Olc Ltr to Rizzo Conditions of Confinement Permitted by Article 3 8-31-06
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T~ U.S. Department of Justice Office ofLegal Counsel Office of the Assistant Attorney General Washington, D.C. 2053t} August 31, 2006 John A. Rizzo Acting General Counsel Centtal Intelligence Agency Dear John: You have asked for our opinion whether the conditions ofconfinement used by' the Central Intelligence Agency ("CIA") in covert overseas facilities that it operates as part ofits authorized program to 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 'Geneva Conventi0Il:s. On Friday, June 3D, 2006, I advised you orally that the conditions of confinement described herein are permitt.ed by common Article 3. This letter. memorializes and elaborates upon that advice. Common Article 3, which appears in all fOUf of the Geneva Conventi.ons of 1949, applies in the "case of arm'ed confli~t not of an international character oceUrring in the territory of one of the High Contracting Parties." E.g., Geneva Convention (III) Relative to the Treatment of . Prisoners ofWar, Aug. 12, 1949,6 U.S.T. 3316, T.I.AS. 3364 ("GPW'). It had been the longstanding position ofthe Executive Branch that the phrase "not of an inte~ational character" limited the applicability of common Article 3 to internal conflicts akin to a civii war and thus that the provision was not applicable to the global armed conflict against at Qaeda and its allies. .See Memorandum of the President for the National Security Council, Re: Humane Treatment of al Qaeda and Taliban Detainees at 2 (Feb. 7,2002) (accepting the legal conclusion of the Department ofJustice that commori Article 3 "does not apply to either al Qaeda or Taliban detainees, because, among.other reasons, the relevant conflicts are international in scope and common Article 3 applies only to 'armed conflicts not of an international character"'). In Hamdan v. Rumsfeid, 126 S. Ct 2749, 2795 (2006), however, the Supreme Court, by a 5-3 vote, concluded instead that the "term' conflict not of an international character' is used here in contradistinction to a conflict between nations." On that basis, the Court determined that common Article 3 does apply to the armed conflict between the United States and al Qaeda. See id at 2795-97. The Suprell?e Court's decision means that the "minimum protection" afforded by .common Article 3,. _. id. _.... at 2795, hors de combat by sickness, wounds, -- - to ."those placed -.. _.. - _ _. . - detention, -- or any other cause" now applies, as a matter of treaty law, to detainees held by the CIA in the Global War on Terror. GPW Art. 3. Where common Article 3 applies, the obligation to follow it is also enforced by statute, as the War Crimes Act provides that <c any conduct" that "constitutes a violation" of common Article 3 is a federal crime, punishable in some circumstances by the . death penalty. 18 U.S. C. § 2441 (2000). Common Article 3 has been described as a "Convention in miniature." 3 JCRC, Commentary: Geneva Convention Relative to the Treatment ofPrisoners oj War 34 (Jean Pictet, ed. 1960) ("GPW Commentary'). It establishes a set of minimum standards applicable to the· treatment ofdetainees held in non-international conflicts. The most important aspect of common Article 3 is its overarching requirement that detainees "shall in all circumstances 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 of humane treatment is supplemented and .focused by the enumeration offour more specific categories of acts that "are and shall remain prohibited at any time and in a~y place whatsoeve~." fd. Those forbidden acts are: (a) Viol~nce to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; . (b) Taking of hostages; i· (c) Outrages upon personal dignity, in particular humiliating and degrading treatment; (d) The passing of sentences.and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. fd. As applied to the conditions of confinement used by the CIA, the prohibitions imposed by subparagraphs (a) and (c) are clearly the most relevant. .. The five conditions you have asked us to consider are standard in the covert overseas facilities that the CIA uses to detain individuals You have advised us that those conditions are used to address the unique an slgnl leant securIty concerns associated 'with holding extremely. dangerous terrorist-detainees in the kinds of cov.ert facilities' used by the CIA. The facilities in which the CIA .fJouse~ these high-value detainees were not built as ordinary prisons, much less as high-security detention centers for violent and sophisticated terrorists. In order to keep their . This letter is limited to evaluating the specific conditions of confinement discussed herein, as descnbed to us by the CIA. We understand that the CIA is not currently using any interrogation practices at its overseas facilities that wou!~.. r~~~~u~i0t.l~ .~d~r..