opinion.
Please let us know if we may be of further assistance.

Steven G. Bradbury
Principal Deputy Assistant Attorney General

~I
2

u.s. Department of Justice
Office of Legal Counsel

Office of the Principal Deputy Assistant Attorney General

Washillgron, D.C. ]0530

November 6, 2007

Associate General Counsel
Central Intelligence Agency

We are in receipt of yourNovember 6, 2007, letter regarding the interrogation of
and QUI: Office has had various discussions w~ today and yesterday.
You have informed us that as of 1700 E.ST., November 6 -2007,~vilJ have been
subjected to
technique, as that technique is
gut e meso This Office has concluded that_application of the
described in
technique
,complies with applicable legal
r.equirements, subject to specified conditions and safeguards. See Memorandum for Jolm A.
Rizzo, Acting General Counsel, Central Intelligence Agency, Application a/the War Crimes Act,
the Detainee Treatment Act, andCommonArticle 3 a/the Geneva Convention to Certain
T.echniques that May Be Used by the CIA in the Interrogation ofHigh Value Detainees (July 20,
2007). In that opinion, we reco ~ ed that the etA contemplated the possibility of applying the
technique for
We advised, however, that "should the CIA
detennine that It wo
e necessary for the Director of the CIA to approve an extension_
· _ w i t h respect to a particular detainee,· this Office ~ou1d provide additional
~cation oflegal standards to the facts of that particular case." Jd at 8 n.7.
Under CIA guidelines, the Oil-ector would approve extensions of
after seeking
guidance from this Office as to the legality of such an additional period, considering the current
.physical and.psychologi~al condition -of the detaiI1:ee and· the need for such an extension. You
have requested legaJ guidan~ ertension of up to~o authorize the
continued application ofthc_ethnique until 1700 E.S.T., November 7,. 2007.

I.

As set forth b~!ow, we conclude that-the additional period of authorization requested
would comply with all applicable legal standards, including the federal anti-torture statute, the
.
War Crimes Act, the Detainee Treatment Act, and Common Aiti.de-3 of the Geneva
the Presi.dent in Executive Order-13440.(July 20, 2007). You
Conventions, as interpreted

by

. ~'I

This me~orandum

is classified in its entirety.

h~ve informed us that medical and psychological personnel have examined_and
determined him not to,be suffering from any physical or psychological con~_
remains in control of his bodily movements and has been observed pacing and kneeling while
shackled in the standing position. In additiOn, psychological personnel have described him as
"alert and· oriented" and suffering from no mental impairments. The Agency's medical and
psychological -ersolUlel have noted no indiCatioris that
. .og, or has
experienced,

In addition, you have informed us of the important need for continuing the technique:
_emains resolute in resisting interrogation, and CIA professionals believe him to be
adhering to a well·developed, robust, and. capable resistance strate . The CIA continu
believe that
rna ossess informati n
Based on your report, we conclude, that the
ould be
.consistent with aU applicable law. _does not appear ~o e su enng from the ·physical and
psychological conditions that would implicate any of the applicable legaJ constraints. The
continuation of the technique, based on the infonnatioD you have provided us, also would be in
close service ofa highly important governmental need. We understand that CIA personnel will
administer the technique under the procedures and safeguards described in this Office's July 20,
2007 opinion. Specifically, we understand that the technique will be immediately discontinued if
at any time during the period of extension., any of the psychological or medical contraindications
present themselves, as described in the July 20 opinion.
Please let us know if we may be of further assistance.

Steven G. Bradbury
frir:-cipal D.eputy Assistant Attorney General

2

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U.S. Department of Justice
Office of Legal CQunsel

WDshington, D,C. 20530

O.¢lce of the Principal Deputy Assistant Attorney General

November 7, 2007

Associate General Counsel
Central Intelligence Agency

D~
We are in receipt of your November 7, 2007, letter regarding the interrogation. of
and our Office bas had various discussions with you today and yest,erday.
'You have informed us that as of 1700 E.S.T., NovelDber'7,,2007,~1l haye been
subjected to
the
technique, 'as that technique is
. de.scribed in CIA guidelines. This Office has concluded that_application the
technique for·a period o~complies with applicable legal
requirements, subject to specified conditions and·safeguards. See Memorandum for John A.
Rizz.o, Acting General Counsel, Central Intelligence Agency, Application a/the War Crimes Act,
the Detainee Treatment Act, and Common Article 3 ofthe Geneva Convention to Certain
.Techniques that May IJe Used by the CIA the Interrogation ojHigh Value Detainees (1uly 20,
2007). ,In thatopinio we reco - ed that the CIA contemplated the possibility of applying the
technique for up to
We advised, howe~er, that "should the CIA
detennine that it wou be necessary for the DiI(fctor of the CIA to approv~ an e:xtension_
with respect to a particular detliinee, this Office wou.ld provide additional .
gUIdance on the:application oflegal standards to
facts of that particular ca.'ie." Jd at 8 n.7.
Under. CIA guid'elines., the Director would approve extensions o~~er seeking
guidance from this Office as to the legality of such an additional period, considering the current
physical and psychological condition of the detainee and the n~ed for such an extension.

