0000011
/

;

"

U.S. Department of Justice
Office ofLega! Counsel

Offi~ of the Principal Deputy Assistent Atto1l1ey ~l

May 30, Z005

MEMORANDUM FOR JOHN A. RIZZO
SENIOR DEPUTY GENERAL COUNSEL, CENTRAL INTELLIGENCE AGENCY

Re: Application of United States Obligations UnderArtick<I6r;;fthe
Convention Against Ttmure toCer/ain Techniques that May Be
Used in theInterrogation o/High Vallie at Qaeda Detainees
You have asked us to address whether certain "enhanced interrogation techniques"
employed by the Central Intelligence Agency ("CIA") in the interrogation of high value at Qaeda
detainees are consistent with United States obligations under Article 16 of the United Nations
Convention Against Torture and Other Cruei, !hhuman or Degrading Treatment or Punishment,
Dec, 10, 1984, S, Treaty Doc, No. 100-20, 1465 UNTS. 85 (enteree into f,)fCe fOf US.
Nov 20, 1994) ("CAT") , We conclude that use ofthcsc techniques, subject to tbe CIA's careful
screening criteria and limitations and its medical safeguards, is consistent \'lith United States
obligations under Article 16, I
By its terms, Article 16 is Hmite,d to conduct v.1thin "territory under [United States]
jurlsdiction." Wecondude that territory under United States jutlsdiclion includes, 'at mosf,areas
J Our analysis and cOllcllJSfons are lintHCl:! to the specifich:ga! issues W(( address in th.ls memQrandUliL We
note thllt we haveprev'iousiy concluded tlUll use of these techniques, subject to the limits and safeguards required by
Ute interrogatiol11i1cogram, does not violate the federal prohibition on torture, codifie& at 18 US,C, §§ 2340-2340A.
See Memorandum for John A Ri2.zo, Senior Deputy General Col.lnsel, Centra1lntelIigence Agency, from Steven G.
Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, Re: Application of18 U.S. C
§§ 2UfJ-234GA (0 Certain Techniques that Afay Be Used in the Interrogation a/a High Value al Qaeda Detainee
(May 10, 20(5); see alsQ MemoranduUl for 10hn A ruzzo, Senior Deputy General Counsel, Central Intelligence
Agency, from Steven G. Bradb\ll)', Principal Deputy Assistant Attomey Genera!, Office of Lega! Counsel, Re:
Applicafion of18 U.S,C. §§ 234fJ·214(}A to the Combined Use a/Certain Techniques in the Interrogation a/High
Value 01 Qaeda Detainees (M3)' W, 20(5) (concluding t!i;,t the anticipated wl1lbincci use of these tedmiquc.s would
tlQl violate the fedemprohibition on torture), The legal a.cJvlcc provided in lhis memorandum does not represent the
policy views of the Department ofJustice concerning the use ofany interrogation meU,oos,

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over whic1i the United States exercises at feast de facto authority as the government. Based on
CIA assurances, we unders~and that the interrogations do not take place in any such areas. We
therefore conclude .that Micle 16 is inapplicable to the CIA's interrogation practices and that
those practices thus cannot violateArticie 16. Further, the United States undertook its
obligations under Article 16 subject to a Senate reservation, which, as relevant here, explicitly
limits those obligations to "the cruel, unusual and inhumane treatment ... prohibited by the Fifth
Amendment, .. to the Constitution ofthe United States:';! There is a strong argument that
through this reserVation the Senate intended to limit the scope of United States obligations under
Artide 16 to those imposed by the relevant provisions of the Constitution. As construed by the
courts, the FiahAmcndment does not apply to aliens outsjd~ the United States. The CIA has
assured us that the interrogation techn.iques are not used within the United States or against
United States persons, including both United States citizens and lawful permanent residents.
Because tb~ geographic limitation on the face of Article 16 renders it inapplicable to tbe CIA
interrogation program in any event, we need not decide in this memorandum the precise effect, if
any, afthe Senate reservation on the geographic reach of United States obligations under Article
16. Forthese reasons, we conc!ude in Part n that the interrogation techniques where and as used
by the CIA are not subject to, and therefore do not violate, Article 16.

(

Notwithstanding these: conclusions, you have also asked whether the interrogation
techniques at issue would violate the substantivesiandards applicable to the United States under
Article 16 if, contrary to our c.onclusiQuinPart Ii, those standards did extend to the CIA
interrogation program. Ai> detailed below in Part ill, the relevant constraint here, assuming
Article 16 did apply, would be the Fifth Amendment's pronrbitkm 'ofexeeuti ve conduct that
"shod'-s the conscience," The Supreme Court has emphasized that wheth.er conduqt "shocks the,
conscience" is a highly context-specific and fact-dependent question. The Court, however, has
not set forth with precision Ii specific test for ascertaining whether conduct can be said to "shock
the conscience" and has disclaimed the ability to do so. Moreover, there are few Supre,rne Court
cases addressing whether conduct "shocks the conscience," and the few cases ttlcrc are have all
arisen in very different oontc"-isfrom that which we consider here.

we

For these reasons,
cannot set forth or apply a precise test for ascertaining whr:.-ther
conduct can be s.aidto "shock the conscience." Nevertheless, the Court's "shocks the
con;;cience" cases do provide some signposts that can guide our inquiry, Inparncular, on
b;J.[apc.e the cases are be,st read to require a determinaHon whether the (.enduct is '''arbitrary in
theconstltutiOll.alsense,''' County ofSacramcnto v. Lewis, 523 U.S. 833, 846 (l998)(citation
1

TIlercservatiOI1 provides in fall:

w:--_.··~~_'~~;;;·,~atc.ilJ~1t~:Stat~m--m-~lf~uffiffftnri~~cr AitiSfc1~;-~~;··=:;···==:::i:='=
i..nh\J.luan,or degrading treatment or P\lJtist,,'nent,~ only insofar as thetenn "cruel inhuman Qr ... .
__ qe..g:~:n.ellt.J:)CP\.l1ljshrnent;Lmeansi.he~l;umr~WrMumar;C'tI~nent~'-'
--pUll.ish.tnOOt prohibitedhy the FLfth,Eighth, andlof Four1eenth Amendnients to the Constitution of

the United States,
136 Congo Rec. 36198 (1990). As we explain below, the Eighth and FOllileenth Amendments arc not applicable in
this context.
.

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2

omitted); that is, whether it involves the "exercise ofpower w'ithout any reasonable Justification
in the service of a legitimate governmental objective," id. «rqonduct intended to injure in some
way unjustifiable by any government interest is the sort of official action most !ike!y to rise to
the conscience-shocking leveL" ld. at 849. Far from being constitutionally arbitrary, the
interrogation techniques at issue here are employed by the CrA only as reasonably deemed
necessary to protect against grave threats to United States interests, a determination that is made
at CIA Headquarters, with input from the on-scene interrogation teaIU;c pursuant to careful
screening procedures that ,et1."llre tbattne techniqueswHl be used as little as possible on as few
detainees as possible. Moreover, the techniques have beencarefuHy designed to minimize the'
risk of sti.fferjng or injury and to avoid inflicting any serious or lasting physical or psychological
harm. Medical screening, monitoring, and ongoing evaluations further lower such risk,
Significantly, you have informed us that UleerA believes that this program is largely responsible
for preventing a subsequent attack within the United States Because (heClA interrogation
program .is carefully limited to further a vital government interest and designed to avoid
unnecessary or serious harm, we conclude that it cannot be said to be constitutionally arbitrary.
The Supreme Court's decisions also suggest that it is appropriate to consider whether, in
light of"traditional executive behavior, of contemporary practice, and the standards of blame
generally applied to thenl," USe oHM techniques in the ClA interrogation program "is so
, egregious, so outrageous, that it Inay fairly be said to shock the contemporary conscience," ld. at
847 n. 8. We have not found evidence of tr:aditional execuli vo behavior or <:ontemporary practice
either condemning or condoning an interrogation program carefully limited to further a vital
government interest and designed to avoid unnecessary or serious harm. We recognize,
however, that use of coercive interrogation techniques in other contexts-in different settings,
for other purposes, or absent the CIA's safeguards-might be thought to "shock the conscience."
Cl,
Rochin v. California, 342 U.S. 165, 172 (1952) (finding that pumping the stomach oCa
crimina! defendant to obtain evidence "shocks the conscience"); U.S. Army Field Manual 34-52'
Intelligence Interrogation (1992) ("FieldManuaf 34-52") (detailing guidelines for interrogations
in the context.of traditional warfare); Department of State, CountryReports on Human Rights
Practices (describing human-rights abuses condemned by the United States). We believe,
however, that each oftbese other c.ontc)i;ts, which we describe more fully below, differs critically
from the CIA interrogation program in ways·that would be tlrrreasol1abJc,to ignore in examining
whether the condqct involved ill the CIA program "shock[s] the contemporaryconsclence."
Ordinary criininaJ irrvestfg~tions within the United States; for example,involve fundamental] y
different government inter¢.sts end implicate specific c.onstitutional guarantees, su~h as the
privilege against self-incrimination, that are not at issue here. Furthermore, the CIA
interrogation techniques bave all been adapted from military Survival, Evasion, Resistance,
Escape ("SERE") training. Although there are obvious differences between training exercises
and actual interrogations, tue fact that the United States uses sirnilar techniques on its own troops
=~~=-~·······~g=ptn"p~rtmg:lrst!:ggests=t£at=IDese--t~".arecn{}~eg~ond=th~·~-=::::

pale.

Given that the CIA interrogation program is carefully limited to further the Government's
paramount interest in protecting the Nation while avoiding unnecessary or serious harm, we
conclude that the interrogation program cannot "be said to shock the contemporary c.onscience"
/'

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3

wh;;n considered in light of "traditional executive behaYior" and "contemporary practice."
Lewis, 523 U.S. at 847 n.8.

Elsewhere, we have described the CIA interrogation program in great detail. Sec
Memorandum for John Rizzo, Senior Deputy Gener;'!1 Counsel, Central Intelligence Agency,
Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal
Counsel, Re: Application oj 18 Us.c. §§2340-2340A to Certain Techniques (hatMay Be Used
in the Interrogation ola High value af Qaeda Detainee at 4-15, 18-45 (May 10, 2005)
("Techniques"); Memorandum for John A Rizzo, Senior Deputy General Counsel, Central
Intelligence Agency, from St.even G. Bradbury, Principal Deputy Assistant Attorney General,
Office oftegal Counsel, Re: A.pplication of 18 U.S.c. §§ 2340-2340A.to the Combined Use oj
Certain Techniques in the Interrogation ojHigh Value at Qaeda Detainees at 3-9 (May 10,
2005) ("Combined Use"). The descriptions ofthe techniques, including an limitations and
safeguards applicable to their use, set forth in TechnitJ1.tcs and Combined U,se are incorporated by
reference herein, and we assume familiarity with thosedescnptions, Here, ive highlight those
aspects aftlle program that arc most important to the question under consideration. Where
appropriate, throughout this opinion we also provide more detailed background information
regarding specific high value detainees who arerepresentative ofthe individuals on whom the
techniqu.es might be used.:!

J The CIA has R'Yiewed and confirmed the accuracy of our description of the interrogation program,
inclUding its purposes, methods, limitations, and results.

4

Tops6ETI
,/'

based. on available inteHigcnce, conclude that the detainee is an important and dangerous
member ofan aI Qaeda·affiIiated group. The CIA must then determine,8.t the Headquarters
level and on a case-oy-case basis with input from the OIHcene interrogation team, that enhanced
interrogation methods are needed in a particular interrogation. Finally, fheenhanced techniques,
which have been designed and implemented to minimize the potential for serious or unnecessary
harm to the detainees, may be used only if there are no medical or psychological
.
contraindications.

a detainee who, until time ofcapture, we have reason to believe: (1) is a senior
member ofat.Qai' da or an at-QaPda associated terrorist group (Jemaah
Islamiyyah, Egyptian Islamic Jihad, al.Zllrqawi Group, etc.); (2}has knowledge
of imminent terrorIst threats against the USA, its miHtary forces, its citizens and
organizations, or its allies; Of thathaSlhad direct involvcrnentin planning and
preparing terrorist actions against the USA or its allies, or assisting the al-Qai'da
leadersbip in planning and preparing such terrorist actions; and (3) if reIeased,
constitutes a dear and continuing threat to the USA or its allies.
, Acting Assistant Attorney General, Office of Legal Counsel, from
sistant General Counsel. Central InteHigence Agency at 4 (Jan. 4, 2005)
'''). The CIA.., therefore, must have reason to believe that the detainee is a
senior member rather than a mere "foot soldier") ofal Qaeda or an associated terrorist
organization, who likely has actionable intelligence concerning terrorist threats, aod who poses a
signifiMnt threat to United States interests.
.

The "waterboard," which is tbe most intense ofthe CIA interrogation techniques, is
subject to additional limits. It may be used on a High Value Detainee only if the CIA has
"credible intelligence that a terrorist attack is imminent"; "substantial and credible indicators that
the subject has actionable intelligence that can prevent, disrupt or delay titis attack"; and "£oJther
interrogation metbods bave failed to dicit the information [or] CIA has clear indications tbat
other.. . methods are unlikely toelicit this inf~ml~on within thep§rceiyed ti uxfL!illJ1!jor ._.. . . ===» .
==;""~. C.'":··--pre17rmimg-ttre mt&15k:""'ufter-=rroffi:Jo1in-A:~zio=-,-xcting Generil Counsel, Central Intelligence
" Agency, tol?a:;iel ~vin,.A~~!n~ ~=~LGe.Il2t~!t,Om~e,9fLeg?lQoun$~Lgt.l.
.~ -"(7\1J'g:'2;-2UO~ T:')fitgust TRJzzo Letter ') (attachment).
stody of94 detainee
ld has employe.d e

In

ues to
tbe interrogations of28 of these detainees. We understand that two individuals

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5

techniques have
the CIA tookcustody 0
whom the erA
e concerning the pre-election threat tothe United States. See
Associate General Counsel, Central futclHgence Agency, to
General,· Office ofLegal Counsel at 2'(Aug. 25, 2004) ,
. e connections to varlousal Qa

Intelligence indicated that prior to his capture,
"perfom1(ed] critical
facilitation and finance activities for al-Qa'ida," inc!udipg '<transporting people, funds,and
documents,"
Idsmith,m, Assistant Attorney General, Offmc ofuga!
Counsel, fro
Assistant
sel, Central futelIigence Agency
(1\1:arch
2
The
. e part in planning attacks
agaittSt United States force
e;..ielisive contacts "'1tft

key memhers of al Qaeda,
'd Sh~ykhMuhamml;l.d
("ICS '
ubaydah. See fd.
captured whUe on a mission
from
e establish conta
- arqawL See CIA Directora.te ofInteHigence,
US Efforts Grinding Dmvn al-Qa'ida 2 (Feb. 21, 2004).
Consistent v,'ith its heightened standard for use of the waterboard, the CL-\ has used this
technique in the interrogations of only three detainees to date (KS!vt; Zubaydah, and'Abd AI-

Rahim Al-Nashiri) and has not used it since the March 2003 interrogation of KSM. See Letter
from Scott W. Muner, General Counsel, Centra! Intelligence Agency, to Jack L GoldsmiUl m,
Assistant Attorney General, Office of Legal Counselaf 1(June 14, 2(04).
We understand that Abu Zubaydah and KSM are representative of the types of detainees
on whom the waterboard has been, or might be, used. Prior to his capture, Zubayda11 was "one
of Usama Bin Laden's key lieutenants." CIA, Zayn al-Abidin Muhammad Husayn ABU
ZUBAYDAH at 1 (Jan. 7, 20(2) ("Zubaydah Biographj'), Indeed, Zubaydah -was al Qaeda's
third or fOLlrth highest ranking member and had been involved 'fin every major terrorist operation
carried out by al Qaeda." Memorandum for John Rizzo, Actirig GenetalCounsel, Central
InteHigence Agency, from Jay S, Bybee, Assistant Attorney Genera~ Office ofLegal Counsel,
Re: Interrogatjon ofal QaedaOperative at 7 (Aug, 1, ZOO.2) r'lnterrogation ,\{emorcTl1dum");
Zubaydah Biography (noting Zubaydah's involvement in the Sept~mbe[ll attacks). Upon his
capture on March 27, 2002, Zubaydah became the most senior member ofal'Qaeda in United
States custody. ,'i'ee Report at 12,

KS!\l, "a mastennind" oftbe September 11,2001, attacks, was regarded as «one of ai~.....~, .~."--" ~ :r'h1a"'1;"i't1'0st"tl angertHIsl1Ttdi-e:SOUrc

'

'

Bf

lor to IS. capture, the CIA
atiena! leaders ... based on his

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6

"~"...,.~.,,.,

(

close relationship\vith Usarna Bill Laden and his reputation among the -a1-Qa'ida rank and file. n

Id. After the September 11 attacks, KSM assumed '1he role ofoperations chiefror aI-Qa'ida
around the world," CIADirectorate ofIntelligence,Kha!idShaykltMuhammad:Preem.inent
Scmrce on AI..Qa'ida 7 (July 13,2004) ("Preeminent Source"). KSM also planned additional
attacks witbin the United States b<>th befOre and after September II. See id. at 7-8;.ree also The
9/11 Commission Report: Firla/Report ofthe National Commission on Terrorist Attacks Upon

the United States 150 (official gov't ed. 2004) ("9/11 Commission Reporf'),(
2.