~,?m~o~_~i_cle} ... _., ._._......... .... ._ 2 Those lmltatJons, In turn, requrre t at specIa security measures be used inside the facllities to maJ;:e up for the buildings'architectural shortcomings. It is in this unique context that the CIA has imposed the conditions of confinement described herein. To be sure, the nature and location of these'facilities, 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 d~tention is a condition expressly countenanced by the Conventions themselves for the detention of some persons. And accomplishing such secret detention' has required increasingly discreet methods given the advances in 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 ofthe condition of confinement. See, e.g., GPW Art. 3(1}(providing that "~the following acts [subsections (a)-(d)] are and shall remain prohibited at any time and any place whatsoever"); 3 Pictet, Commentary, at 140 ("The requirements of humane treatment and the prohibition of certain acts inconsistent with it are general and absolute in character."). That does not mean, however; that the purpose underlying the conditions' is irrelevant to evaluating the nature ofits prohibitions. Rather, some specific prohibitions in common Article 3 specifying the overarching requirement of humane treatment, however, may very well turn on an evaluation.ofnecessity and purpose. See GPW Art. 3(1)(a) (prohibiting . "cruel treatme~t"); see also Hope v. Pelzer, 536 U.S. 730," 737 (2002) (holding the "unnecessary and wanton infliction afpain" to be "cruel" under the Eighth Amendment). As explained below. we believe the conditions of confinement imposed in these secret detention facilities meet those minimum standards oftreatment. And we make reference to the challenges posed by the secret and unfortified nature ofthe$e facilities to underscore that the United States is not imposing wantonly whatever discomfort that these conditions might cause. Before specifically evaluating each of the conditions of confinement under common. Article 3, we offer some general <;>bservations on the scope ofthat provision. In doing so, we begin with the text of the treaty. See Societe Nationale lndustrielle Aerospatiale v. United States 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 International Committee ofthe Red Cross shortly after the treaties were signed and on which the Supreme Court relied in Hamdan in its·interpretat.ion of ~ommon Article 3. In addition, the Supreme Court has held that the decisions of foreign tribunals charged with adjudicating disputes between signatories should be given "respectful consideration." Sanchez-Llamas v. Oregon, slip op. at 21 (June 28,2006); see alsoBreardv. Greene,.523 U.S. 371,375 (1998). While not a tribunal given authority by the· treaty to resolve such disputes, the International Criminal Tribunal for the former Yugoslavia ("ICTY") has adjudicated war crimes prosecutions under common Article 3, and we address .. __._-..:.:..._..--'-.'-._-_ _ =_.c:..::.-:::::==-;;::-=-=::-=-=--;:;...-;.;...-=-=-....;;.--~.,-'-_--_ - _ _- - T~ 3 ,-_ - -:.::--=-===-=-=-=-=--========== certain decisions of that tribu~al below. 2 First, common Article 3's overarching requirement of "humane" treatment clearly would forbid housing detainees in conditions of confinement that are inhumane. That term suggests conditions that are "not worthy of or confonning to the needs of human beings." Webster's Third New International Dictionary 1163 (1967) (defining "inhuman"). Conditions that fail to' satisfy the basic needs of all human beings-to food and water, to shelter from extremes ofheat or cold, to reasonable protections from disease and infection-are thus obvious candidates for violating common Article 3. This focus on the basic necessities oflife in the requiren:tent of humane treatment is further emphasized by GPW Article 20, which includes its own humane treatment requirement for prisoners ofwar under trailsport and explicates that requirement with minimum standards offood, clothing, and shelter.- There is no'indication, however, that the CIA's facilities fall short on this score. To the contrary; we understand that all CIA detainees are given adequate food and water., The cells in which those detainees live are kept at nomial temperatures and are dean, hygienic, and protected from the element~. In addition, you have' informed us, and we consider 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 inel uded in common Article 3 they are binding as a matter of . domestic criminal law through the additi~nal basis of the War Crimes Act, 18 U.S.c. § 244i. l Second, the text, structure, and purpose ofcommon Article 3 suggest that its strictures are aimed at treatment that rises to a·certain level of gravity and severity. After all, the provision "reflects the fundamental humanitarian principles which underlie international humanitarian , law." Prosecutorv. DeJa/ie, ICTY-96-21-A (App.) (Feb. 20, 2001) ~ 143. It protects against treatment that is widely, ifnot universally. condemned as inconsistent with basic human values. See id. (observing that common Article 3 incorporates the "most universally recognised humanitarian principles"); GPW Commentary at 35 (cOmmon Article 3 "at least ensures the application of the rules ofhumanity which are recognized as essen'tiaJ by civilized nations"). Only' conduct that is sufficiently severe Can properly be characterized as warranting and receiving such widespread condemnation. This severity requirement is illustrated by ~e specific examples that common Article 3 gives of acts that are "prohibited at any time and in any place," particularly those found in subparagraphs (a) and (c). As the ICRC ,Commentaries explain, . "[i)tems (a) and (e) concern acts which world public opinion finds particularly revolting-acts which were committed frequently during the Second World War." Id at 39. , More specifically, the prohibition in subparagraph (a) on "violence to life and person" . sugge'sts that not all physical contact'with detainees is banned; the word "violence'"connotes "an _ _:.. .. 