The Torture Papers: The Road to Abu Ghraib, edited by Karen

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PART 1 OF 5

MEMO 26

SECRET/NOFORN
UNCLASSIFIED WHEN SEPARATED FROM ATTACHMENT

Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations

April 4, 2003

Classified by: Secretary Rumsfeld
Reason: 1.5 (C)
Declassify on: 10 years
Declassify Under the Authority of Executive Order 12958
By Executive Secretary, Office of the Secretary of Defense
By William P. Marriot, CAPT, USN
June 21, 2004

DETAINEE INTERROGATIONS IN THE GLOBAL WAR ON TERRORISM: Assessment of Legal, Historical, Policy and Operational Considerations

Table of Contents

• 1 I. Introduction
• 2 II. International Law
o 2.1 A. The Geneva Conventions
o 2.2 B. The 1994 Convention Against Torture
o 2.3 C. Customary International Law
• 3 III. Domestic Law
o 3.1 A. Federal Criminal Law
 3.1.1 1. Torture Statute
 3.1.1.1 a. “Specifically Intended”
 3.1.1.2 b. “Severe Pain or Suffering”
 3.1.1.3 c. “Severe Mental Pain or Suffering”
 3.1.1.3.1 i. “Prolonged Mental Harm”
 3.1.1.3.2 ii. Harm Caused By Or Resulting From Predicate Acts
 3.1.2 2. Other Federal Crimes that Could Relate to Interrogation Techniques
 3.1.2.1 a. Assaults within maritime and territorial jurisdiction, 18 U.S.C. § 1139
 3.1.2.2 b. Maiming, 18 U.S.C. § 114
 3.1.2.3 c. Murder, 18 U.S.C. § 1111
 3.1.2.4 d. Manslaughter, 18 U.S.C. § 1112
 3.1.2.5 e. Interstate Stalking, 18 U.S.C. § 2261A
 3.1.2.6 f. Conspiracy, 18 U.S.C. § 2 and 18 U.S.C. § 371 [15]
 3.1.3 3. Legal doctrines under the Federal Criminal Law that could render specific conduct, otherwise criminal, not unlawful
 3.1.3.1 a. Commander-in-Chief Authority
 3.1.3.2 b. Necessity
 3.1.3.3 c. Self-Defense
 3.1.3.4 d. Military Law Enforcement Actions
 3.1.3.5 e. Superior Orders
 3.1.4 4. Lack of DOJ Representation for DOD Personnel Charged with a Criminal Offense
o 3.2 B. Federal Civil Statutes
 3.2.1 1. 28 U.S.C. 1350
 3.2.2 2. Torture Victims Protection Act (TVPA)
o 3.3 C. Applicability of the United States Constitution
 3.3.1 1. Applicability of the Constitution to aliens Outside the United States
 3.3.2 2. The Constitution Defining U.S. Obligations Under International Law
 3.3.2.1 a. Eighth Amendment
 3.3.2.2 b. Fifth Amendment and Fourteenth Amendment [48]
o 3.4 D. Juristdiction of Federal Courts
 3.4.1 1. Jurisdiction to Consider Constitutional Claims
 3.4.2 2. Other Bases for Federal Jurisdiction
 3.4.3 3. The Military Extraterritorial Jurisdiction Act
o 3.5 E. The Uniform Code of Military Justice
 3.5.1 1. Offenses
 3.5.1.1 a. Cruelty, Oppression or Maltreatment, Art 93
 3.5.1.2 b. Reckless Endangerment, Art 134
 3.5.1.3 c. Assault, Art 128
 3.5.1.4 d. Involuntary Manslaughter, Art 119
 3.5.1.5 e. Unpremeditated Murder, Art 118
 3.5.1.6 f. Disobedience of Orders, Art 92
 3.5.1.7 g. Dereliction of Duty, Art 92
 3.5.1.8 h. Maiming, Art 124
 3.5.2 2. Affirmative Defenses under the UCMJ (R.C.M. 916)
 3.5.2.1 a. Self-Defense
 3.5.2.2 b. Defense of another
 3.5.2.3 c. Accident
 3.5.2.4 d. Mistake of Fact
 3.5.2.5 e. Coercion or duress
 3.5.2.6 f. Obedience to Orders (MJB, Sections 5-8-1 and 5-8-2)
 3.5.2.7 g. Necessity
 3.5.3 3. Legal doctrine could render specific conduct, otherwise criminal, not unlawful
• 4 IV. Considerations Affecting Policy
o 4.1 A. Historical Role of U.S. Armed Forces
 4.1.1 1. Background
 4.1.2 2. Interrogation Historical Overview
 4.1.3 3. Current Doctrine
o 4.2 B. Presidential and Secretary of Defense Directives
o 4.3 C. DOD-Specific Policy Considerations
o 4.4 D. Potential Effects on Prosecutions
o 4.5 E. Inernational Considerations That May Affect Policy Determinations
 4.5.1 1. Geneva Conventions
 4.5.2 2.Convention Against Torture
 4.5.3 3. Customary International Law/Views of Other Nations
 4.5.4.4. International Criminal Court
• 5 V. Techniques
• 6 VI. Evaluation of Useful Techniques
• 7 VII. Conclusions Relevant to Interrogation of Unlawful Combatants Under DOD Control Outside the United States
• 8 VIII. Recommendations

I. Introduction

(U) On January 15, 2003, the Secretary of Defense (SECDEF), directed the General Counsel of the Department of Defense (DOD GC) to establish a working group within the Department of Defense (DOD) to assess the legal, policy, and operational issues relating to the interrogations of detainees held by the United States Armed Forces in the war on terrorism. Attachment 1.

(U) On January 16, 2003, the DOD GC asked the General Counsel of the Department of the Air Force to convene this working group, comprised of representatives of the following entities: the Office of the Undersecretary of Defense (Policy), the Defense Intelligence Agency, the General Counsels of the Air Force, Army, and Navy and Counsel to the Commandant of the Marine Corps, the Judge Advocates General of the Air Force, Army, Navy, and Marines, and the Joint Staff Legal Counsel and J5. Attachment 2. The following assessment is the result of the collaborative efforts of those organizations, after consideration of diverse views, and was informed by a Department of Justice opinion.

(U) In preparing this assessment, it was understood that military members, civilian employees of the United States, and contractor employees currently participate in interrogations of detainees. Further, those who participate in the decision processes are comprised of military personnel and civilians.

(U) Our review is limited to the legal and policy considerations applicable to interrogation techniques applied to unlawful combatants in the Global War on Terrorism interrogated outside the sovereign territory of the United States by DOD personnel in DOD interrogation facilities. Interrogations can be broadly divided into two categories, strategic and tactical. This document addresses only strategic interrogations that are those conducted: (i) at a fixed location created for that purpose; (ii) by a task force or higher level component and (iii) other than in direct and immediate support of on-going military operations. All tactical interrogations, including battlefield interrogations, remain governed by existing doctrine and procedures and are not directly affected by this review.

(U) In considering interrogation techniques for possible application to unlawful combatants in the "strategic" category, it became apparent that those techniques could be divided into three types: (i) routine (those that have been ordinarily used by interrogators for routine interrogations), (ii) techniques comparable to the first type but not formally recognized, and (ii) more aggressive counter-resistance techniques than would be used in routine interrogations. The third type would only be appropriate when presented with a resistant detainee who there is good reason to believe possesses critical intelligence.

Many of the techniques of the second and third types have been requested for approval by USSOUTHCOM and USCENTCOM. The working group's conclusions regarding these three types of techniques, including recommendations for appropriate safeguards, are presented at the end of this report.

(U) This assessment comes in the context of a major threat to the security of the United States by terrorist forces who have demonstrated a ruthless disregard for even minimal standards of civilized behavior, with a focused intent to inflict maximum casualties on the United States and its people, including its civilian population. In this context, intelligence regarding their capabilities and intentions is of vital interest to the United States and its friend and allies. Effective interrogations of those unlawful combatants who are under the control of the United States have proven to be and will remain a critical source of this information necessary to national security.

(U) Pursuant to the Confidential Presidential Determination, dated February 7, 2002 (Humane Treatment of al Qaida and Taliban Detainees), the President determined that members of al-Qaida and the Taliban are unlawful combatants and therefore are not entitled to the protections of the Geneva Conventions as prisoners of war or otherwise. However, as a matter of policy, the President has directed U.S. Armed Forces to treat al Qaida and Taliban detainees "humanely" and "to the extent appropriate and consistent with military necessity, in a manner consistent with the principles" of the Geneva Conventions. Due to the unique nature of the war on terrorism in which the enemy covertly attacks innocent populations without warning, and further due to the critical nature of the information believed to be known by certain of the al-Qaida and Taliban detainees regarding future terrorist attacks, it may be appropriate for the appropriate approval authority to authorize as a military necessity the interrogation of such unlawful combatants in a manner beyond that which may be applied to a prisoner of war who is subject to the protections of the Geneva Conventions.

(U) In considering this issue, it became apparent that any recommendations and decisions must take into account the international and domestic law, past practices and pronouncements of the United States, DOD policy considerations, practical interrogation considerations, the views of other nations, and the potential impacts on the United States, its Armed Forces generally, individual interrogators, and those responsible for authorizing and directing specific interrogation techniques.

(U) We were asked specifically to recommend techniques that comply with all applicable law and are believed consistent with policy considerations not only of the United States but which may be unique to the DOD. Accordingly, we undertook that analysis and conducted a technique-specific review that has produced a summary chart (Attachment 3) for use in identifying the recommended techniques.

II. International Law

(U) The following discussion addresses the requirements of international law, as it pertains to the Armed Forces of the United States, as interpreted by the United States. As will be apparent in other sections of this analysis, other nations and international bodies may take a more restrictive view, which may affect our policy analysis and thus is considered elsewhere. These views are addressed in the "Considerations Affecting Policy" section below.

A. The Geneva Conventions

(U) The laws of war contain obligations relevant to the issue of interrogation techniques and methods. It should be noted, however, that it is the position of the U.S. Government that none of the provisions of the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 (Third Geneva Convention) apply to al Qaida detainees because, inter alia, al Qaida is not a High Contracting Party to the Convention. [1] As to the Taliban, the U.S. Position is that the provisions of Geneva apply to our present conflict with the Taliban, but that Taliban detainees do not qualify as prisoners of war under Article 4 of the Geneva Convention. [2] The Department of Justice has opined that the Geneva Convention Relative to the Protection of Civilian Personnel in time of War (Fourth Geneva Convention) does not apply to unlawful combatants.

B. The 1994 Convention Against Torture

(U) The United States’ primary obligation concerning torture and related practices derives from the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (commonly referred to as “the Torture Convention”). The United States Ratified the Convention in 1994, but did so with a variety of Reservations and Understandings.

(U) Article 1 of the Convention defines the term “torture” for purpose of the treaty. The United States conditioned its ratification of the treaty on an understanding that:

…in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; (4) or the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality. [4]

(U) Article 2 of the Convention requires the Parties to “take effective legislative, administrative, judicial and other measures to prevent acts of torture in any territory under its jurisdiction”. The U.S. Government believed existing state and federal criminal law was adequate to fulfill this obligation, and did not enact implementing legislation. Article 2 also provides that acts of torture cannot be justified on the grounds of exigent circumstances, such as state of war or public emergency, or on orders from a superior officer or public authority. [5] The United States did not have an Understanding or Reservation relating to this provision (however the U.S. issued a Declaration stating that Article 2 is not self-executing).

(U) Article 3 of the Convention contains an obligation not to expel, return, or extradite a person to another state where there are “substantial grounds” for believing that the person would be in danger of being subjected to torture. The U.S. understanding relating to this article is that it only applies “if it is more likely than not” that the person would be tortured.

(U) Under Article 5, the Parties are obligated to establish jurisdiction over acts of torture when committed in any territory under its jurisdiction or on board a ship or aircraft registered in that state, or by its nationals wherever committed. The “special maritime and territorial jurisdiction of the United States” under 18 U.S.C. § 7 satisfies the U.S. obligation to establish jurisdiction over torture committed in territory under U.S. jurisdiction or on board a U.S. registered ship or aircraft. However, the additional requirement of Article 5 concerning jurisdiction over acts or torture by U.S. nationals “wherever committed” needed legislative implementation. Chapter 113C of Title 18 of the U.S. Code provides federal criminal jurisdiction over an extraterritorial act or attempted act of torture if the offender is a U.S. national. The statute defines “torture” consistent with the U.S. Understanding on Article 1 of the Torture Convention.

(U) The United States is obligated under Article 10 of the Convention to ensure that law enforcement and military personnel involved in interrogations are educated and informed regarding the prohibition against torture. Under Article 11, systematic reviews of interrogation rules, methods, and practices are also required.

(U) In addition to torture, the Convention prohibits cruel, inhuman and degrading treatment or punishment within territories under a Party’s jurisdiction (Art 16). Primarily because the meaning of the term “degrading treatment” was vague and ambiguous, the United States imposed a Reservation on this article to the effect that it considers itself bound only to the extent that such treatment or punishment means the cruel, unusual and inhuman treatment or punishment prohibited by the 5th, 8th, and 14th Amendments to the U.S. Constitution (see discussion infra, in the Domestic Law section),

(U) In sum, the obligations under the Torture Convention apply to the interrogation of unlawful combatant detainees, but the Torture Convention prohibits torture only as defined in the U.S. Understanding, and prohibits “cruel, inhuman, and degrading treatment and punishment” only to the extent of the U.S. Reservation relating to the U.S. Constitution.

(U) An additional treaty to which the United States is a party is the International Covenant on Political and Civil Rights, ratified by the United States in 1992. Article 7 of this treaty provides that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The United States’ ratification of the Covenant was subject to a Reservation that “the United States considers itself bound by Article 7 only to the extent that cruel, inhuman, or degrading treatment or punishment means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments of the Constitution of the United States.” Under this treaty, a “human Rights Committee” may, with the consent of the Party in question, consider allegations that such Party is not fulfilling its obligations under the Covenant. The United States has maintained consistently that the Covenant does not apply outside the United States or its special maritime and territorial jurisdiction, and that it does not apply to operations of the military during an international armed conflict.

C. Customary International Law

(U) The Department of Justice has concluded that customary international law cannot bind the Executive Branch under the Constitution, because it is not a federal law. [6] In particular, the Department of Justice has opined that “under clear Supreme Court precedent, any presidential decision in the current conflict concerning the detention and trial of al-Qaida or Taliban militia prisoners would constitute a “controlling” Executive act that would immediately and completely override any customary international law”. [7]

III. Domestic Law

A. Federal Criminal Law

1. Torture Statute

(U) 18 U.S.C. § 2340 defines as torture any “act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain…” The intent required is the intent to inflict severe physical or mental pain. 18 U.S.C. § 2340A requires that the offense occur “outside the United States”. Jurisdiction over the offense extends to any national of the United States or any alleged offender present in the United States, and could, therefore, reach military members, civilian employees of the United States, or contractor employees. [8] The “United States” is defined to include all areas under the jurisdiction of the United States, including the special maritime and territorial jurisdiction (SMTJ) of the United States. SMTJ is a statutory creation [9] that extends the criminal jurisdiction of the United States for designated crimes to defined areas. [10] The effect is to grant federal court criminal jurisdiction for the specifically identified crimes.

(U) The USA Patriot Act (2001) amended the definition of the SMTJ to add subsection 9, which provides:

“With respect to offenses committed by or against a national of the United States as that term is used in section 101 of the Immigration and Nationality Act—

(A) the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of maintaining those missions or entities, irrespective of ownership; and

(B) residences in foreign States and the land appurtenant or ancillary thereto, irrespective of ownership, used for purposes of those missions or entities or used by United States personnel assigned to those missions or entities.

Nothing in this paragraph shall be deemed to supercede any treaty or international agreement with which this paragraph conflicts. This paragraph does not apply with respect to an offense committed by a person described in section 3261(a) of this title.

(U) By its terms, the plain language of new subsection 9 includes Guantanamo Bay Naval Station (GTMO) within the definition of the SMTJ, and accordingly makes GTMO within the United States for purposes of § 2340. As such, the Torture Statute does not apply to the conduct of U.S. personnel at GTMO. Prior to passage of the Patriot Act in 2001, GTMO was still considered within the SMTJ as manifested by (i) the prosecution of civilian dependents and employees living in GTMO in Federal District Courts based on SMTJ jurisdiction, and (ii) a Department of Justice opinion [11] to that effect.

(U) Any person who commits an enumerated offense in a location that is considered within the special maritime and territorial jurisdiction is subject tot the jurisdiction of the United States.

(U) For the purposes of this discussion, it is assumed that an interrogation done for official purposes is under “color of law” and that detainees are in DOD’s custody or control.

(U) Although Section 2340 does not apply to interrogations at GTMO, it would apply to U.S. operations outside U.S. jurisdiction, depending on the facts and circumstances of each case involved. The following analysis is relevant to such activities.

(U) To convict a defendant of torture, the prosecution must establish that: (1) the torture occurred outside the United States; (2) the defendant acted under color of law; (3) the victim was within the defendant’s custody or physical control; (4) the defendant specifically intended to cause severe physical or mental pain or suffering; and (5) that the act inflicted severe physical or mental pain or suffering. See also S. Exec. Rep. No. 101-30, at 6 (1990). (“For an act to be ‘torture,’ it must…cause severe pain and suffering, and be intended to cause severe pain and suffering.”)

a. “Specifically Intended”

(U) To violate Section 2340A, the statute requires that severe pain and suffering must be inflicted with specific intent. See U.S.C. § 2340(1). In order for a defendant to have acted with specific intent, he must have expressly intended to achieve the forbidden act. See United States v. Carter, 530 U.S. 255, 269 (2000); Black’s Law Dictionary at 814 (7th ed. 1999) (defining specific intent as “[t]he intent to accomplish the precise criminal act that one is later charged with”). For example, in Ratzlaf v. United States, 510 U.S. 135, 141 (1994), the statute at issue was construed to require that the defendant act with the “specific intent to commit the crime”. (Internal quotation marks and citation omitted). As a result, the defendant had to act with the express “purpose to disobey the law” in order for the mens rea element to be satisfied. Ibid. (Internal quotation marks and citation omitted.)

(U) Here, because Section 2340 requires that a defendant act with the specific intent to inflict severe pain, the infliction of such pain must be the defendant’s precise objective. If the statute had required only general intent, it would be sufficient to establish guilt by showing the defendant “possessed knowledge with respect to the actus reus of the crime.” Carter, 530 U.S. at 268. If the defendant acted knowing that severe pain or suffering was reasonably likely to result from his actions, but no more, he would have acted only with general intent. See id at 269 Black’s Law Dictionary: 813 (7th ed. 1999) (explaining that general intent “usu[ally] takes the form of recklessness (involving actual awareness of a risk and the culpable taking of that risk) or negligence ( involving blameworthy inadvertence)”). The Supreme Court has used the following example to illustrate the difference between these two mental states:

[A] person entered a bank and took money from a teller at gunpoint, but deliberately failed to make a quick getaway from the bank in the hope of being arrested so that he would be returned to prison and treated for alcoholism. Though this defendant knowingly engaged in the acts of using force and taking money (satisfying “general intent”), he did not intend permanently to deprive the bank of its possession of the money (failing to satisfy “specific intent”).

Carter, 530 U.S. at 268 (citing 1 W. Lafave & A. Scott, Substantive Criminal Law § 3.5, at 315 (1986).

(U) As a theoretical matter, therefore, knowledge alone that a particular result is certain to occur does not constitute specific intent. As the Supreme Court explained in the context of murder, “the…common law of homicide distinguishes…between a person who knows that another person will be killed as a result of his conduct and a person who acts with the specific purpose of taking another’s life[.]” United States v. Bailey, 444 U.S. 394, 405 (1980). “Put differently, the law distinguishes actions taken ‘because of’ a given end from actions taken ‘in spite’ of their unintended but foreseen consequences.” Vacco v. Quill, 521 U.S. 793, 802-03 (1997). Thus, even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith. Instead, a defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering on a person within his custody or physical control. While as a theoretical matter such knowledge does not constitute specific intent, juries are permitted to infer from the factual circumstances that such intent is present. See, e.g., United States v. Godwin, 272 F.3d 659, 666 (4th Cir, 2001); United States v. Karro, 257 F.3d 112, 118 (2d Cir. 2001); United States v. Wood, 207 F.3d 1222, 1232 (10th Cir. 2000); Henderson v. United States, 202 F.2d 400, 403 (6th Cir. 1953). Therefore when a defendant knows that his actions will produce the prohibited result, a jury will in all likelihood conclude that the defendant acted with specific intent.

(U) Further, a showing that an individual acted with a good faith belief that his conduct would not produce the result that the law prohibits negates specific interest. See, e.g. South Atl. Lmtd. Ptrshp. Of Tenn v. Reise, 218 F.3d 518, 531 (4th Cir. 2002). Where a defendant acts in good faith, he acts with an honest belief that he has not engaged in the proscribed conduct. See Cheek v. United States, 498 U.S. 192, 202 (1991); Unied States v. Mancuso, 42 F.3d 836, 837 (4th Cir. 1994). For example, in the context of mail fraud, if an individual honestly believes that the material transmitted is truthful, he has not acted with the required intent to deceive or mislead. See e.g. United States v. Sayakhom, 186 F.3d 928 939-40 (9th Cir. 1999). A good faith belief need not be a reasonable one. See Cheek, 498 U.S. at 202.

(U) Although a defendant theoretically could hold an unreasonable belief that his acts would not constitute the actions prohibited by the statute, even though they would as a certainty produce the prohibited effects, as a matter of practice in the federal criminal justice system, it is highly unlikely that a jury would acquit in such a situation. Where a defendant holds an unreasonable belief, he will confront the problem of providing to the jury that he actually held that belief. As the Supreme Court noted in Cheek, “the more unreasonable the asserted beliefs or misunderstandings are, the more likely the jury…will find that the government has carried its burden of providing knowledge”. Id at 203-04. As explained above, a jury will be permitted to infer that the defendant held the requisite specific intent. As a matter of proof, therefore, a good faith defense will prove more compelling when a reasonable basis exists for the defendant’s belief.

b. “Severe Pain or Suffering”

(U) The key statutory phrase in the definition of torture is the statement that acts amount to torture if they cause “severe physical or mental pain or suffering”. In examining the meaning of a statute, its text must be the starting point. See INS v. Phinpathya, 464 U.S. 183, 189 (1984) (“This Court has noted on numerous occasions that in all cases involving statutory construction, our starting point must be the language employed by Congress…and we assume that the legislative purpose is expressed by the ordinary meaning of the words used.”) (internal quotations and citations omitted). Section 2340 makes plain that the infliction of pain or suffering per sem whether it is physical or mental, is insufficient to amount to torture. Instead, the text provides that pain or suffering must be “severe.” The statute does not, however, define the term “severe”. “In the absence of such a definition, we construe a statutory term in accordance with its ordinary or natural meaning.” FDIC v. Meyer, 510 U.S. 471, 476 (1994). The dictionary defines “severe” as “[u]nsparing in exaction, punishment, or censure” or “[i]nflicting discomfort or pain hard to endure; sharp; afflictive; distressing; violent; extreme; as severe pain, anguish, torture”. Webster’s New International Dictionary 2295 (2d ed. 1935); see American Heritage Dictionary of the English Language 1653 (3d ed. 1992) (“extremely violent or grievous: severe pain”) (emphasis in original); IX The Oxford English Diction"4TY 572 (1978) (“Of pain, suffering, loss or the like: Grievous, extreme” and “of circumstances…hard to sustain or endure”). Thus, the adjective “severe” conveys that the pain or suffering must be of such a high level of intensity that the pain is difficult for the subject to endure.

c. “Severe Mental Pain or Suffering”

(U) Section 2340 gives further guidance as to the meaning of “severe mental pain or suffering,” as distinguished from severe physical pain and suffering. The statute defines “severe mental pain or suffering” as:

the prolonged mental harm caused by or resulting from—

(a) the intentional infliction or threatened infliction of severe physical pain or suffering;

(b) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(c) the threat of imminent death; or

(d) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.

18 U.S.C.§ 2340(2). In order to prove “severe mental pain or suffering”, the statute requires proof of “prolonged mental harm” that was caused by or resulted from one of four enumerated acts. We consider each of these elements.

i. “Prolonged Mental Harm”

(U) As an initial matter, Section 2340(2) requires that the severe mental pain must be evidenced by “prolonged mental harm”. To prolong is to “lengthen in time” or to “extend the duration of, to draw out”. Webster’s Third New International Dictionary 1815 (1988); Webster’s New International Dictionary 1980 (2d ed. 1935). Accordingly, “prolong” adds a temporal dimension to the harm to the individual, namely, that the harm must be one that is endured over some period of time. Put another way, the acts giving rise to the harm must cause some lasting, though not necessarily permanent, damage. For example, the mental strain experienced by an individual during a length and intense interrogation such as one that state or local police might conduct upon a criminal suspect, would not violate Section 2340(2). On the other hand, the development of a mental disorder such as posttraumatic stress disorder, which can last months or even years, or even chronic depression, which can also last for a considerable period of time is untreated, might satisfy the prolonged hard requirement. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 426, 439-45 (4th ed. 1994) (“DSM-IV”). See also Craig Haney & Mona Lynch, Regulating Prisons of the Future: A Psychological Analysis of Supermax and Solitary Confinement, 23 N.Y.U. Rev. L. & Soc. Change 477, 509 (1977) (noting that posttraumatic stress disorder is frequently found in torture victims); cf Sana Loue, Immigration Law and Health § 10:46 (2001) (recommending evaluating for post-traumatic stress disorder immigrant-client who has experienced torture). [12] By contrast to “severe pain” the phrase “prolonged mental harm” appears nowhere else in the U.S. Code nor does it appear in relevant medical literature or international human rights reports.

(U) Not only must the mental harm be prolonged to amount to severe mental pain and suffering, but also it must be caused by or result from one of the acts listed in the statute. In the absence of a catchall provision, the most natural reading of the predicate acts listed in Section 2340(2)(A)(D) is that Congress intended the list to be exhaustive. In other words, other acts not included within Section 2340(2)’s enumeration are not within the statutory prohibition. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993) (“Expressio unius est exclusion alterius”); Norman Singer, 2A Sutherland on Statutory Construction § 47, 23 (6th ed. 2000) (“[W]here a form of conduct the manner of its performance and operation, and the persons and things to which it refers are designated, there is an inference that all omissions should be understood as exclusions.”) (footnotes omitted). We conclude that torture within the meaning of the statute requires the specific intent to cause prolonged mental harm by one of those acts listed in Section 2340(2).

(U) A defendant must specifically intend to cause prolonged mental harm for the defendant to have committed torture. It could be argued that a defendant needs to have specific intent only to commit the predicate acts that give rise to prolonged mental harm. Under that view, so long as the defendant specifically intended to, for example, threaten a victim with imminent death, he would have sufficient mens rea for a conviction. According to this view, it would be further necessary for a conviction to show only that the victim factually suffered prolonged mental harm, rather than that the defendant intended to cause it. We believe that this approach is contrary to the text of the statute. The statute requires that the defendant specifically intend to inflict severe mental pain or suffering. Because that statute requires this mental state with respect to the infliction of severe mental pain and because is expressly defines severe mental pain in terms of prolonged mental harm, that mental state must be present with respect to prolonged mental harm. To read the statute otherwise would read the phrase “prolonged mental harm caused by or resulting from” out of the definition of “severe mental pain or suffering”.

(U) A defendant could negate a showing of specific intent to cause severe mental pain or suffering by showing that he had acted in good faith that his conduct would not amount to the acts prohibited by the statute. Thus, if as defendant has a good faith belief that his actions will not result in prolonged mental harm, he lacks the mental state necessary for his actions to constitute torture. A defendant could show that he acted in good faith by taking such steps as surveying professional literature, consulting with experts, or reviewing evidence gained from past experience. See, e.g., Ratlzlaf, 510 U.S. at 142 n.10 (noting that where the statute required that the defendant act with the specific intent to violate the law, the specific intent element “might be negated by, e.g., proof that defendant relied in good faith on advice of counsel.”) (citations omitted). All of these steps would allow that he had drawn on the relevant body of knowledge concerning the result proscribed by the statute, namely prolonged mental harm. Because the presence of good faith would negate the specific intent element of torture, good faith may be a complete defense to such a charge. See, e.g., United States v. Wall, 130 F. 3d 739, 746 (6th Cir. 1997); United States v. Casperson, 773 f.2d 216, 222.23 (8th Cir. 1985).

ii. Harm Caused By Or Resulting From Predicate Acts

(U) Section 2340(2) sets forth four basic categories of predicate acts. The first category is the “intentional infliction or threatened infliction of severe physical pain or suffering”. The might at first appear superfluous because the statute already provides that the infliction of severe physical pain or suffering can amount to torture. This provision, however, actually captures the infliction of physical pain or suffering when the defendant inflicts physical pain or suffering with general intent rather than the specific intent that is required where severe physical pain or suffering alone is the basis for the charge. Hence, this subsection reaches the infliction of severe physical pain or suffering when it is only the means of causing prolonged mental harm. Or put another way, a defendant has committed torture when he intentionally inflicts severe physical pain or suffering with the specific intent of causing prolonged mental harm. As for the acts themselves, acts that cause “severe physical pain or suffering” can satisfy this provision.

