FRO~

SIT: 15

DOJ

(FRI>JUI. 20 2007 15:Ce/ST. 15:08/NO. 6teC"29776?

S

USDOJ Seal

Department of
of Justice
Justice
U.S. Department
of Legal Counsel
Office oftegal

Office
of thePrincipal
Deputy Assistant Attorney General
Office ofthe
Principal DeputyAssistant

Wllshfngkm.
Washington.D.C.
D.C.l053()
20530

July 20, 2007
JOHN A.
A.RIZZO
RIZZO
.
MEMORANDUM FOR JOHN
ACTING GENERAL COUNSEL, CENTRAL
CENTRAL INTELLIGENCE
INTELLIGENCE AGENCY
AGENCY
i

Re: Application
of theWar
WarCrimes
Crimes
Act,
Detainee
Treatment
Act,Common
and Common
Application ofthe
Act,
the the
Detainee
Treatment
Act, and
ArticleArticle
31 3
of the Geneva
GenevaConventions
Conventions
Certain
Techniques
that Be
MayUsed
Be Used
theinCIA
ofthe
to to
Certain
Techniques
that May
by theby
CIA
the in the
I
ofHighValue
Value
Qaeda
Detainees
Interrogation
Interrogation ojHigh
alal
Qaeda
Detainees
II
asked whether the
the Central
Central Intelligence
Intelligence Agency
Agency may
may lawfully
lawfully employ
employ six
six
You have asked
.
techniques" in the interrogation ofhigh value detainees who are
"enhanced interrogation techniques"
I
members of al
aJ Qaeda and associated groups. Addressing this question requires us to determine
detennine
whether the proposed techniques are consistent with (1)
(1) the
the War
WarCrimes
CrimesAct,
Act,as
asamended
amendedby
byth~
the,
of 2006; (2) the Detainee
Detainee Treatment Act of2005;
of 2005; and
and (3)
(3) the
the
Military Commissions Act of2oo6;
!
requirements of Common Article 3 of
of the
the Geneva
Geneva Conventions.
Conventions.
~equirements
~

I
I

As the President announced on
2006, the
on September 6,
6,2006,
the CIA has.
has operated aa detention an~
and
interrogation program since the months after the
the attacks
attacks of
of September
September II,
11,2001.
The
CIA
has
2001. The CIA has
detained in this program several dozen high value terrorists
terrorists who
whowere
were believed
believed to
to possess
possesscriti~
critical
attacks, including
including by
by leading
leading to
tothe
the j
in.preventing
preventing future
future terrorist
terrorist attacks,
information that could assist in.
of other senior al Qaeda operatives.
operatives. In interrogating a small number ofthese
of these terrorists,
terrorists, I
capture ofother
as an
an"alternative
"alternative set
set ofprocedures"-and
of procedures"—and what
what tlie
the
the CIA applied what the President described as
Executive Branch internally has referred to as "enhanced
"enhanced interrogation techniques."
techniques." These
These
Ex:ecutive
CIA, were approved by the Director ofthe I
techniques were developed by professionals in the CIA,
CIA, and were employed under strict conditions, including careful supervision and monitoring, "
CIA.,
in a manner that was detennined
determined to be safe, effective, and lawful. The President has
has stated
stated that.
that
of such techniques has saved American lives by
by revealing
revealing information
information about
about planned
planned i
the use of
terrorist plots.
plots. They have been recommended for approval by the Principals Committee of the i
National Security Council and briefed to the full
full membership
membership of the
the congressional intelligence
committees.
.

i

I

I

-------------------------

.-

FROM

SIT~

15

OOJ

(FIlI)JUL

-

20

-----------------------.
20C7

15:08/ST. i5:0S/NO. 616042Q771$"

on September 6,
6,2006,
Prior to the President's announcement oli
2006, fourteen detainees in CIA
locations where
wherethey
theybad
had been
been held
held and
andwere
were
custody were moved from
from the secret location or locations
transferred to the custody ofthe
of the Department ofDefense
of Defense at the U.S. Naval Base at Guantanamo
Guantanamo
CIA custody
custody under
under this
this program.
program. Now,
Now, however,
however, the
the II
Bay, Cuba; no
no detainees
detainees then remained in
in CIA
CIA expects to detain further high value detainees
detaineeswho
whomeet
meetthe
therequirements
requirementsfor
forthe
theprogram.
program,
and it proposes to have six interrogation techniques available for use, as appropriate. The CIA
has detennined
determined that thes~
these six techniques are the
the minimum necessary to
to maintain an effective
effective I
program designed to obtain critic~l
critical intelligence.
.

I

wi~essed

I

months have witnessed significant
significant changes
changes in
in the
the legal
legalframework
framework
The past eighteen months
Qaeda. The Detainee
Detainee Treatment
Treatment Act
ActeDT
("DTA"),
whichth~
the
applicable to the armed conflict with al Qaeda.
A"), which
President signed on December 30,2005,
f
30, 2005, bars
bars the
theimposition
impositionof
of"the
"thecruel,
cruel,unusual,
unusual, [or]
[or]
the Fifth, Eighth,
Eighth, and
and Fourteenth Amendments!
Amendments;I
inhumane treatment or punishment prohibited by the
to the United States Constitution"
Constitution" on
on anyone
anyone in
in the
the custody
custody ofthe
of the United
United States
States Government,
Government, ;
regardless of
of location or nationality. The President had required United States personnel to
I
matterofpolicy
of polity prior
priortotothe
theenactment
enactmentof
ofthe
the I
follow that standard throughout the world as a matter
DTA;
of law/11
DT
A; the DTA requires compliance as a matter of]aw:
On June 29,
2006, the Supreme Court
126126
S. Ct.
2749
29,2006,
Court decided
decided Hamdan
Hamdanv.v.RumsfeM,
Rumsfeld,
S. Ct.
2749
(2006), holding that the military commissions established by the
the President
President to
totry
tryunlawful
unlawful enemy
enemy
of war, which at thetime
time was a general requirement
combatants were not consistent with the law ofwar,
of the Uniform
Military Justice.
the Geneva
ofthe
Uniform Code of
ofMilitary
Justice. Common
Common Article
Article 33 of
ofthe
Geneva Conventions
Conventionswas
was aa I
part of the applicable law ofwar,
of war, the
al Qaeda j
th~ Court stated, because the armed conflict with al
Court's ruling
ruling was
was contrary to
to tb~
the
constituted a "conflict not of an international character." The Court's
President's prior determination that Common Article 3 does
does not
not apply
apply to
to an
anarmed
armed conflict
conflict
j
across national boundaries with an inte~tional
international terrorist organization such as al Qaeda. See
See !
Memorandum ofthe
of the President
Re: Humane
HumaneTreatment
Treatmentojal
ofalI
President for
for the National Security Council, Re:
Qaedaand
andTaliban
TalibanDetainees
Detainees
2 (Feb.
2002).
Qaeda
at at
2 (Feb:
7, 7,
2002).
.
.

The Supreme Court's decision concerning
Article 3
Concerning the applicability of Common Aniele
introduced a legal standard that had nC?t
not previously applied to this conflict and had only rarely
been interpreted in past conflicts. While directed at conduct that is egregious and universally
some could
could
condemned, Common Article 3 contains several vague and ill-defined terms that some
United States intelligence personnel to
have interpreted in a manner that might subject tlnited
unexpected, post hoc standards for their conduct.
conduct. The War Crimes
Crimes Act
Actmagnified
magnified the
the
significance of any disagreement over the meaning
meaning of these
these terms
terms by
by making
making aa violation of
Common Article 3 a federal crime.
1
1

this policy,
policy, this
thisOffice
Office concluded
concludedseven
sevenmonths
monthsbefore
beforeenactment
enactmentof
ofthe
theDTA
DTAthat
thatthe
thesix
six
Reflecting this
the substance of U.S,
U.S. obligations under Article 16
enhanced interrogation techniques discussed herein complied with the'substance
of the Convention Against Tortw'e
Torture and Other Inhuman or Degrading ~reatment,
Treatment, 1465
1465 U.N.T.S.
U.N.T.S.85
85("CA
("CAT").
See
ofthe
T"). See
Memorandum for John A.
Rizzo, Senior
Senior Deputy
Deputy General
General Counse~
Counsel, Central
Central Intelligence
Intelligence Agency.
Agency,from
StevenG.
G. i
MemoI3Ildum
A Rizzo,
from Steven
Attorney General, Office
Office of
of Legal
Legal Counsel,
Counsel,Re:
Re:Application
ApplicationofUnited
of United
States
Bradbury, Principal Deputy Assistant Attomey
Statesj
ObligationsUnder
UnderArticle
Article1616ofthe
oftheConvention
Convention
Against
Torture
to Certain
Techniques
thatBeMay
BeinUsed
Obligations
Against
Torture
to Certain
Techniques
that May
Used
the in the
Interrogation
of HighValue
Value01alQaeda
Qaeda
Detainees
(May
Interrogation ojHigh
Detainees
(May
30,30,2005).
2005)_

I

2

4

FROM SITE;6

DOJ

(FRI)JUl.

~

20 2007

16:C8/ST.15:08/~0.6160"29770P

CI~
I

The
The President
President worked with
with Congress
Congress in
in the
the wake
wake ofthe
of theHamdan
Hamdandecision
decisiontotoprovide
provide clear
legal standards for U.S. personnel detaining and interrogating terrorists in the armed conflict
with at
the enactment ofthe
of the Military Commissions Act
Act
al Qaeda, an objective that was a~hieved
achieved in the
of2006
s.C.
of 2006 ("MeA").
("MCA"). Of most relevance here.
here, the
the MeA
MCAamended
amended the
theWar
WarCrimes
CrimesAct,
Act, 18
18U.
U.S.C.
§ 2441,
2441, to
to specify
specify nine
nine discrete
discrete offenses
offenses that would
would constitute grave
grave breaches ofCommon
of Common
Article 3.
3. See
See MCA § 6(b).
6(b). The
The MeA
MCAfurther
further pnplemented
implemented Common
Common Article
Article 33 by
by stating
stating that.
that
the prohibition on crue~
DTA reaches conduct, outsid~
theDTA
outside
cruel, inhuman, and degrading treatment in the
of the grave breaches detailed in
in the
the War
War Crimes
CrimesAct,
Act,barred
barredby
byCommon
CommonArticle
Article3.3. See
Seeid
id .1
ofthe
6(c). The
TheMeA
MCA left
left responsibility
responsibility for
for interpreting
interpreting the
the meaning
meaning and
and application of Common I
§ 6(c).
Article 3, except for the grave breaches defined in the amended War Crimes Act, to the .
I
President. To this end, the MeA
MCA declared the Geneva
Geneva Conventions judicially unenforceable, se~
see,
id § 5(a),
5(a), and expressly provided that the President may issue
issue an
an interpretation
interpretation of the
the Geneva Ij
Conventions by executive order that is "authoritative ....
. . as a matter of United States law,
law. in thel
same manner as other administrative regulations." Id § 6(a).
6(a).
This
This memorandum applies these new legal developments to the six interrogation
techniques that the CIA proposes to use
use with
with high
highvalue
valuealalQaeda
Qaedadetainees.
detainees.22 Part
PartIIprovides
providesaa
brief history ofthe
of the CIA detention program as well
well as
as aa description
description of
of the
the program's
program's procedures,
procedures,
safeguards, and the six enhanced techniques now
now proposed
proposed for
for use
use by
by the
the CIA
CIA. Part
Part II
II addresse~
addresses
the
II
the newly amended War Crimes Act and concludes that none
none of
of its
its nine
nine specific criminal
2
1

This memorandum addresses the compliance ofthe
interrogation techniques with the
!he two
two ,
of the six proposed interrogation
issue. We
We previously
previously have
have concluded
concluded that
that these
these techniques
techniquesdo
donot
notviolate
violatethe
the i
statutes and one treaty provision at issue.
torture, codified at 18
18 U.S.C.
U.S.C. §§
§§2340-2340A.
2340-2340 A. See
SeeMemorandum
Memorandumfor
forJohn
JohnA.
A.Rizzo,
Rizzo,Senior.
Senior.
federal prohibition on tor1llre,
G. Bradbury, Principal Deputy Assistant
Deputy General Counsel, Central Intelligence Agency, from
from Steven G.
Re:Application
Applicationofof1818Us.c.
U.S.C.
§§ 2340-2340A
to Certain
Techniques
Attorney General,
General, Office ofLegal
of Legal Counsel, Re:
if 234(J..2340A
to Certain
Techniques
th4t that
Attomey
May Be
Be Used
Usedininthe
theInterr()gation
Interrogationofa
of aHigh
High
Value
al Qaeda
Detainee
10,2005)
^Section
Opinion");
May
Value
al Qaeda
Detainee
(May(May
10,20(5)
r'Section
23402340
Opinion");
see ste
also Memorandum
Memorandumfor
for John
John A.
A.Rizzo,
Rizzo,Senior
SeniorDeputy
DeputyGeneral
GeneralCounsel,
Counsel,CentIal
CentralIntelligence
Intelligence Agency,
Agency,from
from Sleven
Steven G.
G.
a/so
Bradbury, Principal
Principal Deputy
Deputy Assistant
Assistant Attorney
Attorney General,
General, Office
Office of
ofJ8
18
Bradbuty,
ofLegal
Legal Counsel,
Counsel, Re:
Re: Application
Application 0/
;
U.S.C §§ 134D-234OA
2340-2340Ato
tothe
theCombined
CombinedUse
Use
of Certain
Techniques
the Interrogation
of High
al Qaeda
U.s.c.
o/Certain
Techniques
tn /heininterrogation
o/Hlgh
Value Value
at Qaeda
'I'
Detainees(May
(May10,
10,2005)
2005)("Combined
('CombinedUse")
Use'1(concluding
) (concluding
that
combined
these
techniques
would
Detainees
that
thethe
combined
useuse
ofof
these
techniques
would
notnot . j
torture). In additioIl,we
addition, we have
havedetermined
determinedthat
thatthe
theconditions
conditions0/
ofconfinement
confinement
the
violate the federal prohibition on torture).
inin
th~
Article 3,
3, and
and we
we do
do not
notaddress
addressthose
thoseconditions
conditionsagain
againhere.
here.
CIA program fully comply with the DTA and Common Article
See Memomndwn
Memorandum for John A
A. Rizzo,
Rizzo, Acting General
General Counsel,
Counsel, Central Intelligence Agency,
Agency, from Steven G.
G.
See
Assistant Attorney General, Office ofLegal
of Legal Counsel,
Application0/
ofthe
theDetainee
Detainee
TreatmentBradbury, Acting Assistant
CoWlSel, Re: Application
Treatment!
Act to
to Conditions
ConditionsofConfinement
of Confinement
of Central Intelligence Agency
Facilities
31,2006);
Letter
to John
A. Rizzo,
ofCentrallnte/ligenqeAgency
Facilities
(Aug.(Aug.
31, 20(6);
Letter
to John
A. Rizzo,
Acting General Counsel,
Counsel, Central
Central Intelligence
Intelligence Agency,
Agency, from
from Steven
Steven G.
G. BradbUl)',
Bradbury, Acting
Acting Assistant
Assistant Attorney
Attorney Oenenil,
General,
Acting
Re: Application
ApplicationofCommon
of Common
Article
to Conditions
of Confinement
at CIA
Facilities
Office of
of Legal
Legal Counsel,
Counsel, Re:
Office
Article
3 to3 Conditions
ofConfinement
at CIA
Facilities
(Aug. 31,
31, 2006).
2006).
(Aug.
.

i

~pinions,

~

I

questions we
we discuss in
in this
this memorandwn
memorandum fully address the
. Together with our prior opinions, the questions
to the
the lawfulness of the CIA
CIA detention and
potentially relevant sources of United
Umted States law that
Chat are applicable to
i
program. We understand
understand that the
the CIA
CIA proposes
proposesto
todetain
detainthese
these persons
personsatalsites
sitesoutside
outsidethe
theterritory
territory of
of
interrogation program.
("SMTJ"). as'
as
the United States and
and outside the SpeGial
Special Maritime and Territorial Jurisdiction of the United States ("SMTf').
the
defined in 18
IS U.S.C.
U.S.C. §§ 7,
7, and
and therefore
therefore other
other provisions
provisions in title
tide 18
18 are
arenot
notapplicable.
applicable. In
In addition,
addition, we
weunderstand
understand I
defined
that the
the CIA
CIA will
will not
not detain
detain in
in this
this program
program any
any person
person who
who is
is aaprisoner
prisoner of
of war
war under
under Article
Article 44ofthe
of theThird
Third Geneva
Geneva
that
Convention
Relative
to
the
Protection
of
Prisoners
of
War,
6
U.S.T.
3316
(Aug.
12,1945)
("GPW")
or
a
person
Convention Relative to the Protection of Prisoners of War, 6 U.S.T. 3316 (Aug. 12, 1945) ("GPW") or a person
covered by
by Article
Article 44 of
of the
the Fourth
Fourth Geneva
Geneva Convention
Convention Relative
Relative to
to the
the Protection
Protection of
of Civilian
Civilian Persons
Persons in
in Time
Time of
of I
'covered
War, 6 U.S.T.
U.S.T. 3516
3516 (Aug.
(Aug. 12,
12,1949)
C'GCV"), and
and thus
thus the
the provisions
War,6
1949) ("GCV"),
provisions of
of the
the Geneva
Geneva Conventions
Conventions other
other than
than
Common Article
Article 33 also
also do
do not
not apply
apply here.
here.
Common

i

i

3

5

(FRI)JIJL 2:::

zoe7

15:C8/ST. H;:08/~~O. 616c-'ze77e p

~

I

offenses prohibits the six techniques
techniques as
as proposed
proposed to
to be
be employed
employed by
by the
theCIA.
CIA. In
InPart
Partill,
HI,we
we
consider the DTA and conclude that the six techniques
as
proposed
to
be
employed
would
techniques as proposed to be employed would satisfy
satisfy
its
its requirements.
requirements. The War Crimes
Crimes Act and
and the
the DTA
DTA cover
cover aa substantial
substantial measure
measure ofthe
of the conduct!
conduct
!
prohibited by Common Article 3; with the
the assistance
assistance of
of our
our conclusions
conclusions in
in Parts
Parts IIII and
and III,
III,
Part IV explains that the proper interpretation ofCommon
of Common Article 3 does
does not
not prohibit
prohibit the
the U~
United
the CIA's proposed interrogation techniques.
States from
from employing the

I
I

To make
make that
that determination
determination conclusive under United States law,
law, the President may
exercise his authority under the Constitution and the Military Commissions Act to issue an
We understand that the
I'
executive order adopting this interpretation ofCommon
of Common Article 3. We
President intends to exercise this authority.
We
have
reviewed
his
proposed
executive
order:
authority.
have
his
The executive order is wholly consistent with
with the
the interpretation
interpretation of Common Article 33 provided iI
herein,
ofthe
order's!
herein, and the six proposed interrogation techniques comply with each of
the executive order's

i

terms.
te~.

I.

f

A.

The CIA now proposes to operate a limited detention and interrogation program pursuant
pursualit
CIA
to the authority granted by the President
to
The CIA does not
long-term detention, or to serve a purpose similar to that of
intend for this program to involve Jong-tezm
ofthe
U.S. Naval Base at Guantanamo Bay, Cuba, which is in part to detain dangerous
U.S.
dangerQUS enemy
!
who continue to pose a threat to
to the United
United States,
States, until
until the
the end of the armed
combatants, who
conflict with al Qaeda or until other satisfactory arrangements can be made. To the contrary, tije
the
CIA currently intends for persons introduced into
into the
the program
program to
to be
be detained
detained only so
so long
long as
as is/
is

the
i

necessary to obtain the vital intelligence they may possess.
possess. Once that end is accomplished, the
CIA intends to transfer the detainee to3the custody of other entities, including in some cases the
States Department
Department ofDef~nse.3.
of Defense.
United States

I

~;lh"""

This (.",wI.
formula has
has _been follow'"
followed with regard (0
to .one
person hdd
held ..
in CiA
CIA .custody
since the
the1'<_',
President's
,3 nus
. . .,..,..
. . - since

I

September 6,
6,2006
remarks d1.Uing
during which
which he
he announced
announced that
that the
the program
program was
was empty
empty at
at tbat
that time.
time. The
The CIA
CIA took
took I'
September
2006 remarks

~
4

._-------"._..

_---_._-_._-~.

~---

8

FROM

SITE

15

DOJ

(FR I) JUL

20

2C07

; 5 :C8/ST. 15 :OB/NO. lit eO~2977e p

thegroupofpersonstowhomtheCIAmayapplyinterrogationtechniquesalso limited
:ven as 0
detainees who
IA does
oes notproposed
propose totouse
who meet
meet that
that standard,
standard, however,
however, tbe
the ClA
useenhanced
enhanced .
interrogation techniques unless the CIA has
has made
madethree
threeadditional
additionaldeterminations.
determinations. First,
First,the
theel
CIA
must conclude that the detainee is a member or agent of at
al Qaeda or its aff"Uiues
affiliates and is likely to
possess critical intelligence of high :value
value to the
the United
United States
States in
in the
the Global
Global War
War on Terror,
Terror, as
as I
of the CIA must determine that enhanced
further described below. Second, the Director ofthe
i
interrogation methods are needed to obtain this
i
this crucial
crucial information
information because
because the
the detainee
detainee is
is
withholding or manipulating intelligence or the threat of
insufficient time
tim~
of imminent attack leaves insufficient
. for
I
for the
the use
use of
of standard
standard questioning.
questioning. Third,
Third, the
the enhanced techniques may be used with a
particular detainee only if, in the professional judgment of
ofqualified
personnel, there
there are
are
qualified medical personnel,
no significant medical or psychological contraindications for their use with that detainee.
1.
i.

The
The program
program isis limited
limited to
to persons
persons whom
whomthe
theDirector
Directorofthe
of theCIA
CIAdetermines
determinestotobe
beaa
member of or a part of or supporting al Qaeda, the Taliban, or associated terrorist organizations
and likely to possess information that could prevent terrorist attacks
attacks against
against the
the United
United States
States o~
or
and
its interests or that could help locate the senior leadership of al
aI Qaeda who are conducting its r
of terror against the United States,
campaign ofterror
States."4 Over
O:ver the history of
of its detention and interrogation
program,from
March 2002
2002 until
until today,
today, the
the CIA
CIAhas
hashad
hadcustody
custodyof
ofaatotal
totalof"98
of 98detainees
detaineesininth~
the
program,
from March
program.
Of
those
98
detainees,
the
CIA
has
only
used
enhanced
techniques
with
a
total
of
30.
program. Ofthose
has on)y used enhanced techniques with a total of30.!
CIA bas
has told
told us
us that
that itit believes
believes many,
many, ifnot
if not all,
all, ofthose
of those 30 detainees had recei:ved
received training
The CIA
training!
the resistance of interrogation methods and
and that
that al
al Qaeda
Qaeda actively
actively seeks
seeks information
information regarding
regarding
in the
U.S. interrogation methods in order to enhance that
that training.
training.
U.S.
;

2.
2.
The CIA has informed us that,
that, even
even with
with regard
regard to
to detainees
detainees who
who are
are believed
believed to
to possess
possess
high value information, enhanced techniques would not be used
used unless
unless normal
normal debriefing
i
methods have
have been
been ineffective
ineffective or unless
unless the
theimminence
imminence of
of aa potential
potential attack
attack isispelieved
believed not
not to
to ;
methods
sufficient time for the use of other methods.
methods. Even under the latter circumstance, the
allow sufficient
!
detainee will
will be
be afforded
afforded the
the opportunity to
to answer questions
questions before the
the use ofany
of any enhanced I'
detainee
techniques. In either case,
case, the on-scene interrogation team must determine that
techniques.
that the detainee is
withholding or manipulating information. The interrogation team then develops a written
plan. Any
Any interrogation
interrogation plan
plan that
that would involve the use of
of enhanced
enhanced techniques
techniques
interrogation plan..
interrogation

I

_______________.......-__-!i_
. 2
placed al·Hadi
al-Hadi in the custody ofthe
of the Department ofDefense.
of Defense.
2007, the CIA placed
4

I

'I

InI

The CIA informs us that it currently views possession of information regarding the location of Osama bin
al-Zawahiri as warranting application of enhanced techniques, if
Laden or Ayman al-Z3wahiri
if other conditions are met
mel
4

,

5

FROM SITE

15

nOJ

(fRI)JU:'

20 2007

:5:08/S •. 15:0B/NO. 1l16C.o:2S1771S P

must be personally reviewed and approved by the Director ofthe
of the Central Intelligence Agency.
more than
than 30
30 days.
days.
Each approval would last for no more
3.
3.

The third significant precondition far
for use of any of
of the
the enhanced
enhanced techniques
techniques is
is aa careful
careful
of the detainee by medical and psychological professionals from
evaluation ofthe
from the CIA's Office
Office of
of
evaluations isis to
to ensure
ensure the
thedetainee's
detainee's safety
safety ~t
at
Medical Services ("OMS"). The purpose of these evaluations
all times and to protect him
himfrom
physical or
or menta)
mental harm.
harm. OMS
OMS persOJUlel
personnelare
arenot
notinvolved
involvedinin
from physicaj
the work of
the interrogation
afthe
interrogation itself
itself and
and are
are present solely to ensure the health and the safety of .
assessment...
the detainee. The intake evaluation includes "a thorough initial medical assessment
... with a
complete, documented
documented history
history and
and aa physical
[examination] addressing
addressing in
in depth
depth any
any chronic
chronic or
or I
complete,
physical [examination]
onMedical
Medicaland
andPsychological
Psychological
Support
medical problems."
OMSGuidelines
. previous
previous medical
problems.» OMS
Guidelines on
Support
to to
J
Detainee Rendition,
andand
Detention
at 9 at
(Dec.
2004)
("OMS
Guidelines').
In In i
Detainee
Rendition,Interrogation
Interrogation
Detention
9 (Dec.
2004)
("OMS
Guidelines").
addition, OMS personnel monitor the detainee's condition throughout the application of
i
enhanced techniques, and the
the interrogation team
team would
would stop
stopthe
theuse
useof
ofparticular
particulartechniques
techniquesor
or
if the detainee's medical or psychological condition were to I
halt the interrogation altogether iftbe
See Section
Section2340
2340
suffer significant physical or mental harm.
harm. See
indicate that the detainee might suffer
Opinionat"S-6.
at 5-6. Every
Every CIA
CIAofficer
officer present
present atat an
aninterrogation,
interrogation,including
includingOMS
OMSpersonnel,
personnel, has
hasthe
the
Opinion
authority
and
responsibility
to
stop
a
technique
if
such
harm
is
observed.
aut~ority

I
i

I

I

B.
The proposed interrogation techniques are only one part of an integrated detention and I
CIA. The foundation of the program is
is the
the CIA's
CIA's
interrogation program operated by the CIA.
i
knowledge ofthe
of the beliefs and psychological traits ofal
of al Qaeda members. Specifically, members
members/
of at
al Qaeda expect that they will be subject to no more
more than
than verbal
verbal questioning
questioning in
in the
the hands
hands of
of
the United States, and thus are trained patiently to wait out U.S.
U.S. interrogators, confident that th~
they
can withstand U.S.
interrogation
techniques.
At
the
same
time,
al
Qaeda
operatives
believe
that
u.s.
the same time, al Qaeda operatives believe tha~
they
are morally
reveal information
information once
once they
they have
have reached
reached aa certain
certain limit
limit of
of
they are
morally permitted
permitted to
to reveal
"
discomfort.
is designed
designed to
the detainee's
detainee's expectations
expectations about
about how
how he
he will,
will!
discomfort. The
The program
program is
to dislodge
dislodge the
be
treated in
U.S. custody,
custody, to
to create
create aa situation
situation in
in which
which he
he feels
feels that
that he
he isis not
not in
in control,
control, and
and t~
to
be treated
jn U.S.
establish aa relationship
relationship of
of dependence
dependence on
on the
the part
of the
the detainee.
detainee. Accordingly,
Accordingly, the
the program's
establish
part of
program's
intended effect
effect is
is psychological;
it is
is not
not intended
intended to
to extract
extract information
information through
through the
the impositioQ
imposition
intended
psychological; it
_of_physical
of h sical pain.
aiD.
i

I

6

I

FROM SITE 15

DOJ

(FRI)JUL

.

20

2C07

lS:0El/ST. 1S:08/NO. 6160(21177e

.

I

The CIA has
has designed the techniques
techniques to
to be
besafe.
safe. Importantly,
Importantly, the
theCIA
CIAdid
didnot
notcreate
createthe
theI
proposed interrogation techniquesfrom
whole cloth.
cloth. Instead,
Instead, the
the CIA
CIA adapted
adapted each ofthe
of the
from whole
I
techniquesfrom
in the
the United
United States
Statesmilitary's
military'sSUlVival,
Survival,Evasion,
Evasion,Resistance,
Resistance,and
and I
from those used i~
training. The
The SERE
SERE program
programisisdesigned
designedtotofamiliarize
familiarizeU.S.
U.S.troops
troopswith
with
Escape ("SERE") training.
I
interrogation techniques they.
they might experience in enemy custody and to train these troops
troops to
to i
resist such techniques.
techniques. The SERE program
program provided
provided e~piri~al
empirical evidence that the
the technique~
techniques ~
as I
.resist
lt
in'the SERE program were safe. M
As aa result
result of
ofsubJectmg
subjecting hundreds
hundredsofthousands
of thousands of
of ml!
military
used in·the
at issu~
issue here
here over decades,
decades, the
the military has
has a long
long I
personnel to variations ofthe
of the six techniques at
techniques. The CIA
CIA reviewed
reviewed
experience with the medical and psychological effects of such techniques.
training. Recognizing
Recognizing that aa detainee
detainee in
in CIA
CIA I
the military's extensive reports concerning SERE training.
custody will be in a very different
different situationfrom
U.S.
military
personnel
who
experienced
SERE
from U.S.
who experienced SERE
no significant or lasting medical or
training, the CIA nonetheless found it important that no
I
psychological harm had resultedfrom
use of
ofthese
these techniques
techniques on
on U.S.
U.S. military personnel ov~r
over
from the use
many years in SERE training.

arr

I

I

All ofthe
techniques we
we discuss below
below would be applied only by CIA
CIA personnel
personnel who
who ar~
are
ofthe techniques
within the
the limits
limits set
set by
by the
the CIA
CIAand
and described
described inin
highly trained in carrying out the techniques within
this memorandum. This training is crucial—the
techniques are not for wide
crucial-tbe proposed teclmiques
"'j,
who might be more
more likely
likely to
to misuse
misuse olil'
or
application, or for use by young and untrained personnel who
them. The average age
techniques is
is 43,
43, :
abuse them.
ag~ of a CIA interrogator authorized to apply these techniques
would apply
apply these
these I
and many possess advanced degrees in psychology. Every interrogator who would
that lasts
lasts approximately
approximately four
four weeks,
weeks, i
enhanced techniques is trained and certified in aa course that
which includes mandatory knowledge
of the detailed interrogation guidelines that the CIA has
knOWledge ofthe
bas i
developed for this program. This course entails
entails for each interrogator more
more than
than 250
250 hours
hours of
of J
limits. An interrogator
interrogator works
works under
under the
the direct
direct supelVision
supervision of
of
training in the techniques and their limits.
experienced personnel before he is permitted principally to direct an interrogation. Each
~
interrogator has been psychologically screened to minimize
risk that
minimize the
therisk
that an
aninterrogator
interrogator might
might :
technique. We understand from
you that
that these
these procedures
procedures ensure
ensurethat
that all
all
misuse any technique.
from you
of the interrogation techniques, and that they
interrogators understand the design and purpose ofthe
will apply the techniques in accordance with
with their
their authorized
authorized and
and intended
intended use.
use.Ss

I

I

,„ The CIA proposes
proposes to
to use
use two
two categories
categories of
of enhanced
enhanced interrogation
interrogation techniques:
techniques:
conditiOning
I
conditioning techniques and corrective techniques.
techniques. The CIA has
has determined that
that the
the six
six
effective program for
techniques we describe below are the minimum necessary to maintain an effective
type of critical
critical intelligence from
high value
value detainee
detainee that
that the
the program
program isis design~
designee
obtaining the type
from aa high