Even with regard to detainees wao satisfy these threshold requirements, enhanced
techniques are considered only if the on-scene interrogation team determines that the detainee is
withholding or manipulating information, Tn order to make this assessment, interrC?gators
conduct 81'1 initial interview "in a relatively benign envIron
twio, Acting
Assistant Attorney General, Office ofLega! Counsel, fro
Associate
General Counse~ Central Intelligence Agency, Re: Backgrmm aper on 'fA's Combined Use
ofInterrogation Techniques at.3 (Dec, 30, 2004) ("Background Paper"). At this stage, the
detainee is "normally clothed but seated and sbackled for security purposes," and the
interrogators take "an open, non-threatening approach," Id. In order to bejudgedpartioipatory,
however, a high value detainee "would h~ve to wHlingly provide information on actionable
threats and location information on High-Value Targets at iarge--.-not lower level information."
Jd, If the detainee fails to meet this "very high" standard, the interrogation team develops an
interrogation plail, which generally calls. for the use of~nhanced techniques only as necessary
and escalating fashion. See id. at 3·4; Techniques at 5,
Any interrogation plan that involves the use of enhanced techniques must be reviewed
and approved by "the Director, DCI Counterterrorist Center, \\'1ththe concurrence of the Chief,
Lega! Group." George J. Tenet, D i '
.
nducled Pursuant to th
t 3 (Jan. 28,2003) ("Int
anon uide.Jinei'
approva lasts for a
pena fat most 30 days, see id, at 1-2, although enhanced interrogation techniques are
genera[Jy not used for more than seven days, see BackgromrdPaper at 17,
example, after medical and psychological examInations found no oontraindications,
interrogation team sought and obtained approval to use the following techniques:
attention grasp, walling,'
cial slap, wall standing, stress pcsitions,aI1os1eep
deprivation. See August 2
etter at 2. The interrogation te.am "carefully analyzed
Qui's responsi veness to different areas of inquiry" during this time and noted that his resistance
incre.ased as questioning moved to his "knowledge of operational terrorist activities." Jd. at 3,
~~~:~'~~~-:=::""'~---":::=:::'::"::':::::::=:;;'::-':-_-:::':=:;:::'::~:-:::'.:==:.:::::::::::::::.~-=:::::::.:.::;,;,;:~.:..~::::..~._:.::.:::::::.:-.~-,~~-=::,::;:.;:-~::::::::::::::::;;,;;.,

.. --,-~ .....-~=::':::-:::::::~::::=:::::::':::--"":::-"::;::::::::::::::-..:.."::..~;;':::;;:~~:=:''':'=

, Al·Nashiri, the only other detainee to be subjected to the waterroard, pl:mn.ed the bombing ofthe U,S.S.
-~-"""-'~""-==etll'e:trnQ"t1;aS''S~quenfly~ffiWiasUle:'c1ITeronr"Qaeaa-operntIon:slnan:if'aroUh~ianperunSii13."'~~--'

9/11 Commission Report at [53,
5 You have infonned u.s that tIte current pmC!ice is for the Di!:ectcr of the Central Intelligence Agen<ry to
make thi.s dettrinin.ation p<;.'fSonally.

"

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7

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/'

'gned memory problems (which CIApsycnofogists ruled out through
mteHigence and memory tests) in order to avoid answering questions. Id
At that point, the interrogation team believed
'maintains a tough, Mujahidin
fighter mentality and has conditioned rumselffor a p
nterrogation," [d. The team
theretibre concluded that "more subtle interrogation measures designed more to wea
physical ability and mental desire to resist interrogation over the long run are likely to be more
effective." !d. For thes~ reasons, the team sought authorization to use dietary manipulation,
nudity, water dousing, 8n':I'abdominal
4-5. In the team's view, adding these
techniques would be especiaily helpful
ecause he appeared to have a particular
\veakness for food and also seemed especially modest. See id. at 4.
The CIA l!;slXl the waterboard extensively in the interrogations of KSM and Zubaydah,
but did so only after it became clear that standard interrogation techniques Were not working.
Interrogators used enhanced techniques in the intertogation of al-Nashiri with notable results as
as the first day. See 1G Report at 35-36. Twelve days into the interrogation, the CIA
subjected a!~Nashiri to one session ofthewaterboard during which water was applied two times,
See id, at 36.
3.

Medical and psychological professionals from the CIA's Office ofMedIcal Services
("OMS") carefully evaluate detaInees before any enhanced technique is authorized in order to
ensure that the detainee "is not likely to suffer any severe physical or menti;1 pain Of suffering as
a result of interrogation." Techniques at 4; see OMS Guidelines on Medical and Psychological
Support to Detainee Rendition, Interrogation and Detention at 9 (Dec. 2004) (HOMS
Guideline.f'). In addition, OMS officials continuously rnonitorthe detainee's c·ondition
throughout any interrogation using enhanced techniques, and the interrogation team will stop the
use of particular techniques or the interrogation altogether lithe detainee's medical or
psychological condition indicates that the detainee might suffer signWcant physical or mental
harm. See Techniques at 5-6. OMS has, in fact, prohibited the use ofcertain techniques in the
interrogations of certain detainees: .See id.at 5. Thus, no technique is used in tbtlinterrogation
detainee----no matter how valuable the information the CIA believes the detainee has~if
medic·a! andpsychologica!evall.lations or oIigoing monitoring suggest thafthG detainee is
to suffer serious bann. Careful records are kept bfeach interrogation, which ensures
accountability and allows for ongoing evaluation of the efficacy of each technique and its
potential for any unintended or inappropriate results. See id,

"""_~

'_~"_'''MY~~rotfJ;e

hasinformoo_ uS,t!lat the CIA believes that "the inteHigenceacquired from
rilled to hiunch a spec&cu1arattaclt·-~"'"''''''''·

these interrogations hast;e'en~i key reaSonwny'al~Qa'idahas

in the West since 11 September 200 I." Memorandum for
t Attorney General, OtfJce of Lega! CounselJrom
cr CounterterrorlstCenter, Re: Elfectiveness of the
ounterintelligence
nterrogation Techniques at 2 (j\{ar. 2, 2005) ("EjfectivenessMemo") In particular, the CIA

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8

,believes that it would have been unable to obtain critical information from numerous detainees,
including KSM lind Abu Zubaydah, withouttbese enhanced techniques, Both KSM and
Zubaydah had "expressed their belieftb.at the general US population was 'weak/ lucked
resilience, and would be unable to 'do what was necessary' to prevent the terrorists from
succeeding in their goalsY ld. at 1. Indeed, before the CIA used enhanced techniques in its
interrogation of KSh1, KSM resisted giving any answers to questions about future attacks,
simpiy noting, "Soon, you will know." Jd. We understand that tneuse of enhanced techniques
in the interrogations ofKSrv!, Zubaydah, and others, by contrast, has yielded critical information.
See fG R.eport at 86, 90-91 (describing increase in intelligence reports attributable to use of
enhanced techniques). As Zubaydah himself explained with respect to enhanced techniques,
"":"brothers who are captured and interrogated are permitted by Allah to pro\ride information when
they believe they have 'reached the limit Qf their ability to withhold ie in the face of
psychological and phj'sicaI hardships." Effectiveness )"iemo at 2. And,indeed, we understand
that since the use of enhanced. teohniques, "KSM a.flo Abu Zubaydah have been pivotal sources
because Qfthcit ability and \viUingness to. provide their analysis and speculation about the
capabilities, methodologies, and mindsets ofterronsts," Preeminent Source at 4.
Nevert11cless, current CIA threat reporting indicates that, despite substantial setbacks over

.

.

au have
lnfonned us 11it t e CIA ,elieves that enJmnced interro
mques remain essential to
obt~jning vital Intelligence necessary to detect and disrupt such eme.rging threats.

In understanding the effectiveness oftlle interrogation program, it is important to keep
two rdated points in mind. First, the total value Qfthe program carmot be appreciated solely by
focusing on individual pieces of information. According to the CIA Inspector General:
eTC frequently uses the information from one detainee, as \vell as other sources,
to vet the informa.tion of another detainee. Althoucll lo\.ver-Ievel detainees
pro\~de less information than the high value detain~ee$, information from these
"".,....,~~~,~~";-,_ ~"=~~~~~~~~~~_~as} on many..?~ons!.
Ued the information needed to probe the
..·_···..·_..........·.· -·-·ntglffi1ue aaumces Yurt er. . . on 0 liiIeiIJgenceprovldes-a
__..,._,~ . ~ . ,_~~. ~_~=. fuller
kno?::i~~~e~A.I-Qa'~~a
activities. .than
would be possible from a single
detainee.
.......
.. . - '...~-~
=_.---,-=~-~-,-_

.

to Report at 86.

. ,...

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

As illustrated below, we understand that even interrogations ofcompararivety
lower-tier high value detainees supply information that the CIA uses to validate and assess
information. elicited in other interrogations and through other methods. Intelligence acquired

9

.•_,,,.. .

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ftom tbe' interrogation program also enhances other intelligence methods and has helped to build
the CIA's overall understanding ofal Qaeda and'its affiliates. Second, it is difficult to quantify
with c.Qnfiden~ and precision the effectiveness of the program. As the fG Report notes, it is
difficult to detemline conclusively whethednterrogatiollS have provided information critical to
interdicting specifidmminent attacks. See id. at 88. And, b:ecause the CIA has used enhanced
techniques sparingly, "there IS limited data on which to assess their individual effectiveness," fd.
at 89. As discussed below, however, we understand that interrogations have led to specific,
actionable intelligence as well as a general increase in the amount ofintelligence regarding al
Qaecla and its affiliates. See hi. at 85-91.
With these caveats, we tum to specific examples that you have provided to us. You have
informed us that the interrogation ofKSM.....-,Ql1ce enhanced techniques were employed-led to
the discovery of a KSM piot, the "Second Wave," "to use East Asian operatives fo crash Ii
hijacked airliner into" a building in Los Angeles. Fjfectiveness Memo at 3, You have informed
us that infoffiJation obtained from KSM als-o led to the capture ofRidl.ltil1 bin Isomudditl, better
known as Hambali, and the discovery of the Guraba Cell, a 17-member lemaah Islatniyah ceil
tasked with executing the "Second Wave," See/d. at 3-4; CIA Directorate ofJIltellige.l1ce, AlQa 'ida's Ties to Other Key Terror Grotlps: Terrorists Links in a Chain 2 (Aug. 28, 2003), More
specifically, we understand that KSM admitted that he bad
.
"
a
of money to an a1 Qaeda associate. See Fax fro
C1 Counterterrorist Center, Briefing Notes on the
e Reporting at 1
15,2005) ("Briefing Notes'). Khan subsequently identified the associate (Zubair), who
was thcncaptured. Zubair, in turn, provided jnformation that led to the arrest of Hambali. See
id The infor.n1ation acquired from these captures allm'lcd CIA interrogi.1Jors to pose more
specific questions to KSlvf, which led the CIA Hambali's brother, al-HadL Using information
obtained from multiple sources, al-Hadi "vas captured, and he subsequently identified the Guraba
cd!. See id at 1 With the aid oftbis additional information, interrogations ofHambali
confirmed much of what was learned from KSM 6
Interrogations of Zubaydah-again, once enhanced techniques were empfoyedfurnished detailed information regarding a( Qaeda's "organizational structure, key operatives,
and modus operandi" and identified KSM as the mastermind of tile September 11 attacks. See
Briefing Notes at 4. You have informed us that Zubaydah also "provided significant infonnation
on two operatives, [including] Jose Padilla-[,] who p.Iaruied to build and detonate a 'dirty bomb l
in
Wasbington DC area." Effectiveness Memo at 4. Zubaydah and KSM have also supplied
important information about al-Zarqawi and hisnetv.'ork
dsmith.m,
Assistant Attorney Ge
'
General Counsel, CI

TOP~RET
10

from ClA dellilnees

approximately
Report at 86
3,000 intell

substantial

1

n,c,'~,";,,,

As with

we discuss

of the intclligi:J",cc

through interrogations of Zubaydah.

/'

/

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NOFORN

/

/

11

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O,bRN

TOP)ECRET

c.
There are three categories ofenhanced interrogation techniques: conditioning techniques,
corrective techniques, arid coercive techniques. See Background Paper at 4. As noted above,
each anne specific enhanc.ed techniques has been adapted from SERE-training, where similar
techniques have been used, in some form., for years on United States military personnel. See
Techniques at 6; JG Report at 13-14.
L Conditioning techniques
Conditioning techniques are used to put the detainee in a "baseline" state, and to "demonstrate to the [detainee] that he has no control over basic human fiC\.."dS:' Background
Paper at 4. This "creates _.. a mindset in which [the detainee] learns to perceive and valuebis
personal welfare, comfort, and immediate needs rnoretl1an the information he is protecting." ld.
Conditioning techniques are not designed to bring about immediate results. Rather" these
techniques are useful in view oftheir "cumulative effect _.. , used over time and in combination
other interrogation techniques ami intelligence exploitation methods." ld. at 5. The specifio
conditioning techniques are nudity, dietary manipulation, and sleep deprivation.
. Nudity is used to induce psychological discomfort and because it a.Hows interrogators to
reward detainees instantly with clothing for cooperation. See Techniques at 7. Although this
technique might cause embarrassment, it does not involve any sexual abuse or threats of sexual
abuse. Se.e id. at 1~8. Bec.ause ambient air temperatures are kept above 68'"F, the technique is at
most mildly physically urlcomfortahIe and poses 110 threat to the detainee's health. Ie/, at 7.

Dietary manipulation involves substituting a bland, commercial liquid meal for a
normal diet. \Ve understand that its use can increase the eitectivcness of other
techniques, such as sleep deprivation. ,\5 a guideline, the CL-\ uses a formula fOf caloric intake
that depends on a detainee's body vveight and expected level of activity and that ensures that
caloric intake will always be set at or above 1,000 kcaVday. See ttl. at 1 & nJO. H By
comparison, commercial weight-lOSS programs used within the United States !lot uncommonly
limit intake to 1000 kcaVday regardless of body weight. Detainees are monitored at all times to
ensure that they do not lose more than l'O%oftheir starting body weight See id. at 7, The CIA
also sets a minimum fluid in,take, buta detainee undergoing dietary manipulation may drink as
much water as he pleases, See id.
detain;ee

_. _"

Sleep deprivation involves subjecting a detainee to an extended period of sleeplessne.ss.
Interrogators employ sleep deprivation in order to weaken a detainee's resistance, Although up
~c:J!g2~:!-~s n~E-Xbe~o~~~.9rize~,Jhe, CIAJ1~~i~E~.<:t_ Slt~tt£ted finly thr~~, detame e$ tQfl1:0re t,:=_n:=an===

