U.S. Department of Justice
Office of Legal Counsel
WashingtOrl, D.C. 20530

Office of the Assistant Attorney General

August 31, 2006

'.

MEMORANDUMFORJOBNA.RUZO
.ACTING GENERAL COUNSEL, CENTRAL INTELLIGENCE AGENCY

Re: Application ofthe Detainee Treatment Act to Conditions o/Confinement at
Central Intelligence Agency D~tention Facilities
. The Detainee Treatment Act of200S, in relevant part, prohibits any individual in U.S .
.' custody or control from being "subject to cruel, inhuman, or degrading treatment or
.punishment," "regardless of nationality or physical location." Detainee Treatment Act of2005,
Pub. L. No. 109-163, tit. XIV: §1403, 119 Stat. 3136, 3475 (2006) ("DTA" or "Act"); see also
Pub. L. No. 109-148, div. A, tit X, 119 Stat. 2680,2739 (2005) (same). You have asked
whether particular "standard conditions of detention" at certain Central Intelligence Agency
("qA") facilities located overseas are consistent with the'applicable standards of the DTA.
Letter for Steve Bradbury, Acting Assistant Attorney General, Office ofLegal Counsel, from
John A. Rizzo, Senior Deputy General Counsel, CIA at I (Dec. 19, 2005) ("Rizzo Letter').
The DTA was designed to establish a domestic legal' requirement that the United States
abide by the relevant substantive constitutional standard, applicable to the United States under
Article 16 ofthe Convention Against Torture, in its treatment of detainees in certain limited
circumstances, regardless of location or nationality. The relevant standard applicable to CIA
detention facilities under the DTA is that oUhe Fifth Amendment,in particular the
Amenqment's prohibition of government conduct that "shocks the conscience." See County of
Sacramento v. Lewis, 523 U.S. 833, 846 (1998). To detennine whether the conditions of
confiriement at issue here "shock the conscience" within the meaning ofthe Fifth Amendment,
the ultimate inquiry is whether they amount to punishment-which occurs where the hardships
associated'with a particular condition or set of conditions are ouf of proportion to a legitimate
governmental interest. Applying that standard, we conc1u'de that the conditions at issue here,
considered bQth 'separately and collectively, are consistent with the requirements of the DTA. I
I The legal advice provided in this memorandum does {lot represent the policy views ofthe Department of
Justice concerning any particular condition of confinement
.

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I.

A.
The conditions of confinement in question here are used in covert overseas facilities
operated by the CIA as part of its authorized program to capture, detain, and .interrogate
individuals who pose serious threats to the United States or are pIannin terrorist attacks. The
.
this ro am under the Ie aI authorities ranted to it in

ver
the history of the program, the CIA has detam a tota 0
In IVI ua s.
t t IS Ime, he CIA
has fewer than 20 detainees in its custody under this program, the remainder having been
transferred to other forms of custody or other nations. Herein, we ~ssume that the CIA has a
. sound basis for determining that each detainee it is holdin . in the rogram is an enemy
co'mbatant covered by the terms 0
throughout his detention. 2
In addition, we understand that, once the CIA assesses that a detainee no longer possesses
significant intelligence value, the CIA seeks to move the detainee into alternative detention
.arrangements.
The CIA believes this program has been critical to our national security: "the intelligence
acquired from th~e interrogations has been a key reason why al-Qa'ida has failed to launch a·
spectacular attack in the West since 11 September 2001." Memorandum for Steven G.
.
Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, f r o m _
2

m

We understand that all persons currently in CIA custody under this program
enemy combatants.
consider and do not discuss here the detention o(other rsons-eovered. under th

We also underStand that none of the terrorist enemy combatants detained by the CIA for pwposes of this
program is entitled to the privileges of prisoners of war lU1der the Third Geneva Convention or protected persons
under the Fourth. Geneva Convention, and we express no opinion as to whether the conditions of confinement
addressed in this opinion would satisfy the full requirements of the Geneva Conventions in circumstances where
those Conventions would apply. Pursuant to Hamdan v. Rumsfeld, 126 S. Cl 2749 (2006), common Article 3 of the
Geneva Conventions does apply to the anned conflict with al Qaeda and thus to the detainees at issue here who are
being held in that armed ~nflict. In a letter issued today by this Office, we cpncIude that the conditions of
confinement described herein also satisfy the requirements of common Article 3. Letter to 10hn A. Rizzo, General
Counsel, CentJal Intelligence Agency, from Steven G. Bradbury, Acting Assistant Attorney Genera~ Office of Legal
Counsel (Aug. 31, 2006).

2

.,

.',
DCI Counterterrorist Center, Re: EffeCtiveness ofthe CIA
Counterintelligence Interrogation Techniques at 2 (Mar. 2, 2005) ("Effectiveness Memo"). As
'Ye previously have discussed at greater length, interrogations conducted pursuant to the program
have I~ to specific, actionable intelligence about terrorist threats to the United States and its
interests. See M~orandum for John A. Rizzo, Senior Deputy General Counsel, Central
Intelligence Agency, from Steven G. Bradbury, Principal Deputy Assistant Attorney General,
Office ofLegal Counsel, Re:. Application ofUnited States Obligations UnderArticle I6 ofthe
Convention Against Torture to Certain Techniques that May Be Used in the Interrogation of
High Value af Qaeda Detainees at 10 (May 30, 2005) ('Article 16Memoran(1um") (citing
Counterterrorism Detention and Interrogation Activities (September 200I-October 2003), No.
2003-71 23-IG, at 85-91 (May 7, 2004)("IG Reporf'». "More generally, the CIA has informed
.us that, since March 2002, the intelligence derived from'CIA detainees has resulted in more t~an
6,000 intelligence reports and, in 2004, accounted for approximatel half of CTC' s re ortin on
~a." Article 16Memorandum at 11 (citing Fax fro
_DCI Counterterrorist Center, Briefing Notes on the Value ofDetainee Reporting at 1
(Apr. 15,2005) ("Briefing Notes"); IG Report at 86). According to the ,CIA, the ro ram has
had a crucial s ne istic effect on other intelli ence resources in that it has been

. Critical to the legal analysis that follows is the special nature ofthe detention facilities in
which the CIA keeps its high value .detainees. It is clear that such detainees pose unique security
risks~ not only are they a serious risk to escape and to the safety of CIA personnel in the facility,
but any facility housing them is under the threat of an armed attack by their supporters in an
attempt'to free the detainees or to do harm to those responsible fOf their detention. Yet the
covert facilities in which the CIA houses those detainees were not designed as ordinary prisons,
much less as high-security detention
.
an erous and often hi hi .
so histicated internationaI'terrorists.

B.
You have asked us to evaluate the legality of six standard conditions of confinement in
the facilities in question.. According to your account, the common characteristic of each
condition is l<e.nsuring the safety of both Agency ~'terrorist-detainees at our
overseas q)Vert detention facilities." Letter f r o n i _ o Steven Bnidbury, Re:
Requestsfor Information on. Security Measures at 1 (May 18, 2006) ("Security Measures
Letter"). Underlying our analysis ofall these methods is our understanding that the CIA
provides regular and thorough medical and 'psychological care to the detainees in its custody.

3

..,
1. We begin with the CIA's
with 'some opaque material,
Letter for Steven Bradbury, Acting Assistant Attorney General, Office ofLegal Counsel, from
Asso~iate General Counsel, CIA at 2 (Jan. 25, 2006) ("Janua 25
tter". Si nificantl the detainee's vision is not blocked at all times.

January 25
Letter. '
We understand that the methods used y the CIA to prevent detainees from seeing do not
.harm the detainees in' any way. The detainee, for example, is able to breathe easily despite the
presence ofthe goggles or other eye coverings.

, The Agency uses this condition of confinement for security purposes, more specifically,
to "prevent the detainee from learning his location or the layout of the detention ~
Standard O;mditions 0 .CIA Detention at I to prevent the detainee from learnin~
January 25
Letter at 2, to ensure the ,safety of certain personnel
Standard Conditions ofCIA Detention at I, and
January 25 ~etter at 2.
.

,

2. Upon arrival at the detention faci lity, the head and facial hair of each detainee is
shaved with an electric shaver, while the detainee is shackled to ~ security reasons.' .
Standard ConrJitions ofCIA Detention at I ~ see also January 25~tter at 1. This
shaving "is not done a~e step and only takes place upon the initial intake into the
. program.'" January 25~etter at 2. "After the detainee is settled and being debriefed 'he
, is allowed to grow his beard and head hair to whatever length he desires (within limits of
hygiene and safety)." Id The CIA provides detainees "the option to shave once a week if they
so choose" and offers "haircuts as needed or as requested by the detainee." ld It also provides
detainees, at their request, the opti,on of shaving other parts oftheir bodies, recognizing that such
shaving may relate to specific Islamic practices. Jd. Shaving helps enhance security at the
detention facility "by removing hair·in which a detainee might hide small items that might be
used against his interrogators and other detention personnel." Standard Conditions ofCIA
Detention at 1.. In addition, "[s] having is used for hygiene." Id 3

4

thi
"includes no contact with the outside world," including no mail·
or.ne
access. Fax from
to Steven Bradbu at 4 A r. 19 2006) ("April
19
Qx"). Although "CIA etamee
they are
not ISO at from all human contact, nor are they in any way subject to "sensory epnvation."
ld at 2. Indeed, the CIA has taken specific measures to counteract an otentiall adverse
. ., ed human interaction, For exam Ie

e
Agency also affor s etamees ~ess to gym eqUlpmen an p YSlca exercise." ld .
.Finally, each detainee receive.s_psychological examination to assess how \:Veil he is
adapting to his confinement. Id .