I
i

to
elicit.
~~~

s
S

In descnbing
describing and evaluating the proposed techniques in this Memorandum, we
we are
are assisted
assisted by
bythe
the
e,,:perience
experience that CIA interrogators and medical personnel
personnel have
have gained through
through the
the past
past adntinistration
administration of
of enhanced
interrogation techDiques
DTA At that time, those techniques were
techniques prior to the enactment of the DTA.
were designed
designed by
by CIA
CIA I
personnel to be safe, and this Office found them to
to be
be lawful
lawful under
under the
the then-applicable
then-applicable legal
legal regimes
regimes (I.e.,
{i.e.,before
beforethe
the
enactment of the DTA and the MeA
MCA and the Supreme
SupremeCourt's
Cam'sdecision
decision
Hamdon).
supra
atn.2.
enaetment
in in
Hamdan).
SeeSee
supra
at n.2.
YouYou
havehave
informed us that the CIA's subsequent experiena:
experience in conducting the
the program bas
has confirmed
confirmed that
thatjudgment.
judgment.
iI¥ormed

I

7

p

,

FROM

SITE

1~

DOJ

(FRI)~UL 20

2007

15:0&/ST. 15:08/NO. 6:60"29775

1. Conditioning techniques
techniques
1.

You have informed us that the proposed conditioning techniques are integral to the
program's foundational objective-to
objective—to convince the detainee that he does not have control over I
. his
his basic
basic human needs
needs and
and ~o
to bring
bring the
the det,ainee
detainee to
to tb~
the point
point w.here
where h:
he finds
finds itit f?8rmissible,
permissible,
consistent with his beliefs and values,·to
disclose the mformatlOn
values, todisclosethe
information he IS
is protecting. You have alsp
also
i o B ^ B o i o w l e d g e of al Qaeda training, which
told us that this approach is grounded i~owledge
I
at
authorizes the disclosure of information at such a point. The specific conditioning techniques at
deprivation.
issue here are dietary manipulation and extended sleep deprivation.

I

I
II

Dietary manipulation would involve substituting a bland, commercial liquid meal for a
Dietary
detainee's normal diet. As a guideline, the CIA would use a formula for calorie intake that
of activity. This formula would ensure.
ensure
depends on a detainee's body weight and expected level ofactivity.
that calorie intake
jntake will always be at least 1,000 kcal/day, and that it usually would be
"
significantly higher.
higher.*6 By comparison, commercial weight-loss programs used within the United,
United;
significantly
kcal/day regardless ofbody
of body weight. CIA medical officerr'
officers
States commonly limit intake to 1,000 kcallday
fluid and nutrition, and frequent
frequent
ensure that the detainee is provided and accepts adequate fluid
monitoring by medical personnel takes place while any detainee is undergoing dietary
I
manipulation. Detainees would be monitored at all times to ensure that they do not lose more I
than ten percent of
of their starting body weight, and if
if such weight loss were to occur, applicationj
application
ofthe
i
of the technique would be discontinued. The CIA also would ensure that detainees, at a
minimum, drink 3S
fluids, but a detainee undergoing dietary manipulation may I
35 mllkglday
rmVkg/day of
of fluids,
drink as much water as he reasonably pleases.
I
!

./

deprivation would
would involve
involve keeping
keeping the
the detainee
detainee awake
awake continuously
continuously for
for
Extended
Extended sleep deprivation
up to 96 hours. Although the application ofthis
of this technique may be reini~jated
reinitiated after
after the detainee ~
is
of sleep, CIA guidelines provide i
allowed an opportunity for at least eight uninterrupted hours of
of total sleep deprivation during I
that a detainee would not be subjected to more than 180 hours oftotal
one 30-day period.
period.?7 Interrogators would employ extended sleep deprivation primarily to weaken
weakeh
from statements made by al Qaeda
a detainee's resistance to interrogation. The CIA knows from
members who have been interrogated that al Qaeda operatives are taught in training that it is I
consistent with their beliefs and values to cooperate with interrogators and to disclose
information
their ability to resist. Sleep deprivation is effectiv~
effective
information once they have met the limits of
oftheir
in safely
safely inducing fatigue as one means to bring such operatives to that point.
I

i
i

II

6
6 The CIA generally follows

as a guideline a calorie
calorie requirement
requirementof
of 900
900kcaJlday
kcal/day ++ 10
10kca1llcglday.
kcal/kg/day. This
This
quantity is multiplied by 1.2 for a sedentary activity level or 1.4 for a modelllte
moderate activity level.
level. Regardless of this
formula, the recommended minimum calorie intake is 1500
1500 kca1Iday.
kcal/day, and
and in
inno
noevent
eventisisthe
thedetainee
detaineeallowed
allowedtoto .!
receive less than 1000 kcaVday.
kcal/day. The
The guideline
guidelinec:aloric
caloric intake
intakefor
detaineewho
whoweighs
weighs150
150pounds
pounds(approximatelY
(approximately
for aadetainee
68 kilograms) would therefore be nearly 1,900
1.900 kcal/day
for sedentary activity and.
and would be more than 2,200
kcaJldayfor
kcal/day for moderate activity.

I

1 In this memorandum we address
address only the
the lawfulness of a period of continuous sleep deprivation of no
that ititwould
more than 96 hours.
hours. Should the
the CIA
CIA determine
determinettiat
wouldbe
benecessary
necessaryfor
forthe
theDirector
Directorof
ofthe
theClA
CIAtotoapprove
approvean
an
of that period with respect to a particular detainee, this Office would provide additional guidance on the I
extension of
of the applicable legal standards to the facts of that particular case.
application of
.

8

;>

10

FROM

SITE

15

OOJ

(FRI)Jt!!.

20

2CC7

1S:CQ/ST. 15:0S/NO. 61(1042&775

I

t h e CIA uses physical restraints to prevent the detainee from falling asleep.
asleep. The
The
front ofhis
of his body, which prevents I
detainee is shackled in a standing position with his hands in front
him from falling asleep but allows him to move around within a two- to three-foot diameter area:.
area
8
heart. Standing for!
for.
The detainee's hands are generally positioned below his chin and above his heart.!
of time can cause the physical effects that we describe below. We are !
such an extended period oftime
told, and we understand that medical studies confirm, that clinically significant edema (an
:1
of the I~gs
legs and feet due to the building up of excess fluid)
fluid) may occur after aJl!L
an
excessive swelling ofthe
extended period of standing. Due to the swelling, this condition is easily diagnosed, and medical
personnel would stop the forced standing when clinically significant symptoms of edema were
addition, standing for extended periods oftime
of time produces muscle stress.
stress. Though i
recognized. In additi<;m,
this condition can be uncomfortable, CIA medical personnel report that the muscle stress
I
harmful to the detainee and that
associated with the extended sleep deprivation technique is not harmfu)
detainees in
in the
the past
past have
have not
not reported
reported paia
pain.
detainees
.
I.

!

I

The detainee would not be allowed to hang by his wrists from the chains during the
Tbe
i
of the technique. If
If the detainee were no longer able to stand, tbe
the standing
administration ofthe
of the technique would be immediately discontinued. The detainee would be
component ofthe
monitored at all times through closed circuit television. Also, medical personnel will conduct
frequent physical and psychological examinations ofthe
of the detainee during application ofthe
of the
technique.9
technique.

I
I

We understand that detainees undergoing extended sleep deprivation might experience
fatigue, including a slight drop in body
"unpleasant physical sensations from prolonged fatigl.1e,
difficulty with coordinated body movement and with speech, nausea, and blurred
temperature, diffiCUlty
see also
alsoid.
id.at
at 31-38;
37-38; Why
WhyWe
WeSleep:
Sleep: The
TheFunctions
Functionsof
of
vision."t Section 2340 Opinion at 37; see
vision:
and Other Mammals
Sleep in Humans and
MammQIs 23-24 (1998). Extended sleep deprivation may cause
diminished cognitive functioning and, in a few isolated cases, has caused the detainee to
personnel, and indeed all interrogation team members, are
experience hallucinations. Medical personne~
of this technique ifthe
if the detainee is observed to suffer
suffer from significant
significant
instructed to stop the use ofthis
of his mental functions, including hallucinations. We understand tbat
that subjects
I
impairment ofhis
deprived of
sleep in scientific
ofsleep
scientific studies for significantly
significantly longer than the CIA's
CIA' s 96-hour
96~hour limit on I
continuous sleep deprivation generally return to normal neurological functioning
functioning with one nighti
of
normal
sleep.
See
Section
2340
Opinion
at
40.
of normal sleep. Su
Opinion at 40.

I

I

I

f

I

I

. ' . Because releasing
~ele~ing a detainee
detain~ from the shackles
~hackles to utilize
u!ilize toilet facilities
facilitie~ would present a I
significant
the technique, a detainee I
slgt11ficant security
securIty risk
nsk and would interfere
rnterfere with
WIth the effectiveness
effectIveness of
ofthe

Slj

I

I

I

I

iI
,i

II

. *
• The
as as
starting
thethe
clock
on the
96-hour
limitlimit
for the
TheCIA
CIAregards
regardsthis
thisshackling
shacklingprocedure
procedure
stalling
dock
on the
96-hour
forproposed
the proposed sleep
deprivation teelmique.
techniqne. Similarly,
Similarly, "ith
withregard
regardtotothe
theoverafi
overallsleep
sleepdeprivation
deprivationlimit
limitofof180
180
hours,
hours,
thethe
CIACIA
doesdoes
not not
i
apply the
the shackling
shacklingprocedures
proceduresfor
formore
morethan
thana atotal
totalofof
180
hours
in one
30-day
period.
180
hours
in one
30-day
period.
i
9
9 If
physical
If medical personnel
personnel detennine,
determine,based
basedonontheir
theirprofessional
professionaljudgment.
judgment,that
thatthethedetainee's
detainee's
physical

J

condition does
notpermit
permithim
himtotostand
standforforananextended
extendedperiod,
period,
a detainee
develops
physical
complications
does not
or or
if aifdetainee
develops
physical
complications
fromfrom
extended standing,
standing, such
suchasasclinically
clinicallysignificant
significantedema
edemaorormuscle
musclestress,
stress,
then
interrogators
may
an alternative
then
interrogators
may
useuse
an alternative
I
method of sleep
sleep deprivation.
deprivation. Under
Underthat
thatmethod,
method,the
thedeUlinee
detaineewould
would
shackled
a small
stool,
effective
bebe
shaokled
to to
a small
stool,
effective
for for
supporting his weight,
weight, but
butof
ofinsufficient
insufficient width
widthfor
forhim
himtotokeep
keephishis
balance
during
rest.
balance
during
rest.

9

P

11

FROM SI7E

~5

OOJ

(FRI)JUL

.

20

20~7

~

1!~:09/$T.

~

15:06/NO. 6160.0:29776

.

fo~

undergoing extended sleep deprivationfrequently
frequently wears a disposable undergarment
undergarment designed for
adults with incontinence or enuresis. The undergarments are checked and changed regularly, and
anp
informed us that undergarments are used I
the detainee's skin condition is monitored. You have informed
solely for sanitary and health reasons and not to humiliate the detainee, and that the detainee will
wil}
wear clothing, such as a pair of shorts, over the under-garment during appl
application
of the
I
ication of
technique.
technique.
2.
2. Corrective
CorrectiveteehnUJues
techniques

I

Corrective techniques entail some degree ofphysical
of physical contact with the detainee.
Importantly, these techniques are not designed to inflict pain on the detainee, or to use pain to
corr~ [or] startle." Background
BackgroundPaper
at 5.
5. This
Thi~
obtain information. Rather, they are used «to
"to correct
Paper at
category oftechniques,
as
well,
is
premised
on
an
observed
feature
ofal
Qaeda
training
and
i
of techniques,
of al
mentality-the
I
mentality—the belief that they will not be toUGhed
touched in U.S. custody. Accordingly, these
techniques "condition a detainee to pay attention to the interrogator's questions and ., ..., dislodge
ex.pectations
expectations that the detainee will not be touched".
touched" or that a detainee can frustrate the
interrogation by simply outlasting or ignoring the questioner. Section 2340 Opinion at 9.
9, There
There
are four techniques in this category.

I

The "facial hold" is used to hold a detainee's head temporarily immobile during
interrogation. One open palm is placed on either side of
ofthe
fingertips are
lU'j'
the individual's face. The fingertips
kept well away from the individual's eyes. The facial hold is typically applied for a period of
of
only a few seconds.
.
The Uattention
"attention grasp" consists ofgrasping
of grasping the individual with both hands, one hand on
of the collar opening, in a controlled and quick motion. In the same motion as the
.
each side ofthe
grasp, the individual is drawn toward the interrogator. The interrogator uses a towel or other i
collaring device around the back of the detainee's neck to prevent any whiplash from the sudden
coUaring
sudde~
motion. Like the facial hold, the attention grasp is typically applied for a period of
of only a few
seconds.
.
seconds.
the detainee
ofthe
The "abdominal slap" involves the interrogator's striking the abdomen of
hand. The interrogator must have no rings or other
jewelry on his hand
with the back of his open hand.
otberjewelry
hanCi
wrist. The interrogator is positioned directly in front of
the detainee, no more than 18 inches
or wrist.
ofthe
inches!
from the detainee. With his fingers
ringers held tightly together and fully extended, and with his palm !
from
toward his own body, using his elbow as a fixed pivot point, the interrogator
interrogator slaps the detainee in
iiJ.
fist, and the slap must be delivered
the detainee's abdomen. The interrogator may not use a fist,
above the
the navel
navel and
and below
below the
the sternum.
sternum.
above
.

I
I

With the "insult (or facial) slap," the interrogator slaps the individuals
individual's face with fingers
the individual
individual's
oftbe
is
slightly spread. The hand makes contact with the area directly between the tip of
chiii and the'bottom
the bottom of the corresponding earlobe. The interrogator thus "invades" the
chin
individual's "personal space." We understand that the purpose of
of the facial slap is to induce
.
shock
or
surprise.
Neither
the
abdominal
slap
nor
the
fecial
slap
is used with an
facial
~ intensity or
.shock
frequency that would cause significant pain or harm to the detainee.

!

10

P

~2

FROM

SITE

15

OOJ

(FRI)JUL

20

psyc~0108ical

20C7

;;;:09/ST. 15:08/1'10.111110':29776 P

I

ob~erving

Medical and psychological personnel are physically present or otherwise observing .
whenever these techniques are applied, and either they or any other member oftbe
of the Interrogation
interrogation I
team will intervene ifthe
painful or harmfull
if the use ofany
of any ofthese
of these techniques has an unexpectedly painful
harmful
detainee,
I
psychological effect
effect on the detainee.

**

*

*

In the analysis to follow, we consider the lawfulness of these six techniques both
of the teehniquestechniques—
individually and in combination. You have informed us, however, that one ofthe
deprivation—has proven to be the mo~
most indispensable to the effectiveness
effectiveness ofthe
of the
sleep deprivation-has
I
interrogation program, and its absence would, in all likelihood, render the remaining techniques
of little value. The effectiveness
effectiveness ofthe
of the program depends upon persuading the detainee, early in
oflittle
the application ofthe
of the techniques, that he is dependent on the interrogators and that he lacks
!
control over his situation. Sleep deprivation, you have explained, is ct:\1cial
crucial to reinforcing that i
the detainee can improve his situation only by cooperating and providing accurate informat~on.
information.
carefull)
The four corrective techniques are employed for their shock effect; because they are so carefully.,
significant pain. When used alone.
alone, they
limited, these corrective techniques startle but cause no significant
If the detainee does not immediately cooperate in response to these I
quickly lose their value. If
techniques, the
the detainee
detainee will
will quickly
quickly learn
learn their
their limits
limits and
and know
know that
that he
he can
can resist
resist them.
them. The
The
techniques,
CIA. informs
informs us
us that
that the
the corrective
corrective techniques
techniques are
are effective
effective only
only when
when the
the detainee
detainee is
is first
first placed
placet
CIA
in
a
baseline
state,
in
which
he
does
not
believe
that
he
is
in
control
of
his
surroundings.
The
in a baseline state, in which he does not believe that he is in control of his surroundings. The
conditioning technique
technique of
of sleep
sleep deprivation,
deprivation, the
the CIA
CIA informs
informs us,
us, is
is the
the least
least intrusive
intrusive means
means !
conditioning
available
to
this
end
and
therefore
critical
to
the
effectiveness
of
the
interrogation
program.
available to this end and therefore critical to the effectiveness ofthe interrogation program.
i

I
I

I

I

II
n.

I

The War Crimes Act proscribes nine criminal offenses
offenses in an armed conflict
conflict covered by
10
Common Article 3 ofthe
See 18 U.S.C.
,
of the Geneva Conventions.
Conventions.10
U.S.C. §§ 2441(c)(3).
2441(c)(3). To
To list
list the
the
prohibited practices is to underscore their gravity: torture, cruel and inhuman treatment,
performing biological experiments, murder, mutilation or maiming, intentionally causing seriou~
serious
bodily injury, rape, sexual assault or abuse, and the taking ofhostages.
of hostages.

I

i

I

We.need
We need not undertake in the present memorandum to interpret all ofthe
of the offenses
offenses set
forth in the War Crimes Act. The CIA's proposed techniques do not even arguably implicate six
si*
of these offenses-performing
offenses—performing biological experiments, murder, mutilation or maiming, rape,
ofthese
U.S.C. §§
§§ 244I(d)(IXC),
2441(d)(l)(C), (D),
(D), (E),
(E),
sexual assault or abuse, and the taking of hostages. See 18 U.S.C.
offenses borrow from existing federal criminal law; they have well-;
(G), (H), and (I). Those six offenses
here.''
defined meanings, and we will not explore them in depth here.
11.
•

I

JI

10

Assistant Alto.".,.
Attorneys Geoeml
General ""
for National
Security
and forthe
Division have
have revi.....
reviewed and
.. The """"""
Nali""'" _
I y aodier
lhe Criminal
Crimmal DMsioo
II's interpretation of the general legal standards applicable
applicable to
to the
therelevant
relevant War
WarCrimes
Crimes Act
Act
concur with Part Irs
I
offenses.
o~.

1
II' Although the
the WaI
War Crimes
CrimesAct
Actdefines
definesoffenses
offensesunder
underthe
theGeneva
GenevaConventions,
Conventions,ititisisour
ourdomestic
domesticlaw
lawth31
that
guides the intelpretation
interpretation of the Act's statutory terms.
terms. Congress has
has provided that "ltO
"no foreign or international sourde
source
of law shall supply a basis for a rule of decision in
in the
thecourts
courtsof
ofthe
theUnited
UnitedStates
Statesinininterpming
interpretingthe"
the"prohibitions
prohibitions

11

13

FROM SI'E

t5

DO·J

(FRI)JUI. 2C

2007

15:09/ST. 15:0S/NO. 616C<:297711

I

the three remaining offenses—torture,
treatment, anc
Some features of
ofllie
offenses-torture, cruel and inhuman treatment.
anc!
injury—may be implicated by the proposed techniques and
intentionally causing serious bodily injury-may
so it is necessary for us to examine them. Even with respect to these offenses, however, we
I
technique—extended sleep deprivation-requires
deprivation—requires significant
significant discussion, !
conclude that only one technique-extended
1
although we briefly address the other five techniques
tech~ques as appropriate. 12
I'

I

First, the War Crimes Act prohibits torture, in a manner virtually identical to the
I
U.S.C. §§
§§ 2340-2340A.
2340-2340A. See
See 18
18 U.S.C.
U.S.C.
previously existing federal prohibition on torture in 18 U.S.C.
2441(d)(1)(A). This Office previously concluded that each ofthe
of the currently proposed six
§ 2441(d)(I)(A).
!
deprivation—subject to the strict conditions, safeguards,
techniques, including extended sleep deprivation-subject
and monitoring applied by the CIA-does
CIA—does not violate the federal torture statute. See
,and
,
Agency.
Memorandum for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency,
from Steven G. Bradbury,
Bradbury. Principal Deputy Assistant Attorney General, Office
Office of
of Legal
•
Counsel, Application of
of18
U.S.C.
§§
2340-2340A
to
Certain
Techniques
That
May
Used
18 u.S.C §§ 2340-2340A to Certain Techniques That May
BeBe
Used
in in!
the Interrogation ofa
of a High Value
Value al
al Qaeda
QaedaDetainee
Detainee("Section
("Section2340
2340
Opinion")(May
(May10,10,
2005).
Opinion")
2005).1
As we explain below, our prior interpretation of the torture statute resolves not only the proper !
of the torture prohibition in tbe
the War Crimes Act, but also several ofthe
of the issues
interpretation of
.
presented by the two other War Crimes Act offenses
offenses at issue.

I
II'

of "cruel and inhuman treatment" in the War
Second, Congress created a new offense of"cruel
offense is directed at proscribing the "cruel treatment" anc
Crimes Act (the "CIT offense"). This offense
and
of the Geneva Conventions. See GPW Ar(,
An.
inhumane treatment prohibited by Common Article 3 oftbe
3
1fl|
1,
1(a).
In
addition
to
the
"severe
physicaLor
mental
pain
or
suffering"
prohibited
by
the
31m1, 1(a).
physical.or
i
torture statute, the CIT offense reaches the new category of "serious physical or mental pain or I'
offense's separate definitions of
of mental and physical pain or suffering
suffering extend to
suffering." The offense's
a wider scope of conduct than the torture statute and raise two previously unresolved questions ,:
definition
when applied to the CIA's proposed techniques. The first issue is whether, under the defmition
of "serious physical
of"serious
phystcal pain or suffering," the sleep deprivation technique intentionally inflicts 2.a . I
"bodily injury that involves ...
. . . a significant
significant impairment ofthe
of the function of
of a bodily member
member...
«bodily
...
can
or mental faculty," 18 U.S.C. § 2441(d)(2)(D), due to the mental and physical conditions that ea.tt
be expected to accompany the CIA's proposed technique. The second question is whether, under
of "serious mental pain or suffering," the likely mental effects
effects ofthe
of the sleep
the definition of"serious
deprivation technique constitute "serious and non-transitory mental harm." Under the
'
procedures and safeguards proposed to be applied, we answer both questions in the negative.

i

i

enumerating gJave
gravebreaches
breachesofofCommon
CommonArticle
Article3 3inin
War
Crimes
MCA
§ 6(a)(2).
fa context
the context
enUmerating
thethe
War
Crimes
Act.Act.
MeA
§ 6(a)(2).
In the
of of
Common Article3,3,however,
however,wewedodo
find
that
Congress
forth
definitions
under
Crimes
find
that
Congress
bashas
set set
forth
definitions
tJDder
the the
WarWar
Crimes
construing Common'Article
Act that
thaiare
arefully
fullyconsistent
consistentwith
withthe
theunderstanding
understandingofofthethesame
same
terms
reflected
in such
international
sources.
Act
teOns
reflected
in such
international
sources.
SeeSee
I ,
infra
61-64.
infraatat51-52,
51-52,61-64.
I

I

i

I

f

I

. I

some
physical
contact
with
the the
detainee,
the thej
'2 For
For example,
example,because
becausethe
thecorrective
correctivetechniques
techniquesinvolve
involve
some
physical
contact
with
detainee,
extent to
Crimes
ActAct
merits
some
consideration.
As we
at variods
to which
whichthose
thosetechniques
techniquesimplicate
implicatethetheWar
War
Crimes
merits
some
consideration.
As explain
we explain
at varioiis
andand
thethe
procedures
Wlder
which
theythey
are are
usedused
leaveleave
themthem
;
points below,
below,however,
however,the
themildness
mildnessofofthese
thesetechniques
techniques
procedures
under
which
outside the
thescope
scopeofthe
of theWar
WarCrimes
CrimesAct
Act
12

12

l>

14

FROM SITE 15

OOJ

(FRI)JUL

20 2007 .5:0e/ST. 16;OS/NO. e160~29776

;0

16

Third, the War Crimes
Crimes Act prohibits
prohibits intentionally
intentionally causing
causing "serious
"seriousbodily
bodilyinjury"
injury" (the
(the
"SBI offense"). The SBI offense raises only one additional question with regard to the
the sleep
deprivation technique-whether
technique—whether the mental
mental and
andphysical
physical conditions
conditionsthat
that may
mayarise
ariseduring
duringthat
that
technique,
s)" under the CIT offense, are "protracted
technique, even if not "significant impairment[
impairment[s]
"protracted
U.S.C.
§ 2441(d)(2)(iv),
with
id. id.
impainnents"
Compare1818
U.S.C.
§ 2441(d)(2)(iv),
with
impairments" under
under the
the SBI
SBI offense.
offense. Compare
§ 1365(h)(3)(D).
of"prolonged
1365(h)(3)(D). Consistent
Consistent with
with our prior
prior analysis
analysis ofthe
of the similar requirem~nt
requirement of
"prolonged
mental harm"
harm" in the
the torture
torture statute,
statute, we
we conclude
conclude that
thatthese
theseconditions
conditionswould
wouldnot
nottrigger
triggerthe
the
13
apphcability ofthe SBI offense. 13
applicability
13
13 In the
the debate over the Military Commissions Act, Members of Congress expressed widely differing
differing
views as to how the terms of the War Crimes Act would apply to interrogation techniques. In light ofthese
of these
divergent views, we do not regard the legislative history ofthe
of the War Crimes Act amendments as particu1arly
particularly
illuminating, although we note that several of those most closely involved in drafting the Act stated that the terms
did not address any particular techniques. As Rep. Duncan Hunter, the Chairman of the House Armed
Anned Services
Committee and the Act's leading sponsor in the House,
House, explained:
explained:

me

Let me he
clear: The bilI
bill defines the specitic
specific conduct that is prohibited under Common Article 3,
be clear:
but it does not purport to identify interrogation practices
ptactices to the enemy or to take any parlicular
particular
means of interrogation off
off the table. Rather, this legislation properly leaves the decisions as to the
me&cds of interrogation to the
me Presideni
Presided and to
to the
me intelligence
imeUigentt professionals at the CIA, so that
methods
they may caay
that. as the President explained, serves to galher
carry forward this vital program that,
gather the
critical intelligence necessary to protect the country from another eatastrophi.c
catastrophic terrorist attaclc..
attack.
ciitical'in1elligence

I

similarl~

152
2006). SenatoiMcCain,
152 Cong. Rec. H7938 (Sept. 29,
29,2006).
Senator McCain, who led Senate negotiations over the Act's text, similarly
any legislation could pro"ide
provide an
an explicit and all-iDclusive
all-inclusive list ofwhat i
"it is UDttaSonable
unreasonable to suggest that any
stated that ''it
permitted," aIlhougb
although be
he did
did state
state that
that the
the Act "will
"will criminalize certain .;
specific activities are illegal and which are peunitted,"
interrogation techniques, like waterboarding and other techniques that cause serious pain or suffering that need not ~
prolonged." Id.
Id at 810,413
S10.413 (Sept
(Sept. 28,
28,2006).
be prolonged....
2006). Other Members, who both supported and opposed the Act, agreed :
rather than
than proscribing specific
specific techniques.
techniques. See,
See, e.g., id.
id. at
that the statute itself established general standards, tather
I
S 10,416 (statement
(statement of
of Sen.
Sen. Leahy) (the bill "saddles the War
War Crimes Act with a definition of croel
cruel and inhuman
S10,416
aD manner of cmel
cruel and extreme interrogation teebniques");
techniques"); id.
id at
r
treatment so oblique that it appears to permit an
S10.260 (Sept. 27,
27,2006)
510,260
2006) (statement of Sen. Bingaman) (stating that the bill "retroactively revises the War Crimes ;
criminal liability does not resul.t
resultfrom
Act so that crinIinalliability
from techniques that the United States may have employed, such as ,I
deprivation"); id
id. at S10,381...g2
S10.381-82 (Sept.
(Sept 28, 2(06)
2006)
hypothermia, and prolonged sleep deprivation;');
simulated drowning, exposure to h,"pothennia,
Sea Clinton) (recognizing that
mat the ambiguity of
of the text
"suggests that those who employ techniques
tell.1"suggests
techniques!
(statement of Sen.
as waterboarding, long-time stAnding
standing and h)'}>Othennia
hypothermia on Americans cannot be charged for war 010165").
crimes").
!
such as
I

I

At the same time, other Members, including Senator Warner,
Warner, the
the Chairman
Chairman oftbe
of the Senate
Senate Armed
Aimed Services
Services
At.
Committee who also was closely involved in negotiations over the bill's text,
lext, suggested that the bill might
mighl
I
criminalize certain interrogation techniques, including variations of
ofcertain
of those proposed by the CIA (although
(although;
certain of
these Members did not discuss the
510,378 (statement
(statement.
die detailed safeguaJds
safeguards within the CIA program). See, e.g., id. at S10.378
(staring that the conduct in the Kennedy Amendment, which would have prohibited "wat~
"waterboarding
of Sen. Warner) (stating
standing...
techniques, stress positions, including prolonged standing
... sleep deprivation, and other similar acts," is "in my I
opinion...
atS10,390
S10,390(statement
(statement of
of Sen.
Sen. Warner)
Warner) (opposinB
(opposing the
the
opinion
... clearly prohibited by the bill."). But see id.
/d. at
J
Kennedy Amendment on the ground that "Congress should not try to provide a8 specific
specific list of
of techniques" because i
"[wje don't know what the future holds."). See olso
also id.
id at S10,384
S10.384 (statement of
"[w]e
of Sen. Levin) (agreeing with Sen. ;
Warner as to the prohibited techniques);
techniques); id.
id at SlO,235-36
S10.235-36 (Sept 27,2006); it!.
id. at S10,235-36 (statement of
of Sen. I
CTTlhe biD
bill would make it a crime to use abusive interrogation techniques like
tike waterboarding, induced
Durbin) ("[T)he
I
hypothermia, painful stress poSitions,
positions, and prolonged sleep.deprivation");
sleep.deprivation"); td.
id at H7553 (Sept, 27,
27,2006)
hypothennia,
2006) (statement of
Rep. Shays) (stating that "any reasonable person would conclude" that
that "the
"the so-called
so-called enhanced .or
or harsh
harsh tecltniq~
techniques
Rep.
that have been implemented in the past by the CIA"
CIA" "would
"wouldstill
stillbe
be criminaI
criminal offenses
offenses under
under the
tie War
WarCrimes
Crimes Act
Act ;
that
suffering'").
because they clearly cause 'serious mental and physical suffering"').

13

------

------------------.1

FROM SITE

IS

OOJ

(FRI)JUL

20 2007 15:09/51. lS:08/NO. 61604211776 P

A.

I

I

in a manner virtu2.lly
virtually identical to the general
The War Crimes Act prohibits torture ~n
18 U.S.C.
U.S.C. §§
§§2340-2340A:
2340-2340A:
federal anti-torture statute, 18
commits, or conspires or attempts to commit, an act
The act of a person who commits,
severephysical
physical or
or mental
mentalpain
pain or
orsuffering
suffering(other
(other
specifically intended to inflict severe
than pain or suffering incidental to lawful sanctions) upon another person within
of obtaining information or a
his custody or physical control for the purpose ofobtaining
confession, punishment, intimidation, coercion, or any reason based on
confession.
.
discrimination of any kind.
2441(dXlXA) (emphasis added).
added). The War Crimes Act incorporates by reference th~
the
18 U.S.C. § 2441(dXl)(A)
2340(2). See
See 18
18U.S.C.
U.S.C. Ii
of the tenn
term "severe mental pain or suffering" in 18 U.S.C.
U.S.C. § 2340(2).
definition of
2441(d)(2)(A).14 This
This Office
Office previously concluded
concluded that the
the CIA's
CIA's six
six proposed interrogation
interrogation
§ 2441(d)(2)(A).14
18 U.S.C.
U.S.C. §§
§§ 2340-2340A
2340-2340A. See
See Section
Section 2340
2340
techniques would not constitute torture under 18
Opinion. On the basis of
of new information obtained regarding the techniques in question, we
Opinion.
have reevaluated that analysis, stand by its conclusion, and incorporate it herein. Therefore, we I
of the techniques in question, as proposed to be used by the CIA, constitutes i
conclude that none ofthe
torture under the War Crimes Act.
'

I

B.
The War Crimes Act defines the offense
offense ofcccruel
of "cruel or inhuman treatment" as follows:
follows:
The act of
of a person who commits, or conspires or attempts to commit, an act
suffering (other
intended to inflict severe or serious physical or mental pain or suffering
suffering incidental to lawful sanctions), including serious physical
than pain or suffering
abuse, upon another person within his custody or control.

18 U.S.C.
U:S.C. §§2441(d)(I)(B).
2441(d)(1)(B). Although
Although this
thisoffense
offense extends
extendsto
to more
moreconduct
conduct than
than the
thetorture
torture
offense, we conclude for the reasons that follow that it does not prohibit the six proposed
techniques as they
the.y are designed to be used by the CIA.

I

I

I
I

"severe physical
physical or
or mental
mental pain
pain or
or
The CIT offense, in addition to prohibiting the "severe
suffering"
suffering" covered by the torture
tonure offense, also reaches "serious physical or mental
menta! pain or
14
H

The torture offense in
in the
the War
War Crimes
CrimesAct
Actdiffers
differsfrom
fromsection
section2340
2340inintwo
twoways
waysimmaterial
immaterialhere.
here.FFirst,
J
section 2340 applies only outside the territorial
the United
United Stales.
Stales. The
Theprohi."bition
prohibitionon
onlOrtllre
tortureininthe
the i
tenitorial boundaries of the
War Crimes Act, by contIast,
contrast, would apply
apply to
to activities,
activities,regardlesS
regardlessoflocation,
of location,tha1
thatoccur
occurin
in"the
"thecontext
contextof
ofor
or
:
association with" an anned
armed conflict "not of.an
of an international character." Second, to constitute
War
constiblte torture under the wal
Crimes Act, an activity must be "for the purpose
purpose ofobtaining
of obtaining information
information or
oraaconfession,
confession, pWlishment,
punishment,intimidatioh,
intimidation,
coercion,
any kind."
2441(d)(1)(A); see
seeDlso
alsoCAT
CATAn.
ArtIJ
coerci~ or any reason based on discrimination of
ofany
kind," See 18 U.S.C. § 2441(d)(1)(A);
(imposing a similar requirement for the treaty's definition oftorture).
activities dlat
diat we
wedescnbe
describe herein
hereinare
are"fdr
"for
lOrtuTe). The aCfi\.iries
the purpose of
"m the
the context
context ofor
of or association with
with a Common Articlel3
Articled
of obtaining information" and are undertaken "in
conflict,"
new requirements
requirements would
would be
be satisfied
satisfied here.
here.
conflict," so
so these
these new
.

I
f

L!

14

16

FROM

SITE

15

OOJ

(FRI)JUL

2C

2007

15:11/ST. 1S:10/NO. 8160 .. 2'1777 ?

offense explicitly defines both of
of the two!
two
suffering." In contrast to the torture offense, the CIT off~nse
key terms-"serious
physical pain or suffering" and "serious mental
terms—"seriousphysical
menial pain or suffering." Before;
Before:
turning to those specific definitions, we consider the general structure of
of the offense, as that
of those specific terms.
structure informs the interpretation of

First, the
First,
the context
context ofthe
of the CIT
CIT offense
offense in
in the
the War
War Crimes
Crimes Act
Act indicates
indicates that
that the
the term
term
"serious"
in
the
statute
is
generally
directed
at
a
less
grave
category
ofconditions
"serious" in the statute is generally directed at a less grave category of conditions than
than falls
falls
within
within the
the scope
scope ofthe
of the torture
torture offense.
offense. The
The terms
terms are
are used
used sequentially,
sequentially, and
and cruel
cruel and
and inhuman:
inhuman
treatment
treatment is
is generally
generally understood
understood to
to constitute
constitute a
a lesser
lesser evil
evil than
than torture.
torture. See,
See, e.g.,
e.g., CAT
CAT Art.
Art. 16:
16
(prohibiting
(prohibiting "other
"other cruel.
cruel, inhuman,
inhuman, or
or degrading
degradingtreatment
treatment or
or punishment
punishment which
whichdo
do not
not amount;
amount
to
to torture")
torture") (emphases
(emphases added).
added). Accordingly,
Accordingly, as
as aa general
general matter,
matter, aa condition
condition would
would not
not
constitute
"severe
physical
or
mental
pain
or
suffering"
if
it
were
not
also
to
constitute
constitute "severe physical or mental pain or suffering" if it were not also to constitute "serious:
"serious
physical or mental pain or suffering."
Although it implies something less extreme than the term "severe," the term "serious"
still refers to grave conduct. As with the term "severe," dictionary definitions ofthe
of the term
underscore that it refers
"of a great degree or an undesirable or harmful
harmful'~
ref~rs to a condition "of
"serious" undersco.re
element." Webster's Third Int
Int'l'f Dictionary at 2081. When specificalJy
specifically describing physical pain.
pain,
"serious" has been defined as "inflicting
"inflicting a paino!
pain or distress [that is] grievous."
grievous." Id
Id. (explaining .
that, with regard to pain, "serious" is the opposite of"mild").
of "mild").
That the term "serious" limits the CIT offense
offense to grave conduct is reinforced by the
purpose ofthe
of the War Criines
Crimes Act. The International Committee of the Red Cross ("JCRC")
("ICRC")
"acts which world
Commentaries describe the conduct prohibited by Common Article 3 as "aets
public opinion finds particularly revolting." Pietet,
Pictet, gen. ed., ill
HI Commentaries on the Geneva
50 (explaining the
the significance ofthe
of the ICRC
ICRC
Conventions 39 (1960); see also infra at 50
Commentaries in interpreting Common Article 3). Ofthe
Of the minimum standards oftreatment
of treatment
directed
consistent with humanity that Common Article 3 seeks to sustain, the War Crimes Act is directea
only at
at "grave
"grave breaches"
of Common
Common Article
Article 3.
3. See
See 18
18 U.S.C.
U.S.C. §§ 2441(c)(3).
2441(c)(3). Grave
Grave breaches
breaches of!
of;
breaches" of
only
of such severity that the Conventions oblige signatories to :
the Conventions represent conduct of
effective penal sanctions" fOf,
for, and to search for and to prosecute persons committing,
"provide effective
of the Conventions. See,
See, e.g.,
e.g., "GPW"
"GPW Article 129.
129. The Conventions themselveS
themselves
such violations ofthe
"willful killing, torture;
torture
in defining "grave breaches" set forth unambiguously serious offenses: "willful
willfully causing great suffering
suffering or
or inhuman treatment, including biological experiments, -willfully
.
serious injury to body or health." GPW Art. 130. In this context, the term "serious" must not be
read lightly. Accordingly, the "serious physical or mental pain or suffering" prohibited by the !
offense does not include trivial or mild.conditions; rather, the offense
offense refers to the grave :
CIT offense
conduct at which the term "serious" and the grave breach provision ofthe
of the Geneva Conventions;
Conventions
are directed.
.
Second, the
the CIT
CIT offense's
offense's structure
structure shapes
shapes our
our interpretation
interpretation ofits
of its separate
separate prohibitions
prohibitions i
Second,
against the infliction of"physicaJ
of "physical pain or suffering" and "mental pain or suffering." The CIT
offense, like the anti-torture statute, envisions two separate categories of
of harm and, indeed,
separately defines each tenD..
term. As we discuss below, this separation is reflected
reflected in the
requiremeJlt
requirement that "serious physical pain or suffering" involve the infliction ofa
of a "bodily injury." :
To permit purely mental conditions to qualify as "physical pain or suffering"
suffering" would render the

15

FROM SITE 15

OOJ

(FRI)JUL

20 2:lC7

:5:11/ST. 15:10/NO. e160~2~777 p

2

carefully considered definition ~f«serious
of "serious mental pain or suffering" surplusage. Consistent with
carefully
the statutory definitions provided by Congress, we therefore understand the structure of
CIT.
of the CIT,
offense
:
offense to involve two distinct categories of harm.

The CIT offense
offense largely borrows the anti-torture statute's
statute' s definition of mental pain or
suffering. Although the CIT offense
offense makes two important adjustmenf$
adjustments to the defiJ.lition,
definition, these
these;
revisions preserve the fundamental purpose of providing clearly defined circumstances under ;
of the statute. Extending the offense's
offense's
which mental conditions would trigger the coverage ofthe
to solely mental conditions outside oftbis
of this careful definition would be inconsistent with
coverage to.solely
Cf. Section 2340 Opinion at 23-24 (concluding that mere mental distress is not this structure. Cj.
enough to cause "physical suffering" within the meaning ofthe
of the a;llti-torture
anti-torture statute). We
offense separately
therefore conclude that, consistent with the anti-torture statute, the CIT offense
proscribes physical and mental hann.
harm. We consider each in tum.
turn.
1.
1
The CIT offense
offense proscribes an act "intended to inflict
inflict...
... serious physical...
physical ... pain or
suffering." 18 U.S.c.
U.S.C. § 2441
2441(d)(1)(B).
Unlike the torture
torture offense,
offense, which does
does not provide
provide an
an
(d)(l)(B). Unlike
of "severe physical pain or suffering,"
suffering," the CIT offense
offense includes a detailed
explicit definition or
of "serious physical pain or suffering," as follows:
f
o
l
l
o
w
s
:
t
definition of«serious

[B]odily injury that involvesinvolves—
(i) a substantial risk of
of death;
(ii) extreme physical pain;
of a serious nature (other than cuts,
(iii) a burn
bum or physical disfigurement of
abrasions, or bruises); or
(iv) significant
significant loss or impairment of the function of
of a bodily member,
organ, or mental faculty."

Id § 2441(d)(2)(D).
Id § 2441(d)(2)(D).
of that
definition,ofthe
the physical
component
the CIT offense has two core
In light of that definition, In
thelight
physical
component
CIT offense
has twoofcore
features.
First,
it
requires
that
the
defendant
act
with
the
intent
to
inflict
a
"bodily
injury."
features. First, it requires that the defendant act with the intent to inflict a "bodily injury."
Second, it requires that the intended "bodily injury" "involve" one of four effects or resulting
Second,
it requires that the intended "bodily injury" «involve" one offour effects or resulting
conditions.
conditions.
Q.
a.
I

As an initial matter, the CIT offense requires that the defendant's conduct be intended to'
to
inflict a ''bodily
"bodily injury." The term "injury," depending on context, can refer to a wide range of;
of ;
"harm" or discomfort. See
VII Oxford English
SeeVU
English Dictionary
Dictionaryatat291.
291. This
Thisisisaaterm
termthat
thatdraws
draws '
substantial meaning from the words that surround it. The injury must be "bodily," which
"of the body."
II Oxford English
English Dictionary
Dictionary at
at 353.
353. The
The term
term "bodily":
"bodily":
requires the injury to be "ofthe
body:' IT
of the human body from the mind. Dictionaries most
distinguishes the "physical structure" of
term "bodily" to the term "physical" and explain that the word "contrasts withclosely relate the tenn
with·

16

FROM SITE

15

OOJ

(FR I) JUL 20 2007 15:: ~ /ST. 15: I 0/11I0. &15042ll777 P

mental or spiritual." Webster's Third Int
In! 'I7 Dictionary
Dictionary at 245.
245. Therefore, the term "bodily
injury" is most reasonably read to mean a physical injury to the body.
body.IS,s

As explained above, the structure of the CIT offense
offense reinforces the interpretation
interpretation of
of
"bodily injury" to mean «physical
"physical injury to the body." The term "bodily injury" is defining
"seriousphysicai
qualify would be to :
"seriousphysical pain or suffering." To permit wholly mental distress to qualify
separate definition ofthe
of the "serious mental pain or suffering"
suffering" that could
circumvent the careful and ~eparate
of this structure, Congress chose not to import definitions
implicate the statute. In furtherance oftbis
definitions of
of
injury" from other parts oftitle
of title 18 (even while, as explained below, it expressly did so :;
. "bodily injury»
different
for the SBI offense). This choice reflects the fact that those other definitions
definitions serve
seNe different
purposes in other statutory schemes-particularly
schemes—particularly as sentencing enhancements—and
enhancements-and they
potentially could include purely mental conditions. The CIT offense
offense differs
differs from these other
criminal offenses, which provide "bodily injury" as an element but do not have separate
1
definitions of physical and mental harm. 16* For example, the anti-tampering statute defines
"impairment of
of
"bodily injury" to include conditions with no physical component, such as the "impairment
of a ...
. . . mental faculty." 18
18 U.S.C.
U.S.C. §§ 1365(h)(4).
1365(h)(4). If
If the
the definition
definition in
in the antiantithe function ·ofa
control here, however, die
tampering statute were to coptrol
the bodily injury requirement would be
of a significant
significant impairment of
the function
indistinct from the required resulting condition of
ofthe
function of
of a
mental faculty. See 18 U.S.c.
U.S.C. § 1365(b)(4j(D).
1365(h)(4)(D). Thus, "bodily injury" must be construed
in
construed a
manner consistent with its plain meaning and the structure of
the
CIT
offense.
Accordingly,
we;
ofthe
must look to whether the circumstances indicate an intent to inflict
inflict a physical
physiCal injury
injury to the body?
body;
when determining whether the conduct in question is intended to cause "serious physical pain or
s
u
f
f
e
r
i
n
g
.
"
j
suffering."
~

I

!
*
suffering, the intended physical injury
Second, to qualify as serious physical pain or suffering.
injury to i
of four resulting conditions. Only one of
the body must "involve" one offour
of the enumerated
enumerated conditions
conditiorls
sleep deprivation, or any of
the CIA's other proposed
merits discussion in connection with sle'ep
ofthe

15

At the
the close
close of
of the
the debate
debate over
over the
the Mititaly
Military Commissions
Commissions Act,
Act, Senator
Senator Warner
Warner introduced
introduced aa written
written
At
himself, wherein
wherein they
they stated
stated that
mat they
they "do
"do not
notbelieve
believe that
thatthe
theterm
term 'bodily
'bodily :
colloquy between Senator McCain and himself,
injury' adds aa sepamte
separate requirement
requirement which must
must be
be met
metfor
for an
anact
act to
toconstitute
constituteserious
seriousphysical
physicalpain
painor
orsuffering."
suffering." ::
152 Cong.
Cong.Rcc.
Rec.510,400
S10.400(Sept
(Sept 28,
28,2006).
Wecannot
cannotrely
relyon
onthis
thisexchange
exchange(which
(whichwas
wasnot
notvoiced
voicedon
onthe
theSenate
Senate : :
151
2006). We
floor) as
as itit would
would render the
the tenn
term "bodily
"bodily injury"
injury" in
in the
thestatute
statutewholly
whollysuperfluous.
superfluous. See,
See,e.g.,
e.g.,
Duncan
v. Walker,
Duncan
v. Walker,
5~3 533
U.S. 167,
167,174
C'[A] statute
statute ought,
ought, upon the whole,
whole, to
tobe
beso
soconstrued
construedthaI.
mat,ififititcan
canbe
beprevented,
prevented,no
noclause,
clause,i
U.S.
174 (2001) ("[A]
sentence, or
or word
word shall be
be superfluous, void,
void, or insignificant.");
insignificant.")', Platt
Piatt1'.v. Union
UnionPacific
Pacific
99 U.S.
sentence,
Ry.Ry.
Co.,Co.,
99 U.S.
48, 48,58
58
(1879) r{L]egislation
("{Legislation is
is presumed
presumed to
to use
useno
nosuperfluous
superfluouswords.
words. Courts
Courtsare
aretotoaccord
accordmeaning,
meaning,ifpossible,
if possible,totoevery
every
(1879)
statute.").
word in a statute.").
15

!

16
criminal statutes expressly
expressly define "bodily injUJy"
injury"
those other criminaJ
16 Many of those

i

cross-references to 18
18
through cross-refetences
U.S.C. § 136S(h).
1365(h). See,
See, e.g.,
e.g.,18ISU.S.C.
U.S.C.§§§§37(a)(1),
37(a)(1),43(d)(4),
43(dX4),113(b)(2),
113(b)(2),IlJ
UJ1(c)(5),
1(c)(5)..I153(a),
1153(a),1341,2119(2).
1347,2119(2).AA j
U.S.C.
provision under the United
United States
States Sentencing Guidelines,
Guidelines, though similarly worded to the
the crr
CIT offense
offense in
inother
other
i
respects, separately provides a specific definition of "bodily injury"
injur}"" and thus our interpretation of the term
term "bodily:
"bodily,
respects,
injury" in the
the CIT
CIT offense
offense does
does not
not extend
extend to
to the
the construction
construction of
of the
theterm
terra in
inthe
theGuidelines.
Guidelines. See
SeeU.S.S.G.
1B1.1;:
injury"
U.S.S.G. §§IBLl
M.
Application Note M

17

3

FROM SITE

15

~OJ

(FRI>JUI.

20 2007 16:11/ST. H.:10/NO. 616C"2i777?

significant loss or impairment ofthe
of the function of a bodily member, organ.
organ, or
techniques: "the significant
17
mental faadty."l'
faculty."

,
The condition requires a "loss or impairment." Standing alone, the term "loss"
"loss" requires a
of three specified
specified objects. See (
"deprivation," and the term "impairment" a "deterioration," here ofthree
Webster's
Int'l'i Dictionary
Dictionary at
at 1338,
1338, 1131.
1131. Both
Both ofthese
of these terms,
terms, of
of their
their own
own force
force and
and
Webster's Third lnt
without modification, carry an implication of duration; the terms do not refer to merely
momentary conditions. Reinforcing this condition, Congress required that the "loss" or
"impairment" be "significant." The term "significant" implies that the intended loss or
impairment must be characterized by a substantial gravity or seriousness. And the term draws ;.
"significant loss or impainnent"
impairment" is employed to
additional meaning from its context. The phrase "significant
would
define "serious physical pain or suffering" and, more generally, the extreme conduct that would;
of seriousness called fOI!
fon
constitute a "grave breach" of Common Article 3. In reaching the level of
in this context, it is reasonable to conclude that both duration and gravity are relevant. An
.
"significant ii
extreme mental condition, even if it does not last for a long time, may be deemed a "significant
of a mental faculty. A less severe condition may become significant
significant only if
if it has ~a
impairment" of
longer duration.

a

to;

The text also makes clear that not all impairments ofbodily
of bodily "functions" are sufficient
sufficient to i
affecting three important·
importantimplicate the CIT offense. Instead, Congress specified that conditions affecting
of functions could constitute a qualifying impairment: the functioning of
of a "bodily
types of
member," an "organ," or a "mental faculty." The meanings of"bodily
of "bodily member" and "organ" are
member,"
of the arms and the legs, including the ability to walk, ~
straightforward. For example, the use ofthe
of a "bodily member." "Mental faculty" is a term of
of art in,
in=
would clearly constitute a "function" ofa
of the powers or agencies .
cognitive psychology: In that field, "mental faculty" refers to "one of
into which psychologists have divided the
the mind-such
mind—such as
as will, reason, or intellect-and
intellect—and through
the interaction ofwhich
of which they have endeavored to explain all mental phenomenon." Webster's
ThirdInt
at 844.
844. As
As we
we explain
explain below,
below, the
the sleep
sleep deprivation
deprivation technique
technique can
can cause
cause aa
1m'/'I Dictionary at
Third
temporary diminishment in
in general mental acuity, but the
the text of
of the
the statute
statute requires more than :;
an unspecified
unspecified or amorphous impairment of
of mental functioning. The use ofthe
of the term "mental
that we
we identify an
an important
important aspect of
of mental functioning that has
has been
faculty" requires that
I

1

The "substantial
"substantia] risk of death"
death" condition clearly does not apply to sleep deprivation or any of
of the CIA'~
CIA's
other proposed techniques. None of the six techniques would involve an appreciably elevated risk of
'.
of death.
Medical personnel would determine for each detainee subject to interrogation that no con1iaindications
contraindications exist.
exist for the
the
application of
of the techniques to that detainee. Moreover, CIA procedures require termination of
of a technique when It
it
leads to conditions !hat
that increase the risk of death, even slightly.
1
11'

Opinion makes
makes clear
clear that
that the
the "extreme
"extreme physical
physical pain"
pain" condition
condition also
also does
does not
not apply
apply ~.
here.
Our Section 2340 Opinion
See 18 U.S.C. § 2441(d)(2)(D)(ii).
2441(d)(2XD)(ii). There, we interpreted lhetenn
the term "severe physical pain" in the torture statute to ;
mean "extreme physical pain." Jd.
Id. at 19 ("The use of the word 'severe' in the statutory prohibition on to11Urc
torture clea.r;ly
cleariy
denotes a sensation or condition that is extreme in intensity and difficult
difficult to endure."); id
id (torture involves activitieS
activities
"designed to mtlict
inflict intense OJ
or extreme
extreme pain").
pain"). On
On the
the basis
basis of
of our
our determination
determination that
that the
the six
six techniques
techniques do
do not
not
involve the imposition of"severe
31-33. 35-39, we
of "severe physical pain," see id
id. al22-24,
at 22-24,31-33,35-39.
weconclude
concludetbatthey
that theyalso
alsodo
donot;
not i
a. visible physical alteration or burn
bum of any
involve "extreme physical pain." And, because no technique involves a.visible
kind, the condition of "a burn or disfigurement
disfigurement ofa
of a serious nature (other than cuts, abrasions, or bruises)"
not
kind.,
bmises)" is also nol
implicated.

TO
18

L

4

FROM SITE 15

OOJ

(FRI)JUI.

20

20:;7

lS:~t/ST.

15:tO/NO_ 616:)"'29777

i

impaired, as
as opposed
opposed to
to permitting
permitting aa general
general sense
sense of
of haziness,
haziness, fatigue, or discomfort
discomfort to
to provide;
impaired,
ofthe
required conditions
conditions for
for "serious
"serious physical
physical pain
pain or
or suffering."
suffering."
one of
one
the required

Read
Read together,
together, we
we can
can give discernable content to how mental symptoms would come
come to!
to:
constitute
constitute "serious physical
physical pain
pain or suffering"
suffering" through the fourth resulting condition. The
;
"bodily
injurytotothe
thebody
bodythat
thatwould
wouldbebe . .
"bodily injury"
injury" provision
provision requires
requires the intent to inflict physical
physical injury