~~~,-= .. _,.__" . __.#,..~,."_",,~~,~?,£1.a.m~4jf!]'_!phlJ1E:!Le.£: <1l!~,9AJ;~!Jylpll..QJ~as.agu~qU,~~1JAW.~~ __-~....~."
kcallday + 10 kcallkglctay. ThJs quantity is multip!ied by L2 for a sedentary activity level or 104 for a moderate
activit]' level. -Regardless of this fommla, the recommended minimum calorie irttake is 1500 kcatfday, and in 00
even! is the detainee allowed to reo:ive less than 1000 kcal!day" Jd.. at 7 (footnote omitted). The gUIdeline caloric'"
intake for a <le!2inee who weighs 150 pounds (approxinlJtely 6& kilog.'<l1llS) would therefore be nearly 1,?OQ
k<;a1!day for scdent,'uy activity and \vould be mor<: th2.n 2,200 kcal/day for moderate activity_
.
/

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/t'

12

f

\

96 hours of sleep deprivation. GeneraHy, a detainee undergoing this technique is shackled in a
standing position with his hands in front ofhis body, wbich prevents him from falling asleep but
also aHowshim to move around within a two· to three-foot diameter. The detainee's hands are
generally positioned below his chin, although they may be raised above the head for a penod not
to exceed two hours. See id. at i 1-13 (explainingtlie proceauresat length). As we have
previously noted, sleep deprivation itself generally has few negative effects (beyond temporary

cognitive impairment and transient hallucinations), though some detainees might experience
trartsient "unpleasant physical sensations from prolonged fatigue, including such symptoms as
impairment to coordinated body movement, difficulty with speech, nausea, and blurred vision:'
Id. at 37; see also id. J7<H~. Subjects deprived of sleep in scientific studies for longer than the
I SO-hour lim.it i!11posed by the CIA generally return to normal neurological functioning with as
little as one night of norma! sleep. See id. at 40. In light aftne ongoing and careful medical
monitoring undertaken by OMS and the authority and obligation ofall members ofthe
interrogation team, and of OMS personnel and other facility staft: to stop the procedure if
necessary, this technique is not be expected to result in any detainee experiencing extreme
physic.al distress. See id. at 38-39. 9
With respect to the shackling, the procedures in place (whichinciude constant monitoring
by detention personnel, via closed-circuit television, and intervention if necessary) minimize the
risk that a. detainee will hang by his wrists Qr otherwise suffer injury from the shackling. See id.
at 11. Indeed, these procedures appear to have been effective, as no detainee has SUffered allY'
lasting harm from the shackling. See id.

Be.cause releasing a detainee from the shackles\vould present a security problem and
would interfere with the effectiveness of the tcdmi
.
oing sleep deprivation
frequently wears an adult diaper. See Letter fro
Associate General
Counsel, Central Intelligence Agency, to Dan Lev!
tAttorney General, Office
of Legal Counsel at 4 (Oct 12, 2004) ("October 12
n). Diapers ar'e checked and
vhanged as needed so that no detainee would be ali
to remain in a soiled diaper, and the
detainee's skin condition is monItored. See Techniques at 12. You have informed us that diapers
are used solely for sanitary and health reasons and not in order to humiliate the detainee.

2. Corrective techniques
Corrective techniques entaiJ some degree of physical interaction with the detainee and are
used "to correct, startle) or to achieve another enabling objective with the detainee." Background
Paper at 5. 'nlese techniques "condition a detainee to pay attention to the interrogator's
questions and . dislodge expectations that the detainee ,vill not be touched." Techniques at 9,
.
addition, as we observed in Techniques, certain studies indicate that sleep deprivation might lower
pam thresholds insomede131nees SeeTecJur
aUG 0.44. 111e Q '
'
••
is therefo
-=='~~~"W=especi3ny{mP<Jrlanrwlieninteungat'ors'''eroJl
, IncouJunctiDnlVl.l
ined ~-~-~
Use at t.H4 &. fl.9, 16. In this regard, we note onceagairtlhat the CrA has "infurmeaus that the int~rrogatlOl1
techniques at issue woltld not be used during a course ofexlended sleep depriYationwlth suchfrequeocy and
intensity as to induce in the deL1inee a persistent condition of exrreme physica14istress such as m;ly constitute
severe physical suffering. ..· fd. at 16,
I

TOP~~TI

This category comprises the foUoVt'ing techniques: insult (facial) slap, abdominal slap, facial
hold, and attention grasp, Seef!ackground Paper at 5; see also Techniques at 8,-9 (d~ilcribing
these techniques), III In tbe facial hold technique, for example, the interrogator uses hIS hands to
immobillze
detainee's head, The interrogator's fingers are kept closely together and away
fronl the detainee's
See Pre-Academic Laboratory (pREAL) Operating Instructions at 19
("PREALManuaf'). The technique instills fear and apprehension with minimal physical force.
Indeed, each ofthese techniques entails only mild uses of force and does not cause any
significant pain Of any lasting harm. See BackgroundPaper at 5-7.

3. Coercive te(J}utiques
Coercive techniques "place the detainee, in more physical and psychological 'stress" than
the other techniques and are generally "considered to be more effective tools in persuading a
resistant [detainee] to participate \\>1th CIA interrogators," BackgroundPaper at 7. These
techniques are typically not used liiimuHaneously. The Background Paper lists walling, water
dousing, stress positions, waH standing, and cramped confinement in this category, We will also
treat the waterboard as a coercive technique,
WalHng is performed by placing the detainee against what seems to be a normal waH but
i,s in fact a ftexibleJalse wall. See Techniques at 8. The interrogator pulls the de.tainee towards
him and then quickly slams the detainee against the false walL The false wall is designed; and a
c""Collaror similar device is used, to help avoid whiplash or similar injury. See id, Thetechnique
is designed to create a loud sound and to shock the detainee without causing significant pain.
The CIA r~gards walling as "one of the most effective interrogation techniques because it wears
down the (detainee] physically, heightens uncertainty in the detainee about what the interrogator
may do to him, and creates a sense of dread when the detainee) knows he is about to be walled
again" Background Paper at 7.A detainee "may be 1-valled one time (one impact with the 'rvall)
to make a point or twenty to thirty times consecutively when the interrogator requires a more
significant response to a question," and "will be waHed multiple times" during a session
designed to be intense, ld. At no time, bov'/ever, is the techni9ue employed in such a way that
could cause severe physical pain, See Techniques at n n.38. 1

r

In the wat~r duusing technique, potable cold water is poured on the detainee either fmma
container or a hosev.~tho\1t a nozzle, Ambient air temperatures are kept above 64"F. The

--------_.-10

N;. noled

in our previous opinions, the slap tech.mquesafC not usp,A in a way that could cause seyere

pairt See, e.g., lechniques at g·9, 33 & n.39; Combined Use at 11,
!I

-

Although walling "wears down the [del'linecj physiwlJy. ~ Background Paper at 7, and undoubtedly may

--.::===~art1~j,mdV<!J!nctQt~m41l:!a1dt:is.JlQtcSi.gnifu;an1ly.;;p.alnfub:dJ:le.~:£lex:iblda4e:w;ili~igned4g::=:.::c:::..~ ..-._.. ."..:..:::,
create a loud sound. when the indiyidual h..its it and thus 10 cause shock a..1dsurprise, See Combined Use at 6 !lA,

_'._m_,.

_~ __ El,P!,=Ll,e ~~~inee' s he'~alt~ n~,~"a:e '.
. .S9 with~ !?ll.e1hoc:dQt!&~L!hat PJ9xi~£~;gill~~~~--,,-,
prevent Wh1prasti;11 IS the detunec' s oulder blades that hil tile walt and the detainee is allowed to rebonnd from
the flexible wall in order to reduce the cbances of any injury, Said' YQU have illftlrnJ.ed us that:l detainee is
expected to fed "dread" at the prospect of waning Ot.'C1'luse of the shock and surprise caUSeD by the technique and
because of the sen.se of powerlessness that <::QnJe$ from being roughly handled by the interrogators, not because the
technique causes significant pain. See id.

TOP

v~n, ........Ll

14

TO~RET
maximum permissible duration of water exposure depends on the water ternpernture~ which may
be no lower thap; 41°F and is usuaUy no lower than Soop. See id. at 10. Maximum exposure
durations have been "set at two-thirds the time at which, based on extensive medica! literature
and experience, hypothermia could be expected- to develop in healthy individuals who are
submergc<;Vlll water of the same temperature" in order to provide adequate safety margjns against
hypothenilia. Id. This tee-hnique caneasity be used in cornbination',l,'it11 other techniques and "is
intended to weaken the detainee's resistance and persuade him to cooperate with interrogators:'
!d. at 9.
Stress positions and waH standing are used to induce muscle fatigue and the attendant
discomfort See Techniques at 9 (describing tocbniques); see also PI?EALManuaf at 20
(explaining that stress positions are used "to create a distracting pressure" and "to humiliate or
insult'') The use of these techniques is "usually self-limiting in that temporary muscle fatigue
u5l1aHy leads to the [detainee'sJ being unable to maintain the stress position after I.l. period of
time." Background Paper at 8. We understand that these te,chniques are used only to induce
temporary muscle fatigue; neither of these techniques is designed or expected to cause severe
physical pain. See Techniques at 33-34.
Cramped confinement involves placing the detainee in au uncomfortably small container.
Such confinement may last up to eight hours in. a relatively large container or up to two hours in
a smaller container. See BackgroundPaper at 8; Techniques at 9. The technique "accelerate[sJ
the physical and psychological stresses of captivity." PREALManual at 22 In OMS's view,
however, cramped con.l:1neillcnt "ha(s] notprovcd particularly effective" because it provides "a
safehaven offering respite from interrogation." OAfS Guidelines at 16.
The waterboardis generally considered to be "the most traumatic of the enhanced
interrogation techniques," td. at 17, a conclusion with which \ve have readtly agreed, see
Techniques at 41. In this technique) the detainee is placed face-up on a gurney with his head
inclIned do\vnward. A cloth is placed overhis face on which cold water is then poured for
periods of at most 40 seconds. This creates a barrie/' through whicb it is either difficult or
impossible to breathe. The technique thereby "induce[s] a.sensation of drowning." Id. at 13.
The waterbO?J'd may be authorized for, at most, one 30-day period, during \vhich the technique
can actually be applied on no more than f i '
.
cribing, in detail, these and
additiol1allimitations); sec also Letter fro
ASsociate General Counsel,
Central Intelligence Agency, toDan Levi
tan! Attorney General, Office ofLegal
Counsel at I (Aug:. 19, 20(4) ("August 1
elleT
Further, there can be no more than
rno sessions in any 24-hour period. Each session-the time during which the detainee is
strapped to the waterhoard-Jasts no more than two nours. There may be at most six
appll cations of water lasting 10 seconds or longer during any session: and ',.'later may be applied

='.':;:;;;.'-="='"

-~~=. =.='"=-=tfor atoful~ofi1r5':moreilffin~Tmnure£l1ulingimf1iFH6jjrp~6fiW7W8fmtquesiff;f':=-:·=-=--=-=·-==··

···-'~-=~~~·~~~ravei;.:qnal~'ffiese'1rmrrai!6nS

nav'eoecrresratj1.fS11'&t=wi11re~lnpuf

from· ~.-. "".,.,.--

01v1S, based on experience to date with this technique and OMS's professIonal judgment that the
health risks associated vvith use of the waterboard on a healthy individual subject to these
limitations would be' medically acceptable.''' Jd. at 14 (citing OMS Guidelines at 18-19). III
addition, although the waterboard induces fear and panic, it is not painful. See id. at 13.

~ORN
15

TOPS~T
II.

We conclude, first. that the CIA interrogation program does not implicate United States
obHgations under Article 16 ofthe CAT because Article 16 has limited geographic srope. Byits
terms, Article 16 places!lo obligations on a State Party outside "territory under its juris'diction."
The ordinary meaning afthe phrase, the llseofthe phrase elsewhere ill the CAT, and the
negotiating history of the CAT demonstrate that the phrase "territory under its jurisdiction" is
be.st unde:rstoodas including, at most, areas where a State exercises temtory·based jurisdiction;
that is, areas over which the State exercises at least de facto authority as the government. As we
explain below, based on CIA assurances, we understand that the Interrogations conducted by the
CIA do not take place any "territoryunder [United St?1esJ jurisdiction" within the meaning of
Artide 16. We therefore conclude that the CIA interrogation program does not violate the
obligations set forth in Article 16.
Ap.art from the term~ of Article 16 as stated in the CAT: the United States undertook its
obligationstmder the CAT subject to a Senate reservation that provides: "[T}he United States
considers itself bound by the obligation under Article 16 ... only insofar as the term 'croel,
inhuman or degrading treatment or punishment' means the crucl. unusual and inhumane
treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the
Constitution of the United States," There is a strong argument that in requiring this reservation,'
the Senate intended to limit United States obligations under Article 16 to the existing obtigations
already imposed by these Amendments. These Amendments r.a.ve been construed by the courts
not to extend protections to aliens outside the United States. The CIA has also assured us that
the interrogation techniques are not used within the United States ot agitinst United States
persons, illcluding both U.S. citizens and lawrul permanent resident aliens

A.
"[W]e begin with the text of the treaty and the context in which the written words are
v. Floyd, 499 U.S. 530, 534 (991) (quotation marks ornitted). See
also Vienna Convention on the Law of TreaUes, May 23, 1969, art J1(1), 1155 U.N.T.8 331,
340 (1980}("A treaty shall be interpreted in good faith in accordanoe with the ordinary meaning
to be given rothe terms of the treaty in their context and Inligbt ofits object andpufpose.,,).12
Article 16 states that ''(eJach State Party shall undedake to prevent in cmy territory tmder its
jurisdictio;l.othet acts of cruel, inhuman or degrading treatment or punishment which do not
amount to torture." CAT Art. 16(1) (emphasis added).13 This territoriallimitatioll is confirmed
used." E:Istem Airlines,

11

~"""""
_ _ _.n>"'--_._"

..

."!!

TIle United States is not a party to the Vienna Cotwen!Jon and is therefore 110t bound by it.

r{~erfu..£~......P;rtis:~) l.a)~~~r~2i§ 0J1.tyxtuaL3nalpi.s..r~~.inl emal.io.n3.1.in~rctiJ:e.p-~ctir;:e,.,~T4,gi';::':=:'-:::':--:::::" =~:::::

ltlli:101fBe~ Interpretation lnfutemauonal Law," in 2 Encyclopedia o(Puhfic1nremationa! Law 1416, 1420
(1995) ("According to the prevailing opinion the starting point in wy IIcaty:intcrpretation is tllc trc3ty text a.1.d the

-'~~·-""·'~'~"-=n(}m13J'OT"'(jrd1m\l),nemUllg--ofjtsTC1'!lfS-;"r~"~·-""-"·"·"'$

13

...

. ~.=. ',""'"_.~'~''' _ ._ .~~~~ .. "'~- .."..... '""~_.'".~~-"-'_ ......".~--'"-_ ..