the CIA, s~ch confinement helps prevent the detatnees
attack on agency personnel.4, The CIA plays white noise in the walkways of the detention facilities to prevent .
detainees from being able to
'
each other while they are being moved within
ilities.
See
Letter
from
0 Steven Bradbury at 2 (May 23, 2006) ("May 23
_
Lettef'). White noise is used in the walkways onI althou h it is ossible that the
detamees are able to hear some of that noise in their cells,
_
"At no time, however, IS the detainee expos to an exten e perm 0
~oise in the walkways is played at all times below 79 dB. We can Safely
assume that the noise level in the cells is considerably less than the level of the noise in the
walkways; recent measurements taken by the CIA indiCated that the noise level in detainees'
cells was in
n e of 56-5 8 dB, compared with a range of68-72 dB in t~ays. See
Letter from
to Steven Bradbury (May 24, 2006) ("May. 24~ttef').
This level 0 nOIse IS Slml ar to tbat ofnormal conversation. According to CIA's Office of
Medical SeIVices; <'there is no risk of permanent hearing loss for continuous, 24-hours-a-day
exposure to sound at 82 dB or lower ...." Id "[S]ound in the dB 80-99 range is experienced as
loud; abo:ut 100 dB as uncomfortably loud." 1d.
.
5. The CIA also keeps detainees' cells illuminated 24-hours-a-day. Standard Conditions
.oj CIA Detention at 3. Each cell is lif by two 17-watt T-8 fluorescent tube Ii ht bulbs which
illuminate the cell to about the same brightness as an office.

5

purpose. Over the course of several years, the CIA has not observed that the light has had any
adverse effect on detainees' ability to obtain adequate sleep. .
.
6. Finally, the CIA uses leg shackles to enhance security "in all aspects of detainee
management and movement." Id Shackling, however~ is kept to the minimum required by the
CIA's security concernSj the number of hours per day that a detainee is shackled is calibrated to
the threat that the detainee poses to detention facility staff Jd Detainees thus are not shackled
while in their cells unless they have previously demonstrated that they are a threat to themselves
or to facility personnel while in their cells. You have informed us that at resent no detainee is
shackled 24 hours er da

ll.

The.DTA provides that "[n]o individual in the custody or under the physical control of
the United States Government, regardless of nationality or physical location, shall be subject to
cruel, inhu.man, or degrading treatment or punishment." DTA § 1403 (a). It further provides that
"[n]othing in this section shall be construed to impose any geographical limitation on the
applicability of the -prohibition against cruel, inhuman, or degrading treatment orpunishment
under this section." .DTA § 1403(b). The Act defines the teon "cruel, inhuman, or degrading
. treatment or punishment" to include only
the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth,
Eighth, and Fourteenth Amendments to the Constitution ofthe United States, as
defined in the United States Reservations, Declarations and Understandings to the
United Nations Conve~tion Against Torture and Other Forms of Cruel, Inhuman
or Degrading Treatment or Punishment done at New York, ~ecember 10, 1984.
DTA § 1403(d). The U. S. reservation to Article 160fthe Convention Against Torture ("CAT")
provides that
the United States considers itself bound by the obligation under Article 16 to
prevent "cruel, inhuman or degrading treatment or punishment," only insofar as
the tenn "cruel, inhuman or degrading treatment or punishment" means the cruel,
unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth,
and/or Fourteenth Amendments to the Constitution of the United States.
136 Congo Rec. 36,198 (1990). The DrA's definition of "cruel, inhuman, or degrading treatment
or punishment," including its reference to the U.S. reservations to the CAT, is designed to
establish a domestic legal requirement that the United States abide·by the substantive standards
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applicable to the United States under Article 16 of the CAT in its treatment of detainees, .
regardless of their location or nationality.4
.
In evaluating the legality ofconditions of confinement under the DTA, we look primarily
to the standard.$ imposed by the Fifth Amendment, in particular the "substantive" component of
the Due Process Clause. The other two constitutional amendments referenced in the statute are
not directly applicable in these.circumstances. The Fourteenth Amendment does not apply to
actions taken by the federal Government, see, e.g., Bolling v. Sharpe, 347 U.S. 497,498-99
(I 954); and the Eighth Amendment does not apply until there has been a formal adjudication of
guilt, see, e.g., Ingraham v. Wright, 430 U.S. 651,671 n.40 (1977), The Fifth Amendment, in
contrast, is riot subject to these same limitations,
AS'applied ~o the actions ofthe Executive Branch, substantive due process generally
requires that executive officers refrain from conduct that "shocks the conscience." County oj.
Sacramento v. Lewis, 523 U.S. 833,846 (1998) ("To this end, for haIfa century now we have
spoken of the cognizable level ofexeeutive abuse of power as that which shocks the
conscience."); see also RochiJi v. California, 342 U.S.. 165, 172 (195'2). The Supreme Court has
indicated that whether government conduct can be said to "shock the Conscience" depends'
.
primarily on whether the conduct is "arbitrary in the constitutional sense," Lewis, 5i3 U.S. at
846 (internal quotation marks omitted), that is, whether it amounts to the "exercise ofpower
without any reasonable j~stification in the service of a legitimate governmental objective," id.
The Supreme Court repeatedly has held that the substantive component ofthe Due
. Process Clause applies to the evaluation of conditions of confinement of persons detained in the
absence ofa formal ~djudication ofguilt.' The .mere fact that a person has been detained under
"proper procedures does. not deprive him of all substantive liberty interests under the Fourteenth
Amendment.'·' Youngberg v. Romeo, 45? U.S. 307, 315 (1982). The "'process' thatthe
4 See 151 Cong. Rec. 814,269 (daily ed. Dec. 21. 2(05)(statement of Sen. Graham) ("In section 1403, we
close the loophole in the [CAT). As National Security Advisor Stephen Hadley said, 'those standardS, as a
technical, legal matter, did not apply abroad. And that is what Senator MCCAIN ... wanted to address-wanted to
make clear that those would apply abroad.' We appliecfthem abroad as a matter of policy; he wanted to make sure'
they applied as a matter of law. And when this legislation is adopted, it will. "'); id at 814,257 (statement of Sen.
Levin) ,'This language fmnly establishes in law that the United States will not subject any individual in our
custody, regardleSs of nationality or pbysicallocation, to cruel, inlu.unan; or degrading treatment or punishment
The amendment provides a'single standard-'cruel, inhuman. or degrading treatment or punishment'-without
. regard to what agency holds the detainee, what the nationality of the delainee is, or where the detainee .is held."); id.
at S14,269 (statement.of Sen. McCain) ("With the detainee treatment provisions. Congress has clearly spoken that
the prohibition against torture and other cruel, inhuman or degrading treatment should be enforced and that anyone
engaging in or authorizing such conduct, whether at home or overseas, is violating the law."). See also 151 Congo
Rec. H12,205 (daily ed. Dec. 18, 2005) (statement of Rep. Hoekstra) ("The principles of the conference report
. relating to cruel and inhuman and degrading treatment should not be controversial or even remarkable.. '. (This
conference report] does not modifY the substantive definition of cruel, inhwnan, and degrading treatment that
applies to the United States under its existing treaty obligations."); id at H12,204 ("Mr. MARSHALL. Mr.
Chainnan, is·it your understanding that the bill's language referencing the Senate's 1994 reservation to tlle United
Nations' Convention Against Torture is intended to prohibit conduct that shocks the Conscien~ the standard
adopted by the United States Supreme Court in Rochin v. California? .. _, Mr. HUNTER. That is my
understanding.").

7

Constitution guarantees in connection with any deprivation of liberty thus includes a continuing
obligation to satisfy certain minimal custodial standards." "Collins v. City ofHarker Heights, 503
U.S. lIS, 127-28 (1992). For example, the Court has held that persons involuntarily committed
to institutions for the mentally retarded have substantive due process rights to such basic
necessities as food, shelter, clothing, and medical care, as well as to "safe conditions," and
"freedom from bodily restrajnt." Youngberg, 457 U.S;' at 315-16. Similarly, in the criminal
context, the Court has held that "the Due Process' Clause protects a detainee from certain
conditions and restrictions of pretrial detainment." Wolfish, 441 U.S. at 533. In these situations,
the Court has developed. a more specific analysis than the general "shocks the conscience" test
for determining whether the requirements of due process have been satisfied. This inquiry shares
the core ofthe "shocks the. conscience" test, requiring the weighing of "the individual's interest
in liberty against the State's asserted reasons for restraining individual liberty." Youngberg, 457
U.S: at 320.
"
In evaluating the conditions ofconfinement used by the CIA in its overseas covert
detention facilities, we pay particular attention to the substantive due process standards
applicable to pretrial detention. Like the CIA's detention program, pretrial detention involves
. the confinement of individuals who have not. been convicted of crimes, but who nevertheless .
may present "an identified and articulable threat to an individual or the community." United
States v. Salerno, 481 U.S. 739, 751 (1987).5 Of course, the Constitution forbids the punishment
of pretrial detainees, so these cases have evaluated whether the conditions "amount to
punishment of the detainee." Id at 535; see also Graham v. Connor, 490 U.S. 386,395 n.l0
(1989) (stating that "the Due Process Clause protects a pretrial detainee from the use of
excessive force that amounts to punishment"); Schall v. Martin, 467 U.S. 253, 269 (1984) ("It is
axiomatic that '[d]ue process requires that a pretrial detainee not be punished."') (quoting
Wolfish, 441 U.S. at 535 n.16) (alteration in Schall). "[U]nder the Due Process Clause, a
detainee may not be punished prior to an adjudication of guilt in accordance .with due process of
Jaw." Wolfish, 44 i
S. at 535. Imposing punishment on such detainees for their past behavior

u.