2 The analysis set forth in this letter represents our best interpretation of common Article 3 based on a rigorous examination of the text, history, and structure ofthe Conventions, as well as other interpretive resources.· As we have stressed on numerous occasions, however; there are vague tenus in common Article 3 that the United States has had little or no opportunity previously to apply in an actual conflict, that are potentially malleable, 'and that could be interpreted by...courts different results, . __ ._.__ to reach __...__.. ... ~._._..:..~. ~.a.a:~-.:..:._:..:..:.:..:..-..::..:::.::..::..:.:: T~ 4 exertion ofphysical force so as to injure 'or abuse." Webster's Third New. International Dictionary 2554; see also id (defining "violent" as "characterized by extreme' force"). The tex1's examples offorbidden forms of violence only reinforce this meaning: "m~rder ofall kinds, mutilation, cruel treatment and torture." This list suggests that, although the use of physical force certainly need not rise to the level of torture to be forbidden, it does need to be' more than incidental or de minimis and must at least have the potential to cause a d~gree of actual harm to the detainee. See, e.g., Delalic, supra, ~ 443 ("[C]ruel treatment is trealment which causes serious menta) or physical suffering or constituted a serious attack ~pon human' dignity, which i's equivalent-to the offense of inhuman treatment in the framework ofthe grave breaches of the Geneva Conventions.~'); cf 'Whitley v. Albers, 475 US. 312,319 (1986) (observing that the term "cruel" in the Eighth Amendment, requires «unnecessary or wanton infliction ofpain"). What murder, mutilation, cruel treatment, and torture have in common is an element of depravity and viciol,lsness; that common element suggests. the kinds of force that common Article 3 seeks to prohibit. See generallyDole v. United Steelworkers ofAm., 494 U. S. 26, 36 (I 990) ("The traditional 'canon ofconstruction, noscitur a sociis, dictates that words grouped in a list should be given related meaning."). Also, the structure of the Geneva Conventions makes clear that violence necessary to effect detention is permitted. See GPW Art. 42 (permitting the use of force against prisoners of war attempting to escape). , Similarly, subparagraph (c)'s use of the phrase "outrages upon personal dignity" should be understood to mean a relatively significant form of ill-treatment. In this context, "outrage" appears to carry the meaning of "an act or condition that violates accepted standards." Webster's Third at I603; see also id. (defining "outrageous" as conduct that "is so flagrantly bad that one's' 'sense of decency or one's power to suffer or tolerate is violated" and giving as synonyms "monstrous; heinous, [and] atrocious"); cf Knut Dormann, Elements ofWar Crimes'under the Rome Statute ofthe International Criminal Court 315-16 (2002) ("Elements of War Crimd') (Qbserving that the Cambridge International Dictionary ofEnglish (1995) defines "outrage" as "shocking, morally unacceptable and usuallyvioJent action"). Under these definitions, constitute an "outrage upon personal dignity" within the meaning of common Artic~e 3, an act must violate some relatively clear and objective standard ofbehavior or acceptable treatment; it must be something that does not merely insult the dignity of the victim, but that does so in an obvious or particulady significant manner. - to , The fact that the basic prohibition of subparagraph (c) focuses on "outrages" also must . inform any analysis of what is covered by that provision's prohibition of "humiliating and degrading treatment," suggesting that conduct must rise to a significant level of seriousness in order to be forbidden. Importantly, the text is clear that "humiliating and degniding treatment" is merely a subset of'.'outrages upon personal dignity." This text stands in contra~t to provisions in other treaties, such as ArticIe'16 of the Convention Against Torture, in which prohibitions on ' "degrading" treatment stand'alone. As the ICTY has explained in addressing common Article 3: [O]utrages upon personal dignity refer to acts which, without directly causing harm to the integrity and physical and mental well-b~in'g.of persons, are aimed at ------------.:...hltmH-1aGng:afia=-HEI~lfn~tHg-nt· :: :·~An__e8(OFag~e1'i:=peFSOnal=dtgnify~r=== 5 '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. Prosecutor v. Aletkovski, JCTY-95-14/l, Trial Chamber