(U) Additionally, the threat of inflicting such pain is a predicate act under the statute. A threat may be implicit or explicit. See, e.g., United States v. Sachdev, 279 F.3d 25, 29 (1st Cir. 2002). In criminal law, courts generally determine whether and individual’s word or actions constitute a threat by examining whether a reasonable person in the same circumstances would conclude that a threat had been made. See, e.g., Watts v. United States, 394 U.S. 705, 708 (1969) (holding that whether a statement constituted a threat against the president’s life had to be determined in light of all the surrounding circumstances); Sachdev, 279 F.3d at 29 (“a reasonable person in defendant’s position would perceive there to be a threat, explicit or implied, of physical injury”); United States v. Khorrami, 895 F2.d 1186, 1190 (7th Cir. 1990) (to establish that a threat was made, the statement must be made “in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates a statement as a serious expression of an intention to inflict bodily harm upon [another individual]”) (citation and internal quotation marks omitted); United States v. Peterson, 483 F.2d 1222, 1230 (D.C. Cir. 1973) (perception of threat of imminent harm necessary to establish self-defense had to be “objectively reasonable in light of the surrounding circumstances”). Based on this common approach, we believe that the existence of a threat of severe pain or suffering should be assessed from the standpoint of a reasonable person in the same circumstances.

(U) Second, Section 2340(2)(B) provides that prolonged mental harm, constituting torture, can be caused by “the administration or application or threatened administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality”. The statute provides no further definition of what constitutes a mind-altering substance. The phrase “mind-altering substances” is found nowhere else in the U.S. Code, nor is it found in dictionaries. It is, however, a commonly used synonym for drugs. See, e.g. United States v. Kingsley, 241 F.3d 828, 834 (6th Cir.) (referring to controlled substances as “mind-altering substance[s]”), cert. denied, 122 S. Ct. 137 (2001); Hogue V. Johnson, 131 f.3d 466, 501 (5th Cir. 1997) (referring to drugs and alcohol as “mind-altering substance[s]”), cert. denied, 523 U.S. 1014 (1998). In addition, the phrase appears in a number of state statutes, and the context in which it appears confirms this understanding of the phrase. See, e.g., Cal. Penal Code § 3500 (c) (West Supp. 2000)(“Psychotropic drugs also include mind-altering…drugs…”); Minn. Stat. Ann. § 260B.201(b) (West Supp. 2002) (“‘chemical dependency treatment’” define as programs designed to “reduce[e] the risk of the use of alcohol, drugs, or other mind-altering substances”).

(U) This subparagraph, section 2340(2)(B), however, does not preclude any and all use of drugs. Instead, it prohibits the use of drugs that “disrupt profoundly the senses or the personality”. To be sure, one could argue that this phrase applies only to “other procedures”, not the application of mind-altering substances. We reject this interpretation because the terms of Section 2340(2) expressly indicate that the qualifying phrase applies to both “other procedures” and the “application of mind-altering substances”. The word “other” modifies “procedures calculated to disrupt profoundly the senses”. As an adjective, “other” indicates that the term or phrase it modifies is the remainder of several things. See Webster’s Third New International Dictionary 1598 (1986) (defining “other” as “being the one (as of two or more) remaining or not included”). Or put another way, “other” signals that the words to which it attaches are of the same kind, type, or class as the more specific item previously listed. Moreover, where a statute couple words or phrases together, it “denotes an intention that they should be understood in the same general sense.” Norman Singer, 2A Sutherland on Statutory Construction § 47:16 (6th ed. 2000); see also Beecham v. United States, 511 U.S. 368, 371 (1994) (“that several items in a list share an attribute counsels in favor of interpreting the other items as possessing that attribute as well.”). Thus, the pairing of mind-altering substances with procedures calculated to disrupt profoundly the sense or personality and the use of “other” to modify “procedures” shows that the use of such substances must also cause a profound disruption of the senses or personality.

(U) For drugs or procedures to rise to the level of “disrupt[ing] profoundly the sense or personality”, they must produce an extreme effect. And by requiring that they be “calculated” to produce such an effect, the statute requires that the defendant has consciously designed the acts to produce such an effect. 28 U.S.C. § 2340(2)(B). The word “disrupt” is defined as “to break asunder; to part forcibly; rend,” imbuing the verb with a connotation of violence. Webster’s New International Dictionary 753 (2d ed. 1935); see Webster’s Third new International Dictionary 656 (1986) (defining disrupt as “to break apart: Rupture” or “destroy the unity or wholeness of”); IV the Oxford English Dictionary 832 (1989) (defining disrupt as “[t]o break or burst asunder, to break in pieces; to separate forcibly”). Moreover, disruption of the senses or personality alone is insufficient to fall within the scope of this subsection; instead, that disruption must be profound. The word “profound” has a number of meanings, all of which convey a significant depth. Webster’s New International Dictionary 1977 (2 ed. 1935 defines profound as: “Of very great depth; extending far below the surface or top; unfathomable[;]…[c]oming from, reaching to, or situated at a depth of more than ordinary depth; not superficial; deep-seated; chiefly with reference to the body; as a profound sigh, wounded, or pain[;]…[c]haracterized by intensity, as of feeling or quality; deeply felt or realized; as, profound respect, fear, or melancholy; hence, encompassing; thoroughgoing; complete; as, profound sleep, silence, or ignorance.” See Webster’s Third New International Dictionary 1812 (1986) (“having very great depth: extending far below the surface…not superficial”). Random House Webster’s Unabridged Dictionary 1545 (2d ed. 1999) also defines profound as “originating in or penetrating to the depths of one’s being” or “pervasive or intensive; thorough; complete” or “extending, situated, or originating far down, or far beneath the surface.” By requiring that the procedures and the drugs create a profound disruption, the statute requires more than the acts “forcibly separate” or “rend” the senses or personality. Those acts must penetrate to the core of an individual’s ability to perceive the world around him, substantially interfering with his cognitive abilities, or fundamentally alter his personality.

(U) The phrase “disrupt profoundly the senses or personality” is not used in mental health literature nor is it derived from elsewhere in U.S. law. Nonetheless, we think the following examples would constitute a profound disruption of the senses or personality. Such an effect might be seen in a drug-induced dementia. In such a state, the individual suffers from significant memory impairment, such as the inability to retain any new information or recall information about things previously of interest to the individual. See DSM-IV at 134. [13] This impairment is accompanied by one or more of the following: deterioration of language function, e.g., repeating sounds or words over and over again; impaired ability to execute simple motor activities, e.g., inability to dress or wave goodbye; “[in]ability to recognize [and identify] objects such as chairs or pencils” despite normal visual functioning, or “[d]isturbances in executive level functioning”, i.e., serious impairment of abstract thinking. Id. At 134-35. Similarly, we think that the onset of “brief psychotic disorder” would satisfy this standard. See id. At 302-03. I this disorder, the individual suffers psychotic symptoms, including among other things, delusions, hallucinations, or even a catatonic state. This can last for one day or even one month. See id. We likewise think that the onset of obsessive-compulsive disorder behaviors would rise to this level. Obsessions are intrusive thoughts unrelated to reality. They are not simple worries, but are repeated doubts or even “aggressive or horrific impulses.” See id. at 418. The DSM-IV further explains that compulsions include “repetitive behaviors (e.g., hand washing, ordering, checking)” and that “[b ]y definition, [they] are either clearly excessive or are not connected in a realistic way with what they are designed to neutralize or prevent”, See id. Such compulsions or obsessions must be “time-consuming”, See id at 419. Moreover, we think that pushing someone to the brink of suicide (which could be evidenced by acts of self-mutilation), would be a sufficient disruption of the personality to constitute a “profound disruption” These examples, of course, are in no way intended to be an exhaustive list. Instead, they are merely intended to illustrate the sort of mental health effects that we believe would accompany an action severe enough to amount to one that “disrupt[s] profoundly the sense or the personality”.

(U) The third predicate act listed in Section 2340 (2) is threatening an individual with “imminent death”, 18 U.S.C. § 2340(2)(C). The plain text makes clear that a threat of death alone is insufficient; the threat must indicate that death is “imminent”. The “threat of imminent death” is found in the common law as an element of the defense of duress. See Bailey, 444 U.S. at 409. “[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.” Morissette v. United States, 342 U.S. 246, 263 (1952). Common law cases and legislation generally define “imminence” as requiring that the threat be almost immediately forthcoming. 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 5.7, at 655 (19860. By contrast, threats referring vaguely to things that might happen in the future do not satisfy this immediacy requirement. See United States v. Fiore, 178 F. 3rd 917, 923 (7th Cir. 1999). Such a threat fails to satisfy this requirement not because is it too remote in time but because there is a lack of certainty that it will occur. Indeed, timing is an indicator of certainty that the harm will be fall the defendant. Thus, a vague threat that someday the prisoner might be killed would not suffice. Instead, subjecting a prisoner to mock executions or playing Russian roulette with him would have sufficient immediacy to constitute a threat of imminent death. Additionally, as discussed earlier, we believe that the existence of a threat must be assessed from the perspective of a reasonable person in the same circumstances.

(U) Fourth, if the official threatens to do anything previously described to a third party, or commits such an act against a third party, that threat or action san serve as the necessary predicate for prolonged mental harm. See 18 U.S.C. § 2340 (2)(D). The statute does not require any relationship between the prisoner and the third party.

2. Other Federal Crimes that Could Relate to Interrogation Techniques

(U) Through the SMTJ, the following federal crimes are generally applicable to actions by military or civilian personnel; murder (18 U.S.C. § 1111), manslaughter (18 U.S.C. § 1112, assault (18 U.S.C. § 113), maiming (18 U.S.C. § 114), kidnapping (18 U.S.C. § 1201). These, as well as war crimes (18 U.S.C. § 2441) [14] and conspiracy (18 U.S.C. § 371), are discussed below.

a. Assaults within maritime and territorial jurisdiction, 18 U.S.C. § 1139

(U) 18 U.S.C. § 113 proscribes assault within the special maritime and territorial jurisdiction. Although section 113 does not define assault, courts have construed the term “assault” in accordance with that term’s common law meaning. See, e.g., United States v. Estrada-Fernandez, 150F.3d 491, 494 n.1 (5th Cir. 1998); United States v. Juvenile-Male, 930 F.2d 727, 728 (9th Cir. 1991). At common law an assault is an attempted battery or an act that puts another person in reasonable apprehension of bodily harm. See e.g., United States v. Bayes, 210 F.3d 64, 68 (1st Cir. 2000). Section 113 reaches more than simple assault, sweeping within its ambit acts that would at common law constitute battery.

(U) 18 U.S.C § 113 proscribes several specific forms of assault. Certain variations require specific intent, to wit: assault with intent to commit murder (imprisonment for not more than twenty years); assault with intent to commit any felony (except murder and certain sexual offenses) (fine and/or imprisonment for not more than ten years); assault with a dangerous weapon, with intent to do bodily harm, and without just cause or excuse (fine and/or imprisonment for not more than ten years, or both). Other defined crimes require only general intent, it wit: assault by striking, beating, or wounding(fine and/or imprisonment for not more than six months); simple assault (fine and/or imprisonment for not more than six months), or if the victim of the assault is an individual who has not attained the age of 16 years (fine and/or imprisonment for not more than 1 year); assault resulting in serious bodily injury (fine and/or imprisonment for not more than ten years); assault resulting in serious bodily injury to an individual who has not attained the age of 16 years (fine and/or imprisonment for not more than 5 years). “Substantial bodily injury” means bodily injury which involves (A) temporary but substantial disfigurement; (B) extreme physical pain; (C) protracted and obvious disfigurement; or (D) protracted loss or impairment of the function of a bodily member, organ, or mental faculty. “Bodily injury” means (A) a cut, abrasion, bruise, burn, or disfigurement; (B) physical pain; (C) illness; (D) impairment of the function of a bodily member, organ, or mental faculty; or (E) any other injury to the body, no matter how temporary.

b. Maiming, 18 U.S.C. § 114

(U) Whoever with intent to torture (as defined in section 2340), maims, or disfigures, cuts, bites, or slits the nose, ear, or lip, or cuts out or disables the tongue, or puts out or destroys and eye, or cuts off or disables a limb or any member of another person’ or whoever, and with like intent, throws or pours upon another person, any scalding water, corrosive acid, or caustic substance shall be fines and/or imprisoned not more than twenty years. This is a specific intent crime.

c. Murder, 18 U.S.C. § 1111

(U) Murder is the unlawful killing of another human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or nay other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree. Any other murder is murder in the second degree. If within the SMTJ, whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life; whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life. Murder is a specific intent crime.

d. Manslaughter, 18 U.S.C. § 1112

(U) Manslaughter is the unlawful killing of a human being without malice. It is of two kinds: (A) voluntary, upon a sudden quarrel or heat of passion and (B) involuntary, in the commission of an unlawful act amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.

(U) If within the SMTJ whoever is guilty of voluntary manslaughter, shall be fined and/or imprisoned not more than ten years; whoever is guilty of involuntary manslaughter, shall be fined and/or imprisoned not more than six years. Manslaughter is a general intent crime. A death resulting from the exceptional interrogation techniques may subject the interrogator to a charge of manslaughter, most likely of the involuntary sort.

e. Interstate Stalking, 18 U.S.C. § 2261A

(U) 18 U.S.C. § 2261A provides that “[w]hoever…travels…within the special maritime and territorial jurisdiction of the United States…with the intent to kill, injure, harass, or intimidate another person, and in the course of or as a result of, such travel places that person in reasonable fear of the death of, or serious bodily injury of that person.” Thus there are three elements to a violation of 2261A: (1) defendant traveled in interstate commerce; (2) he did do with the intent to injure, harass, intimidate another person; (3) the person he intended to harass or injure was reasonably place in fear of death or serious bodily injury as a result of that travel. See United States v. Al-Zubaidy, 283 F.3d 804, 808 (6th Cir, 2002).

(U) The travel itself must have been undertaken with the specific intent to harass or intimidate another. Or put another way, at the time of the travel itself, the defendant must have engaged in that travel for the precise purpose of harassing another person. See Al-Zubaidy, 283 F.3d at 809 (the defendant “must have intended to harass or injure [the victim] at the time he crossed the state line”).

(U) The third element is not fulfilled by the mere act of travel itself. See United States v. Crawford, No. 00-Cr-59-B-S, 2001 WL 185140 (D. Me. Jan. 26, 2991) (“A plain reading of the statute makes clear that the stature requires the actor to place the victim in reasonable fear, rather than, as Defendant would have it, that his travel place the victim in reasonable fear.”).

f. Conspiracy, 18 U.S.C. § 2 and 18 U.S.C. § 371 [15]

(U) Conspiracy to commit crime is a separate offense from crime that is the object of conspiracy. [16] Therefore, where someone is charged with conspiracy, a conviction cannot be sustained unless the Government establishes beyond a reasonable doubt that the defendant had the specific intent to violate the substantive statute. [17]

(U) As the Supreme Court most recently stated, “the essence of a conspiracy is ‘an agreement to commit an unlawful act.’” Untied States v. Jimenez Recio, —S.Ct. -, 2003 WL 139612 at *— (Jan. 12, 2003) (quoting Iannelli v. United States, 420 U.S. 770, 777 (1975). Moreover, “[t]hat agreement is a ‘distinct evil,’ which ‘may exist and be punished Whether or not the substantive crime ensues”, Id at* (quoting Salinas v. United States, 522 U.S. 52, 65 (1977).

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PART 2 OF 5 (MEMO 26 CONT'D.)

3. Legal doctrines under the Federal Criminal Law that could render specific conduct, otherwise criminal, not unlawful

(U) Generally, the following discussion identifies legal doctrines and defenses applicable to the interrogation of unlawful combatants, and the decision process related to them. In practice, their efficacy as to any person or circumstances will be fact-dependent.

a. Commander-in-Chief Authority

(U) As the Supreme Court has recognized, and as we will explain further below, the President enjoys complete discretion in the exercise of his Commander-in-Chief authority including in conducting operations against hostile forces. Because both “[t]he executive power and the command of the military and naval forces is vested in the President,” the Supreme Court has unanimously stated that it is “the President alone who is constitutionally invested with the entire charge of hostile operations.” Hamilton v. Dillin, 88 U.S. (21 Wall.) 73 (1874) (emphasis added).

(U) In light of the President’s complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the President’s ultimate authority in these areas. The Supreme Court has established a canon of statutory construction that statutes are to be constructed in a manner that avoids constitutional difficulties so long as a reasonable alternative construction is available, See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) (citing NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 499-501 (1979) ) (“[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, [courts] will construe [a] statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.”) this canon of construction applies especially where an act of Congress could be read to encroach upon powers constitutionally committed to a coordinate branch of government. See, e.g. Franklin v. Massachusetts, 505 U.S. 788, 800-1 (1992) (citation omitted) (“Out of respect for the separation of powers and the unique constitutional position of the President, we find that textual silence is not enough to subject the President to the provisions of the [Administrative Procedure Act]. We would require an express statement by Congress before assuming it intended for the President’s performance of this statutory duties to be reviewed for abuse of discretion.”); Public Citizen v. United States Dep’t of Justice, 491 U.S. 440, 465-67 (19890 (construing Federal Advisory Committee Act not to apply to advice given by American Bar Association to the President on judicial nominations, to avoid potential constitutional question regarding encroachment on Presidential power to appoint judges).

and war powers in particular, the avoidance canon has special force. See, e.g., Dept of Navy v. Egan, 484 U.S. 518, 530 (1988) (“unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.”); Japan Whaling Ass ’n v. American Cemcean Socy, 478 U.S. 221, 232-33 (1986) (construing federal statutes to avoid curtailment of traditional presidential prerogatives in foreign affairs). It should not be lightly assumed that Congress has acted to interfere with the President’s constitutionally superior position as Chief Executive and Commander-in-Chief in the area of military operations. See Egan, 484 U.S. at 529 (quoting Haig v. Agee, 1453 U.S. 280, 293-94 (1981). See also Agee, 453 U.S. at 291 (deference to Executive Branch is “especially” appropriate “in the area of national security”).

(U) In order to respect the President’s inherent constitutional authority to manage a military campaign, 18 U.S.C. § 2340A (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority. Congress lacks authority under Article I to set the terms and conditions under which the President may exercise his authority as Commander-in-Chief to control the conduct of operations during a war. The President’s power to detain and interrogate enemy combatants arises out of his constitutional authority as Commander-in-Chief. A construction of Section 2340A that applied the provision to regulate the President’s authority as Commander-in-Chief to determine the interrogation and treatment of enemy combatants would raise serious constitutional questions. Congress may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. Accordingly, we would construe Section 2340A to avoid this constitutional difficulty, and conclude it does not apply to the President’s detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority.

(U) This approach is consistent with previous decisions of the DOJ involving the application of federal criminal law. For example, DOJ has previously construes the congressional contempt statute as inapplicable to executive branch officials who refuse to comply with congressional subpoenas because of an assertion of executive privilege. In a 1984 opinion, DOJ concluded that

if executive officials were subject to prosecution for criminal contempt whenever they carried out the President’s claim of executive privilege, it would significantly burden and immeasurably impair the President’s ability to fulfill his constitutional duties. Therefore, the separation of powers principles that underlie the doctrine of executive privilege also would preclude an application of the contempt of Congress to punish officials for aiding the President in asserting his constitutional privilege.

Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted A Claim of Executive Privilege, 8:Op O.L.C. 101, 143 (May 30, 1984). Likewise, if executive officials were subject to prosecution for conducting interrogations when they were carrying out the President’s Commander-in-Chief powers, “it would significantly burden and immeasurably impair the President’s ability to fulfill his constitutional duties.” These constitutional principles preclude an application of Section 2340A to punish officials for aiding the President in exercising his exclusive constitutional authorities. Id.

(U) It could be argued that Congress enacted 18 U.S.C. § 2340A with full knowledge and consideration of the President’s Commander-in-Chief power, and that Congress intended to restrict his discretion; however, the Department of Justice could not enforce Section 2340A against federal officials acting pursuant to the president’s constitutional authority to wage a military campaign. Indeed, in a different context, DOJ has concluded that both courts and prosecutors should reject prosecutions that apply federal criminal laws to activity that is authorized pursuant to one of the President’s constitutional powers. DOJ, for example, has previously concluded that Congress could not constitutionally extend the congressional contempt statute to executive branch officials who refuse to comply with congressional subpoenas because of an assertion of executive privilege. They opined that “courts…would surely conclude that a criminal prosecution for the exercise of a presumptively valid, constitutionally based privilege is not consistent with the Constitution.” 8 Op O.L.C. at 141. Further, DOJ concluded that it could not bring a criminal prosecution against a defendant who had acted pursuant to an exercise of the President’s constitutional power. “The President, through a United States Attorney, need not, indeed may not, prosecute criminally a subordinate for asserting on his behalf a claim of executive privilege. Nor could the Legislative Branch or the courts require or implement the prosecution of such an individual.” Id. Although Congress may define federal crimes that the President, through the Take Care Clause, should prosecute, Congress cannot compel the President to prosecute outcomes taken pursuant to the President’s own constitutional authority. If Congress could do so, it could control the President’s authority through the manipulation of federal criminal law.

(U) There are even greater concerns with respect to prosecutions arising out of the exercise of the President’s express authority as Commander-in-Chief than with prosecutions arising out of the assertion of executive privilege. In a series of opinions examining various legal questions arising after September 11, 2001, DOJ explained the scope of the President’s Commander-in-Chief power. We briefly summarize the findings of those opinions here. The President’s constitutional power to protect the security of the United States and the lives and safety of it’s people must be understood in light of the Founder’s intention to create a federal government “cloathed with all the powers requisite to the complete execution of It’s trust.” The Federalist No. 23, at 147 (Alexander Hamilton) (Jacob E. Cooke ed. 1961). Foremost among the objectives committed to that trust by the Constitution is the security of the nation. As Hamilton explained in arguing for the Constitution’s adoption, because “the circumstances which may affect the public safety” are not reducible within certain determinate limits,

it must be admitted, as necessary consequences, that there can be no limitations of that authority, which is to provide for the defense and protection of the community, in any matter essential to its efficacy.

Id. at 147-48. Within the limits that the Constitution itself imposes, the scope and distribution of the powers to protect national security must be construed to authorize the most efficacious defense of the nation and its interests in accordance “with the realistic purposes of the entire instrument.” Lichter v. United States, 334 U.S. 742, 782 (1948).

(U) The text, structure, and history of the Constitution establish that the Founders entrusted the President with the primary responsibility, and therefore the power, to ensure the security of United States in situations of grave and unforeseen emergencies. The decision to deploy military force in the defense of the United States interests is expressly placed under Presidential Authority by the Vesting Clause, U.S. Const. Art I § 1, cl. 1, and by the Commander-in-Chief Clause, id., § 2, cl. 1. [18] DOJ has long understood the Commander-in-Chief Clause in particular as an affirmative grant of authority to the President. The Framers understood the Clause as investing the President with the fullest range of power understood at the time of the ratification of the Constitution as belonging to the military commander. In addition, the Structure of the Constitution demonstrates that any power traditionally understood as pertaining to the executive which includes the conduct of warfare and the defense of the nation unless expressly assigned in the Constitution to Congress, is vested in the President. Article II, Section 1 makes this clear by stating that the “executive Power shall be vested in a President of the United States of America.” That sweeping grant vests in the President an unenumerated “executive power” and contrasts with the specific enumeration of the powers-those “herein” granted to Congress in Article I. The implications of constitutional text and structure are confirmed by the practical consideration that national security decisions require the unity in purpose and energy in action that characterize the Presidency rather than Congress. [19]

(U) As the Supreme Court has recognized, the Commander-in-Chief power and the President’s obligation to protect the nation imply the ancillary powers necessary to their successful exercise. “The first of the enumerated powers of the President is that he shall be Commander-in-Chief of the Army and Navy of the United States. And of course, the grant of war power includes all that is necessary and proper for carrying those powers into execution.” Johnson v. Eisentrager, 339 U.S. 763, 788 (1950). In wartime it is for the President alone to decide what methods to use to best prevail against the enemy. The President’s complete discretion in exercising the Commander-in-Chief power has been recognized by the courts. In the Prize Cases, 67 U.S. (2 Black) 635, 670 (1862), for example, the Court explained that whether the President, “in fulfilling his duties as Commander in Chief”, had appropriately responded to the rebellion of the southern states was a question “to be decided by him” and which the Court could not question, but must leave to “the political department of the Government to which this power was entrusted”.

(U) One of the core functions of the Commander-in-Chief is that of capturing, detaining, and interrogating members of the enemy. It is well settled that the President may seize and detain enemy combatants, at least for the duration of the conflict, and the laws of war make clear that prisoners-may be interrogated for information concerning the enemy, its strength, and its plans. Numerous Presidents have ordered the capture, detention, and questioning of enemy combatants during virtually every major conflict in the Nation’s history, including recent conflicts in Korea, Vietnam, and the Persian Gulf. Recognizing this authority, Congress has never attempted to restrict or interfere with the President’s authority on this score.

(U) Any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President. There can be little doubt that intelligence operations, such as the detention and interrogation of enemy combatants and leaders, are both necessary and proper for the effective conduct of a military campaign. Indeed, such operations may be of more importance in a war with an international terrorist organization than one with conventional armed forces of a nation-state, due to the former’s emphasis on secret operations and surprise attacks against civilians. It may be the case that only successful interrogations can provide the information necessary to prevent the success of covert terrorist attacks upon the United States and its citizens. Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategy or tactical decisions on the battlefield. Just as statutes that order the president to conduct warfare in a certain manner or for specific goals would be unconstitutional, so too are laws that seek to prevent the President from gaining the intelligence he believes necessary to prevent attacks upon the United States.

(U) As this authority is inherent in the President, exercise of it by subordinates would be best if it can be shown to have been derived from the President’s authority through Presidential directive or other writing. [20]

b. Necessity

(U) The defense of necessity could be raised, under the current circumstances, to an allegation of a violation of a criminal statute. Often referred to as the “choice of evils” defense, necessity has been defined as follows:

Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that:

(a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and

(b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and

(c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.

Model Penal Code 3.02. See also Wayne R. LaFave & Austin W. Scott. I Substantive Criminal Law 5.4 at 627 (1986 &2002 app:) (“LaFave & Scott”). Although there is no federal statute that generally establishes necessity or other justifications as defenses to federal criminal laws, the Supreme Court has recognized the defense. See United States v. Bailey, 444 U.S. 394, 410 (1980) (relying on LaFave & Scott and Model Penal Code definitions of necessity defense).

(U) The necessity defense may prove especially relevant in the current circumstances. As it has been described in the case law and literature, the purpose4 behind necessity is one of public policy. According to LaFave & Scott, “the law ought to promote the achievement of higher values at the expense of lesser values, and sometimes the greater good for society will be accomplished by violating the literal language of the criminal law.” LaFave & Scott, at 629. In particular, the necessity defense can justify the intentional killing of one person to save two others because “it is better that two lives be saved and one lost than that two be lost and one saved” Id. or, put in the language of choice of evils, “the evil involved in violating the terms of the criminal law (…even taking another’s life) may be less than that which would result from literal compliance with the law (…two lives lost)”. Id.

(U) Additional elements of necessity defense are worth noting here. First, the defense is not limited to certain types of harms. Therefore, the harm inflicted by necessity may include intentional homicide, so long as the harm avoided is greater (i.e., preventing more deaths) Id. at 634. Second, it must actually be the defendant’s intention to avoid the greater harm: intending to commit murder and then learning only later that the death had the fortuitous result of saving other lives will not support a necessity defense. Id. at 635. third, if the defendant reasonably believes that the lesser harm as necessary, even if, unknown to him, it was not, he may still avail himself of the defense. As LaFave and Scott explain, “if A kills B reasonably believing it to be necessary to save C and D, he is not guilty of murder eve though, unknown to A. C and D could have been rescued without the necessity of killing B,” Id. Fourth, it is for the court, and not the defendant to judge whether the harm avoided outweighed the harm done. Id. at 636. fifth, the defendant cannot rely upon the necessity defense if a third alternative that will cause less harm is open and known to him.

(U) Although not every interrogation that could violate the provisions of Section 2340A or other potentially applicable statutes would trigger a necessity defense, it appears that under the current circumstances there may be support for such defense. On September 11, 2001, al Qaida launched a surprise covert attack on civilian targets in the United States that led to the deaths of thousands and financial losses in the billions of dollars. According to public and governmental reports, al Qaida has other sleeper cells within the United States that may be planning similar attacks. Indeed, al Qaida's plans apparently include efforts to develop and deploy chemical, biological, and nuclear weapons of mass destruction. Under these circumstances, a detainee may possess information that could enable the United States to prevent attacks that potentially could equal or surpass the September 11 attacks in their magnitude. Clearly, any harm that might occur during an interrogation would pale to insignificance compared to the harm avoided by preventing such an attack, which could take hundreds or thousands of lives.

(U) Under this rationale, two factors will help indicate that when the necessity defense could appropriately be invoked. First, the more certain that government officials are that a particular individual has information needed to prevent an attack, the more necessary interrogation will be. Second, the more likely it appears that a terrorist attack is likely to occur, and the greater the amount of damage expected from such an attack, the more that an interrogation to get information would become necessary. Of course, the strength of the necessity defense depends on the circumstances that prevail, and the knowledge of the government actors involved, when the interrogation is conducted. While every interrogation that violate Section 2340A or other potentially applicable statutes does not trigger a necessity defense, we can say that circumstances could support such a defense.