.
S Although we believe that pretrial detention ptovides a useful analogy to the CIA detention, we recognize
that there are important differences between the !wo modes of detention. The detainees held by the CIA are·not
ordinary accused criminals; instead., they are extremely dangerous, and often quite sophisticated, terrorist enemy
" combatants detained because they pose a serious and direct threat to the national security of the United States.
Pretriai detainees are held to secure their presence at trial "and because of the threat they may pose to the community.
See Salerno, 481 U.S. at 751. The constitutional limits upon their detention reflect the balance struck for the
. ordinary .operation of the cris:ninal justice S)'stem. By contrast, the primary purpose of detaining enemy coml)atants
is to prevent their return to battle, and in the case of th.e dangerous terrorists at issue here, these individuals have
. proven themselves dedicated to killing American civilians. Moreover, the facilities in which they are held are not
dedicated jails that have been built specifically for the purpose of detaining potentially violent and escape-minded
detainees. Detaining these individuals therefore poses special security challenges. The special status of these
individuals, and the greater threat they pose~oth to CIA, persolUlel and to the Nation at large-would suggest that
the Fifth Amendment balance struck in the pretrial detention cases would not necessarily impose the same limits
upon the Government in this context But even taking the pretrial detention cases on their O\m terms, we are
confident that the conditions of confinement at .issue here satisfy the constitutional standards recognized in that
context. . __.. __._
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necessarily "shocks the conscience:' see Salerno, 481 U.S. at 746, and is thus forbidden by the
6
.
DTA.
The·Supreme Court ·has made clear, however, that "the mere fact that a person is detained
does not inexorably lead to the conclusion that the government has imposed punishment." Id.
''Not every disability imposed during pretrial detention amounts to 'punishment' in the
co~stitutional sense." Wolfish, 441 U.S. at 537. Because the Government is "obviously ...
entitled to employ devices that are calculated to effectuate [authorized] detention," id, "[a] court
must decide 'whether the disability is imposed for the purpose of punishment or whether it is but
an incident of some other legitimate governmental purpose," id. at 538. Accordingly, the tirst
question in determining "whether a restriction on liherty constitutes impermissible punishment.or
permissible regulation" is whether there is any expressed intent to punish for past criminal
behavior. Salerno, 481 U.S. at 747. Even if there is no evidence of such intent, however, the
inquiry is not over. «Absent a showing of an expressed intent to punish on the part of detention
facility officials," the due process analysis "generally wili tum on 'whether an alternative
purpose to which [the restriction] may rationally be connected is assignable for it, and whether it.
appears excessive in relation to the alternative.purpose a~igned [to it].'" Wolfish, 441 U.S. at
538 (quoting Kennea)! v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963» (alterations in
original). .
.
In Wolfish, the Court fonnulated the following test.for evaluating the conditions of
confinement in pretrial detention under the Due Process .Clause:
[I]f a particular condition or restriction of pretrial detention is reasonably related
to a legitimate governmental objective, it does not, without more, amount to
"punishment." Conversely, if a restriction or condition is not reasonahly related
to a legitimate goal-if it is arbitrary or purposeless-a court permissibly may
infer that the purpose ofthe government action is punishment that may not
constitutionally be inflicted·upon detainees qua detainees.
441 U.S. at 539 (footnote omitted).7 This is not a least restrictive means test, see Block v.
Rutheiford, 468 U.S. ~76, 591 n.II (1984), but it is nevertheless relevant whether the
governmental objective sought to be advanced by some particular condition of confinement
·6 Consistent with this constilutionallimitalion, certain sanctions may nevertheless be imposed on pretrial
detainees who viol~te adminisuative rules while they are lawfuUy detained. See, e.g., Sandin v. Connor, 515 U.S.
472,484-85 (1995) (distinguishing administrative penalties used to "effectuateD prison management'; from the
punishment without conviction that is prohibited by the Due Process Clause); West v. Schwebke, 333 F.3d 745, 748
(7th tir, 2003).
7 In Youngberg, the Court applied a similarly deferential standard to evaluate the substantive due process
rights of persons involWltarily committed to mental institutions "to reasonable conditions of safety and freedom
from unreasonable restraints." ;457 U.S. at 321. The Court held that "the Constitution only requires that the courts
make certain that professional judgment in fact was exercised." Id. Under this standard, "liability may be imposed
only when the decision by the professional is such a Substantial departure from accepted ·professional judgment,
practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a
judgmenl." Jd. at 323.
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9

could be accomplished by "alternative and less harsh methods." Wolfish, 441 U.S. at 539 n.20.
The existence of such alternatives that the government either failed to consider or arbitrarily
·rejected may support the conclusion that the purpose for which tpe harsher conditions were
imposed was in fact to punish. Id.; see also Block, 468 U.S. at 594 (Blackmun, 1., concurring)
("The fact that particular measures advance prison security, however,does not make them ipso
facto constitutional."); Schall, 467 U.S. at 269 (observing that it is "necessary to determine
whether the terms and conditions of confinement ... are in fact compatible with th[e] purposes
.
.
[of detention]").B
Although the stanqard used by the Supreme ~ourt to evaluate the constitutionality of
pretrial detention conditions is relevant to our present analysis, it is important to recognize that
the Court's deferential formulation is, at least in part, driven by coricern~ about separation of
powers that are not directly applicable in this context. Indeed, the insistence thatjudgp not
make decisions properly vested in the political Branches is a recurrent theme in the Court's
conditions ofconfinement decisions:
(U]hder the Constitution, the first question to be answered is not whose plan is
best, but in what branch ofthe Government is lodged the authority ~o initially
devise the plan.... The wide range of "judgment calls" that meet ~onstitutional
and statutory requirements are confided to officials outside the Judicial Branch of
Government.

Wolfish, 441 U.S. at 562; see also id. at 547 n.29 (noting that the "principle of deference" in this
field is derived from the fact that "the realities of running a corrections institution are complex
and difficult, courts are ill equipped to deal with these problems, and the management of these'
facilities is confided to the Executive and Legislative Branches, not to the Judicial Branch");
Block, 468 US. at 584 (emphasizing the "very limited role that courts should play in the
administration ofdetention facilities"). In evaluating these prison management matters as
members of the Executive Branch, we must take these assertions for deference to the detaining
authority with a grain of salt. Although we certainly do not claim expertise in running detention
facilities, and have neither desire nor cause to substitute our judgment for that of the CIA in such
matters, the Executive Branch is not subject to the same constitutional limitations that require
courts to defer so extensively to prison administrators. It is appropriate, therefore, that our legal
advice undertake the best reading ofthe applicable legal principles. Also, we'may insist upon a
somewhat closer,connection between the conditions of confinement and the governmental
I In the detention context, moreover, substantive due process can be violated not merely by intentional'
· harms, but also where the conditions of confinement evince "deliberate iIidifference" to the risk that detainees may
suffer unjustifiable injuries. The Supreme Court has observed that "in the custodial situation of a prison,
forethought about an inmate's welfare is not only feasible but obligatory under a regime that incapacitates a prisoner
· to exercise ordinary responsibility for his own welfare." Lewis, 523 U.S. at 850-51; see also DeShaney v.
Winnebago Country Dept. o/Social Servs., 489 U.S. 189, 199-200 (1989)(ohserving that "when the State takes a
person into its custody and holds him there against his will, the Constitution imposes upOn it a corresponding duty to
assume some respOnsibility for his safety and general well-being"). Accordingly, the procedures Illat the CIA has in
place for mitigating the possibility that its conditions of confinement might harm detainees in ways not 'necessarily
intended by the Agency are relevant to any analysis of whether those conditions comport \>iith the DTA.

...

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interest at ~take than courts would demand, and may conduct a more searching examination of
the detaining authority's assertions and justifications_ Even without such deference to ~he CIA,
the conditions of confinement satisfy the legal standards applicable under the DTA.
Finally, we note that in conducting this Fifth Amendment inquiry, the substantive
standards of the Eighth Amendment remain relevant. AJthough the Eighth Amendment does not
directly apply to the .detainees at issue here because they have not been subject to a formal .
adjudication ofguilt. see Wolfish. 441 U.S. at 535 & n.16, coriditions of confinement that wo~ld.
with respect to convicted prisoners, constitute "cruel an~ unusual" punispment in violation ofthe
Eighth Amendment may very well also constitute "punishment" when imposed on otherwise
similarly situated detainees protected by the Fifth Amendment. See City ofRevere v. Mass. Gen.
Hosp., 463 U.S. 239. 244{I983) (suggesting, in the context of pretrial detention, that "the due
process rights of a person iri [the Government's care] are at least as great as the Eighth
Amendment protections available to a convicted prisoner"); Youngberg, 457 U.S. at 321-22
("Persons who have been involuntarily committed are entitled to more con~iderate treatments
and conditions of confinement than criminals whose conditions of confinement are designed to .
punish."); Lock v. Jenkins, 641 F.2d 488, 492 n.9 (7th Cir. 1981) ("Although the Eighth
Amendment is not applicable to pretrial detainees, Eighth Amendment cases involving
conditions of convicted prisoners are useful by analogy because any prohibited' cruel·and
unusual punishment' under the Eighth Ame'ndment obviously constitutes punishment which may
not be applied to pretrial detainees."). Accordingly, where appropriate in our discussion below.
we have considered cases applying the Eighth Amendment to conditions of confinement similar
to those used by the CIA.9

ill.