expected
expected to
to result
result in a significant
significant loss or impairment of aa mental faculty."
faculty.18 To constitute aa
:
"significant
mental condition must display
display the
the combination of duration
"significant loss or impairment," that mental
and gravity
of the law of
war. Finally, we must identify a
gravity consistent
consistent with a "grave breach" ()fthe
ofwar.discrete and important mental function
function that is lost or impaired.
The physical conditions that we understand are likely to be associated
associat'ed with the CIA's
proposed extended sleep deprivation technique would not satisfy these requirements.
requirements. As an
an
initial matter, the extended sleep deprivation technique is designed to involve minimal physical .
contact
contact: with the detainee. The CIA designed the method for keeping the
the detainee
detainee awakeawake—
.
primarily by shackling the individual in a standing position-in
position—in order to
to avoid invasive physical;
physical:
contact or confrontation
confrontation between the detainee and CIA personnel.
personnel. CIA medical personnel have.
have.
informed us that two physical conditions are likely to result from the application of
this
ofthis
technique: Significant
the;
Significant muscle fatigue associated with extended standing, and edema, that is, the
swelling of
the tissues
the lower legs. CIA medical personnel, including those who have
ofthe
tissues of
ofthe
in past interrogations,
interrogations, have
observed the effects ofextended
of extended sleep deprivation as employed in
informed us that such conditions do
do not weaken
weaken the legs
legs to
tothe
thepoint
pointthat
thatthe
thedetainee
detaineecould
couldno
no
longer stand or walk
walk. Detainees subjected to extended sleep deprivation remain able to walk
technique. Moreover.
Moreover, if
if the detainee were
were to stop using
using his
his legs and ;:
after the application of the technique.
ceiling, the application ofthe
of the ,
to try to support his weight with the shackles suspendedfrom
from the ceiling.
terminated. The
The detainee
detainee would
would not
not be
be left
left to
to hang
hangfrom
fromthe
the
technique would be adjusted or terminated.
shackles. By definition, therefore, the function oftile
of the detainee's
detainee's legs
legs would not be
be significantly
significantly:f
shackles.
impaired—they would be expected to continue
continue to
to sustain
sustain the
the detainee's
detainee's weight
weight and
and enable
enable him
him ~
to
impaired-they
walk.
walk.
j

I

is simple
simple edema
edema alone
alone aa qualifying
qualifying impainnent.
impairment. ItIt isis possible
possible that
that clinically
clinically
Nor is
j
legs may
may occur during later stages of the
the technique,
technique, and
and medical
medical;:
significant edema in the lower legs
terminate application ofthe
of the technique
technique if
if the
the edema
edemawere
werejudged
judgedto
tobe
be
personnel would tenninate
:
i.e., ifit
if it posed
posed aarisk
to health.
health. For
For example,
example, if
if edema
edema becomes
becomes sufficiently
sufficiently serious,!
serious,
risk to
significant, i.e.•
increase the
therisk
riskof
of aa blood
blood clot
clotand
andstroke.
stroke. CIA
CIAmedical
medical personnel
personnelwould
would monitor
monitorthe
the
it can increase
detainee and
and terminate
terminate the
the technique
technique before the
the edema
edema reached that level
level of severity.
severity. Edema
detainee
subsides with only
only aa few
few hours
hours ofsitting
of sitting or
or reclining,
reclining, and
and even
even persons
persons with seVere
severe edema can subsides
walk. The
The limitations
limitations set
set by
by the
the CIA
CIA to
to avoid
avoid clinically
clinically significant
significant edema,
edema, and
and the
the continued
walk.
11

i

crr

Tobe
besure,
sure,the
the CIToffense
offenserequiJ:es
requires"bodily
"bodilyinjwy
injurythat
thatinvolveS'
involvef aasignificant
significantimpainnent;
impairment;ititdoes
doesnot
not I
11 To
require
requireaashowing
showingthat
thatthe
thebodily
bodilyinjury
injury necessarily
necessarilycause
causethe
theimpairment
impairment.The
Thetenn
term"involves,"
"involves,"however.
however,r.:quires;
requires.
mote
more than
thanaa showing
showingof
ofmere
merecorrelation.
correlation. Rather,
Rather,the
the"bodi.Iy
"bodilyinjwy"
injuiy"either
eithermust
roustcause
causethe
theimpairment
impairmentor
orhave
havebeen
been
,' necessarily
necessarilyassociated
associated with
withthe
theimpainnent.
impairment. This
Thisreading
readingof
ofthe
thestatute
statuteisisnecessary
necessarytotopreserve
preservethe
thestatute's
statute's
fundamental distinction
distinction between
between physical
physical and
and mental
mental bann.
harm. A
Abodily
bodilyinjmy
injury will
willnot
not"involve"
"involve"an
animpainnent
impainnent
fundamental
merely on
on aa showing
showingof
ofcoincidence
coincidencebetween
betweenthe
theindividual's
individual's impairmenl
impairmentand
anda.."l
anunrelated
unrelated physical
physicalcondition.
condition.
merely

19

?

•

'''_.'.

_

I

t.oJ

....

,",'-'..I

I

ability ofthe
of the detainee to use his legs, demonstrate that the mild edema that can be expected to
legs.
occur during sleep deprivation would not constitute a "significant
"significant impairment" ofthe
of the legs.

sleep deprivation
deprivation also
also are
are not
not "serious
"seriousphysical
physical
The mental conditions associated with sleep
pain or suffering." To satisfy the "bodily injury" requirement,
requirement. the mental condition must be
body. We
We understand from
from the CIA's medical experts i
traceable to some physical injury to the body.
and medical literature that the mild hallucinations and diminished cognitive functioning that may
be associated with extended sleep deprivation arise largelyfrom
that;i
from the general mental fatigue that
any
physical
phenomenon
that
would
be
associated
accompanies the absence of sleep, notfrom
from
associated:
sleep. These mental symptoms develop in far less
with the CIA's procedure for preventing sleep.
at liberty to
to do what they please.
pleasedemanding forms of sleep deprivation, even where subjects are at
awake. We
We understand
understand that
that there
there isis no
no evidence
evidence that
that the
theonset
onset ofthese:
of these
but are nonetheless kept awake.
mental effects
effects would
would be accelerated,
severity aggravated,
accelerated, or their
their severity
aggravated, by
by physical
physical conditions that
that
may
accompany
the
means
used
by
the
CIA
to
prevent
sleep.
may accompany the means used by the CIA to prevent sleep.
i

if such diminished cognitive functioning or mild hallucinations were attributable tb
to
Even if
body, they would not be
be significant
significantimpairments
impairmentsof
ofthe
tbefunction
function of
ofaa :
a physical injury to the body,
of the statute. The CIA will ensure,
ensure. through monitoring and i
mental faculty within the meaning ofthe
in cognitive
regular examinations, that the detainee does not suffer a significant reduction in
~
functioning throughout the application ofthe
of the technique. If
the detainee were observed to suffer.
Ifthe
immediately discontinued.
discontinued. For
For evaluating
evaluating other
other ;
any hallucinations, the technique would be immediately
of cognitive functioning, at a minimum,
minimum, CIA
CIAmedical
medical personnel
personnelwould
wouldmonitor
monitorthe
the
aspects ofcognitive
detainee to determine that he is able
able to
to answer
answerquestions,
questions, describe
describe his
his sUrroundings
surroundings accurately,
accurately, .
and recall basic facts about the world.
world. Under these circumstances,
circumstances, the
the diminishment of cognitive
1
functioning would not be '<significant.
"significant."nI9
*
.

,

In addition, CIA observations and other medical studies tend to confirm that whatever !
effect on cognitive function may occur would'
would be short-lived.
short-lived. Application ofthe
of the proposed sleep!
effect
sleep:
deprivation technique will be limited to 96 hours,
hours, and
and hallucinations or other appreciable
appreciable
cognitive effects are unlikely to occur until after the midpoint ofthat period. Moreover, we
we
night of
of normal
normal sleep,
sleep, which
which
understand that cognitive functioning isfolly
fuJly restored with one night
of the technique. Given the relative mildness of
of I
detainees would be permitted after application ofthe
would permit to occur before the
the technique
technique is'
is
the diminished cognitive functioning that the CIA would
discontinued,20such mental effects would not be expected to persist for a sufficient
sufficient duration to be
"significant."
.
;
significant.')2o

be

U

!t

19
*9The
Thetechniques
techniquesthat
thatwe
wediscuss
discussherein
hereinare
areofcourse
of coursedesigned
designedtotopersuade
persuadethe
thedetainee
detaineetotodisclose
disclose
information, which he
wish to
to do.
do. These
Thesetechniques
techniques are
arenot
notthereby
therebydirected,
directed,however,
however, at
at
be would not otherwise wish
significant impairment
of the detainee's will,
will, arguably a "mental faculty."
faculty.'* Instead, the techniques are
causing significant
impainnentofthe
designed to alter assumptions that lead tbe
the detainee to exl:TCise
exercise his
his will
will in
in aa particular
particular manner.
manner. In
In this
thisway,
way, the
the
techniques are based on the presumption that the detainee's win
will is functioning properly and that he will react to the
conditions, in aa rational
rational manner.
manner.
techniques, and the changed conditions,

20

in the
the CIT offense
offense is
h the
the addition
addition ofthe
of the phrase
"including serious physical abuse"
abuse " See 18 U.S.C.
U.S.C. §§ 2441(d)(2)(iv)
2441(dX2)(iv)(prohibiting
(prohibitingthe
thein1liction
inflictionof
of"severe
"severeor
orserious
serious:
... including serious physical abuse'}.
physical or mental pain or suffering
suffering...
abuse*'). Congress provided "serious physical
20 A
A:final
finalfeature
featureof "serious physical pain or suffering"

20

FROM

SITE

15

OOJ

(FRI)JUL

20

2007

n;:1 LIST. 15:10/NO. 5;601;29777

1

2

(

The
The CIT offense also
also prohibits
prohibits the
the infliction of "serious
"serious mental
mental pain
pain or suffering,"
suffering," under!
under;
which purely mental conditions are
wewe
~
are appropriately considered.
considered. In the
the Section
Section2340
2340Opinion,
Opinion,
concluded that none
none of
of the
the techniques
techniquesatat issue
issuehere
hereinvolves
involvesthe
theintentional
intentionalimposition
impositionof
of"severe
"severe
mental pain or suffering," as
as that
that term
term isisdefined
defined inin 18
18U.S.C.
U.S.C.§§2340.
2340.The
TheCIT
CIToffense
offenseadopts;
adopts -:
With the
the differences
differences from
from section
section 2340
2340 italicized,
italicized,
that definition with two modifications. With
pain or suffering" is
is defined as follows:
follows:
"serious mental paiD

seriousand
andnon-transitory
non-transitory
mental
harm
(which
need
The serious
mental
harm
(which
need
notnot
be be
prolonged) caused
prolonged)
causedby
byororresulting
resultingfromfrom—
physical
(A) the intentional infliction or threatened infliction of serious
serious physical
pain or suffering;
(B) the administration or application,
application, or threatened administration..or
administration/M"

application, of mind altering substances or other procedures calculated to disrupt
profoundly the senses or the personality;

(C) the threat of imminent death;
death; or
or
eC)
(D) the threat that another person will imminently be subjected to death,
death.
seriousphysical
physical pain
painor
or suffering,
suffering, or
orthe
theadministration
administrationor
orapplication
applicationof
ofmindmindserious
to disrupt profoundly the
the senses
senses
altering substances or other procedures calculated to
or personality.

•

U.S.C. §§2441(d)(2)(E)
2441(d)(2)(E)(specifying
(specifying adjustments
adjustmentstoto18
18U.S.c.
U.S.C.§§2340(2».
2340(2)).
See 18 U.S.C.
modifications expands the scope
None ofthese
of these modifications
scope ofthe
of the definition
definition to
to cover
cover sleep
sleep
the
CIA
or
any
ofthe
other
proposed
techniques.
The
deprivation as employed by
by the CIA or any of the other proposed techniques. TheCIT
CIToffense
offense t
replaces the term "severe" with the term "serious" throughout
throughout the
thetext
text of
of 18
18U.S.C.
U.S.C.§§2340(2).
2340(2). . :
The CIT offense
the requirement of "prolonged
"prolongedmental
mentalharm"
harm"inin18
18U.S.C.
U.S.C.§§2340(2).
2340(2),
offense also alters the
replacing it with a requirement of
"serious and non-transitory mental harm (which need not be ~
of"serious
as with
with the
the definition
definition in
in the
the anti-torture
anti-torture statute.
statute,the
thedefinition
definition ini
in
prolonged)."
prolonged).» Nevertheless, just as
,
of a category of
of harm
hanD that falls
abuse" as an example of
fails within the
the otherwise defined term of "serious physical pain of
or
Suffering."
construing any ambiguity as to whether a particul2r
particular
suffering." "Serious physical abuse" therefore may be helpful in constIUing
category of
"serious physical pain or suffering." We do not find it
of physical
pbysical harm falls within the definition of
Of"ser10US
:
relevant here,
term "serious physical abuse"
abuse" is.directed
is. directed a.t.a
at a category of conduct that
that does
does not
not 0<:aJ.i
occur
here. however, as the tenn
in the CIA's interrogation program. The word "abuse" implies
implies aa pattern
pattern ofconduct
of conduct or
or some
some sustained
sustained activity,
activity,
;•
although when the intended injury is particularly severe, the term
may be
be satisfied
satisfied without such
such aa pa.tlem.
pattern. It
It
term "abuse" may
also suggests an element of
Dictionaryatat88(defining
(definingabuse
abuseas
asan
an
of wrongfulness.,
wrongfulness, see, e.g., Websters
Webster's ThirdInt
Third In! V
'/ Dictionary
"improper or incorrect use, an application to a wrong
purpose"), and
and would not tend to cover justified
""TOng or bad purpose"),
physical contact. While the CIA uses some "corrective techniques" that involve physical contact with the detainee,.
detainee,;
the CIA has stated that they are used to upset the detainee's expectations and to regain
regaili his attention,
attention. and they would
not be used with an intensity or frequency to cause significant
significant physical pain, much less to constitute the type of
of ;
. beating implied by the term "serious physical abuse."

21

P

~KOM

SITE

15

OOJ

(FRI>"U!.

:<0

2007

;5:11/ST. 15:10/tJO. 6.6c':2Q717

t

the CIT
CTToffense
offense requires
requires one
oneof
offour
four predicate
predicateacts
actsor
orconditions
conditionstotoresult
resultininor
orcause
causemental
mental
harm,
and
only
then
is
it
appropriate
to
evaluate
whether
that
harm
is
userious
and
Donharm,
"serious
non.transitory'"
at 24-26.
Three
ofthose
predicate
acts
or or
conditions
areare
~
See Section
Section2340
2340Opinion
Opinion
at 24-26.
Three
of those
predicate
acts
conditions
transitory." See
not implicated here.
'
here. Above,
Above, we
we have concluded that Done
none of
of the techniques
techniques involves
involves the
the
imposition of"serious
of "serious physical pain or suffering."
suffering.ft The techniques
techniques at
at issue
issue here
here also
also do
do not
not
involve the "threat ofimminent
of imminent death,"
death," see
seesupra
supraatatn.17,
n. 17,the
thethreatened
threatenedinfliction
inflictionofofserious
serious
21
physical pain or suffering, or threats of any kind to persons other than the detainee.
detainee?1

Th~
The only predicate act that requires a more extended analysis here is "the administration)
administration
application...
altering substances or other procedures calculated to disrupt
or application
... of mind alteiing
personality!' The text
profoundly the senses or the personality."
text ofthis
of this predicate act is the same as in 18
U.S.C § 2340(2)(B).
2340(2)(B).
"
U.S.C.
In our
substantial
onon
thethe
requirement
that
thethe
our Section
Section2340
2340Opini011.
Opimon,weweplaced
placed
substantialweight
weight
requirement
that
thesenses:'
senses,"explaining
explaininghow
howthe
therequirement
requirementlimits
limitsthe
thescope
scopeof
of l
procedure "disrupt profoundly
profoundly the
conditions. We
We acknowledged,
acknowledged, however,
however, that
that a;a:
the predicate act to particularly extreme mental conditions.

hallucination could constitute a profound disruption ofthe
of the senses,
senses, if ofsufficient
of sufficient duration. Id.
Id ~
of the senses may occur during ;
at 39. Nevertheless, it is not enough that a profound disruption ofthe
of a procedure.
requires.that
that the procedure be "calculated"
"calculated"t~to
the application ofa
procedure. Instead, the statute requires
of the senses. See Webster's
ThirdInt
Dictionaryatat315
315(defining
(defining
cause a profound disruption ofthe
Webster's Third
Int'l7Dictionary
to accomplish
accomplisha apurpose
purposeorortotoachieve
achieve
effect:
"calculated" as "planned or contrived so as to
anan
effect:
does not license
license indifference to
to thought out in advance") (emphasis added).
added). This requirement does
conditions that are very likely to materialize. But we can rely
rely on
on the
the CIA's
CIA's reactions
reactions to
to
conditions that may occur to discern that a procedure was not "calculated" to bring about a
proscribed result. CIA medical personnel would regularly monitor the detainee according to
accepted medical practice and would discontinue the technique should any hallucinations be

21
21 It
II is true that the detainees
detainees are
are wilikely
unlikely to
to be
be aware
aware of
of the
the limitations imposed upon
upon CIA
CIA interrogators •
under their interrogation
does not
not cooperate,
cooperate, the
the CIA
CIAmay
may ;.
intenogation plan. A detainee thus conceivably could fear that if he does
escalate the severity of
of its interrogation methods or adopt techniques that would amount to "serious physical pain or
suffering." That the
the detainee
detainee may
may harbor
harbor such
such fears,
fears, however,
however,does
doesnot
notmean
meanthat
thatthe
theCIA
CIAinterrogators
interrogatorshave
haveissued
issued
.
madeclear
clear that
thatan
an individual
individual issues
issuesaa "threat"
"threat**only
onlyififthe
thereasonable
reasonable
a legal "tbreal"
"threat." The .federal
iederal courts
courts have
have made
observer wouldregard
deeds as a "serious expression of an intention to inflict bodily hann."
harm." United
regard his words or deeds
United
Sra~sv. Mitchell,
Mitchell, 812
States
..... Zavre/,
3843S4
F.3dF.3d
130,136
(3d (3d
Cir. Or.
Sratesv.
812F.2d
F.2d 1250,
1250,1255
1255(9th
(9thCir.
Or. 1987);
1987);see
seealso
alsoUnited
United
States
v. Zavrel,
130, 136
125 (2d
2004) (same); United
UnitedStatesv.
States v.Sovie,
Sovie,122
122F.3d
F.3d122,
122,125
(2dCir.
Cir.1997)
1997)(fuz'ther
(furtherrequiring
requiringaashowing
showingthat,
that,"on
"on[the
[the .
threat's] face and in the circumstances to which it is made,
made, it is
is so
so unequivocal,
unequivocal, unconditional,
unconditional, immediate and
specific as to the person threatened, as to convey a gravity of pwpose
purpose and imminent prospect of execution")
(internal quotation omitted); see
see generally
generally44Wharton's
Wharton'sCriminal
Criminal
Law
§ 462
(15th
1996)
constitute
a threat,
Law
§ 462
(l5th
ed. ed.
1996)
(to (to
constitute
a threat,
.
"the test is not whether the
the victim feared for his
his life or believed he
he was
was in
indanger,
danger,but
but whether
whetherhe
he was
wasactually
actuallyin
in .
danger,"
carry out the
the proscn'bed
proscribed acts).
acts). CIA
CIA interrogators
interrogators do
do not
not
danger," presumably due to the intention of the defendant to can)'
tell
that would rise
rise to the
the level
level of "serious
"serious physical
physical
tell the
the detainee that,
that, absent
absent cooperation, they will inflict conduct that
w
pain or suffering.
that "serious physical pain or
suffering." Nor do they engage in suggestive physical acts that indicate that
suffering**
will
ensue.
Prosser and Keeton, The
Lawa/Torts,
of Torts,§ §10,
10at
44(5th
(5thed.
ed.1984)
1984)(actionable
(actionablenon-verbal
non-verbal
f at44
The Law
suffering"
threats
indicate that it
it may
the defendant
defendant presents
presents aa weapon
weapon in
in such
such aa condition
condition or
or manner
JIla."U1er as
as to
to indicate
may
threats occur
occur "when
"when the
immediately
such affirmative
affirmative conduct
conduct by
by the
the CIA,
CIA. the
the detainee's
detainee's general
general
immediately be
be made
made ready
ready for
for use**).
use"). Absent
Absent any
any such
uncertainty
uncertainty over
over what
what might
might come
come next
next would
would not
not satisfy
satisfy die
the legal
legal definition
definition of
of "threat."
"threat."

22

P

tHO~

SITE 15

OOJ

(FO'tI)JUL 20 2007

15:.1/ST.15:10/NO. 6150"';2'777 ;>

diagnosed. Such precautions demonstrate that
that the
the technique
technique would
would not
not be
be"calculated"
"calculated"to
to
diagnosed.
22
22
hallucinations.
produce hallucinations.

I

!

Whether
the duration
Whether or
or not
not aa hallucination
hallucination of
of the
duration at
at issue
issue here
here were
were to
to constitute
constitute aa profound
profound
ofthe
senses.
we
have
concluded
that
the
hallucination
would
not
be
long
enough
disruption
disruption of the senses, we have concluded that the hallucination would not be long enough to
to :
constitute
"prolonged
mental
harm"
under
the
definition
of<Csevere
mental
pain
or
suffering"
constitute "prolonged mental harm" under the definition of "severe mental pain or suffering" in
in (
Section
1340
Opinion
at
3940.
The
adjustment
to
this
definition
in
the
.
the
anti-torture
statute.
the anti-torture statute. Section 2340 Opinion at 39-40. The adjustment to this definition in the
CIT offense-replacing
offense—replacing "prolonged mental
mental harm"
harm" with
with "serious and non-transitory mental harm;
harm;
(which need not be prolonged)"-does
sleep deprivation technique.
technique. The
The
prolonged)"—does not reach the sleep
severity-some combination of
ofduration
modification is a refocusing
refbcusing ofthe definition on severity—some
duration and
intensity-instead
ofits
prior
reliance
on
duration
alone.
The
new
test
still
excludes
intensity—instead of its
on duration alone. The new test still excludes mental
mental
harm that is "transitory." Thus,
mental
harm that is "marked
Thus,
"marked by
by the
the quality
qualityofpassing
of passingaway."
away," is:
is;
"of
Dictionary
at at
"of brief duration," or "Iast[s]
"lastfs] for minutes
minutes or
or seconds."
seconds," see
seeWebster's
Webster'sThirdInt'J
ThirdInt V
Dictionary
244849,
2448-49, cannot qualify as "serious mental pain or suffering." Also relevant is the text's
negation ofa
requirementthat
thatthe
themental
mentalharm
harmbebe"prolonged."
"prolonged." 1818U.S.C.
U.S.C.§ §2441(d)(2)(E)
2441(d)(2)(E)
of a requirement
(providing that the mental harm that would constitute "serious physical pain or suffering" "need'
"need
not be prolonged").
prolonged").
These adjus"lll1ents,
adjustments, however, do
do not eliminate the inquiry into the duration of mental
harm. Instead, the crr
GIT offense separately requires that the mental hann
harm be "serious."
"serious." As
As we
we
harm.
' explained above,
above, tbe
the tenn
term "serious"
"serious" does
doesconsiderable
considerablework
workininthis
this context,
context,as
asititseeks
seeksto
to
breach of Common
Common Aniele
Article 3---conduet
3—conduct that
that isis
describe conduct that constitutes a grave breach
mental harm
harm be
be "serious"
"serious" directs
directs us
us to
to
universally condemned. The requirement that the mental
appraise the totality of the circumstances.
circumstances. Mental harm
harm that is
is particularly intense need not be
long-lasting to be serious. Conversely, mental harm that, once meeting a minimum level of

only jf
if itit continued for aa long
long period :.
intensity, is not as extreme would be considered "serious" only
of time.
time. Read together.
together, mental harm certainly "need not be prolonged" in ail
all circumstances to
of
of mental effects would
constitute "serious mental pain or suffering," but certain milder forms of
of a significant duration to be considered "serious."
"serious." For the
the same reasons
reasons that
that the
the
need to be of
short-lived hallucinations and othec
other forms of
of diminished
diminished cognitive
cognitive functioning
functioning that may occur
short-lived
with extended lack of sleep would not be "significant
"significant impairments ofa
of a mental faculty."
faculty," such
mental
conditions
also
would
not
be
expected
to
result
in
"serious
mental
harm."
crucial
mental
to
mentaJ harm.» Again, crucial'
to
our
analysis
is
that
CIA
personnel
will
intervene
should
any
hallucinations
or
significant
to
that
hallucinations or significant
declines
forms
declines in cognitive functioning be observed and that any potential hallucinations or other fonn$
of
of diminished cognitive functioning subside quickly when rest is permitted.
I

I

22 In
determining that
that sleep
sleep deprivation
deprivation would
'would not
Dot be
be "calculated
in determining
"calculated to
to disrupt
disrupt profoundly
profoundly the
the senses,..
senses," we
we als~
also
find it
it relevant
relevant that
that the
the CIA
CIA would
he
find
would not
not employ
employ this
this technique
technique to
to confuse
confuse and
and to
to disorient
disorient the
the detainee
detainee so
so that
that he
might inadvertently
inadvertently disclose
disclose information
information_ Indeed,
Indeed, seeking
seeking to
might
to cause
cause the
the detainee
detainee to
to hallucinate
hallucinate or
or othernise
otherwise (0
to
become disoriented
disoriented would
would be
be counter
counter to
to CIA's
CIA's goal,
become
goal, which
which is
is to
to gather
gather accurate
accurate intelligence.
intelligence. Rather,
Rather, CIA
CIA
interrogators would
would employ
employ sleep
sleep deprivation
deprivation to
to wear
wear down
down the
the detainee's
detainee's resistance
resistance and
to secure
and to
secure his
his agreement
agreement to
to
interrogators
talk in
in return
return for
for permitting
pennittjng him
him to
to sleep.
sleep. Fatigue
Fatigue also
21so reduces
reduces the
the detainee's
talk
detainee's confidence
confidence in
in his
his ability
ability to
to lie
lie
convincingly and
and thus
thus suggests
suggests to
to the
the detainee
convincingly
detainee that
that the
the only
only way
way of
of obtaining
obtaining sleep
sleep isisto
toagree
agreeto
toprovide
provideaccurate
accurate
information. Once
Once they
they have
have secured
secured u^t
that agreement,
agreement, interrogators
interrogators generally
genenDy would
would stop
stop the
the technique,
technique, ·permit
information.
permit the
the .
detainee to
to rest,
detainee
rest, and
and then
then continue
continue the
the questioning
questioning when
whenhe
heisisrested
restedand
and in
inaa better
betterposition.
positionto
toprovide
providemore
more
accurate and complete information,
information.
•

j33

•

i

23

~~OM

SITE

15

OOJ

(FRI)JUL

20

2007

lS:11/ST. 15:10/NO. e150;;211777

cc.
The
The third offense
offense at issue is "intentionally causing serious bodily injury."
injury:' 18 U.S.C.
U.S.C.
2441 (d)(l )(F). The Act defines
defmes. the SBI
SBr offense as
as follows:
follows: "The
"The act
act of
of aa person
person who
who
§§ 2441(d)(1)(F).
attempts to cause, serious bodily injury to one or more
InOje
intentionally causes,
causes. or
or conspires
conspires or
or attempts
intentionally
persons, including
including lawful
lawful combatants,
combatants, in
in violation
\<iolation of
ofthe
ofwar.',23
persons,
the law of
war." The War Crimes Act
borrows the definition
definition of
of"serious
bodily injury"
injury" directly
directlyfrom
from the
the federal
federal assault statute, 18
18
"serious bodily
borrows
See 18 U.S.C.
U.S.C. § 113. See
U.S.C. § 2441(d)(2){B).
2441(d)(2)(B). The
Thefederal
federal assault
assaultstatute,
statute,ininturn,
turn,incorporates
incorporates i
by reference the definition of
of"serious
bodily injury" in the
"serious bodily
the federal anti-tampering statute.
statute. See
See 18
U.S.C. § 113(b)(2). The anti-tampering statute states that:
[T]he term "serious bodily injury" means bodily injury which involves—
pTjhe
iovolvesofdeath;
(A) a substantial risk of
death;
exireme physical pain;
(B) extreme
(C) protracted and obvious disfigurement; or
(0) protracted loss or impairment ofthe
of a bodily member,
(D)
of the functions of
faculty.
organ, or mental faculty.

I'

18
U.S.C. §§ 1365(h)(3).
1365(h)(3). Three
Threeof
ofthese
theseresulting
resultingeffects
effects are
areplainly
plainlynot
not applicable
applicable to
tothe
the
18 U.S.C.
above, the
thetechniques
techniquesinvolve
involveneither
neitheran
an
techniques under consideration here. As explained above,
appreciably elevated risk of
of death, much less
less aa substantial
substantial risk,
risk, nor
northe
the imposition
imposition of
of extreme
extreme
physical pain, nor a disfigurement of any kind.
kind. Indeed,
Indeed, no
no technique
techniqueisis administered
administered until
until
no medical
medical contraindication to
to the
the use
use of
ofthe
medical personnel have determined that there is no
technique with that particular detainee.
detainee. For reasons
reasons we
we explain
explainbelow,
below,sleep
sleepdeprivation
deprivation also
also
does not lead to "the
'the protracted loss
loss or impairment
impairment of the functions ofa bodily member, organ,
faculty."
or mental faculty."

I

I

term in
inthe
thecontext
contextofthe
of the sleep
sleepdeprivation
deprivationtechnique
technique
This Office has analyzed a similar term
example, we
we determined
determined that
thatthe
themild
mildhallucinations
hallucinationsthat
thatmay
mayoccur
occurduring
duringextended
extended
before. For example,
Section2340
2340Opinion
Opinion
at 40.
Both
term
"prolonged"
sleep deprivation are not "prolonged." Section
at 40.
·Both
thethe
tenn
"prolonged"
and the term."protracted"
term, "protracted" require
requirethat
that the
thecondition
condition persist
persist for
for aasignificant
significant duration.
duration. We
Wewere
were :and
be "prolonged."
"prolonged." Nevertheless,
Nevertheless, ;
the amount oftime
of time a condition must last to be
reluctant to pinpoint the
judicial determinations that mental harm
harm had
had been
been "prolonged"
"prolonged" under
under aa similar
similar definition
definition of
of
the Torture
Torture Victim
Victim Protection
Protection Act,
Act,28
28U.S.c.
U.S.C.§§1350
1350note,
note,involved
involvedmental
mentaleffects,
effects, ,
torture in
in the
torture
stress syndrome,
syndrome, that
thathad
hadpersisted
persistedfor
formonths
monthsororyears
yearsafter
afterthe
theevents;
events.;
including post-traumatic stress
in
Mehinovic v.v.Vuckovic,
F. Supp.
2d 2d
1322,
1346
(N.D.
Ga.Ga.
2002)
(relying
on on
in question.
question. See
SeeMehinovic
Vuckovic,198198F.
Supp.
1322,
1346
(N.D.
2002)
(relying
the
the fact
fact that
that "each
"each plaintiff
plaintiff continues
continues to
to suffer
suffer long-term
long-term psychological
psychological harm
harm as
as aa result
result ofthe
of the ;
ordeals they
they suffered"
suffered" years
years after
after the
the alleged
alleged torture
torture in
in determining
determining that
that the
the plainti~
plaintiff experienced
experienced
ordeals
"prolonged mental
mental harm");
harm"); Sackie
Sache v.v. Ashcroft.
Ashcroft,270F.
270 F.
Supp.
596,
601-02
(E.D.
2003)
"prolonged
Supp.
2d2d
596,
601-02
(E.D.
Pa.Pa.
2003)
The
requires as
TheSBl
SBIoffense
offenserequires
asan
anelement
elementthat
thatthe
theconduct
conductbebe"in
"inviolation
violationofofthe
thelaw
lawofofwar."
war."There
Thereare
are i
certain
certain matters
matters that
thatthis
thisrequirement
requirementplaces
placesbeyond
beyondthe
thereach
reachof
ofthe
theSBL
SBIoffense.
offense. If,If,for
forexample,
example,aamember
memberofofanan
armed
armed force
force enjoying
enjoying combatant
combatant immunity
immunity were
weretotocause
causeserious
seriousbodily
bodilyjnjuJy
injuryononthe
thebattlefield
battlefieldpursuant
pursuanttoto
legitimate
legitimate military
militaryoperations,
operations,the
the SBl
SBIoffense
offense would
wouldnot
notapply.
apply. The
Theimposition
impositionof"serious
of "seriousbodily
bodilyinjwy"
injury"on
onthose
those
in
incustody
custody in
in certain
certain circumstances,
circumstances, such
suchas
astotoprevent
preventescape,
escape,would
wouldalso
alsonot
notviolate
violatethe
thelaw
lawof
ofwar.
war. See,
See,e.g.,
e.g..
GPW
An. 42.
GPWAit42.
13

1]

24

P

(FRIJJU,- 20 20C7

:S:11/ST. 15:10/11I0. e:5C.<:29771

;>

1

(holding that
that victim
victim suffered
suffered "prolonged
"prolonged mental
mental hann"
harm" when
whenhe
hewas
wasforcibly
forciblydrugged
druggedand
and
(holding
threatened with
with death
death over aa period of four years).~4
years).24 By
By contrast,
contrast, at
at least one
one court has
has held
held that .
the
the mental
mental trauma that occurs
occurs over the course
course of
ofone
oneday
daydoes
doesnot
notconstitute
constitute"prolonged
"prolongedmental
mental
harm."
Fresh
DelDel
Monte
Produce,
Inc.,Inc.,
305 F.
Supp.
2.d 1285,
1294-95 (SD. (SD.
harm " Villeda
ViUedaAldana
Aldanav. v.
Fresh
Monte
Produce,
305
F. Supp.
2d 1285,1294-95
Fla. 2003)
2003) (holding
(holding that
that persons
persons who
who were
wereheld
heldatatgunpoint
gunpointovernight
overnightand
andwere
werethreatened
threatenedwith
with .
Fla.
death throughout,
throughout, but
but who
who did
did not allege
allege mental
mental harm
harm extending
extending beyond that period oftime,
of time, had
TVPA). Decisions interpreting "serious bodily
"prolonged mental harm"
harm" under the
the TVPA).
not suffered ·'prolonged
18 U.S.c.
U.S.C. §§1365(hX3)
1365(hX3)embrace
embracethis
thisinterpretation.
interpretation. See
SeeUnited
UnitedStates
Statesv.v.Spinelli,
Spinelli, :
injury" under 18
352 F.3d
F.3d 48,
48, S9
59 (2d
(2d Cir.
Cir. 2003)
2003) (explaining
(explaining that
that courts
courts have
have looked
looked to
to whether
whether victims
victims "have
"have
352
s,
a
traumatic
physical
injury
suffered from
lasting
psychological
debilitation"
persisting
long
after
from
debilitation"
a traumatic physical injury :'
"protracted impairment"
impairment" has
has occurred);
occurred); United
UnitedStates
Statesv.v.Guy,
Guy,340
340F.3
F.3d
in determining whether a "protracted
d t .655 (8th Cir.
Cir. 2003) (bolding
(holding that persistence ofpost-traumatic
of post-traumatic stress syndrome more than one '
655
of the function of a ...
. . . mental
mental faculty")~
faculty");
year after rape constituted a "protracted impairment ofthe
Statesv.v.Lowe,
Lowe,145
145
F.3d
1998)
(looking
to psychological
months
UnitedStates
United
F.3d
45,45,
53 53
(1st(1st
CiT.Cir.
1998)
(looking
to psychological
carecare
ten ten
months
.
after an incident as
as evidence ofa
of a "protracted impairment").
impairment"). In the absence ofprofessional
of professional
.-.
psychological care in the
the months
months and years
years after an
an incident
incident causing
causing bodily
bodily injury,
injury, courts
courts have
have
on occasion turned away claims that even extremely violent acts caused a "protracted
function of
of a.
a ...
faculty." See,
See, e.g.,
States
v. v.
Rivera,
83 83
F.3d
impairment ofthe
of the function
.. mental faculty."
e.g..United
United
States
Rivera,
F.3d '
542, 548 (Ist
(1st Cir.
Cir. 1996) (overturning sentencing enhancement based on a "protracted
impairment"when
impairment" when victim had not sought counseling in the
the year
year following incident).
incident). Thus,
Thus,
whether medical professionals have diagnosed and treated such a condition, after these
techniques have been applied, is certainly relevant to determining whether a protracted
impairment of a mental faculty has occurred?S
occurred.25
t

i
i

Given the CIA's 96-hour time limit on continuous sleep deprivation, the hours between <
when these mental conditions could be expected to develop and when they could become ofaa
severity that 'CIA
CIA personnel terminate the
the technique
technique would
would not
not be
be of
of sufficient
sufficient duration
duration to
to satisfy;
satisfy;
the requirement that the impairment be "protracted." This conclusion is reinforced by the
<.
with one night of
ofnormal
medical evidence indicating that such conditions subside wira
normal sleep.
•
I
1

i
•

'•

"

—

i

. I .

i

„.,i

•—••

/

" We
We have
have no
nooccasion
occasion in
inthis
thisopinion
opinion to
todetermine
determinewhether
whetherthe
theintentional
intentional infliction
infliction of
ofpost-traumatic
post-traumatic I
offense, CIA's
CIA'S experiences with the thirty detainees with whom enhanced ii
stress syndrome would violate the SBI offense.
techniques have been used in the past,
information from mililal:y
military SERE
SERE tJaining,
training, suggest
suggest that
that neither
neither the
the *i
past. as well as infunnation
sleep deprivation technique, nor any ofthe
of the other six
six enhanced
enhanced techniques,
techniques, isislikely
likelytotocause
causepost-uaumatic
post-traumaticstress
stress ;.•
syndrome. CIA medical personnel have examined these detainees for signs of post-traumatic stress S)'Ildrome,
syndrome, and ;••
none of
of the detainees has
bas been diagnosed to surfer
suffer from it.
it.
24

M
.
2$ There is also a question about the meaning of "bodily injul)'~
injury" in
in the
the SBI
SBI offense.
offense. As
As explained
explained above,
above, ;i
broader ami-tempering
anti-campering statute defines the
dte term "bodily injury*'
injury" such that any "impainnent
of the function of
of
.
the broader
"impairment of
a ....
. . mental faculty
U.S.C. § l365(h)(4).
1365(h)(4). If this were the governing
faculty" would
woUld qualify
qualify as a bodily
bo4ily injury. 18
JSUS.C.
,
definition,
physical injury
injwy to
fo the body would be required
requiRd for one of
of the specified
specified conditions to constitute "serious
"seriouS
definition, no physical
reasons to believe that incolpOrating
incorporating this definition of "bodily injmy"
injury" into the SBI offense
offense
bodily
bodily injury."
injuzy." There are l'ea5ons
is
wammted. Nevertheless,
Nevertheless, whether
whether a "bodily
"bodily injury"
injury" involving a physical condition is required for
for the SBI
:
is not
not warranted.
offense
the four
offense is
is not
not a matter we must address here because
because none of
of the techniques at issue would implicate any of the'four
conditions required
definition of
of "serious bodily
bodily injury,"
injury," even in the absence of
of any separate physical
.
required under the definition
injury
injury requirement.

25

~-----------

- _... _ - - - - - . _ - _.. _ . _ . -

-_.

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

-------------'

(FRO';UL

:1:0

2C01

15:11/ST.15;;O/'':O.e;IlO.c29777 P

D.
Our analysis ofthe
of the War Crimes Act thus far has
has focused on whether the application of a;
a
proposed interrogation technique-in
technique—in particular, extended sleep deprivation—creates
deprivation--creates physical or
the specific thresholds
thresholds established in
in the
the Act.
Act, We
We have
have addressed
addressed ;
mental conditions that cross the
the context
context ofthe
of the anti·torture
anti-torture statute,
statute, and concluded there ;
questions of combined use before in the
here did
did not
not result
result in
in the
the imposition
imposition of
of
of the six techniques at issue here
that the combined use ofthe
A Rizzo, Senior Deputy General Counsel.
Counsel,
"extreme physical pain." Memorandum for John A.
Central Intelligence Agency, from
G. Bradbury.
Bradbury, Principal Deputy Assistant Attorney
from Steven G.
of Legal Counsel, Re: Application
Applicationofof1818u.s.c.
U.S.C
2340-2340A
toCombined
the Combined
§§§§
2340-2340A
to the
General, Office ofLegal
of CertainTechniques
Techniques
in the
Interrogation
of High
al Oaeda
Detainees
(May :10,
Use afCertain
Use
in the
Interrogation
a/High
ValueValue
al Qaeda
Detainees
(May 10,
2005). Thi.s
This conclusion is important here because CCextreme
"extreme physical
physical pain"
pain" isis the
the speCified
specified pain
pain j;
2005).
CTToffense
offenseand
andthe
theSBI
SBIoffense,
offense,ininaddition
additiontotothe
thetorture
tortureoffense.
offense. See
See1818
threshold for the CIT
2441(dX2)(D)(2), 113(b)(2)(B).
113(b)(2)(B). With
With regard
regard to
to elements
dements of
of the
the War
War Crimes
Crimes Act
Act
U.S.C.
U.S.C. §§
§§ 2441(dX2)(D)(2),
concerning
"impairments,"
CIA
observations
of
the
combined
use
of
these
techniques
do
ofthe
of these techniques do not
not :
concerning"impairments,'"
suggest that the addition of other techniques during
duringthe
theapplication
application of
ofextended
extendedsleep
sleepdeprivation
deprivation
to'
would accelerate or aggravate the cognitive diminishment associated with the technique so as ~
and SBI
SBI offenses.
offenses. Given
Given the
the particularized
particularized elements
elements set
set
reach the specified thresholds in the CIT and
of the six techniques now proposed by
forth in the War Crimes Act, the combined use ofthe
by the CIA .
the Act.
Act.
would not violate the

E.
. The War Crimes Act addresses conduct that is
is universally
universally condemned
condemned and
and that
that
constitutes grave breaches
breaches of Common Article 3.
3. Congress
Congress enacted the statute to
to declare·
declare our ;
Nation's comm.i.tment
commitment to those Conventions and to provide
provide our
our personnel
personnel with
with clarity
clarity as
as to
to the
the
boundaries ofthe
of the criminal conduct proscribed under Common
Common Article
Article 33 ofthe
of the Geneva
Geneva
.
conclude that
that the
the six
sixtechniques
techniques proposed
proposed for
for
Conventions. For the reasons discussed above, we conclude
CIA, when used in accordance with their accompanying limitations and safeguards, do
use by the CIA,
the specific offenses established by
by the
theWar
WarCrimes
CrimesAct.
Act. .•
.
not violate the

m.
m
For the reasons discussed in this Part, the proposed interrogation techniques also are
consistent with the Detainee Treatment Act.
Act.

A.

I

!

The DTA
DTA requires
requires the
the United
United States
Statesto
tocomply
complywith
withcertain
certain constitutional
constitutional standards
standards in
in the
the
of all persons in the custody or control ofthe
of the United States, regardless of
the
ofthe
I
treatment ofall
nationality ofthe
ofthe
provides that "(n]o
of the person or the physical location of
the detention. The DTA provides
individual in the custody or under the physical control ofthe
of the United States Government,
of nationality or physical location, shall be subject
regardless ofnationality
subject to cruel, inhuman, or degrading :
1403(a). The Act defines "cruel, inhuman, or degrading
treatment or punishment." DTA § 1403(a).
follows:
treatment or punishment" as follows:

26

1

<FR Il JUL

20

2007

; S: 11 /ST. is: I O/NO. ei 50'29777

P

1

I

In
la this section, the term "crueL
"cruel, inhuman, or degrading treatment or punishment"
means the cruel, unusual, and inhumane treatment or punishment prohibited by
the Fifth, Eighth, and Fourteenth Amendments to the Constitution ofthe
of the United
States.
States, as defined in the United States ReseIVations,
Reservations, Declarations and
Understandings to the United Nations Convention Against Torture and Other
Forms ofCruel,
of Cruel, Inhuman or Degrading Treatment or Punishment done at New
York,DecemberlO,1984.
York,
December 10, 1984.
i

1403(d). 226*

DTA §
Taken as a whole, the DTA imposes a statutory requirement that the United {{
States abide by the substantive constitutional standards applicable to the United States under its :"
reseIVation
reservation to Article 16 ofthe
of the CAT in the treatment of detainees, regardless oflocation
of location or
citizenship.
citizen~hip.
;

!
terms, Article 16!
The change in law brought about by the DTA is significant. By its own tenns,
16.
[the] jurisdiction" ofthe
of the signatory
signatory party.
party. In
In addition:
addition,'
of the CAT applies only in "territory under [the]
of
the constitutional provisions invoked in the Senate reservation to Article 16 generally do not
.
of their own force to aliens outside the tenitory
territory of
of the United States. See Johnson
apply oftheir
Johnson v.
Eisentrager, 339 U.S. 763, 782 (1950); United States
Slates v.
v. Verdugo-Urquidez,
Verdugo-Urquidez,494
494U.S.
U.S.259,
259,269
269 s
(1990); see also United States v.
v. Belmont.
Belmont,301
301U.S.
U.S.324,
324,332
332(1937);
(1937);United
UnitedStates
Stalesv.v.CurtissCurtiss- l ,
(1990);
Wright Export
Export Corp., 299 U.S.
U.S. 304, 318 (1936). Thus, before the enactment ofthe
of the DTA, United
States personnel were not legally required to follow these constitutional standards outside the "
of the United States as to aliens. Nevertheless, even before the DTA, it was the policy
territory ofthe
policy.•
of the United States to avoid cruel,.
cruel, inhuman, or degrading treatment.
treatment, within the meaning of
of the ,.
ofthe
• U.S. reservation
reservation to
to Article
Article 16
16oftbe
of the CAT,
CAT,of
ofany
anydetainee
detainee ininU.S.
U.S. custody,
custody, regardless
regardless ofJocatiort
of location
.U.S.
&\n.l.
n.l. The
Thepurpose
purposeofthe
of theDTA
DTAwas
wastotocodify
codifythis
thispolicy
policyinto
intostatute.
statute. i ;
or nationality. See supra at

B.
Although United States obligations under Article 16 extend to "the cruel, unusual and

inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth
Amendments to the Constitution of
of the United States."
States," only the Fifth Amendment is directly
relevant here. The Fourteenth Amendment provides, in relevant part: "No State shall.
..
,
shall...
deprive any person of
of life, liberty,
liberty. or property, without due process of
oflaw."
(Emphasis
added.)
law."
added.))I
This Amendment
Amendment does not apply to actions taken by the federal Government. See, e.g.,
e.g.• San
San
;
I

i

'

.
26

The purpose of
the U.S. reservation to Article 16 of
of the
the Convention
Convention Against Torture
Torture was
was ro
to provide
provide CIJ
clear
ofllie
"cruel, inhuman, or degrading" treatment or punishment based on United States law, ;
. meaning to the definition of
of"croel,
particularly to guard against any expansive interpretation of
"degrading" under Article 16. See Summary and
of"degrading"
Analysis of
of the Convention Against Torture and Other Cruel,
Crue~ Inhuman
Inhwnan or Degrading Treatment or Punishment, in :
S. Treaty
Treaty Doc.
Doc. No.
No. 1()()'20,
100-20, at
at 15-16
15-16("Executive
("ExecutiveBranch
BranchSummary
Summaryand
andAnalysis
Analysisof
ofthe
theCAT");
CAT);S.S.Exec.
Exec.Rep.
Rep.101-:
101-:
30, Convention
AgainstTorture
Torture
Other
Cruel,
Inhuman
or Degrading
Treatment
or Punishment
at 25-26 (Aug'
COllVention Against
andand
Other
Cruel.
hlhuman
or Degrading
Treatment
or Punishment
at 25·26 (Aug.'
to be
be coexrensive
coextensive with
with the
the constitutional
constitutional guarantees
guarantees against
against cruel;
cruel;
30,1990).
30, 1990). The reservation "construes
"'construes the phrase to
unusual, and inhumane treatment" Executive
BranchSummary
Summary
andAnalysis
of the
S. Exec.
101-30
Execuffve Branch
andAnalysis
o/the
CA CAT'at
T at IS: 15;
S. EXeG.
Rep.Rep.
101-30
at 25. Accordingly, the DTA does not prohibit all "degrading"
term; instead, ;•
"degrading" behavior in the ordinary sense of the lenn;
the prohibition extends "only insofar as" the specified constitutional standards. 136
136 Congo
Cong. ReG.
Rec.36,198
36,198(1990).
(1990).
Ui

27

FRO~

SITE

IS

DOJ

.

(FR1)JU!..

2C

2007

lS:11/ST. 15:10/NO. 6160L29777

& Athletics,
Athletics,Inc.
Inc. v.v. United
UnitedStates
StatesOlympic
OlympicComm.,
Comm.,483
483U.S.
U.S.522,
522,542
542n.21
h.21
Francisco Arts &
(1987); Bollmgv.
Bollingv. Sharpe,
Sharpe, 341
347 U.S.
U.S. 497,
497,498-99
(1954).
(1981);
498-99 (1954).
. I

Amendment prohibits the infliction of "cruel and unusual punishments." As !
The Eighth Amendment
the Supreme Court repeatedly has held, the Eighth Amendment does not apply until there has
been a "formal adjudication of guilt." See
See Bell v.v. Wolfish,
Wolfish,441
441U.S.
U.S.520,535
520, 535n.16
n.16(1979);
(1979);
v. Wright,
Wright, 430
430U.S.
U.S.651,671
651,671n.40
n.40(1977);
(1977);see
seealso
alsoInInrereGuantanamoDetainee
Guantanamo DetaineeCases,:
Cases,:
Ingraham v.
355 F.
F. Supp.
Supp. 2d 443,480
443, 480 (D.D.C.
(D.D.C. 2005)
2005) (dismissing detainees' Eighth
Eighth Amendment claims
355
.
"the Eighth Amendment applies only after an individual is convicted of a crime").
crime"). The !
because ''the
of the Eighth Amendment under the
the reservation to Article
Article 16
16 was expressly:
expressly
limited applicability ofthe
deliberations:
recognized by the Senate and the Executive Branch during the CAT ratification deliberations:
of cruel and unusual punishment is.
is, of
of the
The Eighth Amendment prohibition of
reservation], the most limited
three [constitutional provisions cited in the Senate reservation],
in scope, as this amendment has consistently been interpreted as protecting only
Wright,430
430U.S.
U.S.651.
651,664
664(1977).
(1977). The
The
of crimes." Ingraham
Ingraham v.v. Wright,
"those convicted of
does, however, afford protection against torture and iIlillEighth Amendment does,
of criminalpunishment.
criminalpunishment.
treatment of persons in prison and similar situations of
of the Convention Against Torture and Other CrueL
Cruel, Inhuman or
Summary and Analysis ofthe
S. Treaty Doc. No. 100-20, at 9 (emphasis added)
Degrading Treatment or Punishment, in S.
^'Executive Branch Summary and Analysis ofthe
of the CA
CAT').
none of the high value
value
C'Erecutive
T'). Because none
of .
detainees on whom the CIA might use enhanced interrogation techniques has been convicted of
any crime in the United States, the substantive requirements of the Eighth Amendment are not
2
here.27
'
;
directly relevant here.:
!

I

The Due Process Clause ofthe
of the Fifth Amendment forbids the deprivation of
of "life, liberty,
liberty,)
of law." Because the prohibitions of the DTA are directed at
or property without due process of
"treatment or punishment,"
application ofthe
of the procedural aspects ofthe
of the ::
punishment, n the Act does not require appJication
Fifth Amendment. The DT
DTA
Fifth
A provides for compliance with the substantive prohibition against :
"cruel, inhuman, or degrading treatment or punishment" as defined by the United States
reservation to Article 16 of
of the CAT. The CAT recognizes such a prohibition to refer to serious.
serious ~
abusive acts that approach, but fail
fall short of, the torture elsewhere prohibited by the CAT. See .
CAT Art. 16 (prohibiting "other cruel, inhuman, or degrading treatment or punishment which do
dti
not amount to
tQ torture").
tonure"). The term "treatment" therefore refers to this prohibition on substantive 1
conduct,
conduct. not 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
ofthe
"punishment"likewise
i

v
27 This is not to say that
that Eighth
Eighth Amendment
Amendment standards
standardsare
areof
ofno
noimportance
importanceininapplying
applyingthe
theDTA
DTAtotoprepre- .
conviction interrogation practices. The Supreme Court has made clear tha1
that treatment amounting to punishment :
Salerno,
481481
U.S.U.S.
739,746-47
(1987);
.
without a trial would violate the Due Process Clause.
Clause. See
SeeUnited
UnitedStotesv.
States v.
Salerno,
739,746-47
(1987);
City ofRevere
of Revere\'.v.Mass.
Mass.General
General
Hasp.,
Hosp.,
%3463
U.S.U.S.
239,239,244
244 (1983);
(1983);
Wolfish,
Wolfish,
441 U.S.
441 at
U.S.
53S·36
at 535-36
& nn.16-17.
& rm.16-17. .
Treatment amounting to "cruel and unusual punislune!J1"
punishment" under the Eighth
Eighth Amendmem
Amendment also
also may
may constitute
prohibited "punishment" under
course, the
theConstitution
Constitution does
doesnot
notprohibit
prohibitthe
theimposition
imposition;i
Wlder the Fifth Amendment. Of course,
of
violate administrative
administrative rules
rules while
whilelawfully
lawfully detained.
detained See,
See,e.g.,
e.g.,Sandin
Sandin
of certain sanctions on detainees who \iolate
v. v.
Connor,
515U.~.
U.S.472,
472,484-85
484-85(1995).
(1995).
Connor, 515

28

p

1

<FRI),IUL

20

2C07

,5:11/ST.1S:10/NO. 6:eO<l29777

ultimately effected
effected on
on aa detainee-not
detainee—not upon
uponthe
theprocess
processfor
fordeciding
decidingtotoimpose
imposethose
thoseoutcomes.
outcomes,
ultimately
Cf.
v. Ada,'
528528
U.S.
250,
255255
(2000)
(observing
thatthat
the the
interpretation
of aofstatutory
Cf.Guitie"ez
Guitierrez
v. Ada,
U.S.
250,
(2000)
(observing
interpretation
a statutory
term
term "that
"that isis capable
capable of
of many
many meanings"
meanings"isisoften
often influenced
influenced by
by the
the words
wordsthat
that surround
surround it).
H).
Moreover
the
DTA
itself
includes
extensive
and
detailed
provisions
dictating
the
process
Moreover,, the DTA itself includes extensive and detailed provisions dictating the processto
tobe
be .:
afforded certain detainees
detainees in military custody.
custody. See
SeeDTA
DTA§§1405.
1405. Congress's
Congress'sdecision
decisiontotospecify
specify :
detailed
detailed procedures
procedures applicable
applicable to
to particular detainees
detainees cannot
cannot be
be reconciled with
with the
the notion
notion that
the
the DTA
DTA was
wasintended
intended simultaneously
simultaneously to
to extend
extend the
theprocedural
procedural protections
protections of
ofthe
theDue
DueProcess
Process
theUnited
United Statts.
States.
Clause generally
generally to
to all
all detainees
detainees held
held by
by the
Rather,
Rather, the
the substantive component of the
the Due
DueProcess
ProcessClause
Clausegoverns
governswhat
whattypes
typesof
of
treatment, including what forms of interrogation,
interrogation, are
are permissible without trial
trial and
and conviction.
conviction.
is one that
that the
the Supreme
Supreme Court
Court confirmed
confirmed as
asrecently
recently as
as2003
2003ininChavez
Chavezv.v.
This proposition is
Martinez,538
538U.S.
U.S.760
760(2003).
(2003).See
Seeid.id.at at
779-80,jd.idat at
773
(plurality
opinion);
at 787
Martinez,
779-80,
773
(plurality
opinion)~
id. id.
at 787
(Stevens.
(Stevens, J.,conCUITing
J., concurring in part and dissenting in
in part).
part). Further
Further reinforcing