(U) Legal authorities identify an important exception to the necessity defense. The defense is available “only in situations wherein the legislature has not itself, in its criminal statute, made determination of values.” Id. at 629. Thus, if Congress explicitly has made clear that violation of a statute cannot be outweighed by the harm avoided, courts cannot recognize the necessity defense. LaFave and Israel provide as an example an abortion statute that made clear that abortions even to save the life of the mother would still be a crime; in such cases the necessity defense would be unavailable. Id. at 630. Here, however, Congress has not explicitly made a determination of values vis-à-vis torture. In fact, Congress explicitly removed efforts to remove torture from the weighing of values permitted by the necessity defense. [21]

c. Self-Defense

(U) Even if a court were to find that necessity did not justify the violation of a criminal statue, the defendant could still appropriately raise a claim of self-defense. The right to self-defense, even when it involves deadly force, is deeply embedded in our law, both as to individuals and as to the nation as a whole. As the Court of Appeals for the D.C. Circuit has explained:

More than two centuries ago, Blackstone, best known of the expositors of the English common law taught that “all homicide is malicious, and of course amounts to murder, unless…excused on the account of accident or self preservation”. Self-defense, as a doctrine legally exonerating the taking of human life, is as viable now as it was in Blackstone’s time.

United States v. Peterson, 483 F.2d 1222, 1228-29 (D.C. Cir. 1973). Self-defense is a common-law defense to federal criminal law offenses, and nothing in the text, structure or history of Section 2340A precludes its application to a charge of torture. In the absence of any textual provision to the contrary, we assume self-defense can be an appropriate defense to an allegation of torture.

(U) The doctrine of self-defense permits the use of force to prevent harm to another person. As LaFave and Scott explain, one is justified in using reasonable force in defense of another person, even a stranger, when he reasonably believes that the other is in immediate danger of unlawful bodily harm from his adversary and that the use of such force is necessary to avoid this danger.” Id. at 663-64. Ultimately, even deadly force is permissible, but “only when the attack of the adversary upon the other, person reasonably appears to the defender to be a deadly attack” Id. at 664. As with our discussion of necessity, we will review the significant elements of this defense. [22] According to LaFave and Scott, the elements of the defense of others are the same as those that apply to individual self-defense.

(U) First, self-defense requires that the use of force be necessary to avoid the danger of unlawful bodily harm. Id. at 649. a defender may justifiably use deadly force if he reasonably believes that the other person is about to inflict unlawful death or serious bodily harm upon another, and that it is necessary to use such force to prevent it. Id. at 652. Looked at from the opposite perspective, the defender may not use force when the force would be as equally effective at a later time and the defender suffers no harm or risk by waiting. See Paul H. Robinson, 2 Criminal Law defenses 131(c) at 77 (1984). If, however, other options permit the defender to retreat safely from confrontation without having to resort to deadly force, the use of force may not be necessary in the first place. LaFave and Scott at 659-60.

(U) Second, self-defense requires that the defendant’s belief in the necessity of using force be reasonable. If a defendant honestly but unreasonably believed force was necessary, he will not be able to make out a successful claim of self-defense. Id. at 654. Conversely, if a defendant reasonably believed an attack was to occur, but the facts subsequently showed no attack was threatened, he may still raise self-defense. As LaFave and Scott explain, “one may be justified in shooting to death and adversary who, having threatened to kill him, reaches for his pocket as if for a gun, thou it later appears that he had no gun and that he was only reaching for his handkerchief.” Id. Some authorities such as the Model Penal Code, even eliminate the reasonability element, and require only that the defender honestly believed regardless of its reasonableness - that the use of force was necessary.

(U) Third, many legal authorities include the requirement that a defender must reasonably believe that the unlawful violence is “imminent” before he can use force in his defense. It would be a mistake, however, to equate imminence necessarily with timing—that an attack is immediately about to occur. Rather, as the Model Penal Code explains, what is essential in that the defensive response must be “immediately necessary.” Model Penal Code § 3.04(1). Indeed, imminence must be merely another way of expressing the requirement of necessity. Robinson at 78. LaFave and Scott, for example, believe that the imminence requirement makes sense as part of a necessity defense because if an attack is not immediately upon the defender, the defender may have other options available to avoid the attack that do not involve the use of force. LaFave and Scott at 656. If, however, the fact that the attack becomes certain and no other options remain the use of force may be justified. To use a well-known hypothetical, if A were to kidnap and confine B, and then tell B he would kill B one week later, B would be justified in using force in self-defense, even if the opportunity arose before the week had passed. Id. at 656; see also Robinson at § 131(c)(1) at 78. In this hypothetical, while the attack itself is not imminent, B’s use of force becomes immediately necessary whenever he has an opportunity to save himself from A.

(U) Fourth, the amount of force should be proportional to the threat. As LaFave and Scott explain, “the amount of force which [the defender] may justifiably use must be reasonably related to the threatened harm which he seeks to avoid.” LaFave and Scott at 651. thus, one may not use deadly force in response to a threat that does not rise to death or serious bodily harm. If such harm may result however, deadly force is appropriate.

As the Model Penal Code § 3.04(2)(b) states, "[t]he use of deadly force is not justifiable unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat."

(S/NF) (U) Under the current circumstances, a defendant accused of violating the criminal prohibitions described above could have, in certain circumstances, grounds to properly claim the defense of another. The threat of an impending terrorist attack threatens the lives of hundreds if not thousands of American citizens. Whether such a defense will be upheld depends on the specific context within which the interrogation decision is made. If an attack appears increasingly likely, but our intelligence services and Armed Forces cannot prevent it without information from the interrogation of a specific individual, then the more likely it will appear that the conduct in question will be seen as necessary. If intelligence and other information support the conclusion that attack is increasingly certain, then the necessity for the interrogation will be reasonable. The increasing certainty of an attack will also satisfy the imminence requirement. Finally, the fact that previous al Qaida attacks have ahd as their aim the deaths of American citizens, and that evidence of other plots have had a similar goal in mind, would justify proportionality of interrogation methods designed to elicit information to prevent them.

(S/NF) (U) To be sure, this situation is different from the usual self-defense justification, and indeed, it overlaps with elements of the necessity defense. Self-defense as usually discussed involves using force against an individual who is about to conduct the attack. In the current circumstances, however, an enemy combatant in detention does not himself present a threat of harm. He is not actually carrying out the attack, rather he has participated in the planning and preparation for the attack, or merely has knowledge of the attack through his membership in the organization. Nonetheless, leading scholarly commentators believe that interrogation of such individuals using methods that might violate Section 2340A would be justified under the doctrine of self-defense, because the combatant by aiding and promoting the terrorist plot "has culpably caused the situation here someone might get hurt. If hurting him is the only means to prevent the death or injury of others put at risk by his actions, such torture should be permissible, and on the same basis that self-defense is permissible." Michael S. Moore, Torture and the Balance of Evils, 23 Israel L. Rev. 280, 323 (1989) (symposium on Israel's Landau Commission Report). [23] See also Alan M. Dershowitz, Is It Necessary to Apply "Physical Pressure" to Terrorists-and to Lie about it?, 23 Israel L. Rev. 192, 199-200 (1989). Thus, some commentators believe that by helping to create the threat of loss of life, terrorists become culpable for the threat even though they do not actually carry out the attack itself. If necessary, they may be hurt in an interrogation because they are part of the mechanism that has set the attack in motion, just as is someone who feeds ammunition or targeting information to an attacker. Moore, at 323.

(U) A claim by an individual of the defense of another would be supported by the fact that in this case, the nation itself is under attack and has the right to self-defense. This fact can bolser and support an individual claim of self-defense in a prosecution, according to the Supreme Court in In re Neagle, 135 U.S. 1 (1890). In that case, the State of California arrested and helf deputy U.S. Marshal Neagle for shooting and killing the assailant of Supreme Court Justice Field. In granting the writ of habeas corpus for Neagle's release, the Supreme Court did not rely alone upon marshal's right to defend another or his right to self-defense. Rather, the Court found that Neagle, as an agent of the United States and of the executive branch, was justified in the killing because in protecting Justice Field, he was acting pursuant to the executive branch's inherent constitutional authority to protect the United States government. Id. at 67 ("We cannot doubt the power of the president to take measures for the protection of a judge of one of the courts of the United States who, while in the discharge of the duties of his office, is threatened with a personal attack which may probably result in his death.") That authority derives, according to the Court, from the President's power under Article II to take care that the laws are faithfully executed. In other words, Neagle as a federal officer not only could raise self-defense or defense of another, but also could defend his actions on the ground that he was implementing the Executive Branch's authority to protect the United States government.

(U) If the right to defend the national government can be raised as a defense in an individual prosecution as Neagle suggests, then a government defendant, acting in his official capacity, should be able to argue that any conduct that arguably violated a criminal prohibition was undertaken pursuant to more than just individual self-defense or defense of another. In addition, the defendant could claim that he was fulfilling the Executive Branch's authority to protect the federal government, and the nation, from attack. The September 11 attacks have already triggered that authority, as recognized both under domestic and international law. Following the example of In re Neagle, we conclude that a government defendant may also argue that his conduct of an interrogation properly authorized, is justified on the basis of protecting the nation from attack.

(U) There can be little doubt that the nation's right to self-defense has been triggered under out law. The Constitution announces that one of its purposes is "to provide for the common defense." U.S. Const., Preamble. Article I, § 8 declares that Congress is to exercise its powers to "provide for the common defense." See also 2 Pub. Papers of Ronald Reagan 920,921 1988-89) (right to self-defense recognized by Article 61 of the U.N. Charter). The President has particular responsibility and power to take steps to defend the nation and its people. In re Neagle, 135 U.S at 64. See also U.S. Const., art. IV, § 4 ("The United States shall...protect [each of the States] against Invasion"). As Commander-in-Chief and Chief Executive, he may use the Armed Forces to protect the nation and its people. See, e.g., United States v. Verdug-Urquidez, 494 U.S. 259,273 (1990) Totten v. United States, 92 U.S. 105, 106 (1876). As the Supreme Court observed in The Prize Cases, 67 U.S. (2 Black) 635 (1862), in response to an armed attack on the United States "the President is not only authorized but bound to resist force by force ...without waiting for any special legislative authority." ld. at 668. The September 11 events were a direct attack on the United States, and as we have explained above, the President has authorized the use of military force with the support of Congress.[24]

(U) As DOJ has made clear in opinions involving the war on al Qaida, the nation's right to self-defense has been triggered by the events on September 11. If a government defendant were to harm an enemy combatant during an interrogation in manner that might arguably violate criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaida terrorist network. In that case, DOJ believes that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions. This national and international version of the right to self-defense could supplement and bolster the government defendant's individual right.

d. Military Law Enforcement Actions

(U) Use of force in military law enforcement is authorized for (1) self-defense and defense of others against a hostile person when in imminent danger of death or serious bodily harm by the hostile person; (2) to prevent the actual theft or or sabotage of assets vital to national security; (3) to prevent the actual theft or sabotage of resources that are inherently dangerous to others; (4) to prevent the commission of a serious crime that involves imminent danger of death or serious bodily harm; (5) to prevent the destruction of vital public utilities or similar critical infrastructure; (6) for apprehension; and (7) to prevent escape. (DODD 5210.56 1 Nov 2001). These justifications contemplate the use of force against a person who has committed, is committing, or is about to commit, a serious offense. Although we are not aware or any authority that applies these concepts in the interrogation context, the justified use of force in military law enforcement may provide useful comparisons to the use of force against a detainee to extract intelligence for the specific purpose of preventing a serious and imminent terrorist incident.

e. Superior Orders

(U) Under both international law and U.S. law, an order to commit an obviously criminal act, such as the wanton killing of a noncombatant or the torture of a prisoner, is an unlawful order and will not relieve a subordinate of his responsibility to comply with the law of armed conflict. [25] Only if the individual did not know of the unlawfulness of an order, and he could not reasonably be expected under the circumstances to recognize the order as unlawful, will the defense of obedience of a superior order protect a subordinate from the consequences of violation of the law of armed conflict.[26]

(U) Under international law, the fact that a war crime is committed pursuant to the orders of a military or civilian superior does not by itself relieve the subordinate committing it from criminal responsibility under international law.[27] It may, however, be considered in mitigation of punishment.[28]

(U) For instance, the Charter of the International Military Tribunal at Nuremberg, art. 8, stated:

The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.[29]

(U) Similarly, the Statute for the International Tribunal for Yugoslavia, and the Statute for the International Criminal Tribunal for Rwanda provide (in articles 7(4) & 6(4), respectively) provide:

The fact that an accused person acted pursuant to an order of a Government or a superior shall not relieve him of criminal responsibility, but may be considered in anticipation of punishment if the Tribunal determines that justice so requires.

(U) As to the general attitude taken by military tribunals toward the plea of superior orders, the following statement is representative:

It cannot be questioned that acts done in time of war under the military authority of an enemy cannot involve and criminal liability on the part of officers or soldiers if the acts are not prohibited by the conventional or customary rules of war. Implicit obedience to orders of superior officers is almost indispensable to every military system. But this implies obedience to lawful orders only. If the act done pursuant to a superior’s orders be murder, the production of the order will not make it any less so. It may mitigate but it cannot justify the crime. We are of this view, however, that if the illegality of the order was not known to the inferior, and he could not reasonably have been expected to know of its illegality, no wrongful intent necessary to the commission of the crime exists and the inferior [sic] will be protected. But the general rule is the members of the armed forces are bound to obey only the lawful orders of their commanding officers and they cannot escape criminal liability obeying a command which violates international law and outrages fundamental concepts of justice.

The Hostage Case (United States v. Wilhelm List et. al.)

(U) The international Military Tribunal at Nuremberg declared in its judgment that the test of responsibility for superior orders “is not the existence of the order, but whether moral choice was in fact possible.” [30]

(U) Domestically, the UCMJ discusses the defenses of superior order in The Manual Courts-Martial, which provides in R.C.M. 916(d), MCM 2002:

It is a defense to any offense that the accused was acting pursuant to orders unless the accused know the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful. An act performed pursuant to a lawful order is justified. An act performed pursuant to an unlawful order is excused unless the accused knew it to be unlawful or a person of ordinary sense and understanding would have know the orders to be unlawful.

Inference of lawfulness. An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. [31]

(U) In sum, the defense of superior orders will generally be available for U.S. Armed Forces personnel engaged in exceptional interrogations except where the conduct goes so far as to be patently unlawful.

4. Lack of DOJ Representation for DOD Personnel Charged with a Criminal Offense

(U) DOJ representation of a defendant is generally not available in federal criminal proceedings, even when the defendant’s actions occur within the scope of federal employment. [32]

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PART 3 OF 5 (MEMO 26 CONT'D.)

B. Federal Civil Statutes

1. 28 U.S.C. 1350

(U) 28 U.S.C. 1350 extends the jurisdiction of the U.S. District Courts to “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States”. [33] Section 1350 is a vehicle by which victims of torture and other human rights violations by their native government and its agents have sought judicial remedy for the wrongs they’ve suffered. However, all the decided cases we have found involve foreign nationals suing in U.S. District Courts for conduct by foreign actors/governments. [34] The District Court for the District of Columbia has determined that section 1350 actions, by the GTMO detainees, against the United States or its agents acting within the scope of employment fail. This is because (1) the United States has not waived sovereign immunity to such suits like those brought by the detainees, and (2) the Eisentrager doctrine barring habeas access also precludes other potential avenues of jurisdiction. [35] This of course leaves interrogators vulnerable in their individual capacity for conduct a court might find tortuous. Assuming a court would take jurisdiction over the matter and grant standing to the detainee, [36] it is possible that this statute would provide an avenue of relief for actions of the United States or its agents found to violate customary international law. The Department of Justice has argued that Section 1350 does not provide a cause of action and is merely jurisdictional in nature. The Department of Justice is currently studying whether to participate in the ongoing Section 1350 litigation.

2. Torture Victims Protection Act (TVPA)

(U) In 1992, President Bush signed into law the Torture Victims Protection Act of 1991. [37] Appended to the U.S. Code as a note to section 1350, the TVPA specifically creates a cause of action for individuals (or their successors) who have been subjected to torture or extra-judicial killing by “an individual who, under actual or apparent authority, or color of law, of any foreign nation (1) subjects an individual to torture shall in a civil action, be liable for damages to that individual; or (2) subjects an individual to extra judicial in a civil action, be liable for damages….” (emphasis added) [38] It thus appears that the TVPS does not apply to the conduct of U.S. agents acting under the color of law.

C. Applicability of the United States Constitution

1. Applicability of the Constitution to aliens Outside the United States

(U) Nonresident enemy aliens do not enjoy constitutional rights outside the sovereign territory of the United States. [39] The courts have held that unlawful combatants do not gain constitutional rights upon transfer to GTMO as unlawful combatants merely because the U.S. exercises extensive dominion and control over GTMO. [40] Moreover, rights apply to aliens only on sovereign U.S. territory. (See discussion under “Jurisdiction of Federal Courts”, infra.)

(U) Although U.S. constitutional rights do not apply to aliens at GTMO, the U.S. criminal laws do apply to acts committed there by virtue of GTMO’s status as within the special maritime and territorial jurisdiction.

2. The Constitution Defining U.S. Obligations Under International Law

(U) In the course of taking reservations to the Convention Against Torture and Other Cruel, and Inhuman or Degrading Treatment or Punishment, the United States determined that the Convention’s prohibitions against cruel, inhuman or degrading treatment or punishment applied only to the extent that such conduct was prohibited by the Fifth, Eighth and Fourteenth Amendments to our Constitution. [41] Consequently, analysis of these amendments is significant in determining the extent to which the United States is bound by the Convention. It should be clear, however, that aliens held at GTMO do not have constitutional rights under the 5th Amendment’s Due Process clause or the 8th Amendment. See, Johnson v. Eisenberger, 339 U.S. 763 (1950) and Verdugo-Urquidez, 494 U.S. 259 (1990).

a. Eighth Amendment

(U) “An examination of the history of the Amendment and the decisions of this [Supreme] Court construing the proscription against cruel and unusual punishment confirms that it was designed to protect those convicted of crimes” [42] The import of this holding is that, assuming a detainee could establish standing to challenge his treatment the claim would not lie under the 8th Amendment. Accordingly, it does not appear detainees could successfully pursue a claim regarding their pre-conviction treatment under the Eighth Amendment.

(U) The standards of the Eighth Amendment are relevant, however, due to the U.S. Reservation to the Torture Convention’s definition of cruel, inhuman, and degrading treatment. Under “cruel and unusual punishment” jurisprudence, there are two lines of analysis: (1) conditions of confinement, and (2) excessive force. As a general matter, the excessive fore analysis applies to the official use of physical force, often in situations in which an inmate has attacked another inmate or a guard whereas the conditions of confinement analysis applies to such things as administrative segregation. Under the excessive force analysis, “a prisoner alleging excessive force must demonstrate that the defendant acted ‘maliciously and sadistically to cause harm.’” Porter v. Nussle, 534 U.S. 516, 528 (2002) (quoting Hudson v. McMillan; 503 U.S.. 1, at 7). Excessive force requires the unnecessary and wanton infliction of pain. Whitney v. Albers, 475, U.S. 312, 319 (1986).

(U) A condition of confinement is not “cruel and unusual” unless it (1) is “sufficiently serious” to implicate constitutional protection, id. at 347, and (2) reflects “deliberate indifference” to the prisoner’s health or safety, Farmer v. Brennan 511 U.S. 825, 834 (1994). The first element is objective, and inquires whether the challenged condition is cruel and unusual. The second, so-called “subjective” element requires examination of the actor’s intent and inquires whether the challenged condition is imposed as punishment. Wilson v. Selter, 501 U.S. 294, 300 (1991) (“The source of the intent requirement is not the predilections of this Court, but the Eighth Amendment itself, which bans only cruel and unusual punishment. If the pain inflicted is not formally meted out as punishment by the statute or sentencing judge, some mental element must be attributed to the inflicting officer before it can qualify.”).

(U) The Supreme Court has noted that “[n]o static ‘test’ can exist by which courts determine whether conditions of confinement are cruel and unusual, for the Eighth Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Rhodes, 452 U.S. at 146 (citation omitted). See also Estelle v. Gamble, 429 U.S. 97, 102 (1976)(stating that the Eighth Amendment embodies “broad and idealistic concepts of dignity, civilized standards, humanity, and decency”). Nevertheless, certain guidelines emerge from the Supreme Court’s jurisprudence.

(U) The court has established that “only those deprivations denying ‘the minimal civilized measures of life’s necessities’ sufficiently grave to form the basis of an Eighth Amendment violation.” Wilson, 501 U.S. at 298, quoting Rhodes, 452 U.S. at 347. It is not enough for a prisoner to show that he has been subjected to conditions that are merely “restrictive and even harsh,” as such conditions are simply “part of the penalty that criminal offenders pay for their offenses against society.” Rhodes, 452 U.S. at 347. See also Wilson at 349 (“the Constitution does not mandate comfortable prisons.”). Rather, a prisoner must show that he has suffered a “serious deprivation of basic human needs,” Id. at 347, such as “essential food, medical care, or sanitation,” Id. At 348, See also Wilson, 501 U.S. at 304 (requiring “the deprivation of a single, identifiable human need such as food, warmth, or exercise”). “The Amendment also imposes [the duty on officials to] provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates.” Farmer, 511 U.S. at 832 (citations omitted). The Court has also articulated an alternative test inquiring whether an inmate was exposed to “a substantial risk or serious harm.” Id. At 837. See also DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001)(“In order to satisfy the [objective] requirement, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.”).

(U) The various conditions of confinement are not to be assessed under a totality of the circumstances approach. In Wilson v. Seiter, 501 U.S. 294 (1991), the Supreme Court expressly rejected the contention that “each condition must be considered as part of the overall conditions challenged.” Id. At 304 (internal quotation marks and citation omitted), Instead the Court concluded that “Some conditions of confinement may establish an Eighth Amendment violation ‘in combination’ when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single identifiable human need such as food, warmth, or exercise - for example, a low cell temperature at night combined with a failure to issue blankets.” Id. At 304. As the Court further explained, “Nothing so amorphous as ‘overall conditions’ can rise to the level of cruel and unusual punishment when no specific deprivations of a single human need exists.” Id. at 305.

(U) To demonstrate deliberate indifference, a prisoner must demonstrate “that the official was subjectively aware of that risk”. Farmer v. Brennan 511 U.S. 125 (1994). As the supreme Court further explained:

We hold…that a prison official cannot be found liable under the Eighth Amendment for denying any inmate humane conditions of confinement unless the official knows of and regards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference can be drawn that a substantial risk of serious harm exists and he must also draw the inference.

Farmer v. Brennan 511 U.S. 825, 837 (1994). This standard requires greater culpability than mere negligence. See Farmer v. Brennan, 511 U.S. 825, 837 (1994); Wilson v. Seiter, 501 U.S. 294, 302 (1991) (“mere negligence would satisfy neither [the Whitely standard of malicious and sadistic infliction] nor the more lenient deliberate indifference standard”) (internal quotation marks omitted).

(U) The second line of cases considers the use of force against prisoners. The situation often arises in cases addressing the use of force while quelling prison disturbances. In cases involving the excessive use of force the central question is whether the force was applied with good intentions in an attempt to restore order or maliciously and sadistically with the purpose of causing harm. [43] Malicious and sadistic use of force always violates contemporary standards of decency and would constitute cruel and unusual punishment. [44] The courts apply a subjective test when examining intent of the official. In determining whether a correctional officer has used excessive force in violation of the Eighth Amendment, courts look to several factors including: (1) “the need for the application of force”; (2) “the relationship between the need and the amount of force that was used”; (3) “the extent of injury inflicted”; (4) “the extent of the threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of the facts known to them”; and (5) “any efforts made to temper the severity of a forceful response.” [45] Great deference is given to the prison official in the carrying out of his duties. [46]

(U) One of the Supreme Court’s most recent opinions on conditions of confinement — Hope v. Pelzer, 122 S.Ct. 2508 (2002) — illustrates the Court’s focus on the necessity of the actions undertaken in response to a disturbance in determining the officer’s subjective of mind. [47] In Hope, following an “exchange of vulgar remarks” between the inmate Hope and an officer, the two got into a “wrestling match”. Id at 2512. Additional officers intervened and restrained Hope. See Id. These officers then took Hope back to prison. Once there, they required him to take off his shirt and then attached him to the hitching post, where he remained in the sun for the next seven hours. See Id. at 2512-13. During this time, Hope received no bathroom breaks. He was given water only once or twice and at least one guard taunted him about being thirsty. See Id. at 2513. The Supreme Court concluded that the facts Hope alleged stated an “obvious” Eighth Amendment violation. Id at 2514. The obviousness of this violation stemmed from the utter lack of necessity for the actions the guards undertook. The Court emphasized that “any safety concerns” arising from the scuffle between Hope and the officer “had long since abated by the time [Hope] was attached to the hitching post” and that there was a “clear lack of an emergency situation”. Id. As a result, the Court found that “[t]his primitive treatment amount [ed] to [the] gratuitous infliction of ‘wanton and unnecessary’ pain that our precedent clearly prohibits.” Id. at 2515. Thus, the necessity of the government action bears upon both the conditions of confinement analysis as well as the excessive force analysis.

(U) The government interest here is of the highest magnitude. The typical prison case, the protection of other inmates or officers, the protection of the inmate alleged to have suffered the cruel and unusual punishment, or even the maintenance of order in the prison provide valid government interests for various deprivations. See e.g. Anderson v. Nosser, 438 F.2d 183, 193 (5th Cir. 1971) (“protect[ing] inmates from self-inflicted injury, protect[ing] the general prison population and personnel from violate acts on his part, prevent[ing] escape” are all legitimate penological interests that would permit the imposition of solitary confinement); McMahon v. Beard, 583 F.2d 172, 175 (5th Cir. 1978) (prevention if inmate suicide is a legitimate interest). As with excessive force, no court has encountered the precise circumstances here under conditions of confinement jurisprudences. Nonetheless, there can be no more compelling government interest than that which is presented here and, depending upon the precise factual circumstances of an interrogation, e.g., where there is credible information that could avert a threat, deprivations that may be caused would not be wanton or unnecessary.

b. Fifth Amendment and Fourteenth Amendment [48]

(U) All persons within the territory of the United States are entitled to protections of Due Process as provided by the 5th and 14th Amendments, including corporations, aliens, and presumptively citizens seeking readmission to the United States. However, the Due Process Clause does not apply to enemy alien belligerents engaged in hostilities against the United States and/or tried by military tribunals outside the territorial jurisdiction of the United States.[49] The Eisentrager doctrine works to prevent access by enemy belligerents, captured and held abroad, to U.S. courts. Further, in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), the Supreme Court held that aliens outside the United States did not have Fourth Amendment rights against the U.S. government. Indeed, in that case, the Court observed that extension of constitutional rights to aliens outside the United States would interfere with the military operations against the nation's enemies.

(U) In the detainee context, the standards of the Due Process Clauses are relevant due to the U.S. Reservation to the Torture Convention's definition of cruel, inhuman, and degrading treatment, which the United States has defined to mean conduct prohibited under the Due Process Clause of the 5th and 14th Amendments (in addition to the standards under the 8th Amendment discussed above). The Due Process jurisprudence is divided into two distinct categories -- procedural due process and substantive due process. Procedural due process is manifest in issues pertaining to the provision of adequate administrative and/or judicial process, including notice and an opportunity to be heard. Substantive due process involves questions of force being excessive in light of the government interest being addressed. In the detainee context, the limits of substantive due process define the scope of permissible interrogation techniques that may be applied to unlawful combatants held outside the United States.

(U) Under the Fifth Amendment right to Due Process, substantive due process protects an individual from "the exercise of power without any reasonable justification in the service of any legitimate governmental objective." County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). Under substantive due process "only the most egregious official conduct can be said to be arbitrary in the constitutional sense." Id at 846 (internal quotation marks omitted). That conduct must "shock[] the conscience." See generally id; Rochin v. California, 342 U.S. 165 (1952). [50] By contrast to deprivations in procedural due process, which cannot occur so long as the government affords adequate processes government actions that "shock the conscience" are prohibited irrespective of the procedures the government may employ in undertaking those actions. See generally Rochin v. California, 342 U.S. 164 (1952).

(U) To shock the conscience, the conduct at issue must involve more than mere negligence by the government official. See County of Sacramento, 523 U.S. at 849. See also Daniel v. Williams, 474 U.S. 327 (1986) ("Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property.") (collecting cases). Instead, "[I]t is...behavior on the other end of the culpability spectrum that would most probably support a substantive due process claim: conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level." See County of Sacramento, 523 U.S. at 849. In some circumstances, however, recklessness or gross negligence may suffice. See id. The requisite level of culpability is ultimately "not...subject to mechanical application in unfamiliar territory." Id. at 850. As the Court explained explained: "deliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking." Id. As a general matter, deliberate indifference would be an appropriate standard where there is a real possibility for actual deliberation. In other circumstances, however, where quick decisions must be made (such as responding to a prison riot), a heightened level of culpability is more appropriate. See id. at 851-52.

(U) The shock-the-conscience standard appears to be an evolving one as the Court's most recent opinion regarding this standard emphasized that the conscience shocked was "contemporary conscience." Id. at 847 n.8 (emphasis added). The court explained that while a judgment of what shocks the conscience "may be informed by a history of liberty protection, [] it necessarily reflects a traditional understanding of executive behavior, of contemporary practice, and of the standards of blame generally applied to them." Id. Despite the evolving nature of the standard, the standard is objective rather than subjective. The Supreme Court has cautioned that although "the gloss has ... has not been fixed" as to what substantive due process is, judges "may not drawn on [their] merely personal and private notions and disregard the limits that bind judges in their judicial function... [T]hese limits are derived from considerations that are fused in the whole nature of our judicial process." Rochin. 342 U.S. at 170. See also, United States v. Lovasco, 431 U.S. 783 (1973) (reaffirming that the test is objective rather than subjective). As the Court further explained, the conduct at issue must "do more than offend some fastidious squeamishness or private sentimentalism' in order to violate due process. Rochin, 342 U.S. at 172.