J (June 25, 1999) ~~ 55-56. Similarly, in . .discussing an identical prohibition in Article 75 ofProtocol J to the Geneva 'Conventions, the JCRC observed that it «refers to physical acts, which, without directly causing harm to the integrity and physical and mental well-being of persons, are aimed at humiliating and ridiculing them, or even forcing them to perform degrading acts." JeRe, Commentary on Additional ProtC!cols oj 8 June 1977, at 873 (1987) ("AddWonal Protocols Commentary"). In addition to being purposive, "outrages upon personal dignity" generally must be defined in relation to an objective standard ofunacceptable beha:vior. Thus, according to ICTY, the subjective element of ~ outrage "must be' tempered by objective fac.tors; otherwise, unfairness to the accused would result bel;:ause 'his/her culpabiIjty ",,:ould depend nbt on the gravity of the act but wholly on the sensitivity ofthe victim. Consequently, an objective component to the acfusreus is apposite: the hum.iliation to the victim must be so intense that the reasonable person would be outraged." Aletkovski, supra, ~ 56 (emphasis added). As with subparagraph (a), therefore, subparagraph (c) is properly understood as proscribing conductof a particularly serious nature, conduct that is characterized by hostility to human dignity. The prohibition does not reach trivial slights or insults, but instead reaches only those that represent a more fundamental"assault on the dignity·ofthe victim. See, e.g.) id. ~ 37 ("The victims were not merely inconvenienced or made. uncomfortable~ what they had to endure, . under the prevailing circumstances, were physical and psychological abuse and outrages that any human being would have experienced as sucti."). At the same time, however, it seems clear from the text that 'subparagraph (~) prohibits a broader range of conduct than does subparagraph (a). Subparagraph (a) is focused primarily, if not exclusively, on physical violence; the actions that it forbids are those that can be expected to impose some direct physical harm on the detainee. In contrast, the text of subparagraph (c) does not necessarily include an element of physical for~: it reaches actions that assault the detainee's ment~lI or psychological well-being, treatment that amounts to a significant attack on his dignity as a human being without necessarily causing him to suffer physically. This element of intent and purpose also raises the relevance of context in applying subparagraph (c). Certain activities may well be intended solely to humiliate and to degrade in certain settings, but may be undertaken for a legitimate purpose in others. For example, a . systematic practice of marching detainees blindfolded in public with the intent to humiliate may so evince a "hostility to human dignity" as to 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 ofthe facility would not trigger the same concerns under subparagraph (c). With these basic principles in mind, we turn to an evaluation of each of the conditions of - - - ·----confifl~mt'jfit=UseQ:.bYffl5-bJ:A=i::tf.I~:s--£:e-Veft-evefSeas:-eetef.ifien::faettiTieeisF.. =============== 6 T~T Accordingly, detainees' vision is blocked on y unng ose tImes when a;lIowing them to see could ermi them j' such as their location, the layout of the facility _ _that could compromise the security ofthe facility. Used in this way, blindfolding is ~eral condition of confinement than a special security measure employed on the relatively infrequent occasions when the detainee is moved into or around the detention facility. We see nothing in common Article 3 that would forbid the CIA from taking this precaution. Blindfolding no doubt requires minimal physical contact, but if hardly involves "violence"; none . ofthe methods the CIA uses to prevent detainees from seeing is painful or poses any risk of physical harm, and the d~tainees have no difficulty breathing freely while their vision is . obstructed. Nor does this limited use of blindfolds 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 of blindfolds is carefully limited in ficope 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 Article 3, this condition is not "sensory deprivation" aimed at weakening the detainees psychologically and undermining their sense ofpersonality. Accordingly, we conclude that the use ofnon-injurious means of temporarily blocking detainees' vision when allowing them to see could jeopardize institutional'security is consistent with common Artid e 3' s requirement of humane treatment. 