A.
Applying this due process analysis, we conclude·that the conditions of confinement
described above do not amount to punishment. Because we are aware of no evidence "of an
expressed intent to punish on the part of detention facility offiCials" involved in the CIA
progr~m, the critical question under the DTA is whether the conditions imposed are sufficiently
. related to the. CIA's need to secure its d~tentio.n facilities without imposing excessiye or needless
hardship on the detainees. Having carefully examined those conditions, as well- as the reasons
that the CIA has adopted t~em in lieu of either harsher or more mild alternatives, we conclude
, We caution. however, that the Eighth Amendment is an imperfect fit for the legal analysis of the CIA's
conditions of confinement. The Eighth Amendment does not apply until there has been a "fonnal adjudication of
. guilt." See Bellv. Wolfish, 441 U.S. 520, 535 n.16 (l979);Jngraham v. Wright, 430 U.S. 651, 671 nAO (1977). In
proscribing certain criminal punishments, the Eighth Amendment necessarily seeks to balance the Govenunent's·
penological interest against an individual's interest in avoiding particular kinds of suffering and hardship. Thus,
there may be certain types of treatment that no penological interest could support, and thus that may run afoul of the
Eighth Amendment. The conditions at isSue here, however, are characterized by different interests, including the·
securing of dangerous terrorists in a manner that does not give infonnation to the enemy in a time of war: Whatever
balancing the Fifth and. Eighth Amendments may require in this regard, the outcome of those analyses may not
________._ ._~~~.1s_b_e_~!i~~:. :__..
.__
_.. _.._ ..
__.. . . . _ .
_._._.
_
------- ._-... _--.-_.--_._-_.-_.--.- -_._-----_._~._

---~--

11

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _...J

. that those conditions are consistent with the requirements of substantive due process made
applicable by the DTA.
The primary objective that each of the conditions of confinement seeks to advance is the
safe and secure functioning of the CIA's detention facilities. By imposing those conditions, the
CIA aims both to protect the officials operating the facilities from harm and to ensure that the
detainees are unable to escape or otherwise to defeat the objectives of the detention program.
There is, of course, "no dispute that internal security of detention facilities is a legitimate
governmental interest." Block, 468 U.S. at ~86. "Once the Government has exercised its
'con~ded authority to detain a person ... , it obviously is entitled to employ devices that are
·caleulated to effectuate this detention." Wolfish, 441 U.S. at 537. In Wolfish, the Court
recognized that the "Government must be able to take steps to maintafn security and order at the
institution," id. at 540, including "appropriate action to ensure the safety of inmates and
corrections personnel and to prevent escape or unauthorized entry," id. at 547: Indeed,
"maintaining institutional security and preserving in1(~rnal order and discipline" are not merely
legitimate objectives, they are "essential goals." Id at 546~ see also Harris v. Chapman, 97 F.3d
499,504 (lIth Cir. 1996) (observing that prison administrators' ucompeIling interest in security
and order within their. prisons'" is particularly acute in facilities that "contain extremely violent
. [individuals)"). 'For these reasons, anyone attempting to show that detention facility officials
have "exaggerated their response to the genuine security considerations that actuated these
restrictions and practices" carries a "heavy burden." ld: at 561-62.

We understand that the detainees held by the CIA are extremely dangerous and ose
uni ue security concerns. They are individuals whom the CIA has determined either to
They include individuals such as KhaHd
Shaykh Muhammad ("KSM") and Abu Zubaydah. KSM, "a mastermind" ofthe September 11,
2001, attacks, was regarded as "orie o~a'ida's most dangerous and resourceful operatives."
Article 16 Memorandum at 6 (quoting"Khalid Shaykh Muhammad at 1 (Nov. 1,2002)
Biography'». KSM admitted that he personally murdered Wall Street Journal
reporter Daniel Pearl in·February 2002 and recorded the brutal decapitation on videotape, whiCh
he subsequently released for broadcast. See id Prior to KSM's capture, the CIA considered' him
to be one of al Qaeda' s "most important operational leaders ... based on his close relationship
~ UsamaBin Lade~ and his reputation among the al~Qa'ida rank and file." Id.at"6-7 (quoting
~ Biography at 1). After the September II attacks, KSM assumed "the role of
operations chief for al-Qa'idaaround the world." Id 'at 7 (quoting CIA Directorate of
Intelligence, Khalid Shaykh Muhammad: Preeminent Source on Al-Qa'ida 7 (July 13, 2004)
("Preeminent Source"). KSM also planned additional attacks within the United States b.oth
before and after September lIth, See Preeminent Source at 7-8; see also The 9/11 Commission
Report: Final Report ofthe National Commission on Terrorist Attacks Upon the United States
150 (official gov't ed. 2004} Prior to his capture, Zubaydah was '~one of Usam a Bin Laden's
key lieutenants," Article 16 Memorandum at 6 (quotin~Zayn al-AbidinMuhammad'
Husayn ABU ZUBAYDAH at 1 (Jan, 7,2002) ("Zubaydah Biography')), "Indeed, Zubaydah was
al Qaeda's third or fourth highest ratlkirtg member and had been involved 'in every major
.
terrorist operation carried out by al Qaeda.'" Id (quoting Mem'orandum for John RizZo, Acting

-..cSM

=-==-=,;,:·.::..-==::geflera(':'Qn:lr:rs~~ntrat;Intell.rgence=-Agency,:-fr-om-Jay::g:;'::B:y-b~-Bsi:ot.ant:Attem&~G6nend,

12

=:.:--,-----

Office ofLegal Counsel, Re; Interrogation ofal Qaeda Operative at 7 (Aug. 1, 2002)
("Interrogation Memorandum")). 10 Upon his capture on March 27, 2002, Zubaydah became the
most senior member of al Qaeda in United States custody. Id These detainees have'
demonstrated that they are also a threa.t to guards in the facility. Several detainees have
physically attacked the guards. Many have stated that they plan to kill their captors.
Although the primary purpose ofthe conditions ofconfinement we consider here is to
maintain the security of the CIA's detention facilities this observation does not mean th those
conditions do not also serve other ur ses.

For the reasons set
art e ow, owever, we .conclude that the security rationale alone is sufficient to justify each of
the conditions ofconfinement in question. Accordingly, these conditions of confinement may be
,!-pplied to detainees who no longer have si nificant intelli ence value but who nonetheless meet
the standards for detention under
and who continue to present a
clear danger to the United States as terrorist enemy combatants in the ongoing armed conflict
with al Qaeda and its affiliates. See Part m.D., infra.

B.
As an initial matter, we consider ~he legality of each of the conditions seriatim. In this·
. exercise, we are ~ded by judicial decisions considering the legality of many ofthese di.screte
conditions in U.S. domestic prisons. We recognize, however, that the ultimate inquiry is to
assess
the.legality of subjecting detainees
.
. to all of the conditions in combination. In addition, as
we describe below, the CIA detainees are in constantly illuminated cells, substantially cut off
from human contact, and under 24-hour-a-day surveillance. We also recognize that many of the
detaiilees have been in the program for several years and thus that we cannot evaluate·these
conditions as if they have occurred only for a passing moment. Nevertheless, we must also take
into account the nature ofthe detainees whom the CIA is holding. They are not ordina
criminal suspects and they undoUbtedly pose extraordina securit risks:

equires special conditions
.
to prevent the escape ofthese dangerous terrorists. I!

10 We discuss t11ese two detainees as examples, but we Wlderstand that the detainees as a group are of a
dangerousness that justifies the conditions of confinement at issue, as we discuss below.

JI Indeed, as a.recenl coordinated hunger strike among several convicted al Qaeda terrorists held at the
maximum security prison at Florence, Colorado, demonStrates, even those terrorists kepI in physical isolation within
maximum security facilities can often find ways of comnllUlicating and thereby compromising institutional scx:urity.
A~ording to Bureau of Prisons officials, the al Qacda terrorists communicated with each olher by using the pipes in
the facility to carry sound Together, the terrorists orchestrated the beginning of their hunger strike and developed a
sophisticated method to resist-compul_~ry_~e.ed~~!L ~.!!n.!<I!e'!y',_~~~ to tIli.~ ~Qo.J:~in~~QD..Ut~_al._Qa.~.tmQris.ts_ .-,__= ======
====--succeeued:i"irwmrm-g1rroiSfertrOiri Mgli secumy aelenfiOrl.ArQaed3Qetamees at Guantanamo Bay, Cuba similarly

13

1. As described above, the purpose of using blindfolds or similar eye..:coverings is "to
prevent the detainee fro'm learnin his location or the la out of the detention facilit "Standard
Conditions 0 CIA Detention at 1

Itis~

e went eyareaonemt e l r c e l l s _
These limitations'make clear that
t e CIA does not use this condition of confinement as a disguised form of "sensory deprivation"
aimed at weakening the detaineespsychologicaUy, but instead as a bona fide security measure,
one used only when necessary to advance the narrow goal of institutional security. Indeed, the
. form of blindfolding used by the CIA appears to be the least restrictive and intrusive means of .
obstructing the detainee's vision and thus of reventin detainees from leamin 'their location,
the layout of the facilities,
Blindfolding detainees on y w en t ey are moved around the facility or when they are in close
proximity to security personnel prevents detainees from acquiring information tbat could aUow
them to compromise the 'security of the detention facilities.
'
III