(U) The Supreme Court also clarified in Ingraham v. Wright, 430 U.S. 651 (1977), that under substantive due process, "[t]here is, of course, a de minimis level of imposition with which the Constitution is not concerned." Id. at 674. And as Fourth Circuit has noted, it is a "principle...inherent in the Eight [Amendment] and [substantive due process" that "[n]ot ..every malevolent touch by a prison guard gives rise to a federal cause of action. See Johnson v. Glick, 481 F.2d at 1033 ("Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights")." Riley v. Dorton, 155 F.3d 1159, 1167 (4th Cir. 1997) (quoting Hudson, 503 U.S. at 9). Instead, "the [shock-the-conscience]... inquiry...[is] whether the force applied caused injury so severe, and was so disproportionate to the need presented and so inspired by malice or sadism...that it amounted to a brutal and inhumane abuse of official power literally shocking to the conscience." Webb b. McCullough, 828 F.2d 1151, 1158 (6th Cir. 1987). Examples of physical brutality that "shock the conscience" include: the rape of a plaintiff by uniformed officer, see Jones v. Wellham 104 F.3d 620 (4thCir. 1997); a police officer striking a plaintiff in retaliation for the plaintiff photographing the police officer, see Shillinford v. Holmes, 634 F.2d 263 (5th Cir. 1981); police officer shot a fleeing suspect's legs without any probably cause other than the suspect's running and failing to stop, see Aldridge v. Mullins, 377 F. Supp. 850 (M.D. Tenn. 1972) aff'd, 474 1189 (6th Cir. 1973). Moreover, beating or sufficiently threatening someone during the course of an interrogation can constitute conscience-shocking behavior. See Gray v. Spillman, 925 F.2d 90,91 (4th Cir. 1991) (plaintiff was beaten and threatened with further beating if he did not confess). By contrast, for example, actions such as verbal insults and an angry slap of "medium force" did not constitute behavior that "shocked the conscience." See Riley v. Dorton, 115 F.3d 1159, 1168 n.4 (4th Cir. 1997) (finding claims that such behavior shocked the conscience "meritless").

(U) Physical brutality is not the only conduct that may meet the shock-the-conscience standard. In Cooper v. Dupnik, 963 F.2d 1220 (9th Cir. 1992) (en banc), the Ninth Circuit held that a certain psychologically-coercive interrogation techniques could constitute a violation of substantive due process. The interrogators techniques were "designed to instill stress, hopelessness, and fear, and to break [the suspect's] resistance." Id. at 1229. The officers planned to ignore any request for a lawyer and to ignore the suspect's right to remain silent, with the express purpose that any statements he might offer would help keep him from testifying in his own defense. See id. at 1249. It was this express purpose that the court found to be the "aggravating factor" that lead it to conclude that the conduct of the police "shocked the conscience." Id. at 1249. The court reasoned that while "it is a legitimate purpose of police investigation to gather evidence and muster information that will surround a guilty defendant and make it difficult if not impossible for him to escape justice[,]" "When the methods chosen to gather evidence and information are deliberately unlawful and flout the Constitution, the legitimacy is lost." Id. at 1250. In Wilkins v. May, 872 F.2d 190 (7th Cir. 1989), the Seventh Circuit found that severe mental distress inflicted on a suspect could be a basis for a substantive due process claim. See id. at 195. See also Rhodes v. Robinson, 612 F.2d 766, 771 (3d Cir. 1979) (claim of emotional harm could be the basis of a substantive due process claim). The Wilkins court found that under certain circumstances interrogating a suspect with a gun at his head could violate those rights. See 872 F.2d at 195. Whether it would rise to the level of violation depended upon whether the plaintiff was able to show "misconduct that a reasonable person would find so beyond the norm of proper police procedure as to shock the conscience, and that it is calculated to induce not merely momentary fear or anxiety, but severe mental suffering, in the plaintiff." Id. On the other hand, we note that merely deceiving the suspect does not shock the conscience, see, e.g., United States v. Byram, 145 F.3d 405 (1st Cir. 1998) (assuring defendant he was not in danger of prosecution did not shock the conscience) nor does the use of sympathy or friends as intermediaries, see, e.g., United States v. Simtob, 901 F.2d 779, 809 (9th Cir. 1990).

(U) Although substantive due process jurisprudence is not necessarily uniform in all applications, several principles emerge. First, whether conduct is conscience-shocking turns in part on whether it is without any justification, i.e., it is "inspired by malice or sadism." Webb, 828 F.2d at 1158. Although unlawful combatants may not pose a threat to others in the classic sense seen in substantive due process cases, the detainees here may be able to prevent great physical injury to countless others through their knowledge of future attacks. By contrast, if the interrogation methods were undertaken solely to produce severe mental suffering, they might shock the conscience. Second, the official must have acted with more than mere negligence. Because, generally speaking, there will be time for deliberation as to the methods of interrogation that will be employed, it is likely that the culpability requirement here is deliberate indifference. See County of Sacramento, 523 U.S. at 851-52. Thus, an official must know of a serious risk to the health or safety of a detainee and he must act in conscious disregard for that risk in order to violate due process standards. Third, this standard permits some physical contact. Employing a shove or slap as part of an interrogation would not run afoul of this standard. Fourth, the detainee must sustain some sort of injury as a result of the conduct, e.g., physical injury or severe mental distress, in order for the constraints of substantive due process to be applicable.

D. Jurisdiction of Federal Courts

1. Jurisdiction to Consider Constitutional Claims

(U) The Federal habeas statue provides that courts may only grant the writ "within their respective jurisdictions." This has been interpreted to limit a court's subject matter jurisdiction over habeas cases to those in which a custodian lies within the jurisdiction. For U.S. citizens, habeas jurisdiction lies regardless of where the detention occurs. The habeas action must be brought in the district in which a custodian resides or, if all custodians are outside the United States, in the District of Columbia. For aliens, there is no habeas jurisdiction outside the sovereign territory of the United States. [51]

(U) As construed by the courts, habeas jurisdiction is coterminous with the reach of constitutional rights, although that result is a matter of statutory construction. Congress has the power to extend habeas jurisdiction beyond the reach of constitutional rights but may not place greater restrictions on it.

(U) In Johnson v. Eisentrager, the supreme court rules that enemy aliens, captured on the field of battle abroad by the U.S. Armed Forces, tried abroad for war crimes, and incarcerated abroad do not have access to the U.S. courts [52] over a habeas petition filed by German nationals seized by U.S. soldiers in China. Eisentrager considered habeas corpus petitions by German soldiers captured during WWII in China supporting the Japanese, convicted by Military Commission sitting in China, and incarcerated in Germany and concluded that United States courts lacked jurisdiction. [53]

(U) Recently, unlawful combatants detained at Guantanamo Bay, Cuba (GTMO) have sought review in U.S. district court though the writ of habeas corpus, 28 U.S.C. § 2241. [54]

(U) Two courts have examined, and rejected, petitioners' claims that U.S. exclusive jurisdiction over GTMO results in a form of "de facto sovereignty" and, therefore, vests habeas jurisdiction in the federal courts.

2. Other Bases for Federal Jurisdiction

(U) In addition, one group of GTMO detainees has challenged confinement through the Alien Tort Claims Act (ATCA) and the Administrative Procedures Act (APA). The courts have declined to exercise jurisdiction on those theories in each case to date. Petitioners in Al Odah attempted to circumvent the territorial limitations of habeas by bringing their action under the APA and ATCA, however the U.S. Court of appeals for the District of Columbia held that the courts did not have jurisdiction with respect to the petitioner' claims under any theory, finding that their status as aliens unconnected to the United States makes them beyond the jurisdiction of the federal courts. See Odah v. United States, 321 F.3rd 1134 (DC Cir. 2003). [55]

(U) The court also held, in the alternative, that it lacked jurisdiction even if petitioners were not barred by the exclusive nature of habeas actions. The ATCA provides the "district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 18 U.S.C. § 1350. The ATCA, although it provides federal jurisdiction over private suits, does not waive sovereign immunity for a suit against the United States. The courts have held that AOA's waiver of sovereign immunity for nonmonetary damages can theoretically be used to maintain an ATCA action against the United States. The Al Odah Court, however, found that the APA's exemption for "military authority exercised in the field in time of war or in occupied territory" precluded the ATCA.

3. The Military Extraterritorial Jurisdiction Act

(U) The Military Extraterritorial Jurisdiction Act (MEJA), 18 U.S.C. § 3261 et seq, extends Federal criminal jurisdiction for serious Federal offenses committed outside to civilian persons accompanying the Armed Forces (e.g., civilian employees and contractor employees), and to members of the Armed Forces who committed a criminal act while subject to the UCMJ but who are no longer subject to the UCMJ or who committed the offense with a defendant not subject to the UCMJ. The standard is tat if the conduct by the individual would "constitute an offense punishable by imprisonment for more than one year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States." (emphasis added).

E. The Uniform Code of Military Justice

(U) The Uniform Code of Military Justice (UCMJ) applies to United States Forces on active duty, at all times and in all places throughout the world. Members of the Reserve component and retired regular officers can, under certain circumstances, also be subject to the UCMJ, as can civilians accompanying the Armed Forces in time of war under certain circumstances. [56]

1. Offenses

(U) A number of UCMJ provisions potentially apply to service members involved in the interrogation and supervision of the interrogation of detainees. Most significant are the following: [57]

a. Cruelty, Oppression or Maltreatment, Art 93

(U) The elements of the offense are that the alleged victim was subject to the orders of the accused and that the accused was cruel toward, oppressed, or maltreated the victim. The cruelty, etc. need not be physical. Subject to the orders of, includes persons, subject to the UCMJ or not, who are by some reason of some duty are required to obey the lawful orders of the accused, even if not in the direct chain of command of the accused. “Cruel”, “oppressed”, and “maltreated” refer to unwarranted, harmful, abusive, rough or other unjustifiable treatment that, under all the circumstances, results in physical or mental pain or suffering and is unwarranted, unjustified and unnecessary for any lawful purpose. It is measured by an objective standard. MCM IV-25; MJB, Section 3-17-1.

b. Reckless Endangerment, Art 134

(U) The elements of the offense are that the accused engaged in wrongful conduct that was reckless or wanton and that the conduct was likely to produce death or grievous bodily harm. “[L]ikely to produce” means the natural or probable consequences of particular conduct. “[G]rievous bodily harm” includes injuries comparable to fractured or dislocated bones, serious damage to internal organs. MCM IV-119; MJB, Section 3-100A-1.

c. Assault, Art 128

(U) This article encompasses the following offenses:

(U) Simple assault — The elements are that the accused attempted or offered to do bodily harm to an individual and that such attempt or offer was done with unlawful force and violence. An act of force or violence is unlawful if done without legal justification or excuse and without the consent of the victim. The use of threatening words accompanied by a menacing act or gesture may constitute an assault. MCM IV-81; MJB, Section 3-54-1.

(U) Assault consummated by battery — An assault resulting in actual infliction of bodily harm is a batter. Bodily harm means any physical injury to or offensive touching, however slight. MCM IV-83; MJB, Section 3-54-1A.

(U) Aggravated assault (use of a dangerous weapon, means or force) — In addition to the elements of an assault, this offense requires that the means or force attempted or offered was used in a manner likely to produce death or grievous bodily harm. Any object, regardless of its normal use, could become a means likely to inflict grievous bodily harm depending on the manner in which it is actually used. MCM IV-84; MJB, Section 3-54-8.

(U) There are multiple instances in which authority and context permit touching — by police officers, prison guards, training NCOs, etc. — that would not be lawful under other circumstances. A central issue would be how clearly the limits of authority were defined and whether under the circumstances the individual exceeded the scope of that authority.

d. Involuntary Manslaughter, Art 119

(U) The elements of this offense are that acts or omissions constitution culpable negligence resulted in an unlawful killing. Culpable negligence contemplates a level of heedlessness in circumstances in which, when viewed in the light of human experience, might foreseeably result in death. MCM IV-64. Failure to assiduously follow protocols providing for the health and safety of detainees during interrogations of detainees, could amount to such culpable negligence, MJB, Section 3-44-2.

e. Unpremeditated Murder, Art 118

(U) The relevant elements of the offense are that the person is dead, his death resulted from the act or failure to act of the accused, that the killing was unlawful, without legal justification, and at that time the accused had the intent to inflict great bodily harm upon the person. MCM IV-118, MTB, Section 3-43-2.

f. Disobedience of Orders, Art 92

(U) This offense is committed when the accused, having a duty to do so, fails to obey lawful orders or regulations, MCM IV-23; MJB, Section 3-16. the duty to obey may extend to treaties and statuettes as well as regulations. The Convention against Torture and the general case law regarding cruel and unusual punishment may be relevant here as it is for Article 93, See generally, Wilson v. Setter, 501 U.S. 294 (1991).

g. Dereliction of Duty, Art 92

(U) A dereliction occurs when an individual knew or should have known of certain prescribed duties and either willfully or through neglect was derelict in the performance of those duties. MCM IV-24; MJB, Section 3-16-4. Customs of the service as well as statues and treaties that have become the law of the land may create duties for purposes of this Article.

h. Maiming, Art 124

(U) The elements of this offense are that the accused intentionally inflicted an injury on a person, and whether intended or not, that the injury seriously disfigured the person’s body, destroyed or disabled an organ or member, or seriously diminished the person’s physical vigor. MCM IV-77; MJB, Section 3-50-1.

2. Affirmative Defenses under the UCMJ (R.C.M. 916)

(U) In order for any use of force to be lawful, it must either be justified under the circumstances or an accepted affirmative defense is present to excuse the otherwise unlawful conduct. No case law was found that defines at what point force or violence becomes either lawful or unlawful during war. Each case is by its nature, dependent upon the factual circumstances surrounding the incident.

(U) Applying accepted rules for law of armed conflict, the use of force is only authorized when there is a mili5tary purpose and the force used is no greater than necessary to achieve the objective. The existence of war does not in and of itself justify all forms of assault. For instance, in United States v. Calley, 22 U.S.C.M.A 534k, 48 C.M.R:19 (1973), the court recognized that “while it is lawful to kill an enemy in the heat and exercise of war, to kill such an enemy after he has laid down his arms…is murder.” Further, the fact that the law of war has been violated pursuant to an order of a superior authority, whether military or civil, does not deprive the act in question of its character of a war crime, nor does it constitute a defense in the trial of an accused individual, unless he did not know and could not reasonably have been expected to know that the act ordered was unlawful. In all cases where the order is held not to constitute a defense to an allegation of war crime, the fact that the individual was acting pursuant to orders may be considered in mitigation of punishment. The thrust of these holdings is that even in war, limits to the use and extent of force apply.

a. Self-Defense

(U) For the right of self-defense to exist, the accused must have had a reasonable apprehension that death or grievous bodily harm was about to be inflicted on himself. The test is whether, under the same facts and circumstances, an ordinary prudent adult person faced with the same situation would have believed that there were grounds to fear immediate death or serious bodily harm (an objective test) and the person must have actually believed that the amount of force used was required to protect against death or serious bodily harm (a subjective test). Grievous bodily harm means serious bodily injury. It does not mean minor injuries such as a black eye or a bloody nose, but does mean fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs or other serious bodily injuries. MJB, Section 5-2. (See also the discussion of “Self-Defense” under the discussion of Federal law, supra.)

b. Defense of another

(U) For this defense, the accused must have had a reasonable belief that harm was about to be inflicted and that the accused actually believed that force was necessary to protect that person. The accused must actually believe that the amount of force used was necessary to protect against the degree of harm threatened. MJB, Section 5-3-1.

c. Accident

(U) The defense arises when an accused is doing a lawful act in a lawful manner, free of any negligence, and unforeseeable or unintentional death or bodily harm occurs. MJB, Section 5-4.

d. Mistake of Fact

(U) If ignorance or mistake of a fact concerns an element of an offense involving specific intent, the ignorance or mistake need only exist in the mind of the accused, i.e., if the circumstances of an event were as the accused believed, there would be no offense. For crimes not involving specific intent, the ignorance or mistake must be both honest (actual) and reasonable. The majority of the crimes discussed above do not require specific intent. For instance, in the case of violations of general orders, knowledge is presumed. Most of the “mistakes” would likely be mistakes of law in that the accused would not believe that the conduct was unlawful. While mistakes of law are generally not a defense, unawareness of a law may be a defense to show the absence of a criminal state of mind when actual knowledge is not necessary to establish the offense. MJB, Section 5-11.

e. Coercion or duress

(U) It is defense to any offense except killing an innocent person that the accused’s participation in the offense was caused by a reasonable apprehension that the accused or another innocent person would be immediately killed or would immediately suffer serious bodily injury if the accused did not commit the act. This apprehension must reasonably continue throughout the commission of the act. If the accused has any reasonable opportunity to avoid committing the act without subjecting the accused or another innocent person to the harm threatened, this defense shall not apply. R.C.M. 916(h), MJB, Section 5-5.

(U) To establish a duress defense it must be shown that an accused’s participation in the offense was caused by a reasonable apprehension that the accused or another innocent person would be immediately killed or would immediately suffer serious bodily harm if the accused did not commit the act. The apprehension must reasonably continue throughout the commission of the act. If the accused has any reasonable opportunity to avoid committing the act without subjecting the accused or another innocent person to the harm threatened, this defense shall not apply. The Court of Appeals stated in United States v. Fleming, 23 C.M.R. 7 (1957), that the defense of duress is available to an accused only if the commission of the crime charged resulted from reasonable fear of imminent death or grievous bodily harm to himself of his family. The risk of injury must continue throughout the criminal venture.

f. Obedience to Orders (MJB, Sections 5-8-1 and 5-8-2)

(U) The viability of obedience to orders as a defense turns on the directives and policy of the service member’s Chain of Command. For example, when the interrogator at the direction of the command employs the use of physical force as an interrogation method, he/she would certainly raise the defense of obedience to orders. The question then becomes one of degree. While this may be a successful defense to simple assaults or batteries, it would unlikely be as successful to more serious charges such as maiming, manslaughter, and maiming. Within the middle of the spectrum lay those offenses for which the effectiveness of this defense becomes less clear. Those offenses would include conduct unbecoming an officer, reckless endangerment, cruelty, and negligent homicide.

(U) Obedience to orders provides a viable defense only to the extent that the accused acted under orders, and did not know (nor would a person of ordinary sense have known? The orders were unlawful. This the viability of this defense is key to the accused’s (or a reasonable person’s) knowledge of the lawfulness of the order. Common sense suggests that the more aggressive and physical the technique authorized (ordered) by the command, the more unlikely the reasonable belief that the order to employ such methods is lawful.

(U) In order for any use of force to be lawful, it must either (i) be justified under the circumstances or (ii) an accepted affirmative defense is present to excuse the otherwise unlawful conduct. No case law was found that defines at what point force or violence becomes either lawful or unlawful during war. Each case is by its nature, dependent upon the factual circumstances surrounding the incident.

(U) Applying accepted rules for the law of armed conflict, the use of force is only authorized when there is a military purpose and the force used is no greater than necessary to achieve the objective. The existence of war does not in and of itself justify all forms of assault. For instance, in U.S. v. Calley, the court recognized that “while it is lawful to kill an enemy in the heat and exercise of war, to kill such an enemy after he has laid down his arms…is murder.” Further, the fact that the law of war has been violated pursuant to an order of a superior authority, whether military or civil, does not deprive the act in question of its character of a war crime, nor does it constitute a defense in the trial of an accused individual, unless he did not know and could not reasonably have been expected to know that the act ordered was unlawful. In all cases where the order is held not to constitute a defense to an allegation of war crime, the fact that the individual was acting pursuant to orders may be considered in mitigation of punishment.” The thrust of these holdings is that even in war, limits to the use and extent of force apply.

g. Necessity

(U) Another common law affirmative defense is one of necessity. This defense is recognized by a number of states and is applicable when: 1) the harm must be committed under the pressure of physical or natural force, rather than human force; 2) the harm so8ught to be avoi8ded is greater than (or at least equal to) that harm sought to be prevented by the law defining the offense charged; 3) the actor reasonably believes at the moment that his act is necessary and is designed to avoid the greater harm; 4) the actor must be without fault in bringing about the situation; and 5) the harm threatened must be imminent, leaving no alternative by which to avoid the greater harm.

(U) However, military courts have treated the necessity defense with disfavor and in fact, some have refused to accept necessity as a permissible defense (the MCM does not list necessity as an affirmative defense under RCM 916). “The problem with the necessity defense is that it involves a weighing of evil inflicted against evil avoided and is, thereby, difficult to legislate.” The courts also have been reluctant to embrace the defense due to a “fear that private moral codes will be substituted for legislative determination, resulting in a necessity exception that swallow’s the rule of law.” United States v. Rankins, 34 MJ 326 (CMA 1992).

(U) The effect of these cases is that the MCM recognizes that an accused may commit an illegal act in order to avoid the serious injury or death of the accused or an innocent person. However, military law limits this defense only when there is an imminent and continuing harm that requires immediate action to prevent. One the immediacy is gone, the defense will no longer apply. Ostensibly, the use of force to acquire information from an unlawful combatant, absent immediate and compelling circumstances, will not meet the elements established by the MCM and case law. (But see the necessity defense in the discussion of Federal law, supra.)

3. Legal doctrine could render specific conduct, otherwise criminal, not unlawful

See discussion of Commander-in-Chief authority, supra.

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PART 4 OF 5 (MEMO 26 CONT'D.)

IV. Considerations Affecting Policy

A. Historical Role of U.S. Armed Forces

1. Background

(U) The basic principles of interrogation doctrine, procedures, and techniques applicable to Army intelligence interrogations from June 1945 through May 1987 were continued in Field Manual (FM) 30-15, Examination of Personnel and Documents. FM 30-15 set forth Army doctrine pertaining to the basic principles of intelligence interrogation and established the procedures and techniques applicable to Army intelligence interrogations of non-U.S. personnel. The other services report that they too apply the provisions of this Field Manual.

2. Interrogation Historical Overview

(U) FM 30-15 stated that the principles and techniques of interrogation discussed within the manual are to be used within the constraints established by humanitarian international law and the Uniform Code of Military Justice (“UCMJ”). The fundamental principle underlying Army doctrine concerning intelligence interrogations between 1045 and the issuance of current doctrine in 1987 (FM 34-52), is that the commander may utilize all available resources and lawful means in the accomplishment of his mission and for the protection and security of his unit. However, a strong caveat to this principle noted, “treaty commitments and policy of the United States, international agreements, international law, and the UCMJ require the conduct of military to conform with the law of war.” FM30-15 also recognized that Army intelligence interrogations must conform to the “specific prohibitions, limitations, and restrictions established by the Geneva Conventions of 12 August 1949 for the handling and treatment of personnel captured or detained by military forces” (citing FM 27-10, The Law of Land Warfare).

(U) FM 30-15 also stated that “violations of the customary and treaty law applicable to the conduct of war normally constitutes a concurrent violation of the Uniform Code of Military Justice and will be prosecuted under that code.” The manual advised Army personnel that it was “the direct responsibility of the Commander to insure that the law of war is respected in the conduct of warfare by forces in his command.” This, the intelligence interrogation techniques outlined in FM 30-15 were based upon conduct sanctioned under international law and domestic U.S. law and as constrained within the UCMJ.

(U) Historically, the intelligence staff officer (G2/S2) was the primary Army staff officer responsible for all intelligence functions within the command structure. This responsibility included interrogation of enemy prisoners of war (EPW), civilian internees, and other captured or detained persons. In conducting interrogations, the intelligence staff officer was responsible for insuring that the activities were executed in accordance with international and domestic U.S. law, United States Government policy, and the applicable regulations and field manuals regarding the treatment and handling of EPWs, civilian internees and other captured or detained persons. In the maintenance of interrogation collection, the intelligence staff officer was required to provide guidance and training to interrogators, assign collection requirements, promulgate regulations, directives, and field manuals regarding intelligence interrogation, and insure that interrogators were trained in international and domestic U.S. law and the applicable Army publications.

(U) FM 30-15 stated that intelligence interrogations are an art involving the questioning and examination of a source in order to obtain the maximum amount of usable information. Interrogations are of many types, such as the interview, a debriefing and an encitation. However, the FM made clear that the principles of objective, initiative, accuracy, prohibitions against the use of force, and security apply to all types of interrogations. The manual indicated that the goal is to collect usable and reliable information, in a lawful manner, promptly, while meeting the intelligence requirements of the command.

(U) FM 30-15 emphasized a prohibition on the use of force during interrogations. This prohibition included the actual use of force, mental torture, threats, and exposure to inhumane treatment of any kind. Interrogation doctrine, procedures, and techniques concerning the use of force are based upon prohibitions in international and domestic U.S. law, FM 30-15 stated that experience revealed that the use of force was unnecessary to gain cooperation and was a poor interrogation technique, given that its use produced unreliable information, damaged future interrogations, and induced those being interrogated to offer information viewed as expected in order to prevent the use of force. However, FM 30-15 stated that the prohibition on the use of force, mental or physical must not be confused with the use of psychological tools and deception techniques designed to induce a source into providing intelligence information.

(U) The Center for Military History has been requested to conduct a search of government databases, to include the Investigative Records Repository, for documentation concerning the historical participation of the U.S. Armed Forces in interrogations and any archival materials related to interrogation techniques. As of the writing of this analysis no reply has been received.

3. Current Doctrine

(U) In May 1987, the basic principles of current doctrine, procedures, and techniques applicable to Army intelligence interrogations were promulgated in Field Manual (FM) 34-52, Intelligence Interrogation. FM 34-52 provides general guidelines for commanders, staff officers, and other personnel in the use of interrogation elements in Army intelligence units. It also outlines procedures for handling sources of interrogations, the exploitation and processing of documents, and the reporting of intelligence gained through interrogation. Finally, FM 34-52 covers directing and supervising interrogation operations, conflict scenarios, and their impact on interrogation operations, to include peacetime interrogation operations.

(U) Army interrogation doctrine today, and since 1945, places particular emphasis on the humane handling of captured personnel. Interrogators receive specific instruction by Army Judge Advocates on the requirements of international and domestic U.S. law, to include constraints established by the Uniform Code of Military Justice (e.g. assault, cruelty and maltreatment, and communicating a threat).

(U) FM 34-52 adopted the principles and framework for conducting intelligence interrogations as stated in FM 30-15. FM 34-52 maintained the established Army doctrine that intelligence interrogations involve the art of questioning and examining a source in order to obtain the maximum amount of useable information,. FM 34-52 also reiterated Army doctrine that the principles of objective, initiative, accuracy, prohibition on the use of force, and security apply to all types of interrogations. The goal of intelligence interrogation under current doctrine is the same, the collection of usable and reliable information promptly and in a lawful manner, while meeting the intelligence requirements of the command.

(U) FM 34-52 and the curriculum at U.S. Army Intelligence Center, Fort Hauchuca, continue to emphasize a prohibition on the use of force. As stated in its predecessor, FM 34-52 defines the use of force to include actual force, mental torture, threats, and exposure to inhumane treatment of any kind. The underlying basis for this prohibition is the proscriptions contained in international and domestic U.S. law. Current Army intelligence interrogation doctrine continues to view the use of force as unnecessary to gain the cooperation of captured personnel. Army interrogation experts view the use of force as an inferior technique that yields information of questionable quality. The primary concerns, in addition to the effect on information quality, are the adverse effect on future interrogations and the behavioral change on those being interrogated (offering particular information to avoid the use of force). However, the Army’s doctrinal prohibition on the use of force does not proscribe legitimate psychological tools and deception techniques.

(U) FM 34-52 outlines procedures and approach techniques for conducting Army interrogations. While the approach techniques are varied, there are three common purposes: establish and maintain control over the source and the interrogation, establish and maintain rapport between the interrogator and the source, and manipulate the source’s emotions and weaknesses to gain willing cooperation. Approved techniques include: Direct Incentive; Emotional (Love & Hate); Increased Fear Up (Harsh & Mild); Decreased Fear Down; Pride and Ego (UP & Down); Futility Technique, We Know All; Establish Your Identity; Repetition, File and Dossier, and Mutt and Jeff (Friend and Foe). These techniques are discussed at greater length in Section V, infra.

B. Presidential and Secretary of Defense Directives

(U) The President's Military Order that addresses the detention, treatment, and trial of certain non-citizens in the war against terrorism, [58] provides inter alia, that any individual subject to the order be "treated humanely, without any adverse distinction based on race, color, religion, gender, birth, wealth, or any similar criteria; afforded adequate food, drinking water, shelter, clothing, and medical treatment; and allowed the free exercise of religion consistent with the requirements of the detention."

(U) A Department of Defense memorandum [59] to the Chairman of the Joint Chiefs of Staff, with instructions to forward it to the Combatant Commanders, stated that "the United States has determined that Al Qaida and Taliban individuals under the control of the Department of Defense are not entitled to prisoner of war status for the purposes of the Geneva Conventions of 1949." The memorandum further directed that "[t]he Combatant Commanders shall in detaining Al Qaida and Taliban individuals under the control of the Department of Defense treat them humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions of 1949."

(U) The President has directed that "[a]s a matter of policy, the United States Armed Forces shall continue to treat detainees humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva." [60]

C. DOD-Specific Policy Considerations

(U) (The information in this section was derived from guidance provided by the Office of the Assistant Secretary of Defense (Special Operations and Low-Intensity Conflict))

(S/NF) (U) The first priority of any detainee interrogation is to obtain intelligence on imminent or planned terrorist attacks against the United States and its citizens or interests A clearly related priority is to obtain intelligence to enable the United States to conduct the ongoing war on terrorism effectively. Detainee interrogations have proven instrumental to the United States efforts to uncover terrorist cells and thwart planned attacks.