2. The CIA keeps the detainees isolated from The detainees are· house You also have indicated that detainees ese practices help relieve the strain of prolonged ave access to 00 s, mU.SIC, an movIes. isolation by providing mental and intellectual stimulation to the detainees. We also note that each detainee receives_psychological examination to ensure that he is suffering no adverse effects as a result of this aspect ofhis confinement. We do not conclude that these measures ·are necessary to satisfy common Article 3, but they do provide significant comfort that the CIA's detention condition does not approach common Article 3 limits. We first address whether the incommunicado nature of the detention, whereby the =====·detaiflees:ar-e:-oot:aUowed:to:commul1icat.e-wrtJrthe:oot-sjde::wmf<:t,::i&:.f>FGSGr-i:b~mrngn:lI======= 7 Article 3. Examining the overall structure of the Geneva Conventions l11akes clear that common Article 3 does not give detainees an absolute right of communication that would forbid detention of the sort used by the CIA in its covert facilities. As described above, common Articl~ 3 sets minimum level of treatment; its protections are thus clearly less robust than those afforded to other categories of privileged persons whose treatment is regulated by the Geneva Conventions, in particular, prisoners of war (protected by the Third Convention) and "protected persons" (protected by the Fourth Cqnvention). Indeed, the provisions of the Conventions dealing with POWs and protected persons demonstrate that the drafters knew how to afford communication .rights to individuals held in detention: For example, Article 71 of the Third Convention requires that POWs "shall be allowed to send and receive letters and ·cards." Article 107 of the Fourth Convention gives the same right to protected persons who have been interned. Moreover, other provisions in the Geneva Conventions expressly allow for access to detention facilities by representatives of the International Committee of the Red Cross and other state parties, and by family members for particular protected groups.. See GPW Art. 126 (permitting JCRC and state party representatives to visit prisoner of war detention facilities); GCIV Art. 76 (allowing visits . by ICRC representatives to protected persons); GCIV Art. 116 (allowing detained protected . . persons to receive visitors). In contrast, persons protected only by common Article 3 do not share this express right of communication or to inspection by or notification to international bodies. a Even more important to our analysis is the fact that Article 5 of the Fourth Convention specifically provides that where in occupied territory "an individual protected per~n is detained as a spy or saboteur. or as a person under definite suspiCion ofactivity. hostile to the security of the Occupying 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.rCRe, Commentary: Geneva Convention Relative to the Protection ofCivilian Persons in Time ofWar 57 (Jean Pic~et, ed. '1958) (observing that the rights of communication outside world"). The fact that th~ "obviously refer to [th~ detained person's] relations with Fourt1:l Convention allows protected persons, who are afforded a panoply of rights and protections that go well beyond the "minimum" th~t common Article 3 provides, to be stripped of their otherwise expressly protected right to communicate with the outside world where «absolute military ~ecurity so requires" is powerful evidence that common 'Article 3 was not meant to tonfer on individuals ineligible for any speciaIly protected statUs under the Geneva . Conventions a protection against incommunicado detention. Such a reading of common Article 3 would upset the structural integrity of the Conventions. That approach also would be textually unsound. For, immediat~ly 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 incompatible with the obligation of humane treatment that undergirds common Article 3. We therefore conclude that detainees may be prohibited from communicating with the outside world without rendering their treatment inhumane. J) the Nor do we perceive a basis for a blanket conclusion that not allowing .detainees to interact ====='norsp-ealc- wftlf'6ne-arfmher ·iIDtate§'"remmelFAfflele=37=IfFOOflg.lcl'l.~fiftg-'Wln~f~#enrtg~====== T~ 8 ) T~ consistent with the requirement of humane treatment, it is appro"priate to look to cases evaluating isolation under the Eighth Amendment of the Constitution. After all, like common Article 3, the Eighth Amendment has been held to require "humane conditions of confinement." Farmer v. Brennan, 511 U.S. 825,832 (1994); cf Trop v. Dulles, 356 U.S. 86, 100 (1958) ("The basic concept underlying the Eighth Amendment is nothi~g less than the dignity of man."). Conditions that our own courts have consistently found to be humane with regard to ordinary prisoners are thus likely to meet the comparable standard irnposedby cominon Article 3 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 prisoners in solitary confinemeht, with little or no personal contact with their fell.ow 'inmates, does not constitute "cruel and unusual punishment" in violation of the Eighth Amendment. See Novack v. Beto, 453 F.2d 661, 665 (5th Cit. 1972) (noting the "long line of cases, to which we have found no exception, holding that solitary confinement is not itself constitutionally objectionable"); cf. Hutto v. Finney; 437 U.S. 678, 686 (1978) (observing that it is "perfectly obvious that evt?IY decision to remove a particular inmate from the general prison population for an indeterminate period could not be characterized as cruel and unusual"). In Jackson v. Meachum, 699 F.2d 578, 5& 1 (1 st Cir. 19&3), for instance, the First Circuit held that even "very extended indefinite segregated confinement in a facility that provides satisfactory shelter, clothing, food. exercise, sanitation, lighting, heat; bedding, medical an9 psychiatric 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 cruel or inhumane merely because of its indefinite or exte~ded nature, though they have noted that the temporal element may be a factor. See In reLong Term Administrative Segregation ofInmates DeSignated as Five Percenters. 