reinforcing this
this principle,
principle, aa
majority of the Justices recognized that the Self-incrimination
Self-Incrimination Clause—instead
Clause-instead of
of proscribing
from being used .
particular means
means of interrogating suspects-only
suspects—only prohibits coerced confessions from
criminalconviction.
conviction.See
See
Chavez,
at 769
(plurality
opinion,
joined
by four
to secure a criminal
Chavez,
538538
U.S.U.S.
at 769
(plurality
opinion,
JOIned
by four
.
("[Mjere coercion does not violate the
the text
text ofthe
of the Self-Incrimination
Self-incrimination Clause absent use
use ;i
Justices) ("[MJere
the V'.-itness.");
witness."); id.
id.atat778
778(Souter.
(Souter,J.•J.,
of the compelled statement in a criminal case against
against the
ofthe
concurring in the judgment) (rejecting the
the notion
notion of
of aa"stand-alone
"stand-alone violation
violation of
ofthe
the privilege
privilege
subject to compensation" whenever "the police obtain any involuntary self-incriminating
statement").

process protects
protects against
against interrogation practices that
In this regard, substantive due process
"shockfj the conscience." Rochin
California,342
342
U.S.
165,172
(1952);
also
County
"shock£]
Rochin v.v.California,
U.S.
165,
172 (1952);
seesee
also
County
of of
Sacramentov.v.Lewis,
Lewis,523
523
U.S.
833,
846
(1998)
("To
half
a century
now
have
Sac:r:.amento
U.S.
833,
846
(1998)
("To
thisthis
end,end,
forfor
half
a century
now
wewe
have
spoken of
the cognizable level of
power as that which shocks the
ofthe
of executive abuse of
ofpower
28
conscience.").
focus on
on whether
whether the
the interrogation:
interrogation .
conscience. 'l21 The shocks-the-conscience inquiry does not focus
was coercive, which is the relevant standard for whether a statement would be admissible in
in
court. SeeMalloy
v.
Hogan,
378
U.S.
1,
7
(1964)
("Under
[the
Self-incrimination
Clause],
See Malloy v. Hogan. 378 U.S. 1, 7 (1964) ("Under [the Self-Incrimination Clause], thethe :
constitutional inquiry is not whether the conduct of
the state officers
confession •
ofthe
officers in obtaining the confession,
was shocking, but whether the confession wasfree
voluntary."). Instead, the "relevant
free and voluntary.").
liberty is notfreedom
from
freedom
from unlawful interrogations but
butfreedom
freedomfrom
from severe bodily or mental
harm inflicted
an interrogation." WiMns
May,872
872F.2d
F.2d190,
190,195
195(7th
(7thCir.
Cir. ,
ofan
Wilkins v.v.May,
inflicted in the course of
1989) (Posner,
in the
the law
law enforcement context.
context, there'
there
(posner, J.).
1.). In order to cross that "high" threshold in
must be "misconduct that a reasonable person would find so
so beyond
beyond the
the nonn
norm ofproper
of proper police
police
28

28 It
publicly
recognized
thatthat
theihe
Fifth
Amendment's
"shocks
the conscience"
test test
Uhas
hasbeen
beenwidely
widelyand
and
publicly
recognized
Fifth
Amendment'
s "shocks
the conscience"
intelrogation
of suspected
terrorists
regarding
futuR
terrorist.
attacks,
supplies the
thelegal
legalstandard
standardapplicable
applicabletotothethe
interrogation
of suspected
terrorists
regarding
future
terrorist
attacks,I
pursuant to the
theU.S.
U.S.reservation
reservationtotoArticle
Article1616ofof
CAT
theA.DTA.
conclusion
was reached,
thethe
CAT
andand
thusthus
the DT
ThisThis
conclusion
was reached,
for for

example, by a bipartisan group of
policymakers, chaired
chaired by
byPhillip
PhillipHeymann,
Heymann, Deputy
Deputy Attorney
Attorney
of legal scholars and policymakers,
General during the Clinton
LongTerm
TermLegal
LegalStrategy
Strategy
Projectfor
Preserving
Security
Ointon Administration. See Long
Project/or
Preserving
Security
and and
Democratic
FreedomsininWar
WarononTerrorism
Terrorism
(Harvard
2004).
The
Department
Justice
also
publicly
announced
23 23
(HlUVard
2(04).
11le
Department
of of
Justice
also
pubUcly
announced
Democratic Freedoms
this part of
the DTA. See
of its interpretation
interpretation of
of Article 16 in congressional testimony, prior to the enactment
enactment of
ofthe
See
.
Prepared
Prepared Statement
Statement of
ofPatrick
Patrick F.
F. Philbin,
Philbin, Associate
Associate Deputy
Deputy Attorney
Attorney General,
General, before the Permanent
Pennanent House Select
Committee
ofDetainees
Detaineesininthethe
Global
on Terror
14,2004).
Committee on
on Intelligence,
Intelligence, Treatment
Treatment 0/
Global
WarWar
on Terror
(July(July
14,2004).

29

?

1

F~OM

$I,e

IS

00.1

(FRI>JUL

2'::

2007

'1S:;2/ST. 15::0/NO. 816C42e777 po

.

I

•i
1

procedure as to
to shock
shock the
the conscience,
conscience, and
and that
that isiscalculated
calculated totoinduce
inducenot
notmerely
merely momentaty
momentary fea:r
fear
anxiety, but severe mental suffering.
suffering." [d.
Id.
or anxiety,
,
IS

I
As we discuss in more detail below,
below, the
the"shocks
"shocksthe
theconscience"
conscience"test
testrequires
requiresaabalancing
balancing
of
interests
that
leads
to
a
more
flexible
standard
than
the
inquiry
into
coercion
and
of
standard than the inquiry into
and voluntarines~
voluntariness
that accompanies the introduction ofstatements
trial, and
and the governmental interests
of statements at a criminal trial,

at stake may vary with the context.
context. The
The Supreme
Supreme Court
Court has
has long
long distinguished
distinguished the
the government:
government •:
interest in ordinary law enforcementfrom
from the more compelling interest in safeguarding national;
national!
made this
this distinction
distinction clear
clear in
in the
the due
due process
process context:
context: Th~
The
security. In 2001, the Supreme Court made
"appl[ied]|
government interest in detaining illegal aliens is different, the Court explained, when "appl(ied]!
narrowly to a small segment of particularly dangerous individuals, say, suspected terrorists."
Zadvydas
Davis,533
533
U.S.
678,
691
(2001).
This
proposition
is echoed
in Fourth
Amendment
Zadvydas v.v.Davis:
U.S.
678,
691
(2001).
This
proposition
is echoed
in Fourth
Amendment
jurisprudence as well,
well, where "special needs,
needs, beyond the normal need for law
law enforcement,"
enforcement," can;
canVernoniaSchool
SchoolDist.
47Jv.
Acton,
justify
searches. Vernonia
justify warrantless or even suspicionless searches.
Disl. 47Jv.
Acton,
515515
U.S"U.S.
646, 653 (1995).
(1995). In this way,
way, "the [Supreme]
[Supreme] Court
Court distinguishe[s]
distinguished] general
general crime
crime control
control
646,653
of citizens against •
programs and those that have another particular purpose, such as protection ofcitizens
special hazards or protection ofour
of our borders."
re Sealed
SealedCase,
Case,310
310F.3d
717,745-46
745-46(For.
(For.
borders." In re
F.3d 717,
Intel. Surv.
Ct.
Rev.
2002).
Indeed,
in
one
Fourth
Amendment
case,
the
Court
observed
that
Swv.
case, the Court observed that
"sanction [automobile] stops justified only
only by
by the
thegeneral
general interest
interest inin crime
crime .
while it would not «sanction
control," a "roadblock set up to
to thwart
thwart an
an imminent
imminentterrorist
terrorist attack"
attack"would
wouldpresent
presentan
anentirely
entirely
contro~"
different constitutional question. Indianapolis
Edmond,
(2000).
different
Indianapolis v. v.
Edmond,
531 531
U.S.U.S.
32, 32,44
44 (2000).

c
c.

I

.

- !
!

Application ofthe
conscience" test
test isis complicated
complicated by
by the
the fact
fact that
that there
there are
are !
of the "shocks the conscience"
relative}y
relatively few cases in which courts have
haveapplied
applied that
that test,
test, and
and these
thesecases
cases involve
involvecontexts
contextsand
andi >
interests that differ
differ significantly from those of
of the
the CIA
CIA interrogation
interrogation program.
program. The
TheCourt
Court in
in .
County
emphasized
thatthat
there
is "no
calibrated
yard
stick"
with
which
to to
CountyofSacramento
of Sacramentov. v.Lewis
Lewis
emphasized
there
is "no
calibrated
yard
stick"
with
which
523 U.S.
U.S. 81847.
at 847. To
To tbe
the contrary,
contrary, "[rJules.
"[rules
determine whether conduct "shocks the conscience." 523
of due process are not
not...
territory." Id.
Id. at
at 850.
850.::
ofdue
... subject to mechanical application in unfamiliar tenitory."
A claim that government conduct "shocks the
the conscience,"
conscience," therefore,
therefore, requires
requires «an
"an exact
exact analysis
analysis
of circumstances." Id
Id. The Court has
has explained:
explained:
of
The phrase [due process oflaw]
of law] fonnulates
formulates a concept less rigid and more fluid
fluid
of
than those envisaged in other specific and particular provisions ofthe
of the Bill of
Rights. Its application is less aa matter
matter of
of rule.
rule. Asserted
Asserted denial
denial is
is to
to be
be tested
tested by
by
Rights.
an appraisal ofthe
totality
of
facts
in
a
given
case.
That
which
may,
in
one
of the
of
a given case. That which may, in one
setting, constitute a denial of fundamental fairness, shocking to the universal
setting>
sense ofjustice,
of other considerations,
ofjustice, may, in other circumstances, and in light of
denial.
fall short of such a denial.

Id.
316U.S.
U.S.455,
455,462
462(1942»;
(1942));Robertson
Robertson
v. City
ofPiano,
Id at 850 (quoting Beits
Betts v.v. Brady,
Brady, 316
v. City
ofPlano,
70 70
F.3d 21, 24 (5th Cir. 1995) ("It goes without saying that, in determining whether the
constitutional line has been crossed, the
the claimed
claimedwrong
wrongmust
mustbe
beviewed
viewed ininthe
thecontext
contextininwhich
whichitit
occurred."):
;
occurred."); In evaluating the techniques in question, Supreme Court precedent therefore
requires us to analyze the circumstances underlying the CIA interrogation program-limited
program—limited to ;

30

L__
_

0

--'

(FRI)JUL

2C 2007

1~:n!/ST.

15:10/NO.

615C~2~777

high value terrorist detainees
detainees who
who possess
possessintelligence
intelligencecritical
critical to
tothe
the Global
Global War
War on
on Terror-and
Terror—and
this
,
this clearly is not a context th~
that has
has arisen under existing federal court precedent.

In
context,
however,
two
general
principles
areare
relevant
forfor
determining
whether
>Inany
any
context,
however,
two
general
principles
relevant
determining
whether
The
test
requires
first
an
inquiry
into
whether
the
. executive
conduct
"shocks
the
conscience."
executive conduct "shocks the conscience." The
requires first
into
conduct is "arbitrary in the constitutional sense," that
that is.
is, whether
whether the conduct is proportionate to·
to
the government interest involved.
See Lewis,
involved. See
Lewis,523
523U.S.
U.S.atat846.
846.Next,
Next,the
thetest
testrequires
requires
consideration of whether the conduct is
is objectively "egregious"
"egregious" or "outrageous" in light of
traditional executive behavior and contemporary practices. See
See id
id at
at 847
847 n.8.
n.8. We
We consider each
element in tum
turn.

1.
1-

the~

Whether
»Whethergovemment
governmentconduct
conduct"shocks
"shocksthe
theconscience"
conscience"depends
dependsprimarily
primarilyononwhether
whether the.
conduct IS
"arbitrary
in
the
constitutional
sense,"
that
is,
whether
it
amounts
to
the
"exercise
of
is
of .
power without any reasonable justification in the
the service
service of a legitimate governmental
objective:'
objective." Id,
Id, 523
523 U.S.
U.S. at
at 846
846 (internal
(internal quotation
quotation marks
marks omitted).
omitted). "[C]onduct
"[CJonduct intended to
to
injure in some way unjustifiable by any
any government
government interest
interest isis the
the sort of official action most
likely to rise to the conscience-shocking level," although deliberate indifference
indifference to the risk of
of
inflicting such unjustifiable
.
unjustifiable injury might also "shock the
the conscience."
conscience." [d.
Id.atat849-51.
849-51. The
The
"shocks the conscience"
conscience" test therefore requires consideration of the justifications
underlying
such
justifications
determining its propriety.
propriety.
conduct in detE:rmi.ning

Thus, we must look to whether the relevant conduct furthers a government interest, and to
Thus,
.&,
the nature and importance ofthat
...;
of that interest. Because the Due
Due Process
Process Clause
Clause "lays
"lays down
down [no]
[no]...;
imperative," the
the Court
Court has
has"repeatedly
"repeatedly held
held that
that the
the Government's
Government's regulatory
regulatory intereSt
interest
categorical imperative,"
can, in appropriate circumstances,
circumstances, outweigh an individual's liberty
in community safety can,
UnitedStates
Statesv.v.Salerno,
Salerno,481
481
U.S.
739,
748
(1987).
U.S.
739,
748
(1987).
i
interest." United

i

Al Qaeda's demonstrated ability to launch sophisticated attacks causing mass casualties
AI
within the United States and against United States interests worldwide and the threat 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
ofthe
highest order.
order. 'Tt
"It is
is 'obvious
'obvious
the highest
and unarguable"
ofthe
.
unarguable' that no govemmental
governmental interest is more compelling than the security of
the
Nation."
U.S,
v. Agee,
Agee,453
453U.S.
U.S.280.
280,307
307(1981)
(1981)(citations
(citationsomitted);
omitted);see
seealso
alsoSalerno,
Salerno,481
481
U.S:
Nation." Haig v.
748 (noting that "society's interest is at its peak" "in times of
war or insurrection"). The CIA
at 748
ofwar
CIA:
interrogation program-and,·in
interrogation techniques—is
techniques-is
i
program—and, in particular, its use ofenhanced interrogation
intended to serve this paramount interest by producing substantial quantities ofotherwise
of otherwise
intelligence. The CIA believes that this program "has been a key reason why alunavailable intelligence.
11 September 2001."
Qa'ida has failed to launch a spectacular attack in the West since 11
Stevei^JSradburv^rincipal
Memorandum for Steven
G. Bradbu Principal Deputy Assistant Attorney General, Office
Office of
of :
Chief
Legal Counsel, fro fr°™flHHHHH|i
>
^
a
l
Group,
DCI
Counterterrorist
Center,
Chief, Legal
DCI Counterterrorist Center, •
Re: Effectiveness
Effectivenessof
oftheUACounterintelligence
InterrogationTechniques
Techniques
2 (Mar.
2, 2005):
.Re:
t, e
ounterintelligence Interrogation
at 2at(Mar.
2, 2005)
^Effectiveness Memo").
Memo"). We
We understand that use ofenhanced
of enhanced techniques has produced
(''Effectiveness
;
h2s used
used to
to keep
keep the
theNation
Nation safe.
safe. As
Asthe
thePresident
President,i
significant intelligence that the Government has
we could
could not get anywhere else,
else, the .
explained, "by giving us information about terrorist plans we

31

p

(FR I) JUl

20

2007

15: 1 2/ST. 15: 1 O/NC.

6160~2e777

program has
has saved innocent lives." Address ofthe
of the President, East Room, White House,
September 6,
2006.
6,2006.

t

i

For example,
example, we underst3J1d
understand that enhanced interrogation techniques proved particularly !
crucial in the interrogations of Khalid Shaykh Muhammad and Abu Zubaydah. Before the CIA!
CIA
used enhanced techniques in interrogating Muhammad, he
he resisted
resisted giving
giving any
any information
information abolit
aboiit
future attacks,
attacks, simply warning, "soon, you will know."
know." As
As the
thePresident
President informed
informed the
the Nation
Nation iIi
in
his
address, once enhanced techniques were employed, Muhammad provided
his September 6th address,
Wave," aa plot
plot to
to crash
crash aa hijacked airliner into
into the
the Library
Library
information revealing the "Second Wave,"
Angeles—the tallest building on the West
West Coast.
Coast. Information obtained from
from
Tower in Los Angeles-the
planning the
the attack.
Muhammad led to the capture .of many ofthe al Qaeda operatives planning
Interrogations ofZubaydah-again,
employed-revealed two al
at
of Zubaydah—again, once enhanced techniques were employed—revealed
Qaeda openitives
already
in
the
Unrted
States
and
planning
to
destroy
a
high
rise
apartment
:
operatives
United
building and to detonate a radiological bomb in
in Washington,
Washington, D.C.
D.C. The techniques have revealed
plots to
to blow up
up the
the Brooklyn
Brooklyn Bridge
Bridge and
and to
torelease
releasemass
massbiological
biologicalagents
agentsininour
ourNation's
Nation's
largest cities.
cities.
!

i
United States military and intelligence operations may have degraded the capabilities of
of
al Qaeda operatives to launch terrorist attacks, but intelligence indicates that al Qaeda remains ~a
grave threat.
threat. In a speech last year, Osama bin Laden boasted of the deadly bombings in London
and Madrid and warned Americans ofhis
of his plans
plans to launch terrorist attacks in the United States:
States: :
The delay in similar operations happening in America has not been because of
failure to break through your security measures. The operations are under
andYIJU
you will
willsee
seethem
iheminInYlJUr
yourhlJmes
homesthetheminute
minute
theyareare
throughVYith
with
preparation and
they
through
preparations. Allah 'Willing.
willing.
. preparations,
Quoted at
19, 2006). In
In August
August
at http://www.breitbart.com/2006/191D8F7SMRH5.html
http://www.breitbart.coin/2006/19/D8F7SMRH5.html (Jan. 19,2006).
2006,
British
authorities
foiled
a
terrorist
plot-planned
by
aJ
Qaeda-that
intended
2006,
plot—-planned al Qaeda—that
simultaneouSly
simultaneously to detonate more than 14 wide-body
wide-body jets
jets traveling
traveling across
across the
the Atlantic
Atlantic and
and that
11, 2001,
threatened to kill more civilians than al Qaeda's attacks on September 11,2001.

There is some indication that these major attacks will originate as the recent
airliner plot had, from terrorists based in the United Kingdom.

continues.
continues.

This intelligence reinforces that the threat of
terrorist attacks
ofterrorist
attacks posed
posed by
by al
al Qaeda
Qaeda

32

;>

•

~KQM

SIr5 15

OOJ

(FRI)JUL

20

2007

;S: 12/ST. lS:10/NO. 6160'-29777

In addition to demonstrating a compelling government interest of
of the highest order
underlying the use ofthe
techniques, the CIA will
will apply
apply several
several measures
measures that
that will
will tailor
tailor the
the
of the techniques,
program to that interest.
interest. The
The CIA
CIA in
in the
thepast
past has
hastaken
takenand
andwill
willcontinue
continueto
totake
takespecific
specific
precautions to narrow the class of
.
of individuals
individuals subject to
to enhanced
enhanced techniques.
techniques. As
As described
described
above, careful screening procedures are in
in place
place to
to ensure
ensure that
that enhanced
enhanced techniques
techniques will
will be
be used
used;i
above,
only in
in the
the interrogations
interrogations ofagents
of agents or members
members ofal
of al Qaeda
Qaeda or
or its
its affiliates
affiliates who
who are
are reasonably
reasonably )
only
can be
be used to prevent future terrorist attacks against
believed to possess critical intelligence that can
again~
the United States
States and
and its
its interests.
interests. The
Thefeet
that
enhanced
techniques
have
been
used
to
date
in r
fact that enhanced techniques have
in
the interrogations ofonly
of only 30 high value detainees
detainees out ofthe
of the 98
98 detainees
detainees who,
who, at
at various times,
times, i
have been in CIA custody demonstrates this
this selectivity.
selectivity. This
This interrogation
interrogation program
program is
is not
not aa
have
;
dragnet for suspected terrorists who might possess helpful information.

will
attempt
simple
questioning.
Before enhanced
!Before
enhancedtechniques
techniquesare
areused,
used,thetheCIA
CIA
will
attempt
simple
questioning.Thus,
Thus,
enhanced techniques would be used only when the Director of the CIA considers
considers them necessary
because a high value terrorist is withholding or manipulating critical intelligence, or there is
to obtain
obtain such
such intelligence.
intelligence. Once
Once approved,
approved, enhanced :
insufficient time to try other techniques to
insufficient
techniques would be used only as Jess
less harsh techniques
techniques fail or as
as interrogators fWl
run out
out oftime
of time in:
techniques
of an imminent threat, so that
that itit would
would be
be unlikely that a detainee would
would be
be subjected
subjected to
to'j
the face ofan
more duress than is reasonably necessary to elicit the information sought. The enhanced
more
techniques, in other words, are
are not
not the
thefirst
option for
for CIA
CIA interrogators
interrogators confronted
confronted even
even with
with aa ;
frrst option
techniques,in
high value detainee.
detainee. These procedures target
target the
the techniques
techniqueson
on situations
situations where
where the
the potentia.]
potential for
for
saving
the
lives
of
innocent
persons
is
the
greatest.
persons is the greatest.
saving.the lives of
As
As important as carefully restricting tbe
the number and scope of interrogations are the
mitigate their
their impact
impact on
on the
the detainees
detainees and
and the
the care
care with
with which
safeguards the CIA will employ to mitigate
the CIA chose
chose these
these techniques.
techniques. The
The CIA
CIAhas
hasdetermined
determinedthat
thatthe
thesix
sixtechniques
techniqueswe
wediscuss
discuss
the
effective program designed to obtain the most :
herein are the minimum necessary to maintain an effective
valuable intelligence possessed by al Qaeda operatives. The CIA interrogation team and medical
ensuring:
personnel would review the detainee's condition both before and during interrogation, ensuring
is any
any reaSOD
reason to believe their use would cause
cause the
the
that techniques will not be used if there is
adapted i
harm. Moreover, because these techniques were ada~
detainee significant mental or physical harm.
training,the
theimpact
impactof
oftechniques
techniquesclosely
closelyresembling
resemblingthose
thoseproposed
proposed •.
fromthe
themilitary's
military'sSERE
SEREtraining,
from
:
by the
the CIA has been the subject ofextensive
of extensive medical studies. Each of
these techniques also has 1
by
ofthese
has its experience with those
been employed earlier in the CIA program, and the CIA now has
detainees, including long-term medical and psychological observations, as an additional
detainees,
aDd
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 critical
governmental interest, while at the same
same time
time eliminating
eliminating any
anyunnecessary
unnecessary harm
harmto
to detainees.
detainees. In:
In:
this context.
context, the techniques are not "arbitrary in the
the constitutional sense.
sense."n
this

2.
i

The substantive due process inquiry requires consideration of
not only whether the
The
ofnot
conduct is
is proportionate to the government interest involved, but also
also whether
whether the
theconduct
conduct isis
consistent with objective standards of conduct, as measured by traditional executive behavior
and contemporary practice.
practice. In this regard, the inquiry has
has a historical element:
element: Whether,
and
TO
33

P

FRO~

SITE

~5

OOJ

(FRI)JV!..

2C

2C:l7

l5:12/ST. 15;lC//;/0. 51e;;42lH77

considered in light of"an
oftraditional
executive behavior,
behavior, of
ofcontemporary
contemporary
of "an understanding of
traditional executive
practice.
practice, and ofthe
of the standards ofblame
of blame generally applied to them," use
use ofthe
of the enhanced
interrogation techniques constitutes government behavior that "is
«is so egregious,
egregious. so
50 outrageous, .
that it may
may fairly
fairly be
be said
said to
to shock
shock the
the contemporary conscience."
conscience." Lewis.
Lev/is,523
523U.S.
U.S.atat847
847n.8;
n.8;see
see
also
also Rochin,
Rochin,342
342U.S.
U.S.atat169
169("Words
("Wordsbeing.symbols
being.symbolsdodonot
notspeak
speakwithout
withouta agloss.
gloss.On
Onthe
theone
one
hand the gloss
gloss may
may be
be the
the deposit
deposit of
of history.
history, whereby
whereby aa term
termgains
gainstechnical
technical content.").
content."). In
In this
this :
detennine the extent to which
which;'
section, we consider examples in six potentially relevant areas to determine
those other areas
areas may
may inform
inform what
what kinds
kinds ofactions
of actions would
would shock
shock the
the conscience
conscience in
in the
the context
context of
program.
the CIA program.
.
In
the proposed
interrogation techniques
techniques are
are
In conducting
conducting the
the inquiry
inquiry into
into whether
whether the
proposed interrogation
we are
are assisted
assisted. by
by our
our prior
prior
consistent
consistent with
with established
established standards
standards of
of executive
executive conduct,
conduct, we
conclusion
conclusion that
that the
the techniques
techniques do
do not
not violate
violate the
the anti-torture
anti-torture statute
statute and
and the
the War
War Crimes
Crimes Act.
Act.
Congress
"C?utrageous"i
the federal
federal criminal
criminal law.
law, prohibited certain "egregious" and "outrageous"
Congress has,
has, through
through the
acts,
acts, and the CIA does not propose to use techniques that would contravene those standards. ~
Certain methods of interrogating even high-ranking terrorists-such
terrorists—such as torture-may
torture—may well violate
the Due Process Clause,
no
matter
how
valuable
the
information
sought.
Clause,
the information sought. Yet none
none ofthe
of the
techniques at issue here.
here, considered individually or in combination, constitutes torture, cruel or :
law.·
inhuman treatment, or the intentional infliction of serious bodily injury under United States law.
See
2441. In
See 18
18 U.S.c.
U.S.C. §§
§§2340,
2340,2441.
Inconsidering
consideringwhether
whetherthe
theproposed
proposedtechniques
techniquesare
areconsistent
consistent
with traditional executive behavior and contemporary practice, we therefore begin from
from the
premise that the proposed techniques are neither "arbitrary" as a constitutional matter nor
of these federal criminal laws.
violations ofthese

,

We have not found examples oftraditional
of traditional executive behavior or contemporary practice Ii
We
interest—in
that would condemn an interrogation program that furthers a vital government interest-in
.
particular, the interest in protecting United Stat~s
States citizensfrom
attacks— ;
particular.
from catastrophic terrorist attacksis carefully designed to avoid unnecessary or significant
significant harm.
;
and that is
harm.. To the contrary, we
these examples that there is
is support
support within
within contemporary
contemporary community standards :
conclude from
frOm these
program, as it bas
has been
been proposed.
proposed. Indeed,
Indeed, the
the Military
Military Commissions
Commissions
for the CIA interrogation program.
itself was proposed, debated, and enacted in no small part on the assumption that it would Act itselfwas
forward.
allow the CIA program to go forward.

OrdinaryCriminal
CriminalInvestigations.
Investigations.
Supreme
Court
addressed
question
Ordinary
:TheThe
Supreme
Court
hashas
addressed
thethe
question
whether various police interrogation practices "shock the conscience" and thus violate the Fifth
Fifth i
in the context oftraditional
of traditional criminal Jaw
law enforcement. In Rochin
Rochin v.v.California.
California,342
342
Amendment in
U.S. 165
165 (1952),
(1952),the
the Court
Court reversed
reversed aa criminal
criminal conviction
conviction where
where the
the prosecution
prosecution introduced
introduced
U.S.
the forcibie
forcible pumping ofthe
of the defendant'"s
defendant's
evidence against the defendant that had been obtained by the
stomach. The
The Court's analysis focused on the
the brutality of the
the police
police conduct at issue,
issue, especially
stomach.
the intrusion into the defendant's body:
the petitioner, the
the struggle to open his mouth
Illegally breaking into the privacy of the
there, the forcible extraction of
his stomach's contents—
and remove what was there,
ofhis
contentsof proceeding by agents of the government to obtain evidence is bound
this course ofproceeding
to· the rack and
to offend even hardened sensibilities. They are methods too close to
differentiation.
the screw to permit of constitutional differentiation.

34

:

t

P

2

(FRI)JU:..

2:::

;:C07 ~5:'2/ST. 1S:10/NC. el~C';2e777

[d.
States,
341341
U.S.U.S.
97 (1951),
the the
Court
considered
a a
Id. at
at 172.
172. Likewise,
Likewise, in
in Williams
Williamsv.v.United
United
States,
97 (1951),
Court
considered
conviction
conviction under aa statute that criminalized depriving an individual of a constitutional right
right
under
under color
color of law.
law. After identifying four suspects,
suspects, the
the defendant
defendant used
used "brutal
"brutal methods
methods to
to obtain;
obtain
aa confession
.
98.
confession from
from each
each ofthem."
of them." [d.
Id. at
at 98.
A
were
A rubber
rubber hose,
hose, aa pistol,
pistol, aa blunt
blunt instrument,
instrument, aa sash
sash cord
cord and
and other
other implements
implements were
in
the
project.
One
man
was
forced
to
look
at
a
bright
light
for
fifteen
used
used in the project. One man was forced to look at a bright light for fifteen
minutes;
minutes; when
when be
hewas
was blinded,
blinded, he
hewas
wasrepeatedly
repeatedlyhit
hitwith
withaarubber
rubberhose
hoseand
andaa
finally knocked
from aachair
sash
sash cord and
andfinally
knocked to
to the
thefloor.
floor.Another
Anotherwas
wasmocked
knockedfrom
chairand
and
hit
hit in
in the
the stomach again and again.
again. He
He was
was put
putback
back ininthe
the chair
chairand
and the
the
procedure was
was repeated.
repeated. One
One was
wasbacked
backedagainst
againstthe
thewall
wal Iand
andjammed
jammedininthe
the
chest with
with a club.
club. Each was beaten, threatened, and unmercifully
unmercifully punished for
several hours
hours until he
he confessed.
confessed.
[d.
Id. at
at 98-99.
98-99. The
The Court characterized this brutal conduct as
as "the
"the classic
classic use
use of
of force
force to
to make
make aa i
man
man testify against himself'
himself and had little difficulty concluding that the victim had been deprived
of his
rights under
hisrights
under the
the Due
Due Process
Process Clause.
Clause. [d.
Id.atat101-02
101-02("[W]here
("[W]herepolice
policetake
takematters
mattersinintheir
their i
untilthey
they confess,
confess, there
therecannot
cannotbe
bethe
theslightest
slightest !
own hands,
hands, seize
seize victims,
victims, beat
beat and
and pound
pound them
them until
ovy'Tl
doubt that the
the police have deprived the
the victim
victim of
of aa right
right under the
the Constitution.").
Constitution."). Williams
Williamsisis .
significant because itit appears to be the
only Supreme
Supreme Court case to declare an interrogation
the only
never used
used as
as evidence
evidence in
in aa criminal
criminal trial.
trial.
unconstitutional where its fruits were never

Chavezv.v.Martinez,
Martinez,538
538
U.S.
760
(2003),
police
questioned
plaintiff,
In Chavez
U.S.
760
(2003),
thethe
police
hadhad
questioned
thethe
plaintiff,
a a
and believed he
he was dying.
dying. The plaintiffwas
plaintiff was notl
not
gunshot wound victim who was in severe pain and
was never
never introduced
introduced against him
him in
in aa criminal
criminal case.
case. :
charged, however, and his confession thus was
plaintiffs Self-Incrimination
Self-incrimination Clause claim but remanded for
The Supreme Court rejected the plaintiffs
of the legality of
of the questioning under the substantive due process standard. See ;
consideration ofthe
id. at
at 773
773 (opinion of Thomas, J.);
J.); id.
id. atat778-79
778-79(Souter,
(Souter,1.,J.,concurring
concurringininjudgment).
judgment).
id.
more restrictive standard than "shocks:
"shocks '
Importantly, the Court considered applying a potentially more
conscience"—a -standard
standard that would have categorically barred all "unusually coercive"
the conscience"-a
.
See id.
id. atat783,
783,788
788(Stevens,
(Stevens,1.,J.,concurring
concurringininpart
partand
anddissenting
dissentingininpart)
part)
interrogations. See
and «a
"a classic example ofa
of a violation of a
(describing the interrogation at issue as "torturous" and
ordered liberty") (internal
constitutional right implicit in the concept of
ofordered
(internal quotation
quotation marks
marks
id. atat796
796(Kennedy,
(Kennedy,1.,
J.,concurring
concurringininpart
partand
anddissenting
dissentingininpart)
part)("The
("TheConstitution
Constitution .
omitted); id.
omitted);
official imposition of severe pain or pressure for purposes of
does not countenance the official
.
interrogatioa This is true whether tie
interrogation.
the protection is found in the Self-incrimination
Self-Incrimination Clause, the ~
Due Process Clause,
Clause, or
orboth.").
both."). At
At least
least five
five Justices,
Justices, however,
however,
broader guarantees of the Due
,
of the due process inquiry required that the i
rejected that proposition; the context-specific nature of
standard remain whether an interrogation is conscience-shocking. See
See id.
id.atat774-16
774-76(Thomas,
(Thomas,J.;
joined by Rehnquist, C.J., and Scalia, J.);
id.
at
779
(Souter,
J.,
concurring
in
the
judgment,
J.); id. at 179 (Souter, J., concurring in the judgment,
joined by Breyer, 1.).
J.).
tThe The CIA program is much less invasive and extreme
the conduct
eA.-treme than
tha.'l much of
ofthe
conductthat
that the
the
generally
Supreme Court has held to raise substantive due process concerns, conduct that has generally
Rochiri)ororthe
theinfliction
inflictionot:of,ororindifference
indifferenceto,to,
involved significant bodily intrusion (as in Rochin)
extreme
pain
and
suffering
(as
in
Williams
and
Chavez).
As
Judge
Posner
of the
Seventh
Circuit
eA.1rerne pain and suffering (as in Williams and Chavez). As Judge Posner ofthe
Seventh
Circui~

35

p

•

n ....·1

~.

I

Co

I':)

VV..J

(FRl)J:ll

20 2C07

15:'2/ST.15:10/NO. 6160~2"777 ?

bounds of substantive
has observed, the threshold defining police interrogations that exceed the bounds
find so
due process is a "high" one,
one, which
which requires
requires "misconduct
"misconduct that
that aa reasonable
reasonableperson
personwould
wouldfind
so ,
as to
to shock
shock the
the conscience,
conscience, and
and that
that isis calculated
calculated to
to •
beyond the norm of proper police procedure as
induce not merely momentary fear or anxiety,
anxiety, but
but severe
severe mental
mental suffering."
suffering." Wilkins,
Wilfdns,872
872F.2d
F.2d
at 195.
195. In contrast, and as discussed in
in detail
detail below,
below, the
theenhanced
enhanced interrogation
interrogation techniques
techniques at
at .
rise to
issue here, ifapplied
if applied by the CIA in
in the
the manner
manner described in
in this
this memorandum,
memorandum, do
do not
notrise
tothat:
thatconduct. The interrogators
interrogators in
in Williams
Williamschose
choseweapons--clubs,
weapons—clubs,butts
buttso{of
level of brutal and severe conduct.
cords—designed to inflict severe pain.
pain. While
While some
some of
ofthe
the techniques
techniques discussed
discussed hereir}
herein
guns, sash cords-designed
will involve the use
use of
of such
such weapons
weapons or
orthe
the purposeful
purposeful !;
involve physical
phy~ical contact, none of them wilJ
the CIA,
CIA,none
noneof
ofthese
thesetechniques
techniquesinvolves
involvesthe
the
infliction ofextreme
of extreme pain.
pain. As proposed by the
.
to efforts
efforts to
to "wring
"wring confessions
confessions from
from 1
indiscriminate infliction of pain and suffering, or amounts to
violence." Williams,
Williams,341
341U.S.
U.S.atat101-02.
101-02.
the accused by force and violence."
Moreover, the government interest at issue
issue in
ineach
eachof
ofthe
thecases
casesdiscussed
discussedabove
abovewas
wasthe
thei
enforcement29
different from
what
general interest in law enforcement.
29 That government interest is strikingly different
from what!
of the CIA program:
program: The
The protection
protection ofthe
of the United
United States
States and
and its
its
is at stake in the context ofthe
that, as
as experience proves,
proves, may
may result in
in massive
massive civilian
interests against terrorist attacks that,
Chavez
casualties. Deriving an absolute standard ofconduct
of conduct divorcedfrom
from context, as Chavez
not the
the established application of the
the "shocks
"shocks the
the conscience"
conscience" test.
test. Although
Although
demonstrates, is not
the techniques
techniques that
that we
weconsider
considerherein.
herein,neither
neither does~
does;
none ofthe above cases expressly condones the
of them arise in the special context of
protecting the
any ofthem
ofprotecting
the Nationfrom
from armed attack by a foreign :
enemy, and thus collectively they
they do
do not
not provide
provideevidence
evidenceof
ofan
anexecutive
executivetradition
traditiondirectly
directly
.
enemy.
we consider
consider here?O
here.30
.
applicable to the techniques we
UnitedStates
SlatesMilitary
MilitaryDoctrine.
Doctrine.TheThe
United
States
Army
codified
procedures
United
United
States
Army
hashas
codified
procedures
forfor
2006,the
the
ArmyFieldManual.
FieldManual. On
OnSeptember
September6,6,2006,
military intelligence interrogations in the Army
;

~

29
:8 Williams
which
makes!
Williamswas
wasan
anexample
exampleofofaaprosecution
prosecutionunder
under whatisisnow
nowcodified
codifiedasas1818U.S.C.
TJ.S.C.§ 242,
§ 242,
which
makes
the constitutional rights
while acting
acting undec
tindercolor
colorof
oflaw.
law. Prosecutions
Prosecutions
it a criminal offense to violate the
rights of another while
242 for
for police
policebeatings
beatingsand
andinterrogations
interrogationsinvolving
involvingthe
dieexcessive
excessivense
useofforce,
of force,but.
but
have been brought under section 242
courts
have focused
focused on
on whether
whetherthe
the violent
violent actions
actionswere
werejustified.
justified. To
Tothis
thisend,
end,
c:ou.~ applying section 242 consistently have
jury instructions for section 242 prosecutions ask the
thejury
jury to
to d~ide
decide whether
whether the
thevictim
victim was
was
federal pattern
paUemjury
withoutjustification."Eleventh
EleventhCircuit
Circuit ;
"physically assaulted, intimidated, or otherwise
otheIVvise abused intentionally and withoutjustification....
(2003). Courts of appeals,
appeals, particularl)'
particularly after
after the
the Supreme
Supreme Court's
Court's clarification
clarification of
of the
the
Pattern Jury Instruction 8 (2003).
"shocks the conscience'"
conscience" standard in Lewis,
Lewis,have
haverepeatedly
repeatedlyturned
turnedtotowhether
whetherthe
theconduct
conductcould
couldbebejustified
justifiedbybya a
Cityofoflittle
Little
Rock,
F.3d
1998).
legitimate government interest Rogers
Rogers v.v.City
Rock,
152152
F.3d
790,790,797-98
797·98 (8th(8th
Cir.Cir.
1998).
30
30

In the oonte>..1.
context of detention for ordinary
ordinary criminal law
law enforcement
enforcement purposes,
purposes,as
aswell
wellas
aspursuant
pursuanttotocivil
civil(;
dueprocess
processstandards
standardsrequire
require"safe
"safeconditions,"
conditions,"includirig
including
commitment, the Supreme Court has held that substantive due
shelter, clothing, and medical care." Youngberg
Youngbergv.v.Romeo,
Romeo,
(1982).
failure
457457
U.S.U.S.
307,307,315
315 (1982).
TheThe
failure
to to
"adequate food, shetter,
provide sw:h
such minimum treabnent,
treatment, in most circumstances, would presumably "shock the
the conscience."
conscience.'' The Court b3s
has
manner, targeted at;
at;
not considered whether the government could departfrom
from this general requirement in a limited marmer,
protecting the Nation from prospective terrorist attack.
attack. Nevertheless,
Nevertheless, it is
is informative
informative that
thatboth
both the
meconditions
conditionsof
of
facilities, see
seeMemorandum
Memorandumfor
forJohn
JohnAA.Rizzo,
Rizzo,Acting
ActingGeneral
GeneralCowtSe1,
Counsel,Central
CentralIntelligence
Intelligence i;
confinement at CIA facilities,
from Steven G.
G. BradoW)',
Bradbury, Acting
Acting Assistant
Assistant Attorney
Attorney General,
General, Office
Office of
ofLegal
Legal Counsel,App/ication
Counsel, Applicationofofthe
the
Agency, from
Detainee
TreatmentAct
ActtotoConditions
Conditions
of Confinement
at Central
Intelligence
Agency
Detention
Facilities
Detainee Treatment
ofCo1ljinement
ot Central
Intelligence
Agency
Detention
Facilities
at 8 (Aug.at 8 (Aug.
31,2006),
herein, see
see irifra
infraatat70-72,
70-72,compi}'
cornpiywith
withthe
the"safe
"safeconditions'!
conditions';
31,
2006), and the interrogation techniques considered herein,
.
standard.

36

:<

FRO~

SITE 15

DOJ
(FRI).JU!.

20

.

2007

~5:f2/ST. lS:10/NO. 6i6C429777

of Defense issued a revised Army FieldManual2-22.3
Field Manual 2-22.3on
onHuman
HumanIntelligence
Intelligence
Department ofDefense
version, like
like its
its predecessor
predecessor Army
ArmyField
FieldManual
34-52,lists
lists ;
Collection Operations. This revised version,
ManuaI3~52,
and emotional tactics.
tactics. In
a variety of interrogation techniques that generally involve only verbal and
interrogator might exploit the love
"emotional love approach," for example, the .interrogator
the "emotionallove
(ove a detainee
this emotion to
to motivate the
the detainee
detainee to
to cooperate.
cooperate. Army
Army
feels for his fellow soldiers, and use this
at 8-9. The interrogator is advised
advised to
to be "extremely
"extremely careful that he
he does
does
FieldManual
Field Manual 2-22.3, at
threat might
might be
be aa violation
violation ofthe
of the [Uniform
[Uniform
not threaten or coerce a source," as "conveying a threat
Code ofMilitary
of Military Justice]."
FieldManuallimits
limitsinterrogations
interrogationstotoexpressly
expresslyapproved
approved
JusticeJ." The
The Army
Army FieldManual
Code
policy,
also
explicitly
prohibits
eight
techniques
and,
as
a
matter
of
Department
of
Defense
techniques an4. as a matter ofDepartment ofDefense policy, also explicitly prohibits eight
techniques: "(1)
Forcing the
the detainee
detainee to
to be
be naked,
naked, perform
perform sexual
sexual acts,
acts, or
or pose
pose in
in aa sexual
sexual
"(1) Forcing
techniques:
the head
head of
of aa detainee,
detainee, using
using duct
duct tape
tape over
over the
the eyes;
eyes;
manner; (2)
(2) Placing
hoods or
or sacks
sacks over
over the
manner;
Placing hoods
of physical pain;
(3) Applying beatings, electric shock, bums, or other forms
forms ofphysical
(4) 'Waterboarding;' (5) Using military working dogs;
dogs; (6) Inducing hypothermia or heat injury;
injury: ,
the detainee
detainee of necessary food,
food, water or medical
medical f
(7) Conducting mock executions; (8) Depriving the
Jd. at 5-20. The prior Army FieldManual
care." Id.
Field Manualalso
alsoprohibited
prohibitedother
othertechniques
techniquessuch
suchasas"food
"food ;
deprivation"
;
deprivation'* and «abnormal
"abnormal sleep deprivation."
the Army
ArmyField
FieldManual
aredifferent
different from
fromand!
and
Manual are
The eighteen approved techniques listed in the
here. The techniques proposed by the CIA are not 1
less stressful than those under consideration here.
exploitative of
of feelings. They do involve physical contact and the imposition of
of
strictly verbal or explOitative
physical sensations such as fatigue. The revised Army
ArmyField
FieldManual,
andthe
theprior
priormanual,
manual,thus
thus,
Manual, and
of contrary executive practice for
for military interrogations!
interrogations
would appear to provide some evidence ofcontrary
While
of the six enhanced techniques proposed by the
the CIA
CIA is
is expressly prohibited under
'While none ofthe
of the proposed techniques—
the current Manual, two ofthe
t~hniques- "dietary manipulation" and "sleep
form by the prior Manual.
deprivation"-were
deprivation"—were prohibited in an unspecified form
Nevertheless, we do not believe
believe that
that the
theprior
priorAnny
ArmyFieldManual
FieldManualisisdispositive.
dispositiveevidence!
evidence;
"of traditional executive behavior [and]
[and] ofcontemporary
of contemporary practice"
practice" in the
the context
context of
of the
the CIA
CIA
"oftraditional
.
manual was
was designed
designed for
for traditional
traditional armed
armed conflicts,
conflicts,
program for several reasons.
reasons. The prior manual
particularly conflicts governed by the Third Geneva Convention, which provides extensive
protections for prisoners of war, including an express prohibition of
of all forms of
of coercion. See i
Army FieldMaflual
FieldManual 34-52,
34-52, at 1-7 to 1-8; see
seealso
alsoid.id.atativ-v
iv-v(requiring
(requiringinterrogations
interrogationstotocomply·
comply
Uniform Code ofMilitary
of Military Justice);
Justice); GPW
GPW Art.
Art. 17.
17. With ;
with the Geneva Conventions and the Vnifono
respect to these traditional conflicts, the prior manual provided standards to be administered
.
the identity,
identity, value,
value, or status
status of
of the
the detainee.
detainee, ;
generally by military personnel without regard to the
By contrast, at
al Qaeda terrorists subject to the CIA program 'will
will be
be unlawful enemy
enemy combatants;
combatants,not prisoners ofwar.
'
of war. Even within this class ofunlawful
of unlawful combatants, the program will be
administered only by trained and experienced interrogators who
who in turn wilJ
will apply the techniqu~s
techniques
only to a subset of
of high value detainees.
detainees. Thus, the
theprior
prior manual
manual directed
directed at
at executing
executinggeneral
general
obligations of
of all military personnel that would arise in traditional armed conflicts between
.
uniformed armies is not controlling evidence of how high value, unlawful enemy combatants i
should be t
reated..
;
treated.
j

i
!

In contrast, the revi
sed Army
Army Field
Manual was
revised
FieldManual
waswritten
writtenwith
withananexplicit
explicitunderstanding
understanding
that it would govern how our Armed Forces would treat unlawful enemy combatants captured in
10
required before the Manual's publication. The revised Army -l
the present conflict, as the DTA req~ired

37

P

2

.. __ ..,

~.,

'"'

. ...,

uu"

<FR I) .:Ut..

20

20C7

; 1>: 13/ST. 15: 13/NO. 51 e04Z977e

I
!

Field
Manual authorizes
authorizes an
an additional
additional interrogation
interrogation technique
technique for
for persons
persons who
who are
are unlawful
unlawful
FieldManual
combatants and who are "likely to possess important intelligence."
intelligence," See Army
Field
Army FieldManual
Manual2222.3, Appendix,M.
certaiq
AppendixM This appendix reinforces the traditional executive understanding that certain
interrogation techniques are appropriate for unlawful enemy combatants that should not be used:
used;
with prisoners of war.
.•.

Field Manualcannot
cannotbe
bedescribed
describedasas• 3firmly
firmlyrooted
rootedtradition,
tradition,baVingj
having
The revised Army FieldMtmJlal
been published only in September 2006. More significantly, the revised Army
FieldManual
Manualwas
was
Anny Field
the basis
basis ofanother
of another
approved by knowledgeable high level Executive Branch officials on the
well—that there has been a CIA interrogation program for high value terroristS
terrorist:
understanding as well-that
who possess information that could help protect the Nation from another catastrophic terrorist
attack.31 Accordingly, policymakers could prohibit certain interrogation techniquesfrom
general
attack?l
from gener~l
use on those in military custody 'because
becausethey
theyhad
hadthe
theoption
optionoftransferring
of transferringaahigh
highvalue
valuedetainee
detainee
to CIA
That understanding-that
understanding—that the military operates in a different
different tradition
tradition of
of
CIA custody. That
executive action,
action, and
and more
more broadly—is
established by the
the text
text ofthe
of thebTA
DTAitself.
itself. The
TheDT
DTA
executive
broadly-is established
A
Defense not
requires that those in the "custody or effective control" ofthe Department of
ofDefense
not be
be
"subject to any treatment
treatment or
or technique of
of interrogation not authorized
the U.S.
U.S.
"subject
authorized by or
or listed
listed in
in the
on Intelligence Interrogation." DTA
DTA §§ 1402(a);
1402(a); see
seealso
alsoidid §§1406.
1406.By
By
Army Field Manual on
contrast, the DT
DTA
the custody of the
A does not apply this Field Manual requirement to those in the
CIA, and requires only that the CIA
CIAtreat
treat its
itsdetainees
detainees in
inaa manner
mannerconsistent
consistent with
with the
the
herein. DTA
DTA §§ 1403.
1403. Accordingly,
Accordingly, neither the
the
constitutional standards we have discussed herein.
FieldManual nor
nor its
its prior
prior iterations
iterations provide
provide controUing
controlling evidence
evidence of
of executive
executive
revised Army FieldManual
practice for the CIA in interrogating unlawful enemy combatants who possess high value
information that would prevent terrorist attacks on American civilians.
I

I
I
I

State Department
DepartmentReports.
Reports.Each
Each
year,
State
Department's
Country
Reports
State
year,
in in
thethe
State
Department's
Country
Reports
onon I'
Human Rights Practices, the United States condemns torture and other coercive interrogation
techniques empJoyed
employed by other countries.
countries. In discussing Indonesia, for example, the reports list as
4s
"[psychological
no specinc
specific
<&[p
]sychological torture" conduct that involves "food and sleep deprivation," but give no
involve. In discussing Egypt,
Egypt, the reports list, as
information as to what these techniques involve.
I'
"methods of
oftorture,"
..stripping and
and blindfolding
blindfolding victims;
victims; suspending
suspending victims
victimsfrom
from a ceiling or
torture," "stripping
See I
doorframe with feet just touching the floor; [and]
[and] beating victims [with various objects]." See
also,
e.g.,
Iran
(classifying
sleep
deprivation
as
either
torture
01
severe
prisoner
abuse);
Syria
also, e.g., Iran (classifying sleep deprivation as either torture or severe prisoner abuse); Syria
"ill-treatment").
(discussing sleep deprivation as either torture or "ill-treatment").
I

I

I

These reports, however, do not provide controlling evidence that the CIA interrogation
program "shocks the contemporary,
contemporary conscience." As an
an initial
initial matter,
matter, the
the State
StateDepartment
Department haS
has
conclusions; but instead they are publid,
public
informed us that these reports are not meant to be legal conclusions;
diplomatic statements designed to encourage foreign governments to alter their policies in a !
interests. In
Li any event, the condemned techniques
techniques are
are i
manner that would serve United States interests.
of a course of conduct that involves other, more severe techniques,
techniques, and appears to
to ~
be'
often part of
I

revl

31
31 We do
do not
not mean
mean to
to suggest
suggest that
that every
every military
military officer
officer who
who participated
participated in
inthe
thecomposition
compositionof
ofthe
the revised
Army FieldManual
Field Manualwas
wasaware
awareof
ofthe
theCIA
CIAprogram
program. The
Thesenior
seniorDepartment
Departmentof
ofDefense
Defenseofficials
officials who
whoapproved
approvedthh
the
aware of
of the
the CIA
CIA program's
program's existence.
existence.
manual, however, had the proper clearances and were aware
1

.

I
j

38

I

p

~HO~

SITE

i5

OOJ

(FR\}JUL

20 2007

15:i$/ST, 15:13/NO.151l10"2,,778

fori

f

I

undertaken in ways that bear no
no resemblance to
to the
the CIA
CIA interrogation
interrogationprogram.
program. The
Thereasons
reasons for
the 'condemned
condemned conduct as described by the.State
the State D~artment,
Department, for
for e~le,
example,have
haveno
no relationship
relationship
with the CIA's efforts to prevent catastrophic terronst
attacks. In Llbena
Liberia and
and Rwanda,
Rwanda, these
these .
terrorist attacks.
tactics were used
I
used to
to target
target critics
critics ofthe
of the government;
government; Indonesian
Indonesiansecurity
security forces
forces used
used their
their
techniques to obtain confessions for criminal law enforcement, to
to punish,
punish, and to
to extort money;
money; I'
Egypt "employ[
ed] torture to extract information, coerce opposition figures to cease their
"employed]
political activities, and to deter others from similar activities,"
i
activities."

The commitment ofthe
of the United States to
to condemning torture,
torture, the indiscriminate use
use of
of
force, physical retaliation against political opponents, and coercion ofconfessions
of confessions in ordinaryordinarycriminal cases is not inconsistent with the CIA's proposed interrogation practices. The CIA's
ensure that
that enhanced
enhanced techniques
techniques are
are used
used in
in the
thevery
veryfew
few
!
screening procedures seek to ensure
United
of terrorists who are believed to possess intelligence of
interrogations ofterrorists
of critical value to the United
States. The
will use
use enhanced techniques only to
to the
the extent needed to obtain this
Th~ CIA will
take care
care to
to avoid
avoid inflicting
inflicting severe
severepain
painor
or suffering
suffering
exceptionally important information and will take
harm. The CIA
CIA program
program isis designed
designed to
to subject
subject detainees
detainees to
to no
no
or any lasting or unnecessary harm.
than isis justified
justified by
bythe
theGovernment's
Government'sparamount
paramountinterest
interestininprotecting
protectingthe
theUnited
United I
more duress than
attacks. In tbese
these essential respects,
respects, it fundamental1~
fundamentally
States and its interestsfrom
from further terrorist attacks_
the conduct condemned in the State Department reports.
reports.
differs from
from tbe

I

I

Decisions
byForeign
ForeignTribunals.
Tribunals.
Two
foreign
tribunals
have
addressed
interrogation
Decisions hy
Two
foreign
tribunals
have
addressed
interrogation
practices that arguably resemble some at issue bere.
here. In
In one
one ofthe
of the cases, the question in fact was
is linguistically similar to
to the
the "crue~
"cruel,
whether certain interrogation practices met
metaa standard that is
inhuman, or degrading treatment" standard in Article 16
16 oftbe
of the CAT.
CAT. These
These tribunals,
tribunals, of
of course'.
course,
inhuma.n,
of the DTA, for the DTA specifical1~
specifically
not apply a standard with any direct relationship to that ofthe
did not
defines "cruel.
"cruel, inhuman, or degrading treatment or punishment" by reference to the established i
standards ofUnited
of United States law. The Senate's reservation to Article 16, incorporated into the
DTA, was specifically designed to adopt a discemabJe
discernable standard based on the United States
i
Constitution, in marked contrast to Article 16's treaty standard, which could have been subject to
the decisions of foreign governments or international tribunals applying otherwise open-ended I'
terms such as "cruel,
"cruel, inhuman or degrading
degrading treatment or punishment.·'