(S/NF) (U) The Secretary of the Army (DoD lead for criminal investigations) will continue to assess, concurrently, the value of information on detainee activities for prosecution considerations. See War Crimes and Related Investigations Within The US Central Command Area Of operations, Secretary of Defense, January 19, 2002.

(S/NF) (U) In the event of a request to shift the priority of interrogations from intelligence gathering to prosecution considerations, the following factors, among others, should be considered before such a request is approved:

the nature of the impending threat to national security and to individuals;

the imminence of the threat;

the ability of the detainee to provide useful information to eliminate the threat; and

potential benefit derived from an effective interrogation compared to the potential benefit from a better opportunity for effective prosecution.

(S/NF) (U) For routine interrogations, standard U.S. Armed Forces doctrine will be utilized.

(S/NF) (U) For interrogations involving exceptional techniques [61] approved by the Secretary of Defense, standard doctrine may be used as well as the specifically authorized exceptional techniques. However, such interrogations may be applied only in limited, designated settings approved by SECDEF or his designee, staffed by personnel specifically trained in their use and subject to a command/decision authority at a level specifically designated by the SECDEF for this purpose.

(S/NF) (U) Choice of interrogation techniques involves a risk benefit analysis in each case, bounded by the limits of DOD policy and U.S. law. When assessing whether to use exceptional interrogations techniques, consideration should be given to the possible adverse effects on U.S. Armed Forces culture and self-image, which at times in the past may have suffered due to perceived law of war violations. DOD policy, reflected in the DOD Law of War program implemented in 1979 and in subsequent directives, greatly restored the culture and self-image of the U.S. Armed Forces by establishing high benchmarks of compliance with the principles and spirit of the law of war, and thereby humane treatment of all persons in U.S. Armed Forces' custody. [62] In addition, consideration should be given to whether implementation of such exceptional techniques is likely to result in adverse effects on DOD personnel who become POWs, including possible perceptions by other nations that the United States is lowering standards related to the treatment of prisoners, generally.

(S/NF) (U) All interrogation techniques should be implemented deliberately following a documented strategy designed to gain the willing cooperation of the detainee using the least intrusive interrogation techniques and methods.

(S/NF) (U) All interrogations involving exceptional methods approved by the appropriate authority must be applied in the context of a comprehensive plan for their use, singly or in combination with other techniques. At a minimum, the plan should include:

Appropriate approval authority;

Supervisory requirements to insure appropriate application of methods;

Specifics on the application of technique(s) including appropriate duration intervals between applications and events that would require termination of the technique; and

Requirements for the presence or availability (as appropriate) of qualified medical personnel.

(S/NF) (U) Implementation of approved exceptional techniques must be approved at the command authority level specified for the particular method.

D. Potential Effects on Prosecutions

(S/NF) (U) Although the primary purpose of detainee interrogations is obtaining intelligence on imminent or planned terrorist attacks against the United States and its citizens or interests, the United States may later decide to prosecute detainees. This section will discuss whether evidence obtained in interrogations will be admissible in either military commissions or U.S. court proceedings.

(S/NF) (U) The stated objective of detainee interrogations is to obtain information of intelligence value. Information obtained as a result of interrogations may later be used in criminal prosecutions. Depending on the techniques employed, the admissibility of any information may depend on the forum considering the evidence. In addition, the admissibility of an admission or confession necessarily will be fact-specific, in that the exact techniques used with a specific detainee will determine whether the information will be admissible. Although the goal of intelligence interrogation is to produce a willingly cooperative and compliant subject, a successful interrogation nevertheless may produce a statement that might be argued to be involuntary for purposes of criminal proceedings.

(U) Prosecution by the United States is possible in a military commission, court-martial, or in an Article III court.

(S/NF) (U) The standard of admissibility for military commissions is simply whether the evidence has probative value to a reasonable person. (Military Commissions Order No 1, para 8 (D)(1)). Although this is a fairly low threshold, many of the techniques may place a burden on the prosecution's ability to convince commission members that the evidences meets even that lower standard. As the interrogation methods increase in intensity, the likelihood that the information will be deemed coerced and involuntary and thus held inadmissible increases. Although voluntariness of the confession is not a specific threshold question of admissibility, it can reasonably be expected that the defense will raise voluntariness, challenging the probative value of the information and hence, its admissibility. If the statement is admitted, voluntariness will undoubtedly be a factor considered by the members in determining the weight to be given the information.

(S/NF) (U) Any trials taking place in either U.S. federal courts or by courts-martial will be conducted pursuant to statutory and constitutional standards and limitations. To be admissible, statements made during interrogation must be determined to be voluntary. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The judge must first determine whether the statements were the product of free will, i.e., the defendant's will was not overborne by the interrogators. Mincey v. Arizona, 437 U.S. 385 (1978) (the defendant's will was simply overborne and due process of law requires that statements obtained as these were cannot be used in any way against the defendant at his trial). This issue can also be raised before the trier of fact. If the actions taken to secure a statement constitute torture, the statement would be inadmissible. Brown v. Mississippi, 297 U.S. 278 (1936) (confessions procured by means "revolting to the sense of justice" could not be used to secure a conviction). It should be noted that conduct does not need to rise to the level of "torture" or "cruel, inhuman and degrading treatment or punishment" for it to cause a statement to be considered involuntary, and therefore inadmissible. As such, the more aggressive the interrogation technique used, the greater the likelihood it could adversely affect the admissibility of any acquired statements or confessions.

(U) Mechanism for Challenge. The defense can be expected to challenge the detainee statements through a motion to suppress the detainee statement or to challenge the entire proceeding through a motion to dismiss for egregious prosecutorial misconduct.

(S/NF) (U) Other Considerations. One of the Department of Defense's stated objectives is to use the detainees' statements in support of ongoing and future prosecutions. The method of obtaining these statements and its effect on voluntariness may also affect the usability of these statements against other accused in any criminal forum. Statements produced where the will of the detainee has been overborne will in all likelihood be viewed as inherently suspect and of questionable value.

(S/NF) (U) Consideration must be given to the public's reaction to methods of interrogation that may affect the military commission process. The more coercive the method, the greater the likelihood that the method will be met with significant domestic and international resistance. This in turn may lower international and domestic acceptance of the military commission process as a whole. In addition, the military commission will be faced with balancing the stated objective of open proceedings with the need not to publicize interrogation techniques. Consequently, having these techniques become public or substantially closing the proceedings in order to protect the techniques from disclosure could be counterproductive and could undermine confidence in the outcome. Finally, the timing of the prosecutions must be considered. Revelation of the techniques presumably will reduce their effectiveness against current and future detainees.

E. International Considerations That May Affect Policy Determinations

(U) This section provides a discussion of international law that, although not binding on the United States, could be cited by other countries to support the proposition that the interrogation techniques used by the U.S. contravene international legal standards. The purpose of providing this international law discussion is to inform the Department of Defense's policy considerations when deciding if, when and how to employ the interrogation techniques against unlawful combatants held outside the United States.

1. Geneva Conventions

(S/NF) (U) To the extent that other nation states do not concede the U.S. position that the Geneva Conventions do not apply to the detainees, there are several provisions of the Third Geneva Convention that may be relevant considerations regarding interrogation techniques.[63] Article 13 requires that POWs must at all times be treated humanely, and that any unlawful act or omission by the detaining power causes death or seriously endangers the health of a POW will be regarded as a serious breach of the Convention. In addition, POWs must be protected against acts of violence or intimidation. Under Article 14 of the Convention, POWs are entitled to respect for their person and their honor. Article 17 prohibits physical or mental torture and any other form of coercion of POWs in order to secure information. POWs who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment. Article 130 provides that torture or inhuman treatment, or willfully causing great suffering or serious injury to body or health of a POW are considered "grave breaches" of the Convention. Article 129 of the Convention requires Parties to search for, extradite or prosecute those persons alleged to have committed, or have ordered to be committed, grave breaches.

(U) These articles of the Third Geneva Convention may provide an opportunity for other States Parties to allege that they consider the United States to be in violation of the Convention through its treatment of detainees. To the extent any such treatment could be considered by them to be torture or inhuman treatment, such acts could be considered "grave breaches" and punishable as war crimes.

(U) In addition, even if they argue that the Taliban and al Qaida detainees are not entitled to POW status, they may consider that the guarantees contained in Article 75 of the First Additional Protocol to the Geneva Conventions are measures by which the United State's actions could be evaluated. See, infra, this Section, paragraph 3. Additional arguments may be made by other nations that the protections of the Geneva Conventions are comprehensive and apply to unlawful combatants.[64]

2. Convention Against Torture

(U) Article 7 of the Torture Convention requires that a State Party either extradite or prosecute a person found within its territory who has been alleged to have committed acts of torture.65 As discussed, supra, the United States implemented this provision in Chapter 113C of Title 18, United States Code, which provides for federal criminal jurisdiction over an extraterritorial act or attempted act of torture, if the alleged offender is present in the United States, regardless of the nationality of the victim or the alleged offender. All States Parties to the Convention are required to establish this same jurisdiction in their countries. Accordingly, governments could potentially assert jurisdiction over U.S. personnel found in their territory, and attempt to prosecute them for conduct they consider to be violations of the Torture Convention.

3. Customary International Law/Views of Other Nations

(U) "Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation."[66]

(U) The United States' primary obligation concerning torture and other related practices derives from the Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment and Punishment. Although not consistent with U.S. views, some international commentators maintain that various human rights conventions and declarations (including the Geneva Conventions) represent "customary international law" binding on the United States. [67]

(U) Although not binding on the United States, the following international human rights instruments may inform the views of other nations as they assess the actions of the United States relative to detainees.

(U) One of the first major international declarations on human rights protections was the 1948 Universal Declaration of Human Rights (adopted Dec. 10, 1948, G.A. Res. 217A (III), U.N. Doc. A/810). This Declaration, which is not itself binding or enforceable against the United States, states at Article 5 that "no one shall be subjected to the torture or to cruel, inhuman or degrading treatment or punishment." Although there is a specific definition for "torture" in the subsequent 1994 Convention Against Torture, there is no commonly accepted definition in the international community of the terms "cruel, inhuman, and degrading punishment or treatment."

(U) The American Convention on Human Rights[68] was signed by the United States in 1977 but the United States never ratified it. It states in Article 5 that "no one shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment," and that "all persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person."

(U) In 1975, the U.N. General Assembly adopted the Declaration on Protection of All Persons from Being Subjected to Torture and other Cruel, Inhumane or Degrading Punishment (G.A. Res 34/52, U.N. Doc. A/10034). As with previous U.N. declarations, the Declaration itself is not binding on nations. This Declaration provides (Article 2) that the proscribed activities are "an offense to human dignity and shall be condemned as a denial of the purposes of the Charter of the United Nations and as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights."

(U) Article 75 of the First Additional Protocol to the Geneva Conventions, to which the U.S. is not a party, prohibits physical and mental torture, outrages upon personal dignity (in particular to humiliating and degrading treatment), or threats to commit any of the foregoing against detainees "who do not benefit from more favorable treatment under the [Geneva] Conventions."[69] (The First Additional Protocol does not define any of these terms.) According to International Committee of the Red Cross (ICRC) Commentaries, where the status of a prisoner of war or of a protected person is denied to an individual, the protection of Article 75 must be provided to them at a minimum.[70]

(U) The Geneva Convention Relative to the Protection of Civilian Persons in Time of War provides, inter alia, that persons protected by the Civilians Convention are those who, at a given moment and in any manner whatsoever, find themselves in the hands of a Party to the conflict that is a country of which they are not nationals.[71] Such persons are at all times to be treated humanely and protected against all acts of violence or threats thereof. The Department of Justice has determined that this conventions applies only to civilians but does not apply to unlawful combatants.[72]

4. International Criminal Court

(S/NF) (U) The Rome Statute of the International Criminal Court (ICC), [73] which the U.S. has made clear it opposes and to which it has no intention of becoming a party contains provisions prohibiting the infliction of severe physical or mental pain or suffering (including for such purposes as obtaining information). These violations are considered by the signatories to be war crimes of torture and of inhuman treatment (Article 8) and crimes against humanity (Article 7). The affected persons must be protected under one or more of the Geneva Conventions in order for the prohibition to be applicable. Ohter governments could take a position contrary to the U.S. position on this point. For those State Parties to the ICC that take the position that the ICC grants universal jurisdiction to detain individuals suspected of committing prohibited acts, if these countires obtain control over U.S. personnel, they may view it as within their jurisdiction to surrender such personnel to the ICC. In an effort to preclude this possibility, the United States is currently negotiating "Article 98" agreements with as many countries as possible to provide for protection of U.S. personnel from surrender to the ICC. [74]

(S/NF) (U) States with whom the United States has not concluded Article 98 agreements, and that perceive certain interrogation techniques to constitute torture or inhuman treatment, may attempt to use the Rome Statute to prosecute individuals found in their territory responsible for such interrogations. [75] In such cases, the U.S. Government will reject as illegitimate any attempt by the ICC, or a state on its behalf, to assert the jurisdiction of the Rome Statute over U.S. nationals without the prior express consent of the United States.

V. Techniques

(U) The Purpose of all interviews and interrogations is to get the most information from a detainee with the least intrusive method, always applied in a humane and lawful manner with sufficient oversight by trained investigators or interrogators. Operating instructions must be developed based on command policies to insure uniform, careful, and safe application of any interrogations of detainees.

(S/NF)(U) Interrogations must always be planned, deliberate actions that take into account numerous, often interlocking factors such as a detainee's current and past performance in both detention and interrogation, a detainee's emotional and physical strengths and weaknesses, an assessment of possible approaches that may work on a certain detainee in an effort to gain the trust of the detainee, strengths and weaknesses of interrogators, and augmentation by other personnel for a certain detainee based on other factors.

(S/NF)(U) Interrogation approaches are designed to manipulate the detainee's emotions and weaknesses to gain his willing cooperation. Interrogation operations are never conducted in a vacuum; they are conducted in close cooperation with the units detaining the individuals. The policies established by the detaining units that pertain to searching, silencing, and segregating also play a role in the interrogation of a detainee. Detainee interrogation involves developing a plan tailored to an individual and approved by senior interrogators. Strict adherence to policies/standard operating procedures governing the administration of interrogation techniques and oversight is essential.

(S/NF)(U) Listed below are interrogation techniques all believed to be effective but with varying degrees of utility. Techniques 1-19,22-26 and 30, applied singly, are purely verbal and/or involve no physical contact that could produce pain or harm and no threat of pain or harm. It is important that interrogators be provided reasonable latitude to vary techniques depending on the detainee's culture, strengths, weaknesses, environment, ... extent of training in resistance techniques as well as the urgency of obtaining information that the detainee is known to have. Each of the techniques requested or suggested for possible use for detainees by USSOUTHCOM and USCENTCOM is included. Some descriptions include certain limiting parameters; these have been judged appropriate by senior interrogators as to effectiveness.

(S/NF)(U) While techniques are considered individually within this analysis, it must be understood that in practice, techniques are usually used in combination; the cumulative effect of all techniques to be employed must be considered before any decisions are made regarding approval for particular situations. The title of a particular technique is not always descriptive of a particular technique. With respect to the employment of any techniques involving physical contact, stress or that could produce physical pain or harm, a detailed explanation of that technique must be provided to the decision authority prior to any decision.

Note: Techniques 1-17 are further explained in Field Manual 34-52.

1. (S/NF)(U) Direct: Asking straightforward questions.

2. (S/NF)(U) Incentive/Removal of Incentive: Providing a reward or removing a privilege, above and beyond those that are required by the Geneva Convention, from detainees, (Privileges above and beyond POW-required privileges).

3. (S/NF)(U) Emotional Love: Playing on the love a detainee has for an indivdual or group.

4. (S/NF)(U) Emotional Hate: Playing on the hatred a detainee has for an individual or group.

5. (S/NF)(U) Fear Up Harsh: Significantly increasing the fear level in a detainee.

6. (S/NF)(U) Fear Up Mild: Moderately increasing the fear level in a detainee.

7. (S/NF)(U) Reduced Fear: Reducing the fear level in a detainee.

8. (S/NF)(U) Pride and Ego Up: Boosting the ego of a detainee.

9. (S/NF)(U) Pride and Ego Down: Attacking or insulting the ego of a detainee, not beyond the limits that would apply to a POW.

10. (S/NF)(U) Futility: Invoking the feeling futility of a detainee.

11. (S/NF)(U) We Know All: Convincing the detainee that the interrogator knows the answer to questions he asks the detainee.

12. (S/NF)(U) Establish Your Identity: Convincing the detainee that the interrogator has mistaken for someone else.

13. (S/NF)(U) Repitition Approach: Continuously repeating the same question to the detainee within interrogation periods of normal duration.

14. (S/NF)(U) File and Dossier: Convincing the detainee that the interrogator has a damning and inaccurate file, which must be fixed.

15. (S/NF)(U) Mutt and Jeff: A team consisting of a friendly and harsh interrogator. The harsh interrogator might employ the Pride and Ego Down technique.

16. (S/NF)(U) Rapid Fire: Questioning in rapid succession without allowing detainee to answer.

17. (S/NF)(U) Silence: Staring at the detainee to encourage discomfort.

18. (S/NF)(U) Change of Scenery Up: Removing the detainee from a standard interrogation setting (generally to a location more pleasant, but no worse).

19. (S/NF)(U) Change of Scenery Down: Removing the detainee from the standard interrogation setting and placing him in a setting that may be less comfortable; would not constitute a substantial change in environmental quality.

20. (S/NF)(U) Hooding: This technique is questioning the detainee with a blindfold in place. For interrogation purposes, the blindfold is not on other than during interrogation.

21. (S/NF)(U) Mild Physical Contact: Lightly touching a detainee or lightly poking the detainee in a completely non-injurious manner. This also includes softly grabbing of shoulders to get the detainee's attention or to comfort the detainee.

22. (S/NF)(U) Dietary Manipulation: Changing the diet of a detainee; no intended deprivation of food or water; no adverse medical or cultural effect and without intent to deprive a subject of food or water, e.g., hot rations to MREs.

23. (S/NF)(U) Environmental Manipulation: Altering the environment to create moderate discomfort (e.g., adjusting temperature or introducing an unpleasant smell). Conditions would not be such that they would injure the detainee. Detainee would be accompanied by interrogator at all times.

24. (S/NF)(U) Sleep Adjustment: Adjusting the sleeping times of the detainee (e.g., reversing sleep cycles from night to day.) This technique is NOT sleep deprivation.

25. (S/NF)(U) False Flag: Convincing the detainee that individuals from a country other than the United States are interrogating him.

26. (S/NF)(U) Threat of Transfer: Threatening to transfer the subject to a 3rd country that subject is likely to fear would subject him to torture or death. (The threat would not be acted upon nor would the threat include any information beyond the naming of the receiving country.)

(U) The Following list includes additional techniques that are considered effective by interrogators, some of which have been requested by USCENTCOM and USSOUTHCOM. They are more aggressive counter-resistance techniques that may be appropriate for detainees who are extremely resistant to the above techniques, and who the interrogators strongly believe have vital information. All of the following techniques indicate the need for technique-specialized training and written procedures to insure the safety of all persons, along with appropriate, specified levels of approval and notification for each technique.

27. (S/NF)(U) Isolation: Isolating the detainee from other detainees while still complying with basic standards of treatment.

28. (S/NF)(U) Use of Prolonged Interrogations: The continued use of a series of approaches that extend over a long period of time (e.g.,20 hours per day per interrogation).

29. (S/NF)(U) Forced Grooming: Forcing the detainee to shave hair or beard. (Force applied with intention to avoid injury. Would not use force that would cause serious injury.)

30. (S/NF)(U) Prolonged Standing: Lengthy standing in a "normal" position (non-stress). This has been successful, but should never make the detainee exhausted to the point of weakness or collapse. Not enforced by physical restraints. Not to exceed four hours in a 24-hour period.

31. (S/NF)(U) Sleep Deprivation: Keeping the detainee awake for an extended period of time. (Allowing individual to rest briefly and then awakening him, repeatedly.) Not to exceed 4 days in succession.

32. (S/NF)(U) Physical Training: Requiring detainees to exercise (perform ordinary physical exercises actions) (e.g., running, jumping jacks); not to exceed 15 minutes in a two-hour period; not more than two cycles, per 24-hour periods) Assists in generating compliance and fatiguing the detainees. No enforced compliance.

33. (S/NF)(U) Face slap/ Stomach slap: A quick glancing slap to the fleshy part of the cheek or stomach. These techniques are used strictly as shock measures and do not cause pain or injury. They are only effective if used once or twice together. After the second time on a detainee, it will lose the shock effect. Limited to two slaps per application; no more than two applications per interrogation.

34. (S/NF)(U) Removal of Clothing: Potential removal of all clothing; removal to be done by military police if not agreed to by the subject. Creating a feeling of helplessness and dependence. This technique must be monitored to ensure the environmental conditions are such that this technique does not injure the detainee.

35. (S/NF)(U) Increasing Anxiety by Use of Aversions: Introducing factors that of themselves create anxiety but do not create terror or mental trauma (e.g., simple presence of a dog without directly threatening action). This technique requires that the commander to develop specific and detailed safeguards to insure detainee's safety.

VI. Evaluation of Useful Techniques

(S/NF)(U) The working group considered each of the techniques enumerated in Section V, supra, in light of the legal, historical, policy and operational considerations discussed in this paper. In the course of that examination it became apparent that any decision whether to authorize a technique is essentially a risk benefit analysis that generally takes into account the expected utility of the technique, the likelihood that any technique will be in violation of domestic or international law, and various policy considerations. Generally, the legal analysis that was applied is that understood to comport with the views of the Department of Justice. Although the United States, as a practical matter, may be the arbiter of international law in deciding its application to our national activities, the views of other nations are relevant in considering their reactions, potential effects on our captured personnel in future conflicts, and possible liability to prosecution in other countries and international forums for interrogators, supervisors and commanders involved in interrogation processes and decisions.

(S/NF)(U) The Conclusions section of this analysis, infra, summarizes salient conclusions that were applied to our analysis of individual techniques. As is suggests, the lawfulness and the effectiveness of individual techniques will, in practice, depend on the specific facts. The lawfulness will depend on the specific facts. The lawfulness will depend in significant part on procedural protections that demonstrate a legitimate purpose and that there was no intent to inflict a significant mental or physical pain - and, in fact, avoid that. Because of this, the assessment of each technique presumed that the safeguards and procedures described in the "DOD-Specific Policy Considerations" section of this paper would be in place. The importance of this is underscored by the fact that, in practice, techniques are usually applied in combination, and as the legal analysis of this paper indicates, the significance and effect on an individual detainee of the specific combination of techniques employed, and their manner of application will determine the lawfulness of any particular interrogation.

(S/NF)(U) In addition, the lawfulness of the application of any particular technique, or combination of techniques, may depend on the practical necessity for imposition of the more exceptional techniques. As the analysis explains, legal justification for action that could otherwise be unlawful (e.g., relying upon national necessity and self-defense) depends in large part on whether the specific circumstances would justify the imposition of more aggressive techniques. Interrogation of an individual known to have facts essential to prevent an immediate threat of catastrophic harm to large populations may support use of "exceptional" techniques, particularly when milder techniques have been unavailing. But this is a determination that will always be case-specific. Consequently, use of each technique should be a decision level appropriate to the gravity of the particular case (both for the nation and for the detainee).

(S/NF)(U) The chart at Attachment 3 reflects the result of the risk / benefit assessment for each technique considered, "scored" for each technique, relevant considerations and given an overall recommendation. In addition, it notes specific techniques that, based on this evaluation, should be considered "exceptional techniques" (marked with an "E") subject to particular limitations described in the "DOD-Specific Policy Considerations" section (generally, not routinely available to interrogators, use limited to specifically designated locations and specifically trained interrogators, special safeguards, and appropriately senior employment decision levels specified). For each "exceptional" technique, a recommendation for employment decision level is indicated as well.

VII. Conclusions Relevant to Interrogation of Unlawful Combatants Under DOD Control Outside the United States

(S/NF)(U) As a result of the foregoing analysis of legal, policy, historical, and operational considerations, the following general conclusions can be drawn relevant to interrogation of unlawful combatants captured in the war on terrorism under DOD control outside the United States:

(S/NF)(U) Under the Third Geneva Convention, U.S. forces are required to treat captured personnel as POWs until an official determination is made as to their status. Once a determination has been made that captured personnel are unlawful combatants, as is currently the case with captured Taliban and Al Qaida operatives, they do not have a right to the protections of the Third Geneva Convention.

(U) Customary international law does not provide legally-enforceable restrictions on the interrogation of unlawful combatants under DOD control outside the United States.

(U) The United States Constitution does not protect those individuals who are not United States citizens and who are outside the sovereign territory of the United States.

(S/NF)(U) Under the Torture Convention, no person may be subjected to torture. Torture is defined as an act specifically intended to inflict severe physical or mental pain or suffering and that mental or suffering refers to prolonged mental harm caused by or resulting from (1) the international infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality; (3) the threat of imminent death; or (4) the threat that another person will 'imminently be subjected to death, severe physical pain or suffering, or the administration or application, or threatened application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.

(S/NF)(U) Under the Torture Convention, no person may be subjected to cruel, inhuman or degrading treatment. The United States has defined its obligations under the Torture Convention as conduct prohibited by the 5th, 8th, and 14th Amendments to the Constitution of the United States. These terms, as defined by U.S. courts, could be understood to mean: to inflict pain or harm without a legitimate purpose; to inflict pain or injury for malicious or sadistic reasons; to deny the minimal civilized measures of life's necessities and such denial reflects a deliberate indifference to health and safety; and to apply force and cause injury so severe and so disproportionate to the legitimate government interest being served that it amounts to a brutal and inhumane abuse of official power literally shocking the conscience.

(U) For actions outside the United States and the special maritime and territorial jurisdiction of the United States, 18 U.S.C. § 2340 applies. For actions occurring within the United States and the special maritime and territorial jurisdiction of the United States, various Federal statutes would apply.

(S/NF)(U) The President has directed, pursuant to his Military Order dated November 13, 2001, that the U.S. Armed Forces treat detainees humanely and that the detainees be afforded adequate food, drinking water, shelter, clothing and medical treatment.

(S/NF)(U) Pursuant to the Confidential Presidential Determination, dated February 7, 2002, the U.S. Armed Forces are to treat detainees in a manner consistent with the principles of Geneva, to the extent appropriate and consistent with military necessity.

(U) Under Article 10 of the Torture Convention, the United States is obligated to ensure that law enforcement and military personnel involved in interrogations are educated and informed regarding the prohibition against torture, and under Article 11, systematic reviews of interrogation rules, methods, and practices are also required.

(U) Members of the U.S. Armed Forces are, at all times and all places, subject to prosecution under the UCMJ for, among other offenses, acts which constitute assault, assault consummated by a battery, assault with the intent to inflict grievous bodily harm, manslaughter, unpremeditated murder, and maltreatment of those subject to their orders. Under certain circumstances, civilians accompanying the Armed Forces may be subject to the UCMJ.

(U) Civilian employees and employees of DOD contractors may be subject to prosecution under the Federal Criminal Code for, among other offenses, act which constitute assault (in various degrees), maiming, manslaughter, and murder.

(S/NF)(U) Defenses relating to Commander-in-Chief authority, necessity and self-defense or defense of others may be available to individuals whose actions would otherwise constitute these crimes, and the extent of availability of those defenses will be fact-specific. Certain relevant offenses require specific intent to inflict particular degrees of harm or pain, which could be refuted by evidence to the contrary (e.g., procedural safeguards). Where the Commander-in-Chief authority is being relied upon, a Presidential written directive would server to memorialize this authority.

(S/NF)(U) The lawfulness and appropriateness of the use of many of the interrogation techniques we examined can only be determined by reference to specific details of their application, such as appropriateness and safety for the particular detainee, adequacy of supervision, specifics of the application including their duration, intervals between applications, combination with other techniques, and safeguards to avoid harm (including termination criteria and the presence of availability of qualified medical personnel.) (We have recommended appropriate guidance and protections.)

(S/NF)(U) Other nations, including major partner nations, may consider use of techniques more aggressive that those appropriate for POWs violative of international law or their own domestic law, potentially making U.S. personnel involved in the use of such techniques subject to prosecution for perceived human rights violations in other nations or to being surrendered to international fora, such as the ICC; this has the potential to impact future operations and overseas travel of such personnel.

(S/NF)(U) Some nations may assert that the U.S. use of techniques more aggressive than those appropriate for POWs justifies similar treatment for captured U.S. personnel.

(S/NF)(U) Should information regarding the use of more aggressive interrogation techniques than have been used traditionally by U.S. forces become public, it is likely to be exaggerated or distorted in the U.S. and international media accounts, and may produce an adverse effect on support for the war on terrorism.

(S/NF)(U) The more aggressive the interrogation technique used, the greater the likelihood that it will affect adversely the admissibility of any acquired statements or confessions in prosecutions against the person interrogated, including in military commissions (to a lesser extent than in other U.S. courts).

(S/NF)(U) Carefully drawn procedures intended to prevent unlawful levels of pain or harm not only serve to avoid unlawful results but should provide evidence helpful to demonstrate that the specific intent required for certain offenses did not exist.

(S/NF)(U) General use of exceptional techniques (generally, having substantially greater risk than those currently, routinely used by U.S. Armed Forces interrogators), even though lawful, may create uncertainty among interrogators regarding the appropriate limits of interrogations. They should therefore be employed with careful procedures and only when fully justified.