0

Nor is, the use ofthis condition likely to harm detainees, much less in a way that is
excessive iii light ofthe concrete security objectives it furthers. None ofthe n1~thods that the
CIA uses to prevent the detainees from seeing poses any likelihood of injury, and the detainees,
have no difficulty breathing fi
anal sis ihat the CIA uses th
y choosing to effectuate its security ,
goa In ways ca 1 rate to mlmmlzmg t e p YSlca Iscomfort and psychological distress that
detainees are likely to suffer, the CIA further demonstrates the. non-punitive nature of this
condition of confinement. Accordingly, we conclude that the use ofnon-injurious means of
blocking detainees' vision during limited times where allowing them to see could jeopardize
institutional security satisfies the standards of the DTA.
.
2. Shaving detainees'upon intake is likewise directly related to the 'CIA's need to secure
i.ts detention facilities. S,having aqvances this end "by removing hair in which a detai.nee might
,
hide small items that might be used against his interrogators and other detention personnel."
Standard Conditions ofCIA Detention at 1. Because the detention facility is secure and because
,the detainees' access to contraband is so limited once they are detained, safety considerations do
not require continuing to shave the detainee. Accordingly, after the initial shave, the detainee is

.staged a coordinated riot in recent weeks lhat resulted in significant property damage and injury to some of the
gua;rds dispatched to put the uprising down. Through communication and plcinning among detainees, more than 75
al Qaeda detainees staged a co~rdinated hWlger strike, again attempting to Wldermine the conditionS of their
confinement. In facilities considerably less structurally secure than the Florence "Supermax" facility, other means
of ensuring that detainees are unable to communicate with one another (such as the use of white noise and full-time
surveillance) thus become particularly important These events highlight the overriding need for maintaining tight
security-incI~ding rigorous controls o~ detainee communications-at facilities h~_us~ng terrorist detaine::._ '
..

__ _.......-. ,..... , ,:,:,,-,=,:,,,,,"==-,-,=c_c=-·~-_·"=-,-,-,,-,.,--,-,-o·,,-·==-="_.,,,,,,,..~~-,.-~,~·

14

===~~~~~

"allowed to grow his beard and head h~tever length he desires," consistent with the .
CIA's safety imperatives. January 25_Letter at 2. The CIA has even gone so far as to
provide detainees, after their initial shavmg upon intake, the option of shaving and receiving
haircuts "as requested by the detainee," including the option of shaving other parts oftheir
bodies, in recognition of s~ecifi~ Islamic practices. Id
The case Jaw provides substantial support for the conclusion that the CIA's shaving
policy is consistent with the substantive standardofthe Fifth Amendment. Most imp9rtantly, the
courts ofappeals have consistently rejected prisoners' Fifth and Fourteenth Amendment
challenges to shaving policies in domestic prisons and jails. See Ralls v; Wolfe, 448 F.2d 778,
779 (8th Cir. 1971) (per curiam) ("This Court has held that an incarcerated prisoner does not
have a constitutional right to the length, style and growth ofhis hair and growing a beard and
moustache to suit his personal desires."); Blake v. Pryse, 444 F.2d 218, 219 (8th Cir. 1971)
(holding that prison regulation requiring inmate "to shave and cut his hair" "does not deprive
him of any federal civil or constitutional right"); Brooks v. Wainwright, 428 F.2d 652, 653 (5th'
CiT. 1970) (per 'curiam) (affirming dismissal as frivolous of prisoner's Fourteenth Amend ment
due process challenge to prison rule requiring that he "shave twieea week and receive periodic
haircuts"); id at 653-544 (disposing of prisoner's due proCess challenge because the shaving
regulation was neit~er unreasonable nor arbitrary). Although these cases involve individuals
convicted of crimes, rather than individuals detain~ for intelligence value (or held pretrial in
criminal cases), they nonetheless provide substantial support for the view that the CIA's shaving
policy does not violate the DTA.
The courts ofappeals also have upheld shaving policies against Eighth Amendment
cha11enges brought by convicted prisoners. See Martin v. Sargent, 780 F.2d ]334, 1339 (8th Cir.
1985) (concluding that "reasonable regulation of a: prisoner's hair length" satisfies the Eighth
Amendment "when necessary for security reasons")~ Blake, 444 F.2d at 219 (holding that prison
·regulation requiring inmate "to shave and cut his hair" does nof. cOnstitute "cruel and unusual
punishment"). Althoug~ these cases, like the Fifth Amendment cases discussed above; concern
convicted prisoners, not individuals detained for intelJigence value, they are nonetheless
informative in that the Fifth Amendment standard applicable to pretrial detainees is to some
extent informed by the Eighth Amendment standard, as explained above. These cases, too,
support the view that the CIA's shaving policy is consistent with the DTA I2

12 Indeed, some courts have even upheld prisons' shaving policies under the Religious Freedom
Restoration Act ("RFRA"), which.imposes a standard of review far more demanding than·the "reasonably relaled 10,
a legitimate govenunentaJ objective" standard that applies here. In Harris v. Chapman, for example, the court of
appeals held that shaving prisoners was the least restrictive means of furthering a compelling govenunental
. interest~a hurdle even higher than the one that the Fifth Amendment imposes in this context. ld at 504. Indeed, in
the court's view. shavirig was the only means of advancing the stale's interest in "the identification of escapees and
the preventing ofsecreting of contraband or weapons" in prisoner's "hair or beards," id, and thus advanced the
"compelling interest in security and order" in the prison, id. at 504. See also Hamilton v. Schriro, 74 F.3d 1545 (8th
CiT. 1996) (rejecting similar RFRA claim). But see Warsoldier v. Woodford, 418 F.3d 989 (9th CiT. 2(05) (finding
. that minimum security prison's hair policy failed the least restrictive means test of the Religious Land Use and
.
Institutionalized Persons Act).

15

Finally, the courts have consistently credited·testimony advancing the same·security
justification for shaving that the CIA advances here. The courts: for example, have credited
prison officials' testimony that "long hair poses a threat to prison safety and security" and that
"inmates could conceal contraband, including dangerous materials, in t~eir long hair." Hamilton
v. Schriro, 74 F.3d 1545, 1548 (8th Cif. 1996); see also, e.g., Martinelli v. Dugger, 817 F.2d
1499, 1506 n.23 (lIth Cir. 1987) (noting that "[e]vidence before the magistrate indicated that in
prisons without shaving and hair length regulations, inmates had bee~ caught with contraband or .
weapons hidden in their long hair"); Pollock v. Motshall, 845 F.2d 656, 658 (6th Cir. 1988)
(finding that prison superintendent stated "legitimate" interests, that were "reasonably related to
the regulation limiting the length of prisoners' hair," including preventing inmates from
.
"hid[ing] contraband ... in h~s hair"); Dreibelbis v. Marks, 742 F.2d 792, 795 (3dCir. 1984)
(crediting testimony of Pennsylvania Commissioner of Corrections that "[a] restriction on long
hair and beards prevents concealment of contraband, such as weapons ... , on the. person, thus'
increasing the security ofthe institution and limiting the potential for dangerous situations
therein")..Courts also have accepted the conclusion that, "without the hair length regulation, .
prison staffwould be required to perform mor~ frequent searches of inmates, which could cause
conflicts between staffand inmates." Id Indeed, the Eight,h Circuit has characterized the
government interest in regulating the hair length of particularly dangeI:ous prisoners as
"compelling": "It is more than merely 'eminently reasonable' for a maximum security prison to
prohibit inmates from having long hair in which they could conceal contraband and weapons. It
is compelling.... These are'valid .and weighty concerns." Hamilton, 74 FJd at 1555. If the
Government's interest in regulating detainees' hair length is "compelling" in a high-security
domestic prison or jail, id, then we think it is at the very l.east "legitimate" in an overseas CIA
covert detention facility housing extremely dangerous detainees who either pose serious threats
to the United States or were planning'terrorist attacks at the time oftheir capture.
for these reasons, we conclude that the CIA's shaving policy comports with the
.requirements of the DT

A: .

.s intended to ensure

_.-- ....-

~"'"=

Although this condition presents a closer question than the previous conditions we have
examined, the solitary confinement of high-value detainees is.sufficiently related to the CIA's
interest in institutional security to satisfy the DTA. First, preventing detainees from interacting
with one another or with the outside world is directly related to the security of the CIA facilities.
Isolation prevents conspiracy, making it considerably more difficult for detainees to coordinate
escapes'or attacks. In addition, the CIA uses solitary confinement nartowly in service of its
security objectives. In this r~ard, it is important to emphasize that the isolation at issue here is
not designed as or akin to "sensory deprivation"; it does not im ose u on detainees a com lete
eel sian from human contact. Aithou h detainee
the CIA has taken
-=rneasufeH-creounteffiGHirtyfletent-ia1ly-otlver-se'effests=ef#m.itoo=chuma-n=-itMfaGtiGfF.-::J±oFf=====--:::===

16

....