PJtjdc 16(1) provides in full:

Each State party undert..akcs 10 prevent in allY territory under its jurisdiction other acts of crud,
inlu..unan or degrdding treatment or ptmislunent which do not ll.lnounl to torture as defined En

16

TOP~CRET
by Article

exptication ofthis basic obligation: "In particular, the obligations contained in

artides 10, i 1, 12 and 13 shaH apply with the substitution for references to tocture ofreferences
to other forms of cruel, inhuman or degrading treatment or punishment" Id Articles 11 through
13 impose on each State Party certain specific obligations, each of which is expressly limite.d to
"territory under jurisdiction." See infra pp. 18~19 (describing requirements). Although
Article 10, which as incorporated in Article liS requires each State party to "ensure that
education and information regarding the prohibition" against crne~ inhuman~ or degrading
treatment or punishment is given to specified government personnet, does not expressly limit its
obligation to <tterritory under [eaoh State'sJjudsdiction," Article lO'sreference tothe
"prohibition" against such treafrnentorpunish,ment can only be understqoG to refer to the
territorially limiteq obligation set forth in Article 16,
The obligations imposed by the CAT are thus more limited with respect to' cruel,
inh.uman, or degrading treattnent or punishment than "with respect to torture. To be sure, Article
2, like Article
imposes an obligation on each State Party to prevent torture "in any territory
under its jurisdiction.nArtide 4(1), however, separately requires each State Party to "ensure that
aU acts oftorture are offenses under its criminal law." (Emphasis added.) The CAT imposes no
analogous requirement with respect to cruel, inhuman, or degrading treatment or punishment. H
Because the CAT does not define the phrase "territory under its jurisdiction," we tum to
the dictiona.ry definitions ofthe relevant terms. See OfympkAinvays v. Husain, 540U,S, 644,
654~55 (2004}(dra\ving on dictionary definitions in interpreting a treaty); Sale v. Hai#cm
Centers Council, Inc" 509 U.S, iSS, 180.81 (1993) (same). Common dictionary definitions of
"jurisdiction" indude"[tlhe right and power to interpret and apply tbe law£; a]uthority or
control(; and tlhe territorial range of authority or control" A.merican Heritage Dictionary 711
(1973); American Heritage Dictionary 978 (3d cd. 1992) (same definitions); see also Black's
Law Dictionary 766 (5th eo. 1979) ("[a]reas of authority") Common dictionary definitions of
"territory" include "[a]n area of lanar; or tJhe land a.nd ,vaters under the jurisdiction of a state,
nation, or sovereign." American Heritage Dictionary at 1329 (1973); American Heritage
Dictionary at 1854 (3d ed. 1992) (same); see also Black's Lmv Dictionary at 1321 ("A part ofa
country separated from the rest, and sUbject to a particular jurisdiction. Geographical area under
the jurisdiction of another counttyor sovereign powee"); Blac}c's LawDictiOrtary at15 12 (8th
ed. 2004) ("[aJ geographical
inducted within a particular government's jurisdiction; the
portion ofthe earth's surface that 15114 a state's exclusive possession a.mi control"). Taking these
article I, when such acts are Comrnitt~ by Of at the instigation of or 1&lththe oonsent or
acquiescence of a puhlic official or other person aq,illg in an official capacity, In partiC\llar, tIle
obligations conlained in "moles lO, 11, 12 and 13 shall apply wIth the S'Jbstitutionfot rcfereuoes
to torture of references to oilier forms of mel, inhuman or degrading treatment or punishment.
exoCj:i!.iiorr.al cirCUIllStanccs whatsoever, whether

_.

~~

__~_~:~:~~~~~~:~~~~~;~~r~~nth~'~~~

'I,

ora'~~~ua
&~grndIn7"U:;"'imeni ~-=,=.~~" ••._-

or punislt.rncIlL Because we conclud.e !.ha.t the etA. interrogation program does not implicate United States
obligations under Article 16 and that the program would conform to United Smtes obligations under ArtiCle l6 even
if that provision did apply, we Deed not conside.r whether tllC absence of a provision ar..alogous to Article 2(2)
implies that State Parties could derogate from thcir obligations under A..'lide 16 in eX!.notdinruy circumstances.

17

TO~RET

/'

o/ORN

definitions together, we conclude that the most plausible meaning of the tenn "territory under its
jurisdiction" is the [and over \vruch a State exercises authority and control as the government.
Cf Rasul H Bush, 124 S. Ct. 2686, 2696 (2004) (concluding that "the territorial jurisdiction of
the United States" subsumes areas over which "the OoiLed States exerdses complete jurisdiction
and control") (interna] quotation marks omitted); Cunard Ss. Co. v.Melton, 262 US, 100, 123
(I923) ("It now is settled in the United States and reco~zed elsewhere tl1at the territory subject
to its jurlsdiction includes the land'areas under its dominion and oontroirT),
This understanding ofthe phrase "territory under its jurisdiction" is confirmed by the way
the pm-ase is used in
provisions throughout the CAT. See Air France v. Saks, 470 U.S.
392,398 (1985) (treaty drafters "logically would ... useD the same word in each article" when
they intend to convey the same meaning throughout); r Herrhan Burgers & Hans Danelius, The
United Nations Convention Against Torture: A Handbook on the Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment 53 (1988) ("CAT
Handbook') (noting that
was agreed that the phrase 'territory under its jurisdiction' had the
same meaning" indit1:erent articles of the CAT).
For example, Astide 5 provides:

Each State Party shall take such measures as may be necessary to estabflsh its
jurisdiction oVer the offences referred to inartkle 4' (requiring each State Party to
criminaHze all acts of torture] in the following cases:

\\inen the offences are committed in any territory under its jurisdiction or on
board a ship or aircraft registered in that State;

(a)

(b) \:V'hen the alleged offender is a national ofthat State;
(c) \\711eo the victim is a national oftlJat State
appropriate.

considers it

CAT
5(1) (emphasis added). The CAT therehy distinguishes jurisdiction based on territory
from jurisdiction based on the nationality of elthenb,e victim or the perpetrator-Paragraph (a)
also distinguish¢s jurisdiction based on territory from jurisdiction based on registry of ships and
aircraft. To read the phrase "territory under its jurisdiction" to subsume these other types of
jurisdiction would e1imimrte these distinctions and render most of Article 5 surplusage. Each of
Article 5'(; provisions, however, "like all the other words of the treaty, is to be given a meaning,
if reasonably possible, and rules of construction may not he resorted to to render it meaningless
"

n

_ _=_=~c~~=."~1<:£.tic!e~
.. th rougllJ.2.. EKJrl?Qyer,l:!g: t~hrase, '~~rrim!1. under:jt~jlJrL~.~li.Q1iQ..u::~,~._~~_=

that presuppose thattne relevant State exercises the traditiot!'aJ authorities ofthe government in
such areas. Article 11 requires each State to "keep under systematic review ... arrangements for
~be custody and treatment
persons subjected to ~y form of arrest, detention or imprisonment
m any territory under its jurisdiction" .Article 12 mandates that "[ e]ach State Party shall ensure
that its competent authorities proceed to a prompt and impartial investigation., wherever there is

Top~r

RN
18

TO
reasonaOle ground to believe that an act of torture has been committed in any territory under its:
jurisdiction." Similarly, Article 13 requires "[e)ach State Party [to] ensure that any individual
who alleges he has been subjected to torture in any territory under its jurisdiction has the right to
complain to, and to have his case promptly and impartialiyexaminedby, its competent
authorities." These provisions <is~um e that the relevant Stateex-ercises traditional governmental
authority-including the authority to arres~ detain, imprison, and investigate crime-within any
"territory under its jurisdiction."
other provisions underscore this point. Article 20) requires each State Party to
"take effective legislative, administrative, judicial or other measures to prevent such acts of
torture in
territory under its jurisdiction." "Territory under its jurisdiction," therefore, is
illDst reasonably read to refer to areas over which States exercise broad governmental
authority-the areas over whlch States could take legislative, administrative, or judicial action.
Article 5(2), moreover, enjoins H[e]ach State Party.. toestabJish its jurisdiction over sucb
offences in cases where tbeaHegoo offender is present in a.ny territory under its jurisdiction and
it does not extradite hIm." Article 7(1) similarly requires
.Parties to extradite suspects or
them to "competent authorities for the purpose of prosecution." These provisions evidently
contemplate that each State Party has authority to extradite and prosocute those suspected of
torture in any "territory under its jurisdiction." That ls,cach State Party is expected to operate as
the government in "territory under its jurisdiction."lS.
This understanding is supported by the negotiating record. SeeZicnerman v. Korean Atr
Lines Co., 516 U.S. 7,226 (1996) ("Because a treaty ratified by the United States is not only
the law of this land, see U.S. Const., Art. II, § 2, but also an agreement among sovereign powers,
we have traditionally considered as aids to its interpretation the negotiating and drafting history
Vienna Convention on the Law of Treaties, art. 32 (permitting recourse to "the
preparatory work
and the circumstances ofits conclusion" inter alia "to confirm"
the ordinary meaning aftlle text). The original Swedish proposal, \vJuch was the basis for the
first draft of the CAT, contained a predecessor to Article 16 that would have required that
"[e]ach State Party undertake[) to ensure that (a proscribed actl does not take place withill its
jurisdiction" Draft International Convention Against Tonure and Other Cruel, Inhuman or
Degrading Treatment or Punishment, submitted by Sweden on lanuary 18, 1978, arts. :2.;3,
EJCNA/1285, in (J1T Handbook app. 6, at 203 (emphasis added); CAT Handbook at 47. Franoe
objected that the phrase "within Its jurisdiction" was too broad. For ex:ample,it was concerned
thilt the phrase might extend. to signatories' citizens located in territory belongirigto other
nations. See Report ofthe Pre-Sessicma! Worldng Group, E/CNA/L.14'70 (1979), reprinted in
IJ Artide 6 may suggest an intcqiretation of the phrase "territory uncler lts juris-diction" !hat is potentially
·...hr.g:pEfcl~E:91l.iJ1no.lJ.:~lIwJf..:1~.::-AttiG!~ireG1sca:S~)~h~etri~:"":
...~·~=:::,:==·~·······~
alleged to fhwe cOl11mllied (certain offenses) is present' to take the susp<xted offender into custody. (Emphases
added.) The use aftile word "territory" in Article 6 rather than dIe I'
. . ,
...."..=.....-.
_····_-~"'1!:m'titeTeffilS1raVe-lfi5tlnctTnearmjgs.~cror;··2~"1J1t
tlng iliat treaty language should not be
construed to render cenain phrases "meaningless or inoperative"). A!1ide 6 may thus ~pport the position,
dl$CUsseQ ~IQw, that "territory ul1derits jurisdiction" may extend beyond sovereign temtory to encompass areas
where a State exercises de fiJ·:;t.o authority as the govemmen~ such as {KMJpiedtemtory. See infrd p. 20. Article 20,
which refers to "the territory of a State Party" may support the same inference.

-~-=_

.

·····m

a

/

/'

TOP;1!CRET

iC*'ORN
/

19

TOP
Report ofthe Unite4NationsCommission on Human Rights, EICNA/134135, 40 (1979); CAT
Handbook at
Although France suggested replacing Hwithin its jurisdiction" with "in its
territory," the phrase "'any territory under itsjurisdictioll" was chosen instead. See CAT
Handbook at 48.

There is some evi dence that the United States understood these phrases to mean
essentially
thing. See, e.g., Exec. Report 101~30, 101st Cong,! 2d Sess.! 23-24
(Aug. 30, 1990) (Senate Foreign Relations Commtttee Report) (sugga.~ing that the phrase "ill
any territory under its jurisdiction" would impose obligaJions on a State Party with resped to
conduct committed "in its territorY' but not with respect to conduct "occurring abroad");
Conv~ntionAgainst Torture: Hearing Before: the Committee on Foreign Relations, United States
Senate, S. Hrg. Wl-71 13 at 7 (Jart 30, 1990) (prepared statement ofHon. Abrabam D. Sofaer,
Legal Adviser, Depalintent ofState) (stating that under Article 2, State Parties would be
obligated "to
administrative, judicial or other measures to prevent torture within their
territory") (emphasis added) Other evidc!lCe, however, suggests that the phrase {{territory under
its jurisdiction" has a somewhat broader meaning than "in its territory." According to the record
of the negotiation relating to Articles 12 and 13 ofthe CAT, "[i}o response to the question 011 the
scope oftIle phrase 'territory under its jurisdiction' a.s contained in these articles, it was said that
it was intended to cover, inter alia, territories still under colonial rule and occupied territory."
U.N. Doc. E/CNAI1367,
5, 1980, at n. And one commentator has stated that the
negotiating record suggests that the phrase "territory under its Jurisdiction" His not limited to a
State's land territory, its territorial sea and the airspace over its jand
sea territory, but it also
applies to territories lmdcr miHtar}' occupation, to colonia! ferritoriesand to any other territories
over which a State has factual control." M at 131. Others have suggested that the phrase would
also reach conductoccuning 011 ships and aircmft registered in a State, See CA T Handhook <it
48; Message from the President ofthe United States Transmitting theCof1vention Against
Torture and Other Cruel, Inhuman ot Degrading Treato1ent orPunishrnent, S. Treaty Doc. No.
100-20, at 5 (1
(Secretary of State Schultz) (asserting that "territQry under its jurisdiction"
"refers to all places that the State Party controls as a governmental authority, including ships and
aircraft registered in that State,,).t6
,
Thus, although portions oftne negotiating record oEthe CAT may support reading the
phrase "any territory under its jurisdiction" to include not only sovereign territory but a1soareas
subject to de facto government authority (and perhaps registered ships and aircraft), the
negotiating record as a whole tends to confirm that the phrase doe,s notex'tend to places where aState
does not exercise authority as the government.
The CIA has assured us that the interrogations at issue here do not take place within the
_ = _=.,~~:~rei~n£~l2i~~!yors!J~~iallef:!:!!Ln..leand t,9.rr.itoriaJ i!:llill!ifJjQQj:~M'Tr).oftb.YJllli~,~~llF~."_",.....,...
--.~ .._-- ---Seel Eu:S:C1) C
GC1i11T'ri if"'OiiiTedS'tates");7a:-§'i'(Ocl1nfiigS'&rrJ). As rei evallthere,we-"
--=-~-'="'<""::'~~"""""<=;;""1t""~~~~--":=~"

,.---, "..~:==-"=~'~~=-'~-=-=-=-=-:=«_~""~.

This suggestion is in tension withilietext of Article 5(1)(a), which seems to distinguisll "territory under
fa SUte's] jurisdiction" from "shipfsl or aircraft registered in that Slate." See Chan v. Korean Air Lines, lid., 490
U.S. 122, 134 n.5 (1989) (noting tltatwbere treaty text is nat perfectly
"ll:l(tiral meaning" ofthe text "could
properly be contradicted only by clear drafting history''). Because the CIA has llssured us that its interrogations do
no! take place on ships or aircraft registered in the United States, we need not resolve this issue here.
/'

TOP~RET
10

TOP SJtClRETI

believe that the phrase "any territory underitsjurisdietlon" certainly reaches no further than the
sovereign territory and the S~ITI ofthe United States. 11 Indeed, in many respects, it probably
does not reach this
Although many provisions oftheS1YffT invoke territorial bases of
jurisdiction, other pn:rvisions .assert jurisdiction Ott other grounds,including, for e(':ample,
sections 7(5) through 7(9), which assert jurisdiction over cert\l.in offenses committed by or
against United States citizens. AccoroinglY, we conclude that the interrogation program does not
take place witbin "territory under (United States] jurisdictionn and therefore does not violate·
Article 16-everl
the Senate's reservat~on limiting United States.obllgations under Article
16, which we discuss in the next section.

As a condition to its advice and consent to the ratification of the CAT, the Senate
required a reservatitm that provides that the United States is
bound by the obligation under Article 16 to prevent "cruel, inhuman or degrading
treatment or punishment," only insofar as the term "cruel, inhuman or degrading
treatment orpui1ishment" means the cruel, unusual and inhumane treatment or
punishrncntprohibited by the Fifth, Eighth, andlor Fourteenth Amendments to the
Constitution ofthe United States.