(S/NF)(U) Participation by U.S. military personnel in interrogations which use techniques that are more aggressive than those appropriate for POWs would constitute a significant departure from traditional U.S. military norms and could have an adverse impact on the cultural self-image of U.S. military forces. [76]

(S/NF)(U) The use of exceptional interrogation techniques should be limited to specified strategic interrogation facilities; when there is a good basis to believe that the detainee possesses critical intelligence; when the detainee is medically and operationally evaluated as suitable (considering all techniques in combination); when interrogators are specifically trained for the technique(s); a specific interrogation plan (including reasonable safeguards, limits on duration, intervals between applications, termination criteria and the presence or availability of qualified medical personnel); when there is appropriate supervision; and, after obtaining appropriate specified senior approval level for use with any specific detainee (after considering the foregoing and receiving legal advice).

VIII. Recommendations

(U) We recommend:

(S/NF)(U) 1. The working group recommends that techniques 1-26 on the attached chart be approved for use with unlawful combatants outside the United States, subject to the general limitations set forth in this Legal and Policy Analysis; and that techniques 27-35 be approved for use with unlawful combatants outside the United States subject to the general limitations as well as the specific limitations regarding "exceptional" techniques as follows: conducted at strategic interrogation facilities; where there is a good basis to believe that the detainee possesses critical intelligence; the detainee is medically and operationally evaluated as suitable (considering all techniques to be used in combination); interrogators are specifically trained for the technique(s); a specific interrogation plan (including reasonable safeguards, limits on duration, intervals between applications, termination criteria and the presence or availability of qualified medical personnel) is developed; appropriate supervision is provided; and, appropriate specified senior level approval is given for use with any specific detainee (after considering the foregoing and receiving legal advice).

(S/NF)(U) 2. SECDEF approve the strategic interrogation facilities that are authorized to use the "exceptional techniques{" (such facilities at this time include Guantanamo, Cuba; additional strategic interrogation facilities will be approved on a case-by-case basis).

(S/NF)(U) 3. As the Commander-in-Chief authority is vested in the President, we recommend that any exercise of that authority by DOD personnel be confirmed in writing through Presidential directive or other document.

(S/NF)(U) 4. That DOD policy directives and implementing guidance be amended as necessary to reflect the determinations in paragraph one and subsequent determinations concerning additional possible techniques.

(S/NF)(U) 5. That commanders and supervisors, and their legal advisers, involved with the decisions related to employment of "exceptional techniques" receive specialized training regarding the legal and policy considerations relevant to interrogations that make use of such techniques.

(S/NF)(U) 6. That OASD (PA) prepare a press plan to anticipate and address potential public inquiries and misunderstandings regarding appropriate interrogation techniques.

(S/NF)(U) 7. That a procedure be established for requesting approval of additional interrogation techniques similar to that for requesting "supplementals" for ROEs; the process should require the requestor to describe the technique in detail, justify its utility, describe the potential effects on subjects, known as hazards and proposed safeguards, provide a legal analysis, and recommend an appropriate decision level regarding use on specific subjects. This procedure should ensure that SECDEF is the approval authority for the addition of any technique that could be considered equivalent in degree to any of the "exceptional techniques" addressed in this report (in the chart numbers 27-35, labeled with an "E"), and that he establish the specific decision level required for application of such techniques.

(S/NF)(U) 8. DOD establish specific understandings with other agencies using DOD detailed interrogators regarding the permissible scope of the DOD interrogator's activities.

Classified by: Secretary Rumsfeld
Reason: 1.5(C)
Declassify on: 10 years













General Comments on Techniques Chart

"E" denotes recommendation that technique be considered "exceptional" and subject to the following limitations: (i) limited to use only at strategic interrogation facilities; (ii) there is a good basis to believe that the detainee possesses critical intelligence; (iii) the detainee is medically and operationally evaluated as suitable (considering all techniques to be used in combination); (iv) interrogators are specifically trained for the technique(s); (v) a specific interrogation plan (including reasonable safeguards, limits on duration, intervals between applications, termination criteria and the presence or availability of qualified medical personnel) has been developed; (vi) there is appropriate supervision; and, (vii) there is appropriate specified senior approval for use with any specific detainee (after considering the foregoing and receiving legal advice).

"(Cbt.C)" denotes recommendation that approval level for use of technique for a specific detainee be no lower than the Combatant Commander.

"(GO/FO)" denotes recommendation that approval level for use of technique for a specific detainee be no lower than a General Officer or Flag Officer. The title of a particular technique is not always fully descriptive of a particular technique. With respect to the employment of any techniques involving physical contact or stress or that could produce physical pain or harm, a detailed explanation of that technique must be provided to the decision authority prior to any decision.

Recommendation: The working group recommends that techniques 1-26 be approved for use with unlawful combatants outside the U.S. subject to the general limitations set forth in the Legal and Policy Analysis; and that techniques 27-35 be approved for use with unlawful combatants outside the U.S. subject to the general limitations as well as the specific limitations regarding "exceptional" techniques set forth above and in the Legal and Policy Analysis. If additional techniques are requested for use in the future, sufficient information regarding the technique must be provided to the appropriate command authority so that a legal/policy analysis can be conducted and recommendations for use made.

Note: Green denotes no significant constraint on use raised by the respective area of consideration listed at the top of each column, assuming adequate procedural safeguards. Yellow indicates area of consideration does not preclude use but there are problematic aspects that cannot be eliminated by procedural safeguards (see footnote). Red indicates major issue in area of consideration that cannot be eliminated.

[admin]

PART 5 OF 5 (MEMO 26 CONT'D.)

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Notes:

1. These recommendations assume that procedures and safeguards substantially similar to those set forth in the "Policy" Section of the Legal and Policy Analysis are followed. The analysis relates to each individual technique; use of techniques in combination could significantly affect the legality and wisdom of their application.

2. Techniques 1-19, 22-26, 30 and 35, applied singly, are purely verbal and/or involve no physical contact that could produce pain or harm; no threat of pain or harm.

3. As a matter of policy, for countries that assert that POW protections should apply to detainees: Other nations may consider that provision and retention of religious items (e.g., the Koran) are protected under international law (see, Geneva III, Article 34).

4. May affect admissibility of statements provided based on voluntariness consideration (lesser issue for military commissions).

5. For countries that assert that POW protections apply to detainees: Article 17 of Geneva III provides. "Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind."

6. As a matter of policy, for countries that assert that POW protections should apply to detainees: Would be inconsistent with Geneva III, Article 13 which provides that POWs must be protected against acts of intimidation.

7. As a matter of policy, for countries that assert that POW protections should apply to detainees: Possible that other nations would disregard "mild" aspect and use as justification for abuse of U.S. POWs.

8. International case law suggests that technique might in some circumstances be viewed by other countries as inhumane.

9. May affect admissibility of statements provided based on voluntariness consideration (lesser issue for military commissions).

10. May significantly affect admissibility of statements provided based on voluntariness consideration (lesser issue for military commissions).

11. The use of isolation as an interrogation technique requires detailed implementation instructions, including specific guidelines regarding the length of isolation, medical and psychological review, and approval for extensions of the length of isolation by the appropriate level in the chain of command.

12. To avoid implementation that could transgress, the use of isolation as an interrogation technique requires detailed implementation instructions, including specific guidelines regarding the length of isolation, medical and psychological review, and approval for extensions of the length of isolation by the appropriate level in the chain of command.

13. To avoid implementation that could transgress, the use of isolation as an interrogation technique requires detailed implementation instructions, including specific guidelines regarding the length of isolation, medical and psychological review, and approval for extensions of the length of isolation by the appropriate level in the chain of command.

14. Not known to have been generally used for interrogation purposes for longer than 30 days.

15. As a matter of policy, for countries that assert that POW protections should apply to detainees: Would be inconsistent with the requirements of Geneva III, Article 13 which provides that POWs must be protected against acts of intimidation; Article 14 which provides that POWs are entitled to respect for their person; Article 34 which prohibits coercion (see commentary to paragraph 4), and Article 126 which ensures access and basic standards of treatment.

16. May affect admissibility of statements provided based on voluntariness consideration (lesser issue for military commissions).

17. Utility is "high" for the first four to five days, "medium" for the following four to six days, and "low" thereafter.

18. May significantly affect admissibility of statements provided based on voluntariness consideration (lesser issue for military commissions).

19. Where there are religious or cultural sensitivities, this technique could raise issue of "degrading" if not applied in accordance with general limitations.

20. At practical level, may raise issues whether excessive force was used.

21. This technique has not been used historically by U.S. forces. As such, no color code was assigned.

22. This technique could be viewed by major partner nations as degrading in some circumstances.

23. May affect admissibility of statements provided based on voluntariness consideration (lesser issue for military commissions).

24. As a matter of policy, for consideration of other nations' views, the Committee against Torture, established under Article 17 of the Convention Against Torture (CAT), has interpreted "sleep deprivation for prolonged periods" to be a violation of both Article 16 of the CAT as cruel, inhuman, or degrading treatment as well as constituting torture under Article 1 of the CAT. Concluding Observations of the Committee against Torture, U.N. Doc. A/52/44, paragraphs 253-260. See also, Judgment on the Interrogation Methods Applied by the GSS, Nos HC 5100/94, HC 4054/95, HC 5188/96, HC 7563/97, HC 7628/97, HC 1043/99 (Sup Ct of Israel, sitting as the High Court of Justice, Sep 6, 1999). Finally, the European Court of Human Rights (ECHR) has held that sleep deprivation, in conjunction with four other problematic techniques (wall standing, hooding, subjection to noise, and deprivation of food and drink), did constitute "inhuman and degrading treatment". Ireland v. United Kingdom, 25 Eur. Ct. H.R. (Ser. A) (1978).

25. May significantly affect admissibility of statements provided based on voluntariness consideration (lesser issue for military commissions).

26. Knowledge of this technique may have a significant adverse effect on public opinion.

27. May affect admissibility of statements provided based on voluntariness consideration (lesser issue for military commissions).

28. Technique used historically until the Vietnam war, however not officially sanctioned.

29. As a matter of policy, for consideration of other nations' views, the Committee against Torture has generally denounced the use of "moderate physical pressure" as a permissible interrogation technique. See also, Tyrer v. United Kingdom, 26 Eur. Ct. H.R. (Ser. A) (1978) (spanking of student with three lashes of a birch rod violated European Convention on Human Rights). See also, Article 5 of the American Convention on Human Rights prohibits not only "torture" and "cruel, inhuman or degrading punishment or treatment" but it also provides that: "Every person has the right to have his physical, mental, and moral integrity respected."

30. As a matter of policy, other nations could interpret this as condoning assault on the detainee and encourage the use against U.S. POWs.

31. Potential to be subject to charge of assault in international jurisdictions.

32. May significantly affect admissibility of statements provided based on voluntariness consideration (lesser issue for military commissions).

33. Knowledge of this technique may have significant adverse effect on public opinion.

34. Depending on application of technique, could be construed as degrading.

35. At practical level, may raise issues whether excessive force was used as force may be required to remove clothing.

36. Other nations may use as excuse to apply to U.S. POWs.

37. Knowledge of this technique may have a significant adverse effect on public opinion.

38. Legal exposure would be dependant on specific technique employed. Depending on technique used and subject response, potential exists that technique could be viewed as violating Fifth/Eighth/Fourteenth Amendment standards, and therefore violate U.S. interpretation of Torture Convention.

38. Legal exposure would be dependant on specific technique employed. Depending on technique used and subject response, potential exists that technique could be viewed as violating Fifth/Eighth/Fourteenth Amendment standards, and therefore violate U.S. interpretation of Torture Convention.

40. Could provide basis for other nations to justify use of more aggravated mental techniques on U.S. POWs.

41. May significantly affect admissibility of statements provided based on voluntariness consideration (lesser issue for military commissions).

Description of Interrogation Techniques

I. Direct: Asking straightforward questions.

2. Incentive/Removal of Incentive: Providing a reward or removing a privilege, above and beyond those that are required by the Geneva Convention, from detainees.

3. Emotional Love: Playing on the love a detainee has for an individual or group.

4. Emotional Hate: Playing on the hatred a detainee has for an individual or group.

5. Fear Up Harsh: Significantly increasing the fear level in a detainee.

6. Fear Up Mild: Moderately increasing the fear level in a detainee.

7. Reduced Fear: Reducing the fear level in a detainee.

8. Pride and Ego Up: Boosting the ego of a detainee.

9. Pride and Ego Down: Attacking or insulting the ego of a detainee, not beyond the limits that would apply to a POW.

10. Futility: Invoking the feeling of futility of a detainee.

11. We Know All: Convincing the detainee that the interrogator knows the answer to questions he asks the detainee.

12. Establish Your Identity: Convincing the detainee that the interrogator has mistaken the detainee for someone else.

13. Repetition Approach: Continuously repeating the same question to the detainee within interrogation periods of normal duration.

14. File and Dossier: Convincing detainee that the interrogator has a damning and inaccurate file, which must be fixed.

15. Mutt and Jeff: A team consisting of a friendly and harsh interrogator. The harsh interrogator might employ the Pride and Ego Down technique.

16. Rapid Fire: Questioning in rapid succession without allowing detainee to answer.

17. Silence: Staring at the detainee to encourage discomfort.

18. Change of Scenery Up: Removing the detainee from the standard interrogation setting (generally to a location more pleasant, but no worse).

19. Change of Scenery Down: Removing the detainee from the standard interrogation setting and placing him in a setting that may be less comfortable; would not constitute a substantial change in environmental quality.

20. Hooding: This technique is questioning the detainee with a blindfold in place. For interrogation purposes, the blindfold is not on other than during interrogation.

21. Mild Physical Contact: Lightly touching a detainee or lightly poking the detainee in a completely non-injurious manner. This also includes softly grabbing of shoulders to get the detainee's attention or to comfort the detainee.

22. Dietary Manipulation: Changing the diet of a detainee; no intended deprivation of food or water; no adverse medical or cultural effect and without intent to deprive subject of food or water, e.g., hot rations to MREs.

23. Environmental Manipulation: Altering the environment to create moderate discomfort (e.g., adjusting temperature or introducing an unpleasant smell). Conditions would not be such that they would injure the detainee. Detainee would be accompanied by interrogator at all times.

24. Sleep Adjustment: Adjusting the sleeping times of the detainee (e.g., reversing sleep cycles from night to day.) This technique is NOT sleep deprivation.

25. False Flag: Convincing the detainee that individuals from a country other than the United States are interrogating him.

26. Threat of Transfer: Threatening to transfer the subject to a third country that subject is likely to fear would subject him to torture or death. (The threat would not be acted upon, nor would the threat include any information beyond the naming of the receiving country.)

27. Isolation: Isolating the detainee from other detainees while still complying with basic standards of treatment.

28. Use of Prolonged Interrogations: The continued use of a series of approaches that extend over a long period of time (e.g., 20 hours per day per interrogation).

29. Forced Grooming: Forcing a detainee to shave hair or beard. (Force applied with intention to avoid injury. Would not use force that would cause serious injury.)

30. Prolonged Standing: Lengthy stand\ng in a "normal" position (non-stress). This has been successful, but should never mike the detainee exhausted to the point of weakness or collapse. Not enforced by physical restraints. Not to exceed four hours in a 24-hour period.

31. Sleep Deprivation: Keeping the detainee awake for an extended period of time. (Allowing individual to rest briefly and then awakening him, repeatedly.) Not to exceed four days in succession.

32. Physical Training: Requiring detainees to exercise (perform ordinary physical exercises actions) (e.g., running, jumping jacks); not to exceed 15 minutes in a two-hour period; not more than two cycles per 24-hour period. Assists in generating compliance and fatiguing the detainees. No enforced compliance.

33. Face slap/Stomach slap: a quick glancing slap to the fleshy part of the cheek or stomach. These techniques are used strictly as shock measures and do not cause pain or injury. They are only effective if used once or twice together. After the second time on a detainee, it will lose the shock effect. Limited to two slaps per application; no more than two applications per interrogation.

34. Removal of Clothing: Potential removal of all clothing; removal to be done by military police if not agreed to by the subject. Creating a feeling of helplessness and dependence. This technique must be monitored to ensure the environmental conditions are such that this technique does not injure the detainee.

35. Increasing Anxiety by Use of Aversions: Introducing factors that of themselves create anxiety but do not create terror or mental trauma (e.g., simple presence of dog without directly threatening action). This technique requires the commander to develop specific and detailed safeguards to insure detainee's safety.

UNCLASSIFIED
SECRET/NOFORN
UNCLASSIFIED WHEN SEPARATED FROM ATTACHMENT

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Notes:

[1] The President determined that "none of the provisions of Geneva apply to our conflict with al-Qaida in Afghanistan or elsewhere throughout the world because, among other reasons, al-Qaida is not a High Contracting Party to Geneva." Confidential Presidential Determination, subject: Humane Treatment of al Qaida and Taliban Detainees, dated Feb. 7, 2002.

[2] The President determined that "the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva." ld.

[3] (U) Article I provides: “For the purpose of this convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him to an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consensus or acquiescence of a public official acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

[4] (U) 18 U.S.C. § 2340 tracks this language. For a further discussion of the U.S. understandings and reservations, see the Initial Report of the U.S. to the U.N. Committee Against Torture, dated October 15, 1999.

[5] (U) But see discussion to the contrary at the Domestic Law section on the necessity defense.

[6] (U) Memorandum dated January 22, 2002, Re: Application of Treaties to al-Qaida and Taliban detainees at 32.

[7] (U) Memorandum dated January 22, 2002, Re: Application of Treaties to al-Qaida and Taliban detainees at 35.

[8] (U) Section 2340A provides, “Whoever outside the Unites States commits or attempts to commit torture shall be fined or imprisoned…” (emphasis added).

[9] (U) 18 USC § 7, “Special maritime and territorial jurisdiction of the United States” includes any lands under the exclusive or concurrent jurisdiction of the United States.

[10] (U) Several paragraphs of 18 USC § 7 are relevant to the issue at hand. Paragraph 7(3) provides: [SMTJ includes:] “Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place…” Paragraph 7(7) provides [SMTJ includes:] “Any place outside the jurisdiction of any nation to an offense by or against a nation of the United States.” Similarly, paragraphs 7(1) and 7(5) extend SMTJ jurisdiction to “the high seas, and other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular state, and any vessel belonging in whole or in part to the United States…” and to “any aircraft belonging in whole or in part in the United States… while such aircraft is in flight over the high seas, or over any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State."

[11] (U) 6 Op. OLC236 (1982). The issue was the status of GTMO for purposes of a statute banning slot-machines on “any land where the United States government exercises exclusive or concurrent jurisdiction”.

[12] The DSM-IV explains that posttraumatic stress disorder (“PTSD”) is brought on by exposure to traumatic events, such as serious physical injury or witnessing the deaths of others and during those events the individual felt “intense fear” or “horror.” Id at 424. Those suffering from this disorder re-experience the trauma through, inter alia, “recurrent and intrusive distressing recollections of the event”, “recurrent distressing dreams of the event”, or “intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event,” Id at 428. Additionally, a person with PTSD “[p]ersistently” avoids stimuli associated with the trauma, including avoiding conversations about the trauma, places that stimulate recollections about the trauma, and they experience a numbing of general responsiveness, such as a “restricted range of affect (e.g., unable to have living feelings)”, and “the feeling of detachment or estrangement from others.” Ibid. Finally, an individual with PTSD has “[p]ersistent symptoms of increased arousal,” as evidenced by “irritability or outbursts of anger”, “hypervigilance”, “exaggerate startle response”, and difficulty sleeping or concentrating. Ibid.

[13] (U) Published by the American Psychiatric Association, and written as a collaboration of over a thousand psychiatrists, the DSM-IV is commonly used in U.S. courts as a source of information regarding mental health issues and is likely to be used in trial should charges be brought that allege this predicate act. See, e.g., Atkins v. Virginia', 122 S. Ct. 2242, 2245 n. 3 (2002); Kansas V. Crane, 122 S. Ct. 867, 871 (2002); Kansas v. Hendricks, 521 U.S. 346, 359-60 (1997); McClean v. Merrifield, No. 00-CV-0120E (SC), 2002 WI 1477607 at #2n.7 (W.D.N.Y. June 28, 2002); Peeples v. Coastal Office Prods., 203 F. Supp 2d 432, 439 (D. Md 2002); Lassiegne v. Taco Bell Corp., 202 F. Supp 2d 512, 519 (E.D. La. 2002).

[14] (U) 18 U.S.C. § 2441 criminalizes the commission of war crimes by U.S. national and members of the U.S. Armed Forces. Subsection (c) defines war crimes as (1) grave breaches of any of the Geneva Conventions: (2) conduct prohibited by the Hague Convention IV, Respecting the Law and Customs of War on Land, signed 18 October 1907; or (3) conduct that constitutes a violation of common Article 3 of the Geneva Conventions. The Department of Justice has opined that this statute does not apply toward al-Qaida or Taliban operatives because the President has determined that they are not entitled to the protections of Geneva and Hague Regulations.

[15] (U) 18 U.S.C. § 2. Principals

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

18 U.S.C. § 371. Conspiracy to commit offense or to defraud the United States.

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

[16] (U) United States v. Rabbinowich, 238 US 78, 59, 35 S.Ct 682, L. Ed 1211 (1915).

[17] (U) United States v. Cangiano, 491 F.2d 906 (2nd Cir, 1974), next denied 419 U.S. 904 (1974).

[18] (U) See Johnson v. Eisentrager, 339 U.S. 763, 789 (1950) (President has authority to deploy United States armed forces “abroad or to any particular region”); Fleming v. Page, 50 U.S. (9 Flow) 603, 614-15 (1950) (“As commander-in-chief, [the President] is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in a manner he may deem most effective”) Loving v. United States, 517 U.S. 748, 776 (1996) (Scalia, J., concurring in part and concurring in judgment) (The inherent powers of the Commander-in-Chief “are clearly extensive.”): Maul v. United States, 274 U.S. 501, 515-16 (1927) (Brandeis & Holmes J.T., concurring) (President “may direct any revenue cutter to cruise in any water in order to perform any duty of the service”); Commonwealth Massachusetts v. Laird, 451 F.2d 26, 32 (1st Cir. 1971) (the President has “power as Commander-in-Chief to station forces abroad”); Ex parte Vallandigham, 28 F. Cas. 874, 922 (C.C.B.D. Ohio (1863)(No. 16,816) (in acting “under his power where there is no express legislative declaration, the president is guided solely by his own judgment and discretion”); Authority to Use United States Military Forces in Somalia, 16 Op. O.L.C. 6,G (Dec. 4, 1992) (Barr, attorney General).

[19] (U) Judicial decisions since the beginning of the Republic confirm the President’s constitutional power and duty to repel military action against the United States and to take measures to prevent the reoccurrence of an attack. As Justice Joseph Story said long ago, “[I]t may be fit and proper for the government, in the exercise of the high discretion confided to the executive, for great public purposes, to act on a sudden emergency, or to prevent an irreparable mischief, by summoning measures, which are not found in the text of the laws.” The Apallon, 22 U.S. (9 Wheat) 362, 366-67 (1824). If the President is confronted with an unforeseen attack on the territory and people of the United States, or other immediate dangerous threat to American interests and security, it is his constitutional responsibility to respond to that threat with whatever means are necessary. See e.g., The Prize Cases, 67 U.S. (2 Black) 635, 668 (1862)(“If a war be made by invasion or a foreign nation, the President is not only authorized but bound to resist force by force…without waiting for any special legislative authority.”); United States v. Smith, 27 F. Cas; 1192, 1229-30 (C.C.D.N.Y., 1.-06) (No. 16,342) (Paterson, Circuit Justice) (regardless of statutory authorization, it is “the duty…of the executive magistrate - to repel an invading foe”) see also 3 Story, Commentaries 6, 1485 (“[t]he command and application of the public force…to maintain peace, and to resist foreign invasion” are executive powers).

[20] (U) Although application of the Commander-in-Chief authority does not require a specific written directive, as an evidentiary matter a written Presidential directive or other document would serve to memorialize the authority.

[21] In the CAT, torture is defined as the intentional infliction of severe pain or suffering “for such purposes of obtaining from him or a third person information or a confession.” CAT art 1.1 One could argue that such a definition represented an attempt to indicate that the good of obtaining information—no matter what the circumstances—could not justify an act of torture. In other words, necessity would not be a defense. In enacting Section 2340, however, Congress removed the purpose element in the definition of torture, evidencing an intention to remove any fixing of values by statute. By leaving, Section 2340 silent as to the harm done by torture in comparison to other harms, Congress allowed the necessity defense to apply when appropriate.

Further, the CAT contains an additional provision that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture,” CAT art. 2.2 Aware of this provision of the treaty and of the definition of the necessity defense that allows the legislature to provide for an exception to the defense. See Model Penal Code 3,02(b), Congress did not incorporate CAT article 2.2 into Section 2-4. Given that Congress omitted CAT’s effort to bar a necessity or wartime defense, Section 2340 could be read as permitting defense.

[22] (U) Early cases had suggested that in order to be eligible for defense of another, one should have some personal relationship with the one in need of protection. That view has been discarded. LaFave & Scott at 664.

[23] (U) Moore distinguishes that case from one in which a person has information that could stop a terrorist attack, but who does not take a hand in the terrorist activity itself, such as an innocent person who learns of the attack from her spouse. Moore, 23 Israel L. Rev. at 324. Such individuals, Moore finds, would not be subject to the use of force in self-defense, although they might under the doctrine of necessity.

[24] (U) While the President's constitutional determination alone is sufficient to justify the nation's resort to self-defense, it also bears noting that the right to self-defense is further recognized under international law. Article 51 of the U.N. Charter declares that "[n]othing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations until the Security Council has taken the measures necessary to maintain international peace and security." The attacks of September 11, 2004, clearly constitute an armed attack against the United States, and indeed were the latest in a long history of al Qaida sponsored attacks against the United States. This conclusion was acknowledged by the United Nations Security Council on September 29, 2001, when it unanimously adopted Resolution 1373 explicitly "reaffirming the inherent right of individual and collective defense as recognized by the charter of the United Nations. This right of self-defense is a right to effective self-defense. In other words, the victim state has the right to use force against the aggressor who has initiated an "armed attack" until the threat was abated. The United States, through its military and intelligence personnel, has a right recognized by Article 51 to continue using force until such time as the threat posed by al Qaida and other terrorist groups connected to the September 11th attack is completely ended." Other treaties re-affirm the right of the United States to use force in its self-defense. See, e.g., Inter-American Treaty of Reciprocal Assistance, art. 3, Sept 2, 1947 T.I.A.S. No. 1838, 21 U.N.T.S 77 (Rio Treaty); North Atlantic Treaty, art. 5, Apr. 4, 1949, 3 Stat. 2241, 34 U.N.T.S 243.

[25] (U) See Section 6.1.4, Annotated Supplement to the Commander's Handbook on the Law of Naval Operations (NWP 1-14M 1997)

[26] (U) ld.

[27] (U) The International Criminal Court also takes this view. Article 33 of the Rome Statute, recognizes that: "1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful. 2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful."

[28] (U) ld., at §6.2.5.5.1.

[29] (U) See U.S. Naval War College, International Law Documents, at 1944-45, 255 (1946).

[30] (U) Trial of Major War Criminals before the International Military Tribunal, Nuremberg 14 November 1945-1 October 1946 at 224 (1947), excerpted in U.S. Naval War College, International Law Documents, 1946-1947, at 260 (1948).

[31] (U) This inference does not apply to a patently illegal order, such as one that directs the confession of a crime. (Article 90, UCMJ).

[32] (U) 28 CFR 50.15 (a)(4)

[33] (U) 28 U.S.C § 1350, the Alien Tort Claim Act (ATCA).

[34] (U) See, for example, Abebe-Jira v. Negewo, No 93-9133. United States Court of Appeals, Eleventh Circuit, Jan 10, 1996 In this case the 11th Circuit concluded, “the Alien Tort Claims Act establishes a federal forum where courts may fashion domestic common law remedies to give effect to violations of customary international law.”

[35] (U) Al Odah v. United States, (D.D.C., 2002)

[36] (U) Filartiga v Pena-Irale, 630 F.2d 76 (2nd Cir. 1980) 885, note I, “conduct of the type alleged here [torture] would be actionable under 42 U.S.C. 1983, or undoubtedly the Constitution, if performed by a government official.”

[37] (U) Pub. L. No. 102-256, 106 Stat. 73, 28 U.S.C § 1350 (note).

[38] (U) The definition of torture used in PL 102-256(a) “any act, directed against an individual in the offender’s custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to lawful sanctions) whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed,, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any king.” This is similar but broader, than the definition in the Torture Statute. The definition of mental pain and suffering is the same as in the Torture Statute.

[39] (U) Eisenstrager 764.

[40] (U) Al Odah v. United States, (D.D.C., 2002).

[41] (U) Articles of ratification, 21 Oct 1994: “I. The Senate’s advice and consent is subject to the following reservations: (1) That the United States considers itself bound by the obligation under article 16 to prevent ‘cruel, inhuman, or degrading treatment or punishment’, means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.” Available at the UN documents site: http://193.194.138.190/html/menu3/treaty12_asp.htm

[42] (U) Ingraham v. Wright, 430 U.S. 651, 664 (1977). In Ingrahm, a case about corporal punishment in a public junior high school, the Court analyzed the claim under the 14th amendment’s Due Process clause, concluding that the conduct did not violate the 14th amendment, even though it involved up to 10 whacks with a wooden paddle.

[43] (U) Actions taken in "good-faith ... to maintain or restore discipline" do not constitute excessive force. Whitley v. Albers, 475 U.S. (1986)

[44] (U) Hudson v. McMillian, 503 U.S. 1, 9 (1992)

[45] (U) Whitley at 321.