174 F.3d 464, 472 (4th Cir. 1999); Sweet v. South Carolina Dep't a/Corrections, 529 F.2d 854, 861 (4th Cir. 1975). The cases illustrate that isolating detainees and limiting their ability to communicate with other detainees, even if psychologically taxing. is not inherently inhumane. Inpeed, as Knut Dormann, a leading . commentator on international humanitarian law, has observed, "[s]olitary confinement, or segregation, of persons in detention, is not itself inhuma~e treatment. It is permissible for reasons of security or discipline or to protect the segregated prisoner from other prisoners or vice versa." Elements o/War Crimes 68 (further suggesting that such measures should be evaluated on a ~ase-by-case basis). . . . Nevertheless, we recognize the strain that extended isolation may exact, particularly if that isolation is not relieved 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 access to such materials. We further understan(i that some of tbese detainees have been subject to this condition for a few years. However. we do not believe that the duration ofthe isolation exceeds the strictures of COP1mon Article 3. We view it as important that the isolation imposed is tailored to security and intelligence purposes-that is, preventing the coordination of attacks 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 solitary co~finernent in which they are unable to see -::::._============== ===~lk·witft·o#lu:~eH5:MFf~j4'Eten-by'c(fmmB1FA:ftiGle=e=~3:=~. 9 3. The CIA plays white noise in the walkways of the detention facilities to prevent the detainees from being able to-communicate with each. other while they are being moved within the fadlity. Significantly,. the noise is not 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, V<!e can safely assume that the noise level in the cells is considerably lower than the level in the walkways; recent measurements indicated that the noise level in the cells was in the range of 56-58 dB, compared with a range of 68-72 dB in the walkways. The volume in the cells is thus comparable to that of normal conversation, There is no risk of hearing 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. " Used in this very limited way you have described, white noise does not violate jommon Article 3, There is nothing inhumane about the incidental exposure of detainees to noif that is no louder than the level of ordinary conversation and that.is certainly not .loud enough to cause physical harm or to interfere with sleep. Being exposed to such relatively insignificant noise levels ca"n in no way be described as an act ofviolence. Nor does it represent an "outrage upon personal'dignity" within the meaning of common Article 3. Neither the purpose nor effect of the white noise is to "cause serious humiliation or degradation" to the detainees, Aletkovski, sUpra, ~ 56; instead, the noise, much like temporary blindfolding, is simply a limited measure aimed at : . protecting the "security of the detention facility by preventing the detainees from communicating with each other. It cannot be characterized as an affron't to human dignity. 4. The CIA also keeps the detainees' cells illuminated 24of Confinement allows ciA staff to monitor the detainees at all times 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 detainees' ability to sleep nQrmally. Indeed, if they 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 of confinement used by the CIA, we " ultimately believe that it is consistent with common Article 3. The full-time illumination ofthe detainees' cells is not inherently inhumane~ it is not used 'in a manner that impairs the basic human needs ofthe detainees. Nor is the security surveillance that the illumination makes po~sible inhumane'or otherwise contra to common Article 3. To be sure, we recognize that being monitored around the clock could result in some degree ofhUmiliation. But the very nature 0 detention, whIch common " Article 3 certainly does not forbid, is such that one must surrender a certain"degree of privacy . along-with one's personal freedom. See, e.g.. Bel/v. Wolfi~h, 441 U.S. 520,537 (1979) (observing that "[1]058 of freedom of choice and privacy are inherent incidents of confinement"). 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 --:-----graro'if<fuslf,"witJi'-tJie·purpos-e"-iM-eTffict:nfstrlj)·pinrnfefairiees·o"fi"heirli;;;-iumin'"·:;<:an;r-:;tif'hlg~niiiitF.'yr:-i<t)i;'iiii;=:-=-=' =""--:.:;--=.=-=-::=-===- T~. 