Congo Rec. 36,198(1990). This reservation, which the United States deposited with lts
instrument ofratifi.zation, is legally binding and defines the scope ofUnited States obligations
under Article 16 ofthe CAT. See RelevClllce ofSe.nate Ratification History to Treaty
Interpretation, 11
OL.e. 28, 33 (1981) (Reservations deposited with the instrument of
ratification "are generally binding ... both internationally and domestically ... in ... subsequent
interpretation of the treaty. ,,).18

Under the terms of the reservation, the United States is obligated to prevent "cruel,
inhuman or degrading treatment" only to the extent that such treatment amounts to "the cruel,
um.lsuai and inhumane treatment· or punishment prohibited the
Eighth, and/or
:Fourteenth Amendments." Giving forc;c to the temts ofthis reservation, treatment thaj. is not

17 As we hav<l explained, there is an argument Ul.3t "territory under [a Stat<l'sj jurisdiction" might also
include occupied territory. ACtXlrdihgly, alleast absent the Senate's rcse.rvation, Artide 16's obligations might
extend to oo.."1.lpied territory Because the United States is not currently an occupying power within the meaning of
the laws ofwarw)'Wherc in the worJd, we need not decide whether occupied terriwry is "territory under [United
States! jurisdictiQn."

l.t "The Sermte'$ right to ~u.aIDy its C<Jusentto ratification by reservations, afll'mdmen!S and interpretations
1m!' C$!@I}fu;~lhm~L.l:.OJ:h~ty~U.:J9.4;.Qum~V.~~t1t~f~metiearr.{7O:l"eigrt""-.-=---=,=

Relations 253 (1921), tll1dll:lS lieen frequently exercised since then. The Supreme Court has indicated its acceptance

of this practice. &e Haver v, Yaker,76 U.S. (9 Wall.) 32, 35 (1869); UnitedStcfes V. SChOONer Peggy, 5 U.S. (l
Cran.ch) Hl3, HI? (I 801). See also Constitutionality a/Proposed Conditions.to Senafe Consent to the Interim
ConveNtiOn on the Conservation afNorth Pacific FurSea{s, [0 Op_ O.L.C 12, 16 (1986) ("mhe Senate's practice
of conditioning its consent to particular treaties is well-established").

21

"prohibited by" these amendments would not violate United States obligations as limited by the
reservation.
Conceivably, one might read the text of the reservation as limiting only the substantive
(as opposed to the temtorial) reach ofUnited States obligations under Article 16. That would
not be all unreasonable reading ofthe text. Under this view, the reservation replaced only the
phrase "cruel, inhuman or degrading treatment orpunisrunent"and left untouched the phrase "in
any territory under its jurisdiction." which defines the geographic scope aftne Article. The te.'{t
oftne reservation, however, is susceptible to another reasonable reading........-oResuggesting that
the Senate intended to ensure that the United States\1wuld, with respect to Article 16, undertake
no obligations not already imposed by the Constitucioh
Under tlus reading, the reference
to the treatment or punishment prohibited by the constitutional proVisions does not distinguish
between the substantive scope ofthe cons.titutional proh1bitions and their geographic scope. As
we discuss below, this second reading is strongly supported by the Senate's ratification history of
the CAT.
The Summary and Analysis oftile CAT submitted by the President to the Senate in 1988
expressed concem that '~Article 16 is arguably broader than existing U.S. law." Summary and
Analysis of the Convention Against Torture and Other
Inhu.man or Degrading Treatment
or Punishment,
Doc. No, 1.00-20, at 15. "In viel\' the ambiguity ofthe terms." the
Executive Branch suggested "that U.S. obligations under this article [.i\rtide16] should be
limited to conduct prohibited by the u.s. Cohstitution." S. Exec. Rep. NQ. 10I~30, at8 (l990}
(emphasis added); see also id. at 25-26. Accordingly, it proposed \vlwt became tbe Senate's
reservation in order "[1]0 make dear that the United States construes the phrase ["cruel, inhuman
or degrading treatment or punishment"] to be coextensive with its constitutional guarantees
against cruel, unusual, and inhumane treatment!' Id. at 25.26; S. Treaty Doc. No_ 100-20, at 15
(same). As State Department Legal Adviser Abraham D. SofaerelCplained, "because the
Constitution of the United States directly addresses this area of the law ... [the reservation J
would limit our obligations underthisCotlventiotl to the proscriptions already covere<;i in our
Constitution." COt/vention Against Torture: Hearing Before the Senate Comm. on Foreif!ll
Relations, lOIst Congo II (1990) (prepared statement), The Senate Foreign Relations
Committee expressed the same concem about the potential scope Article 16 and
recommended
same reservation to the Senate. See S.
Rep.
101<30, at 8, 25-2.6.

of

Furthermore,
Senate dedaredthat Articles 1 through 16 offhe CAT are not selfexecuting, see Congo Rec. 36,198 (1990), and the discussions surrounding this declaration in the
ratification history also indicate that the United States did not intend to undertake any obligations
under Article 16
extended beyond thosealrcady imposed by the Constitution. The
Administration expressed the view that "as indicated in the ~_:,,:'''''''
o[igin·a.l Presidential
transmittalJ.; _ ' _ '__ A,..,.,..."".......",_~~;""'"'-vp,
'--extsttlJIr~'e7a1UnG·Srat"e1aw appe.ars surncrentlo'implemenrTIie Convention/' except that "new
federal legislation \vouJd be requiredon{y to establish crhninal jf{risdiction under Article 5."
"';;n',

,"'"

__. " . ' .

, ' ,

' ..

"",','

":','.'

".,

,.'

'

__

__

-_·_,_·~-=·-t'etterfur~1l'attf('Pre"Ssf~l1et·l'Vlulrms:ASs~ecretaT)i;

.:'<

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

l..cglSlaiive Affairs;~~--=--=-

Department
(April 4, i990), in S. Exec. Itep. No. 101·30, at 41 (emphasis added). It was
understood that
majority of the obligations to be undertaken by the United States pursuant to
the Convention rwereJ alre.ady covered by existing law" and
"additional implementing
legiSlation Lwould] be needed only with respect to article 5." S. Exec, Rep, No. 10 i -30, at to

TOP~T
22

TO~RET
(

1

(emphasis added). Congress then enacted 18 US,C, §§ 2340..2l49A, the only "necessary
legislation to implement" United States obligations under the CAT, .noting that the United States
would «not beoome a party to the Convention until the.ne.c,essary implementing legislation is
enacted." S.
No. 103·107, at 366 (1993). Resding Artiole 16 to extend the substantive
standards oftne Constitution in contexts where
did not already apply would be difficult to
square with the evident understanding of the United States that existing law would satisfy its
obligations under the CAT ex.cept with respect to Article 5, The retification history thus strongly
supports
view that United States obligations under Article were intended to reach no
further~substantively, territorially, or in any other respect-than its obligations under the Fifth,
Eighth,aud Fourteenth Amendments,
The Supreme COUit has repeatedly suggested in various oonte>;,ts that the Constitution
docs not apply to aliens outside the United States. See, e.g" United States Y. Belmont; 301 U.S,
324, 332 (1937) ("(O}ur Constitution. laws, and policies
extraterritorial operation, unless
in respect of our Q\.'l11 citizens,"); United States v. Curtiss-W"jght Export Corp" 299 U.S, 304,
3113 (1936) ("Neither the Constitution nor the laws passed in pursuance ofit have any force in
foreign territory unless respect of our ovmchizens , . , "); see also United States v. VerdugoUrquidez, 494 U.S. 259, 211 tI 990) (noting that cases relied upon by an allen asserting
.
constitutional rights "establish only that aliens receive constitutional protections when they have
come withil1 the territory aftne United States and developed substantial connections with this
country").
courts of appeals, in turn, have held that"[tJhe Constitution does not extend.
its gu arantees t.o nonresident aliens Hving outside the United States," Vancouver Women's
Health Collective
Y iI. A.H. Robins Co., 820}<'.20 1359,1363 (4th Cit. 1987); that "nonresident aliens ... plainly cannot appe.al to the protection oftbe Constitution Of laws of the
United States," Fauling v, McElro~', 278F.1d 252,254
(D.C. Cif. 1960) (per curiam); and
that a "foreign
without property O[ presence in this CDuntry bas no constitutional rights,
under the due
c,lause or othernise;' 32 County Sovereign{y Comtn v. Dep" ofState, 292
F.Jd 797, 799 (D.C. Cir, 2002l (quoting People 's
Org. (,,:1Iran v, Dep't olState, 182
FJd 17,22 (D,C.

1999»),9

As \ve explain beto\'1, it is the Fifth Amendment tbat is potentially relevant in the present
context. With
to that Amendment, theSuprcrne COLlrt has "rejected the claim that aliens
are entitled
Amendment rights outside the sovereign territory oftbe United States:'
Verdugo-Urquidez, 494 U.S. at 269, In Verdugo-Urquidez, 494 U.S. at 2159, the Court noted its
"emphatic"
ofe>cttaterritoriaI application ofthe Fifth Amendment" in Johnson v,
Eisentrager, 339 U.S. 163 (1950), which rejectedH[tlhe doctrine that the term 'any person' iatbe
Fifth Amenchnent
protection overalicn enemies anywhere in the world engaged in
hostilities against us," id. at
Accord Zadvydas v, DaVis, 533 U,S, 678, 693 (20Ql}(citing
Verdugo-Urquidez ... Eisentrager . . Dotingtllut "[ilt .isweH established that" Fifth..
.
=----'·~"A'rnenaffierrfpF01ecnons~"afetfria\>allaEre to alTe"i1TOUE1<rC:ofow'geographic borders"). Federal -~
19 'Inc Restatement (Third) of Foreign Relations Law asserts that
the roatl.er has not been
authoritatively adjudic",ted, at least some actions by the United States in respect to fordell nationals outside the
country
also subject to constilutiona1limillltions." !d. § 722, emt. m, Tl1is statement is contrary to the
authorltiescitcd in !lIe text

23

courts ofappeals have similarly held that "non·residentaltens who have insufficient contacts
with
United
are not entitled to Fifth Amendment protections." Jtfry v. F.A.A., 370
F.3d H14, 1182(D,C. Cir. 2004}; see also Horbury V, Deutch, 233 FJd 596, 604{D.C. Cit
2000) (relying on Eisentrager and VeraugtJ.-Urquich to' conclude that arr alien,could not state a
due process claim for torture allegedly inflicted by United States agents abroad), rev 'd ON other
grounds sub !lom. Christopher v. Harbury, 536 U.S, 403 (2002); CubanAm. Bar Ass~n, Inc. v.
Christopher,43 FJd 1412, 1428-'29 (1 lth Cir. 1995) (relying on Eisentrager and VerdugoUrquidez to wnclude that
held at Guantanamo Bay lack Fifth Amendmentrights).:'Hl
required by the Senate as a condition of its advice and consent to the
ratification of the
thus tends to confirm the territoriaHy
reach ofU.S. obligations
under
16.. Inde.ed, there is a strong argument that, by limiting United States obligations
under Article 16 to
that certain provis.ions ofille Constitution already impose, the Senate's
reservation limits
territorial reach of Article 16 even more sharply than does the text of
Article 16 standing alone. Under
view, Article 16 would impose 110 obligations with respect
I'p(,pn,,·'Ifi.An

2(l TIle Court's decision in Ramfv. Bush, 124 S. Ct 2686 (2004), is not to the C{Jiltrary. To be sure, \he
Court stated in a fQ0UlOle that:

Petitioners' allegation.s~t, although they have engaged neither in combat nor in acts of
terrorism against t.he Ul1itedStztes. they 112\'e becnhdd inE.'l.ccutive detention for morc than tW9
yeam interritorysubjed to thelong-tenn, exdlJSive jurisdiction and control of:tlleUnited States,
WmlQl.ll access to counsel and without being charged 'with any wrong4oing-unquesUonably
describe
in violation ofth~ Constlttlllon or laws Of tre.aties ofthe United Stat¢s,"
Jd. at 269& n,15. Webe[ievc this foomer!e is best1mdcrstood to
settled understanding of the
Fifth Amendment.
the CQurt limited its holding to the issue before it whether the fClieral courts have
statIttoryjurisdidion
petitions brought by such. aliens hdd at GU2.nti!Iklmo llSene,l11y combatants, See
fd. at 2699 ("Whether and what furtherprO¢.Cedings rnaybecome necessary ... arern:l.tters ti13t.we need not ad.dress
now, \'Vbat is presentIyat sta.l<;e is only whetllet theJederalcouns have jurisdiction to detennine the legality of the
Ex:W1Jive's potentially indefinite detention of individuals woo claim to b0 \'ikolly in.'1e<::ent of 'ovrongdoing."),
Indeed, the Court granted the petition for writ of certiorari "limited to the follOWing Question: v,'he\her United
States courts lack jurisdiction to consider d12iJenges (·0 the legalil')' of the detenuollcfforcigunaliona)$ captured
abroad in connection with hostillties and inC<'lJ't;'.erated at the Gwmtmamo Bay Naval Base, Cuha," Rawl v. Blish,
540 tJ.~L 1003 (20Q3),

Second, the footnote relies on a portion of Justice Kennedy's, concurrence in VerdlJgo~Urqr.tidez "and the
cases ci t~ therein ," Rasuf, 124 S Ct at 1698 n.l5. In this portion ofJusUce Kennedy' 5 Verdugo-Urquidez
concurtencc; Justice-Kennedy discusses the 1l1Sular Cases. These cases stand for the proposition that although not
every provision of the Constitution applies in United States temtory overseas, certain core constitutional protections
may apply in certain ins\J1ar t"mtories of the United Slates See also, eg, Reid Y, Covert, 354 U:8. I, 74-75 (19571
(Harlan, T., concurring injudgmcnO (discussmglnsular Cases); Bolnu: v. Porto Rice, 258 U.S, 29& (l922). Given

~-~~"l:1ldnhI;U1Jtt~ltrRtJS'iit"5~~\J1'l\10·~·~{tlS1iS"TcIfilory·

and control of the Unik~

$UojecrtO:'lli§long,:.fernrcxc!uslvejUrisolcUoo···_ _··_.......

" Rami, 124 S, Ct. at 2698 11.15, in the vcry sentence that cited Justice Kennedy's

_-===~~~moce..". itiS.roI\~1..eJ1),JtiQlJJ.ll.OieJ.SIllighLtcllc.ct,At..m~illi.n~s.:tQ...GOfl$itk-r~~lef.Q:J:MG4S=-=-,_·,-"­

similar in significant respects to the territodes at
in the Insular Cascs. See elso id. at 2696 (lioting that under
the agreement with Cuba "the United States exercises complctcjurisdicuDll ar.1 contro! over tile Guantanamo Bay
Nave,! Base") (internal quotation l11Mks omitted); id. at 2700 (Kennedy, l,
(asserting that "GuantanamQ
Baris in every practical respect a Unite.d. States territorY' and expbJ1vng thatU(wlhal matters is the unchallenged
and indefinite cOhtrol that I,he United St2tes b,1S tong exercised over Guantanan1:O Bay").

24

(

aliens outside
United
21 And because the
has informed us that these techniqueS
are not authorized
use against United States persons, or within the United States, they would
not, under this view, violate A.1icie 16. Even if the reservation is read only to confirm the
territorial
in Article 16, bowever, or even if it is read not to bear on this question at
aU, the progra.m\vould still not violate Article 16 for me reasons discussed in Part ItA.
Accordingly, we need not decide
the precise effect, if any, of the Senate reservation on the
tp

geographic scope of U.S. obligations under Article 16.

22

ffi.

You have alsollsked us to consider whe.ther the CIA
program would violate
the substantive standards applicable to the United States
16 if,c<;>otrary to the
conclusions reached Part IT above, tllose sta.ndards did
to the CIA interrogation
progra.m. Pursuant to the Senate' oS reservation., the United States is bound by Article 16 to
prevent "the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth,
Eighth, and!or Fourteenth Amendments to the Constitution of the United States." As we explain,
the relevant test Is whether use ofthe CIA's enhanced interrogation techniques constitutes
government conduct thaL"shooks dlC conscience." Based on ounmderstanding of the relevant
case law and tbe CIA's descriptions ofthe interrogation program, we conclude that use ofthe
enhanced interrogation techniques, subject to all applicable conditions, limitations, and
safeguards, does not "shock: the cO.l1science." We emphasize, however, that this analysis clills for
the application
somewhat subjective test with only limited guida.nce from the Court We
therefore cannot predict withconfidenc,e whether a Court \''/0111d agree with our conclusions,
thoug.h, as discussed more fully below, we believe the interpretation of Article 16's substantive
standard is unlikely to be subject to judicial inquiry.