punishment." The essence of the
simpliciter—zsopposed
opposedtotothe
themeaning
meaninggiven
givenit it
Senate's reservation is that Article 16's standard simpliciter-as
by the Senate reservation-is
reservation—is not controlling under United States law.
;

I

I

II

question, therefore, isis whether these
these cases
cases have
have any relevance to
to the
the
The threshold question,
of the Fifth Amendment.
Amendment. The
The Supreme Court has
has not
not looked
looked to
to foreign
foreign or
or
interpretation ofthe
international court decisions in determining whether conduetshocks
conduct shocks the conscience within the
meaning ofthe
Fifth
Amendment.
More
broadly,
using
of the
broadly, using foreign law
law to
to interpret the
the United
United Stat~s
States
Constitution remains a subject of
U.S.
551,
of intense debate.
debate. See
See Roper
Roperv.v.Simmons,
Simmons,543
543
U.S.
551,578
578 j
(2005);
(Scalia, J.,
J., dissenting);
dissenting);Atkins
Atkinsv.v.Virginia,
Virginia,
536
U.S.
304, 316
n.21
(2002);
(2005); id at 622-28 (Scalia,
536
U.S,
304,316
n.21
(2002);
C. J., dissent~ng).When
dissenting). When interpreting
interpreting the
the Constitution,
Constitution, we
we believe
believe that
that wei
we
id at 322 (Rehnquist, C.J.,
United States sources.
sources. See,
See, e.g.,
eg., Address
Addressofthe
of theAttorney
AttorneyGenerrl
General
must lookfirst
first and foremost to Urnted
at the
the University ofChicago
of Chicago Law School (Nov. 9,2005)
who seek
seek to
to enshrine
enshrine foreign
foreign "
at
9, 2005) ("Those who
law in our Constitution through the courts therefore bear a heavy burden."). This focus is
.
particularly important here because the Sepate's
Senate's reservation to Article 16
16 was
was designed to

I

I
39

P

F~OM

SIT: IS

DOJ
(FRI)JUL

20 2007

i5:13/ST.1S:13/NO.61eO~2G77£ p

,

provide a discemable and familiar domestic
domestic legal
legal standard
standard that
that would
would be
be insulated
insulated from
from the
the
impressions offoreign
of foreign tribunals or governments on the meaning of
of Article 16's vague language.
impression~

II.
I

We recognize, however, the possibility tbat
that members ofa
of a court might look to foreign
of such legal reasonin~
reasoning
decisions in the Fifth Amendment context, given the increasing incidence ofsuch
of the Supreme Court. Some judges might regard the decisions of foreign or
in decisions ofthe
I
of
international courts, under arguably analogous circumstances, to provide evidence of
contemporary standards ~nder
under the Fifth Amendment. While we do not endorse this practice, wej
we
.conternporary
find it nonetheless appropriate to consider whether the two decisions in question shed any light I
upon whether the interrogation techniques at issue here would shock the conscience.
!

I

I

We coaclude
conclude that the relevant decisions offureign
of foreign and in_ional
international tribunals are
appropriately distinguished on their face from the legal issue presented by the CIA's proposed I
v. United Kingdom,
Kingdom, 22EHRR
EHRR25
25(1980),
(1980),the
the European
EuropeanCourt.ofHuman
Court of Human
techniques. In Ireland
Ireland v.
("ECHR") addressed five methods used by the United Kingdom to interrogate members
Rights ("ECIPt")
of
the Irish Republican Army: requiring detainees to remain for several hours "spreadeagled
o~the
apar t
against the wall,
wal~ with their fingers put high above the head against the wall, the legs spread apart
and the feet back, causing them to stand on their toes with the weight of
of the body mainly on the
fingers"; covering the detainee's head with a dark hood throughout the interrogation; exposing
the detainee to a continuous loud and hissing noise for a prolonged period; depriving the detain~
detainee
detainee[] to
to a reduced diet during their stay" at the detention
of sleep; and "subjecting the detaineeQ
of
Id at 1196.
^ 96. The ECHR did not indicate the length ofthe
of the periods ofsleep
of sleep deprivation o;
facility. ld
or
the extent to whi~h
which the detainee's
detainee's diets were modified. Id
% 104. The
TheECHR
ECHRheld
heldthat,
that,"in
"in I
the
Id. at 11104.
combination," these techniques were "inhuman and degrading treatment," in part because they i
"arous[ed
of fear, anguish, and inferiority
inferiority capable of
of humiliating and I
"ar9us[ed in the detainees] feelings offear,
% 167.
debasing them and possibly breaking their physical or moral resistance."
resistance." Jd
Id. at
at 11167.
l

I
i

I

I

I

The CIA does not propose to use all ofthe
of the techr.iques
techniques that the ECHR.
ECHR addressed. With
common—extended sleep deprivation and dietary
regard to the two techniques potentially in common-ex-tended
manipulation—the ECHR did not expressly consider or make any findings as to
to any Safeguardsl
safeguards
manipulation-the
report,
that accompanied the United Kingdom's interrogation techniques. A United Kingdom repoIt,
officials i!1
in 1972 had
released separately from the ECHR litigation, indicated that British officials
recommended additional safeguards for the sleep deprivation techniques such as the presence of
of
recomme~ded
that are now part ofthe
of the CIA program. See
and monitoring by a physician similar to procedures that
Seel
72-75. The ECHR decision, however, reviewed those interrogation techniques before
infra at 72·75.
recommendations were implemented, and therefore, there is some evidence that
that the
such reco~endations
safeguards similar
techniques considered by the ECHR were not accompanied by procedures
proCedures and safeguar4s
to those that will be applied in the CIA program.
I

I

i

More importantly, the ECHR made no inquiry into whether any governmental interest

I

might have reasonably justified
justified the conduct afissue
at issue in that case-which
case—which is the legal standard that

theDTA
CIA's
of such .in
an
DrA requires in evaluating the CIA
'5 proposed interrogation techniques. The lack of
the
bearp
inquiry reflects the fact that the ECHR's definition of "inhuman and degrading treatment" bear~
little resemblance to the U.S. constitutional principles incorporated under the DTA. The ECHR.
ECHL
gulf not only in the Ireland
itself, but also
also in other ECHR.
ECHR decisions
decisions
has demonstrated this gulf
Ireland case itself,
of the co":cept
concept that goes far beyond how coons
courts in the
that reveal an expansive understanding ofthe

I

40

FROM

'.'

SIT~

15

OOJ
<FR1)JUL

2(;

2007

15:14/ST. 15:1:l/NO. 61604210778

our Constitution.
Constitution. For example,
example, the
the ECHR
ECHR has
has held
held that
that the
the 50soUnited States have interpreted our
called "death row effect"-the
effect"—the years ofdelay between
betWeen the imposition of
ofa death
4eath sentence and its
execution arisingfrom
the petitioner's pursuit ofhis
of his judicial remedies-itselfconstitutes
remedies—itself constitutes
fi:om the'petitioner's
Soeringv.v.United
UnitedStates,
Slates,1111Eur.
Eur.Ct.Ct.
H.R.
"inhuman or degrading treatment or punishment." See
See Soering
H.Rt.
439 (1989)!
Court, by
by contrast.
contrast, has
has routinely refused to entertain such claims,
claims, and
(1989): The Supreme Court,
them to have
have merit.
merit. See,
See, e.g.,
e.g.,~y
Lackeyv. v.Te:ras.
Texas,
514
U.S.
lower federal courts have not found them
514
U.S.
over a dissent by
1045 (1995) (denying certiorari to review a decision rejecting such a claim ov.er
Justice Stevens); Allen
Allen v.v. Ornoski.
Ontostd,435
435
F.3d
946,959
(9th
Cir.
2006)
(The
petitioner
"cannot
F.3d
946.
959 (9th
Cir.
2006)
(The
petitioner
"cannot
credibly
argue
that
the
evolving
standards
of
decency
that
mark
the
progress
of
a
maturing
credibly argue tbat the evolving standards of decency that
the progress of a maturing
society, as evidenced by
by the decisions of state and federal courts, are moving toward recognition
of
the validity
validity ofLackey
The ECHR
ECHR also
also has
has read
read the
the European
European Convention
Convention to
to grant
grant j
ofthe
of Lackey claims.").
claims."). The
that court
to scrutinize
prison conditions.
conditions. For
For example,
example, the
the EelIR
ECHR has
has concluded
concluded that
that itit
that
court authority
authority to
scrutinize prison
is
inhuman
and
degrading
to
confine
two
persons
to
one
cell
with
only
one
exposed
toilet
is inhuman an.d degrading to confine two persons to one cell with only one exposed toilet
them. Melnik
v. Ukraine,
Ukraine,ECHR
ECHR722286/01
722286/01(2006).
(2006).Amid
Amidsueh
suchexpansive
expansivedecisions,
decisions, .
between
between them.
Melnik v.
the
ECHR
might
well
regard
the
proposed
enhanced
interrogation
techniques,
or
even
the .
th~ ECHR might wel~ regard tJ:e proposed e~hanced inte~ogation tec~iques, or even the
existence
of the CIA
eXIstence ofthe
CIA interrogation
mterrogabon program
program itself,
Itself: to
to constitute
constItute "cruel,
"cruel; inhuman,
Inhuman, or
or degrading"
degradmg"
treatment
under
the
standards
incorporated
in
the
European
Convention.
Yet
we
do
not regard
regard
treatment under the standards incorporated in the European Convention. Yet we do not
the
ECHR's
interpretation
of
its
own
European
Convention
human
rights
standards
to
constitute
the ECHR's interpretation ofits own European Convention human rights standards to constitut~
persuasive
to whether
whether the
the CIA
CIA techniques
techniques in
in question
question here
here would
would violate
violate the
the Fifth
Fifth i
persuasive evidence
evidence as
as to
Amendment,
and
thus
the
DTA.
Amendment, and thus the DTA:

I

I

I
I

I

The Supreme Court of Israel's review of
of interrogation techniques in Public
Public Committee
Committee
Against Torture
Israel,HeJ
HCJ5100/94
5100/94(1999),
(1999),similarly
similarlyturned
turned
upon
foreignlegal
legalissues
issues
Torture v.v.Israel.
upon
foreign
notnot .
relevant here.
here. There, the Israeli court held that Israel's General Security Service ("GSS") was
not legally authorized to employ certain interrogation methods with persons suspected ofterro~st
of terrorist
activity—including shaking the torso ofthe
of the detainee, depriving the detainee of
sleep, and forcirt,8
forcing
activity-including
ofsleep,
the detainee to remain in a variety of stress positions.
The
court
reached
that
conclusion,
positions.
however, because it found that the GSS
i
GSS only
only had
had the
the authority
authority to
to engage
engage in
in interrogations
interrogations
specifically authorized by Israeli domestic statute and
and that,
that, under
under the
the then
then "existing
"existing state
state oflaw',"
of law1,"
id
36, the
the OSS
GSS was
was "subject
"subject to
tothe
thesame
samerestrictions
restrictionsapplicable"
applicable"to
to..the
"theordinary
ordinarypolice
police
iei. at 36,
1
investigator," id at 29. See
nostatute
statutethat
thatgrants
grantsGSS
GSSinvestigator~
investigators special
special
investigator."
See id ("There isis no
I
interrogating powers that are
are different or more
more significant than
than those
those granted
granted the
the police
police
I
investigator.").
GSS was
was permitted
permitted only
only to
to "'examine
'"examine orally
orallyany
anypersons
persons
investigator:'). Under that law, the GSS
and circumstances ofany
of any offense'"
offense'" and to reduce their
supposed to be acquainted with the facts and
theil'
did not permit the
the "physical means"
means" of
of interrogation
interrogation
responses to writing, and thus the statute did
GSS. lei.
Id at 19 (citing
(citing the
the Israeli
Israeli Criminal
Criminal Procedure
Procedure Statute
Statute Art.
Art. 2(1)
2(1))
undertaken by the OSS.
I
(emphasis added). At the same time, the Israeli
Israeli court specifically held
held open whether the
the . [
legislature could authorize such techniques by statute, id at
at 35·36,
35-36, and
and determined that
that itit was
was not
not
when
appropriate in that case to consider special interrogation methods that might be authorized wheh
32
necessary to
to save
save human
human life,
life, id
id at
at 32.
necessary
32.

I

i

,
I

!

.1

.,
\

.,

1

I

,

'1

32
32 The
The Israeli
Israeli court
court recognized
recognized that
that Israel
Israel had
had undmakcn
undertaken aa treaty
treaty obligation
obligation to
torefrain
refrain from
from auel,
cruel, inh
inthurman,

or degrading treatment.
HeI
5100194
at 23,
butbut
the the
CX)urt
specifically
grounded
treatment, Public
Public Committee
CommitteeAgolnsf
AgainstTorture,
Torture,
HCJ
5100/94
at 23,
court
specifically
grounded
its holding not in its interpretation of any treaty,
treaty, but
but in
in Israeli
Israeli statuto,!,
statutory law.
law. Indeed,
Indeed, the
thecourt
courtrcco~~
recognized that
that the
the
legisIann
legislature could "grantO
"grantQ ass
GSS investigatoTS
investigators the authority to
to apply
applyph)'sical
physical force
force during
during the
the interrogation
interrogation of
of ~
suspects
id.atat35,
35,provided
providedonly
onlythat
thatthe
thelaw
law"befit[sl
"befit[sjthe
thevalues
values0Gof
suspected of
of involvement in hostile terrorist activities," id

i

41

P

F~OM

SI,: 15

DOJ

CFRI)JUL

2C·

2007

15:i4/ST. lS:13/NO. e;eO~~~778 1"

~

,

j

As we have explained above in finding
U.S. Supreme Court decisions
decisions to
to be
be
&
finding particular U.S.
the United States that interrogations perfunned
performed by intelligence
distinguishable, it is not the law in the
officers
by the CIA
CIA are
are subject
subject to
totbe
thesame
samerules
rulesas
as"regular
"regularpolice
police
officers for
for the purpose proposed by
r
29. Thus:
Thus, the
die Israeli
Israeli court
court addressed
addressed aa fundamentally
fundamentally different
different question
question
interrogation
s]." Id
interrogation[s).,"
Jd at 29.
sheds little light on
on the
the inquiry
inquiry before
before us.
us. Where
Wherethe
theIsraeJi
Israeli GSS
GSSlacked
lackedany
anyspecial
special 5tatuto&
statutory
that shed~
CIA is
is expressly
expressly authorized
authorized by
by statute
statute to
to "collect
"collect
authority with respect to interrogations, the CIA
intelligence through human sources and any other appropriate means"
means" and is expressly
I
distinguished
enforcement authorities.
authorities. 50
50 U.S.C.
U.S.C. §§ 403-4a(d)(1).
403-4a(d)(l). Indee4,
Indeed,
distinguishedfrom
from domestic
domestic law
law enforcement
beyond
the CIA's
general statutory
statutory authority
authority to
to conect
collect human
the Military
Military
beyond the
CIA's general
human intelligence,
intelligence, the
to
permit
the
CIA
interrogation
to go
Commissions
Act
itself
was
enacted
specifically
Commissions Act itselfwas enacted specifically to permit the CIA interrogation program
program to
go
forward.
See
infra
at
43-44.
Thus,
while
the
Israeli
court
rested
its
1999
decision
on
the
forward. See infra at 43-44. Thus, while the Israeli court rested its 1999 decision on the
I
to grant
grant t~e
the GSS
GSS anything
anything other
other than
than ordinary
ordinary police
police authority,
authority, we
we face
face a.
a
legislature's
failure to
legislature's failure
CIA
clearly authorized
authorized and
and justified
justified by
by legislative
legislative authority
authority separate
separate from
from
CIA interrogation
interrogation program
program clearly
law enforcement
enforcement investigations.
investigations. And
And the
the Israeli
Israeli
and beyond
those applicable
applicable to
to ordinary
ordinary law
and
beyond those
f
Supreme
Court
itself
subsequently
recognized
the
profound
differences
between
the
legal
Supreme Court itself subsequently recognized the profound differences between the legal
.
standards that
that govern
domestic law
enforcement and
and those
those that
that govern
govern armed
armed conflict
conflict with
with
standards
govern domestic
law enforcement
terrorist
organizations.
Compare
Public
Committee
Against
Torture
v.
Israel
(1999)
(stating
terrorist organizations. Compare Public Committee Against Torture \I. Israel (1999) (stating
iliat that
"there
is
no
room
for
balancing"
under
Israeli
domestic
law),
with
Public
Committee
Against
"there is no room for balancing" under Israeli domestic law), with Public Committee Against
Israelv.v.The
The
Government
of Israel,
769/02
(Dec.
2005),
22 (holding
TortureininIsrael
Torture
Government
ofIsrael,
HeJHCJ
769/02
(Dec.
1J. 11,
2005),
1i 22%(holding
that that
.
under
the law
law of
of armed
armed conflict
conflict applicable
applicable to
to aa conflict
conflict against
against aa terrorist
terrorist orgawzation.
organization, "human
"human
under the
rights
. . . but
to their
their full
full scope"
and emphasizing
emphasizing that
that such
such rights
rights must
must be
be
but not
not to
scope" and
rights are
are protected
protected ...
"balancefdj"
against
"military
needs").
"balance[d]" against "military needs").

I

I

I

I

I

i

I

Survival,
Evasion,Resistance.
Resistance,
Escape
("SERE")
Training.
Asnoted
we noted
Survival, evasion,
andand
Escape
("SERE")
Tr.aining.
As we
at theat the
of each ofthe
of the proposed techniques have been used before by the United States,
outset, variations ofeach
Stat6fi,
i
providing some evidence that they are, in some circumstances,
circumstances, consistent with executive
executive
tradition and practice. Each of the CIA's enhanced interrogation teclm.iques
techniques has been adapted t
. from
from military SERE training.
training, where techniques very
very much like
like these have
have long been used on our
own troops. Individuals undergoing SERE
training are
are obviously
obviously in
in aa very
very different
different 'situation
situation
,own
SE~ training
from
trainees know
know that
that the
the treatment
treatment they
they are
are
from detainees undergoing interrogation; SERE trainees
i
training program,
program, that
that itit win
will last
last only
only aa short
short time,
time, and
and that
that they
they will
will ~bt
not
experiencing is part of a training
~
be significantly harmed by the training.

I

We do not wish to understate the importance ofthese differences,
differences, or
ortbe
of the
the gravity of
psychological trauma that may accOmpany
accompany the relative uncertainty faced by the CIA's detainees.
On the other hand,
hand, the interrogation program we consider here
here relies
relies on techniques that have
have i
been deemed safe enough to use in the
the training
training ofour
of our own
own troops.
troops. We
We can
can draw
draw atat least
least one
one II
SERE training-use
training—use ofthe
of the techniques
techniques involved
involved in
in the
the CIA's
CIA's
. conclusionfrom
from the existence of
ofSERE
die similar techniquesfrom
interrogation program (or at least the
from which these have been adapted)
cannot be considered to be categorically
categoricallyinconsistent
inconsistentwith
with"traditional
"traditionalexecutive
executivebehavior"
behavior"and!
and
"contemporary
practice"
regardless
of
context.
"contemporary pmctice" regardless ofcon'ext.

I

'

•

;

I

thad

the State of Israel, is enacted for a proper purpose, and (infringes
[infringes the suspect's h'berty
liberty]J to
toan
anextent
extent no
nogreater
greater than
required," iid.
tf. atat37.
37.

42

FROM SITE

15

OOJ

(FRI)JUL

20

2007

lS:1'/ST.1S:13/NO.151S0~2977ep

"conte~porary

The
ofof
thethe
Military
Commissions
Act. Finally,
in considering
f
TheEnactment
Enactment
Military
Commissions
Act Finally,
in considering "contemporary
practice"
practice" and the ··standards
"standards ofblame
of blame generally applied to
to them,"
them," we
we consider
consider the
the context
context of
of the
the
recent debate over the Military Commissions Act, including the views of
of legislators who have .
the CIA
CIA program.
program. In Public
PublicCommiltee
Committee
Against
Torture,
5100/94,
been briefed on the
m:en
Against
Torture.
HCJHCJ
5100/94,
the the
Supreme Court observed that in a democracy.
democracy, it was
was for the political branches, and not th
Israeli 'Supreme
thi~
courts, to strike the
the appropriate balance
balance between security imperatives and humanitarian
courts,
,.
standards, and it invited the Israeli legislature to enact a statute specifically delimiting the
standards,
!
security service's authority "to apply physical force during the interrogation ofsuspeets
of suspects
suspected of involvement in hostile terrorist activities." Id
ld at 35. In the United States, Congress
in
the PresidenCs
President's invitation
invitation by
by passing
passing the
theMilitary
Military
in fact enacted such a statute, responding to the
Commissions Act to allow the CIA interrogation program to go forward. While the
the isolated I
of particular legislators are not dispositive as to
to whether specific interrogation
statements ofparticular
I'
techniques would shock the consci.ence
DTA, we
we properly may consider the Military J
conscience under the DTA,
Commissi~ns
Commissions Act, taken as a whole.
whole, in coming
coming to
to an
an understanding
understanding of
of "contemporary
"contemporary practice,
practice, j
and ofthe
of blame generally applied to them," and what Americans, through their I
of the standards of
to be
be acceptable
acceptableconduct
conduct by
by the
theexecutive
executive officials
officialsI
representatives in Congress, generally deem to
523U.S.
U.S.atat847
847n.8;
n.8;cf.cf.
Roper,
U.S.
charged with ensuring the national security. Lewis,
Lewis, 523
R'!per,
543543
U.S.
55.1551
laws to
to be
be relevant
relevant to
to contemporary
contemporary standards
standards
(2005) (finding the passage and repeal of state laws
(200S)
the Eighth
Eighth Amendme.nt);
Amendment); Atkins,
Atkins,536
536U.S.
U.S.304
304(same).
(same).
under the

I

I

I
I

I

The President
President inaugurated
inaugurated the
the political
political debate
debate over what would become the Military
Military
The
6, 2006, wherein he announced to the American
Commissions Act in his speech on September 6,2006,
of the CIA program,
the nature
nature ofthe
of the al
al Qaeda
Qaeda detainees
detainees who
who had
had been
people the existence ofthe
program, tbe
new
legislation
to
allow
the
program
to
"go
forward"
in the wak~
wake
interrogated,
and
the
need
for
interrogated.
new
of Hamdan.
As
the
President
later
explained:
"When
I
proposed
this
legislation,
I
explained
Hamdan.
explained;
I proposed this legislation, I explained that
would have
have one
one test for the bill Congress produced: Will it allow the CIA program ~o
to
I would
I
of the President Upon Signing the Military
continue? This bill meets that test." Remarks ofthe
'!
of 2006, East Room,
Room, White House
House (Oct.
(Oct. 17,2006).
17,2006). Senators
Senators crucial
crucial to
to its
its I
Commission Act of2006,
permit the CIA's program to continue. See
passage agreed that the statute must be structured to pennit
Se~
152 Cong.
Cong.Re<;.
Rec.S10354-02;
S10354-02, S10393
S10393(Sept.
(Sept.28,
28,2006)
(statement of
of Sen.
Sen. Graham)
Graham) ("Should
("Should we
we
152
2006) (statement
have a CIA
CIA program
program classified in
in nature
nature that would
would allow techniques not in the Army
Army Field
Field
Manual to get good intelligencefrom
high
value
targets?
The
answer
from
my
point
of
view is
from
targets? The
from my
ofview
yes, we
we should.");
should."); id.
id. at
at SS 10414
10414(statement
(statement ofSe~.
of Sen.McCain)
McCain)("[M]y
Q'{M\ycolleagues,
colleagues,have
have
yes.
nono
I
doubt—this legislation will allow the CIA to
to continue
continue interrogating prisoners within
within the
doubt-this
bill"). Representative Duncan Hunter, the leading sponsor of
boundaries established in the bill.").
of the
the House,
House, similarly
similarly described the
the legislation as
as ICleav[lng)
"leaving] the decisions as to
to the
the methods
methods
bill in the
of interrogation to the President and to the intelligence professionals at the CIA,
CIA. so that they may
mky
that, as
as the
thePresident
President explained,
explained, serves
serves to
to gather
gather the
the critical,'
critical
carry forward this vital program that,
attack." 152 I
intelligence necessary to protect the countryfrom
from another catastrophic terrorist attack."
Cong.
Rec.
H7938
(Sept.
29,2006).
The
Act
clarified
the
War
Crimes
Act
and
providedaa I
Congo Re<;. H7938 (Sept. 29, 2006). The Act clarified the War Crimes Act and provided
comprehensive
framework
for
interpreting
the
Geneva
Conventions
so
that
the
CIA
program I
comprehensive framework for interpreting the Geneva Conventions so that the CIA program
might go
go forward after Hamdan.
Hamdan..'
.

I

tJlat

I

I

Military Commissions
Commissions Act,
Act, to
to be
besure,
sure,did
didnot
notprohibit
prohibitor
orlicense
licensespecific
specific
The MiIil8Jy
techniques. As
As discussed above,
above, Members
Members of
of Congress
Congress on
on both sides
sides of
of the
the debate
debate
interrogation techniques.
different views as to the
the specific
specific interrogation
interrogation techniques that might or might
expressed widely different

43

FROM SITE.5

OOJ

statute. See supra
supraatatn.13.
n.13. Nonetheless,
Nonetheless,you
youhave
haveinformed
informedus
usthat
that f
not be permitted under the statute.
of the Military Commissions Act,
prior to passage ofthe
Act, several
several Members
Members of
ofCongress,
Congr~s, including
including the
the I
Committees and
and Senator McCain,
McCain, were
were I
full memberships of the House and Senate Intelligence Committees
CIA, on the six techniques that we discuss I
briefed by General Michael Hayden, Director ofthe
of the CIA,
be necessary
necessary to
to the
the CIA
CIA detention
detention and
andI
herein and that, General Hayden explained, would likely be
interrogation program should the legislation be enacted. In those classified and private
conversations, none of
the Members expressed the
the view
view that
that the
theCIA
CIAinterrogation
interrogation program
program
ofthe
the techniques
techniques at
at issue
issue were
were inappropriate.
inappropriate. Many
Many of
of those
those Members
Members !
should be stopped, or that the
thereafter were critical in ensuring the passage ofttle
of the legislation;
legislation^ making clear through their
thereafter
public statements and thi'ough
through their votes that they believed tbat
that a CIA program along the lines
General Hayden described could and should continue.

I
I

I

I

I

of the classified
the program, all of
Beyond those with specific knowledge ofthe
classified details of
ofthe
ofthe
the,
of media reports-some
reports—some accurate,
accurate,
who engaged in the legislative debate were aware ofm.edia
Members who.
some not-describing
not—describing the CIA interrogation program.
program. Those
Those media
media reports
reports suggested
suggested that the
the
United Siate~
States had used techniques including,
Unit~
includin~ and in some cases exceeding, the
th~ coerciveness of
.' the SIX
six techniques proposed here.
here. The President's request that Congress
Congress permIt
permit the
the CIA
CIA program
to "go forwar~:'
forward," and the carefuU~
carefully negotiated provisions of thebitl~
the bill, cl~ly
clearly prese~ted
presented Congress
to."go
with the questIon
question whether the Uruted
United States
States should operate a classIfied
classified II1terrogatlOn
interrogation program,
program, I;
WIth
ordinary
limited to high value detainees, employing techniques that exceeded those employed by ordinarly
officers and the United States military,
military, but that remained lawful under the anttanti
Jaw enforcement officers
. torture statute and the War Crimes Act. There can be
be little
little doubt
doubt tha~
that the
the subsequent
subsequent passage
passage of
of
the statute reflected an endorsement by both the
the President
President and
and Congress
Congress ofthe
of thepolitical
political brancht1s'
branches'
shared view that the CIA interrogation program was.
was consistent ,vith
with contemporary practice, and
and
therefore did not shock the conscience. We
We do
do not
not regard
regard this
this political
political endorsement
endorsement ofthe
of the cIA!
CIA
interrogation program to be conclusive on the constitutional question, but we do find that the r
passage of
of this
this legislation
legisla~ion provides
provides a relevant
relevant measure
measure of
of contemporary standards.

I

I

.i

I

*
It

*
*
'

*

I:

J'

Th~
The substantive due process analysis,
analysis, as
as always,
always, muSt
must remain highly sensitive to conte
contex .
We do
do not
not regard
regard anyone
any one of
of the
the contexts discussed here,
here, on
on its
its own,
own, to
to answer
answer the
the critical
critical
We
by trained
trained professionals ofthe
of the
question: What interrogation techniques are permissible
pennissible for use by
who operate
operate through
through aa diffuse
diffuse and
and
CIA in seeking to protect the Nation from foreign
foreign terrorists who
network of cells dedicated to launching catastrophic terrorist attacks
attacks on
on the
the
secret international nerv,.·ork
and allies?
allies? Nonetheless.
Nonetheless, we
we read
read the
the constitutional tradition
United States and its citizens and
reflected in the DTA to permit
drawn, extensively
pennit the United States to employ a narrowly drawn,.
carefully safeguarded interrogation program for high value terrorists that uses
monitored, and carefuily
enhanced techniques that do not inflict significant or lasting physical or mental harm.
D.

Applying these legal standards to the six proposed techniques used individually and in
•combination, we conclude that these techniques are consistent with the DTA
DTA.
·combination.

44

:' ~Vfl'l.

::;" I

f I:.

l!':t

OOJ

(FR')JUL

•

::0

:lOC?

15:1L/S~. 15:13/NO. 6160"'2977e

~
Dietary Manipulation.
limits
thethe
useuse
ofof
dietary
manipulation
to to
ensure
that
Manipulation.The
TheCIA
CIA
limits
dietary
manipulation
ensure
that I
Dietary
: ru~es ensure that the detainee I
detainees
subject
to
it
suffer
no
adverse
health
effects.
The
CIA's
detainees subject to it suffer no adverse health effects. The CIA s rules ensure that the detainee
receives
per day
receives 1000
1000 kCd
kCal per
day as
as an
an absolute
absolute minimum,
minimum, "level
a levelthat
that isisequivalent
equivalent to
to aawide
widerange
rangeof
of
commercial
weight
loss
programs.
Medical
personnel
closely
monitor
the
detainee
during
commercial weight loss programs. Medical personnel closely monitor the detainee during the
the I
application of
ofthis
is terminated
terminated at
at t~e
the prompting
prompting of
of medical
medical
application
this technique,
technique, and
and the
the technique
technique is
personnel
or
iftbe
detainee
loses
more
than
ten
percent
ofhis
body
weight.
While
may
personnel or if the detainee loses more than ten percent of his body weight. While the
the diet
diet may
be
unappealing,
it
exposes
the
detainee
to
no
appreciable
risk
ofphysica1
harm.
We
underst2J1d
be unappealing, it exposes the detainee to no appreciableriskof physical harm. We understand
from
from the
the CIA
CIA that
that this
this technique
technique has
has proven
proveneffective,
effective, especially
especially with
with detainees
detainees who
who have
haveaa !
particular appreciation
particular
appreciation for
for food.
food. In
In light
light ofthese
of these safeguards
safeguards and
and the
the technique's
technique's effectiveness,
effectiveness,
the
use ofthis
technique does
does not
A.
the CIA's
CIA's use
of this technique
not violate
violate the
the DT
DTA.
Corrective
Techniques.Each
Each
four
proposed
"corrective
techniques"
involves
some
Corrective Techniques.
ofof
thethe
four
proposed
"corrective
techniques"
involves
so~e
physical contact between the interrogator and the detainee.
detainee. These corrective techniques are of I
types. First, there are two "holds." With the facial hold,
hold, the
the interrogator places
places his
his palms
palms on
on
two types.
of the detainee's face in
in aa manner
manner careful
careful to
to avoid
avoid any
any contact
contact with
with eyes.
eyes. With
With the
the I
either side oCthe
the detainee
detainee by
by thecoliar
the coliarand
anddraws
drawshim
him totothe
the
attention grasp, the interrogator grasps the
while using
using aa collar
collar or
or towel
towel around
around the
the I
interrogator in order to regain the detainee's attention, while
pai~
back ofthe
of the detainee's neck to avoid whiplash. These two techniques inflict no appreciable pain
are directed
directed wholly
wholly at
at refocusing
refbcusing the
the detainee
detainee on
on the
the interrogation
interrogation and
and
on the detainee and are
frustrating a detainee's efforts to ignore the
the interrogation.
interrogation. Thus,
Thus, the
the desa:ibed
described techniques do
do not
of substantive due process.
process.
violate the requirements of
.

i

I

I

Second, the CIA proposes to use two "slaps." In the
the abdominal
abdominal slap,
slap, the
the interrogator
interrogator may
mayfrom the
begin with his hands no farther than
than 18
18 inches
inches away
awayfrom
thedetainee's
detainee'sabdomen
abdomenand
andmay
maystrite
strike
the detainee in a."t
an area of comparatively little sensitivity between the waist and the sternum. I
The facial slap involves a trained interrogator's striking the detainee's cheek with his
his band.
hand. Like
psychological techniques
the holds.
holds, the slaps are primarily psychological
techniquestotomake
makethe
thedetainee
detaineeuncomfo~a.ablel
uncomfortable;
they are not intended,
intended, and
and may
may not be
be used,
used, to
to extract
extract information
information from
from detainees
detainees by
by force
force OT
or I
physical coercion.
There is no question, however, that the slaps
slaps may
may momentarily inflict some
some pain.
pain. But
But
that
no
significant
pain
wo.uld
occur.
With
the
facial
slap,
the
1
careful safeguards ensme
ensure
pain would occur. With the
slap,
interrogator must not wear any rings.
a.,d
must
strike
the
detainee
in
the
area
between.the
tip
ot
rings, and
detainee in the area between the tip of
the chin and the corresponding earlobe to avoid any contact with sensitive areas.
areas. The
interrogator may not use a fist, but instead must use an
an open hand and strike the detainee only I
with his openfingers,
fingers, not with his
his palm.
palm. With the
the abdominal
abdominal slap,
slap, the
the interrogator
interrogator also
also may
may n0t
not
use a fist, may
may not wear jewelry, and
and may
may strike only
only between
between the
the sternum
sternum and
and th~
the navel.
navel. The
The
interrogator is required to maintain aa short distance
distance between himself and the
the detainee
detainee to
to prevent
a blow ofsignificant
of significant force.
force. Undoubtedly, a single application ofeither
of either ofthese
of these techniques
presents a question different
We understand,
understand, however,
however, that
that interrogators
interrogators
different from
from their repeated use. We
will cause significant physical
frequency, that will
will not apply these slaps with an intensity, or a frequency,
pain or injury. Our conclusion that these techniques do not shock the conscience does not mean
that interrogators may punch, beat, or otherwise physically abuse detainees in an effort to extract
e>..-u-Jct
limited to the use
use Off11!
of far
information. To the contrary, the result that we reach here is expressly limited.to
have carefully
carefully been
been designed
designed to
to affect
affect detainees
detainees
techniques-that
more limited slap techniques'
that have

I

I

I

I

4S

?

(F~l)JUL 2C 20C7 ~5:H;/Si.15:i:!/NO,eHIO"22778;>

~

I
I

psychologically,
psychologically. without
without harming
harming them
them physically.
physically. Slaps
Slaps or
orother
otherforms
forms of
ofphysical
physical contact
contact that
that j
go
DTA.
go beyond
beyond those
tbos~ described may raise different
different and serious questions
question$ under the nTA.
i
Monitoring
Monitoring by
by medical
medical personnel
personnel is
is also
also important.
important. Medical
Medical personnel
personnel observe
observe the
the
a.dministration of
ofany
any slap, and
and should aa detainee
detainee suffer
suffer significant
significant or unexpected
unexpecud pain or harm,
administration
the technique would be discontinued.
discontinued, In
In this context, the very limited risk of harm associated
the
with this
this technique does not shock
shock'the
with
the conscience.
conscience.
.~
I
(

I
i
SleepDeprivation.
Deprivation. Of the techniques addressed in this memorandum, extendet
. Extended
Extended Sleep

Of the techniques addressed in this memorandum, extende~
sleep deprivation again, as under the War Crimes Act.
Act, requires
requires the
the most
most extended analysis.
analysis.
f
Nonetheless,
staff in the
Nonetheless. after
after reviewing
revjewing medical literature,
literature. the observations of CIA medical staff
application of
ofthe
the technique,
technique, and
and the
the detailed
detailed procedures
procedures and safeguards
safeguards that
that CIA
CIA interrogators
and medical staff
technique and
and monitoring
monitoring its
its application,
application, we
we
staff must follow
foUow in applying the technique
conclude that
of extended sleep deprivation would not impose harm
tbat the CIA's proposed use of
unjustifiable
unj~stifiable by a governmental interest and thus would not shock the conscience.

and

The scope of
of this technique is limited:
limited: The detainee
detainee would
would be
be subjected
subjected to
to no
no more
more than
than
96 hours
ho'¥S of continuous sleep deprivation, absent specific additional approval, including legal
approval
of the
the CIA;
CIA; the
the detainee
detainee would
would:be
be
approvaJfrom
from this Office and approvalfrom
from the Director of
allowed an opportunity for eight hours
hours of
of uninterrupted sleep
sleep following
following the
the application
application of
of the
technique; and he wouJdbe
would be subjected to no
no more
more than
than aa total
total of180
of 180hours
hoursofthe
of thesleep
sleep
deprivation technique in one 30-day period. Notably, humans have been kept continuously .
of 250 hours in medical studies.
studies. There
There are medical studies suggesting that
that sleep
sleep
awake in excess of250
deprivation has few measurable physical effects. See,
e.g.,Why
WhyWeWe
Sleep:
Functions
See, e.g.,
Sleep:
TheThe
Functions
oj ofI
Sleep in
inHumans
Humansand
andOther
OtherMammals
Mammals
23-24
(1998).
be sure,
relevance
of these
medical;
.Sleep
23-24
(1998).
To To
be sure,
the the
relevance
ofthese
medicali
dissi..-nilar to
studies is limited. These studies have been conducted under circumstances very dissimilar
here. Medical subjects are in
in aa relaxed
relaxed environment
environment and
and at relative
relative liberty
liberty to
to do
do
at issue here.
those at
whatever keeps their interest. The CIA detainees,
detainees, by
by contrast.
contrast, are
are undoubtedly
undoubtedly under
under duress,
duress, and
and
their freedom of movement and activities are extremely limited. CIA medical personnel,
however, have confirmed that these limited physical effects are not significantly aggravated in
unique environment
environment of
of aa.CIA
CIAinterrogation.
interrogation.
the unique
II

I

I

As described
described above,
above, the
the CIA's
CIA's method
method ofkeeping
of keeping detainees awake--continuous
awake—continuous
As

i

standing—can cause
cause edema,
edema, or swelling
swelling in
in the
the lower
lower legs
legs and
and feet.
feet. Maintaining the
the standing
standing
standing-can
as many
many as
as four days
days would
would be
be extremely unpleasant,
unpleasant, and
and under some
some crrcumstanC<Ts.
circumstances,
position for as
painful, although edema and
and muscle
muscle ·fatigue
fatigue subside
subside quickly
quickly when
when the
the detainee
detainee isis permitted
permitted to
to sit
sit
painfu~
Qr
or to
to recline.))
recline.33

I

i

I

33
33

Weundmtmd
understand that
thatduring
duringthe
theuse
useof
ofthe
theproposed
proposedextended
extendedsleep
sleepdeprivation
deprivationtechnique,
technique,the
thedetainee
detainee
We
would often
often wear
wearaa disposable
disposable U.tldergarm~'l
undergarment designed
designedfor
for adoJ1ts
adultssuffering
suffering from
from incontinence.
incontinence. The
TheW1dergarmcn1
undergarment
would
would be
be used
used (0
toa\-'Oid
avoid the
the need.
need regularly
regularly (0
to unshaclde
unshackle the
thedetainee
detaineefor
foruse
useof
ofthe
thetoiler,
toilet,and
andwould
wouldbe
beregularly
regularly r
would
checked to
toavoid
avoid skin
skin initauon
irritation or
orunneccssaIy
unnecessary discomfort.
discomfort. The
Theproposed
proposed lise
useof
ofthe
theunderg3mlent
undergarmentisisjustified
justified not
not~
checked
just
just for
for sanitary
sanitary reasons,
reasons, but
but also
also to
toprotect
protectboth
boththe
thedetainee
detaineeand
andthe
theinterrogators
interrogatorsfrom
fromunnecessary
unnecessaryand
andpote_
potentially
dangerous
dangerous~'Sical
physical contact.
contact. We
Wealso
also und:rstand
understand that
thatthe
thedetainee
detaineewould
wouldwear
wearadditional
additionalclothing,
clothing,such
suchasasaapair
pairo¥of
shorts,ov..-!be
over the undergarmentdnring
duringapp1kaIioo
applicationof
of1hls
thisteelulique.·
technique.
.......

I

undet_

~
46

(~IU}JUL

20

2007

i5:.4/ST.15:,3/NO.6HIO<l'2Q778

,

At the same time,
time, howe-veT.
however, the
the CIA
CIA employs
employs many
many safeguards
safeguards to
to ensure
ensure that the
the detaineef
detainee
does not endure significant pain or suffering. Tbe
The detainee
detainee isis not
not permitted
permitted to
to support
support his
his weight
weight
by hanging from
from his
his wrists and thereby risking injury to himself,
himself. This precaution en~ures
ensures that
the detainee"s
normally at
at all times—if
times-ifthe
detainee cannot
cannot
detainee's legs are capable offunetioning
of functioning normally
the detainee
his own weight, administration ofthe
of the technique ends. In addition, the CIA's medical
support his
medical ,
personnel monitor the detainee throughout the period of
of extended sleep deprivation. They will
hah use of the technique should they diagnose the detainee as experiencing hallucinations, other
halt
abnormal psychological
psychological reactions,
reactions, or
or clinicaUy
clinically significant
significant diminishment
abnormal
diminishment in cognitive
)'
functioning. Medical personnel also will monitor the detainee's vital signs to ensure that they
tbey
stay within normal parameters.
parameters. If
If medical personnel determine that tbe
stay
the detainee develops
the
or is experiencing significant physical pain for any reason; t~e
clinically significant edema or.is
technique either
either is
is discontinued
discontinued ·or
or other
other methods
methods of
of keeping
keeping the
the detaiJ:lee
detainee awake
awake are
are used.
used. These
technique
Thes
accommodations
are
significant,
because
they
highlight
that
the
CIA
uses
extended
sleep
.
accommodations are significant, because they bighlight that the CIA uses extended sleep
deprivation merely to weaken aa detainee's psychological resistance to interrogation by keeping
.
him awake for longer than normal periods of time.

!

Combined
CombinedF/fects.
Effects. We
We do
donot
notevaluate
evaluatethese
thesetechniques
techniquesininisolation.
isolation.To
Todetermine
determine
conscience," it is important to evaluate the effect
effect
whether a course of interrogation "shocks the conscience,"
of the potential combined use of these techniques.
techniques. See,
e.g.,Williams
Williams
United
States,
ofthe
See, e.g.
v. v.
United
States,
341341
U.S.U.S.
97, 103
103 (l9S1)
(1951) (evaluating a three-day course of interrogation techniques to determine whether a
97,
occurred). Previously, this Office
Office has been particularly concerned about
constitutional violation occurred).
effect such that
techniques
tbat the
tbe combination
combination of
oftechniques
techniques that may have a mutually reinforcing effect
might increase
increase the
the effect
effect that
that each
each would
would impose
impose on
on the
the detainee.
detainee. Combined
CombinedUse
Useatat9-11.
9-11.
might
Specifically,
medical
studies
provide
some
evidence
that
sleep
deprivation
may
reduce
tolerance
Specifi~Iy,·medicalstudies provide some evidence that sleep deprivation may reduce tolerance
subjects.
See,
e.g.,
B.
Kundermann
et
ed.,
Sleep
Deprivation
to
some
forms
of
pain
in
some
to some forms of pain in some subjects. See, e.g., B. Kundermann et al., Sleep Deprivation
Affects Thermal
ThermalPain
PainThresholds
Thresholdsbut
but
Somatosensory
Thresholds
in Healthy
Volunteers,
66
Affects
notnot
Somatosensory
Thresholds
in Healthy
Volunteers,
66
Psychosomatic
Med.
932
(2004)
(finding
a
significant
decrease
in
heat
pain
thresholds
and
some
Psychosomatic Med. 932 (2004) (finding a significant decrease in heat pain thresholds and some
decrease in
in cold
cold pain
pain thresholds
thresholds after
after one
one night
night without
without sleep);
sleep); S.
S. Hakki
Hakki Onen
Onen et
etal.,
al.,The
TheEffectl
Effects
decrease
Deprivation,Selective
Selective
Sleep Interruption
Sleep
Recovery
on Pain
Tolerance
of Total
TotalSleep
SleepDeprivation,
oj
Sleep"Interruption
andand
Sleep
Recovery
on Pain
Tolerance
J
Thresholds
in
Healthy
Subjects,
10
J.
Sleep
Research
35,
41
(2001)
(finding
a
statistically
Thresholds in Healthy Subjects, 10 J. Sleep Research 35,41 (2001) (finding a statistically
1
significant drop
drop of
of 8·9"Al
8-9% in
in tolerance
tolerance thresholds
thresholds for
for mechanical
mechanical or
or pressure
pressure pain
pain after
after 40
40 hours)!
hours)
significant
studies).
Moreover,
subjects
in
these
medical
studies
have
been
id.
at
35-36
(discussing
other
id. at 35-36 (discussing other studies). Moreover, subjects in these medical ~dies have been J'
observed to
to increase
increase their
their consumption
consumption offood
of food during
observed
during aa period
period of
ofsleep
sleep deprivation.
deprivation. See
See Why
Why
We
Sleep
at
38.
A
separate
issue
therefore
could
arise
as
the
sleep
deprivation
technique
maybF
be
We Sleep at 38. A separate issue therefore could arise as the sleep deprivation technique may
used
during
a
period
of
dietary
manipulation.
used during a period ofdietary manipulation.
.
:
J

I

I

I

satisfied that there are safeguards in place to protect against any
Nonetheless, we are 5lIIisfied
significant enhancement ofthe
of the effects ofthe
of the techniques at issue when used in combination with
witH
sleep deprivation. Detainees subject to dietary manipulation are closely monitored, and any
cessation ot:
of, at a minimum, the dietary
statistically significant weight loss would result in cessation
manipulation technique.
technique. With regard to pain sensitivity, none ofthe
ofthe techniques
manipulation
tecimiques at issue
issue here .
involves such
such substantial
substantial physical
physical contact,
contact, or
or would
would be
involves
be used
used with
\\;;th such
such frequency,
frequency, that
that sleep
sJeep j
deprivation would
would aggravate
aggravate the
the pain
pain associated
associated with
deprivation
with these
these techniques
tecliniques to
to aa level
level that
that shocks
shocks the
the
conscience.
More
generally,
we
have
been
assured
by
the
CIA
that
they
will
adjust
and
monito'r
conscience. More generally. we have been assured by the CIA that they wiH adjust and monitdr
the frequency
frequency and
and intensity
intensity of
of the
the use
use of
of other
other techniques
sleep deprivation,
the
techniques during
during aa period
period of
ofsleep
deprivation.
Combined
Use
at
16.
Combined Use at 16.
.

I

I

I

47

P

(FRI).IUL

20 2007

lS:loC/ST. Is:i3/NO. &160.(2977e

I

In
In evaluating
evaluating these
these techniques,
techniques, we
we also
alsorecognize
recognizethe
theemotional
emotional stress
stress that
thatthey
they may
may
imPose
impose upon
uponthe
thedetainee.
detainee. While
Whilewe
weknow
knowthe
thecareful
carefulprocedures,
procedures,safeguards,
safeguards,and
andlimitations
limitations
under
under the
the CIA's
CIA's interrogation
interrogation plan.
plan, the
the detainee
detainee would
would not.
not. In
In the
the course
courseofuodergoing
of undergoing these
these I
techniques,
more severe
severetreatment
treatment might
mightfollow,
follow, or
orthat.
that,for
forexample,
example,
techniques, the
the detainee
detainee might
might fear
fear that
that more
the
the sleep
sleep deprivation
deprivation technique
technique may
may be
be continued
continued indefinitely
indefinitely (even
(even though,
though, pursuant
pursuant to
to CIA
CIA
procedures,
thetechnique
technique would
would end
end within
within96
96 hours).
hours). To
Tothe
theextent
extent such
suchfear
fear and
and uncertainty
uncertainty
procedures, the
may occur,
occur, however,
however, they
they would
would bear a close
close relationship
relationship to
tothe
the important
important gov~mment
government purpose
purpose
may
of
obtaining
information
crucial
to
preventing
a
future
terrorist
attack.
According
to
the
the
of obtaining information crucial to preventing a future terrorist attack. Accordmg to the CIA, thj
leaders that
that they
they will
will not
not be
beharshly
harshlytreated
treated by
bythe
theUnited
United States
States isisthe
the primary
primary
belief of
of al
al Qaeda
Qaeda leaders
belief
obstacle to
to encouraging
encouraging them
them to
to disclose
disclose critical intelligence.
intelligence. Creating uncertainty over whether
obstacle
that assumption
assumption holds-whiJe
holds—while at
at the
the same
same time
timeavoiding
avoiding the
the infliction
infliction (or
(or even
even the
thethreatened
threatened
that
infliction, see
seesupra
supraatat0.21)
n.21)ofofany
anysignificant
significantharm-is
harm—isaanecessary
necessarypart
partofthe
of theeffectiveness
effectivenessof
of
infliction,
the
arbitrary
or
egregious
conduct
these
techniques
and
thus
in
this
context
does
not
amount
to
these techniques and thus in this contex1 does not amount to the arbitrary or egregious conduct
Due Process Clause
Clause would
would forbid.
forbid. When
When used
used in
in combination and
and with the safeguards
safeguards
that the
the Due'Process
described
above,
the
techniques
at
issue
here
would
not
impose
harm
that
constitutes
"cruel,
described above, the techniques at issue here would not impose hann that constitutes "crue~
inhuman,
or
degrading
treatment
or
punishment"
within
the
meaning
of
the
DTA
inhuman. or degrading treatment or punishment" .within tbe meaning ofthe DTA
IV.

The
The final issue you have asked us
us to
to address
address isis whether the
the CIA's use
use ofthe
of the proposed
consistent with
with United States
States treaty obligations Wlder
under
interrogation techniques would be consistent
of the Geneva
Geneva Conventions,
Conventions, to
to the
the extent
extent those
those obligations
obligations are
are not
not
Common Article 3 ofthe
by the War Crimes Act?"
Act.34 As
As we
we explain
explain below,
below,Common
Common Article
Article33does
does not
not
encompassed by
the CIA's proposed interrogation techniques.
disable the United States from
from employing the
34

Through operation of the Military Commissions Act, the Geneva Conventions, outside thereoturenients

1

Neve
esS,
for the progmn
program to comply with Common Article 3, and our analysts
we understand that the CIA intends fOT
analysis below is
premised on that policy detenninatioll
determination.
preznised

In addition, we note that the MCA
MeA provides another mechanism
mecbanism whereby the President
President could
could ensure
ensure mat
that thee
with Common Article 3—by
CIA interrogation program fully complies
compli~~ith
3-by reasserting his prt-Hamdan
pre-HamdtuI conclusion
conclusion that
thai
Common Anicle 3 does not apply to the armed conflict
Section 6(a)(3) of
conflict against al Qaeda. S~"'tion
ofthe MCA
MeA provides
provid::s the
ltd
the Geneva Conventions'"
President with the authority to "interpret the meaning and application of
oftbe
Conventionsw through
through
!
executive orders that "shall be authoritative in the same manner as other
olher administrative
administr2tive regulations" (emphasis
added). By specifically
specifically invoking administrative law, the MCA
MeA provides the
the President
President with
with at
at least
least the
the same
same
.
authority to interpret the treaty as an administrative agency would have to interpret
interpret a federal statute.
stature. The
The Supreme!
Supremel
Court has held that an administrative agency's reasonable interpretation of
ofaa federal statute is to be "given
!
priorcase
case that
thatanother
anotherinierpretation
interpretation was
was bette,.
better than
thanthe
theone
one
controlling weight" even if&
ifa court has held in a prior
Cable&&Te/ecomm.
Telecomm.Au'n
Ass'nv.v.BrandX
BrandXInternet
Serv.,54S
545U.S.
U.S.967,
967,
contained in the agency regulation. See Nat
Not V
'/ Cable
Internet Serv.,
980-9S6
980-986 (2005).
(200S). As the
Ihe Court
Coun explained,
e..~lained, the
the. "prior judicial construction of
of a statute
S1atute trumps
tromps an agency
agent)· construction
construetio
otherwise entitled
CDtitlcd to Chevron deference
deference only
only //the
iffue prior
prior court
court decision
decision holds
holds that
that its
its construction
construction follows
follows from
from the
me!
unambiguous terras
agency discretion."
hold
tenus of
of the
tile statute and
a.id thus
tlms leaves no room
room for
fongency
discretion." Id.
ld. at
at 982.
982. Hamdon
Hamdon did not hoIh
that Common
Cornmon Article 3 was unambiguous. Rather, the Court held only that the best
best interpretation of
of Common
Article 3 was that it applied to any conflict
conflict that was not a conflict
conflict between states.
SI8re5. The
The Court
Cow! did
did not
not address the
the feci
tact
that
that the President had reached the opposite conclusion in his February
February 7,2002
7, 2001 order, and reduced
red~ced mat
that view
view to
to the
the I

I
1

I

48

F

F~OM

SITE

15

OOJ
(FRI)JUL

20

2007

15:\L ....ST. ' 5 : ' 3 .... NO.$180~2li017&

A.
A.
Common
Common Article 3 has been
been described
described as a "Convention
"Convention in miniature." International
Committee of
ofthe
ill Commentaries on the Geneva Conventions
Committee
the Red Cross, Jean Pictet, gen. ed., HI
at 34 (1960). It
It was intended
intended to establish
establish aa set of
of minimum standards applicable
applicable to the
thetreat~ent,
at
treatment
of
of all detainees held
held in non-international
non·international armed conflicts.
1.
1-

interpretation must begin "with
«with the text of
ofthe
context in which the
Our interpretation
the treaty and the context
written words
are
used."
Societe
Nationale
Industrielk
Aeropostiale
v.
United
States District
District
\vords
Industrie/le
v.
States
Court, 482 U
S
.