10 ..: instead for entirely legitimate security reasons, we think that it does not represent an "outrage[] . d :. : I I Our conclusion should not be understood tq suggest that concerns about security will negate common Article 3'5 prohibitions on. inhumane treatment and outrages upon personal dignity. Cf GPW Cqmmentary at 140 ("The requirement of humane treatment and the prohibition of certain acts inconsistent with ·it are general and absolute in character."}. Instead, the point, which is reflected in the international case law applyi~g common Article 3, is that in determining whether certain forms oftreatment are in fact sufficiently outrageous to warrant condemnation, one must consider the context in which that treatment is ~sed and the reasons for which it was imposed. See, e.g.; Prosecutor v. Mucic, ICTY 96-12 (Nov. 16, 1998), ~.514 (holding that whether treatment is inhum~ne is a '-'question offact to" be judged in all the' circumstances ofthe particular case'~); Aletlcovski, supra, V57 ("An Qutrage upon personal dignity is ari act which is animated by contempt for the human dignity of another person.") (emphasis added). Conduct, like the CIA's use of constant illumination, that' is not characterized by a desire to humiliate or. degrade, but that instead is carefully tailored to advance a specific and' manifestly legitimate security objective; and does so without causing unnecessary hardship, will generaIly fall outside the proscriptions of subparagraph (c). There is also support for this condition in other pro,visions of the Conventions. GPW Article 92 allows the detaining authority to' subject even prisoners of war recaptured .after an unsuccessful escape to "special surveillance." Xhis term is not further defined, except to exclude sUlveilIance that "affects the state oftheir health" or suppresses "safeguards granted them by the present Convention." In Pietet's Commentary, this "special surveillance" has been referred to as uf htd . d" 3 Pictet, Commentary, at 452. Given that the illumination' and the constant •o not threaten the health of CIA detainees, unavailable at the time the Conventio~s were ra e , may very we constltute permISSIble "special surveiJIance" under Article 92. As explained above, the structure of the Conventions makes clear that treatment explicitly permitted in certain circumstances as to prisoners 'ofwar or protected persons cannot be understood to violate the minimum protections provided by common Article 3. .. . 5. We next consider the practice of shackling detain.ees when they are being moved around the detention facilities or ",:hen CIA personnel 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 that they are a threat while in their cells.. Like blindfolding, therefore, shackling is less a general condition ofthe detainees' confinement than a particularized security measure limited in its scope and duration_ Indeed, we understand that, at present, .no detainee is shackled 24 hours per day. In addition, shackling 'is done in such a -======lIFfIllaHneFa-s.:Het'-t~HGt-tb~QW-Qfbleg-c41FG89S~ny:-OOdiJ¥,ha-t=m:-tq..t.he=detaillees:-While=------------ 11 shackled, detainees are able to walk comfortably, Used in this limited and carefully calibra'ted way, shackling does not violate common·Article 3. In setting minimum standards specifically intended to apply to those "placed hOTs de co!1lbat by ... detention," common Article 3 plainly contemplates that detention may be . effectuated by restricting the freedom of movement of dehinees.That, after all, is inherent in the nature of detention. As SUCh. common Article 3 cannot be read ~s proscribing the use of restraints, such as shackles. in all circumstances. Indeed, ifusing physical restraints were· inherently inhumane, common Article 3 would effectively prohibit the involuntary detention of anyone covered by the provision, a result that the text clearJydoes not contemplate. At the same time. however, it seems obvious that shackles could be used in ways inconsistent with the . general obligation of humanetreatment. To restrain a detainee with shackles that injure the body or cut otTthe flow of blood could represent "violence to life and person." ifthe resulting sutTering or physical harm were expected to be severe. Similarly. to keep a detainee in highly·· restrictive shackles around the clock, at least where no genuine security concern justifies such . restraint, might well raise. questions. Where no sec·urity rationale exists, and the purpose ofthe shackling is merely to humiliate the detainee or to break his spirit, additional commori Article 3 consideratiQ,!s would be present. ·In evaluating the use of shackling, therefore, the task set by common Article 3 is to determine whether the restraints ate b~ing used legitimately and in ways that minimize the potential for injury or sutTering. Judged by these standards, the CIA's use of shackling, as a limited $ecurity measure, and as you have described it, is permi~sible. Critical to our analysis is the fact that the CIA carefully tailors its ~hack1ing 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 threat" (such as when he is being moved around the facility) or when his past conduct has clearly demonstrated his danger. Also significant i~ our understanding that. while shackled, detainees are able to move comfortably and that the shackles are fitted to avoid causing any bodily harm. These points illustrate that the 'shackling here is linked to genuine and h~gitimate concerns about institutional security, and is not imposed on detainees vindictively or in a way indifferent to their well-being. Indeed, our conclusion might well be different were detainees routinely shackled in su·ch a way as to .cause them physical pain or sutTering without regard to the security risks they pose. But to shackle a demonstrably violent or escape-minded detainee while he is in close proximity to CIA personnel. where the shackles are merely a restraint and not a source of injury, is not inconsistent with the requirement of humane treatment. 