21 Additional flnn!ysis BUy be require.d in the case of aliens entitled to Ja\\iul permanent residen.t status.
Compare KH'ong Hoi ('hew v. Ci)fdJllg, 344 U,S. 59G (1953), with
v. United States ex reI. Met.e!, 345
U.S. 2% (1953). \'ou lmve informed us llw.t the CIA GO<:s not use U1CSC
on 1m)' United States: persons,
induding lawful permanent residents, and we do not here aooress United StntesooHgat1QllS under Article 16 with
respect (osuch aliens.

..
n Our analysis. is not affected by the rec:entctl4ctment aHne Emergency Supplem<:nta.J Appropriations Act
for Defense; tl\C Global War on TClT()l.', and Tsunami Relief, 2005, Pub; 1. No. 109·13, 119 Stat. 231 (2005).
Section 1031.(a)(1)
law provides that
[n]one
funds appropriated or olbenvise made available by this Act s1ul.ll ~ obligated or
expend<::d to subject any,lX':fson in the custody Of under iliG phySlcc.r control of the Umted Sbltes to
torture or
inhuman, or
or pu.nishment that is prohibited by the

__~_~~"....ll? S,tat,il1256 . :t3.~~.n·~!).!£~!i.Q~j)Q~j1G1Ll'(itU.l.\LQ1J.ite>i.statc.s.Jn.s~<of..J:.<ti1icatiOll,~,-.--",-~
defines United States obligations under Article 16 anne CAT, this statute does not prohibit the expenditure offunds
for conduct tml does not violate United Slates obligations under Mide 16, asl1mited by tIle Senate reservaUor..
F'urthermore, this statute itself defines ;'cruel, inhuman, or degrading treatment or punishment" as "lhe cruel,
unusual, and jrJtUmane treatment or pLtllishrncnt prohibited by lhe fillh amcndrntnt,eighth anlcl1dment, or
[ourtce.nth amendment to the COilstiU.J1.ion of the Unlted States." fd. § 103 !(b)(2).

TO~RETI
25

A.
Although, pursuant the Senate'sreservatton, United States obligations under Article 16
extend to
cruel, unusual and inhumane treatment or punishment prohibite-d by the Fifth,
Eighth, and/or Fourtyenth.Amendments.to the Constitution of the United States," only the Fifth
Amendment is potentially relevant bere. The Fourteenth Amendment provides; in relevant part:
('No State shall ... deprive any person of life, liberty, or property, withQut due process of law,"
(Emphasis added.) This Amendment does not apply to actions taken by the fedeq( Government.
See; e.g" San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 ns. 522,
542 n.21 (1987) (explaining t,ljat the Fourteenth Amendment "does not apply" to the federal
Government); Bolling v. Sharpe, 347 US. 497,498-99 (954) (noting that the Fiftll Amendment
rather than the Fourteenth Amendment applies to
taken by the District of Columbia).
TbeEignth Amendmel1tprQhibits the infliction of"cruef andunusuaJ punishments:; (Emphasis
added.)
SupremeCoult has repeatedly held, the Eighth Amendment does not apply until
there has been a formal adjudication of guilt. E.g., Bell v, Wolfish, 44111.S. 520,535 n.16
(] 979); Ingr4ham v. Wright, 430 U.s. 651, 671 nAO (l977) See also lti re Guantanamo
Detainee Cases,
F. Supp. 20 443, 480 (1}D.C. 200S) (dismissing detainees' claims based on
Eighth
because "the Eighth Amendment applies ontyaft:er ,In individual
convicted of a crime") (stayed pending appeal). The same conclusion concernin.g the limited
applicability oftlle Eighth Amendment under Article 16 was expressly recognized by the Senate
and· the Executive Branch during the CAT ratification deliberations:

is

The Eighth Amendment prohibition of cruel and
punishment is, of the
three [constitutional
cited in the Senate reserva.tion}, the most limited
in scope, as this amendment ha.s consistently been inte,rpreted as protecting only
"those convicted of crimes." Ingraham v.Wright, 430 U.S. 651, 664 (l977). The
Eighth Amendment does, however, afford protection
torture and m·
treatment of persons in prison ahd similar situations of criminal punishment.
Summary and Analysis of the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment orPunishment, in S. Treaty Doc. No. 100-20, at 9 (emphasis added).
Because the high
on whom the CIA
use enhanced interrogation techniques
ha ve not been convicted ofan}' crime, the substantive requirements of the Eighth Amendment
would not be relevant here,
if we assume that Article 16 has application to tbe CIA'.s
interrogation program,2J
-

The
however, is not
to these same limitations As potentially
relevant
U1C
.
due process component oftbe Fifth Amendment protects against
__~_~._.~ecuti:Y~ actign.Yl?~."sho~~$ th,,~C2_f!~ience, '~J!.ochin~y. Caljfortlj~142q.S. J65) 17~(1252)~~. .___'-""
see also Coun~v c1Sacrmnento Y. LClfJis, 523 U.S. 833,846 (1998) eTo this end, for haIfa
n To ~ sure. Ue.'1tn1Cnt amounling to punislm1eut (let alone, cruel and UtlU$11a.! punishment) generally
carmot be imposed on individuals woo have not lJetu COnvicted of crimes.
prohibition flows from theFlfth
AmendrnCl1trailier 111;t.'1 the Eighth. See Wolfish, 441 U.S. at 535 rd6; United States \I. Salerno, 481 U.S. 139,74641 (1987). See a{:;'o infhJ note 26.
/'

TOP%GRET
#'

26

century now-we have spoken aftne cognizable level of executive abuse of power as that which
shocks th~ conscience. "),14

B.
We must therefore determine whether the CIA interrogation program involves conduct
that"shocks the conscience." .The Court has indicated that whether government conduct can be
said to "shock
conscience" depends primarily on whether the conduct is "arbitrary in the
constitutional
" LeWis, 523 U.s. at &46 (internal quotation marks omitted); that is, whether
it amounts to
of pO'\ver without any reasonable justification in the service of a
legitimate governmental objective," id. "(CJonduct intended to injure in some way unjustifiable
by any govemmMt interest is the sort Qf official action mOst likely to rise to the conscienceshocking level," id.
although. in some cases,deliberate indifference to the risk of
inflioting slIch unjustifiable injury might also "shock the conscience/' id. at 8$Q-$1. The Court
has also suggested thatit is appropriate to considerwhether,
of"traditional executive
behavior, of contemporary practice, and ofthe standards of blame generally applied to them,"
conduct "is so egregious, so outrageous, that it may fairly be said to shock the contemporary
conscience." Id. at 847 n.B.")

Several considerations complicate our analysis.
are relatively few cases in
",111ch the
analyzed whether (xmduct"shocks
cOIlscience," and these cases involve
conte>.:'ts that differ dramaticallyftom the CIA interrogation program. Fttrther, the GOtm has
emphasized that
"no calibrated
stick" with which to determine whether. conduct
«shocks tbe conscience." ld at 847. To the wntrary: "Rules of due propess are not " . 'subject
to mechanical application in unfamiliar territory:' Id, at 850. A claim that government conduct
"shocks the c.onscienpe," therefore, requires "an exact analysi 13 of circumstances." Id. The Court
has explained:

of

24· Because yvhat is at issue l.lllder the text
the Senate reservation is the subset of"cruet, inhuman or
degrading ..
that is "tbe C!1le1, un\iSlJ.al and inhumane treatment. , . prohibited by the Firm.
AmendmcntD," we do not
that the pt\X:.Cduml aspects of thefillh Amendment are relevant, at least in the
contextof interrogation tedmiqu~s unrelatcdto fuCcrintinaijustio;; system. Nor, given tllc language of Article 16
and the merva!.i.on,.Qo
that UniLedSj.a'tesobligatiousunderthis Article inclU4¢ other tispects ofthe Fiful
AmendJ.:\lcut, such
or the various privacy rights that the SupremeGoilli h;isfoundto be
ptOtectedl;W the Due

;l$

It appears that

cor,duct is a necessary but pernaps not sufficient condition to

establishing that executive
subst2ntive due process. See U'oI'iS, 523 U.S. at 847 n:8 ("Only if tile
necessary condition of egregi{)us behavior were satisfied would there be a possibifily of recognizing a substantive
~·_··_-~·_-':tl~oe~sfi-g!;+:-lJ),be-:f~f,.sooh·'tx~ve:a~ll:;Mfl-onIY'ht'.'Lmjght-ih.e."e~a::deltate4tbout'"l.he-su.ffiereney~f~--·

_,_"~~~=.~

.

historical examples of CnfQfc-ernent oHile iigfot claimed, or its fl:l:.'Ognitionin other ways.") (emphases added); see
also e
975 978 n.18th cir 2005 'To violate subsl.mt.lve
SS, the conduct
of an executive () .aIm
tng and must
'r./ck v. Hoj;;=_w
346 F.3d 1
1181
Cir. 2003).rt is therefore arguable that conscienc.e-shocking behavior wouIdnot violale
the Constitution if it did
a fundamental right or ifi! were narrowly tailorced. to serve a compelling state
interest See, e.g., Washington P. Gfucksberg, 521 U.S. 102, 721 (L997). Because we conclude that fu.cCIA
interrogation program
not "shock the conscience," we ue,;d nof<ld4resstheze issues here,

27

_._.. _.".~­

The phrase [due process oftaw] furmulates a
less rigid and more fltljd
than those envisaged in ot4er specific and particular provisions cftIle Bill of
Rights,
application is tess a matter ofrule. Asserted denial is to be tested by
an appraisal of the, totality of facts in a given case, That which may, in one
setting, constitute a denial of tiuldamental faIrness,shockiog to the universal
sense ofjustice, may, in other circumstanceS, and in light of other considerations,
fall short
adeniat

Id. at 850 (quotlng Betts v. Brad,:,', 316 US. 455,462 (1942» (alteration in Lewis), Our task,
therefore, is to
Supreme Court

if! a novel context a highly fact-dependent

"villi Httle gnidance from the

1.

We

whether the CIA interrogation

involves conduct that is
wefrnd no' evidence of
in some way unjustifiable by ailY government interest," id. at 849} ()~
'I1rlif'f'.rp,,\,,p to the possibility of such unjustifiable
see td. at 853.

"constitutionaHyarbitrary:' We conclude that it does

an initial maHer, the Court has made clear that ,vhether conduct can be considered to
be constitutionally arbitrary depends 'litany on whetherlt furtbers a govemmebl: interest, and, if
it does, the nature and importance afthat interest. The test is not merely whether tbe conduct is
"intended to injure," but ralherwhether it is "intended to injure in some wtryJ unjustifiable by any
government it/terese' Jd. at 849 (emphasis added) It is the "exerclse of power without any
reasonable jusfijiiXftiofl in the service ofa fegitimate governmental objective" that can be said to
"shock the conscience."
at 846 (emphasis added). in United States v, Salama, 481 U.S. 739,.

748 (1987), for example,the Court explained that the Due

Clause "lays down [no] , , .

categorical imperative," and emphasized ihat the Court has "repeatedly held that the
Government's regulatory interest in community safety cau, in appropnatecircumstances,
outweigh an individual's liberty
n See also Hamal v.Rumqeld,
Ct. 263J, 2646
(2004) (plurality opinion) {explaining that t:heindividuul' s interests
weighed against the
governmet,t'sl The gQvernme~t'sinterest is thus an importantpatt ofthe context that must be

carefully considered il1evaluating an asserted violation of due process Z5

16

TIle pfGtrial detelltioncontext is inIornlS!l;'c. AnalYStS of the government's interest Ill1dpl1J1XJ$e in

impo,~ing a condition of c.onfil10mCn! is esS{nful to determining whether there is II ....tjolation .ofdue process in 1his
context See &11:1710, 481U,S. at
1}1e governtuenthas a legitlll.lJite interest in "effe0tuat(ingj lh[e]

delention," Wolfish, 44] U,S at
which supports govermnent action that "UlS rntiorolI beco1.U1ecte<i" 10 the .....,..",.-,.......,.........
----.-_.-'~--",,~~~etltijj!t;£t!ihe~8ti;!:S?'<l:t'1l!'r(lnJ:e;11ml·qu6tlf10h·ffi3:r£foiili'~I1ilid'~iilir-'
punishment au streb detainees would violate due
l;ecau.s¢ the govemment hzs no legiUt113te intefGst in

In addition, Lewis suggests that the Court's Eighth Amendmentjurisprude:nce sheds at least some light on
the due process inquiry, &e 523 tIS. at 852·53 (1ll1::l1ogizing the due
inquiry to the Eighth Amendrnent
context
noting!h3t in !xJlh cases "[tabilirj should tum on 'P/hetber
ivasapplittd in a good faith effort to
maintain, or restore discipl ine or nmliciously and sadistically for t.he vCJ:)' purpose of Glusing haml ,n) (quoting
Whitley vu4lbers, 415 U. S. 3 320·21 {19&6}), The interrogation program We consI.dcr does not involve or allow

2&

AI Qaeda's demonstrated ability to launGhsopnisticated attacks causing mass casualties
within the United
against United States: interests worldwide, as well as its. continuing
efforts to pian and to
such attacks, see supra p. 9, indisputably pose a grave and
continuing threat. "It is 'obvious and unarguable' that no governmental interest is more
compelling than the security ofthe Nation." Haig v. Agee, 453 U.s. 28Q, 301 (1981) (citations
omitted); see also Salerno,
U.s. at 748 (noting that "society's interest is at its peak" "in
times Qfwat or insurrection"). It is this paramount interest that the Government seeks to
vindicate through
interrogation program. Indeed, the progr.am, which the CIAbelieves "has
been a k~y reasOIl
al-Qa'ida has faiied to launch a spectacular attack in the West since 11
September 2001.," E.:!jecfivel1essMemo at 2, directly furthers that lnterest, producing substantial
quantities of otherwisell.navailableactionabie inteUigence, As detailed ahovG,ordinary
interrogation techniques had little effect on either KSMor Zubaydah. USe of enhanced
techniques, however, led to
actionable intelligence such as the &scoveryofthe Guraba
Cell, wbichwas
,,,4th executing KSM's planned Second
attacksagail1st Los
Angeles. Interro
'neesand oomparativelylo~'er"tier high
value detainees
ve also greatly increased the CIA's
understanding 0 our
As evidenced by our
in Part I, the CIA goes to great lengths to ensure that the
techniques are applied only as reasonably necessary to
this paramount interest in "the
security oftne Nation." Various aspects ofthe program ensure
enhanced techniques wiHbe
used ohi}' in the interrogations oHhe detainees who are mOSt likely to have critical; ac.tlonable
intelligence. 'the CIAscreeuingprocedures, which tbe CIA imposes in addition to the standards
applicable to activities conducted pursuant to paragraph fouf of the Memorandum of
Notification, ensure that tbe techniques are not used unless the CIA reasonably believes that the
detainee is a "senior member ofal~Qai'da or [its affiliates}," and the detainee has "knowledge of
imminent terrorist
against the USA" Of has
directly involved in Hle planning of
attacks. Jonuaty 4
ar at 5; supra p. 5, The
that enhance.d techniques have been used
to date in the
of only 23 high value detainees out ofthe 94 detainees in CIA
custody demonstrates this se!l:x:tivit\,

Use' ofthe waterboard is. limited
further, requiring
inteUigence that a
terrorist attack
, .. substantiai and credible
the subject hasac.tionable
inteHigcnte that
disrupt or delay thisatt~ck;
(a detemlination thato]ther
interrogatioh methods
to elicit theinfOrrliatiol1 [ami
. other ... rnl3thods are
unlikely to elicit
informatkm withjn the perceived arne limit for preventing the attack."
August 2 Rizzo Letter (attachment), Once again. the efA' spractic.e confirms the program's
selectivity.
used the waterboard
detainees to date-KSM,

the !nalicious or sadistic iuiJktiol1 of harm. Railier,ils di.x~ in the text, mterrogation teclmique$ are userl only
as reasonably d~med necessary to f11rther a government interesl¢f ihe h.igllcslorder, and !lave been carefully
designed to avoid irtfJicting
or suffering or any other lasting or slgJuficant hanll and to muumb:e the risk
of any llann that does not further this government interest, See infra pp. 29·31.