522,
534
(1987);
Eastern
Airlines,
Inc.
v.
Floyd,
499
U.S.
530,
534
(1991);
see
U.S. 522,534
Airlines, Inc. v. Floyd, 499 U.S. 530, 534 (1991); see
also Vienna Convention on the Law of
of Treaties,
Treaties. May 23, 1969, 1144
i144 U.N.T.S.
V.N.T.S. Article 31(1) ("A
(uA!
treaty shall be interpreted
interpreted in good faith in accordance with the ordinary meaning to be given to I
the terms of
the treaty in their context and in light of
its object
ofthe
ofits
object and purpose."); see also Ian
Brownlie, Principles of
Public International
Law 629
629 (1990)
(1990) ("The language·ofthe
language of the treaty must
afPublic
International Law
be interpreted in light of
general international law in force at the time of
of the rules of
ofgeneral
of its
conclusion, and also in light
the terms.").
tight of
of the contemporaneous meaning of
ofthe
terrns...)?5 The foundation
of
of Common Article 3 is its overarching
overarcbing requirement that detainees "shall in all circumstances be
treated humanely,
without
any
adverse distinction based on race, color, religion or faith, sex,
hUl11anely,
birth or wealth, or any other similar criteria." This requirement of
of humane treatment is
supplemented and focused by the enumeration off
of four
OUT more specific categories of acts that "are
are
and shall remain prohibited at any
~y time and in any place whatsoever." Those forbidden acts are1·

any

of all kinds, mutilation, cruel
(a) Violence to life and person, in particular murder ofall
treatment and torture;

I
I

(b) Taking of hostages;
"enoneous"
"erroneous" litigating
litigating position
position of
of the
the Solicitor
Solicitor General.
General. SEe
See 126
126 S,
S. Ct.
Ct aI.
at2795~
2795; id.
id 812845-46
at 2845-46 (TnoJn3S,
(Thomas, J.,
J.,
dissenting) (recognizing that the majority did not address whether the treaty
treaty was
was ambiguous
ambiguous or
or deference
deference was
was
appropriate).
.J
I

j

'I

i

,!

Because the MCA expressly allows th:
the President to'
to interpret the "appliea.tion"
"application" ofCommon
of Common Article
Article 33by
by
executive order,
order, he lawfully could reassert his pre-Hamdan
pre-Hamdaninterpretation
interpretationofofthe
thetreaty.
treaty. While
Whilewe
we'need
neednot
notfully
fully
.ex:ecutive
here, we have little dollbt
doubt that
that as
as aa matter
matter of
of text
text and
and history,
history, the
thePresident
Presidentcould
couldreasonably
reasonablyfind
find
explore the issue here,
(hat an
an .."armed
conflict not
not of
of an
an international
international char.lcter
characteroccurring
occurring in
in the
theterritory
territory of
of one
one of
of the
theHigh
HighContraaing
Contracting
that
~ conOict
Parries" dOes
does not
notinclude
includean
ananned
armed conflict
conflict with
withan
aninte:mational
internationalterrorist
terroristorganization
organizationoccuning
occurringacross
acrossterritorial
territorial
Parties"
Commentaries,atat34
34\Speaking
("Speakinggenmlly,
generally,ititmust
mustbe
berecognized
recognizedthat
thatthe
theconflicts
conflict;
boundaries. See,
&e. e.g., Pietel
PicteL ill
HI Commentaries,
boundaries.
to in Article 3 are
are armed
armed conflicts,
conflicts, with
widi armed
armedfmces
forces on
on either
eitherside
sideengaged
engaged in
inhostilities,
hostilities, in
inshon,
short,which
which
referred to
are in many respects
respects similar to
to an
an international war.
war, but
but talce
takeplace
place Within
withinthe
theconfllles
confinesofa
of asingle
singlecountry.")
country.")
are
added). Therefore, although we assume
assume in light of Hamdan
Hamdanthat
thatCommon
CommonArticle
Article33applies
appliestotothe
theprese
present
(emphasis ad~ed).
t
conflict, v:e
we no~e
note that
mat the
the President
President permissibly
permissibly could
could inteJpfCt
interpret Common
Common Article
Article 33 not
not to
to apply
apply by
by an
an eXeQ1tive
executive ord::r
order
~nflict,
issued under
under the
theM
MCA
ISSued
eA'

l

I

35
Although the
theUnited
United Slates
States has
has not
notratified
ratified the
the Vienna
ViennaConvention
Convention on
onthe
theLaw
Lawof
ofTreaties.
Treaties,we
wehave
haveof"lCn
oft :n
35
Although
looked
looked to
to Articles
Articles 31
31 and
and 32
32 of
of the
the Convention
Convention as
as aa resource
resource for
for rules
rules of
of maty
treaty intetpretJtion
interpretation widely
widely ;ecognized
recognized iIi
in
intematicmaI
I
international law.
law.

"

49

P

1

.

FROM SITf

15

OOJ

(FRl>J\IL.

20

2007 15:14/ST. 15:13//110.

6i60~2"778

dignity, in particular, humiliating and degrading
(c) Outrages upon personal dignity:
treatment;

(d) The passing of sentences and the caoying
carrying out of executions without previous
judgment pronounced by a regularly constituted court affording
affording all the
tbe judicial
guarantees which are recognized as indispensable by civilized peoples.
these provisions, two
two have
have no
no application here.
here. The
The proposed CIA
CIA interrogation methods witl
will
Of these.provisions,
involve neither the "taking of hostages" nor the
the "passing
"passing of
of sentences
sentences [or]
[or]the
thecarrying
carryingout
outof
of
executions." Thus.
I(a) and l(c),
•
executions."
Thus, our analysis will focus on paragraphs 1(a)
1(c), as wen
well as Common
Article ~'s
3 *sintroductory
introductorytext.
text.

I

the application of Common Article 33 to
to the
the CIA'&
CIA's
text does notfirmly
Where the ten
firmly resolve the
proposed interrogation practices, Supreme Court precedent and the practices ofthis
of this Office
Office direct
dired
aids. As
As with
withany
anytreaty,
treaty,the
thenegotiating
negotiatingrecord-also
record*—alsoknown
known as
as I
us to several other interpretive aids.
travavxpreparatoires-of
priparatoires—ofthe
theGeneva
GenevaConventions
Conventions isisrelevant.
relevant. See,
See,e.g.•
e.g.,Zicherman
Zicherman
the tral.lcrux
\/. v.
Korean
Air Lines
LinesCo.,
Co., 516
516U.S.
U.S.217,
217,226
226(1996)
(1996)(''Because
("Becausea atreaty
treatyratified
ratifiedbybythe
theUnited
UnitedStates
States
Korean Air
is not only the law of this land.
land, but also an agreement among sovereign powers, we have
its interpretation the negotiating and drafting history
traditionally considered as aids to its
bistoIy (travaux
(travaux
preparatoires)
andthe
thepost-ratification
post-ratificationunderstanding
understandingof
ofthe
thecontracting
contractingparties.'');
parties.");see
seealso
also
preparaloires) and
Art. 32(a)
32(a) (stating
(stating that
that "'supplementary
"supplementary means
means of
of
Vienna Convention on the Law of Treaties Art.
interpretation, including
the preparatory
work ofthe
of the treaty,"
treaty," may
may be
be appropriate
appropriate where
where the
the
interpretation,
including the
preparatory work
obscure"). With
With regard
regard to
to the
the Geneva
Geneva Conventions,
Conventions, an
meaning ofthe
of the text
text is
is "ambiguous
"ambiguous OT
or obscure").
meaning
an
additional,
related
tool
is
available:
In
1960,
staff"
members
of
the
International
Committee of
of
additional, related tool is available: In 1960, staff members ofthe International Committee
.. the
theRed
RedCross,
Cross,many
manyofwhom
of whomhad
hadassisted
assistedinindrafting
drafting the
theConventions,
Conventions,published
publishedCommentaries
Commentaries.
on each
each of
of the
the Geneva
Geneva Conventions,
Conventions, under
under the
the general
editorship of
of Jean
Pictet. .
,on
gen~al editorship
Jean Pictet.
Pietet. See
See Jean
Jean Pietet,\
gen.
ed.,
Commentaries
on
the
Geneva
Conventions
(ICRC
1960)
(hereinafter,
"Commentaries"'.
gen. ed., Commentaries on the Geneva C07lllentiOlJS (JCRe 1960) (hereinafter, "Commentaries''j.
These Commentaries
Commentariesprovide
providesome
someinsight
insightinto
intothe
thenegotiating
negotiatinghistory,
history,asaswell
wellasasaafairly
fairly
These
I
contemporaneous
effort to
explain the
ICRC's views
views on
on the
interpretation.
contemporaneous effort
to explain
the lCRC's
the Conventions'
Conventions' proper
proper interpretation.j,
The Supreme
the Commentaries
persuasiveinininterpreting
interpretingthe
theGeneva
Geneva
The
Supreme Court
Court has
bas found
found the
Commentaries persuasive
I
Conventions.
See
Hamdan
v.
Rumsfeld,
126
S.
Ct.
2749,
2796-98
&
n.48
(2006)
(citing
Conventions. See Hamdan v. RUms/eld, 126 S. Ct. 2749, 2796-98 & nAS (2006) (citing
thethe
Commentariesten
tentimes
timesinininterpreting
interpretingCommon
CommonArticle
Article33totoapply
applytotothe
thearmed
armedconflict
conflictwith
withaIal
Commentaries
law,
the
[ICRC
Commentary]
is,
as
the
parties
Qaeda
and
explaining
that
"[tjhough
not
binding
Qaeda and explaining that <I[t]hough not binding Jaw. the (leRC Commentary] is, as the parties
recognize, relevant
relevant in
in interpreting
interpreting the
the Geneva
Geneva Conventions").
recognize,
Conventions").

I

.1

\

I

J

In addition.
addition, certain international tribunals have in recent years applied Common Article 3
Former Yugoslavia ("leTY")
("ICTY") and
in war crimes prosecutions—the
prosecutions-the International Tribunal for the Fonner
and
the International Criminal Tribunal for Rwanda ("ICTR").
(~ICTR"). Their decisions may have relevance
as persuasive authority. See
of Treaties Art. 31(3)(b) (stating
See Vienna Convention on the Law ofTreaties
that "subsequent practice in application ofthe
of the treaty" may be relevant to its interpretation). The
Supreme Court recently explained that the interpretation ofa
of a treaty by an international tribunal ,charged with adjudicating disputes between signatories should receive "respectful
"respectful
J26126
S. Ct.
2669,
2683
(2006);
seesee
alsoalso
Breard
v. v.Ii
consideration." Sanchez-Llamas
Sanchez-Llamas\/.v.Oregon,
Oregon,
S. Ct.
2669,
2683
(2006);
Breard
Greene,
523
U.S.
371,
375
(1998)
(per
curiam).
The
Geneva
Conventions
themselves
do
not
Greene, 523 U.S. 371, 375 (1998) (per curiam). The Geneva Conventions themselves do not
either ICTY or ICTR
duty, leaving
leaving their
their views
views with
with somewhat
somewhat less
less weight
weight than
than
charge eithe~
leTR with this duty,

II

so

~

1

r~v~

OJ'~

1~

DOJ

(FR l ) JUL

20

2G07

;;;: 14/ST_ 15: 13/NO. 6i eOL2l?77e

such a tribunal otherwise might have.
find several
have. We
We do,
do, however,
however,find
severaldecisions
decisionsofthe
of the ICTY
ICTY of
of
use,
use, and that our analysis aligns in many areas with
with the
the decisions
decisions ofthese
of these tribunals provides
provides
comfort that we ha.ve
have accurately
accurately interpreted
interpreted the
thetreaty's
treaty's terms.
terms.
some corr(ort

practicesof
ofother
otherstate
stateparties
partiesininimplementing
implementing
Finally, we also recognize that the practices
.
the statements
statements of officials from
nations, unsupported by
Common Article 3 (as opposed to the
from other nations,
by!
any concrete circl!JIlstances
circumstances and conduct) may serve
serve as
as "a
"a supplementary means
means of
any
i
interpretation." See
See Vienna
Vienna Convention
Convention on
onthe
theLaw
Lawof
ofTreaties
TreatiesArl.
Art.31(3
3 l(3)(b).
We
have
found
)(b). We have found
only one country, the United Kingdom,
Kingdom, to
to have
have engaged in
in a sustained effort to
to interpret _
3
discuss the
the relevance
relevance ofthat
of that example below.
Common Article 3 in a similar context, and we discuss
below.»
In addition, the Preparatory Committee for the International Criminal Court established I
under the Rome Statute has developed elements for crimes under Common Article
Article 33 that
thatmay
may be
tried before that court, and an accompanying commentary.
commentary. See
KnutDOrmann,
Dorraann, Elements
Elementsof
of
tried.
See Knut
Crimesunder
underthe
theRome
Rome
Statute
ofInternational
Criminal
Court:
Sources
and Commentary
Crimes
Statute
oflntemational
Criminal
Court:
Sources
and Commentary
States is
is not
notaa party
partyto
tothe
theRome
RomeStatute.
Statute,see
seeLetter
Letterfrom
fromJohn
JohnR!.R
(Cambridge 2002). The United States
Undersecretary of State, to
to U.N Secretary
Secretary General
General Kofi Anan
Anan (May
(May 6,2002)
6, 2002)
Bolton, U~dersecretary
!!
the United States not to becOme
become aa party
party to
to the
theRome
RomeStatute),
Statute),but
but
(announcing intention of
ofthe
are. Thus,
Thus, while
whilethe
theRome
RomeStatute
Statutedoes
doesnot
notconstitute
constitute
several parties to the Geneva Conventions are.
as a I
a legal obligation ofthe
of the United States,
States, and its interpretation ofthe
of the offenses
is
not
binding
offenses
matter of
of law,
law, the
the Statute
Statute provides
provides evidence
evidence of
of bow
how other
other s'"tate
state parties
parties view
view these
these offenses.
offenses. Lik~
Like,
matter
the decisions
international tribunals,
the
decisions of
ofinternational
tribunals, the
the general
general correspondence
correspondence between
between the
the Rome
Rome Statute
Statute I
and our
our interpretation
interpretation of
of Common
Common Article
Article 33 provides
provides some
someconfirmation
confirmation ofthe
of the correctness
correctness of
of the
the
and
interpretation herein.

be
II

2.
2.

I

In addition
by these
thesetraditional
traditionaltools
toolsof
oftreaty
treatyinterpretation,
interpretation,the
th<
a~dition to the guidance provided by
inquiry.
Military Commissions Act substantially assists our inquiry.

MCA amends the
the War
War Crimes
Crimes Act
Act to
to include
include nine
nine specific
specific criminal
criminal offenses
offenses defininb
defining
The MeA
of the Geneva Conventions,
we have
have discussed
discussed above.
above. These
These
the grave breaches ofthe
Conventions. which we
!
37
amendments constitute authoritative statutory implementation ofa
of a treaty. 37
As irnpot+4.aD.t,
important, by
amendments.

I

I

36
The practice
practice of man)'
many other stite
state parties
parties in
in response
response to
to en-i)
civil conflicts
conflicts appears
appears to
to have
havebeen
been simply
simply to
to
36
violate Common Article 3 v.ithout
without conductillg
conducting any interpretation.
interpretation. The
The Government of
of France, for instance,
seeking to
to suppress
suppress insurrection
insurrection in
in the:
the then-French
then-French teiritolY
territory ori
of;
reportedly instituted torture as an official practice in seeking
Algeria between 1954 and 1962,
1962. See,
See.e.g.,
e.g.,Shiw_Eftekhari.,
Sbivz.Efte!khaii,France
the Algerian
a Policy
France andand
the A.lgerian
War:War:
FromFrom
a Policy
of of I
'Forgetting''totoDaFramework
Framework
q/Accountabflity,
34 Colum.
Hum.
L. Rev.
413,421-22
(2003).
More recently,
'Forgetting
ofAccO",mtobllity,
34 Colum.
Hum.
Rts. Rts.
L. R.e\'.
413.421·22
(2003).
Morerecently.
/
Russia reportedly
reportedly engaged insust2ined
in sustained violations of Common Article 33 inindealing
dealingwith
withlhe
(heintemal
internalconflict
conflictinin
Chechnya. We do
do not
not take
take such
suchactions
actionsas
asaaguide
guidetotothe
themeaning
meaningof
ofCommon
CommonArticle
Article3,3,and
andindeed
indeedmany
manyofofthe
the
Chechnya.
reported actions of these
these nations are condemnable. But these examples do reinfor<:e
reinforce the
the need to
to distinguish
distinguish what
what
when confroJt.ed
confronted with
withtheir
their own
ownnational
national security
securitychallenges.
challenges.
states say from what they in fact do when
I

I

~ro\'ided

~e

37 Congress provided a comprehensive
comprehensive frameworlc
framework for
for discharging
discharging the obligations
obligationsof
ofthe
the United
United States'
States ,
._under
under the
the Geneva Conventions,
Conventions, and
and such
such legislation properly influences our constmction
construction of the
the Geneva
I
implementing our treaty
treaty obligations,
obligations, and that legislation
Conventions. Congress regularly enacts legislation impleme.nting
I
provides definitions for undefined treaty terms or otherwise specifies lhe
the domestic
domestic l~gal
legal effect
effect of
of such
such treaties.
treaties. See
Se~
I

51

P

1

FROM'SITE

IS

OOJ

I .

;

i

I!
j

I1

acts, the amendments allow our interpretation ofCommon
of Common
statutorily prohibiting certain specific acts,
of relatively less serious conduct (i.e.,
(i.e., conduct that falls
fells short
Article 3 to focus on the margins ofrelatively
breach). Accordingly, we need not decide the outer limits of
of conduct permitted by
of a grave breach).
prectices,
certain provisions of Common Article 3, so long as we determine that the CIA's pre.ctices,
limited as they are by clear statutory prohibitions and by the conditions and safeguards applied
of Common Article 3.
3. For that interpretive task,
by the CIA, do not implicate the prohibitions ofCommon
the War Crimes Act addresses five specific terms of
of Common Article 3 by name-"torture:'
name—"torture,"
"mutilation," and the '"taking
"taking of hostages." Although the War
"cruel treatment," "murder," «mutilation,"
Crimes Act
Act does not by name mention the
the three
three remaining relevant 'tel111s-"violence
terms—"violence to life and
Crimes
person,"
"outrages
upon
personal
dignity,
in
particular,
humiliating
and
degrading treatment,"
treatment,'1
person," "outrages upon personal dignity, in part:i:cular, humiliating and degrading
and the
the overarching
overarching requirement
requirement of
of "human
"humanefj"
treatment—the Act
Act does
does address
address them
them in
in part
part b~
by
and
eO" treatment-the
identifying and
and prohibiting four other «grave
"grave breaches" under
under Common Article 3.
3. Three
Three ofthes~
of these
offenses—performing biological
biological experiments,
experiments, rape.
rape, and sexual
sexual assault
assault or
or abuse,
abuse, see
see 18
18 U.S.C.
U.S.C. I
offenses-performing
2441(dXl)(C), (G),
(G), (H)-involve
(H)—involve reprehensible conduct
conduct that Common Article 3 surely
§§ 2441(dXl)(C),
!
offense—intentionally causing serious bodily injury-whicij
injury—which
prohibits. The Act includes another offense-intentionally
of "willfully causing great suffering
suffering or
may have been intended to address the grave
gra~e breach of"wi11ful1y
I'
130. This grave breach is not directly
serious injury to body or health," specified in Article 130.
linked to Common Article 3 by either its text, its drafting history, or the ICRC Commentaries;
"serious bodily injury" offense in the War Crimes Act may substantially
nevertheless, the ··serious
overlap with Common Article 3'
3'ss prohibitions on "violence to life and person" and "outrages
upon personal dignity."
•

of [the War Crimes Act]
Act
Congress also stated in the MCA that the amended "provisions of
fully satisfy the obligation under Article 129 ofthe
of the Third Geneva Convention for the United
effective penal sanctions for grave breaches which are encompassed in
States to provide effective
common Article 3 in the context
conte>..1 of an armed conflict
conflict not of
of an international character." MCA
6(a)(2). This statutory conclusion sugges"1.S
suggests the view of Congress that the terms "murder,"
"murder,"
§ 6(a)(2).
,
treatment," "torture," and the "taking of
hostages" in Common Article 3 are
ofhostages"
"mutilation," "cruel treatment,"
properly interpreted to be cotenninous
coterminous with the identically named offenses
offenses in the War Crimes
Act. Article 130 of
the Third Geneva Convention e>q>ressly
expressly states that two of
these offensesoffenses
ofthe
ofthese
!
("willful
killing"
in
Article
130)—are
grave
breaches.
As
explained
below,
torture
and
murder
torture and
C'willful
130)-are
below, I
international commentators and tribunals believe that a third offense—cruel
treatment—is
offense-cruel treannent-is
.
identical to the grave breach of
of "inhuman treatment" in Article 130. To criminalize only a subset
of
those acts would not be consistent with the obligation of
of the United States under Article
Aniele 129 I
ofthose
38
of
GPW,
and
Congress
believed
it
"fully
satisfied]"
that
obligation
in
the
MCA.
In
any event'l'
event,
of
"fully satisf[ied]"
38
no legislative history indicates that Congress believed the
~he War Crimes Act left
left a gap in coverage

I
I

I

I

e.g.,
U.S.C§§§§201·208
201-208(addressing
(addressingthethe
scope
of the
Convention
Recognition
of Foreign
Arbitral
Awards);
e.g., 99U.S·.c.
scope
of the
Convention
on on
the the
Recognition
ofForeign
Arbitral
Awards)~
18 U.S.C.
U.S.C.§§1093
1093(unplementing
(implementingand
anddefining
definingterms
termsofof
Convention
Prevention
Punishment
of the
18
thethe
Con\'CIltion
onon
thethe
Prevention
andand
Punishment
of the
Crime of Genocide);
Genocide); 17
17 U.S.c.
U.S.C.§§116(a)
116(a)
(defining
terms
of the
Convention
for Protection
the Protection
of raJ)'
Literary
and Artistic
(defining
terms
of the
Convention
for the
of Lite
and ArtistiC,
Works); 18 U.S.c.
U.S.C §§2339C
2339C(defming
(definingterms
termsofofthe
theInternational
InternationalConvention
Convention
Suppression
of the
Financing
forfor
thethe
Suppression
oethe
Financing
of iof
Terrorism);
26 U.S.C.
U.S.C.§§894(<:)
894(c)(intctpreling
(interpretingthetheUnited
United
States-Canada
Income
Treaty
1980).
TelTOrism); 26
Stales-Canada
In~mc
Treaty
of of
1980).
I
x

jlI We 'need
the
other
terms
of conunoJ
need not
notdefinitely
definitelyresohre
resolvethe
theqaestion
questionofofCongress's
Congress'sintention
intentionasastoto
thetwo
two
other
terms
of Common
Article 3 defined
defined ininthe
theWar
WarCrimes
CrimesAet-"mutilation"
Act—"mutilation"and
andthethe
"taking
hostages"—neither
which
appears
"ta.ldng
of of
hostages"-neithez
of of
which
appears
expressly in Article 130
130 of
of GPW.
GPW. These
Theseoffenses
offensesare
arenOI
notimplicated
implicatedbybythethe
proposed
CIA
iraerrogatJon
methods.
proposed
CIA
interrogation
methods.

52

FROM SITE 15

DO~

(FRI)JI.IL

20

2007

15:14/ST. 16:13/NO.e16042S778

with
with respect
respect to
to any
any of
of its
its offenses
offenses that
that expressly
expressly address
address by
by name specific prohibitions in
Common
Article
3.
Combining
Congress's
view
in
its
implementing
legislation with our own
its
Common Article 3. Combining Congress's
s relevant
s
analysis
analysis ofCommon
of Common Article
Article 3'
3 's
relevantterms.
terms, including
including the
the alignment
alignment of
of Congress'
Congress's
definitions
definitions with
with interpretations
interpretations of
of international tribunals,
tribunals, we conclude below that Congress's
view
view isis correct
correct and
and that
that itit has
has in
in the
the War
War Crimes
Crimes Act fully and correctly defined the terms at
issue.
issue, namely
namely "'torture"
"torture" and
and "cruel
"cruel treatment."
treatment."
J.
3.

Congress
Congress in
in the
the MCA also
also made
made clear, however, its view that the grave breaches definedj
defined)
1
in
in the
the Wax
War Crimes
Crimes Act
Act do
do not exhaust the obligations of the United States under Common
Article
Article 3.
3. The War Crimes Act, as amended, states that "the definitions [in the War Crimes Actj
Act
are
of the
are intended only to define the grave breaches ofCommon
of Common Article 3 and not the full scope of
th
United
United States
States obligations under that Article."
Article." 18
18 U.S.C.
U.S.C. §§2441(d)(5).
2441(d)(5). A$
As to
to the
the rest,
rest, the
the Act
Act
states
states that the
the President may "promulgate higher standards and administrative regulations for
MC4
violations
violations of treaty obligations which
which are not grave breaches ofthe
of the Geneva Con~ntions."
Conventions." MC
§6(a)(3)(A).
§ 6(a)(3)(A).

I
I

Our inquiry with respect to the residual meaning ofCommon
of Common Article 3 is therefore"
therefore
or.
confined to the three terms not expressly defined in the War Crimes Act—"violence
Act-"violence to life or"
dignity," and "humane" treatment-to
treatment—to the extent those terms
person," "outrages upon personal dignity,"
beyond what is covered by the fQur
four additional offenses
offenses under the War Crimes Act
Act.
have meaning be~ond
above. 9 The President, Members of
of Congress,
described above.
Congress, and even
even Justices
Justices of
ofthe
the Supreme
Supreme
troublingly vague and that post
Court in Hamdan have recognized that these provisions are
aretroublingly
post hoc
interpretations by courts, international tribunals, or other state parties would be difficult
difficult to
of certainty. See,
predict with an acceptable degree of
See. e.g..
e.g., Address of
of the President, East
East Room,
Room.
White House (Sept. 6.2006)
6,2006) ("The problem is that
these
[e.g.,
'outrages
upon
personal
dignity,
that
(e.g.,
dignitY'11
in particular, humiliating and degrading treatment'] and other provisions of
of Common
Common Article
Three are vague
vague and
and undefmed.
undefined, and each could be interpreted in different
Three
different ways by American
American and
ana
judges.");
152
Cong.
Rec.
S10354-02,
S10412
(Sept.
15,
2006)
(Statement
of
Sen.
foreign
foreign judges."); 152 Congo Roc. 510354-02,510412 (Sept. 15,2006) (Statement ofSen.
McCain) ("Observers have commented that, though such
sUch 'outrages
'outrages [upon personal
personal dignity)' are
difficult to define precisely, we all know mem
them when we see them. However, neither I nor any
difficult
of this
this body should want
want to prosecute and
and potentially
potentially sentence
sentence to
to death
d
other responsible member of
any individual
individual for
for violating
Hamdan, 126
126 S.
S. Ct.
Ct. at
at 2798
any
violating such
such aa vague
vague standard.");
standard."); Hamdan,
2798 ("Common
("Common
Article 33 obviously
obviously tolerates
flexibility in
Article
tolerates aa great
great degree
degree of
offlexibiIity
in trying
trying individuals
individuals captured
captured during
during
armed conflict;
armed
conflict; its
its requirements
requirements are
are general
general ones.");
ones."); id
id at
at 2848
2848 (Thomas,
(Thomas, J.,
J., dissenting)
dissenting)
(characterizing provisions
Common Article
Article 33 as
as "vague"
"vague"' and
and "nebulous").
"nebulous").
(characterizing
provisions in
in Common

I

..

cl

this

They were not the first to remark on this uncertainty, nor is the uncertainty
uncertainty an
an accident.
found it "dangerous
"dangerous to
to try
try to
to go
The Commentaries explain that the Conventions' negotiators found
into too
tao much detail" and thus sought
sought "flexible" language that
that would
would keep
keep up
up with
with unforeseen
unforeseen
circumstances. Pictet,
at 39;
39; see
see IV
IV Co~zmentaries,
Commentaries, atat204-05
204-05("It
('It seems
seems
Pict.et. III
mCommentaries,
Commentaries, at
39
weclI.-plain
explainbelow,
below,Congress
Congresscorrectly
correctlydefined
definedthethecontent
content
of Common
Article
prohibitions
3' As we
ofCommon
Article
3'53's
prohibitions
onon

cruel
the War
WarCrimes
CrimesAct's
Act's"crud
"crueland
andinhuman
inhumantreatment"
treatment"
offense.SeeSee
infra
at pan
IV.B. l.b.
crl1cl treatment in the
offense.
infra
at pan
IV.BJ.b.

53
l.

?

CFR') JUL 20

~007

150: 1 ~/$T. 15: 13/NO.

t,HIO~2G77e p

useless or even dangerous to attempt to make
make aa list
list of
of all
ail the
thefactors
factors which
which make
maketreatment
treatment
humane."'); see
Conferences
ofGeneva
of 1949,
at 248at 248
'humane.'");
see also
also 2A
2AFinal
FinalRecord
RecordojDiplomatic
of Diplomatic
Conferences
of Geneva
of 1949,
CMr.
("Mr, Maresca
Maresca (Italy)
(Italy)thought
thought that
that itit gave
gavegreater
greaterforce
forcetotoaarule
ruleififhe
hemerely
merelystated
staledits
its
I
fundamental principle without any comments~
comments; to
to enter
enter into
intotoo
toomany
manydetails
detailscould
couldonly
onlylimit
limitits
itsI
fundamental
.
scope.").
C

'I

ij

The difficult
applying these remaining terms
difficult task of
ofapplying
tenns is substantially assisted by two
interpretive tools established in United States practice as
as well
well as
as international
international law.
law. The
The first
first of
of
these turns to more developed United States legal
legal standards-similat
standards—similar to those set forth in
Common Article 3—to
to Common Article 3'5
3's otherwise general tenns.
terms. This
This
3-to provide content to
approach
is expressly recOmmended
recommended by Congress in the Military Commissions Act,
Act, which
approach'is
reaffirms
stand~ds of treatment extended abroad and to aliens by the Detainee
Detain~
reaffirms the constitutional standards
Treatment Act. The MCA ~rther
further prov.ides
provides that any violation of the constitutional standards in i
the Detainee Treatment Act in connection with a Common Article
Article 3 armed
armed conflict
conflict constitutes
constitutesaa
6(a)(1). The
TheMeA
MCAtbus
thusbotb
bothpoints
pointsus
ustotopartiaJ1al
particular
violation of
Common Article
ofCommon
Article 3.
3. See
See MCA §§ 6(aXl).
domestic law in applying Common Article 3 and
and leaves
leaves open
openthe
thepossibility-advanced
possibility—advanced by
by man~
many
during the debate over the MeA-that
MCA—that compliance with the DTA
DTA as
as well as
as the specific criminai
criminal
prohibitions in the War Crimes Act would fully satisfy the
the obligations of the United States
State's under
unde1r
Common Article 3.

f'

I

During the legislative debate over the Military Commissions Act,
Act, Secretary ofState
of State
State Department
Department believed
believed that
that Congress
Congress reasonably
reasonably could!
could1
why the State
Condoleezza Rice explained .why
declare that compliance with the DTA would
would satisfy United States
States obligations under Common
Article
3:
Article 3:

I

In a case where the treaty's terms are inherently vague, it is appropriate for a state
precedents, concepts and
and noons
norms in interpreting
to look to its own legalframework,
framework, precedents,
these terms and carrying out its international obligations.
obligations....
. .. The proposed
U.S. adherence to Common Article 3 ofthe Geneva
legislation would strengthen U.S.
Conventions because it would add meaningful definition and clarification to
vague tenns
.
terms in the treaties.
treaties.
In the department's view,
view, there isis not,
not, and
and should
should not
not be.
be, any
any inconsistency
inconsistency with
with

(a) and
and (c)
(c) of
respect to the substantive behavior that is prohibited in paragraphs (a)
ofCommon
Common Article
Article33 and
andthe
thebehavior
behaviorfraat
thatisisprohibited
prohibitedasas"cruel,
"cruel,
Section 11 of
inhuman, or degrading treatment or punishment."
punishment," as that
that phrase
phrase isis defined
defined in
in the
the
inhuman.
U.S. reservation to the Convention Against Torture.
Torture. That substantive standard
U.S.
was also utilized by Congress in the Detainee Treatment Act.
Act. Thus
Thus itit isis aa
... that
reasonable, good faith interpretation of Common Article 3 to
to state
state...
thatthe
the

I
II
!

II.

prohibitIons
prohibitions found in the Detainee
Detainee Treatment
Treatment Act
Act 0[2005
of 2005 fully
fully satisfy
satisfy the
the
the United States with respect to the standards
standards for detention and
obligations of the
paragraphs of Common
Common Article
Article 3.
3.
treatment established in those paragraphs

Condoieezza Rice
Rice to
to the
theHonorable
HonorableJohn
John Warner,
Warner,Chairman
Chairman of
ofth
the
Letter from
from Secretary of State Condoleezza
Senate Armed Services Committee (Sept,
(Sept. 14.2006)
14, 2006) ("Rice
("Rice Letter").
Letter"). In
In enacting
enacting the
the MeA,
MCA,
[
Congress did not specifically declare that the satisfaction
satisfaction ofthe
of the DTA
DTA would
would satisfy
satisfy United
United States
States

I

.

TO

,

T

.

I
.

54

~ROM

SITe

15

OOJ

I

obligations under
under Common
Common Article
Article 3,
3, but
but Congress
Congress took
took measures
measures to
to leave
leave open
open such
such an
an
obligations
I
interpretive decision,
decision. In
In particular.
particular, section
section 6(a){3)
6(aX3) ofthe
of the MeA
MCA expressly
expressly delegates
delegates to
to the
the
interpretive
I
President the
the authority
authority to
to adopt
adopt such
such aa "reasonable,
"reasonable, good
good faith
faith interpretatio~
interpretation of,Common
of Common
President
.1
Article
Article 3,"
3,"and
and section
section 6(a)(I)
6(a)(1) provides
provides that
that the
the prohibition
prohibition under
under the
the DTA
DTA ISis dIrectly
directly relevant
relevant 1~
in
interpreting
interpreting the
the scope
scope of
of United
United States
States obligations
obligations under
under Common
Common Article
Article 3.
3.
every violation
violation ofthe
of theDTA
DTA
is striking that
that Congress
Congress expressly
expressly provided
provided that
that every
ItIt is.striking

.j
'I
'J

,I!

.

"constitutes [a]
[a] violation[]
vioiation[] ofcommon
of common Article
Article 33 ofthe
of the Geneva
Geneva Conventions
Conventions prohibited by
by Unitefl
United
"constitutes
States law."
law." MeA
MCA §§ 6(a)(1).
6(a)(1) Especially
Especially in
inthe
thecontex1
context ofthe
of the legislative
legislative debate
debate that
that accompaniqd
accompanied
States
of the Military Commissions Act,
Act, this
this statement
statement suggests
suggests a belief that the traditional
traditional
the passage ofthe
into the
the DTA
DTA very
very closely
closely track
track the
the humanitarian
humanitarian standard~
standards
constitutional standards incorporated into
Common Article 3.
3. If
If the fit were loose,
loose, it w?uld.be
would be difficult to forecl?se
foreclose the possibility that j
of Co~o~
violations oftheDTAwould
of the DTA would not also
also be ViolatIons
violations of Common Article 3,
3, unless CongreSS
Congress
some VIolatIOns
all cases more protective than the domestic
domestic
. were of the view that Common Article 33 isis in aU
our own citizens.
citizens.
constitutional provisions applicable to oW"
I

I
I

The manner in which Congress reaffirmed the President's authority to interpret the
of grave breaches, is consistent with the suggestion that the
Geneva Conventions, outside ofgrave
with the requirements of
Detainee Treatment and War Crimes Acts are substantially congruent With
set
Common Article 3. The Military Commissions Act, after identifying both the grave breaches se't
of the DTA
out in the War Crimes Act and transgressions ofthe
DTA as violations
violations of
ofCommon
Common Article
Article 3,
3,
states that the President may "promulgate higher standards and administrative regulations for
violations of treaty obligations which are not grave breaches
breachesof
ofthe
the Geneva
GenevaConventions."
Conventions."
MCA § 6(a)(3)(A) (emphasis added). The provision does not mention the DTA: While the
provision indicates that
Common Article 3 that are not grave breaches
that there are
are violations of
ofCommon
covered
covered. by the War Crimes Act, it also implies that the DTA may address those additional
violations.
18 U.S.C.
U.S.C. §§ 2441(d)(S),
2441(d)(5), as
as amended
amended by
by MCA
MCA §§ 66 (stating
(stating that
that "the
"the
See also
also 18
violations. .See
definitions
Common
[in the War
War Crimes
Crimes Act]
Act] are
are intended only
only to
to define
define the grave breaches
breaches of
ofCommon
definitions [in
Article
3
and
not
the
full
scope
of
the
United
States
obligations
under
that
Article").
. ,.
Article 3 and not the ~ll scope ofthe United States obligations under that Article").
DIA's standard of
of humane treatment to Common Article 3, Congress ,
In applying the DTA's
histoJ)' of
ofthe
I
was acting in accordance with a practice grounded in the text and history
the Geneva
Conventions. The Conventions
COJ:.lvemions themselves recognize that, apart from "grave breaches," the state
stat~
parties have some flexibility
flexibility to
t9 consult
consult their own legal traditions in implementing
implementing and
I
discharging their
their treaty
tre&"y obligations. Although parties are obligated
obligated to prohibit
prohibit grave breaches,
discharging
ft 1-2.
with "penal sanctions," see GPW Art. 129ffl]
1-2, the Conventions require parties "to take
necessa..")' for the suppression
suppression of
of other breaches of
ofthe
Convention[s]," id
id. <$
~ 3.3.The
measures necessary
the Conventionls],"
The
Commentaries
Commentaries also suggest
suggest such
such an approach
approach when they explain
e),plain that
that Common
Common Article
Article 3 was
drafted
state parties: It
drafted with reference
reference to the then-existing
then-existing domestic laws of
ofstate
It "merely
"merely demands
respect
for
certain
rules,
which
were
already
recognized
as
essential
in
all
civilized
respect for certain
which were already recognized essential
civilized countries, and
ane
embodied
in
the
national
legislation
of
the
States
in
question."
Pictet,
III
Commentaries,
at 36. I
em\;>odied in the national legislation of the States
Pietet, ill
Not
Not only
only was
was the
the United
United States
States among
among the
tbe Conventions'
Conventions' leading
leading drafters,
drafters, but
but itit was
was then
then (as
(as itit is
is
now)
the world.
now) among
among the
the leading
leading constitutional
constitutional democracies
democracies of
ofthe
~vorld. It
It is
is therefore
therefore manifestly
manifestly
appropriate
appropriate for
for the
the United
United States
States to
to consider
consider its
its own
own constitutional
constitutional traditions—those
traditions"':'-those rules
rules
"embodied
"'embodied in
in the
the national
national legislation"
legislation" of
ofthe
the United
United States—in
States-in determining
determining the
the meaning
m~ning of
ofthe
the

I
I

5S

FROM SITE:5

DOJ

(fRI)JUl..

20

2007

t5:iS/ST.l!S:IS/NO.l5111042G778

general standards embodied in Common Article 3. The DTA incorporated constitutional .
standards from our Nation's legal tradition that predate the adoption of
ofthe
the Geneva Conventions;
Conventions

II

.

Indeed, the United States previously bas
clarify ambiguous
has looked to its own law to clarify
treaty terms in
in similar treaties. A leading example is now embodied in the DTA itself. Faced
with an
refrain from
from "cruel,
"croel, inhuman,
inhuman. oorr
an otherwise undefined and
and difficult-ta-apply
difficult-to-apply obligation to refrain
degrading treatment" in ~i~le
Article 16 ~f
of the CAT, the Senate turned
to
our
Nation's
constitutional
tu~ed ~o Nation:s
I
and made clear In
in Its
its adVice
advice and
and consent that the obligation
the United
standards and
obligatIon of
ofthe
Untted States under
undcrl
j
this provision would be determined by reference to the Fifth,
Fifth. Eighth, and Fourteenth
See Executive
ExecutiveBranch
BranchSummary
SummaryandAnalysis
and Analysis ofthe
of theCAT
CA
of the U.S. Constitution. See
Amendments ofthe
15-16, S.
S. Exec.
Exec. Rep.
Rep. 101·30,
101-30, Convention
ConventionAgainst
AgainstTorture
TortureandOther
andOther Cruel.
Cruel,Inhuman
Inhumanoror
at 15-16;
Degrading Treatment
Treatment or Punishment at ~5-26
25-26 (Aug. 30:
30, 1990); see
see also ~
Samarmv.v._•
F.2d
461,
463
(4th
Cir.
1963)
(looking
to
a
more
detailed
definition of a term
Commissioner,
313
Commissioner, 313 F.2d 461, 463 (4th Clr. 1963) Oooking to a more detatled definItion
in a domestic U.S. tax statute to interpret a
a comparatively general treaty term).
tenn). As with
With the
the
Geneva Conventions, this approach was at least suggested by the treaty itself,
which
required I
itself.
to "undertake
"undertafcetotoprevent
prevent...
cruel,inhuman,
inhuman,or
ordegrading
degradingtreatment
treatment or
orpunishmenti'
punishment/'
state parties to
... cruel,
Art. 16 (emphasis added); see Eucutive
ExecutiveBranch
BranchSummary
Summaryand
andAnalysis.
Analysisof
ofthe
theCAT,
CAT,S.S.
CAT Art.
Doc. 100-20 at 15
15 (explaining
(explaining that
that this
this language
language isis "more
"more limited"
limited" than
than aa "stringent
"stringent
Treaty Doc.
and «embodies
"embodies an undertaking to take meas-Ilres
measures to prevent" violations within the
prohibition" and
rubric of existing domestic legal
iegal StIUCtureS).40
structures).40
.

I
I

I

The second interpretive tool applicable here attempts to reconcile the residual
conflict against al Qaeda.
imprecision in Common Article 3 with its application to the novel conflict
When treaty drafters purposely employ vague and iJI-defined
ill-defined language, such language can reflect
a conscious
conscious decision to
to allow state parties to
to elaborate on the meaning ofthose
of those terms as they
confront circumstances unforeseen at the time ofthe
of the treaty's drafti
drafting.
c.cnfront
ng.

in

I

I

I

first interpretive principle, this approach shares the support of
Like our fIrst
of Congress through
the framework established in the Military Commissions Act. In that Act, Congress chose to keep
ke4p
of the courts, and recognized that the Executive Branch has
the Geneva Conventions out ofthe
/;
in interpreting Common Article 3 (outside the grave breaches) to provide good faith
discretion in
terms to evolving circumstances. The explicit premise behind the Act's
Act'j
applications of its vague tenns
Government
comprehensive framework for interpreting the Geneva Conventions is. that our Government
and the
the Conventions permitted.
permitted, a range ofdiscretion
of discretion for addressing the threat against the
needed, and
tlie
al Qaeda. As we discussed in the context of
the DTA,
United States presented by al
ofthe
DTA, Congress
Con2Tcss
knew that a CIA interrogation program had to be part of
l'1lew
of that discretion, and thus a guiding
MCA : s enactment was that the CIA's program could
"go forward"
objective behind the MCA's
could«go
fOJWud" in the
offfamdan.
Hamdan. See supra at 43-44. This is not to say that the MCA declares that any conduct
condu~
wake of
I

<0

the United Slates
States undertook a reservation
co As a formal matter, the.
JeSCl'\'lltion to the CAT, altering United States
J
treaty. The United States made clear,
than invoking domestic law as a means of interpreting the treaty.
obligations, rather than
clear.
that itit understood
understood the
the constitutional traditions
traditions of
of the
the United
United States
Statesto
tobe
be more
more than
thanadequate
adequate to
tosatisfy
satisfy the'
the]
however, that
or degrading
degrading treatment
treatment or
or punishment"
punishment"slandard
standardrequired
requiredby
bythe
thetreaty,
treaty,and
andtherefore,
therefore, ititWldertook!
undertook!
"cruel, inhuman or
the reservation out·
out'of
not because
the
of an abundance of caution and Dot
beQuse it believed that United States law would fall short of
elf
the obligations wtder
under Article 16,
16, properly understood. S. aec.
E*ec. Rep. 101-30, Convention
Against Torture
Tortureand
andOJh~r
Other
the
UJnvention Agafnst
Cruel, Inhuman
InhumanororDegrading
DegradingTreatment
Treatment
Punishment
at 25-26
(Aug.
19°0).
Crue~
oror
PunlsllmDlI
at 25-26
(Aug.
30,30,
1990).
'

56

P

1

FROM SITe

15

DOJ

(FRI)JUI.

20 2007

15:"l!~/ST. 15:1!/r40. 61604:2.776

falling under the auspices of a CIA interrogation program must be consistent with Common
Article 3. To the contrary, Congress recognized that Common Article "33 establishes some clear
limits on such a program. Nevertheless, the result of lingering imprecision in Common
Article 3'5
3's terms should not be institutional paralysis, but rather discretion for'the
for the Executive
. Branch in developing an effective CIA program within those clear limits.
limits.

i

,I

I

I
I

I

Common Article 3 certainly places clear limits on how a state party may address such
offensive to "all civilized nations." Pictet, ill
III
challenges and absolutely bars certain conduct offensive
Commentaries,
at
39.
For
instance,
the
provision
prohibits
"murder
of
all
kinds,"
"mutilation,"
Commentaries,
of
taking ofhostages"-terms
of hostages"—terms that are susceptible to precise definition and that "are and
and "the takiog
whatsoever." When it comes.
comes, however, to
shall remain prohibited at any time and in any place whatsoever,"
Common Article 3's more general prohibitions upon "violence to life or person" and "outrages
of those
upon personal dignity," it may become necessary for states to define the meaning ofthose
prohibitions, not in the abstract, but in their application to the specific circumstances that arise.
Indeed, the ICRC Commentaries themselves contemplate that "what constitutes humane •
treatment" would require a sensitive balancing of both security and humanitarian concerns.
Depending on the circumstances and the purposes served, detainees may well be "the object of
strict measures since the dictates of humanity, and measures of security or repression, even when •
they are severe, are not necessarily incompatible." Id at 205 (emphasis added). Thus, Common
Article 3 recognizes that state parties may act to define the meaning of humane treatment, and i; 5
related prohibitions, in light of the specific security challenges at issue,
The conflict with ai Qaeda reflects precisely such a novel circumstance: The application
of Common Article 3 to a war against international terrorists targeting civilians was not one
contemplated by the drafters and negotiators of the Geneva Conventions. As Common Article 3
was drafted in 1949, the focus was on wars between uniformed armies, as well as on the
atrocities that had been committed during World War II. A common feature of the conflicts that
served as the historical backdrop for the Geneva Conventions was the objective of the parties to
engage the other's military forces. As the ICRC described the matter, "Speaking generally, it
must be recognized that the conflicts referred to in Article 3 are armed conflicts, with armed j
forces on either side engaged in hostilities—conflicts, in short, which are in many respects
similar to an international war, but take place within the confines of a single country." Pictet, III
Commentaries, at 37 (emphases in original).41
Al Qaeda in its war against the United States and its allies is not organized into
battalions, under responsible command, or dressed in uniforms, although we need not decide
whether these hallmarks of unlawful combatancy set al Qaeda into a class by itself. What is
undoubtedly novel from the standpoint of the Geneva Conventions is that al Qaeda's primary

·

.j

" Thus, although the Supreme Court rejected the President's determination that Common Article 3 did not
apply to the conflict against al Qaeda. there can be little doubt that the paradigmatic case for the drafters of Common
Article 3 was an internal civil war. 2B Final Record ofthe Diplomatic Conference of Geneva of 1949, at 121; see
a/so Pictet, m Commentaries, at 29. A thorough inteipretation of Common Article 3 mustreflectthat Common
Article 3, at a minimum, is detached from its historical moorings when applied to the present context of armed
conflict with al Qaeda.

·•
i

.i

57

P 2

r - - - - - - - - - - - - - . -_._-_ .....

FROM

$ITE

15

OOJ

{FRI)JUL

20

2 .. 07

15:16/5._ '5:iS/IolO.lli60~211775 i"

means of
ofwarfare
is not
not to
to vanquish
vanquish other
otber uniformed
unifonned armies
armies but
but rather
rather to
to kill
kill innocent
innocent civilians.
civilians.
warfare is
not resemble.the
resem~le.the insurgent
insurgentforces
forces of
ofthe
domestic rebellions
rebellionsto
towhich
which
the domestic
In this way, al Qaeda does not
drafters and negotiators of
·ofCommon
Article 3 intended to apply long-standing principles
principles of
of I
the drafters
Common Article
ofwar
for national
national armies.
armies. Early
Early explanations
explanations of
ofthe
personsprotected
protected from
from !
the persons
the law of
war developed for
by.aa state party
action by.
party under Common Article 3 referred
referred to
to the
the"party
"party ininrevolt
revoltag'!-inst
againstthe
thedede i
jure
Government."
2B
Final
Record
ojthe
Diplomatic
Conference
ofGeneva
of
/949.
at
121 at I121
jure Government." 2B Final Record of the Diplomatic Conference of Geneva of 1949,
at 29
(explaining
thatthat
thethe
historical
impetusl
see also
alsoPietet,
Pictet,ill
IHCommentaries,
Commentaries,
at 29
(explaining
historical
impetus
(emphasis added); see
of Common Article 3 was bloody "civil wars
wars or
or social
social or
or revolutionary
revolutionary disturbances"
disturbances" in
in which
which !
of
the Red Cross had trouble intervening because they were entirely within the territory ofa
of a
sovereign state); id.
32(discussing
(discussingthe
theparadigm
paradigmmodel
modelof"patriots
of "patriotsstruggling
struggling for
for the
the
id. atat32
digiUty of
oftheir country"). Al
A1 Qaeda's
Qaeds's general means of engagement, on the
independence and dignity
hand. is to avoid direct hostilities against the military forces of
ofthe
United States
States and
and
I
other hand,
the United
cOmmit acts of
ofterrorism
instead to commit
terrorism against civilian targets.

I

I
I

I

I

Further supporting a cautious approach in applying Common Article 3 in the present
novel context.
ofCommon
Article 33 were not under the
context, the negotiators and signatories of
Common Article
was breaking new
new ground regarding the sUbs~ve
substantive rules that!
that
impression that Common Article 3 was
parties, apart from
to aa new
new category
category ofpersons.
of persons. They
They sought
sought
govern state parties.
from applying those rules to
formalize "principles [that had]
warfare and
to formaHze,uprinciples
had] developed as the result of
of centuries of
ofwarfare
and had
had already
already
the adoption of
the Geneva
become customary law at the time of
ofthe
ofthe
·Geneva Conventions
Conventions because
because they
they
Delalic,Case
Case
reflect the most universally recognised humanitarian principles."
principles.'" Prosecutor
Prosecutor v.v.Delalic.
No. IT·96-21-A
IT-96-21-A (ICTY Appellate Chamber 2001);
2001); see
seealso
alsoPietet,
Pictet,illmCommentaries.
Commentaries,
at 36 i
No.
at 36
(explaining that Common Article 3 establishes rules "which were already
alreadyrecognized
recognizedasasessential
essential
in all civilized countries") (emphasis added). Ofcourse.
Of course, the application ofCommon
of Common 'Article
Article 3's I
conflict with
with terrorists
terrorists who
who are
arefocused
focused on
onthe
thedestruction
destructionof
ofcivilian
civilian
general standards to a conflict
targets, a tYPe
type ofconflict
of conflict not clearly anticipated by the Conventions'
targets,
Conventions: drafters, would not merely
the result
resuit of centuries of warfare." Thus,
utilize the axiomatic principles that had "developed as the
we must
must be
be cautious
cautious before we
we construe
construethese
theseprecepts
preceptstotobind
bindaastate's
state'sbands
handsininaddressing
addressingsuch'
such.
we
threat to
to its
its c
civilians.
aa threat
ivilians.'
i

I

That aa treaty
treaty should
should not
not be
be light
lightly
construed to
to take
take away
away such
such aa fundamental
fundamental sovereign
sovereign
I}' construed
catastrophic attack-is
attack—is an
responsibility—to protect its
its homeland,
homeland, civilians,
civilians, and
and allies from
responsibility-to
from catastrophic
interpretive principle
principle recognized in
in international law.
law. See
SeeOppenheim's
Oppenheim International
's International
Law
Law
interpretive
633,atat 1276
1276(9th
(9th ed.
ed. 1992)
1992) (explaining
(explaining that
that the
thein
indubio
dubiomitius
mitius
canon
provides
that
treaties I
§§ 633,
canon
provides
that
treaties
should not
not be
be construed
construed to
to limit
limit aa sqvereign
sovereignright
of states
states in
in the
the absence
absence of
of an
an express
express
should
right of
I
agreement); cf
cf.Merrion
Jicarilla Apache
Tribe,
(1982)
("sovereign
power'
agreement);
Merrion \I.v.Jicarll/aApache
Tribe.
455455
U.S.U.S.
130,130,
148148
(1982)
("sovereign
power'j
cannot be
be relinquished
relinquished "unless
"unless surrendered
surrendered in
in unmistakable
unmistakable terms»)."3
terms").'" The
The right
right 10
to protect
protect its
its I
cannot

I
I

<~

<2
Asexplained
explained above,
above, the
the innovation
innovation of
of Common
CommonArticle
Article 33 was
was not
not to
to impose
impose wbolly
wholly novel standzrds
standards on
As
states,
but
toapply
apply the
the Jaw
law of
of \\oat
war to
tochit
civil W31$
wars that
that largely
largely shared
sharedthe
thecharacteristics
characteristics of
of intcmational
international armed
armed
states, but to
I
conflicts, while
whilelacking
lacking aastate
state part).
partyon
onthe
the opposing
opposing side
side that
thatcould
could be
beaaparticipant
participant in
inaafully
fully reciprocal
reciprocal trealy
treaty
conflicts,
I
111Commentaries,
Commentaries,atat37.
37.Although
Althoughthe
thedrafters
drafterswere
wereinnovating
innovatingbybybinding
bindingstates
statestotolaw
lawofof
arrangement See
See Pietet.
Pictet ll1
arrangement
warstandards
standardsabsent
absentan
anassurance
assurance that
thatthe
theenemy
enemy would
would do
do the
the same,
same, they
they believed
believed that
that the
the general
general baseline
wac
standardsthat
that would
would apply
apply under
underCommon
Common Article
Article 33 were
were unconltoversial
unconiroversia! and
and well
well established.
established.
standaIds

i

43

Thecanan
canonaf
ofin
indubio
dubio mitiilS
mitius(literally,
(literally, "when
"whenin
indoubt,
doubt,bring
bring calm")
calm")has
has been
been applied
applied by
by numerous
numerous
The
internationaltribunals
tribunalsto
toconsnue
construeambiguous
ambiguous treaty
treaty tenos
termsagainst
againstthe
the relinquishment
relinquishment of
of fundamental
fundamental sovereign
sovereign
international
43

58

FROM SITE 15

OOJ

CFlll)JUL

T

20 2007

le:IlI/ST.Hj:15/NO.SlllO~2S77S"

T

.

citizens
citizens from
from foreign
foreign attack
attack is
is an essential
essential attribute
attribute of
of aa state's
state's sovereignty.
sovereignty. Advisory
.Advisory Opinion on
onl
Legality of
a/the
I.CJ. 226,
266. To
the Legality
the Threat or Use o/Nuclear
of Nuclear Weapons,
Weapons, 1996
19961.CJ.
226,266.
Tobe
besure,
sure,the
the
negotiating Common
Common Article 3 clearly understood
understood that
that they were disabling themselves
!
states negotiating
from undertaking
undertaking certain
certain measures to defend
defend their governments against
against insurgents seeking to
i
overthrow
overthrow those governments, which
which inarguably is an important
important part
part of
of sovereignty. We would, I
however, expect
a-peet clarity,
clarity. in the text or
or at least in the Conventions
Conventions'1 negotiating history, before
before we i
would interpret
interpret the treaty provision
pro\~sion to prohibit the United States from taking actions
actiops deemed
critical to the sovereign function
function of
of protecting its citizens from
from catastrophic foreign terrorist