of

)

in

the

.. •' oda

Yesterda - we advised au that the Director could legally authorize extending the
until 1700 E.S.T., November?, 2007.
ou ha:e .r?que~ed ~.er·rega1~j~ance withre ard to
additiona1.·eXi~

an

to authonze. the contmued applicatIon of the
technique_
.
until 1700 E.S.T~ November 8,2007. As set fa
'e ow, we conclud.e that the additional
peri.od authorization requested would comply with all applicable legal standards, including the '

of

. This memorandum is_classified ~ its .entirety.
.

I

.-.:;.

federal anti-torture statute; the War Crunes Act, the Detainee Treatment Act, and Conunon
Article J of the Geneva Conventions, as interpreted by the President in Executive Order 13440
(July 20, 2007).
You have infonned us that medical and psychological personnel have examined _
and determined him Qot to be suffering from any physical or psychological
co~traindications.. Psychological personnel have describ~as "alert. cooperative,
oriented, and responsive to all questions" arid as exhibiting "no evidence of incoherence,

_

inattention, 'or confusion," See L.etter fo~Acting Assistant Attorney
General, Office of Lega! Counsel, from~Associate GeneraJ Counsel'
.Central Intelligence Agency at 3 (Nov, 7,2007). According to psychological personneC_
me~ory "appear[s] iniac~" and his "capacity for Gommon sense reasoning and judgment is not
s cholo ical examination
did indicate
impaired." Id at 4, Durin'

'In addition,·.you'have infonned us.ofthe·important need for continuing the technique, .

I

:;"'-

-'emains resolute i~ resisting interrogation, and CIA professionals believe him to contiriue
to. adhere to a well-developed,' robuSt, and capable resistance strate
The CIA conti'nues to
believe tha
a 0ssess infonnation on

Based on your report, we conclude that the requested
would be
consistent with all applicable' law, ~oes not appear to be.sufferin'g from the physical and
.psychological conditions that wo~cateany ofthe applicable legal constraints. The
coritlnuation ofthe technique, based 6n the information you have provided us, also would be in
c1os~ service of-a higbJy important ,governmental peed. We understand that CIA personnel will·
adrriinister the technique und~r the procedures and safeguards described in this Office's July 20,
2007 ,opinion.. SpecificaUy, we.l.lOderstand that t.he technique "",ill be: i~edia~e1y discontinued if
at any tinie during. the peri"od of extension.. any of the psycholbgic2J .or medical contraindications
present themselves, as described' in "the July 20 opinion.
.,
.
Please let us know if~e may be of further assistance.

~.~
S~ven G, Bradbury ,
Principal Deputy Assistant Attorney General

2

-

U.S. DeportmenT of Justice

Office of Legal Counsel
Otl)ce of the Assistant Anomey General

Washillgfoll, D.C. 10530

June 1\, 2009

MEMORANDUM FOR THE ATI'ORNEY GENERAL

Re: Withdrcnval ojOffice ojLegal Counsel Opinion
Sections 3(a) and 3(b) of Executive Order 13491 (2009) set forth restrictions on rhe use
of interrogation methods. In section 3ec) of that Order, the President further direc·tcd that "unless
the Attorney General with appropriate consultation provides further guidance, officers,
employees, and other agents of the United States Government may not, In conducting
interrogations, rely upon any interpretation of the law governing interrogation .. issued by the
Department of Justice between September 11, 2001, and January 20, 2009." We have previously
noted that this direction encompasses, among other things, four opinions of the Office of Legal
Counsel, which we withdrew on April 15, 2009. See Memorandum for the Attorney General,
from David J. Barron, Acting Assistant Attorney General, Office of Legal Counsel, Re:
Withdrawal ofOffice ofLegal Counsel Opin/ollS (April 15, 2009). We have now determined that
it also encompasses another opinion of our Office. See Memorandum for John A. Rizzo, Acting
General Counsel, Central Intelligence Agency, from Steven G. Bradbury, Principal Deputy
Assistant Attorney General, Office of Legal Counsel, Re: Application of the War Crimes Act,
the Dr!lainee Treatment Act, alld Common Article 3 of the Geneva Conventions to Certain
Techniques that May Be Used b ' the CIA in the Interrogation ofHigh-Value al Qaeda DeIamees
(July 20, 2007).
In connection with the consideration of this opinion for possible public relell.se, the Office
has now· reviewed this additional opinion and has decided to withdraw it. It no longer represents
the vIews of the Office of Legal Counsel. ( s:

Acting Assistant Attorney General