29

/"

TO~ECRET

Moreover, enhanced ~~hniques are ooRsidered only when the on-scene interrogation
team considers tnemnecessary because 11 detainee is withhoJdingotl11anipulating importan~
actionable intelligence or there is insufficien~ !imc to try other techniques. For example,as .
recounted above, the CIA used enhanced te<\hniques in the interiogatiollsofKSM and Zubaydah
only after ordinary interrogation tactics had failed. Even then, CIA Headquarters must make the
decision whether to
te.cfmiques in IDlY interrogation. Officials at CIA Headquaners
can assess the situation
interrogation team's reports mid intelligence from a variet)'
of other sources
are therefore weU positioned to assess the Importance ofthe information
sought.
approved, techniques are used only in
so that it is uuUkety that a
detainee would be subjected to more duress than is reasonably necessary to eHcit the information
sought.· Thus, no
is used on a detainee unless
technique at that time appears
necessary to
intelligence. And use of enhal1ccD techniques ceases "ifthe detainee
is judged to be consistently providing accurate Intelligence of if he is no longer believed to have
actionable
,., Teohniques at S. Indeed, use ofthe teclmiques usually ends after just a
few days \-'{hen th~ee begins paltlcipating. E,1j}anced techniques, therefore, would not be
llsed on a detainee not reasonably thought to possess important, actionable intelUgence that oould
not be obtained

rdhpn";~,,

ot'lIY is
inte.ffogatiopprQgram closely
goyc.roment interest ofthe highest
order} It is also designed, through its Qafefi,ll limitations and
criteria, to avoid causing

any severe pain orsuffertng' or Infl.ictingsignificantor
As the OMS Guidelines
explain, t'[i]n an instances the general goa! of these .
. is a. psychological impact, and not
some physical
a specific goal of'dislocate[ing]
expectations
regarding the treatment believes be will receive.'" OA·1S
at 8~9 (second alteration
in original).
techniques can be used on.!y if there are no medical or psychological
contraindications. Thus, no
is ever used iftbere is reason to believe it will cause the
detainee signit1c.ant
or
harm. 'Vhen enl1,mced techniques are used, OMS closely
monitors the detainee's condition to ensure that he does
experience severe pain or
suffering or sustain
significant or lasting harm,
Tilt.s facet our analysis. bears emphasis. We do not
that any oonduct, uo
matier how extreme, could justified by Ii sufficiently weighty govern.m.ent ihterest coupled
with appropriate
Ratber, our
is limited to the
under consideration, in
which the techniques do not a;ount to torture CDhsidercd
or in contbinutioo. See
Techniques at
Use at 9-19. Torture is categorically prohibited both by the
CAT, see art. 2(2) ("No
circumstances whatsoever. . .
be invoked asa
justification of torture.
.

. Theprogram, moreover, is designed to rl1inimizeth.s~s~ty-9LguY=liJj~ri11gJh!\tis"=--~,

=-amn:ende:rclJrdtJ~sllU1;ruvanc·e "the"purpose"()nhe progfam, }orexample,

in dietary
mampu!atJOlI, the .. . caloric intake is set
. levels used in commercial weight•.
loss programs, thereby avoiding tbepos.sibitity of signiikant
In nudity and water

lemperatufes high enough to guard against hypoth¢rmia.
and a C-coHar (or
device) to help avoid

dousing, interrogators set
The walling technique

?

30

whiplash. See
against the possibility

at 8 Viith respe~t
deprivation, constant monitoring protects
detainees might injure themselves by hanging from their wrists, suffer

from acute edema, or even experience ncm~transienthalludnations. See Techniques at .1 I-I3.
With
waterb03rd,. interrogators u~potable5aHnerather th.anphrin water so that.detainees
nots\.dler from hyponatremia and to minimjzetheriskofpl1eurnon~a. See.fd. at 13-14. The
board is also desi.gned to aUow i.nterrogators to place the detainee inahea.d-up position so that

will

water may be cleared very quickly, and medical personnel afldequipment are on hand should any
unlikely problems actually develop. See td. 14. All enhanced t(fChniques are conducted only as
authorized and
to medical guidelines and superv'ision,21
As is clear from
descriptions and the discussion above, the CIA uses enhanced
techniques only as necessary to obtain information that it fef..son~bly views as vital to protecting
the United
from further terrorist attacks, The techniques are used only in
the interrogation ofthosc
are reasonably believed to be dosely associated with al Qaeda anti
senior enough to
actionable intelligence concerning terrorist threats. Even then, the
techniques
only to the extent reasonably believed to be necessary to obtain otherwise
unavailable intelligence, In addition, the techniques are designed to avoid inflicting severepaio
or suffeting, and no technique w'ill be used iftnere is reason to believe it will cause significant
harm. Indeed, the techniques have been designed to minimize the
of injury or any suffering
that does not
Government's interest in obtaining actionable intelligence, Tbeprogram
is dearly not intended "to injure in some way unjustifiable by any government interest." Lewis,
523 U.S, at 849.
can it be said to reflect Hdeliberate indifference'i to a substantial risk of
sucb unjustifiable injury.

&851 28

Z7 TIle CtA. 'S erc genlcral:Jy t;XjflsuHs with llie
of (kpet.al Counsel (which in tum lIla)' collSlll.t
with this Office)
novel cirCllmswlccs.
cOfliSul,rnu'J!l fl.1.tthet reduces an)' possibility that
CIA interroglltorsC0vld
be
[llieir} power,
it as an instl1..lluent of oppression,"
Lewis, 523 lIS, at 840
omit1ed; :illeraOor
see also Chavez, 538 U.S. at 774
(opinion of Thomas,
&0 as 10 rcnder their conduct constitutionaUy al"'Ualj.
is not to say Utat the inlerrogatiohprogra1l1 has worker!
According to llie 1G Reporr, the
CiA, at
could not
distinguish delainees who had iW:lmtau<m but were successfully resisting
inlem:Jgatlon from
who did not actually have the lnfommtion.
at 33-85. On at least one
occasion, this may have resulted in what rnight be deem..:d
the unnecessary use of
enhanced
On
aliliough theofH;cenc ru.terro

~··~-~~~TlriS'tGlmple;1mwe'l'ef;-dccs~nfrb<j-tow·GrA:-~({,tllcioot.{{hat-4s1,intend~4o,kIjUfeJrl~v.a¥~~,,~
by any government
" or "deliberate indifference" to the p{)ssibiJity of such.ll.!1jl1stifiable lnjury. lAt'ls, 513
-~~.J.L.S~,,at.S.:t;),J&L>.'lDltlhLh!l~l,~~:;:yna1ili'believed that ZubaJdah continue-diG wit.hl.wld sufficiently important
infomuUon, use of the watcrboard was sUP~GoY;;~mer:i'S1Uieresr4'1 prot.cetingffie'tiilUon rrol1l'--'-~-"~
subs:xtuent terrorist attacks. TIle
of a rea~onab!e, good faith iJ.~!ief is /tot negated because the factual
pre{jlcates for that belief are
delermined (Q be false,
in the Zubaydah exarlljJle, CIA
Headquaners diSfl:ltc.hed offIcials (0 observe the last waterboani
These officials reported i.h.at enhanced

techniquC6 were flO
needed. E'-ee IG R.eport at 85. Thus, llie
did not simply rely on what appeared to be
credihle intelligence out rather cea:;ed
cllha.nced techniques despite tlUsin.tdligwce.

31

2.

We next address
C()osidered in light of "an understanding of traditional
ex:ecutive behavior, of contemporary practice, and of the standards ofblamegeneraHy.appIied (0
tbern/'
ofllie enhanced interrogationtechciques constitutes govern.meat bebavior that "is so
.egregious, so outrageous,
may fairly be said to shock the cDntempOr8ry conscience." Id. at
847 nJt
have not
evidence oftraditional executive behaviQr or oonternp'orary practice
either condemning or condoning an interrogation program carefully limited to further a vital
government
and designed to avoid unnecessary or serious harm.29 However,in many
conteA.is, there is a strong tradition against the use of coerclveinterroga.tklntechniques.
'
Accordingly, tills
analysis poses a morc difficultquestiot!.
eXBminethe
traditions surrounding
criminal investigations within the United States, t.he military's
tradition. of not employing
tec!lluques in i lltelligence interrogations, and the fact that the
United States regularly condemns conduct l.wdertaken by other countries that bears at 'least some
resemblance to the tochniques at
.

These tradition? provide significant evidence that
use of enhance.d interrogation
teclm1ques might
the.contemporary conscience" at
some contexts. ld. As we
have explained,
the due process inquiry depends critically on setting and circumstance,
see, e.g., id at 847, 850, and each ofthese contexts differs in important ways from the one we
consider here
consideration ofthe underpinnings
standards of conduct expected
in these other
moreover, demonstrates that
standards are not controlling here,
Further,as.explained belo,'.",
enhanced techniques are ail adapted from techniques used by the
United States 00
albeit under significantly different conditions. At a minimum,
this confirms
use ofthe'..se techniques cannot be considered to categorically
impermissible;
is, in some circumstances, use ofthese techniques is consistent with
"traditional executive behavior" and "contemporary practice," ld at 847 fl,8. As expLained
belel'll, we believe
are present here.
Domestic
Use of interrogaHonpracticeslike those we consider
here in ordinary criminal investigatiofls might well "shock the conscience." InRochtn v.
mterTOllatii:m practice appears to have varied over
Tile 10 Report explainsthatlhe. CIA "1J.aS
had intcmliHent
in the L'1ten:ogationofindividlJ3)s whose inlef¢>1.s are opposed to those ofthe United
Stntes." JG R:ejXJrt at 9.
19805, fOf exa.rnplc, tile CIA initiated
HmnanResource Exp!oicioon
("limn lrainingprog.mm,
train foreign liaison scrvi ~
.
es," Id; The CIA
~;:H.lse of allegations OfhUlT
rics, See id.<Jt 10.

32

Califomia,
Supreme Court reverseda criminal conviction where the
prosecution
againsHhedefemidfit that had been obtained by the forcible
pumping ofthe defendant's stomach. The Court concluded that the conduct at issue <'shocks the
.conscience' and was "too close to tnemck and the screw." Id. at t12. Ukewise. irrWilliams v.
United States,
u.s. 97 (1951), the Court considered a cony/cHon under a statute that
criminalized
au individual· of a constitutional right uncle.r color of law. The defendant
suspected
ofcommitting a particular crltne. He then
over Ii period
took fuur men to a paint shack. . and lJsed brutal
methods to obtain a confession from each ofthem A moper hose, a pistol, a
blunt

a
cord and other implement were
was beaten, threatene,d, and unmercifully

Jd. at 98-99. The
against himself,"

in the project. ...
several hours until he

cnarac·tenze.a this as lithe dassic use afforce to make a man testify
would render the confessi 011$ inadmissible. Id. at 1\)1. The Court

concluded:
take matters in their own hands, seize;v1ctims, beat and pound
But ,vhere
C(U1LeElS, there cannot be the slightest doubtthat the police !:lave
them until
under the Constitution. It is the right ofthe accused
deprived
constituted court, not by a kangaroo court
to be tried bye.

Id. at 101.
lviore
in
IJ. Alar-tinez, 538
760
the police had questioned the
plaintiff, a gunshot wound victim Yvho was in severe pain and believed he was dying. At issue
was whether a section
could be maintained the
the police despite
the fact that no
had ever
brought against the
Court rejected the
plaintiff s
Self-Incrimination Clause claim, see id. at
(opinion of
Thomas,
concurring in judgment), but remanded for consideration of
whe~her the
the plaintiff's substantive due process rights, see rd. at 779-80.

Some ofthe
.
coerclveinterrogatioTts. See

the view that the Constitution categorically prohibitli such
at. 7e3, 788 (Stevens, concurring in partandcliss.enting in part)

(descrihingthe i!lterrogation at issue as "torturous" and asserting that
interroglltion "is a
classic example
ora constitutional right implicit in
concept of ordered Uberty")
(internal quotation
at 796 (Kennedy, 1., cDncurring In
and dissenting in
part) ("The Constitution
not countenance the offici at imposition of severe pain or pressure

guarantees of the Due Process Clause,

issue in these

Of

botb.").

COflSlderablv less invasive or extreme
much of the conduct. at
the government interest at issue. i.1:1 each of these cases was the

general interest
(and, in
doubtful). That
government interest is strikingly different from what is at stakethenationa.i security-in
particular, the protection of the United
and its
attacks that may result in

TOP~Ti

·

_ "

, ,

. ~V/""J,

,,1 tl04Z9900

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36

massive civilian casualties. Sp~ciflc constitutional constraints, suclt.M the}{ifth Amendment's
Self-Incrimination
which providestnat 'Tn)D person. ... shall be compelled in any
criminal
to be a witness against himsel(" (emphasis
apply when the government
acts to further its general interest in law enfotcemenfand reffect explioitfuudamentallimitauol1s
on how
may further that interest Indeed, mostoftheCourfs pOnce
interrogation cases
to be rooted in the policies behind $eSeif-Iucrimination Clause and
concern for the fairness
integrity (Jf the trial process, In. Rochilf, for exampLe, the Court was
concerned
use
obtained by coercion to bring about a criminal conviction,
See, e.g., 342 US. at 173
propess of law, as a. historic and generative principle, precludes
defining, and thereby

these standards of conduct more precisely than to. say that

convictions cannot brought about by methods that offend' a sense ofjustice.''') (citation
omitted); itl. (refusing to hQld that "in ordertQ convict a man
police cannot eJctraet by force
what is in rus
but can extract what is in his stomach"), Se? also Jackson v. Denno, 378
U.S. 368, 377 (1964) (characterizing the interest at stake in police interrogation cases as the
"right to be free
based upon a coerced confessiorf');
v. Oklaho'!l14, 322
U.S. 596, 60S
that "~raj c.oerced confession is offensive to basic standards of
justice, not because
has a legal grievan.ce against the police, but because declarations
pfGcured torture are not premises from which a ;;::lvilized forum wi!! infer guilt"). Even
Chavez, ,vhich might
the Court's receptiveness to a substantive due process claim based
on coercive police interrogation practices irrespective ofwhether ~he evidence obtained was ever
used against the individual interrogated, involved an interrogation implicating ordinary law
enforcement i"!'~"'A<·t<
Courts have long
the government's
ordinary law enforcement
from other -government
such as nationaisecurity. Tbe Foreign IntelHg.ence Surveiliance
Court ofRevievi recently explain.edthat, VYitll respect to the Fourth Amendment, "the [Supreme]
, Court distingutshe[s]
crime control programs and those that have another particular
purpose, such as
against specia.l hazards or protection orour borders," In
re Sealed Case, 310
d 7,
(For. InteL
Ct Rev.
(discussing the Court's
"special needs" cases and distinguishing "FISA's general programmatic purpose" of
"protect(ing] the nation
and espionage threats
by foreign powers" from
general crime control).
"special needs'; doctrine,
Court has approved of
wiArantless and even
searches that serve "special
beyond the normal. need for
la·wenforcement."
Dis!. 4i]v. Acton, 5
646,
(t995)(quotation
marks and citation omitted).
although the Court has explained that it "cannot sanction
[automobile]
justified only by the" "generalinterest in
control," IncfjaJiapolis v.
&fnlOnd, 531
44 (2000) (quotation marks and citation omitted), it suggested that it
mIght appro'Vc
set
to thwart an imminent
id See also
~.,.
~w,lv~~2E!9s!un~JorJ<l11t~s B. CC?·tJlj;l.J).e~tl,GUlq.V~.G~!.',~a.l~ffl~!~~t$~istJJr~cputr
AssisfantAttomey deliCTa!, Office of Legal Counse~ Re: FFhether OFAC lvfay Without
_~~
g.E!E!!!!!!lLCf Jud,[claL'rrarr..flLl{ Enff.Lt!Je. ColJIlllei.tiaUxemises'*Jj4~$:'jgnaied...fjntity,.yTr8er:unT'-~~·
nijijeriiThat Has Been
Pursuant to IEEPA (April] 1, 2005). Notabty, in the due
process ;;;ontext,
Court
distinguished the Government's
in detaining megal aliens
generally from its
in detaiJting suspected terrorists. See Zadvyd../f.5', 533 US. at 691.
Although the Court concluded that a statute permitting the indefinite detention of aliens subject
to a final order of removal
be removed to other countries would raise
_

••

"

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34

. " •.•

substantiq.i constitutional

~.