attack. Crucial here is that the CIA's program is determined to be necessary to obtain critical
,.
intelligence to ward off
off catastrophic foreign terrorist attacks, and that it is carefully
carefully designed to .
be safe and to impose no more discomfort
discomfort than is necessary to achieve that crucial objective,
fundamental
to
state
sovereignty.
Just as the "Constitution [of
the United States]
fundamental
[ofthe
States} is not a suicide
suicide'
pact," Kennedy v.
v. Mendoza-Martinez.
Mendoza-Martinez, 374
374U.S.
U.S. 144,
144,159
(1963), so
so also
alsothe
thevague
vague and
and general
general
159 (1963).
of the
ofComrnon
terms of
Common Article 3 should not be lightly interpreted to deprive the United States of
means to protect its citizens from terrorist attack.

I

I

I

This insight informs passages in the JCRC
ICRC Commentaries
Commentariesthat
thatsome
somehave
havecited
citedtotosuggest
suggest
that the provisions of
specific—should
of Common Article
Article' 3—to
3-to the extent they are not precise and specific-should
be read to restrict state party discretion whenever possible. The Commentaries indeed recognize
that, in some respects, adopting more detailed prohibitions in Common Article 3 would have
i
been undesirable because the drafters of the Conventions could not anticipate the measures that 1
men of
of ill will would develop to avoid the teons
terms ofa
of a more precise Common Article 3:
"However
great
the
care
undertaken
in
drawing
up
a list of
of all the various forms of
of infliction, it
ccHowever
of future torturers who wished to
would never be possible to catch up with the imagination offuture
,
satisfy dieir
their bestial instincts; and the more specific and complete a list tries to be, the more
satisfy
restrictive it becomes." Piclet,
Commentaries,atat39.
39. ItItisisno
nodoubt
doubttrue
truetherefore
thereforethat
that
Pictet, ill
HI Commentaries,
3 's general
general prohibitions
prohibitions do
do establish
establish principles.
principles that
that preclude
preclude aa range
range of
of
Common Article 3's
conduct.
conduct, and that they should not be subject to a technical reading that parses among conduct.
To the contrary, the principles in Common Article 3 are generally worded in a way that is
"flexible, and at the same time precise,n
precise," id,
id, and they call upon state panies
parties to evaluate proposed'
proposed
manner, in an effort to make compatible both "the dictates of humanity"
conduct in a good faith manner.
"measures of security a.,d
and repression" appropriate to defending
defending
towards combatants and the ·'measures
from inhumane attacks in the armed conflict at issue,
issue, it!.
id at 205.
205. We.
We, therefore,
therefore,
one's people from
below.
undertake such an inquiry below.

I

I

B.
of the three relevant terms under Common
These interpretive tools inform our analysis ofthe
3: paragraph l(a)'s prohibition on "violence to life and person, in
in particular murder of a1~
all
Article 3:
i
powers.
powers. See
Sec W.T.O.
W.T.O. Appellate
Appellate Body,
Body, EC Measures
Measures Conceming
ConcerningMeat
MeatandMeat
and MeatProducts
Products(Hormones),
(Hormones),
WT/DS267AB/R/ 1165,
% 165,n.n.154,
154,1998
WL25520,
25520,atat*46
*46(Jan.
(Jan.16,
16,1998)
(explainingthat
thatthe
the"interpretive
"interpretiveprinciple
principle
\1.t-rlDS261ABIRJ
1998 WI..
1998) (explaining
of
ft). For
of In
in dtlbio
dubio m/tius
mitiusis
is widely
widely recognized
recognized in
in intemationallaw
international lawas
asaa supplementary
supplementarymeans
meansof
of interpretation.
interpretation.'').
For
example, the
the International
International Court
Court of
of Justice
Justice refused
refused to
to construe
construe an
an ambiguous
ambiguoustreat)'
treaty tem
termto
tocede
cedesovereignty
sovereigntyover
over
example,
disputed territory
territory without aa clear
clear statement.
statement. See
See Ca.re
CaseCO/lCUTling
ConcerningSovereignty
Sovereigntyover
overPulav
Ligitan
andPulau
disputed
Pulau Ligitan
and
Puft11L
Sipaaan,
648.
Sipadan, 2002
2002 le.I.
I.C.J. 625,
625,648.

·59

t,JI.

I

~

I Q

UU.I

(fAl)JUL

20

2007

IS:\6/ST. IS:Hi/NO. 6'6Q42977S.?

kinds,
kinds, mutilation,
mutilation, cruel treatment and
and torture"~
torture"; paragraph l{c)'s
l(c)'s prohibition on "outrages upon
dignity, in particular, humiliating and degrading treatment"; and Common Article 3's ;
personal dignity.
humanely." Although it isisfirst
in the
the
overarching requirement that covered persons "be treated humanely."
first in
of Common Article 3,
3, we
we address the
the general
general humane
humane treatment
treatment requirement
requirement last,
last, as
as the
the
syntax ofCommon
becomes the extent of any residual obligations imposed by this
this requirement
requirement that
that are
are not
not I
question becOmes
in paragraphs
paragraphs l(a)-(d).
1 (a)-(d). .
addressed by the four specific examples of inhumane treatment prohibited in
1.
i.

by Common
Common Article
Article 3,3, the
theUnited
United States
Statesisisobligated
obligated not
not
Against those persons protected by
"violence to life and person.,
person, in particular murder
murder of aU
all kinds,
kinds, cruet
cruel treatment
treatment and
and
to undertake '.'violence
torture." GPW Art.
Art. ~1}l(a).
1(a).Paragraph
Paragraphl(a)
1(a)raises
raisestwo
tworelevant
relevantquestions:
questions:Will
Willthe
theCIA
CIA
torture."
program's use ofthe
of the six proposed techniques meet Common Article 3'$
3's general requirement to
avoid "violence to life and person," and will tbeir
their use involve either ofthe
of the potentially relevant
avojd
1(a)—torture at!d
and cruel
examples of "violence to life and person" denoted in paragraph I(a)-torture
treatment?
a.

techniques do
do not
not implicate
implicateCommon
Common Article
Article3's
3's general
generalprohibition
prohibition on
on
The proposed techniques
"violence" as
as lethe
"the exertion
exertion of
"violence to life and person." Dictionaries define the term ·'violence"
abuse." Wehster
Websters'sThird
Third
Jul
'1 Dictionary
at 2554.
physical force so as to injure or abuse."
/I1J
'1 Dictionary
at 2554.
TheThe
I
make clear
cleart~at
that "violence
"violence to
to life
life and
and person"
person"
surrounding text and structure of paragraph 1(a) make
Instead, Common Article 3
does not encompass every use of force or every physical injury. Instead.
I
provides specific examples of severe conduct covered by that tenn-murder.
term—murder, mutilation,
mutilation, torture,
torture,
and cruel treatment. As indicated by the words "jn
"in particular," this list is not exhaustive.
Nevertheless, these surrounding terms strongly suggest that paragraph l(a)
1(a) is directed at only
only
serious acts of
Steelworkers
ofAm.,
494494
U.S.U.S.
26.36
(1999)
of physical violence. Cf.
Cf.Dole
Dolev. v.United
United
Steehvorkers
ofAm.,
26,36
(1999)
("The
of construction, noscitur
noscituraasoens.
sociis,dictates
dictatesthat
thatwords
wordsgrouped
groupedinina alistlist i
C'The traditional canon of
meaning.").
should be given related meaning.").
J'

I
I

s~pported

.This
explain
thethe
prohibition.
This reading is supported by the ICRC Commenraries,
Commentaries,which
which
explainthat
that
prohibitions
lea) "concern acts which world public opinion finds particularly revolting—acts
revolting-acts I
in paragraph 1(a)
frequently during the Second World War." Pictet,
Pietet, III
m Commentaries,
Commentaries,
which were committedfrequently
at 39. International tribunals and other bodies similarly have
have focused on
on serious
serious and
and intentional
ofphysical
At the
the same time,
time. these bodies have had difficulty
difficulty identifying any
instances of
physical force. At
foUr specific examples of
residual content to the term "violence to life and person" beyond the four
enumerates.· The ICC's Elements ofCrimes
prohibited violence that Common Article 3 enumerates.
of Crimes does not
not;
from the four specific examples.
"violenCe to life or person" as an offense separatefrom
define "violence
examples. The
ICTY similarly has suggested that the term may
may.not
nothave
havediscernable
discernabiecontent
contentapart
apartfrom
fromits
itsfour
four
specified
"violence to life or person" is "defined by I
specified components.
componen;s. The tribunal initially held that '\.r:iolence
the accumulation of
the specific offenses
of the elements of
ofthe
offenses of'murder,
of'murder, mutilation, cruel treatment,
and torture,'"
torture, '" and declined to define other sufficient
sufficient conditions for the offense. Prosecutor
Prosecutor v.v. II
Blaskic,
IT-95-14-T, 1i%182
182(Trial
(TrialChamber).
Chamber).InInlater
latercases,
cases,thethetribunal
tribunalputputa finer
afiner
pointonon
BlasJ..ic, IT-95-14-T,
point
thethe ,
matter; at least for purposes of
imposing criminal
ofimposing
crimina! sanctions, the court could not identify
identify a
residual content to the
~e term "violence to life and person" and dismissed charges that the

I!

i
I

'

60

• • ••

........

.....

(Fl'lI)JUL

....'" of

20 2(,07

'5:le/ST.15:15/NO.61110~2917ep

to life or person"
person" that did not <OlIStilute
constitute torture, cruel
defendant had engaged in "violence to
treatment, murder, or mutilation. See Prosecutor v.
v. Vasiljel-ric,
Vasiljevic, Trial
Trial Chamber,
Chamber, mJ
ffij194-205
194-205
treatment.
(2003).
(2003). Even when prosecutors attempted to proffer elements of the "violence to life and
person" violation as a freestanding offense, they argued that the offense required the imposition
of"serious
of "serious physical pain or suffering," which would make it duplicative ofthe
of the prohibition on
"cruel treatment." Id
Id

II
I

We Conclude
conclude that the proposed CIA techniques are consistent with Common Article 3's
3's
prohibition on "violence to life and person." As we explained above, Congress strictly
forms of violence to life andperscin,
and person, and the techniques do not involve,
involveprohibited several serious fonns
of these. The ICRC Commentaries have
have suggested that "performing biological experiments'j
experiments'
any ofthese.
of "violence to life and person" that, although not explicitly listed as an
would be a type of"vioJence
!
paragraph 1(a).
Pictet, ill
HI Commentaries, at 39. The
example, is also prohibited by paragraph]
(a). See, e.g., Pietet,
involve biological experiments, and indeed the War Crimes Act
CIA techniques do not lov.oIve
absolutely prohibits them. See 18 U.S.C.
U.S.C. § 2441(d)(I)(C).
2441 (d)(1)(C). Whether
Whether or
or not
not those
those grave
grave breach
breach
offenses
exhaust
the
scope
of
"violence
to
life
and
person"
prohibited
by
Common
Article
3, we
offenses
3.
person" refers to acts ofviolence
of violence serious enough to be
are confident that "violence to life and person"
3-—murder, mutilation,.
mutilation,
considered comparable to the four examples listed in Common Article 3-murder,
of p~ysicaI
physical for
force
torture, and cruel treatment. The CIA techniques do not involve the application of
rising to this standard. While the CIA does on occasion employ limited physical contact, the
carefully limited:
limited:
"slaps" and "holds" that comprise the CIA's proposed corrective techniques are carefulJy
in frequency
avoid the imposition of
of
frequency and intensity and subject to important safeguards to avoJd
significant
pain.
They
are
designed
to
gain
the
attention
of
the
detainee;
they
do
not
constitute
significant
of
the type ofsenous
of serious physical force thet
th2t is implicated by paragraph
paragrapb 1(a).
l(a).
!

I

I

I
WJ'
I

I

b.

The CIA interrogation practices also do not involve any of
of the four more specific forms
of "violence to.life
to. life or person" expressly prohibited by paragraph l(a}.
1(a). They obviously do not
of"violence
explained, do they involve torture. See Section
Section
involve murder or mutilation. Nor, as we have explained:
2340 Opinion and supra at 14. 44
**
.2340

**
«1nInthis
thisopinion
opinionand
andthe
theSection
Section2340
2340
Opinion,
Opinion,
we have
we have
concludecllhat
concluded that
the enhanced
the enhanced
interrogation
interrogation
techniques in question would not
U.S.C. §§234o-2340A
2340-2340Aor
orthe
rhe
nOl violate the federal prohibition on torture in 18 U.S.C.
see 18
1(d)(1)(A). Both
prohibition on torture in the War Crimes Act, see
18 U.S.c..
U.S.C.§§244
2441(d)(1)(A).
Bothof
ofthosc
thoseoffenses
offenses require
requireas
asan
an
of severe physical or menlal
element the imposition of
mental pain or suffering, 'wroch
which is consistent with international practice:
practice;
refl~ted in Article 1
J of
I
asreflected
ofthe
theOmvention
Convention Against
ApinstTorture
Tortureand
andthe
theICC's
ICC'sdefinition
definition ofCommon
CommonArticle
Article3's
3 's
prohibltion on torture. See DOnnann,
J (requiring
prohibition
Dormant!, ElelMnts
ElementsofCrimes
of Crimes8140
at 401
(requiringthe
theelement
elementofofinflicting
inflicting"severe
"severeph}'Sical
physical
su1fering" for torture under Common Article 3). The War Crimes
or mental pain or sufferins"
Crimes Act and the federal prohibition i
on
this more specific definition does
does not appear in
in the i
Gn torture further define "severe mental pain or suffering," and this
~ of
of the CAT or in the Rome Statute.
!
text
Statute. Instead,
Instead, thc
the soUC(:e
sourceof
of this
thisdefinition
definition isisan
anunderstanding
understandingof
ofthe
theUnited
United
States to its ratification
Cong. Rec.
Rec. 36,198
36,198(1990),
(1990). Torture
Torture isisnot
notturthezdefined
further defined inhiCommon
Common j
ratification of
of the CAT. See
See 136 Congo
entcr an understanding to that instrument.
instrUment. That
1'bat the more detailed
.
Article 3, and the United States did not enter
explanation of
of"severe
suffering'" is cast as an "understanding'"
of the widely accepted definition of
"severe mental pain or suffering"
"understanding'"- of
of
of the United States that this more detailed definition
ddinition of
of I'
torture, rather than as a reservation, reflects the position of
torture is consistent with international practice, as reflected in Article 1 of
ofthe
theCAT,
CAT,and
andDeed
neednot
nothave
havebeen
beenentered
entered)
as a reservation. Auguste
Auguste v.v.Ridge,
Ridge,395
395
F.3d12j,
123,143
n.20
Cir.
2005);
also
Vienna
Convention
Law
F.3d
143 1120
(3d(3d
Cir.
2005);
seesee
also
Vienna
Convention
on on
the (he
Law
I '

I

of

I

~

.

61

I

f~OM

SITE

is

(FRJ}JUL

OOJ

20

2007

l'5:i6/ST. l5:Hi/NO.lllec;;:2G7711

I
I

II

The
fonn of"violence
Theremaining
remainingspecifically
specifically prohibited
prohibitedform
of "violencetotolife
lifeor
orperson"
person"ininCommon
Common
Article·3
Articles isis"cruel
"cruel treatment."
treatment." Dictionaries
Dictionaries define
define "cruel"
"cruel" primarily
primarily by
by reference
reference to
to conduct
conduct that
wantonly, t.~at
thatis,
is, for
forthe
thesake
sakeof
ofimposing
imposingpain.
pain. Webster's
Webster'sThird
Third
Int'/ Dictionary
7 Dictionary
imposes pain
pain wantonly.
1m
i
imposes
at 546
546("disposed
("disposedto
toinflict
inflict pain,
pain, especially
especiallyinina \vanton,
a wanton,
insensate,orvindietive
or vindictivema.nner").
manner').Ifth~
If the
at
insensate,
purpose behind
behind treatment
treatment described
described as
as "cruel"
"cruel" isisput
put aside,
aside, common
common ~sage
usage would
would at
at least
least require,'
require'
purpose
the
the treatmentto
treatment tobe
be"severe"
"severe"or
or"extremely
"extremely painful."
painful." Id
Id Ofcourse,
Of course, we
wearellot
are not called
calledupon
upon he.--e
here
the
term
"cruel
treatment"
standing
alone.
In
Common
Article
3,
the
prohibition
on
to
evaluate
to evaluate the tenn "cruel treatrnenf' standing atone. In Common Article 3, the prohibition on
"cruel
treatment"
is
placed
between
bans
on
extremely
severe
and
depraved
acts
of
violence—
"cruel treatment" is
bans
severe and depraved acts ofviolencemurder, mutilation,
mutilation, and torture.
torture. The
The serious
serious nature
nature of
of this
this list
list underscores
underscores that these
these tenns,
terms,
murder,
I
common bond
bond in
in referring
referring to
to conduct
conduct that
that isis particularly
particularly
including cruel
cruel treatment,
treatment, share
share aa.common
including
I
aggravated and
and depraved.
depraved. See
SeeS.D.
S.D.Warren
Warren
v. Maine
Bd ofEnvironmental
Protection,
126 1 126
aggravated
Co.Co.
\I. Maine
Bd o/Environmental
Protection.
Ct. 1843,
1843, 1849-50
1849-50 (2006)
(2006) (the
(thenoscitur
noscitura asociis
sociis
canon
help
absent
some
sort
s.S. Ct.
canon
"is"is
nono
help
absent
some
sort
ofof
to
extrapolate").
In
addition,
Common
Article
3
lists
gathering
with
a
common
feature
gathering with a common feature to extrapolate"). In addition, Common Article 3 lists "cruel
"cruel I
treatment" as
as aa form
form of"violence
of "violence to
to life
life and
and person,.,
person," suggesting
suggesting that
that the
the tenn
term involves
involves some
treatment"
some
element of
of physical
physical force:
force:
element

!
i

I

International tribunals and other bodies have addressed Common·
Common Article 3's prohibition
on
on "cruel treatment"
treatment" at length.
length. For purposes ofthe
of the Rome Statute
Statute establishing the
the International
International I
Court, the U.N.
U.N. preparatory commission defined "~ruel
"cruel treatment" under Common
Criminal Court,
torequire
require"severe
"severephysical
physical or
ormental
mental pain
painor
orsuffering."
suffering." Dormann,
Dorrnann, Elements
Elementso/Crimes,
of Crimes
Article 33 to
397. The committee explained that it viewed "cruel treatment" as indistinguishablefrom
at 397.
from the
the Geneva
Geneva Conventions.
Conventions. See
See id
id at
at 398;
398;I
"inhuman treatment" that constitutes a grave breach of the
see also
alsoGPW
GPWArt.
Art.130
130(listing
(listing"torture
"tortureororinhuman
inhumantreatment"
treatment"asasaagrave
gravebreach
breachofthe
of theGeneva
Geneva I
see
Conventions). This view apparently also was
was embraced
embraced by
by Congress
Congress when
when itit established
established the
the
Conventions).
of "cruel and inhuman treatment"
treatment" in the War
War Crimes Act
Act as
as part
part of
of its
its effort to
to
offense of"cruel
i
18u.S.C.
U.S.C.§§2441(d)(1)(B);
2441(d)(1)(B);see
seealso
also
criminalize the grave breaches of Common Article 3. See
See 18
6(a)(2). Construing
Construing "cruel
"cruel treatment"
treatment" to
to be
becoterminous
coterminouswith
withthe
thegrave
gravebreach
breachof
of
MCA § 6(a)(2).
I
"inhuman treatment" funher
ofthe
conduct prohibited
prohibited by
by paragraph
.
further underscores the severity of
the conduct
11(a)(a).

I

I

!

Aligning Common Article 3's
3'5 prohibition on "cruel treatment" with the grave breach of
of ,
"torture." See
See GPW Art.
Art. 130
130 (statin~
(stating
"inhuman treatment" also demonstrates its close linkage to "torture."
"tortureor
orinhuman
inhumantreatment,
treatment,
including biological
experiments,"
a grave
breach
of theJ
that "torture
including.biological
experiments,"
is aisgrave
breach
ofthe
Conventions) (emphasis added). This relationship was crucial for the ICTY in defining the . I
elements of "cruel treatment" under Common Article 3. The tribunal explained that c-ruel
cruel
i
treatment "is equivalent
the grave
equivaJent to the offense of inhuman treatment in the framework of
ofthe
breaches provision of
the Geneva
the task
task ofbarring
of barring "
ofthe
Geneva Conventions"
Conventions" and that
tbat both terms perform the
offense of
oftorture in common
"treatment that does not meet the purposive requirement for the offense
Delalic,
Case
No. IT-96-21 -T,
\ 542
(Trial
Chamber
1,1998).
Prosecutor v.v.Delalic,
Case
No.IT-96-21-T,
1" 542
(Trial
Chamber
I, 1998).
TheThe !
article 3." Prosecutor
Internationa] Criminal
"cruel
International
C~iminal Court stopped at
at achieving this end, defining
defining the offense
offense of
of"cruel

I

•

—

—

^

_

_

_

_

_

_

_

_

^

_

^

_

_

_

_

_

_

_

_

_

_

_

_

_

i
I
.

of
certain provisions of
of Treaties Art. 2.1(d) (a reservation
TesetVation "purports
'·pu.rports to exclude
exclude or
OT to
Lo modify
modify the legal
le8aJ effect
effect of
ofcertain
of the
fhe
treaty in their application to that Slate").
State"). There
Tnere is no reason to revisit that long-standing position here; with
~ith regard
Il:gard .
to torture.
torture, Common Article
Anicle 33 imposes no greater obligation
obligation on
on the
the United
United States
States than
than does
does the
the CAT,
CAT, and
wd thus
thus
I
conduct consistent with the two federal statutory prohibitions
prohibitions on
on torture
torture also
also satisfies
satisfies Common
Common Article
Article 3's
3 '$
I
prohibition on
international character.
on torture
tonure in armed conflicts
conflicts not
not of
of an
an international
character.
'

in

62

P

"' • • Co.

• ~

uu ...

CFRI)JUL ~O 2007 15:.8/S•• 15::5/1'10. 6HlO.c29779

I

treatment" under Common Article 3 identically
tothat
thatoftorture,
of torture, except
except removing
removing the
the
identically to
requirement that "severe physical or mental pain or suffering" be imposed for the purpose of
of
"obtaining information
information or a confession, punishment, intimidation or coercion or for any Teason
reason !
based on discrimination ofaoy
of any kind:'
kind." D6rm
DSrmann,
of Crimes, at 397,
397,401.
ICTY
ann. Elements cjCrimes,
401. The leTY
went further, suggesting that there may be another difference
difference from torture-that
torture—that crue1
cruel treatment
is directed at "treatment which deliberately causes serious mental or physical suffering
suffering that falls "
of the severe mental or physical suffering required for the offence oftorture."
of torture." Delalie,
Delalic,
short ofthe
1542.
~ 542.

I

I

Congress, like the ICTY.
ICTY, adopted a somewhat broader definition
definition
In the War Crimes Act, Congress.
of
"cruel
treatment,"
prohibiting
the
relevant
conduct
no
matter
the
purpose
and
defining
a level
of
of "serious physical or mental pain or suffering" that is less extreme than the "severe physical or
of
on,·
way. Congress's approach to prohibiting
mental pain or suffering" required for torture. In this way,
of the
the "cruel treatment" barred by Common Article 3 is consistent with the broader of
I'
tribunals.''5 Congress.
Congress, however.
however, provided a specific
interpretations applied by international tribunals.';5
of both "serious physical pain Or
or suffering" and "serious mental pain or suffering."
suffering."
definition ofOOtb
The ICTY found it impossible to define further "serious physical or mental pain or suffering" in
and instead adopted a case-by-case approach for evaluating whether the
die pain or
advance and;
suffering
imposed
by
past
conduct
was
sufficiently
serious
to
satisfy
the
elements
of "cruel
suffering
sufficiently
of
treatment." Delalic, "tIS33.
f533. This approach,
however,
was
tailored
to
the
ICTY's
task
of
approach.
rCTY's
of applying
wholly past conduct. Congress in amending the War Crimes Act, by
Common Article 3 to whoUy
of future operations. Congress's
contrast, was seeking to provide clear rules for the conduct of
definition of
of "serious physical pain or suffering" and "serious mental pain or
more detailed definition
t
of Common Article 3.
suffering" cannot be said to contradict the requirements of
I

!

I

conclude, with Congress, that the "cruel treatment" term in Gammon
Common Article 3 is
We conclude.
satisfied
by
compliance
with
the
War
Crimes
Act.
As
we
have
explained
above, the CIA
satisfied
techniques are consistent with Congress's prohibition on "cruel and inhuman treatment" in the
3's prohibition on'
on
War Crimes Act, see supra at 14-24, and thus do not violate Common Article 3'5
"clUel
"cruel treatment."
2,
2
1(c) of
of Common Article')
Article 3 prohibits "outrages upon personal dignity.
dignity, in
Paragraph l(c)
particular, humiliating and degrading treatment." Ofthe
Of the tenns
terms in Common Article 3 with
I
1(c) was the cause ofgreatest
of greatest concemj
concern
uncertain meaning, the imprecision inherent in paragraph l(c)
of the Executive and Legislative Branches. See supra C).t
at 53-54 (citing statements
among leaders ofthe
by the President and Senator McCain).

I

4S

or
I
or suffering
suffering or
or
attack on hI/man
human dignity."
dignity." Delalic,
at ^ S44
544 (emphasis
(emphasis added).
added). The
The tribunal
tribunal never
never has
has
constitutes (Ja serious
seriOllS alrock
Delalie, at"
,
explained its reference to a "serious attack on human dignity." Common Article 3 has
bas an express provision
!
of affronts
affronts to personal dignity in its prohibition of "outrages upon personal dignity, in
addressing certain types of
particular,
1(c).The
Thesaueture
structureofofthe
theGeneva
GenevaConventions
Conventions
partiallar, humiliating and degrading treatment." GPW Art. 3j ~%l(c).
that attacks on personal dignity should be analyzed under paragraph 1l(c),
(c), the
the requirements
requirementsof
ofwhich
which we
we I ,
suggests that
analyze below.
45 The IClY
ICTY" defines
defines "cruel
"cruel treatment"
treatment" as
as"treatment
"treatment that
that causes
causes serious
serious mental
mental pain
pam

63

P

FROM SITE

IE

(FFlI)JUL

OOJ

202007

;5:15/ST.1P,:15""'O.6150.:20779?

I!

Despite the
the general nature of its
its language.
language, there are sevenl
several indications that
.paragraph
. paragraph 1(c)
1(c)was
wasintended
intendedto
torefer
refer toto particularly
particularly serious
serious conduct.
conduct The
Theterm
term"humiliating
"humiliating and
and
degrading
of the
degrading treatment"
treatment" does not stand alone.
alone. Instead, the term is a specific type or subset of
somewha.t
somewhat clearer prohibition on "outrages upon personal dignity." This structure distinguishes .
Common
Common Article 3 from
from other international treaties that include freestanding prohibitions on
"degrading
treatment,"
untethered to any requirement that such treatment constitute an ··outrage.
"degrading
"outrage
CompareCAT
CATArt.
Art. 16
16(prohibiting
(prohibiting"cruel,
"cruel, inhuman
inhumanor
or degrading
degrading
upon personal dignity." Compare
I·
vnth European Convention on
treatment or punishment which does not amount to torture") 'with
treatment
I
Human Rights Article 3 ("No
CNo one shall be subjected to torture or to inhuman or degrading
Human
punishment."). Thus,
Thus, paragraph l(c)
1(c) does not bar "humiliating and degrading
treatment or punishment.").
treatment" in the abstract; instead, it prohibits "humiliating and degrading treatment" that rises t6
the level ofan
of an "outrage ~pon
upon personal dignity." This interpretation has been broadly accepted by
b~
international tribunals and committees, as it has been adopted both by the ICC Preparatory
ICTY. See
See Dormant'l.
Dormann, Elements ofC-rimes,
of Crimes, at 3]4
314 (stating, as an element of
Committee and the ICTY.
of
1(c) of Common Article 3,
3, that
that "the severity of
of the
the ICC offense corresponding to paragraph l(c)
humiliation, degradation or other violation was of such degree as to be generally recognized as
Prosecutor'V.v.Aleks<Jvski,
Aleksovski,Case
Case No.
No. IT-9S·)4/l
IT-95-14/1 at
at 1f^ S6
56 (Trial
(Trial
an outrage upon personal dignity");
dignity"); Prosecutor
,an
of an outrage upon personaJ
personal
Chamber I11999)
1999) (requiring that the conduct rise to the level ofan
dignity).
dignity).
'

I
I
I

ta

I
I

I

of ill-treatment.
The term "outrage" implies a relatively flagrant or heinous form of
Dictionaries define "outrage" as "describ[ing)
of
"describ[ingj whatever is so flagrantly bad that one's sense of
suffer or tolerate is violated" and list "monstrous, heinous, [and]
;.
decency or one's power to Suffer
[and)
of "outrageous." Webster's
Webster's Third Int'l
atrocious" as synonyms of"outrageous."
Int'/ Dictionary at 1603. In
In this way
waY,i
the term "outrage" appeals to the common sense standard
standan~ of
ofaa reasonable person's assessing
I
conduct under all the circumstances. And the judgment that term seeks is not a mere opinion that
different—to be an outrage, a reasonable person must assess the
the behavior should have been different-to
conduct
as
beyond
all
reasonable
bounds of
of decency. This reaction is not to
oonduct
to leave room for
i
debate, as the term is directed at "the few essential rules of
humanity
which
all
of
all civilised
civilised nations
consider as valid everywhere and under
under aIlcircumstances
all circumstancesand
andas
asbeing
beingabove
aboveand.
andoutside
outsidewar
war I
itself."
Pictet,
i
n
Commentaries,
at
32
(emphases
added).
Accordingly,
in
applying
the
"outrage
itself." Pictet, ill Commentaries, at 32 (emphases added). Accordingly, in applying the "outrag~
upon personal
personal dignity"
dignity" term.
term, the
the ICTY
ICTY has
upon
has recognized
recognized that
that itit does
does not
not provide
provide many
many clear
clear
"
standards
in
advance,
but
that
it
is
confined
to
extremely
serious
misconduct:
"An
standards in advance. but that it is confined to extremely serious misconduct: "An outrage
outrage upon
upon .
personal dignity
dignity within
within Article
Article 33 ...
. . . is
deplorable.
personal
is aa species
species of
of inhuman
inhuman treatment
treatment that
that is
is deplorable.
occasioning more
more serious
serious suffering
suffering than
than most
most prohibited
prohibited acts
acts wirhin
within the
the genus."
genus." Aleksovski,
Aleksovski, at
at
occasioning
54 (emphasis added).
11^j 54
I

I
I

I

I

The IeRC
ICRC Commentaries
Commentaries on
on the
the Geneva Conventions underscore the severity ofthe
of the
misconduct paragraph l(c)
1(c) addresses. See
Pictet,
HI
Commentaries,
at
39
(linking
paragraph
See Pictet, ill Commentaries, at 39 Oinking paragraph I
1(c) to the prohibitions on torture, cruel treatment, murder, and mutilation in paragraph
ICc)
paragraph 1(a)
1(a) and I
that both paragraphs "concern acts which world opinion finds particularly
explaining t~t
particularly revoltingrevolting--i
acts which were committed frequently
frequently during the Second World War"). The ICTY
ICIT similarly
similarly
I'
the circumstances. ,
looks to a severe reaction from
from a reasonable person examining the totality of
ofthe
See Aleksovski,
Alekrovski, at fl
~ 55-56 (to violate paragraph 1(c),
l(c), the humiliation
humiliation and degradation
degradation must
must be
purpose also
"so intense that the reasonable
reasonable person would be outraged"). An examination
examination of
ofpurpose
I
informs paragraph
paragraph l(e)'s
l(c)'s focus
informs
focus on
on "humiliating
"humiliating and
and degrading
degrading treatment"
treatment" that
that rises
rises to
to the
the level
level of
of

I

~

;
64

I

FROM SITE is

I

.r

OOJ

(FRI)JUL

~O

2007

1;;:16/ST.1S:1S/NO.6;601.2G779

P

an
an "outrage
"outrage upon
upon personal
personal dignity."
dignity." The
The same
same international
international tribunal
tribunal has
has explained
explained that
that
paragraph
paragraph 1(c)
1(c) requires
requires an
an inquiry not only into
into whether the conduct is
is objectively outrageous:
outrageous,
but
but also
also i~to
into whether the
the purpose of the conduct is
is purely
purely to
to humiliate
humiliate and
and degrade
degrade in
in aa
contemptuous
and
outrageous
manner.
Thus,
tbe
ICTY
has
looked
to
the
intent
of
the
contemptuous and
manner. Thus, the ICTY has looked to the intent of theaccused,
accuseditit is
I
is not
not enough
enough that aa person feel «humiliated,"
"humiliated," rather the conduct must be "animated by
contempt
n Id at ~
!
contempt for
for the
the human
human dignity of another person.
person."
1}5656(emphasis
(emphasisadded).
added).For
Forthe
the
Yugoslavia
Yugoslavia tribunal,
tribunal, paragraph ICc)
1 (c)captures
capturesaaconcept
conceptofwat:'ton
of wantondisregard
disregardfOT
forhumanity,
humanity,of
of !
recklessness,
or
of
a
wish
to
humiliate
or
to
degrade
for
its
own
sake.
'
recklessness,
a
to
to
for its own sake.
This
This inquiry into
into aa reasonable
reasonable person's
person's evaluation
evaluation ofcontext,
of context, purpose, and intent with
law. In the context ofpersons
of persons not
to the treatment
treatment of
of detainees
detainees is
is familiar to
to United States law.
regard to
nolt
of any crime, but nonetheless detained by the Government, this same inquiry is
convicted ofany
DTA,
and the Fifth Amendment standard that it incorporates. As we have
by the
the DT
demanded by
A, and
above, the DTA prohibits treatment, and interrogation techniques, that "shock the
explained above,
conscience."
RochinY.v.California,
California,
(1952);
County
ofSacramento
v.
conscience.
n Rochin
342342
U.S.U.S.
165,165,172
172 (I952);
see see
alsoalso
County
ofSacramen~o
v.
Lewis,
523
U.S.
833,
846
(1998)
("To
this
end,
for
half
a
century
now
we
have
spoken
of
the
Lewis, 523 U.S. 833, 846 (1998) ("To this end, for half a century now we have spoken of the
cognizable level
level ofexecutive
of executive abuse of
mat which
which shocks
shocks the conscience."). Much like
of power as that
like
the
test
contemplated
by
the
term
"outrage,"
the
"shocks
the
conscience" test
test looks
looksto
to how
howaa
the test contemplated by the term "outrage," the "shocks the conscience"
reasonable person
person would
wouldview
viewthe
theconduct
conduct"within
"within
thefull
context
in which
it occurred"
reasonable
thefull
context
in which
it occurred"
Lewis,Lewis,
523
U.S
at
849
(emphasis
added);
see
id
(requiring
"an
exact
analysis
of
circumstance");
Wilkins
523 U.S at 849 (emphasis added); see id (requiring "an exact analysis of circumstance"); Wilkinf
v.May,
May,872
872F.2d
F.2d190,
190,195
195(7th
(7thCir.
Cir.1989)
1989)(With
(Withregard
regardtotopre-conviction
pre-convictiontreatment,
treatment,the
thetest
testisis I
v.
whether there
there was
was "misconduct
"misconduct that
that aa reasonable
reasonableperson
personwould
wouldfind
sobeyond
beyond the
the norm
normof
of
whether
find so
.
as
to
shock
the
conscience.").
Indeed,
our
courts
in
applying
the
proper
police
procedure
proper police procedure as to shock the conscience.....). Indeed, our coutts in applying the
substantive due
due process
process standard
standard have
have asked
asked "whether
"whether the
behavior ofthe
of the government
the behavior
government officer
officer is
is
substantive
so
egregious,
so
outrageous,
that
it
may
fairly
be
said
to
shock
the
contemporary
conscience."
so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." i
Lewis, 523
523U.S.
U.S.at
at 848
848 n.8
n.8(emphasis
(emphasis added).
added). Because
Because 2.areasonable
reasonableperson
person would
would look
look to
tothe
the !
Lewis,
reason
or
justification
for
the
conduct,
the
"shocks
the
conscience"
test
under
the
DTA
also
reason or justification for the conduct, the "shocks the conscience'" test under the DTA also
I
846 (asking
(asking whether
whether the
the c-onduct
conduct amounts
amounts to
to the
the "exercise
"exercise of
contemplates such
such an
an inquiry.
inquiry. Id
at 846
contemplates.
Id at
power without
without any
any reasonable
reasonable justification
justification in
in the
the service
service ofa
of a legitimate
legitimate governmental
governmental
power
I

I

or

I

objective").

~~.

"outrages upon personal dignity" invites, not
For these reasons, we conclude that the term «outrages
forbids, an inquiry into the justification for governmental conduct, as the term calls for the
I
To be
be f
outrageousness of the conduct to be evaluated in the manner a reasonable person would. To
sure, the text ofCommon
of Common Article 3 introduces its specific prohibitions, including its reference
sure.
reference to
"outrages upon personal dignity," by mandating that such acts "are and shall remain prohibited
any time
time(Old
andin
inallY
anyplace
whatsoever."This
This
textcould
couldbebe
read
disapprove
any
evaluation
at an>,
place whatsoever."
text
read
to to
disapprove
any
evaIuztion
the considerations behind or justifications for specifically prohibited conduct
of circumstance, or the
conductl
See,
e.g.,
Pictet,
IV
Commentaries,
at
39
("That
is
the
method
followed
in
the
Convention
when
See. e.g.• Pictet, IV Commentaries, at 39 ("That is the method followed in the Convention when
it proclaims four absolute prohibitions.
prohibitions. The
The wording
wordingadopted
adoptedcould
could not
not be
be more
moredefinite.
definite . .. No
No
excuse, no
no attenuating circumstance.
circumstance.").
possible loophole is left; there can be no excuse,
n).
'

I

I

ofjustifications and
Nevertheless, this introductory text does not foreclose consideration ofjustifications
and
context in detennining
determining whether a particular act itself
would constitute an outrage under the
conte"t
itselfwould
conclusion is supported by other terms in
in Common Article 3. For example,
treaty. This ConClusion
i
Common Article 3 prohibits
prohibits "murder,"
"murder," but
but murder
murder by
by definition
definition isis not
not simply
simply any
any homicide,
homicide, but
but

65

F~OK

$I,E

15

DOJ

lawful justification. Common Article
Article 3 may
may not
not pemtit
pennit aa "murder"
"murder" to be
be
killing without Ja",,-fuJ
justified, but committing a homicide in self-defense simply would not constitute a "murder."
"murder"
"outrage" seeks to identify conduct that would be
be universally considered
considered
Similarly, the term "outrage"
few essential rules
rules of humanity which all
beyond the bounds of decency, as transcending "the few
as valid everywhere
everywhere and
and under all circumstances."
circumstances." Pictet,
Pictet, ill
HI
civilised nations consider as
Commentaries,atat32.
32. An
Anapproach
approachthat
thatforeclosed
foreclosedconsideration
considerationofofpurpose
purposethroughout
throughout
Commentaries,

3 cannot be squared with the ICRC Commentaries in evaluating whether
Common Article 3cannot

conduct is humane-a
humane—a requirement ofCommon
of Common Article
"outrage upon
Article 3 that
that the
the "'outrage
upon personal
personal
dignity"
term
is
expressly
stated
to
advance.
The
humane
treatment
requirement
is said
said to
to
dignity" term is expressly stated to advance. The humane treatment requirement is
prohibit «any
"any act
act ofviolence
of violence or
inspirednot
notby
bymilitary
militaryrequirements
requirementsorora a
prohibit
or intimidation,
intimidation, inspired
1
legitimatedesire
desirefor
forsecurity,
security,hutbut
a systematic
scorn
human
values.
' Pictet,
legitimate
byby
a systematic
scorn
jor for
human
values."
Pictet.
IV IV
Commentaries,
at
204
(emphasis
added).
Commentaries, at 204 (emphasis added).

I
,

I

An
of the term
An evaluation of circumstance therefore is inherent in the plain meaning ofthe
concept, following relatively clear prohibitions on particularly grave acts, that
"outrage." It is a concept.
vile as
as to
to I
turns to the objective judgment of reasonable people and proscribes conduct that is so vile
be universally condemned under any standard of decency. Because it relies on such common !
do, by weighing the I
judgment, the term "outrage" must evaluate conduct as reasonable people do,
justifications for that condu:ct.
conduct. As the
the Supreme
Supreme Court
Court ofIsrael
of Israel recently explained in appl)'ing
applying th~
the
"rules of intemationallaw"
international law" to Israel's "fight against international terrorism," the principles ofth~
of the
"rules
law of
war in
nothing/"
PublicCommittee
CommitteeAgainst
AgainstTorture
Torture
in Israel
ofwar
in this context
context "are
"are not
not *aIJ
<aU or nothing.
,n Public
;1'1 IsraelI
v. Government
of Israel,HCr
HCJ769/02,
769/02,atat34
34(Sup.
(Sup. Ct
Ct,Israel,
Israel,Dec.
Dec. 13,
13,2006).
2006).
v.
Government ofIsrael,
.11
of "outrages upon personal dignity" looks behind conduct for its
That the prohibition of"outrages
justifications illuminates the decisior.s
decisions of the
the ICTY inte£llreting
interpreting this term.
term. For example,
example, in
in
!
Prosecutor
v. Kovac,IT-96-238
IT-96-238(Appeals
(AppealsChamber,
Chamber,June
June12,
12,2002),
2002),the
thetribunal
tribunalheld
heldthat
thatforcin~
forcing
Prosecutor v.Kovac,
girl in detention to dance
dance naked
naked on
on aa table
table was
was an
an "outrage
"outrage upon
upon personal
personal dignity."
dignity." Id 1a teenage
teenage girl
$ 160. These facts involved clearly outrageous conduct undertaken for no
no purpose
purpose other
other than
than the
the
11160.
prurient gratification ofthe
of the defendant. None oftbe
of the CIA's proposed techniques bears a passing !
resemblance to the prurient and outrageous conduct at issue in Kovac.
Kovac.
l
I

I

The
The proposed techniques also contrast sharply with the outrageous conduct documented
at the Abu Ghraib.prison in Iraq. As General Antonio Taguba's official
official investigation reported,
the detainees at Abu Ghraib were subjected to "sadistic,
'"sadistic, blatant, and wanton criminal abuses."
See
Investigation
800th
Military
Policy
Brigade
Sef! General Antonio M.
M Taguba, Article
Article J15-6
5-6 Investigation
ofof
thethe
800th
Military
Policy
Brigade
16
J6 (May 4, 2004) ("Taguba Report"). The report
repon charged the offending
offe,nding military personnel with !
<4
forcibly arranging detainees in various sexually explicit positions for photographing"; nforcing
"forcing
«forcibly
naked male detainees to wear women's underwear";
"forcing
groups
of
male
detainees
to
underWear";
ofntJle
masturbate themselves while being photographed and videotaped"; "arranging naked male
I
mastutfcate
detainees in a pile and then jumping on them";
them"; "positioning a naked detainee on a MRE
MRE Box,
Box,
with a sandbag on his
his head, and attaching wires to
to his
his fingers, toes, and penis to simulate electric II
torture"; "placing a dog chain or strap around a detainee's neck and having a female soldier
soJdier pose
for a picture"; and "sodomizing a detainee with
a
chemical
light
and
perhaps
a
broom
stick."
Id
witb
stick." 'ld
at 16-17.
16- 17. These wanton acts were undertaken for abusive and lewd purposes. They bear no
I
resemblance, either in
the techniques
CIA,
in purpose or effect,
effect, to any of
ofthe
techniques proposed
proposed for
for use
use by
by the
the CIA,
whether employed individually or
OT in combination.
I

I

I
I

I

66

rnV~

~ll~

l~

OOJ

(l'RI).JUL

~o

2001

1S:17/$T.'S:l!io/NO.&160~2977SP

The contrast with Kovac
Kovacand
andthe
theacts
actsatatabu
abuGhraib
Ghraibgoes
goessome
someway
waytotohighlighting
highlightingthe
the
does reach.
reach. As
Asthe
therCRC
ICRCCommentaries
Commentaries
have
explained,
paragraph
conduct that paragraph 1(c) does
have
explained,
paragraph,
1(c) is
is directed at "acts which world public opinion finds
revolting—acts which
which were
were committedl
committedl(c)
finds revolting-acts
frequentlyduring
duringthe
theSecond
SecondWorld
WorldWar."
War."Pictet.
Pictet, IDCommentaries,
Commentaries,
at 39.
World
E was
at 39.
World
WarWarwas
I
frequently
typified by senseless acts ofhatred,
of hatred, and humiliation or degradation, for
no
reason
other
than
to
for no
Ii .
had been vanquished or ~at
that mer
they were
were viewed
viewed.as
as i~eri?r
inferior ~ecause
because of
of .,
reinforce that the victims h~d.
their nationality
nationality or
or their
their rehglOn.
religion. Needlessly exposmg
exposing pnsoners
prisoners to publtc
public cunostty
curiosity IS
is part ofthl~
of this
their
dark history,
history, see
see GPW
GPW Art.
Art. 13,
13, and
and commentators
commentators cite
cite as
as aa paradigmatic
paradigmatic example
example ofsuch
of such
dark
public. See
SeeDormann,
Ddrmann,Elements
ElementsofCrimes,
of Crimes,at at
323
(referring
conduct the parading of prisoners in public.
323
(referring
to the
the post~World
post-World War
War IT
II prosecution
prosecution ofMaezler
of Maezler for marching prisoners through the streets of
celebrations). In another case.
case, i
Rome in a parade emulating the tradition of ancient triumphal celebrations).
Sikh prisoners
prisoners ofwar
of war "to a post an&,
and;
Australian authorities prosecuted Japanese officers who tied
tied Sikh
beat them with sticks until they lost consciousness." Trial
Trialof
of Tanaka
TandkaChuichi
Chuichi
and
Two
Others
and
Two
Others
(1946), XI
XTLaw
LawReports
ReportsafTrials
of TrialsofWar
of WarCriminals:
Criminals:United
UnitedNations
NationsWar
WarCrimes
CrimesCommissions
Commissions
(1946),
62. In addition, they shaved the prisoners'
prisoners7 beards and forced them to smoke cigarettes,
cigarettes, inin
of the Sikhs' religious practices requiring facial hair and forbidding the !
deliberate denigration ofthe
I
of tobacco, all as
aspost
posthoc
hocpunishment
punishmentfor
forminor
minorinfractions
infractions ofthe
of therules
rulesofthe
of theprison
prison ,I
handling oftobacco,
46 6
camp. ld.
Id.*
camp.

m

n

I

!

i

I

intendedto
tohumiliate,
humiliate,andand
nothing
more—there
was
security
These acts were intended
nothing
more-there
was
nono
security
justification,
no
carefully
drawn
plan
to
protect
civilian
lives.
These
were
part
of
a
justification.
lives.
ofa panoply of
of I
C meant to "reduce men to
to the
the~..ate
stateof
ofanimals,'"
animals," merely
merelybecause
becauseofwhd.
of who
atrocities in World War n
were. See
See Pictet, ill
DI Commentaries,
Commentaries,at at627.
627.These
These
actswere
were
undertaken
wholly
acts
undertaken
forfor
wholly
i
they were.
prurient,
of what made
pruri.ent, humiliating, or bigoted ends, and that feature was an inextricable part ofwhat
them "outrageous,',
.
"outrageous." ..*77

I

I

I

I.

**In
InIbis
thisway,
way,acts
actsintended
intendedtotodenigrate
denigratethe
thereligion
religionof
ofdclaine::s
detaineesimplicate
implicateCommon
CommonArticle
Article3.3. Although
Although
<16
pumJaDt to a different standard applicable to
to prisoners
prisonersat
of war
war under
underthe
the 1929
1929Geneva
Geneva Convention,
Convention, the
the Australian
Australian I
pursuant
tlw: some consideration of
of (he
Ihe cultural
culnua1 sensitivities of
of detainees may be relevam
war crimes prosecution suggests that
relevant i
determining whether there has been a subjective intent to humiliate. There, the Japanese defendants sought I
when detennining
of the Sikh religion and sought to exploit those in particular
particu.lar, with
\lith no purpose
pwpose other than to hwnili.ate
out the features of
humiliate
the detainees. This is not what occurs in the CIA program. It should be noted that, upon intake into custody,
custod)', the
CIA does trim the hair and
the
8I1d shave the beards of detainees to prevent
pxevent the introduction of disease and weapons into th~
facility. After this initial shaving, detainees
length. We have a1read}l.
already).
d~ees are permitted
pennitted to grow their hair to any desired length.
concluded that such limited use of
of involuntary grooming by the CIA is consistent with Common Article 3. See
.
Letter to John A.
A Rizzo, Acting General
Genezal Counsel, Central Intelligence Agency, from Steven G. Bradbury,
Brad'oUlY. Acting
Assistant Attorney General, Office
12-13 (Aug. 31,2006).
of Legal Counsel, at 12·13
31, 2006). Again, the difference here is that
Office of
the purpose
legitimate security
PUl'pOSe is not to humiliate
hwniliate the detainee, or to exploit any particular sensitivity, but to serve legitim:!te
and hygiene purposes.
pwposes.

I

~, Our interpretation here is also consistent with the fact that
thzt paragraph 1(c)
1(c:) is not a prohibition on
simp/idler, but instead proscribes "outrages upon
IIpon personal dignity.
to (Emphasis
"outrages" smptidter,
dignity."
(Emphasis added)
added) The
The words
words
"upon
may be read to specify
specif}- the injwy
injury tlJa1
that must occur before we e\-aluatc
evaluate whether the causing
u upon personal dignity" IDa)'
conduct constitutes an "outrage." Put differently,
differenUy. paragraph
paIagraph 1(c)
1(<;) is not a frec-fioating
free-floating inquiry into the justifications
justifications;
for state party conduct during
cot of
of an international character. Instead, there must be some
dwing an armed conflict not
i
affront
affront to "personal dignity" before that inquiry
inqllUy is triggered. The words "upon personal dignity*'
dignity" may also be read to
tJ
constrain
"outrage" has occurred.
c:onstIain the considerations
oonsiderations that niay
may be brought to bear in determining whether an "()Utrage"
oocurred. In this
lhis
regard,
theterm
termmay
maybe
bedesigned
designedtotofocus
focusparagrapb
paragraphl(c)
1(c)on
onthe
theperson
personsubjected
subjectedtotostate
stateparty
partyconduct,
conduct,and
andhis
his .
regard, the

!

I

67

1

FROM $IT£

15

OOJ

CFRIlJUL 20

2007 15:17/Sj. 15:16/1'(0. &1&OL29779

these principles in mind,
mind, we
we tum
turnto
to whether
whetherthe
theproposed
proposedCIA
CIAtechniques
techniquesare
are
With these
3 's prohibition
prohibition on
on "outrages
"outragesupon
upon personal
personal dignity,
dignity, inin
consistent with Common Article 3'5
.
particular.
particular, humiliatiog
humiliating and degrading treatment."
treatment." We
We already
alreadyhave
havedetennined
determined that
that the
the CIA.
CIA i
program does
does not "shock the
the conscience,"
conscience," or thereby violate
violate long·standing
long-standing principles
principles of
of Urnted
United
StateS
founded in
in the
the Fifth
Fifth Amendment
Amendment to
to our
ourConstitution
Constitution and
and incorporated
incorporated into
intothe
theDTA.
DTA..t
States law founded
term that,
that, in
in many
many ways,
ways, provides
providesaaprotective
protectivebuffer
buffer around
aroundthe
the
Especially regarding a term
1

I.

States
comparatively specific prohibitions in Common Article 3, it isis appropriate for the United Statesl

legal tradition to
to provide aa familiar,
familiar, ciiscernable
discernable standard
standard for
for the
the inquiry
inquiry I
turn to its domestic legal
to tum
that paragraph l(c)
1(c) requires.
requires. As
Aswe
weeXlllained
explainedabove,
above,the
theMeA
MCAreflects
reflectsaaconsidered
consideredjudgment
judgment
that
by Congress
Congress that
that the DTA tightly
tightly fits
fits the
therequirements
requirementsof
ofCommon
Common Article
Article 3,
3, and
and this
this
by
the proper
proper interpretation
interpretation of
of Common
Common Articlf
Article
congressional judgment is important in determining the
the United States.
States. The
The DTA
DTAasks
askswhether
whetherconduct
conduct"shocks
"shocksthe
thecontemporary
contemporaryconscience:l
conscience,"
33 for the
the reasonable
reasonable person,
person, and
and it tracks
tracks the
the inquiry
inquiry that
that the
the plain
plain
it evaluates the judgment of the
the program is
is consistent with
wit
of the term "outrages" invites.
invites. Thus,
Thus, our conclusion that the
meaning ofthe
does not involve "outrages uponl
upon
DTA
determining that the program does
the Dr
A is a substantial factor in detennininf
3.4
personal dignity" under Common Article 3.
I

I

But consistency with the DTA
DTA isis not
not the
theonly
onlybasis
basisfor
for our
ourconclusion.
conclusion. In
Inthe
thelimited
limited
here, the CIA program's
program's narrow
narrow focus.
focus, and
and its
itscompliance
compliancewith
with the
the careful
careful
context at issue here,
safeguards and limitations incorporated into the
the program,
program,provide
provideadequate
adequateprotection
protectionagainst
againstthe
the
Common Article
Article 3.
3. Of particular importance is
"outrages upon personal dignity" prohibited by Common
that the interrogation techniques in the
the CIA
CIA program
program are
arenot
notaastandard
standardfor
fortreating
treatingour
ourenemies
enemies.
them, jn~luding
including those
those in
in military
military custody.
custody. Instead,
Instead, the
the CIA
CIA program
program isis
wherever wefind
find them,
at a small number of the most dangerous and knowledgeable of terrorists,
terrorists, I
narrowly targeted at
kill civilians throughout the.
those whom the CIA has reason to believe harbor imminent plans to kin
th~
world or otherwise possess information
information of
of critical intelligence value concerning the leadership or
Of
activities of
Qaeda. For those few, the United States takes
takes measures
measures to
to obtain
obtain what
what they
they know,
know,
of at
al Qaeda.

I
i

dignity, rather.tDan
rather than tile
the intention
intention of
of the
the state
state actor
actor or
or Ihe
theIea5DtlS
reasonsfor
forthe
theactor's
actor'scondu.ct
conduct This
This latter
latterinterpretation
interpretation
of departure from
of
would constitute a point of
from international practice, which has
bas looked to the intention and purpose of
the state actor, as well as the context ofandjustificariODS
of and justifications for the conduct In any
any event, the foregoing histori<:al
historical
examples demonstrate
(he conduct is Wldertaken
undertaken to
to determine whether it is an
an "oull'age
"outrage
demonstnne that we need to know why lhe
upon personal dignity." Marching captured prisoners as a means of t.-ansport
transport does not evoke the same reaction,

I
I

rising to the level
as the
the senseless
senseless parading
paradingofprisoners
of prisoners to
to humiliate
humiliate them.
them. In
In this
this W3)',
way, the
the words
words I
Jevel of
of an "outrage," as
"upon personal dignity"
dignity" cannot be read to confine paragraph
paragr.aph 1(c)
l{c) to demarcating an absolute lev-el
le....el of
of hardship that
will not
"personal dignity"
dignity" OCcurs
occurs depends to'some
to some degree on Ihe
the reason
nol be tolerated.
tolemted. Instead, whether an affront to "personal
why a hardship is being imposed.
on the
the arbitrary,
arbitrary, the
the wanton,
wanton, or
or the
the prorienti
prurient!
'why
imposed, The term is bestread
read as a prohibition on
discomforting
discomforting of
of persons
persons protected
protected by Common
Common Article
Aniele 3,
3, as
as well
wen as, in some
some cases,
cases, unnecessary
unnecessary or
or careless
l'
mistreatment,
justification is legitimate. As wc
mistreatment. even when
wben the overarching
o\'crarchingjustification
we explain below, these principles do not
describe
and limited
limited CIA
CIA interrogation
interrogation techniques.
techniques.
descnbe the
the carefully
carefully drawn
drawn and

I

G As
**
As we
we did
did with
with the
theDTA,
DTA, we
we believe
believe ititappropriate
appropriate to
toevaluate
evaluatenot
notjust
just each
eachtechnique
techniquein
inisolation,
isolation, but
butthe
the
effects
AleksovsM, 15i
\ 57 ("Indeed,
("Indeed, the
the seriousness
seriousness of
of an
an act
act and
and its
its
effects of
of the techniques
t~ques in combination. See, e.g., Aleksovsld.
J
consequences may arise eitherfrom
from the
die nature of
of tic
the actperse
aetpel'le or from
nom the repetition of the aOl
act or from
from a