6, The next condition we 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 facility. The shaving is not done as a punitive measure; its primary purpose is to prevent detainees from hiding small items in their hair or beards; as well as to ensure the hygiene of the detainees. Importantly. mandatory shaving only occurs upon arrival; once the detainee is situated in .the facility, he is allowed to grow his hair and beard to whatever length he desires ..<-within.limits .of.h.y-giene..and_safety}._MOLe.OY_er,_y.Q1!.b~y~iQf.QIm~Q. Yl!_.1~t !hsU::;I~_ QI.Qyl~~ . ._. detainees with the option of shaving other parts of their bodies~cogmtlOn ofspecJtlc IslamiC .T~· 12 _ practices. Although we recognize that facial hair has an important cultural and religious dimension, and that some might perceive being involuntary shorn of their hair and beard as degrading, we conclude that the very limited fomi ofshaving that the CIA practices is consistent , with common Article 3. Context is important here. The shaving is a one-time measure, performed at'the moment 'when it most clearly and directly advances 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 religious preferences illustrates that shaving is not used here as a form ofhumiliation or degradation, but instead as a bona fide security measure. 'The CIA does not shave detainees in order to take advantage of their cultural 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, if any, to grow their hair and thereby to avoid humiliating them. Used as described above, therefore, shaving is not "aimed at humiliating arid ridiculing" the detainees, Additional Protocols Commentary at 873, and dOes hot 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 "violence to ... person" prohibited by subparagr~ph (a). , Finally, we discuss whether the use of these conditions in combination complies with common Article 3. To this,point, we have discussed whether anyone of these conditions would violate common Article'3. We understand, however, that the collective weight ofthese conditions may raise different questions. The detainee is isolated from companions of his choosing, confined to his cell for much of each day, under constant surveillance, and is never permitted a moment to rest in the dark~ess and privacy that most people seek during sleep. These are not conditions that humans strive for. But they do reflect the realities of detention, realities that ~he Geneva Conventions accommodate, where persons will have to sacrifice some measure ofprivacy arid liberty while under detention. They also are justified by the extraordinarily dangerous nature bfthese detainees, and the risk that they will conspire to compromise the security of the detention facility. ' , , The Third Geneva Convention strikes a different balance between security, on the one hand, and privacy and liberty, on the other, with regard to prisoners ofwar. That Convention also establishes a reciprocal arrangement between captor and:detaine,e under which d,etainees, in exchange for these greater privileges, have an international law obligation, to follow the ' , reasonable rules of the facility. Al Qaeda detainees, who do not follow the laws of war, are not part of such a reciprocal arrangement. Common Article 3 rests on the premise that certain ' persons, not subject to the elaborate protections of the Third or Fourth G~neva' Conventions, will have to be detained during the course of non-international armed conflicts, and we do' not believe that conditions in CIA facilities fall below the minimum standards-that common Article 3 mandates for such persons. 13' _nd other diyersions in the form o( books, music, videos, and games, short of interactions with their co-combatants. Other measures-()bstrueting vision and shackling-are limited to the tImes when d.etainees pose the greatest risk to the security ofthe facility and those who work there. We do not believe that the combination ofthese features falls below the «minimum standard" of humanity specified in common Article 3. For the foregoing reasons, we conclude that none of the conditions of confinement used . by the CIA at its covert, overseas detention facilities, 'as you have described those conditions to us, violates common Article 3. Please let us know if we can be of further assistance. Sincerely, Steven G. Bradbury Acting Assistant Attorney General ... -.. -_. - . ~.- .~. ~ ,- .....- ...-.-.. - _..... - ..... _. _. - .. - -'--_ .. , 14 ' _ -=.==--======'===='===