0'01

?"VO

1 '7

:US/ST. 17: SO/NO. 6160429S00 P

37

it suggested that its reasoning might not apply to a statute

nanrowlv to a sman segment ofparticulady dangerolls individuals, say, suspected

(quotation marks and citation omitted).
Accordingly, for these reasons, we do not believe that the tradition that emerges from the
context provides contromng~yidence ofa relevant executivetradition
prohibiting USe
techniques in the quite diff(;rent context ofintel1ogatiQus undertaken
solely to prevenHoreign tehonst attacks against the United St.ates and its interests.
police

United States l",filitary Doctrine. Army Field Manual 34--52 sets forth the military' $ basic
approach to intelligence interrogations. It lists a variety ofinterrogation techniques that
generally involve omy
and emotional tactics. In the "emotional love approach," for
example, the
exploit the love a detainee feels for his feUow soldiers, and use
this to motivate
[d. at 3~ 15. In the "fear-up (harsh) appmac:,n," "the
interrogator behaves in an overpowering manner with a loud and threatening voice (and} may
even feel the need to throwobjeets across the room to heighten the [detainee's] implanted
feelings oHeaL" ld at 3-16 The Field Manual counseJs .that"[g]reat care must betaken when
[using this technique] so any actIons WQuld oot violate the prohibition on coercion and threats
contained in
GPW,
17." lei. Indeed, from the outset, the Field Manual explains that
the Geneva Conventions
US policy expressly prohibit acts ofviolcnce or intimidation,
including physioal or mental torture, threats, insults, or exposure to inhtHtlane treatmcnt as a
means of or
to interrogation," Id, at 1-8. A$ prohibited acts of physical and mental torture,
tbe Field A1dnual
"(flood deprivation" and "[a]bnormal sleep deprivation" respectively, ld,

The Field Manual
evidence "oftraditional executive behavior[ and] of
oontemporarypmctice," LeWiS, 523 U.SL at 847 n.S, but we do not
it dispositive for several
reasons. biost
as the FiefdManual make;; clear,approach it embodies is designed
for traditional
lRparticular, conflicts
by the Geneva Conventions. See
Field Manual
see
id.at
Interrogations must comply
with the Geneva
Uniform Code ofMUitary Justice). The United States,
however, has long resisted efforts to extend the protections of the Geneva Conventions to
terrorists
other unlavtful combatants. As President Reagan stated when the United States
rejected
I to the Geneva Convelltions, the position ofthe United States is that it "must
not, and
recognition and protection to terrorist groups as a price fOf progress in.
humanitarian
Ronald Reagan, Letter of Transmittai to the Senate ofProtoco! rr
additional to
ofl2 August 1949, concluded at Geneva on June 10, 1977
(Jan. 29, 1987).
moreover, has expressly determined
Geneva
ConventiOn Relative to the Treatment ofPrisoners of War ("GP\V")
not apply to the
~_~.,-J4IDfiicLwt~~4..Qaeda,,-,.$e~>4~rolldlinHft)m~be-f'remti'l31rt~'7'imm Z171!.? TrealmerTlo"] ilT--------Qaeda and Tahoan Detainees at 1 (Feb. 7, 2002); see also Ivkmorandum for Alberto R.
.-._~~~~4t~......cm1il$ii,1DJheJ~resid{ktt,.aHd-Wi·IHafll+Raynesi1;'t:J-~~errernt=et:mt1set,-"Deparmieirror-'-~-'­
Defense, from Jay S. Bybee, Assistant Attorney General, Office of Legal Couflsel, Rc:
Application of Treaties
. to at Qaeda and Taliban Detainees 9-10 (Jan. 22, 2002)
(explainlng
GPW
to Don-state actors such as al Qaeda).

;t

35

We think that a policy pren1ised on the
of'tbe Geneva Conventions and not
purporting to bind
eLl;,. does notoonstitute controlling evidence of eXe¢titive tradition and
contemporary practice with respect to untraditional armed conflict wl1ere those treaties do not
apply, where the enemy flagrantLy violates the laws of war by secretly attackirtg civilians, and
where the United States cafu'10t identifY the enemy or prevent its attacks absent accurate
intelHgence.

State
EJch year) in the State Department's Country Reports on
Human Rights
States CQndernnscoerciveinterrogation techniques and other
practices employed by other
Certain ofthett;ehrtiques the United Sfates has
condemned appear to bear some resemblance to some .ofthe CIA interrogatlontechniques. In
their discussion
for example, the repo"rts Ii st as "W]sychological torture" conduct
that involves
ands[eep deprivation," but give no specificinform!ltkmas to what these
techniques
ofEgypt,.the reports
as
of torture"
"stripping and
suspendIng victims from a c.eiHng or doorframe with feet
just touching the floor;
victims (\vith various objects}; ... and dousing victims with cold
water."
e.g"
(describing the "chiffon" method, '.",hieh involves "placing lnag
drencheJ in
water in
s mouthH ); Iran (counting sleep deprivation as either torture
or severe prisoner
(discussing sleep deprivation and "having cold water thrown onu
delainees as either
or "in.treatment"). The State Department's inclusion ofnudity, water .
dousing, sleep
fooa deprivation aInong the conduct it condemns is significant
~Tld provides some
of anexecLltiveforeign rdations tradition condemning the use of
these teclmiqucs. 3o
To
that the reports provide
evidence
the
"shocks the contemporarycoDsc1ence." The reports
do not generally focus on or provide precise
interrogatioll techniques.
Nor do the
any de.tail the contexts in
techniques are used. From
what \-ve
however, it appears that the
techniques ale often part
of a course
that
techniques and is undertaken in ways that bear no
resemblance to the CIA
program. Much of the condemned conduct goes far
beyond the
tcchniques and \vould almostcertainly cqnstitute torture under United States
law.. See,
(discussing
doorn-arne with feet just
touching
finger
crushing
electric shock)'
"
Uzbekistan
conduct,moreover,
is
ofter! undertaken for
unlike the CIA';;.
security forces
apparently use their
obtain confessions, to puniSh, and to extort money.

as a flUtter of cUplol11aev, the United Slales may for various reasons in various
circumstances call another nation fa account for practic:esthtll
in some
couduct in which thc
Um~ed States nu!;ht III some cirCumstances engage, covertly or
relations with ref,l1rd tQ
foreign
ofUnltedStates executive
may be of ()lLly Hmite-d
<

relevance here,

36

TO~
used only asnecessaryprotecfagainst grave terrorist threats or

,1tlY similarly vital

government interests (or indeed for any legitimate government interest}. Oil th~ contrary, much
of tbe aUeg$td abuses discussed in the reports appears toil1voivee:ither the indiscriminate use of :
force, see, e.g"
ofcritics
see, e,g" Liberia, Rwanda.
And
is
thattheseco!.mtries apply' careful screening procedures,
medical monitoring,
other safeguards required by the CIA interrogation program,
relationstradltion ofcondernl1ing torture, the indiscriminate use
against the government's political opponents, or the \..lse of force to
obtain
criminal cases says litt! e about the pro.pnety of the CIA's
interrogation practices.
CIA's careful screening procedures are designe<l to ensure that
.
enhanced techniqu¢:sare
in the relatively few intelJogatlol1s ofterronsts who are believed to
possess vital, actionable
tnat mJgtit avert an attack against the Uoited States or its
ifltere~ts, 'The CIA
techniques only to the extent reasonably befleved necessary to
obtain the informath;m
great care to avoid inflicting severe
or suffering or any
lasting Or
short, the CIA program is designed to subje.ct detainees to no
more duress than is justifie.d
Government's interest in
the United States from
furtber
In these essential respects, it differs
the conduct condemned in the
State Department
A
of force,

SERE Training.
is
evidence that usc of thesetechrtiques is in some
clrcumstarle-es consistent with exc.ctltlve tradition and practice: Each ofthe CIA's enhanced
interrogation
has
a:oaptedfrommilitl1ry
the techniques
have
on oUr own troops, See Techniques at 6;
at 13~ 14. fnsome
instances, the
form oftnetech.niquc than
dousing, as done in
SERE training,
complete immersion
may
See Techniques
at 10,
is done outside with
air temperatures as low as
100F. See
contrast, the
water that is never
belo'iIl41 o F and is
Further, ambient
are never below
MOF See
are undeniably more extreme as applied in the CIA
interrogation
notably, the wat.erboard is used quite sparingly in SBRE trainingat most two times ona
for almost 40 seconds each time. See id. at
42. Although the
CIA program
waterboard use only in narrow circumstances (to d(jte, the CIA has used
the waterboard
detainees), where authorized, it may be used for two "sessions" per
day up to two
a sessioa, water may be applied up to six times for ten seconds
or longer (but
more
40 seconds).
a 24~hour period,a detainee may subjected to
up to twelve minutes
application. Sec id. at 42, Additionally,
wa
ay be
used on as many as
during a 30~day approval period. See
J
etter at
1~2,
CIA
J::t~9f!4:: .'~---"'"
wtefrO!:;atl,}h ofKSM, see
lei, at 91.

In

as we

Individuals lm,~"'rn"';h<'r
training are obviously in a very different situation
from detainees under'gomg interrogation; SERE
it is
of a

37

a real-fife interrogation regime, they presumably know it
and they presumably have assurances that they will not
significantly hB.nne<i by
training.

training

will last only a

Techniques at On the other hand, the interrogation program we consider here furthers the
paramount interest offhe United States in the security ofthe Nation more immediately and
direetly than SERE training, which seeks to reduce the possibility that Uruted States military
personnel might
information that couldhanl1 the national security in theevenf they are
captured.
oftne due process question mustpay cafefulattentloo to these
differences.
least one conclusion from the existence of SERE training. Usc
of the tecnnlql.lCs
.
. interrogation program {or at least tnesttriilar techniques
from which these have been adapted) CAnnot be considered to be categorically inconsistent with
"traditional executive behavior" and "contemporary practice" regardless of context3l It follows
that use ofthese techniques
ootshock the conscience in at least some circumstances. \Ve
believe
e;dst here, where the techniques are used against unlawful
combatants who deliberately a,nd secretly attack civilians in an untraditional armed conflict in
which
is difr1cultorimposslble to colrectby other means and lsessentiaHo the
protection of the
States and its interests, where
techniques are used only when
necessary and only
of key terrorist leaders reasonably thought to have
actionable
and where every effort is made to minimize unneoessary suffering and to
avoid inflicting
or lasting harm
Accordingly. \Ve conclude that, in
of "an understanding of traditional executive
behavior, of contemporary practice, and of standards of blame generally applied to them," the
use
enhanced interrogation techniques in the CIA interrogation program as we understand
it~ does not constitute government behavior that "is so egregious, so outrageous, that it may fairly
be said to
the contemporary conscience." Lewis, 523 U.S. at 847 n8,

For the reasot\$
we conclude that the ClA. interrogation techniques, \\1tl1 their
careful scr,eentng lJIl")'i)edIJres
medical monitoring, do not
conscience." Given the
pfecedent applying thisataH, atone in anything
as the context-specific, facf-dependent, and spmewnat SUbjective
ncn.ve'lf/"x
predict with
court would agree \\.1th
believe however; that thequestio!1 \vhether the eLA.'s enhanced
the substantive standard of United-States obligatioIls under
subject to judicia! inquiry.

16 imposes no

obligations on the

-~.=~-~~.li@te,tht;;..Clf&Jnt~atiolhpmg+..a.ut.in,.\ll.elvd)f,thebngu.{ifi'~:f~-l6jts~f~

_ _~..~-=,._

11 In ""'U."'V", the fact that individuals voluntarily undergo !lIe techniques in SERE training is probative.
See Breilhoup! v.
U.S.
436-37 (]957) (noting that people regularly voluntarily allow their blood to
be drawn and
that lllvolunta.ryoIO<Xi testing docs not "shock the conscience").

38

independently,
Senate's reservation. But eveniftllis \",eteJess clear (indeed, even ifit were'
false), p..rticle 16 itself has no domestic legal effect because the
attached a uon~self~ .
execution
to its resolution of ratification. See Congo Rec. 36,198 (1990) ("the Umt~d
States declares
provisions ofArtides 1 through J 6 oftbe Convention are flot self..
executing"). It is
that non-seIf~executingtreaty provisions <'can only be enforced

pursuant to legislation to carry them into effect" Whitney v. Robertson, 124 U.S: 190, 194(Ig8S);seealso Foster iT•. Neilson, 21 U,S. (2 Pet) 253,314 (1829) ("A treaty is in its nature a
contract between two nations, not a legislative act. It does not generaHy effect, of itself, the .
object to
.. , but is carried into execution by the sovereign power of the
respective parties to the instrument."). One implication aftne fact that Article 16 is non~self·
executing is that,
to Artie! e 16, "the courts have nothing to do and can give no
redress:' Head Money
!
580, 598 (1884). As one court rec-ent!y explained in the
context the CAT
that are not
not create judiciallyenforceable rights
they arc
given effectby bnptementing legislation." Auguste v.
Ridge, 395
13211.7 (3d ek. 2005) (citations omitted) Becaus.e (with perhaps one
narrow
16hasnot been legLslatively implemented, dm lnterpretation orits
suhstantive

to be subject to judicial inquiry,33

'"
Based on

does not implicate
its careful

we understand that the
IwderTUnited

progrands not
" and that it is not
we oonclude that the program
16. We also concfude that
CIA interrogation program, subject to
and medical monitOring, would not violate the substantive standards

conducted in the United States or
autbolized tor use against United

Jl As noted
Section 1031 of Public Law 109-13 prU'Yides thal "(njone of the funds appropriated or
othen,'isc 111ade il\!ll!lablc
Act shall be obligated or eXf~t1ded to subject any person in thectlstody or under
the ph)'sicalconLml ofthc
to. cruel, in.human, or
treatment or punishment tlUlL is
prolribiled by the
or treaties of rIle United Stntcs, To
extent this appropriations rider
impfemems Article 16, it creates a narrow domestic law obligaLioll not to expend funds appropriated under Public
Law W9-13 for CDnduct
ArIlcle 16. This appropriations rider, hcrwevcr, is unlikely to result injudicial
interpretation of Article i6's
stand.:lrds since it ik~s not cre.:<te a private right of ae:tlon, See, e,g.,
Ale:.:anc/er v, Sandoval,
ZZ6 (2001) ("Like subsU'illuve fedCrallawitself, private rights of action to
enfo~CIl feder.allaw must
CoIl~S,"); Resider;f CounCil ofAlterrParlol'oy VilE. v, Dep" ofHous, &:
UrbM
$ISO F.2d 1043,
CiT. 1993) C'courl~
been reluctant to ir.fefcongressiona! intent to create
appropriations rneasu.res") (citing
v. Sierra
451 UB, 287 (19&1)).

prCi $CCl1t!{)11 were b-rough t under the
spendillg restr1ictIe.n Section

53 AlUlOlHcf1 the interpretation of Article 16 is unlikely to be subject
inquiry, it is conceivable
court might attempt to address substantive questiorrs under the FUth.Amendmttit if, for example, tl1e United
Slates
criminal
of a high value del! lnee ill an Article ill courtln. the United States using
evidence ilinth3d bt.'i3n obtained from/he detainee through til() use of en113.J1 <x>:l'ln terroga !ion teclutlques,
that:l

39

tbe United States under ArticleJ6ifthose standards extended to the erA
Giventhe paucity ofrelevant precedent and the-subjective nature ofthe
c~nnot prOOict with confidcl1 ce whether acouri would agree witb this
thcTe.1Sonsexplained, thequestiol1isunHkely be subject to judicial

• of further assistance.
Please let us know if we l1iay be

Steven G. Bradbury
Principal Deputy Assistant Attorney General

40