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

demonstrate that the CIA is attempting to calibrate its use of isolation so that It treet y avances
the interest in security without imposing unnecessary hardship on the detainees. The CIA further
.
strikes that balance by affording detainees re_~to gym equipment and physical
exercise, and by providing each detainee wit~psychological examination to assess
. how well he is adapting to his confinement. Id. The CIA also counteracts the psychological .
effects of isolation by providing detainees with "a wide variety of books, puzzles, paper and
'safe' writing utensils, c~hecker sets, a personal journal, and access to DVD and VCR
videotapes." January 25_Letter at 3.
.
Nevertheless, we,recognize that the isolation experienced by the CIA detainees may'
impose a psychological toll. In some cases, solitary confinement may continue for years and
may alter the detainee's ability to interact with others. This is not an area, however, where we
'are without judicial guidance, as the U. S. courts have repeatedly considered the constitutionality
of isolation used as a condition ofconfinement in domestic prisons. These cases support the
conclusion that isolation, even under conditions similar to those considered here, does not violate
the requirements of substantive due process. F~r example, the Fifth Circuit has held that the
solitary confinement of a pretrial detainee is, under 'c::ertain circumstances, consistent with the
. Fifth Amendment. 'McMahon v. Beard, ~83 F.2d 112, 173, 175 (5th Cir. 1978). In that case, the
government confined the detainee ,stripped ofall of his clothing, and without mattress, sheets,
or blankets. Id Although these conditions were imposed for the detainee's self-protection-he ,
had attempted suicide-the case makes clear that there is no per se bar under the Fifth
Amendment to isolating even a pn;trial detainee. Id at 174~75; see also Hutto v. Finney, 437
. U.S. 678, 686 (1978) (observing that it is "perfectly obvious that every decision to remove a
particular inma,te from the general prison population for an indeterminate period could not be
characterized as cruel and unusual").l3
,

a

The' courts ofappeals have often rejected Eighth Amendment challenges to the use of
solitary confinement. The Fourth Circuit considered convicted prisoners' Eighth Amendment
claims based on their allegations that they were "confined to their cells for twenty-three hours.
per day without radio or television." In Re Long Term Administrative Segregation ofInmates
Designated as Five Percenters, 174 F.3d 464, 471 (4th Cir. 1999). The court, n,oting that
"[t]hese conditions are indeed restrictive," explained that "the restrictive nature of high-security
.incarceration does not alone constitute cruel and unusual punishment." Id The court held that
l3 In a recent decisi~n, the Supreme Court suggested, albeit in dicta, that "extreme isolation" in which
inmates were confined for 23 hours per day deprived of almost any environmental or sensory stimuli and of almost
all hwnan contact "may well be necessary and appropriate in light of the danger that high-risk irimates pose both to
prison officials and to other prisoners." Wilkinson v. Austin, 125 S. a. 2384, 2395 (2005).

17

"the isolation inherent in administrative segregation or maximum custody is not itself
constitutionalJyobjectionable." ld at 472~ see also, e.g., Novack v. Beto, 453 F.2d 661, 665 (5th
Cir. 1972) (noting the "long line of cases, to which we have found no exception, holding that
solitary confinement perse is not 'cruel and unusual"'). Likewise, in Jackson v. Meachum, 699
F.2d 578 (I st CiT. 1983), the court held that "very extended, indefinite segregated confinement in
a facility that provides satisfactory shelter, clothing, food, exercise, sanitation, lighting, heat,
bedding, medical and psychiatric attention, and personal safety, but virtually no communication
or association with fellow inmates" does not violate the Eighth Amenqment, even where it
"results in some degree of depression." ld at 581. That court, surveying a decade of federal
appellate decisions, noted a "widely shared disinclination·to declare even very lengthy periods of
segregated confinement beyond the pale of minimally civilized conduct on the part ofprison
authorities." Id at 583. More specifically, "[t]hose courts which have had occasion also to deal
with claims of psychological deterioration caused by confinement have rejected these claims."
Id. The courts have also rejected claims based on allegedly harmful incidents of isolation, such
as idleness and lack of human interaction. The courts have held that "isolation from
companionship" and "restriction·on intellectual stimulation and prolonged inactivity" are simply
"inescapable accompaniments of segregated confinement" that will not render such confinement·
unconstitutional "absent other illegitimate deprivations." ·Sweet v. South Carolina Dep't ef
Corrections, 529 F.2d 854, 861 (4th Cir. 1975).
.

' .

.

Moreover, the courts have not accepted the claim that isolation becomes unconstitutional
as a sole result of its ·duration. Indeed, the Fourth Circuit rejected inmates' constitutional .
challenge to over three years ofsolitary confinement, despite the lack of any expectation of
release, concluding that "the indefinite duration of~he inmates' segregation does not render it
unconstitutional." "In Re Long Term Administrative Segregation, ·174 F.3d at 472. The court .
noted that "[t]he duration ofConfinement in some of these cases has been long, but length of tim·e
is 'simply one consideration among many' i!l the Eighth Amendment inquiry." Id (quoting
Hutto v. Finney, 437 u.s. 678,·687 (1978). Likewise, in Sweet, the court held that the·
"prolonged and indefinite" nature ofsegregated confinement is insufficient to render it
unconstitutional, though it is a relevant factor.. 529 F.2d at 861. Indeed, the court noted that in
the federal prison system, "segregated confinement is 'indefinite.''' Id
In the rare cases in which courts have found isolation unconstitutional, it was not the
isolation alone that drove the analysis, .but instead the use of isolation in combination with
factors that left prisoners living in appalling, and indeed d·angerous, conditions. For example, the
Ninth Circuit found an Eighth Amendment violation where a prisoner was sent to solitary
confinement in a six foot by six foot, windowless, unclean cell, known as the "dark hole," with
no lights, toilet, srnl<, or other fumishihgs, and where the prisoner was naked, and provided no
hygienic material, bedding, adequate food, adequate heat, or opportunity to clean himself, for
longer than twenty-four hours continuously. Gates v. Collier, 501 F.2d 1291, 1304-05 (9th Cir.
1974). Likewise, the Fifth Circuit held unconstitutional the use of punitive isolation in which as
many as seven prisoners were placed in a six foot by eight foot cell, with no bunks, toilets, or
other facilities, with human excrement on the floor, and without the ability to lie down
simultaneously. McCray v. Sullivan, 509 F.2d 1332, 1336 (5th Cir. 1975). Although these cases
leave no doubt that isolation may be a factor in determining th~t a set of prison conditions
=--==,",,"·:--··_·crosses4heo:constit~ti()naUine,:.:th~use:..of~solati()n-bY4he::€Ikis-not':3GGOmpanied--b.)!'--the-'Spe€ia!=======