[46] (U) Whitley v. Albers, 475 U.S. (1986)

[47] (U) Although the officers’ actions in Hope were undertaken in response to a scuffle between an inmate and a guard, the case is more properly thought of a “conditions of confinement” case rather than an “excessive force” case. By examining the officers’ actions through the “deliberate indifference standard” the Court analyzed it as a “conditions of confinement” case. The deliberate indifference standard is inapplicable to claims of excessive force.

[48] (U) Because the Due Process considerations under the 5th and 14th amendments are the same for our purposes, this analysis considers them together.

[49] (U) Johnson v. Eisentrager, 339 U.S. 763 (1950); In re Yamashita, 327 U.S. 1 (1946).

[50] (U) In the seminal case of Rochin v California, 342 U.S. 165 (1952), the police had some information that the defendant was selling drugs. Three officers went to and entered the defendant's home without a warrant and forced open the door to defendant's bedroom. Upon opening the door, the officers saw two pills and asked the defendant about them. The defendant promptly put them in his mouth. The officers "jumped upon him and attempted to extract the capsules." Id. at 166. The police tried to pull the pills out of his mouth but despite considerable struggle the defendant swallowed them. The police then took the defendant to a hospital where a doctor forced an ermetic solution into the defendant's stomach by sticking a tube down his throat and into his stomach, which cause the defendant to vomit up the pills. The pills did in fact contain morphine. See id. The Court found that the actions of the police officers "shocked the conscience" and therefore violated Rochin's due process rights. Id at 170.

[51] (U) Johnson v. Eisentrager, 339 U.S. 763 (1950).

[52] (U) Johnson v, Eisentrager, 339 U.S. 763, 777 (1950). "We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States." With those words, the Supreme Court held that: "a nonresident enemy alien has no access to our courts in wartime."

[53] (U) For a fuller discussion of Habeas Corpus law as it applies to Naval Base, Guantanamo Bay, see memorandum, LCDR F. Greg Bowman of 29 Jan 02, subj: CRIMINAL JURISDICTION AND ITS EFFECTS OF AVAILABILITY OF THE WRIT OF HABEAS CORPUS AT U.S. NAVAL BASE, GUANTANAMO BAY, CUBA (on file).

[54] (U) Coalition of Clergy v. Bush, 189 F. Supp. 2d 1036 (C.D. Cal.), affirmed in part and vacated in part, 310 F.3d 1153 (9th Cir. 2002); Rasul v. Bush, 215 F.2d 55 (D.D.C. 2002).

[55] (U) The concurring opinion in Odah argued that, in addition to not providing a means of jurisdiction, the ACTA also did not provide an independent cause of action.

[56] (U) Article 2 UCMJ; Rules for Courts-Martial, Rule 202, and Discussion.

[57] (U) The following are extracted from the Department of the army Pamphlet 27-9, Military Judges’ Benchbook (MJB), which summarizes the requirements of the Manual for Courts-Martial (MCM) and case law applicable to trials by courts martial.

[58] (U) Military Order - Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, President of the United States, November 13, 2001.

[59] (U) Department of Defense Memorandum - Status of Taliban and Al Qaida, Secretary of Defense, January 19, 2002.

[60] (U) White House Memorandum - Humane Treatment of al Qaida and Taliban Detainees, President of the United States, February 7, 2002.

[61] (U) In this context, an "exceptional" technique is one that is more aggressive than routine techniques and is designated an exceptional technique by the SECDEF, requiring special procedures and levels of approval for use.

[62] see DODD 5100.77 DoD Law of War Program, para 5.3.1 (9 Dec 98, canceling DODD 5100.77 of 30 Jul 79); DODD 2310.1 DoD Program for EPOW and Other Detainees, para 3.1 (18 Aug 94); CJCSJ 5819.01B implementation of the DoD LOW Program, para 41 (25 Mar 02).

[63] (U) Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.

[64] (U) For example, other countries may argue as follows: The central theme of the Geneva Conventions is humanity. With regard to persons affected by armed conflict, Pictet's Commentary states: "In short, all the particular cases we have just been considering confirm a general principle which is embodied in all four Geneva Conventions of 1949. Every person in enemy hands must have some status under international law; he is either a prisoner of war, and as such covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention, There is no intermediate status; nobody in enemy hands can be outside the law." Pictet, Commentary to the Fourth Geneva Convention Relative to the Protection of Civilian Person in Time of War (GC IV), Article 4, Paragraph 4, ICRC, Geneva, 1958. Other nations may disagree with the U.S. government view that GC IV protects those persons who have engaged in hostile or belligerent conduct but who are not entitled to treatment as prisoners of war. GC IV, Article 4; see generally Army Field Manual 27-10, The Laws of Land Warfare (1956), paragraphs 246-248. In fact, Pictet's Commentary on Article 4, paragraph 4 of GC IV states: "if, for some reason, prisoner of war status - to take one example - were denied to them [persons who find themselves in the hands of a party to the conflict], they would become protected persons under the present Convention." Further GC IV, Article 32 specifically prohibits the torture, corporal punishment, or physical suffering of protected persons. Accordingly, the United States may face the argument from other nations that the President may not place these detainees in an intermediate status, outside the law, and then arguably subject them to torture.

[65] (U) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, entered into force for the United States on Nov. 20, 1994, 1465 U.N.T.S. 85.

[66] (U) The Restatement (Third) of the Foreign Relations Law of the U.S., § 102(2).

[67] (U) See, e.g., McDougal, Lasswell, and Chen, Human Rights and World Public Order (1980).

[68] (U) 1144 U.N.T.S. 123 (Nov. 22, 1969).

[69] (U) Protocol Additional to the Geneva Convention of 12 August 1949, and relating to the Protection of Victims of International Armed Conflict (Protocol 1), June 8, 1977, 1125 U.N.T.S. 3.

[70] (U) Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC, at 863-65 (1987)

[71] (U) Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature Aug. 12, 1949, 6 U.S.T. 3365, 75 U.N.T.S. 287, see Articles 4 and 27.

[72] (U) Other nations, which, unlike the United States, have accepted Article 75, may argue that since the Taliban and al-Qaida detainees are not entitled to POW status under the Geneva Conventions, Article 75 should be applicable as customary international law, notwithstanding their status as unlawful combatants.

[73] (U) Rome Statute of the International Criminal Court, July 17, 1998, U.N. Doc. A/CONF. 183/9 (1998).

[74] (U) Parties to the Rome Statute are obligated to surrender individuals at the request of the ICC for prosecution, unless such surrender would be inconsistent with the requested state's obligations "under an international agreement pursuant to which the consent of the sending state is required to surrender a person of that state to the ICC." (Rome Statute, Article 98 (2)). While the U.S. is not a party to the Rome Statute, Article 98 agreements would provide an exception to an ICC party's general obligation to surrender persons.

[75] (U) Article 25(3) of the Rome Statute provides individual criminal responsibility for a person who, inter alia, "orders, solicits, or induces" or otherwise facilitates through aiding, abetting, or assisting in the commission of a crime.

[76] Those techniques considered in this review that raise this concern are relatively few in number and generally indicated by yellow or red (or green with a significant footnote) under major partner views in Attachment 3.

[admin]

MEMO 27

UNCLASSIFIED
SECRET/NOFORN

THE SECRETARY OF DEFENSE
1000 DEFENSE PENTAGON
WASHINGTON, DC 20301-1000

APR 16 2003

MEMORANDUM FOR THE COMMANDER, US SOUTHERN COMMAND

SUBJECT: Counter-Resistance Techniques in the War on Terrorism (S)

(S/NF) (U) I have considered the report of the Working Group that I directed be established on January 15, 2003.

(S/NF) (U) I approve the use of specified counter-resistance techniques, subject to the following:

(U) a. The techniques I authorize are those lettered A-X, set out at Tab A.

(U) b. These techniques must be used with all the safeguards described at Tab B.

(S) (U) c. Use of these techniques is limited to interrogations of unlawful combatants held at Guantanamo Bay, Cuba.

(S/) (U) d. Prior to the use of these techniques, the Chairman of the Working Group on Detainee Interrogations in the Global War on Terrorism must brief you and your staff.

(S/NF) (U) I reiterate that US Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions. In addition, if you intend to use techniques B, I, Q, or X, you must specifically determine that military necessity requires its use and notify me in advance.

(S/NF) (U) If, in your view, you require additional interrogation techniques for a particular detainee, you should provide me, via the Chairman of the Joint Chiefs of Staff, a written request describing the proposed technique, recommended safeguards, and the rationale for applying it with an identified detainee.

(S/NF) (U) Nothing in this memorandum in any way restricts your existing authority to maintain good order and discipline among detainees.

[Signed Donald Rumsfeld]

Attachments:
As stated

Declassified Under Authority of Executive Order 12958
By Executive Secretary, Office of the Secretary of Defense
William P. Marriott, CAPT, USN
June 18, 2004

Classified By: Secretary of Defense
Reason: 1.5(a)
Declassify On: 2 April 2013

UNCLASSIFIED
SECRET/NOFORN

NOT RELEASABLE TO
FOREIGN NATIONALS

TAB A
INTERROGATION TECHNIQUES

(S/NF) (U) The use of techniques A- X is subject to the general safeguards as provided below as well as specific implementation guidelines to be provided by the appropriate authority. Specific implementation guidance with respect to techniques A - Q is provided in Army Field Manual 34-52. Further implementation guidance with respect to techniques R - X will need to be developed by the appropriate authority.

(S/NF) (U) Of the techniques set forth below, the policy aspects of certain techniques should be considered to the extent those policy aspects reflect the views of other major U.S. partner nations. Where applicable, the description of the technique is annotated to include a summary of the policy issues that should be considered before application of the technique.

A. (S/NF) (U) Direct: Asking straightforward questions.

B. (S/NF) (U) Incentive/Removal of Incentive: Providing a reward or removing a privilege, above and beyond those that are required by the Geneva Convention, from detainees. [Caution: Other nations that believe that detainees are entitled to POW protections may consider that provision and retention of religious items (e.g., the Koran) are protected under international law (see, Geneva III, Article 34). Although the provisions of the Geneva Convention are not applicable to the interrogation of unlawful combatants, consideration should be given to these views prior to application of the technique.]

C. (S/NF) (U) Emotional Love: Playing on the love a detainee has for an individual or group.

D. (S/NF) (U) Emotional Hate: Playing on the hatred a detainee has for an individual or group.

E. (S/NF) (U) Fear Up Harsh: Significantly increasing the fear level in a detainee.

F. (S/NF) (U) Fear Up Mild: Moderately increasing the fear level in a detainee.

G. (S/NF) (U) Reduced Fear: Reducing the fear level in a detainee.

H. (S/NF) (U) Pride and Ego Up: Boosting the ego of a detainee.

Classified By: Secretary of Defense
Reason:1.5(a)
Declassify On: 2 April 2013

NOT RELEASABLE TO
FOREIGN NATIONALS

I. (S/NF) (U) Pride and Ego Down: Attacking or insulting the ego of a detainee, not beyond the limits that would apply to a POW. [Caution: Article 17 of Geneva III provides, "Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind." Other nations that believe that detainees are entitled to POW protections may consider this technique inconsistent with the provisions of Geneva. Although the provisions of Geneva are not applicable to the interrogation of unlawful combatants, consideration should be given to these views prior to application of the technique.]

J. (S/NF) (U) Futility: Invoking the feeling of futility of a detainee.

K. (S/NF) (U)) We Know All: Convincing the detainee that the interrogator knows the answer to questions he asks the detainee.

L. (S/NF) (U) Establish Your Identity: Convincing the detainee that the interrogator has mistaken the detainee for someone else.

M. (S/NF) (U) Repetition Approach: Continuously repeating the same question to the detainee within interrogation periods of normal duration.

N. (S/NF) (U) File and Dossier: Convincing detainee that the interrogator has a damning and inaccurate file, which must be fixed.

O. (S/NF) (U) Mutt and Jeff: A team consisting of a friendly and harsh interrogator. The harsh interrogator might employ the Pride and Ego Down technique. [Caution: Other nations that believe that POW protections apply to detainees may view this technique as inconsistent with Geneva III, Article 13 which provides that paws must be protected against acts of intimidation. Although the provisions of Geneva are not applicable to the interrogation of unlawful combatants, consideration should be given to these views prior to application of the technique.]

P. (S/NF) (U) Rapid Fire: Questioning in rapid succession without allowing detainee to answer.

Q. (S/NF) (U) Silence: Staring at the detainee to encourage discomfort.

R. (S/NF) (U) Change of Scenery Up: Removing the detainee from the standard interrogation setting (generally to a location more pleasant, but no worse).

S. (S/NF) (U) Change of Scenery Down: Removing the detainee from the standard interrogation setting and placing him in a setting that may be less comfortable; would not constitute a substantial change in environmental quality.

T. (S/NF) (U) Dietary Manipulation: Changing the diet of a detainee; no intended deprivation of food or water; no adverse medical or cultural effect and without intent to deprive subject of food or water, e.g., hot rations to MREs.

U. (S/NF) (U) Environmental Manipulation: Altering the environment to create moderate discomfort (e.g., adjusting temperature or introducing an unpleasant smell). Conditions would not be such that they would injure the detainee. Detainee would be accompanied by interrogator at all times. [Caution: Based on court cases in other countries, some nations may view application of this technique in certain circumstances to be inhumane. Consideration of these views should be given prior to use of this technique.]

V. (S/NF) (U) Sleep Adjustment: Adjusting the sleeping times of the detainee (e.g., reversing sleep cycles from night to day.) This technique is NOT sleep deprivation.

W. (S/NF) (U) False Flag: Convincing the detainee that individuals from a country other than the United States are interrogating him.

X. (S/NF) (U) Isolation: Isolating the detainee from other detainees while still complying with basic standards of treatment. [Caution: The use of isolation as an interrogation technique requires detailed implementation instructions, including specific guidelines regarding the length of isolation, medical and psychological review, and approval for extensions of the length of isolation by the appropriate level in the chain of command. This technique is not known to have been generally used for interrogation purposes for longer than 30 days. Those nations that believe detainees are subject to POW protections may view use of this technique as inconsistent with the requirements of Geneva III, Article 13 which provides that POWs must be protected against acts of intimidation; Article 14 which provides that POWs are entitled to respect for their person; Article 34 which prohibits coercion and Article 126 which ensures access and basic standards of treatment. Although the provisions of Geneva are not applicable to the interrogation of unlawful combatants, consideration should be given to these views prior to application of the technique.]

TAB B
GENERAL SAFEGUARDS

(S/NF) (U) Application of these interrogation techniques is subject to the following general safeguards: (i) limited to use only at strategic interrogation facilities; (ii) there is a good basis to believe that the detainee possesses critical intelligence; (iii) the detainee is medically and operationally evaluated as suitable (considering all techniques to be used in combination); (iv) interrogators are specifically trained for the technique(s); (v) a specific interrogation plan (including reasonable safeguards, limits on duration, intervals between applications, termination criteria and the presence or availability of qualified medical personnel) has been developed; (vi) there is appropriate supervision; and, (vii) there is appropriate specified senior approval for use with any specific detainee (after considering the foregoing and receiving legal advice).

(U) The purpose of all interviews and interrogations is to get the most information from a detainee with the least intrusive method, always applied in a humane and lawful manner with sufficient oversight by trained investigators or interrogators. Operating Instructions must be developed based on command policies to insure uniform, careful, and safe application of any interrogations of detainees.

(S/NF) (U) Interrogations must always be planned, deliberate actions that take into account numerous, often interlocking factors such as a detainee's current and past performance in both detention and interrogation, a detainee's emotional and physical strengths and weaknesses, an assessment of possible approaches that may work on a certain detainee in an effort to gain the trust of the detainee, strengths and weaknesses of interrogators, and augmentation by other personnel for a certain detainee based on other factors.

(U) Interrogation approaches are designed to manipulate the detainee's emotions and weaknesses to gain his willing cooperation. Interrogation operations are never conducted in a vacuum: they are conducted in close cooperation with the units detaining the individuals. The policies established by the detaining units that pertain to searching, silencing, and segregating also playa role in the interrogation of a detainee. Detainee interrogation involves developing a plan tailored to an individual and approved by senior interrogators. Strict adherence to policies/standard operating procedures governing the administration of interrogation techniques and oversight is essential.

Classified By: Secretary of Defense
Reason:1.5(a)
Declassify On: 2 April 2013

NOT RELEASABLE TO
FOREIGN NATIONALS

(S/NF) (U) It is important that interrogators be provided reasonable latitude to vary techniques depending on the detainee's culture, strengths, weaknesses, environment, extent of training in resistance techniques as well as the urgency of obtaining information that the detainee is known to have.

(S/NF) (U) While techniques are considered individually within this analysis, it must be understood that in practice, techniques are usually used in combination; the cumulative effect of all techniques to b~ employed must be considered before any decisions are made regarding approval for particular situations. The title of a particular technique is not always fully descriptive of a particular technique. With respect to the employment of any techniques involving physical contact, stress or that could produce physical pain or harm, a detailed explanation of that technique must be provided to the decision authority prior to any decision.

[admin]

Memo from Ricardo S. Sanchez, Lieutenant General, USA, Commanding

HEADQUARTERS
COMBINED JOINT TASK FORCE SEVEN
BAGHDAD, IRAQ
APO AE 09083

CJTF7-CG

19 January 2004

MEMORANDUM FOR Commander, United States Central Command

SUBJECT: Request for Investigating Officer

1. I request that you appoint an investigating officer, in the grade of Major General or above, to investigate the conduct of operations within the 800th Military Police Brigade. The Brigade is a theater asset, assigned to CFLCC, but TACON to CJTF-7.

2. Specifically, I request an investigation of the detention and internment operations conducted by the brigade from 1 November 2003 to the present. Recent reports of detainee abuse, escapes, and accountability lapses indicate systemic problems within the brigade and suggest a lack of clear standards, proficiency, and leadership. Several investigations, including a USACIDC investigation, into various aspects of the Brigade's operations are on-going. The purpose of this request is to gain a more comprehensive and all-encompassing inquiry, conducted by a senior leader from outside of CJTF-7, to make findings and recommendations concerning the fitness and performance of the 800th MP Brigade.

3. The CJTF-7 point of contact for this request is COL Marc Warren, DSN 318-836-1122.

RICARDO S. SANCHEZ
Lieutenant General, USA
Commanding

CF
LTG McKiernan

[admin]

MEMO 28

U.S. Department of Justice
Office of Legal Counsel

Office of the Assistant Attorney General
Washington, D.C. 20530

March 19, 2004

MEMORANDUM

TO: William H. Taft, IV
General Counsel
Department of State

William J. Haynes, II
General Counsel
Department of Defense

John Bellinger
Legal Adviser for National Security

Scott Muller
General Counsel
Central Intelligence Agency

FROM: Jack Goldsmith
Assistant Attorney General
Office of Legal Counsel

Gentleman:

Attached is a draft of an opinion, requested by Judge Gonzales, concerning the meaning of Article 49 of the Fourth Geneva Convention as it applies in occupied Iraq. I would appreciate any comments you may have at your earliest convenience. As always, it is important that you keep this draft opinion a very close hold. Thanks.

Attachment

cc: David Leitch

U.S. Department of Justice
Office of Legal Counsel

Office of the Assistant Attorney General
Washington, D.C. 20530

DRAFT 3/19/04

MEMORANDUM FOR ALBERTO R. GONZALES, COUNSEL TO THE PRESIDENT

RE: Permissibility of Relocating Certain "Protected Persons" from Occupied Iraq

Article 49 of the 1949 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 ("GC" or "Convention") prohibits "[i]ndividual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, ... regardless of their motive." [1] This opinion elaborates on interim guidance provided in October 2003 concerning the permissibility under GC of relocating certain "protected persons" detained in occupied Iraq to places outside that country. [2] We now conclude that the United States may, consistent with article 49, (1) remove "protected persons" who are illegal aliens from Iraq pursuant to local immigration law; and (2) relocate "protected persons" (whether illegal aliens or not) from Iraq to another country to facilitate interrogation, for a brief but not indefinite period, so long as adjudicative proceedings have not been initiated against them.

1. Removal of "Protected Persons" Who Are Illegal Aliens

We first consider whether removing a "protected person" who is an illegal alien from occupied territory constitutes a "deportation" or "forcible transfer" within the meaning of article 49(1)'s prohibition. We consider each term in turn.

We begin with "deportation." Under United States law, this term denotes the removal of an alien. See, e.g., 8 U.S.C. 1227(a)(1)(B) ("Any alien who is present in the United States in violation of this chapter or any other law of the United States is deportable."). Black's Law Dictionary of 1951, two years after GC, confirms the point. It defines the term "[i]n American Law" as "[t]he removal or sending back of an alien to the country from which he came." [3] If this American law meaning of "deportation" were the meaning of the word in article 49, then that article would apply to the removal of "protected persons" who are illegal aliens from occupied territory.

But article 49(1) -- or at least the core of it -- represents a codification of the customary international law of armed conflict as it stood at the time the Convention was drafted. See, e.g., Alfred M. De Zayas, International Law and Mass Population Transfers, 16 Harv. Intl L. J. 207, 210 (1975) (asserting that article 49(1) "merely codif[ies] the prohibition of deportations of civilians from occupied territories which in fact already existed in the laws and customs of war"). And in that body of law, "deportation" is a term of art with a quite different meaning that appears to be derived from Roman law. Black's Law Dictionary carefully contrasts the American law meaning of "deportation" with its meaning under Roman law: "A perpetual banishment, depriving the banished of his rights as a citizen." Black's Law Dictionary 526 (4th ed. 1951) (emphasis added); see also id. at 525 ("Deportatio. Lat. In the civil law. A kind of banishment, where a condemned person was sent or carried away to some foreign country, usually to an island ... and thus taken out of the number of Roman citizens. ") (emphasis added). Under this Roman law definition, a prohibition on deportation would not apply to the removal of illegal aliens. As shown below, the term "deportation" in the international law of armed conflict possessed this Roman meaning in the nineteenth century, through World Wars I and II, and at the time of GC's drafting.

As early as 1863, Article 23 of the Lieber Code stated that "[p]rivate citizens are no longer murdered, enslaved, or carried off to distant parts." F. Lieber, "Instructions for the Government of Armies of the United States in the Field," art. 23 (1863) (emphases added) [4] While this provision does not itself use the term "deportation," it is widely recognized as a principal progenitor of the customary prohibition on deportations during wartime codified in article 49. See, e.g., Jean-Marie Henckaerts, Deportation and Transfer of Civilans in Time of War, 26 Vand. J. Trans. L. 469, 482-83 (1993) (citing article 23 of the Lieber Code as support for the conclusion that article 49 embodied customary international law); Natsu Taylor Saito, Justice Held Hostage: U.S. Disregard for International Law in the World War II Internment of Japanese Peruvians -- A Case Study, 40 B.C.L. Rev. 275, 305-06 (1998) (stating that "the United States had condemned the deportation of civilians in Lieber's Code") (emphasis added). Significantly, the Lieber Code's prohibition of carrying off citizens to distant parts reflects the Roman meaning of "deportation" described above.

Article 23 of the Lieber Code reflected the state of the customary laws of war during the Civil War, and from that time through World War 1. Despite this rule, Germany deported 160,000 Belgians from the Belgian "Government General" and the Zone d'etape to Germany, during World War I. Germany's action was widely condemned as a violation of customary international law. See, e.g., Myres S. McDougal and Florentino P. Felciano, Law and Minimum World Public Order 806 (1961); John H.E. Fried, Transfer of Civilian Manpower From Occupied Territory, 40 Am. J. Intl L. 303, 308-11 (1946). For example, the United States State Department protested during the War that the deportation of Belgians violated "humane principles of international practice." The Krupp Case, 9 Trials of War Criminals Before the Nuremberg Military Tribunals I, 1429-30 (1946-49). And after the War ended, the Responsibilities Commission of the 1919 Paris Peace Conference condemned "[d]eportation of civilians" as a violation of the laws and customs of war. See Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties: Report Presented to the Preliminary Peace Conference, 14 Am. J. Int'l L. 95, 114 (1920). While the condemnation, as sometimes articulated, was directed at the deportation of inhabitants of occupied territory, see International Law 345-46 (Hersh Lauterpacht ed., 6th ed. 1944) (stating, in light of "civilized world['s]" reaction to First World War deportation of Belgians and Germans, that "there is no right to deport inhabitants to the country of the occupant") (emphasis added), nothing in the historical record suggests that this term was intended or understood to include illegal aliens, that the condemnation extended to the removal of such persons pursuant to local law, or that the customary law of war had evolved so significantly beyond the Lieber Code's prohibition.

Furthermore, article 49 was written against the background of World War II, and it is the particular atrocities of that war that most directly inform the text. In World War II, Nazi-occupied countries were treated as "vast reservoirs of manpower," and deportations of civilians for purposes of forced labor and slave labor "assumed staggering proportions." [5] The Nazis also employed mass deportations to resettle from areas conquered or annexed by Germany indigenous non-German populations, such as "over 100,000 French who were expelled from Alsace-Lorraine into Vichy France and over one million Poles who were deported from the western parts of occupied Poland (Warthegau) into the so-called Government-General of Poland." Alfred De Zayas, The Right to One's Homeland, Ethnic Cleansing, and the International Criminal Tribunal for the Former Yugoslavia, 6 Crim. L.F. 257, 264 (1995). These roundly and universally condemned atrocities explicitly informed the drafting of Article 49. See, e.g., 2A Final Record, at 664 (summarizing statement of the Chairman, which "noted that the Committee was unanimous in its condemnation of the abominable practice of deportation... He suggested that deportations should, in the same way as the taking of hostages, be solemnly prohibited in the Preamble"); Jean S. Pictet, Commentary on the Geneva Convention Relative to the Protection of Civilian Persons in Time of War 278 (1958) ("There is doubtless no need to give an account here of the painful recollections called forth by the 'deportations' of the Second World War, for they are still present in everyone's memory.... The thought of the physical and mental suffering endured by these 'displaced persons', among whom there were a great many women, children, old people and sick, can only lead to thankfulness for the prohibition embodied in this paragraph, which is intended to forbid such hateful practices for all time.").

Here, again, however, there is no evidence that the outrage of the world extended to the removal of illegal aliens from occupied territory in accordance with local immigration law, and indeed there is no evidence that international law has ever disapproved of such removals. Cf. Awn Shawbat Al-Khasawneh, Special Rapporteur; The Realization of Economic, Social and Cultural Rights: The human lights dimension of population transfer, including the implantation of settlers, Progress report prepared for the Economic and Social Council, United Nations Commission on Human Rights, E/CN.4/Sub.2/1994/18, available at http://www.unhcr.ch/Huridocda/Huridoca.nsf/0/e74eOcf. § 51 (citing Guy Goodwin-Gill, International Law and the Movement of Persons Between States 262 (197)) ("Among the grounds upon which the expulsion of aliens on an individual basis is justified in State practice are: entry in breach of law [and] breach of conditions of admission."). The ICRC's account illustrates the point. In summarizing the war-time events that were uppermost in the minds of the drafters as they framed article 49(1), the ICRC Commentary lamented, in particular, "that millions of human beings were torn from their homes, separated from their families and deported from their country, usually under inhumane conditions." Pictet, supra, at 278 (emphases added). And in discussing pre-Convention customary law (including the Nuremberg Trials), the ICRC Commentary remarks that a "great many ... decisions" by the Nuremberg "and other courts" have "stated that the deportation of inhabitants of occupied territory is contrary to the laws and customs of war." Pictet, supra, at 279 n.3 (emphasis added) [6]

Accordingly, we conclude that the word "deportations" in article 49 bears the term-of-art meaning that it bore in Roman times and in international law from the Lieber Code through World Wars I and II and right up to the drafting of GC: removal of a person from a country where he has a legal right to be. Cr, e.g., Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739-40 (1989) (invoking the "well established" principle that "[w]here Congress uses terms that have accumulated settled meaning under ... the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms"); Air France v. Saks, 470 U.S. 392, 399 (1985) (applying similar principles to treaty interpretation). Indeed, "deportation" continues to retain the same term-of-art meaning in the law of international armed conflict today. See Rome Statute of the International Criminal Court, July 17, 1998, U.N. Doc. A/CONF.183/9, reprinted in 37 I.L.M. 999 (1998) article 7(2)(d) (defining the "crime against humanity" of "deportation or forcible transfer of population" as "forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law") (emphasis added); Prosecutor v. Krnojelac, Case No.: IT-97-25, Appeals Chamber Judgement, 17 Sept. 2003, Separate Opinion of Judge Schomburg §15 ("[T]he actus reus of deportation is forcibly removing or uprooting individuals from the territory and the environment in which they are lawfully present.") (emphasis added); Prosecutor v. Blaskic, Case No. IT-95-14, Trial Chamber Judgement, 3 Mar. 2000, § 234 ("The deportation or forcible transfer of civilians means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.") (emphasis added; internal quotation marks omitted). For all these reasons, it follows that article 49's prohibition on "deportations" does not bar the removal of "protected persons" who are illegal aliens from occupied territory pursuant to local immigration law.