j
combination of
the meaning of
of different
diff'erent acts which, taken individually, would not constitute a crime within °the
of Article
Azticle 3~
of
of the" Geneva Conventions.). We have concluded that the techniques
teeb...-uques in combination would not violate the
i
constitutional
constitutional standards incorporated in the DTA, see
see supra
SlIpI'D at 4748,
47-48, and we again
agai."l conclude that par;graph
paragraph 1(c)
l(c) I
would not be violated by the techniques, used either individually or in combination.
comllination.

68

P

.

FRO!':

SITE

IS

OOJ

CFItI)JUL

20 2007

.,.:.;/ST. 15:15/NO. E160!='29779

i

circumscribed by
but each technjque
technique is limited to keep the detainee safe and its application is circumscribed
extensive procedures and oversight Those ~ho
who implement these techniques are a small number
of CIA professionals trained in the techniques"careful
interrogation plan is
techniques' careful limits, and every interrogation
approved by the Director of
the
CIA.
of

II

In addition, as we have emphasized throughout this opinion, the CIA's detailed

procedures and safeguards provide important protections ensuring that none of
of the techniques
would rise to the level of an outrage upon personal dignity. With regard to the corrective
i
techniques.
the
CIA
has
assured
us
that
they
would
not
be
used
with
an
intensity.
or
a
frequency:j
techniques,
intensity, or frequency.
that would cause significant physical pain or injury. See
SteAleksovski,
i
Aleksovski, 157. With.all
With all the
techniques, the etA
safety with respect to I
ClA would
wouid determine in advance their suitability and their safety
each individual detainee, with the assistance of
I
of professional medical and psychologie:aI
psychological
examinations. Medical personneLfurther
i
personnel further would monitor their application: CIA personnel,
including medical professionals, would discontinue, for example, the sleep deprivation technique
suffering from extreme physical distress. !
if they determined that the detainee was or might be suffering
differently to the combination of
Each detainee may react differently
of enhanced interrogation techniques to I
which he is subjected. These safeguards and individualized attention are crucial to our
j
of the techniques would not violate Common Article 3. See t'
conclusion that the combined use of
supra n.50.
supran.50.
As such, the techniques do not implicate the core principles of
of the prohibition on
"outrages upon personal dignity." A reasonable person, considering all the circumstances, would
woul,
not consider the conduct so serious as to be beyond the bounds of
of human decency. The
I
carefully limited to the I
techniques are not intended to humiliate or to degrade; rather, they are carefully
of obtaining critical intelligence. They do not manifest the "scorn for human values" or
purpose ofobtaining
o~
of humiliating and degrading the detainee—the
reflect conduct done for the purpose ofhumiliating
detainee--the dark past oof
War II.
n , against which paragraph l(c)
1(c) was set. As we explain above, a reasonable person
World 'War
justification for the conduct and the full context of
would consider the justification
of the protective measures ,
put in place by the CIA. Accordingly, the careful limits on the CIA program, the narrow focus
of the PrQgram.
program, and the critical purpose that the program serves are important to the conclusion I
ofthe
be beyond the bounds of
human
that the six techniques do not constitute conduct so serious as to
to·be
ofhumarl

I

decency.

decenCY...

,

I

.

.

I

The CIA has determined that the interrogation techniques proposed here are the minimum
to maintain an effective
effective program for
fortius
necessary tc,
this small number of
of al
a1 Qaeda operatives. That
the CIA has confined itselfto
ClAhas
itself to such a minimum, along with the other limitations the CIA
has
of wanton contempt for humanity—the
placed on the program, does not reflect the type ofwanton
humanity-the atrocities
"were committed frequently during the Second World War"
animated by hatred for others that '~were
"public opinion finds particularly revolting"-at
revolting"—at which the prohibition on "olruages
"outrages j
and that "pu.blic
Commentaries,atat39.
39.
Pictet, m
HI Commentaries,
upon personal dignity" is aimed. See Pietet,
I'

I

J.

pr~hibitions

Overarching the four specific prohibitions in Common Article 3 is a general requirement
requiremenl
that persons protected by Common Article 3 "shall in all circumstances be treated humanely,
without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or

..,.nn~T

i

.

69

l

I

P

,

~~OM

SITe 15

OOJ

(F~I)JV" 20 2007 15::7/ST. 15:1S/NO. e~eO"21177" F> 1

49
any other similar criteria.
The text makes clear that its four specific prohibitions are directed
criteria.",,49
at implementing the humane treatment requirement. See GPW Art. 33'
(following the humane
^ 11 (following
treatment requirement with "[t]o this end the fonowing
prohibited").
following acts are and shall remain prohibited")As we have discussed above, those specific provisions describe serious conduct, and the
structure ofCommon
of Common Article 3 suggests that conduct of a similar gravity would be required to
constitute inhumane treatment.

The question becomes what, ifanything,
treatment" under
if anything, is required by "humane treatment"
Common Article 3 that is not captured by the specific prohibitions in subparagraphs (a)-(d). We
can discern some content from references to "humane treatment" in other parts of
of the Geneva
Conventions. For example, other provisions closely link humane treatment with the provision of
of
the basic necessities essential to life. Article 20 ofGPW
"evacuation of
of
of GPW mandates that the "evacuation
prisoners of VIlli!
war shall always be effected humanely.
humanely..... .. The Detaining Power shall supply
prisoners of war who are being evacuated with sufficient
sufficient food and potable water, and with the
necessary clothing and medical attention:'
attention." See also GPW Art. 46. This theme runs throughout
the Conventions.
of such basic necessities,
Conventions, and indeed Common Article 3 itselfrequires
itself requires a subset of
by mandating,
I
mandating that tbe
the "wounded and sick shall be collected and cared for." GPW Art. 3 \~ 2.
Given these references throughout the Conventions, humane treatment under Common Article 3
is reasonably read to require that detainees in the CIA program be provided with the basic
life—food and water, shelter from the elements, protection from extremes of
of heat
necessities of life-food
and cold, necessary clothing, and essential medical care, absent emergency circumstances
r
beyond the
me control of the United States.

I

I
I

I

We understand that the.
the CIA takes care to ensure that the detainees receive those basic
r
necessities. You have informed us that detainees in CIA custody are subject
necessities.
subject to regular physical '/1
and psychological monitoring by medical personnel and receive appropriate medical and dental
care. They are given adequate food and as much water as they reasonably please. CIA detention
detention,.
care.
facilities are sanitary. The detainees receive necessary clothes and are sheltered from the
elements.
elements.
For certain detainees determined to be withholding high value intelligence, however, the
technique—dietary manipulation—that
CIA proposes to engage in one interrogation technique--dietary
manipulation-that would
of these resources. The detainee's meals are temporarily substituted
substituted for a i
adjust the provision ofthese
that, while less appetizing than normal meals, exceeds nutrition requirements
bland liquid diet that.
~equirements i

~ This language does not create an equal
treatment requirement; instead, provides that the suspect
classifications question may not
deviation from Common Article
baseline standard of humane
49

m

, .

I

This language does not create an equal treatment requirement instead, it provides that the suspect
classifications in question may not justif).
justify ali}"
any deviationfromCommon Article 3'$
3 's baseline standard of human:
I
treatment. The Geneva Conventions elsewhere impose equal treatment requirements. See GPW Art. 16 C[A]U
treatment.
("'[All!
I
treated Qlike
alike by the Detaining Power, without any adverse distinction based on race,
prisoners of war shall be treated
i
I
nationality, tcligious
religious belief or political opinions, or any other distinction founded
natiOnality,
founded on similar criteria.") (emphasis
added). Article 16 also provides specific exceptions to its equal treatment
added).
neatment requirement with regard to prisoners of
of j
war, which
which we
\ve would
would expect
expect to
to find in
in Common Article 3 if it were
were also
also an
an equal
equal treatment requirement.
war,
requirement. The
i
contrast with the text of Article 16 demonstrates the linkage of Common Article 3's anti-disaimination
anc-discrirtiination principle to i
the PJ'O\'ision
provision of humane rreannent.
treatment. The CQmmentaries
Commentariesfurther
further e>.'P1a.in
explain that
that distinctions,
distinctions, even
even among
among the
the listed
listed
the
J
!:
criteria, may be made under Common Article 3, so long as the treatment of
of' no covered person falls below the
minimum standard of humane tIeatrnent
treatment. Pictet, HI Comme"ti1rle.~,
Commentaries,atat4041.
40-41.Thus,
Thus,we
wetum
turntotodetermining
determiningthe
thebasi£
basic
requirement.
content of Common Article 3's humane treatment requirement

70

FROM S/TE

16

DOJ
(FI'lI}JUL

20

2~07 i5:17/ST. t6:15/NO. el/50£2Sl77Q P

States. During application
for safe and healthy medically approved diet programs in the United States.
of the technique.
technique, the detainee's weight is monitored, and the technique would
would be
be discontinued
discontinued
ofthe
than 10
10percent
percent oEtus
of his starting
starting body
body weight.
weight. The
Theelement
element of
of
should the detainee lose more than
of the Geneva
Geneva Conventions
Conventions is
is one
one of
humane treatment that we can glean from
from the structure ofthe
"sufficient food.
food." GPW Art.
Art. 46.
46. Because
Because the
the food
food provided
provided during
during the
the temporary
temporary appJication
application of
of
"sufficient
the dietary manipulation technique is sufficient
for
health,
we
conclude
that
it
does
comply
with
suffi~ient
healtb,
conclude that it does comply
,
"sufficient food" element of Common Article 3's
the "sufficient
3's humane treatment requirement.
I
Cf.
Aleksovski,Case
Case
No.
IT-95-14/1,
f 108
(dismissing
Common
Article
3 charges
against
prison
CJ Aleksovski.
No.
IT-95-14/1,
~ 108
(dismissing
Common
Article
3 charges
against
prison
1
to all
all detainees
detainees over
over a period of months
months and where
where i
warden who provided only two meals a day to
some detainees lost over thirty pounds).
pounds).
U

We also
alsofind
relevant that
that the
the CIA's
CIA's interrogation
interrogation and
and detention
detention program
program complies
complies with·
with
find itit relevant
Amendment, which under most
the substantive due process requirements of the Fifth Amendment.
conditions," including "adequate food, shelter.
shelter, clothing, and medical
circumstances require "safe conditions,>:
the DTA
DTA Youngberg
Youngbergv. v.
Romeo,
(1982).
Romeo.
457457
U.S.U.S.
307.307,
315315
(1982).
care" and which are incorporated into the
of basic necessities is another example of
how the constitutional
Requiring the provision ofbasic
ofhow
standards incorporated in the DTA themselves provide a "humane
"humanetreatment"
treatment" principle
principle that
that can
can
as much
much in
in the
the DT
DTA,
given the
the
guide compliance with Common Article 3. Congress recognized as
A, given
statute's explicit premise that the Fifth, Eighth,
Eighth, and
and Fourteenth Amendments are
are directed against
of "inhumane treatment or punishment." MCA § 6(c)(2).,
6(c)(2).
a concept ofC<inhumane

I

~h

ciA

The CIA program—under
program-under the restrictions that we have
have outlined-complies
outlined—complies with
with each of
of
the specific prohibitions in Common Article 3 that implement its overarching humane treatment 1
requirement. Outside those four prohibitions, and tbe
the additional concept of basic necessities that
req.uirement.
of the Conventions, we confront
we have discerned from the structure oftbe
confront another situation where
See Pietet,
Pictet, IV
TVCommentaries,
Commentaries,
of the requirement is.
is underspecified by the treaty. See
the content ofthe
at at
one, as we shaH
shall see.
see. On the
38-39 ("The definition [of humane treatment] is not a very precise one.
hand, there is less difficulty
difficulty in enumerating things which are incompatible with humane .
other hand.
treatment. That is the method followed in the Convention when it proclaims four
four absolute
!
prohibitions."). Again,
this
is
a
situation
where
the
generality
was
intentional:
To
the
Agaill: this
where the generality was intentional: To the
I
negotiators, ((it
"it seem[
seem[ed]
useless and
and even
even dangerous
dangerous to
to attempt
attempt to make
make aa list
list of
of all
all the
the factors
factors
negotiators,
ed] useless
that would make
'humane."' Id at
at 204.
204. The Commentaries
Commentariesemphasize
emphasizethat
that"what
"what
~ake treatment 'humane.
constitutes humane treatment"
treatment" requires
requires a balancing
balancing of
of security
security and
and humanitarian
humanitarian concerns.
concerns. The
The
measures," as
as the
the"measures
"measuresof
ofsecurity
securityor
orrepression,/
repression,
detainees may well be "the object ofstrict measures."
even when they are severe," may nonetheless be compatible with basic humanitarian standards. I
Id
(emphasis added).
added). Given
Given the
the deliberate
deliberategenerality
generality of
of the
the humane
humane treatment
treatment standard,
standard, il
Id at 205 (emphasis
turn to our own law,
law, which
which establishes
establishes aa standard
standard of
of humane
humane treatment
treatment that
that
is reasonable to tum
similarly requires
requires aa balance
security and
and humanitarian
concerns, to
to provide
content to
to
similarly
balance between
between security
h~nitarian concerns,
provide content
otherwise unspecified
unspecified tenns
terms in
in the
the Conventions.
Conventions. Because
Because the
the CIA
CIA program
complies with
with the
otherwise
program complies
the
standard of
of humane
humane treatment
treatment provided
provided in
in the
the Detainee
Detainee Treatment
Treatment Act,
Act, and
and the
the U.S.
U.S.
standard
i
necessary
constitutional standards that it incorporates, and because it provides detainees with the necess~
3'sS humane
food, shelter, clothing, and medical care, the CIA program satisfies Common Article 3'
humanJ
treatment requirement.
I
I

I

III

Ii

I(

71

t

FROM SITE 15

OOJ

.

(fRI)JUl

2C 2007

~5:~7/ST. lS:lS/NO.1l1ea~2fl77fl ?

c.
We
We also
also recognize
recognize that
that the
thepractices
practicesofofother
otherstate
stateparties
partiesininimplementing
implementingCommon
Common
Article 3-as
3—as opposed
opposed to
to the
the statements
statements of
of other
other states
states unsupported by
by concrete
concrete circumstances
circumstances
and conduct-can
conduct—can serve as "a supplementary means of interpretation." See
See Vienna Convention
the
Law
of
Treaties
Art.
31(3)(b).
We
have
searched
for
evidence
of
on
on
Art. 31(3 )(b). We have searched for evidence ofstate
stateparties,
parties.,seeking
seekingto
to
context similar to that addressed herein.
herein. The one example
implement Common Article 3 in a conte>.1
we have
havefound
found supports
supports the
theinterpretation
interpretation of
of CommOn
Common Article
Article 33 that
that we
wehave
haveset
setforth
forth above.
above.
that we
particular, the United
United Kingdom
Kingdomfrom
of the
the adoption
adoption of Common Article 3 until
untilthe
the
In particular,
from the time
time of
early 1970s applied an interrogation program in a dozen
dozen counter-insurgency operations that
resembles in
in several ways
ways the
theone
one proposed
proposed to
to be
beemployed
employed by
bythe
theCIA.
CIA.
resemble~
Following World War 11
3. the
the United
United Kingdom
Kingdom
II and the adoption ofCommon
of Common Article 3,
of
developed and applied five «in
"in depth interrogation" techniques "to deal with a number of
involving internal security." Report
Reporto/the
of theCommittee
Committee
of Privy
Counsellors
Appointed
situations inv~lving
o/Privy
Counsellors
Appointed
to Consider
ConsiderAuthorized
AuthorizedProceduresfor
Proceduresfor
Interrogation
of Persons
Suspected
of Terrorism,
to
thethe
Interrogation
ofPersons
Suspected
o/Terrorism,.
1972, Cmnd.
Cmnd. 4901,110
4901, \ 10(HSMO
(HSMO 1972)
1972)("Parker
("ParkerCommittee
CommitteeReport").
Report"). The
Thefive
fivetechniques
techniques
1972,
(i) covering aa detainee's head at all times,
times, except when the
the detainee
detainee was
was under
under
involved (i)
(ii) subjecting the detainee K«to
to continuous
interrogation or in an room by himself; (ll)
continuous and
and
monotonous noise
noise ofa
of a volume calculated to isolate [him]
communication"; (iii)
(iii) depriving
[himJfrom
from communication";
depdving
monotonous
the detainee
detainee ofsleep
of sleep "during
"during the
the early
early days"
days" ofthe
of the interrogation;
the
interrogation; (iv)
(iv) restricting
restri.cting aa detainee's
detainee's diet
diet j
to "one
"one round
round ofbread
of bread and
pint afwater
of water at
at six-hourly
six-hourly intervals";
to
and one
one pint
intervals"; and
and (v)
(v) forcing
forcing aa detainee
detainee 1
to face-but
face—but not
not touch-a
touch—a wall
wall with
with his
his hands
hands raised
raised and
and his
time,
to
his legs
legs spread
spread apart for
for hours
hours at
at aa time,
with
only
"periodical
lowering
of
the
arms
to
restore
circulation."
Lord
Gardiner,
Minority
with only "periodical lowering ofthe arms to restore circulation." Lord Gardiner, Minority
Report, Parker
Parker Committee
Committee RepoI"L,
Report, 1iU55("Gardiner
("GardinerMinority
MinorityReport");see
Report")^e«also
alsoParker
ParkerCommittee
Committee
Report,
Report
f
10.
Broadly
speaking,
the
techniques
were
designed
to
make
the
detainee
"feel
that he
he
Report 1i 10. Broadly speaking, the techniques were designed to make the detainee "feel that
is
in
a
hostile
atmosphere,
subject
to
strict
discipline,...
and
completely
isolated
so
that
he
fears
is in a hostile atmosph.ere, subject to strict discipline, ... and completely isolated so that he fears
what may
may happen
happen next."
next." Id,
Id^ 11.
11. From
the 19505
1950s through
through the
the early
early 19705,
1970s, the
the British
British employed
employed
what
From the
all
of
the
five
techniques
in
a
dozen
"counter
insurgency
operations"
around
the
some
or
world,
some or all ofthe five techniques in a dozen "oounter insurgency operations" around the world,
including
operations
in
Palestine,
Kenya,
Cyprus,
the
British
Cameroons,
Brunei,
British
Guiana,
including operations in Palestine, Kenya, Cyprus, the British Cameroons, Brunei, British Guiana,!
Aden,
Malaysia,
the
Persian
Gulf,
and
Northern
Ireland.
See
id.
Aden, Malaysia, the Persian Gulf, and Northern Ireland. See id.
I'

I

l'

I

In 1971, after the public learned that British security forces had employed these
supporting Irish Republican Army
techniques against Irish nationals suspected of
ofsupporting
Army terrorist
activities, the British Government appointed a three-person Committee'of
Committee of Privy Counselors,
activities.
Counselors.
:
England, to examine the
of Waddington, the Lord Chief
Chief Justice of
ofEngland,
chaired by Lord Parker ofWaddington,
of using the five
terrorists. See
See Parker
Parker
legality ofusing
five interrogation techniques against suspected terrorists.
^ffi 1-2. Among other things,
things, the committee considered whether the
('
Committee Report W
1965 directive requiring that all military interrogations comply with
techniques violated a 1965
"Article 3 ofthe
of the Geneva Convention Relative to the Treatment ofPrisoners
of Prisoners of
War (1949)."
"ArticJe
ofWar
(1949)." See
See
^Jj4-6
& Appx.
Appx. A majority
majority of
of the
the committee,
committee, including
including the
the Lord
Lord Chief
Chief Justice,
Justice, concluded
id ft
4-6 &
the "application ofthese
of these techniques, subject to proper safeguards, limiting the occasion
that the
ocasion on I
which and the degree to which they can be applied, would be in conformity with the Directive i
thus-with
with Common Article 3 J."
]." Id
Id.1i%
[and thus
31.31.
.

I

I

I

72

r

l'CV,",

,.' I I..

1!:l

lJOJ

(FI1I)JUL

20 2007

15:i7/ST.15:15/NO.alaO-'2977$;>

In reaching this conclusIon.
conclusion, the Parker Committee rejected the notion that "the end
justifies the means."
means." Id,
Id \ 27. It repeatedly stressed that aggressive interrogation techniques

,

I

"should only be used in cases where it is considered vitally necessary
«should
neces~ to obtain information."
inform~tio~." Id.
Id·1
1f 35. It also ,emphasized
emphasized that interrogators should be properly trained
135.
tramed and that clear guidelines
should exist "to assist Service personnel [in deciding] the degree to which in any particular
Id. Similarly, it recognized the importance of
of
circumstances the techniques can be applied." Jd
obtaining approval
approval from senior government officials
officials before employing the five techniques, id.
obtaining
id.
37, and it recommended that aggressive interrogations occur only in the presence of
~\\ 37,
ofaa "senior
officer" with "overall control and
a n d...
. . . personal responsibility for the operation." Id
ld ^~ 38. The
committee aJso
also cOncluded
concluded "that a doctor with some psychiatric training should
be
sbould present at all
times
at
the
interrogation
centre,
and
should
be
in
the
position
to
observe
times at the interrogation centre. and should be in the position to observe the
the course
course of
of oral
oral
interrogation,"
so
that
he
could
"warn
the
controller
if
he
felt
that
the
interrogation
was
being
jnterrogation," so
could
controUer jf
pressed too
too far"
far" (although,
{although, in
in contrast
contrast Vt'ith
with the
the CIA
CIA program,
program, the
the doctor
doctor would
would not
not have
have the
the
pressed
actual authority
authority to
to stop
stop the
the interrogations).
interrogations). Id
Id fl~ 41.
41.
actual

I

The Parker Committee emphasized.
ofaa pure "ends-means"
emphasized, howevElf.
however, that its rejection of
to the
analysis did not mean that Common Article 3 barred countries from giving some weight to
citizens against the harII)
harm ~eatened
threatened by terrorist or insurgent operations.
need to protect their Citizens
interrogatiol?
The committee, for example, emphasized that, when properly administered, the five interrogation
techniques posed a "negligible" "risk ofphysical
of physical injury" and "no real risk" of
"long-term mental
tce;:bniques
of"long-tenn
mentall
Id 'd11'14-17.
fffi 14-17. Yet they had "produced very valuable results in revealing rebel
effects." Jd
Orders.'"
Id 1
%18.
18.InInNorthern
NorthernIre1and,
Ireland,the
theCommittee
Committee
organization, training and 'Battle Orders.
to. Jd
.
observed,
use
of
the
techniques
after
"ordinary
police
interrogation
had
foiled,"
led
to,
among
observed.
ofthe
failed,"
among..
things, the identification
identification of more than 700
7001.R.A.
other things,
I.R.A. members, details about "possible I.R.A.
I.R.A
plans," and the discovery of
of large quantities of
operations" and "future plans,
of arms and explosives. Id.
Id.l
fflj21-22.
21-22.The
TheCommittee
Committeeemphasized
emphasizedthat
thatthe
thetechniques
techniqueswere
were"directly
"directlyand
andindirectly.
indirectly...
1i~
..
I
24.
of jn~cent
innocent citizens." Id
Id <|
4'dj24.
responsible for the saving of lives of

I

I

tf

3's
More broadly, the Parker Committee explained that the meaning of
of Common Article 3'5
restrictions must be interpreted based on the nature ofthe
id. U
11 30
of the conflict. See id
30(explaining
(explaining that
that
fall to be
be judged
judged by [a
"'humane,' 'inhuman:
'inhuman,' 'humiliating.'
'humiliating,' and 'degrading' fell
terms such as '''humane,'
of the circumstances in which the techniques are applied").
dispassionate] observer in the light ofthe
the,
Accordingly, the committee concluded that Common Article 33 must be interpreted
interpreted in light of
ofthe,
of war in its ordinary sense," terrorism is "in
unique threats posed by terrorism. Although "short ofwar
"i~
Id 1i
132.
many ways worse than war." Jd
32. It occurs "within the country; friend and foe will not be I
determined to achieve their ends by indiscriminate i
identifiable; the rebels may be ruthless men detennined
If information is to be obtained, time must be of
the essence of
the
attacks on innocent persons. If
ofthe
ofthe
Id Moreover, factors that might facilitate interrogation in traditional war—such
operation." Id.
war-such as
"a number of
prisoners who dislike the current
"ample information" to assist interrogators and <&a
ofprisoners
talk"—are often absent "in counter-revolutionary
enemy regime and are only too willing to talkn-are
i
operations."
Id
ffif
25-26.
See
also
id.
(noting
difficulty
in
obtaining
information
"quickly").
operations." Id W25-26. See also id. (noting difficulty in obtaining information "quickly"). "
Consequently, the Parker Committee concluded that in light of
the terrorist threat,
of the
the nature of
ofthe
Consequently.
the
interrogation
techniques
employed
by
the
United
Kingdom
were
consistent
the interrogation techniques employed by the United Kingdom were consistent with
with Common
Common
Article 3.

I

I

I

73

I

(FRDJUL

20

2007

IS: 17/ST. lS:15/NO.

616C~29779

I

Shortly after
after the
the Pllrlcer
Parker Committee
Committee issued
issued its
its report,
report, Prime
Prime Mini_
Minister Edward
Edward Heath
Heath
Shortly
that as
as a matter of policy,
policy, Britain woul~
would not
not use
use the::
the five
five techniques in
in future
future
announced that,
i
interrogations. See Debate on Interrogation Techniques (parker
(Parker Committee Report).
Report), 832
832 ParI.
Pari.
interrogations.
Deb.,
Deb., H.C.
H.C. (5th Ser.)
Ser.) 743-50 (1972);
(1972); see
see also
alsoRoger
RogerMyers,
Myers,AARemedyfor
Remedyfor Northern
NorthernIre/and:
Ireland: The
The
Case
for
United
Nations
Peaceheping
Intervention
In
An
Internal
Conflict,
11
N.YL.
Sc~
J..
Case for United Nations Peacekeeping Intervention In An Internal Conflict, 11 N.Y.L. Sen. J..
Int'I
Int'l & Camp.
Comp. L.
L. 1,52
1, 52 n.220
n.220 (1990).
(1990). The
The Prime Minister did not,
not to
to our knowledge.
knowledge, take Issue
issue
Chief Justice's interpretation ofthe United Kingdom's treaty obligations under
with the Lord ChiefJustice's
3, however. Indeed.
Indeed, in announcing what he stated was a change in policy, the
Common Article 3,
of the Committee "conclude[d]
"concluded] that use ofthe
of the
Prime Minister emphasized that the majority ofthe
methods could be justified in exceptional circumstance~."
circumstances," subject to safeguards. [d.
Id. at 743.
743.

i

!

That for more than two decades following the enactment of Common Article 3,
3, one ofth~
of the
of the rule of law
law and human rights
rights employed I
world's leading advocates for and practitioners ofthe
Common
techniques similar to those in the CIA program and determined that they complied with Commoh
also
Article 3 provides strong support for our conclusion that the CIA's proposed techniques are alsol
consistent with Conunon
Common Article 3. The CIA's proposed techniques are not more grave than
found stress
/.
those employed by the United Kingdom. To the contrary, the United Kingdom found
positions to be consistent with Common Article 3, but the CIA currently does not propose to
include such a technique. Consistent with recommendations in the Parker Committee's legal I
opinion.
i
opinion, the 'CIA
CIA has developed extensive safeguards.
safeguards, including written guidelines.
guidelines, training,
of high level
close monitoring by medical and psychological personnel,
personnel,' and the approval ofhigh
officials to ensure that the program is confined to safe and necessary applications of
of the
officials
I
techniques in a controlled, professional environment While the United Kingdom employed
thes r
these techniques in a dozen colonial and related conflicts, the United States proposes to use these
of high value terrorists engaged in a worldwide armed
techniques only with a small number ofhigh
conflict
conflict whose primary objective is to inflict mass civilian casualties
casuaJties in the United States and I
throughout the free world.

i

I

I

The United Kingdom's determination
detennination under Common Article 33 also sheds substantial
light on the decisions of
other international tribunals applying legal standards that fundamental1)\'
fundamental!)
ofother
differ
Human Rights later i
differ from Common Article 3.
3, As discussed above, the European Court of
ofHuman
found that two of
of the interrogation techniques approved by the Committee—diet
Committee--diet manipulation
and sleep deprivation—violated
deprivation-violated the stand-alone prohibition on "degrading treatment" in the
European Convention on Human Rights, to which the United States is not a party. Ireland
Ireland v.
United Kingdom, 2 EHRR 25 (1980). The court explained that "degrading treatment" under the
ECHR
Id
ECHR. included
included actions directed at "breaking [the] physical or moral resistance" of
of detainees. II!.
^-;r 167.
The
court's
capacious
interpretation
of
the
European
Convention's
prohibition
on
167.
coun's
of
!
"degrading
° Indeed, the European
"degrading treatment"
_em" is
is not well-suited
well-suited for Common
Cnmmon Article 3.
3."
European Court ,

I
i

M

.so The
The Israeli Supreme
Supreme Court in
in Public
Public Committee
OJmmitteeAgainst
Against Torture
Tor/ure v.v. Israel,
Israel, HCJ
ReI 5100/94
5100/94 (1999),
(1999), also
also cited
citeC:1
the ECHR
observed that aa combination
ECHR decision
decision and
and.observed
combination of
ofinterrogation
interrogation techniques
techniques might
might constitute
constitute "inhuman
"inhuman and
degradi.,g" treatment. See
See Id at 27-28. As
As discussed
discussed above, see
see supra
svpra at
at 41
41-42,
turned primarily
primariJy
degrading"
-42, the Israeli decision (umed
statuto!)' law
law and did not specifically
specifically purport
pwport to define
define what
wNt constitutes
consUtute5 "inhuman and degrading
degradingi'
upon that nation's statutory
treatment under
under any particular
partic:ular treat}-,
treat}·, much
much less
less what rises to
(0 an "outrage
"outrage upon personal
personal dignity" or other
other violation
violation i
treatment
of
law applicable
ofCommon
Common Article
Article 3. Six
Six years
years later, the same
same court
court recognized
recognized that the international
intemationallaw
applicable to domestic
domestic i
criminal
~riminal law
J~w enforcement
e~~ment and that
th~t applicable
applicable to an armed
anned conflict
conflict fundamentally differ: While the former places
pla~ I
"absolute"
armed conflict
absolute restrictions
reslnetJons oh
on degrading
degradmg treatment
treatment generally,
generally. the
the law
law of
ofarmed
conflict requires
requires aabalancing
balancing against
against
.

I

74

?

CFRI)JUL

20 2110i 15:17/ST.15:15/NO.

6'60':2977~

~

!

II

bas
has interpreted
interpreted that
that provjsion
provision not only to impose detailed requirements on prison conditions, but
also
to
prohibit
any
action
that drives an individual «to
also
"to act against his will or conscience," a
standard
standard that might well rule out any significant interrogation at all.
all. See Greek Case, 12 Y.B. .
ECHR
js a peacetime treaty that
tha.t
!
ECHR 186.
186. Those decisions reflect that the European Convention is
prohibits
prohibits any
any form of"degrading
of "degrading treatment," while Common Article 3 prohibits only
"humiliating
"humiliating and degrading treatment" that rises to the level of an "outrage upon personal
dignity."
of
dignity." Common Article 3 isis a provision designed for times of war, where the gathering of
intelligence, often by
by requiring a captured enemy "to act against his will or conscience" or by
intelligence,
undermining
thai
undermining his
his "physical or moral resistance," is to be expected. Furthennore,
Furthermore, it is unclear that
the
the ECHR
ECHR in Ireland \I.v. U.K
U.K. was
was confronted with techniques that provided adequate food and I
that
that were carefully designed to be safe, such as those proposed by the CIA
CIA.

I
I

j

It is the United Kingdom's interpretation of
relevan
of Common Article 3 in practice that is relevam
ofthe United
to our detennination,not
determination, not the ECHR's subsequent interpretation ofthe
of the legality of
different treaty. The practice of
of the United Kingdom in
Kingdom's techniques under a.a different
Common. Article
Article 33 S'IJPpons
supports the
the interpretation set forth above"
above.
implementing the interpretation of Common.
, D.
D-

For these reasons,
reasons, we interpret Common Article 3 to pemit
permit the CIA's interrogation and
this interpretation
detention program to go forward. Part of the foundation of
ofthis
interpretation is that Congress
has largely addressed the requirements of Common Article 3 through the War Crimes and
Acts. These provisions include detailed·prohibitions
detailed prohibitions on particularly
Detainee Treatment Acts.
particularly serious
serious,
of the Nation's own constitutional standards to
conduct, in addition to extending the protection of
of fighting against America, persons whom the Constitution
aliens detained abroad in the course offighting
would not otherwise reach. And the CIA's interrogation program, both in its conditions of
of
confinement and with regard to the six proposed interrogation techniques, is consistent
consistent with the
War Crimes and Detainee Treatment Acts.
Acts. To the extent that Common Article 3 prohibits
Acts. the CIA
additional conduct, unaddressed by the War Crimes and Detainee Treatment Acts,
program is consistent with those restrictions as well.

.

I

this program. This program is narrowly
IJust
ust as important is the limited nature of
ofthis
narrowly targeted
targeted

of the highest order—preventing
to advance a humanitarian objective ofthe
order--preventing catastrophic
catastrophic terrorist
I
attacks—and indeed the CIA has determined that the six proposed techniques are the minimum I
attacks-and
necessary for a program that would be effective
effective in obtaining intelligence critical to serving this
of high value terrorists who, after
end. It is limited to a small number of
after carefui
carefui consideration,
officers of
of the CIA believe to possess crucial intelligence.
i.ntelligence. The program
progr
professional intelligence officers
is conducted under careful procedures and is designed to impose no pain that is unnecessary
unnecessary for I
the obtaining of
of crucial intelligence. At
the
same
time,
it
operates
within
strict
limits
on
AJ.
on'conduce,
condu~
including those mandated by the War Crimes Act and the prohibition on torture regardless of
of the
of the conduct. Common Article 3 was not drafted
drafted with
witb the threat
threat posed
posed by
by al
a1 Qaeda'
Qaedal
motivation ofthe
in mind; it contains certain specific
specific prohibitions, but it also contains some general principles
principles with
with

thi:l'

,

.

legitimate military needs. Public Committee Against Torture
Torturein
inIsrael
Israelv.v. The
TheG(Ntmmen(
GovernmentofIsra'I,
of Israel,HCJ
HCJ769102,
769/02,
11,2005).
1iij 22 (Dec. 11,
2ooS).

75

L
I

p

\

~RO~

SITe 15

CFRI)JUL

DOJ

d~finition.

20

IOi~~'TI

2007

15:07/ST. 15:H;/HO. 6i&OoC2i77S1

e~entuali~ies

:

less definition. The
The general
general principles
principles leave
leave state
state parties
partiesto
toaddress
addressthe
the new
new eventualitiesofw4
of war
less
Geneva Conventions
Conventions by
by their
their conduct.
conduct. We
WeWill
will not
notlightly
lightly
to mold the interpretation of the Geneva
I
sovereign state
statefrom
defending against
against the
the new
new
construe the Geneva Conventions to disable a sovereign
from defending
of terrorist attacks carried out by at
al Qaeda.
Qaeda.
types ofterrorist
in this memorandum reflects what we believe to be the
the correct
, The interpretation in
.
of Common Article 3.
3. B~use
Because certain general provisions in Common Article 3 i
interpretation ofCommon
designed to
to provide
provide state
state parties
parties with
with flexibility
flexibility to
to address
address new
newthreats,
threats, however,
however, the
the natur
natur;
were designed
is that
that other
other state
state parties
parties may
may exercjse
exercise their
their discretion
discretion in
in ways
ways that
that do
do not
not
of such flexibility is
United States.
States. We
We recognize
recognizeCommon
Common Article
Article33may
may len.
lend
perfectly align with the policies ofthe
of the United
may disagree in
itself to other interpretations, and international bodies or our treaty partners may
Ii
51
interpretation.SI
some respects with this interpretetion.

e

1

Just'as
Acts, other states
states ma~
may
Just as we have relied on the War Crimes and
and Detainee
Detainee Treatment Acts,

with similar
similar language,
language, but
but drafted for
for dissimilar purposes,
purposes, as
as aa source
source of
of
turn to treaties with
example, the European Court
Court ofHuman
of Human Rights
Rights
above, for example,
disagreement. As discussed above,

I

I
determined
that
certain
of
the
interrogation
techniques
proposed
for
use
by
the
CIA—diet
detennined
ofthe
the CIA-diet
I
deprivation—violated the European Convention's stand-alone
manipulation and sleep deprivation-violated
Ireland11.v.United
United
Kingdom,
2EHRR25
(1980).
prohibition on "degrading treatment." Ireland
Kingdom.
2 EHRR
25 (1980).
ForFor !
does not constitute the basis for a correct reading
reasons we have explained, the ECHR decision aoes
of Common Article 3 in our view, but the openness
openness of
of"humiliating
"humiliating and
and degrading
degrading treatment"
treatment" I
an interpretation.
interpretation, and the State
might not prevent others from,
from, incorrectly, advocating such an
f
Department informs us that given the past statements of our EUropean
European treaty partners about
the War
War on Terror,
Terror, and
and notwithstanding some
some of
of their
their own
own past
past
United States actions in the
practices, see supra
supraatatn.36,
n.36,the
theUnited
UnitedStates
Statescould
couldreasonably
reasonablyexpect
expectsome
someof
ofour
ourEuropean
European
treaty partners to take precisely such an expansive reading ofthe
of the open
open terms
tenns in Common
Common
Article 3.
3.

i

I

I

Recognizing the generality of some of Cornmon
Common Article 3's provisions,
provisions. Congress
the I
provided a mechanism through which the President could authoritatively determine how the
United States would apply its tenns
terms in specific contexts.
contexts. The Military
Military Commissions
Commissions A~
Act ensureJ
ensures
that the President's interpretation ofthe
of the meaning
meaning and
and applicability of the
the Geneva Conventions
Conventions
MCA is squarely directed at
would control as a matter of
of United States law. Section 6(a) of
of the MeA
at j
therisk
risk that the interpretations that would guide our military and intelligence personnel could be
be!
cast aside after the fact by our own courts or international tribunals,
tribunals, armed 'with
with flexible and
j
general language in Common Article 3 that could bear the weight of
of a wide
",,"ide range of
of policy
I
preferences or subjective interpretations. To reduce this risk, Congress rendered the Geneva
Conventions judicially unenforceable. See
See MCA
MCA§§5(a).
5(a). The
Therole
roleof
ofthe
thecourts
courtsininenforcing
enforcingthe!
the
Geneva Conventions is limited to adjudicating prosecutions under the War Crimes Act initiated i
by the Executive Branch and.
and, even then,
then, courts may not rely on "a foreign or international source

!

I

.'

~

JI

11
extend* only
only ,.
to""",nabl,
reasonable interpretationsof_I""
of unclearknus
terms
of CommonAdick
Article3.3. Where
" This
'l1nsflexibility
J1e,"",Dty .......
ofC<>......
clear, state patties
parties are
are obliged as
as aa matter
matter of
of international
international law
law (though
(though DOl
not necessarily
necessarily their
their
Common Article 3 is clear,
own domestic laws) to follow it, and states
international law to
to adopt unreasonable
stales have no discretion under intemationallaw
interpretations at odds with the language of the provision.
.

76

l __

P

I

FROM $ITE

is

(FRI)JUL

OOJ

20

2007

~5:~7/ST.15:15/NO.151150"2~7711 F

I
law" to
to decide
decide the
thecontent
content ofthe
of the statutory elements in the
the War
War Crimes
Crimes Act.
Act. See
See id §§ 6(a)(2)1,
6(a)(2)
of law"
Congress
Congress also
also expressly
expressly reaffirmed that
that the
the President
President has
has authority
authority for
for the
the United
United States
States to
to
interpret the
meaning
and
applicability
ofthe
Geneva
Conventions.
See
iii.
§
6(a)(3}(A).
the meaning and
of the Geneva Conventions. See id § 6(a)(3)(A). Should
Shoul d
he
... as
he issue
issue interpretations
interpretations by
by executive
executive order,
order, they
they will
will be
be "authoritative
"authoritative...
as aa matter
matter ofUnited
of United .
States
States law
law in
in the
the same
same manner as
as other administrative
administrative regulations."
regulations." ld
Id § 6(a)(3)(C).
6(a)(3)(C).S2
We understand
understand that
that the
the President
President intends
intendsto
toutilize
utilizethis
thismechanism
mechanism and
andto
to sign
sign an
an
We
an interpretation of Common Article 3. That action would
executive order setting forth an
~
the appl~cation
application of Common
Common Article.3
Article 3 to
to the
the CIA program
program as
as ~a matter
matter o.of
conclusively determine the
law.. We
We have
have reVlewed
reviewed the
the proposed
proposed executIve
executive order
order and
and have
have determtned
determined that
that Itit
United States law.
above. See
See Proposed Order
is wholly consistent with the analysis ofCommon
of Common Article 3 set forth above.
is
EntitledInterpretation
Interpretationofthe
of theGeneva
Geneva
Conventions
Common
Article
As Applied
to a Program
Entitled
Conventions
Common
Article
3 As 3
Applied
to a Program
bf of
Detentionand
andIntelTogation
InterrogationOperated
Operated
Central
Intelligence
Agency
(Executive
DetenJion
byby
thethe
Central
Intelligence
Agency
(Executive
ClerkClerk
fin~ final
signature, July
July 20,
20, 2007)
2007) ("Draft
("Draft Order").
Order"). Because
Because the
the
draft, presented to the President for signature,
public, it cannot engage
engage in
in the
thedetailed
detailed application
application of
of Common
Common
executive order would be public,
.tothe
thesix
sixproposed
proposedtech..1.iques
techniquesembodied
embodiedininthis
thisopinion.
opinion. Instead,
Instead,the
theexecutive
executiveorder
order .!
Article 3 .to
sets forth an interpretation of Common Article 3 at a higher I~vel
level ofgenerali1y
of generality that tracks the
analysis in this opinion and,
and, thereby.
thereby, conclusiveJy
conclusively determines that the CIA's proposed program'
program
the six proposed interrogation techniques,
techniques, complies :
of interrogation and detention, including the
Common Article
Article 3.
3.
with Common

I

I

I

confinement that
The executive order would prohibit any technique or condition of
ofconfinement
that
18 U.S.C.
U.S.C. §§2340,
2340,ororany
anyact
actprohibited
prohibitedby
bysection
section2441(d)
2441(d)of
of I
constitutes torture, as defined in 18
See Draft
Draft Order
Order §§3(b}(i)(A)-(B).
3(b)(iXA>(B). This
ThisOffice
Office has
hasconcluded
concludedthat
thatthe
thesix
six i
the War Crimes Act. See
proposed techniques, when applied in compliance with the procedures and safeguards put in r
place by the CIA, comply with both the federal anti-torture statute and the War Crimes Act. See
Section
2340Opinion
Opinionand
andPart
Partn,n,supra,
supra,
Section 2340

I(a) of Common Article 3,
3.1he
To ensure full implementation of paragraph.
paragraph-1(a)
the executive
order also would prohibit "other acts
aqts of violence serious enough to be considered comparable to
murder, torture,
or inhuman treatment, as defined in" the War Crimes Act.
torture. mutilation, and cruel
cruel'or
Act.l
Draft
3(b)(i)(C). As
As explained above
above (see
(seepart
partIV.B.I.a,
TV.B. 1 .a,
supra),
proposed
Draft Order § 3(b){i)(C).
supra),
thethe
sixsix
proposed
I
techniques do not involve violence on a level comparable to the four enumerated forms of
of
i
violence in paragraph 1(a) of
Common Article
ofCommon
Article 3—murder,
3-~urder. mutilation, torture, and cruel .

to!

I
I

I

Pr~ident

grants the President great authority—as
authoiity-as our Nation's
Nation' 5 chief organ in foreign affairs
a1fairs and
inn The Constitution giants
as Commander
Commander in Chief—to
Chief-to interpret treaties,
treaties. particulariy
particularly treaties regulating wartime
wanimc operations. Those
I
interpretations
interpret2tions are ordinarily
ordinariI)' entitled to "great weight" by the courts. See, e.g.,
e.g_, Sanchei-Uamas
Sanchez-Llamas v. Oregon, 126 i
S.
s. Ct.
a. 2669, 2685
268S (2006). Congress,
Congress. however, determined in the MCA
MeA that
lhat ilit was appropriate to
to affirm
affirm flat
that the
tbe
;
President's interpretations of
the Geneva Conventions are entitled to protection.
ofthe
proteCtion. It is apparent that Congress was
reacting
rcacling to the Supreme
Sup~e Court's decision in ffamdan,
Hamdan, which adopted an interpretation of
of the applicability of
of the
I
Geneva
oonIrary to
to that
that of
ofthe
the President,
President, without
without taking
taking.account
account of
of the
me President's
President's interpretation.
interpretatioIL See
See j
Geneva Conventions
Conventions contrary
Homdan,
Hamdan, 126
126 S. Ct
Ct. at
at 2795-98;
2795.98~ id,
id. at
at 2847
2847 (Thomas,
fThomas, J.,
J., dissenting).
dissentins). The
The MCA
MCA therefore
therefore reflects
reflects aa congressional
congressional 1
effort
dfon to
to restore
restore the
the principal
principal role
role that
that the
the President
President has
has traditionally
uadilionally played
played in defining
defining our Nation's
Nation's international
international !
obligations. In
In this regard,
regard, presidential
presidential orders under
under the
the MCA
MCA would
would not
nO£ be
be subject
subject to
to judicial
judicial review. See Franklin
Frank/ik
v.
505 U.S. 788,
788,800-01
(holding that presidential action is not subject to
!.
v. Massachusetts,
Mossachusens, 50S
800-01 (1992) (bolding
to judicial review
under
'
under the
the Administrative
AdministJative Procedure
Procedure Act,
Act, or any other statute, absent
f.bsent "an express
el\press statement
statement by
by Congress**).
Congress").

77

:2

FROM

SIT~

15

OOJ

(FRI)JUL

T

2C 2007 15:17/$,. is:15/NO. 6160£ZP779

N:rQi4~~

T

treatment.
frequency, and
teChniQUes-iJ
treatment. The
The limitations on the
the administration, frequency,
and intensity ofthe techniques—in
particular, the corrective techniques-ensure
that
they
will
not
involve
physical
force
that rises
rises to
techniques—ensure

to

I

the level ofthe
of the serious violence prohibit~
prohibited by the executive order.

I

The executive order would prohibit any interrogation technique or condition of
of
I
the
"cruel,
inhuman,
or
degrading
treatment
or
punishment"
confinement
that
would
constitute
con~n~ment
woul~
'<cruel; inhu~an, degradin~ ~reatment o~ p~nishment"
prohibIted
prohibited by the Detamee
Detainee Treatment Act and secuon
section 6(c) ofthe
of the Military CommIssionS
Commissions Act. .
Draft Order § 3(b)(i)(D).
3(b)(i)(D). We have
have concluded that the
the six proposed techniques, when used as
in the context of this program.
program, comply with the
tbe standard in the DTA and the MCA.
MeA
authorized in
See Pan
Part ill,
HI, supra.
supra,
See
To address paragraph ICc)
1(c) ofCommon
of Common Article 3 further, the executive order would bar
interrogation techniques or conditions ofconfinemeI\t
of confinement constituting "willful
"interrogation
"willful and outrageous acts
ofpersonal
ofhumiliating
or degrading
degrading the
the individual
individual in
in aa manner
manner so
so
of personal abuse done for the purpose of
humiliating or
serious that any reasonable person, considering the circumstances, would deem the acts to be
human decency, such as sexual or sexually
beyond the bounds of buman
sel'.'1JaUy indecent acts undertaken for
of humiliation, forcing
forcing the
the individual
individual to
to perform
perform sexuai
sex"Uai acts
acts or
orto
to pose
pose sexually,
sexually,
the purpose ofhumiliation,
shield.3'
threatening the individual with sexual mutilation, or using the individual as a human shield."
3(b)(i)(E). This provision reinforces crucial features of
the interpretation
ofthe
interpretation of
of
Draft Order § 3(b)(i)(E).
paragraph l(c)
1(c) ofCommon
of Common Article
Article 33 set
set forth in this
this opinion:
opinion; To trigger the paragraph.
paragraph^
.I
humiliation and degradation must rise
rise to the level ofan
lq
of an outrage, and the term "outrage" looks to
the evaluation of a reasonable person that the conduct is beyond the bounds of
ofhuman
human decency, ,
j
of the conduct.53) As
taking into consideration the purpose and context ofthe
As explained
explained above,
above, the
the six
SiX/'
proposed techniques do not constitute "outrages upon personal dignity" under these principles; .
thus.
ofthe
executive
order.
I
thus, the techni.ques
techniques also satisfy section 3(b)(i)(E) of
the executive
order.
.
"\

I
I

I

I

implementing paragraph l(c)
1(c) ofCommon
of Common Article 3, the executive order would
Also 'implementing
religion, religious
religious practices,
practices, Of
or religious objects" of the
prohibit "acts intended to denigrate the religion,
detainees. Draft Order § 3{b)(i){F).
3(b)0XF). The
The six
six techniques
techniques proposed
proposed by
by the
the CIA
CIA are
are not
not directed
directed at,
at
detainees.
the religion,
religion, religious practices, or religious objects of the detainees.
.

I

The techniques and conditions of confinement approved in the order may be used only
Draft Order
Order
with certain alien detainees believed to possess high value intelligence (see
(see Draft
(seePart
PartlA.,
I. A,supra).
supra).The
TheCIA
CIAprogram
programmust
mustbebe
3(b)(ii)), and
and the
the program·is
program-is so
so limited
limited (see
§§ 3(b)(ii»,
.
of the CIA (see
(see Draft
Draft Order
Order §§ 3{c)j,
3(c)
conducted pursuant to written policies issued by the Director ofthe
(see Part
Part I.AI,
LA. 1,supra).
supra).InInaddition,
addition,the
theexecutive
executive I
will have such policies in place
and the CIA will
p'iace (see
order would require the Director, based on professional advice, to determine that the techniquesl
techniques
detainee" (see
(seeDraft
Draft Order
Orderatat§§3(b)(iii»,
3(b)(iu)),and
andthe
theCIA
CIAintends
intendstotodo
doJ,
so
are "safe for use with each detainee"
(see Parts
PartslA.3
LA.3 and
and I.B,
LB, supra).
supra).
(see

Under the proposed executive order, detainees must "receive the basic necessities of
of life,
life
including adequate food and water, shelterfrom
the
elements,
necessary
clothing,
protection
from
clothing,.

'I

53

in\'ol\'~

se<:tiJ

any se,,-ual
sexual or sexually indecent acts, much less chose
Nor do the techniques involve any
mose referenced
referenced in section
4<b)(i)(E)
of the
the executive
executive order.
order. The
The techniques
techniques also
alsodo
donot
notinvolve
involvethe
theuse
use of
ofdetainees
detaineesas
as human
human shields.
shields.
.. 4(b
)(i)(E) of
.53

78

P

:i

fROM SITE

15

DOJ

(FROJUL

2C·

:<007

li5:;7/ST. 15't5/NO.61aO~29779 ;>

I

from
from extremes
extremes9fheat
of heatand
andcold,
cold,and
andessential
essentialmedical
medicalcare."
care." See
SeeDraft
DraftOrder
Order§§3(b)(iv).
3(b)(iv). This
This
requirement is based on the interpretation ofCommon
3' S overarching humane treatment
treatmenq
of Common Article 3's
requirement set forth above,
above, and we have concluded that the proposed techniques comply with
this basic necessities standard. See Part IV.BJ.
IV.B.3, supra.
supra. Should
Should the
the President sign tile
the executive
order, the six proposed techniques would thereby comply with the authoritative and controlling i
interpretation of Common Article 3, as the
i
the MeA
MCA makes
makesclear.
clear.

I
f

v.
V.

;

,

The armed conflict against at
al Qaeda-an
Qaeda—an enemy dedicated to carrying out catastrophic
its aUies-is
allies—is unlike
unlike any
any the
the United
United States
States has
has
attacks on the United States, its citizens, and its
confronted. The tactics necessary to defend against this unconventional enemy thus present a .
. series of new questions under the law of armed conflict. The conclusions we have reached
!
address. Not intended to be used
use
herein, however, are as focused as the narrow CIA program we address.
herein,
by aU
all U.S. personnel who interrogate captured terrorists, the CIA program
all detainees or by
with all
restricted to the
the most knowle<;igeable
knowledgeable and dangerous ofterrorists
of terrorists and is designed
would be restriete.d
designed to
to I
obtain information crucial to defending the Nation.
Nation. Common Article 3 permits the CIA to
to go
forward with the proposed interrogation program,
and
the
President
may
determine
that
issue
program.
detennine
:
to his authority under the
an executive order to that effect pursuant to
conclusively by issuing an
Constitution and
and the
the MeA
MCA. As
As explained
explained above,
above, the
the proposed
proposed executive
executive order
order accomplishes
accomplishes !
Constitution
the CIA's
CIA's six
six proposed
proposed interrogation
interrogation techniques,
precisely that
that end.
end. We
We also
also have
have concluded
concluded that the
precisely
techniqu~,
subject
to
all
of
the
conditions
and
safeguards
described
herein,
would
comply
with
the
subject to aU of the conditions and safeguards described herein, would comply with the Detainee
Detaine~
Crimes Act.
Act.
Treatment
Act and
and the
the War
War Crimes
Treatment Act
I

I
I

i

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

I
I-

Steven G.
G. Bradbury
Principal Deputy Assistant Attorney General

79