18

circumstances present where constitutionaLviolations have been found. In particular, the
isolation that we consider is nOlused in conjunction with those severe conditions-such as
inadequate food, inadequate heat, and filth-that some courts have found cruel and,unusual. We
emphasize as important to our analysis that the detainees in the CIA program are held in clean,
sanitary facilities at all times during their detention. Those facilities are kept at appropriate
temperatures, and are adequately furnished and maintained. These accompanying !A)nditions '
, highlight that isolation here is not being used in order to punish detainees, or make them suffer
, needlessly, but instead to prevent coordination and conspiracy that may compromise the security
ofthe facilities and the CIA persOIUlel who work there,
Finally, recognizing that the solitary confinement con'sidered 'in much ofthe case law
involves high-security prison settings and dangerous, high-risk inmates, we think it relevant that
the CIA's security concerns appear at least similarly weighty. The CIA's overseas, c~vert
facilities house extremely dangerous detainees who, as previously explained, the CIA has
detei-mined either pose serious threats to the United States or were planning terrorist attacks at
the time of their capture. Certainly, there are soine differences-<ietainees sentenced to terms of
imprisonment at least have some certainty about the duration of their overall confinement, while
the C1A detainees do not know how long they will be detained. This uncertaInty may impose an
increased psychological toll. Although these post-conviction cases are not squarely applicable,
they support the conclusion that the use of solitary confinement in the CINs facilities is
consistent with the substantive standard ofthe Fifth Amendment, and thus with the standard of
theDTA.
'
s white noise in the walkwa s ofthe detention
Both the volume ofthis
liolse and the ocatlOns m which it is used have been carefully calibrate~ so as to block
'
communications among detainees without posing any' risk ofharming them. Indeed, because the
noise is not piped into the detainees' cells, detainees experience the sound (at any significant
volume) only during the limited periods in which they are being moved around th~ facility. Even
. in the walkways, the noise is at all times kept below 79 dB-a volume that, according to CIA's
Office of Medical Services, creates no risk of permanent hearing loss, even if exposure is
'
continuous for 24 hours a day_ See Standard Conditions ojCIA Detention'at 2. Recent
measurements taken by'th~ CIA indicate that the noise level in detainees' cells is in the range of
56-58 dB, compared with a range of 68-72 dB in the walkways, a significant difference. 'May 24
_Letter, Indeed, normal conversation typicaJly registers at approximately 60 dB. In
addition, we understand that the CIA has observed the noise to have no effect on the detainees'
ability to sleep. This suggests that detainees have adjusted 'to any noise that may filter into their
cells and learned to disregard it. We have little doubt that this limited use ofwhite noise is .
consistent with the requirements ofthe DTA.
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Unlike some of the other conditions of confinement, we are aware of no direct an'alogue
,in U.S. prisons and jails to the white noise that the CIA employs. This fact is not ~.lfprising, as
such domestic facilities have neither a mission comparable to the CIA's nor face similar
constraints, and therefore do not have an interest in masking sound and preventing detainee
communication that approaches the CJA's. 'In contrast to the detention facilities at issue, u.s.
prisons and jails generally do not, for instance, have a legitimate interest in denying inmates an
ability to determine their location or the identity offellow prisoners. There are, hQwever, cases
in which U.S, courts have considered prisoner complaints about noise levels. These cases clearly
estabiish that noise that merely irritates is not unconstitutionaL In Peterkin v. Jeffes, 855 F.2d
1021 (3d Cir. 1988), for example, the court concluded that prisoners on death row did not state
an Eighth Amendment violation where the noise in the cells was merely "irritating to some,
prisoners," ld at 1027. In that case, the district court noted testimony describing the noise on
one hand as a "constant din" (quoting plaintiffs' expert), and on the other hand as "cycJicaJ."
Peterkin v. Jeffes, 661 F. Supp. 895,909 (RD. Pa. 1987). Likewise, the Seventh Circuit held.
that prison~rs failed to state an Eighth Amendment violation where the record contained "no
evidence that the noise levels posed a serious risk of injury to the plaintiffs." Lunsford v.
Bennett, 17 F.3d 1574, 1580 (7th CiT. 1994)., Thus, at least to state a claim ofcmel and unusual
punishment under the Eight Amendment, rather than merely of punishment alone under the Fifth
Amendment, noise must be more than merely annoying or unpleasant. Moreover, it has been
held that noise, ,even if severe enough to cause headaches, does not give rise to an Eighth
Amendment violation where it is used for a legitimate purpose. See, e.g., Givens v. Jones, 900
F.2d 1229, 1234 (8th CiT. 1990) (concluding that noise, which the prisoner alleged caused him
migraine headaches, did not constitute cruel and unusual punishment where it was an incident of
, needed prison remodeling).
We are aware that some cotlrts have concluded that a prisoner's allegation of
"continuous, excessive noise states a claim under the due process clause," an.d also under the
Eighth'Amendment. Sandersv.Sheahan, 198 F.3d 626, 628 (7th Cir. 1999) (holding that
"excessive noise" is a deprivation serious enough to meet the objective component of the Eighth
Amendment); see also, e.g., Keenan v. Hall, 83 F.3d 1083, 1090 (9th Cir. 1996) (aIIegations that
"at all times of day and night inmates were 'scJ:'eaming, wailing, crying, singing and yelling,'
often in groups, and that there was a 'constant, loud banging,'" were sufficient to avoid summary
, judgment); Antonelli, 81 F.3d at 1433 (holding that allegation of noise that "occurred every
night, often all night, interrupting or preventing [a detainee's or prisoner's] sleep" stated a claim
under the Fifth or Eighth Amendment). As experienced by detainees who spend the vast
majority of their time confined in their cells, however, the white noise used by the CIA in the
walkways of its detention facilities is not remotely comparable with the noise at issue in these'
cases. In addition, none of these decisions addressed noise that was employed by prison'
administrators in direct furtherance of manifestly important security objectives. There is' nothing
in the case law or in common sense to suggest that the limited use of noise loud enough to block
. communic~tions among extremely dangerous individuals under conditions analogous tothose at
the CIA detention sites, but not louder than an ordinary conversation, and certainly not loud
enough to cause harm or interfere with sleep, amOl-!nts to the kind 'of "punishment" proscribed by
the Fifth or Eighth Amendments. In sum, the white noise at issue here is carefully tailored to
advance the CIA's interest in institutional security while minimizing the discomfort of the
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The light, however, is not unusually bright.. Id We
understand that detainees are provided eyeshades or blankets. which they may use to block out
light by covering their eyes while sleeping. Cj Chavarria v. Stacks, No. 03-40977, 102 Fed.
Appx·. 433.437 (5th Cir. 2004) (unpublished) (Reavley, 1.. specially concurring) (noting that
judicial attention to prisoner's Constant illumination complaint is (Cmuch ado about nothing»
because "[a] little cloth over his eyes would solve the problem"). In addition, we understand•
. and think it significant, that the CIA has observed no adverse effects on any detainee's sleep as a
result of the constant illumination, suggesting that the burden imposed by this condition of.
confinement is relatively minimal.
Also relevant to our analysis are the holdings of several courts that constant light, even
for pretrial detainees, does not violate the Fifth Amendment. at least where that illumination is
.·.reasonably related to the government's legitimate objective of maintaining institutional security.
The Eighth Circuit in 0 'Donnell v. Thomas, 826 F.2d 788 (8th Cir. 1987). for example, held that
a pretnal detainee, held for over half a year in a cell with "continuous lighting" and who alleged
he could not sleep, failed to establish a constitutional violation because the lighting was "not
unreasonable given the need for jail security and the need to monitor [the detainee]," who had
tried to.kill himself. Id at 790, See also Chavarria, 102 Fed. Appx. at 436 (holding that. a
"policyofconstant illumination" is "reasonably related" to the legitimate· interest of"guard
security")~ Shannon v. Graves, No. 98-3395.2000 WL 206315, at *.13 (D. Kan. Jan. 5,2000)
(unpublished) (stating that facility "officials need lights to observe inmate activity in cells, to
'maintain safety and security" and that U[s]uch concerns are a legitimate interest"); Fillmore v.
Ordonez. 829 F. Supp. 1544, 1568 (D. Kan. 1993) (holding "as a matter of law that the eleCtronic
surveillance system, with its armmd-the-clockbeeping and 50ft lighting, was reasonably related
to the maintenance of internal security of the [pretrial detention facility], and as such did not
amount to punishment prohibited by the Due Process Clause"). Similarly, in Ferguson v. Cape
Girardeau County, 88 F.3d 647 (8th ~ir. 1996), the Eighth Circuit held·that pretrial detentiofl
"under bright lights, which were on twenty-four hours a day," was reasonably related to a
legitimate government interest of"keep[ing] the oetainee under observati<;m for both his medical
condition as well as general safety concerns," and thus did not violate the detainee's Fifth
.Amendment rights, id at 650. Although, ~n that case, the detainee ~as confined under bright
lights for a relatively short duration, the court ofappea1s, which applied a "totality ofthe
circumstances" analysis, did not suggest that the limited duration was a precondition to fmding .
constant light to be constitutional. Id at 650. 15
.

We recognize that detention with constant illumination has been held unconstitutional
u·nder certain circumstances. For example, in Keenan v. Hall, 83 F.3 d 1083 (9th Cir. .1996). the
Ninth Circuit held that "[t]here is no legitimate penological justification fc;>r requiring [inmates]
IS In dicta, the Supreme Court ·recently suggested that constant light in cells holding high-risk detainees
"may well be necessary and appropriate in light ofthe danger that high-risk irunates pose both to prison officials and
to other prisoners." Wilkinson v. Austin, 125 S. Ct. 2384, 2395 (2005). This suggestion applied even where "an
inmate who attempts to shield the light 10 sleep [was] subject to further discipline."
Or'"
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to suffer physical and psychological harm by living in constant illumination. This practice is
unconstitutional." Id at 1090 (alternations' in original) (quoting LeMaire v. Maass, 745 F. Supp.
623,636 (D. Or. 1990), vacated on pther grounds, 12 F.3d 1444, 1458-59 (9th Cir. 1993». The
court conclud~ that summary judgment against a convicted prisoner was inappropriate where
the prisoner alleged that his cell's constant illumination caused him '''grave sleeping problems'
and other mental and psychological problems." Id at 1091 (quoting plaintiff's amended
complaint and motion). Likewise, the district court opinion 'concluded that although constant
illumination is a legitimate security measure "[i]n the abstract," it was unconstitutional where
there was "no evidence" that facility staff needed to, or even attempted to, monitor the cells 24
hours a day: LeivJaire, 745 F: Supp. a1636. "Likewise, in Shepherd v. Au/t, 982 F. Supp. 643,
648 (N.D. Iowa 1997), the court found that the plaintiff stated an Eighth Amendment 'claim
where, he ~lIeged that constant illumination of his cell-prevented him from sleeping, and where
there were triable issues regarding the facility's need or desire to monitor his cells 24 hours a
day. That case also suggested that "different inferences arise concerning the effects ofconstant
illumination when exposure t? that condition is long term." Jd. _
.
The unique circumstances of the CIA's detention facilities constitute grounds to
distinguish these cases. As noted above, however, the circumstances ofthe CIA's program'
demonstrate'a special need for 24-hour monitoring. See id at 64S (noting that "[t]he reason
for ... mixed results on 'constant -illumination' claims ... is that such cases are fact-driven")'
The CIA's interest in observing the detainees at all times is acute. Because the CIA detains only
,extremely dangerous individuals whom it has determined to pose serious threats to the United
States or to be planning terrorist attacks, 'see supra p. 12, its interest in being able to observe its
detainees at all tiines is considerably greater, in most circumstances, than the need to keep a
. pretrial detainee under constant ~urveillance in a U.S. prison orjail. The uniquely vulnerable
nature ofthe CIA's detention facilities further hei htens the need for s ecial means of securing
those facilities from within. As described 'above,

the CIA must house extremely dangerous terrorist
significant tnurung 10 the making and use of improvised weapons.

detainees~

who often have

These unique characteristics ofthe CiA detention facilities make the use ofunusual
security conditions like constant illumination defensible in a way that such a condition might not
be in a more traditional facility. By keeping the facilities under constant illumination and closedcircuit surveillance, the CIA is attempting to do with technology what other detention facilities
do with architecture or manpower. Accordingly, our analysis of the use of illumination is limited
to the CIA's covert detention facilities and wquld not necessarily carry over to more permanent
,priso~s where alternative ways of keeping watch over detainees might be possible. Indeed, we
find it relevant that the CIA has 'considered, only to reject as im racticable or inade uate
alternative methods ofkee iog detainees under surveillanCe,

22

constant illumination fuither illustrates the nexus between the CIA's security needsand the'
condition it has imposed.
We therefore conclude that the use ofconstant ilhimination, under these special
circumstances, .satisfies the substantive Fifth Amendment standard relevant here: and thus is
consistent with the DTA.
6. The CIA's purpose in shackling detainees is to enhance security "in all.aspects of
detainee management and movement." Standard Conditions a/CIA Detention at 3. The use of
shackles is calibrated to advance this purpose: the number of hours per day that a detainee is
shackled is directly linked to the security threat that the detainee has been shown to pose to
detention facility staff. Id We understand, and think it highly significant, that detainees are not
shackled while in their cells unless they. are a demonstrated threat to themselves or to facility
personnel while in their cells. Thus, although detainees whose demonstrated history of
misconduct has shown them to pose a serious threat, or who otherwise are reasonably believed to.'
be exceptionally dangerous, might wear shackles at all times, others might he shackled only
.
when CIA personnel are in the room with them, such as during an interrogation session. Id You
recently informed us that, at present, no detainee is shackled 24 hours per day. .
Also significant to our analysis is our understanding that detainees, while shackled, are
able to walk comfortably' and that the shackles are fitted "in such a manner as to not restrict the
flow of blood or cause any bodily i~jury." Standard Conditions o/CIA Detention at 3. This fact
helps confirm that such shackling is in fact related to the CIA's in~erest in security and.that.it
does not cross the line into impermissible punishment. Indeed, our conclusion might well 'be .
. different were detainees routinely shackled without any individualized d~termination about the
security risks they pose or in such a way as to cause them physical pain or suffering. Cf
Williams v. B~rton, 943 F.2d 1572, 1574-75 (lIth Cir. 1991) (per curiam) (keeping a prisoner in
four-point restraints~ even for more than twenty~four hours at a time, does not violate the Eighth
Amendment where no actual injury is inflicted); But'to shackle a demonstrably violent or
escape-minded detainee while he is in close proximity to CIA personnel, where the shackles are
merely a restraint and not a source ofinjury, undoubtedly has a direct connection to the CIA's'
interest in protecting its facilities and its employees. Used in that careful way, shackling is not
intended as punishment.and cannot be said -to be so excessive in relation to the legitimate
objective it advances that it ~an only be understood as punishment.
Shackling, moreover, is a condition of confinement that is addressed in the case law.
.Courts have often rejected constitutional claims alleging impermissible shackling. For example,
in Keenan v. Hall, 83 F.3d 1083 (9th Cir. 1996), a prisoner asserted an Eighth Amendment claim
based on his allegation that "every time [prison] guards moved him from his cell, they placed
him in restraints that caused pain and cuts." Id at 1092. The court of appeals, however, rejected
that claim, concluding that, "for the protection of staff and other inmates, prison authorities may
place a dangerous inmate in shackles and handcuffs when they move him from his cell." Id
Likewise, in LeMaire v. Maass, 12 FJd 1444, 1457 (9th Cir. 1993), the court of appeals rejected
an Eighth Amendment claim brought by prisoners who were put in handcuffs and shackles when
removed from their cells to shower, stating that the claim was "manifestly without merit" In
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23

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also upheld the use of in-cell restraints, concluding that, where used to control behavior of
dangerous prisoners and maintain security, the use of such restraints does not violate the Eighth
Amendment. Id at 1460. Finally, in Bruscino v. Carlson, 854 F.2d 162 (7th Cir. 1988), the
court of appeals found that a maximum security prison's policy of handcuffing an inmate and
shackling his legs whenever he is outside his cell was a «reasonable measure in view of the
history of violence at the prison and the incorrigible, undeterrable character of the inmates." /d
at 166.
We therefore conclude that the CIA's use of shackling, as you have described it to us, is
sufficiently rerated to the CIA's objective of institutional security, and sufficiently uniikely to
cause needless hardship for detainees, that it does not constitute the kind of "cruel, inhuman, or
degrading treatment or punishment" prohibited by the DTA.

c.
Thus.far, we have analyzed the CIA's conditions of confinement individually. Courts,
however, at least when evaluating an Eighth Amendment conditions-of-confinement claim, tend
to take a totality-of-the-circumstances approach. As the Supreme Court has stated, "[s]ome
co·nditions of confinement may establish an Eighth Amendment violation 'in combination' when
each would not do so alone." Wi/son v. Seiter, 501 U. S. 294, 304 (i 991); see also Palmer v.
Johnson, 193 F.3d 346, 353 (5th Cif. 1999) (stating that "we must consider the totality of the .
spec.ific circumstances that constituted the conditions of [the prisoner's] confinement, ·with
particular regard for the manner in which some of those conditions had a mutually reinfore.jng
effect"); B71Iscino v. Carlson, 854 F.2d 162, 166 (7th Cir. 1988) ("The whole is sometimes
greater than the sum of its parts: the cumulativ~ effect of the indignities, deprivations, and
constraints to which inmates are subjected determines whether they are receiving cruel and
unusual punishment.").
This totality-of-the-circumstances approach has its limits, however. Conditions of
confinement. may give rise to a constitutional violation together, where they would not do so
alone, "only when they have a mutually enfore.ing effect." Wilson, SOl u.s. at 305; see also.
Palmer, 193 F.3d at 353 (considering the manner in which certain conditions had a "mutually
reinforcing effect"); Bruscino, 854 F.2d at 166 (analyzing conditions' "cumulative effect"). The
Supreme Court has explained that
[t]o say that some prison cJ>nditions may interact in this fashion is a far cry from
saying that all prison conditions are a seamless web for Eighth Amendment
purposes. Nothing so amorphous as "overall conditions" can rise to the level of
.cruel and unusual punishment when no specific deprivation of a single human
need exists.
We have examined the conditions of confinement employed by the CIA in its covert
detention program and see nothing to suggest that they might produce such an effect. In
particular, it does not appear that any ofthe conditions render the detainees unusually susceptible
to harm from any of the other conditions. To the contrary, the evidence that we have considered
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24

reinforcing harmful effects of the conditions of detention, including by giving each detainee a
quarterly p~ychological examination to assess how well he is adapting to his confinement. Id In
this way, .the CIA has instituted procedures to ensure that any unforeseen, mutually reinforcing
harmful effects of the conditions of confinement would be prought to the attention of facility
personnel and addressed in an appropriate manner.
Nevertheless, we· approach this question with no illusions about the cumulative strain that
these conditions may impose on detainees. The detainee is isolated from most human contact; .... ,
confined to his cell for much of each day, under constant surveillance, and is never permitted a
moment to rest in the darkness and privacy that most people seek during sleep. These conditions
are unrelenting and, in some cases, have been in place for several years. That these conditions, .
taken together and extended over an indefinite period, may exact a significant psychological toll
illustrates the importance ofthe·medical monitoring conducted by the CIA. But CIA's periodic
monitoring is not, on its own, sufficient to ensure the non-punitive nature of the combined
conditions. Instead, our determination that these conditions are permissible, even when used in
combination, rests ultimately on two critical points: (1) the detaipees in question are
.
exceptionally dangerous terrorists who pose a serious and continuing threat to the United States .
~ension, the CIA p~rsonnel effectuating their detention; (2_
_ _nature ofthe CIA facilities does not permit the use of oth'e~
means of detecting and preventing threats against the security ofthe facilities. These points
highlight that the CIA's secu'rity concerns are not exaggerat.ed and, indeed, that in many ways
they exceed even those that exist in maximum security domestic prisons. Moreover, the CIA has
attempted to calibrate its conditions of confinement so that they not only directly advance its
security interests, but so that they do so in ways that avoid causing the detainees excessive or
unnecessary hardship. We expect that the CIA will continue to engage in this calibration and
wilJ be prepared to modify conditions of confinement (whether for individual detainees or.
col1ectively) if experience or new circumstances suggest that some of the conditions discussed
a.bove are no longer needed to secure a particular facility or are in fact causing the detainees
unjustifiable harm. On the basis of current circumstances, however, we conclude that these
conditions, considered both individually and collectively, are consistent with the D!A. 16

16 On May 18,2006, the Conunittee Against Torture-,-a body established by Article 17 of the Convention
Against Torture ("CAT')-issued a series of recommendations pursuant to the Second Periodic Report of the United
States to the Committee. In those reconunendations, the Committee stated without elaboration or argument that the
·detention of any person "in any secret detention facility under its de facto effective control .. '. constitutes, per se, a
violation of the Convention." As the Department of State bas explained, the Committee's sununaJy conclusion on
this issue is neither authoritative nor correct. As an initial maUer, the Committee's mandate under Article 18 is
merely to make "suggestions," not to serve as an authoritative interpreter ,of the Convention as a matter of
intemationallaw. Moreover, in arguing that inconununicado detention is W1Iawful, the Committee did not indicate
what provisions of the CAT such detention 'Would violate. That omission is not swprising, as the CAT says nothing
whatsoever about affording detainees the ability to communicate outside of the facility in which they are being
detained. See Statement of John Bellinger ill to U.N. Committee Against Torture at 23 (Jvfay 8, 2006).

25

...
IV.

For these reasons, and subject to all the limitations described above, we conclude that the
conditions of confinement that are the subject of your inquiry do not constitute "cruel, inhuman,
or degrading treatment or punishment" forbidden by the DrA.
. Please let us know if we may be of further assistance.

Steven G. Bradbury
Acting Assistant Attorney General

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

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