Article 49 prohibits "forcible transfers" in addition to "deportations." We conclude that what has been said about the latter largely applies to the former. Passages from the JCRC Commentary and the negotiating record illustrate that the words "transfers" and "deportations" were used loosely and, at times, interchangeably to capture the atrocities practiced by the Nazis and the Japanese in occupied territories. See 4 Pictet, Commentary at 278 ("There is doubtless no need to give an account here of the painful recollections called forth by the 'deportations' of the Second World War. It will suffice to mention that millions of human beings were torn from their homes, separated from their families and deported from their country, usually under inhumane conditions. These mass transfers took place for the greatest possible variety of reasons.... ") (emphases added); 2A Final Record, at 664 (summarizing statement of Mr. Slamet (Netherlands) that "[i]n Indonesia, during the last war, numbers of women and children had been transferred to unhealthy climates and forced to build roads, and had died as a result") (emphasis added); id. at 664 (summarizing statement of Mr. Clattenburg (U.S.), which "quoted the case of part of the population of the little island of Wake who had been transferred to Japan") (emphasis added); id. at 664 (summarizing statement of the Chairman, which "noted that the Committee was unanimous in its condemnation of the abominable practice of deportation ... . He suggested that deportations should, in the same way as the taking of hostages, be solemnly prohibited in the Preamble.") (emphasis added).

Furthermore, at least when used in connection with "deportations" as a term of art in the international law of armed conflict, "transfers" also appears to connote the relocation of an individual from an area where he is lawfully present. See, e.g., Rome Statute of the International Criminal Court, July 17, 1998, U.N. Doc. A/CONF.183/9, reprinted in 37 LL.M. 999 (1998) article 7(2)(d) (defining "deportation or forcible transfer of population" as "forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law") (emphases added); Prosecutor v. Blaskic, § 234 ("The deportation or forcible transfer of civilians means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.") (emphasis added; internal quotation marks omitted).

Consistent with GC's negotiating record and this more general term-of-art usage, many sources speak of article 49(1) -- and implicitly acknowledge its limitation to those lawfully present in occupied territory -- without making any distinction between "forcible transfers" and "deportations." See, e.g., S.C. Res. 694 (1991) (Under GC, article 49. "Israel, the occupying power, must refrain from deporting any Palestinian civilian from the occupied territories" (emphasis added)); Kasawari v. Minister of Defence, HC 456/85,39(3) Piskei Din 401, digested in 16 Israel Y.B. Hum. Rts. 330, 334 (1986) ("[w]hatever the interpretation of Article 49 may be, it is not applicable to the expulsion of a person who enters an area illegally after the commencement of its belligerent occupation."); Kurt Rene Radley, The Palestinian Refugees: The Right to Return in International Law, 72 Am. J. Intl L. 586, 598 (1978) ("Article 49 forbids the forced and permanent removal of persons from territory to which they are native.") (emphasis added); Jean-Marie Henckaerts, Mass Expulsion in Modern International Law and Practice 144 ("Article 49 comes into play whenever people are forcibly moved from their ordinary residences.") (emphasis added); see also Raymund T. Yingling and Robert W. Ginnane, The Geneva Convention of 1949, 46 Am. J. Int'l L. 393, 419 (1952) (article 49(1) serves the purpose of preventing a belligerent occupier from ''buttress[ing] its home economy and war industry with the forced labor of the inhabitants of territory which it has occupied") (emphasis added).

We conclude, accordingly, that article 49(1)'s prohibition on "forcible transfers," like its prohibition on "deportations," does not extend to the removal, pursuant to local immigration law, of "protected persons" who are illegal aliens.

This conclusion comports with common sense. It would be surprising if the Convention were a welcome mat to occupied territory, granting all who enter in violation of local law an instant and (during occupation) irrevocable right to stay. Cf. Affo v. Commander Israel Defence Force in the West Bank, 83 I.L.M. 139, 153 (Isr. 1988) ("[O]ne should not view the content of Article 49 as anything but a reference to those arbitrary deportations of groups of nationals as were carried out during World War II for purposes of subjugation, extermination and for similarly cruel reasons. [One should reject an interpretation entailing that] a murderer who escaped to the occupied territory would have a safe haven, which would preclude his transfer to the authorized jurisdiction."). It is also consistent with the general presumption under customary international law, as reflected in Article 43 of the Regulations Respecting the Laws and Customs of War on Land, annexed to Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, art. 42(1), 36 Stat. 2277, I Bevans 631 ("Hague Regulations"), that an occupying power should maintain and enforce the domestic laws of the country occupied. [7] Article 43 of the Hague Regulations provides: ''The authority of the legitimate power having actually passed into the hands of the occupant, the latter shall take all steps in his power to re-establish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country." The exigencies of "public order and safety" will not often "absolutely prevent[]" enforcement of local immigration laws. To the contrary, enforcement of such laws will usually prove essential to maintaining the security of the occupied territory. And while the occupying power may be "absolutely prevented" from enforcing local law by a requirement of the Geneva Conventions, see Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel of the Department of Defense, from Jay S. Bybee, Assistant Attorney General, Re: Authority of the President Under Domestic and International Law To Make Fundamental Institutional Changes to the Government of Iraq 15 (Apr. 14, 2003) ("Fundamental Institutional Changes Memorandum"), reading GC to require a suspension of local immigration law would put great and unjustifiable strain on the duty of the occupying power to "insure ... public order and safety." [8]

Of course, even the broadest reading of article 49 would not work a complete suspension of local immigration law in Iraq. Rather, it would only suspend the provisions for deportation. Violators of Iraqi immigration law, however, are subject not only to deportation but also to imprisonment. See Iraqi Law No. 118 of 1978, article 24; see also id., article 25. Under customary international law as reflected in article 43 of the Hague Regulations, then, the occupying power may be obliged to enforce Iraqi immigration law at least to the extent of imprisoning its transgressors. This requirement would flow not only from the obligation to "respect, unless absolutely prevented, the laws in force in the country," but also from the more general obligation to maintain "public order and safety" -- which, whatever else it entails, would presumably include the arrest of law-breakers. See Iraqi Law No. 118 of 1978, article 25 ("The Director General [of Nationality] is vested with the penal authority under the Criminal Procedure Law which empowers him to detain the [illegal alien] in custody until he is deported or expelled from the territory of the Republic of Iraq."). The Convention itself makes this requirement explicit: "The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention." GC, art. 64. Under the broadest reading of the prohibitions in article 49(1), then, an occupier might be required to imprison illegal aliens, but forbidden from taking the milder step of escorting them to the border instead. It is doubtful that article 49's drafters intended such an implausible result.

In sum, historical context as well as common sense demonstrates that the terms "deportations" and "forcible transfers" in article 49 are terms of art that do not apply to the removal of "protected persons" in occupied territory who are present there in violation of current local law. We conclude, therefore, that the United States would not violate article 49(1) by removing "protected persons" who are illegal aliens from Iraq pursuant to local immigration law." [9]

II. Temporary Transnational Relocation of "Protected Persons" to Facilitate Interrogation

We next consider whether GC permits the United States to relocate "protected persons" (whether illegal aliens or not) from Iraq to another country temporarily, to facilitate interrogation. Because GC makes special provision for "protected persons" who have been "accused of offenses," we consider such persons first. We then consider "protected persons" who have not been so accused.

A. "Protected Persons" Who Have Been Accused of an Offense

GC specifically provides that "[p]rotected persons accused of offences shall be detained in the occupied country, and if convicted they shall serve their sentences therein." GC, art. 76(1). This provision is unambiguous: "protected persons" who have been "accused of offenses" may not be removed from occupied territory either for pretrial detention or for post-conviction imprisonment.

We need not attempt to ascertain the precise meaning of "accused" in this context, for the following can be said with some confidence. Once adjudicative proceedings have been initiated against a person, that person has been "accused" within the meaning of Article 76. The initiation of such proceedings may take any form. Cf. Brewer v. Williams, 430 U.S. 386 (1977) (noting that certain criminal procedure protections are triggered by initiation of judicial proceedings, "whether by way or formal charge, preliminary hearing, indictment, information, or arraignment"), quoting Kirby v. Illinois, 406 U.S. 682 (1972). On the other hand, mere suspicion of an offense would not constitute an accusation, nor would an interrogation based upon such suspicion. Cf. Wayne R. LaFave et al., 3 Criminal Procedure, § 11.2(b) (1999) ("[The Supreme] Court [has] reaffirmed ... that a person does not become an accused for Sixth Amendment purposes simply because he has been detained by the government with the intention of filing charges against him"), citing United States v. Gouveia, 467 U.S. 180 (1984). Thus, if an occupying power merely detains a "protected person" for questioning even if that person is strongly suspected of committing an offense -- that person is not yet "accused" for purposes of article 76. [10]

In short, once adjudicative proceedings have been initiated against a "protected person," the person is "accused of an offense" for purposes of article 76, and may not be detained outside of occupied Iraq. But until that time, article 76 does not apply.

B. "Protected Persons" Who Have Not Been Accused of an Offense

Finally, we consider whether Article 49(1)'s prohibition of "forcible transfers" and "deportations" bars the United States from temporarily relocating (and detaining) a "protected person" who has not been "accused of an offense" to a location outside of Iraq to facilitate interrogation.

It might be thought that the juxtaposition of the words "deportations" and "transfers" in article 49 reflects a dichotomy between permanent relocations, on the one hand, and temporary relocations, on the other. The word "deportation" does clearly connote permanence. See Black's Law Dictionary 526 (4th ed. 1951) (defining "deportation" in Roman law, as "[a] perpetual banishment"); see also supra Part I (concluding the meaning of "deportation" as a term of art in the international law of armed conflict flows from its meaning in Roman law). And the word "transfer," by contrast, does not necessarily have that same connotation. See XI Oxford English Dictionary 257 (1933) ("conveyance or removal from one place, person, etc. to another"). Were article 49 read in this manner, it would prohibit the United States from temporarily relocating a "protected person" from Iraq to facilitate interrogation.

While this dichotomy has some surface appeal, we ultimately reject it. The phrase "forcible transfers" and the word "deportations," when used as terms of art in the international law of armed conflict, see supra Part I, and especially when used in connection with each other, both convey a sense of uprooting from one's home. See, e.g., Pictet, supra, at 278 (emphasis added) (recalling the "deportations" and "mass transfers" that had occurred during World War II, where "millions of human beings were torn from their homes, separated from their families and deported from their country, usually under inhumane conditions") (emphasis added); United States v. Milch, 2 Trials of War Criminals Before the Nuremberg Military Tribunals 353, 790 (1946-1949) (prosecutor's description of the crime of "deportation" as involving "people who had been uprooted from their homes in occupied territory") (emphasis added); Prosecutor v. Krnojelac, Case No.: IT-97-25, Appeals Chamber Judgement, 17 Sept. 2003. Separate Opinion of Judge Schomburg § 15 ("[T]he actus reus of deportation is forcibly removing or uprooting individuals from the territory and the environment in which they are lawfully present.") (emphasis added). The concept of uprooting from one's home clearly suggests resettlement, and while it may include not only permanent, but also extended or at least indefinite resettlement, it cannot reasonably be expanded to encompass mere temporary absence, for a brief and definite period, from one's still established home. Cf. Kurt Rene Radley, The Palestinian Refugees: The Right to Return in International Law, 72 Am. J. Intl L. 586, 598 (1978) ("Article 49 forbids the forced and permanent removal of persons from territory to which they are native," (emphasis added)); 2A Final Record, at 664 (summarizing statement of Mr. Slamet (Netherlands) that "[i]n Indonesia, during the last war, numbers of women and children had been transferred to unhealthy climates and forced to build roads, and had died as a result"); id. at 664 (summarizing statement of Mr. Clattenburg (U.S.), which "quoted the case of part of the population of the little island of Wake who had been transferred to Japan"); GC Art. 49(2) (carving out an exception to Article 49(1)'s prohibition of forcible transfers or deportations to allow evacuations, including transnational evacuations, required to protect the security of the population or by imperative military reasons, provided that "[p]ersons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased"). [11]

This reading is confirmed by the Convention's structure. As we explain below, if the word "transfer" were read to embrace all temporary relocations, however brief, it would create a prohibition inconsistent with a duty imposed by another provision of the Convention, cause a different paragraph of article 49 to create an implausible result, and render two other provisions of GC entirely superfluous. These structural considerations confirm that article 49 uses the term "transfers," consistent with its connotations when used as a term of art in connection with "deportations" in the law of armed conflict, to refer to relocations involving uprooting and resettlement for a permanent, extended, or at least indefinite duration.

First, we consider article 49's relationship with article 24. Article 24 provides: "The Parties to the conflict shall facilitate the reception of ... children [who are under 15, who are orphaned or separated from their families as a result of the war] in a neutral country for the duration of the conflict with the consent of the Protecting Power." This provision appears in Part II of GC and therefore "cover[sl the whole of the populations of the countries in conflict," GC, article 13, including all individuals in occupied territory, see Pictet, supra, at 118-19, whether "protected persons" or not. At first glance, article 24's duty to relocate certain children -- including those who are "protected persons" -- to a neutral country might appear to be flatly inconsistent with article 49(l)'s categorical prohibition of "forcible transfers" and "deportations" of "protected persons." The relationship between articles 24 and 49(1) is easily understood, however, once it is recognized that the crux of article 49(1) is a prohibition on forcibly uprooting people from their homes. The children provided for in article 24 are precisely those who have been orphaned or separated from their homes already, by the war. Thus, relocating such children (even without their consent) does not implicate the central concerns of article 49(1).

Second, article 49(6) provides: "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." (Emphasis added). As the ICRC commentary explains, this provision was "intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political or racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race." Pictet, supra, at 283. This practice was often closely related to practices at which article 49(1) was directed -- resettling the citizens of occupied countries out of occupied territory. As the International Military Tribunal concluded during the Nuremberg trial, the Nazis had undertaken a "gigantic program" that included three "interwoven and interrelated" aims: "to evacuate and resettle large areas of the conquered territories; to Germanize masses of the population of the conquered territories; and to utilize other masses of the population as slave labor within the Reich." The RuSHA Case, 4 Trials of War Criminals Before the Nuremberg Military Tribunals I, 125 (1949); see also id. at 610 (defendants charged with "[e]vacuating enemy populations from their native lands and resettling so-called 'ethnic Germans' (Vollesdeutsche) on such lands").

Not only do articles 49(1) and 49(6) address related wartime practice, they both do so by prohibiting certain transfers and deportations. There is a strong presumption that the same words will bear the same meaning throughout the same treaty. Cf. e.g., Air France v. Sales, 470 U.S. 392, 398 (1985). This presumption is particularly strong when, as here, the words appear multiple times within the same article.

If "transfer" is understood throughout article 49 to entail -- consistent with technical usage -- permanent, extended, or at least indefinite resettlement, then the scope of article 49(6)'s prohibition closely corresponds to its intended purpose. By contrast, if "transfer" is understood throughout article 49 to mean any relocation, however brief, then article 49(6) would have a much broader scope and would prohibit an occupying power from placing any members of its civilian population in the occupied country even temporarily. While such a prohibition arguably might not extend to civilian adjuncts to the military occupation administration, it probably would at least extend to various employees of private contractors and non-governmental organizations, Cf. GC III, article 4 (A)(4) (including as potential prisoners of war "[p]ersons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany"), Such a result is far removed from article 49(6)'s intended purpose and would work to the manifest disadvantage of the inhabitants of occupied territory. For these reasons, it seems very implausible that article 49(6)'s prohibition of deportations and transfers into occupied territory should be construed so expansively. See Zicherman v. Korean Air Lines, 516 U.S. 217, 221-222 (1996) (choosing from among different possible definitions of a treaty term the definition that avoided implausible results). It follows, therefore, that article 49(1)'s prohibition of forcible transfers and deportations out of occupied territory likewise should not be construed to extend to temporary transnational relocations of brief but not indefinite duration. [12]

Third, if article 49(1) banned all relocations out of occupied territory, no matter how brief, two different provisions of GC would be superfluous. Article 51 of GC, which makes provision for compelling the labor of "protected persons," provides: "The work shall be carried out only in occupied territory where the persons whose services have been requisitioned are." If article 49 forbade all relocations from occupied territory to another country, this portion of article 51 would be entirely superfluous. But "[t]his phrase, like all the other words of the treaty, is to be given a meaning, if reasonably possible, and rules of construction may not be resorted to render it meaningless or inoperative." Factor v. Laubenheimer, 290 U.S. 276, 303-04 (1933). By contrast, if article 49(1) does not forbid brief transnational relocations, article 51 serves an important, independent purpose. While extended or indefinite relocations for purposes of forced labor might constitute "forcible transfers" and thus be prohibited under article 49(1) as well as article 51, at least some instances of briefly bringing an accused "protected person" across a border to engage in forced labor -- on a daily basis, for example -- would not fall within the scope of the prohibition of article 49 but would be barred by article 51.

Even more relevant to the issue at hand, article 76 of the Convention provides: "Protected persons accused of offences shall be detained in the occupied country, and if convicted they shall serve their sentences therein." If article 49(1) forbade all relocations, however temporary, from occupied territory to another country, then this portion of article 76 too would be entirely superfluous. It follows, therefore, that briefly relocating accused "protected persons" outside of occupied territory for pre-trial detention and interrogation -- though forbidden by article 76 -- falls outside the scope of the prohibition of article 49(1). But if briefly relocating an accused "protected person" to a foreign country for detention and interrogation (though forbidden by article 76) is beyond the scope of article 49, then the otherwise indistinguishable act of briefly relocating a "protected person" who is not accused to a foreign country for detention and interrogation (which is not forbidden by article 76) must also fall outside the scope of article 49's prohibition. [13]

It might, at first, appear surprising that a different result obtains for accused persons than for those who are not (or are not yet) accused. But special procedural protections often attach to individuals, including suspected offenders, only after they are accused. See, e.g., U.S. Const. amend. VI (''[in all criminal prosecutions, the accused shall enjoy" various procedural protections) emphasis added); United States v. Ash, 413 U.S. 300, 320-21 (1973) (Stewart, J., concurring in judgment) ("[the initiation of] adversary judicial proceedings ... marks the commencement of the 'criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment [of the U.S. Constitution] are applicable"). "It is only at that time" that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.'" United States v. Gouveia, 467 U.S. 180, 189 (1984) (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972). And in this context, the distinction between those who are and are not accused makes eminent sense: only after a person is accused must he be allowed to prepare his defense, and for this he may require access to resources that are available to him only in his native country.

Thus technical usage suggests, and GC's structure confirms, that Article 49(1)'s prohibition of "deportations" and "forcible transfers" does not extend to all transnational relocations. And, for the reasons we have explained, we conclude that it is permissible to relocate "protected persons" who have not been accused of an offense from Iraq to another country, for a brief but not indefinite period, for purposes of interrogation. [14]

III. Conclusion

Article 49 does not forbid the removal from occupied territory, pursuant to local immigration law, of "protected persons" who are illegal aliens. Nor does it preclude the temporary relocation of "protected persons" (whether illegal aliens or not) who have not been accused of an offense from occupied Iraq to another country, for a brief but not indefinite period, to facilitate interrogation.

Please let us know if we can provide further assistance.

Jack I. Goldsmith III
Assistant Attorney General

_______________

Notes:

1. The entirety of article 49 is as follows:

Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.

Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.

The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition that members of the same family are not separated.

The Protecting Power shall be informed of any transfers and evacuations as soon as they have taken place.

The Occupying Power shall not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand.

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

2. While GC confers certain protections on "the whole of the populations of the countries in conflict." GC, art. 13; see also id. Part II (Title) ("General Protections of Populations against Certain Consequences of War"), it limits most of its protections to a narrower class of "protected persons," id. art. 4. See generally Memorandum for Alberto R. Gonzales, Counsel to the President, Re: "Protected Persons" in Occupied Iraq (Mar. 18, 2004). Among GC's provisions whose benefits are generally restricted to "protected persons" are those included in Part Ill, including Article 49. See Part III (Tide) ("Status and Treatment of Protected Persons"). See also Jean S. Pictet, Commentary on the Geneva Convention Relative to the Protection of Civilian Persons in Time of War 278 (1958) (stating that article 49 "prohibits the forcible transfer or deportation from occupied territory of protected persons") (emphasis added); id. at 283 ("describing the meaning given them ["deportations" and "transfers"] in [article 49] paragraph 1, i.e., the compulsory movement of protected persons from occupied territory") (emphasis added).

3. Black's Law Dictionary 526 (4th ed. 1951). Even in domestic Anglo-American law of that time, however, "deportation" was not strictly limited to the removal of aliens. See, e.g., Co-Operative Comm. on Japanese Canadians v. Attorney-General for Canada. 13 I.L.R. 23, 27 (Privy Council 1946) (sustaining deportation under Canadian war-related legislation of British and Canadian nationals, "deportation" is "not a word that is misused when applied to persons not aliens").

4. Issued for the Union Army during the Civil War, the Lieber Code "was the first instance in western history in which the government of a sovereign nation established formal guidelines for its army's conduct toward its enemies." Richard Hartigan, Lieber's Code and the Law of War 1-2 (1983). It "has had a major influence on the drafting of ... such treaties as ... the Geneva Conventions and, of course, on the formation of customary law." Theodor Meron, Human Rights and Humanitarian Norms as Customary Law 49n. 131 (1989), and remains "a benchmark for the conduct of an army toward an enemy army and population." Hartigan, supra, at 1.

5. See Myres S. McDougal and Florentino P. Felciano, Law and Minimum World Public Order 806 (1961). On June 30, 1943, the German Commissioner-General of Manpower declared that the number of foreign workers, including prisoners of war, engaged in the German war economy reached 12,100,000. See id.; see also John H.E. Fried, Transfer of Civilian Manpower From Occupied Territory, 40 Am. J. Int'l L. 303, 312-13 (1946); 1 Trial of the Major War Criminals Before the International Military Tribunal 244 (New York: AMS Press, 1971).

6. Again, we do not understand the word "inhabitants" to include illegal aliens. During Nuremberg trials that addressed the crime of "deporting civilians," the terms "citizens" and "inhabitants" were used somewhat loosely and interchangeably. For example, in the trial of Field Marshal Erhard Milch, the indictment defined the crime of deportation to involve "citizens," the prosecutor described the crime to involve "people who had been uprooted from their homes in occupied territories," the three-Judge Tribunal convicted the defendant for the crime as charged, Judge Musmanno's concurring opinion described the crime as extending to the occupied territory's "inhabitants," and the concurring opinion of Judge Phillips described it as extending to the "population" of occupied territory. United Stales v. Milch, 2 Trials of War Criminals Before the Nuremberg Military Tribunals 353, 691-93. 790, 879, 866 (1946-1949). We have found no evidence that any of these formulations were intended or understood to reflect an extension of the customary prohibition of deportations to reach illegal aliens. See also The RuSHA Case, A Trial of War Criminals Before the Nuremberg Military Tribunals 1. 610 (1949) (defendants charged with "[e]vacuating enemy populations from their native lands") (emphases added).

7. Although GC incorporates by reference the Hague Regulations when applied to relations between "Powers who are bound by" the IV Hague Convention, see article 154, Iraq is not a party to the Hague, Convention, and therefore cannot be considered bound by that Convention as a matter of treaty law. The United States is likewise under no treaty-based obligation to apply the Hague Regulations to the occupation of Iraq because Iraq is not a "Contracting Power" under the IV Hague Regulations. See Hague Convention art, 2, 36 Stat. 2290 ("The provisions contained in the Regulations referred to in Article 1, as well as in the present convention, do not apply except between Contracting Powers, and then only if all the belligerents are parties to the Convention."); Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel of the Department of Defense, from Jay S. Bybee, Assistant Attorney General, Re: Authority of the President Under Domestic and International Law To Make Fundamental Institutional Changes to the Government of Iraq 10 (Apr. 14, 2003) (stating that "the Hague Regulations do not expressly govern the U.S. conflict with Iraq"). The Hague Regulations are, however, generally taken to be declaratory of customary international law, and the United States may choose to comply with them on that basis. See generally id. at 10; see also United States v. Yousef, 327 F.3d 56, 92 (2d Cir. 2003) ("Principles of customary international law reflect the practices and customs of States in the international arena that are applied in a consistent fashion and that are generally recognized by what used to be called 'civilized states.''') For present purposes, however, the point is that GC should, as a general matter, be read to be consistent with the principles reflected in the Hague Regulations, whether or not those Regulations apply in a particular case.

8. It is true that one might reverse the point and argue that the power to change local immigration law under article 43 of the Hague Regulations amounts to a power to eviscerate article 49's prohibition on "deportations" and "forcible transfers." And indeed the custom and practice of occupying powers have at times included "extensive changes" to the laws of an occupied territory, Fundamental Institutional Changes Memorandum at II. But this power does not amount to a power to eviscerate article 49, because those changes may only be imposed in accordance with certain "enumerated purposes," such as the occupying power's need to maintain order and security, id. at 13, or in order to protect rights guaranteed by the Convention, id. at 15. It follows that an occupying power could not, for example, change local immigration law to render all citizens of the occupied territory illegal aliens.

9. We recommend that if the choice is made to pursue this course, careful records should be maintained confirming the illegal status of each alien who is removed under current domestic law.

10. Iraqi law appears to draw a similar distinction, treating someone as a "suspect" during an investigation and as an "accused" once he has been charged in an indictment or summoned or named in a criminal arrest warrant. See, e.g., Statute of the Iraqi Special Tribunal. art. 18(b)-(d) (Dec. 10, 2003) (available at http://www.cpa/iraq.org/human_rights/Statute.htm) (using the term "suspect" to describe person under investigation and "accused" to describe someone charged in an indictment); Iraqi Law on Criminal Proceedings (Law Number 23 of 1971) §§ 54, 56 (available at https:/www.jagcnet.army.mil/JAGCNETInternet/Homepages/AC/CLAMO-Public.nsf/0/85256alc006sc77385256d34006030dc/Body/M2/Iraqi%2520Criminal%2520Procedure%2520Code%2 520English.pdf?OpenElement) (referring to a complaint made against a "suspect" and questioning of "suspects" by examining magistrate during course of initial investigation): id. "87,93 (providing for issuance of a summons to, or an arrest warrant for, an "accused"); id. § 105 (referring to person subject to arrest warrant, or who may be arrested by someone who witnessed him committing an offense, as an "accused").

11. For purposes of resolving the questions presented, we need not resolve the precise differences between "deportations" and "forcible transfers under article 49. We presume that these concepts do not overlap entirely. See Air France v. Saks, 470 U.S. 392, 397-98 (1985) (where drafters use different terms in the same treaty, they are ordinarily presumed "to mean something different"). One possible distinction is that "deportation," unlike "transfer," perhaps technically entails not only uprooting and resettlement from an area where one is lawfully present but also denationalization or extinguishment of any rights in one's home country. See Black's Law Dictionary 526 (4th ed. 1951) (defining "deportation") ("A perpetual banishment, depriving the banished of his rights as a citizen."); id. at 525 ("Deportation Lat. In the civil law. A kind of banishment, where a condemned person was sent or carried away to some foreign country, usually to an island ... and thus taken out the number of Roman citizens.") (emphasis added); cf. 2A Final Record at 621 (observation of Mr. Castberg (Norway) regarding the plight of "ex-German Jews denationalized by the German Government who found themselves in territories subsequently occupied by the German Army"). While we need not embrace this distinction for purposes of this opinion, we note that it is fully consistent with our analysis and conclusions.

12. We note one significant textual difference between articles 49(1) and 49(6). While the former provision bars only forcible transfers (as well as deportations), the latter does not so limit the transfers that it prohibits. We do not read the absence of "forcible" from the latter provision to eliminate connotations of uprooting and resettlement, but rather to indicate that (unlike article 49(1)) article 49(6) prohibits voluntary as well as coercive resettlement. This interpretation is fully consistent with one of the principal purposes of article 49(6). as indicated by the ICRC Commentary quoted in the text -- preventing an occupying power from colonizing occupied territory with its own civilian population. Colonization, of course, can be voluntary as well as forcible, but either way it entails uprooting and resettlement.

13. We note that the ICRC Commentary appears to take the position that the portions of Articles 51 and 76 discussed in the text are, in fact, superfluous: "[t]he provision [of article 76] under which any sentence of imprisonment must be served in the occupied territory itself is based on the fundamental principle forbidding deportations laid down in Article 49." Pictet, supra al 363; see also id. at 279 (asserting without analysis that Article 49(1)'s prohibition is "strengthened by other Articles in the cases in which its observance appeared to be least certain" and citing, inter alia, Articles 51(2) and 76(1)). We do not find this reasoning persuasive. Article 49 may well lay down a fundamental principle, but the scope of this principle must be ascertained by traditional rules of treaty interpretation. including the rule that each provision of a treaty "is to be given a meaning, if reasonably possible, and rules of construction may not be resorted to render it meaningless or inoperative." Factor, 290 U.S. at 303-304.

14. While we conclude that GC does not prohibit temporary relocations of "protected persons" from occupied territory for a brief but not indefinite period. neither technical usage nor the Convention provides clear or precise guidance regarding exactly how long a "protected person" may be held outside occupied territory without running afoul of Article 49. Furthermore, violations of Article 49 may constitute "[g]rave breaches" of the Convention, art 147, and thus "war crimes" under federal criminal law, 18 U.S.C. §2441. For these reasons, we recommend that any contemplated relocations of "protected persons" from Iraq to facilitate interrogation be carefully evaluated for compliance with Article 49 on a case-by-case basis. We will provide additional guidance as necessary to facilitate such evaluations.

Furthermore, although we have previously indicated that only those who "find themselves ... in the hands of a Party to the conflict or Occupying Power" in "occupied territory" or the "territory of a party to the conflict" receive the benefits of "protected person" status, Protected Persons Memorandum at 5-6, this does not mean that a "protected person" who is captured in occupied territory and then temporarily relocated by the occupying power to a different location thereby forfeits the benefits of "protected person" status. On the contrary, we believe he would ordinarily retain these benefits. Cf. Art. 49(2) (providing that, in some circumstances, protected persons may be evacuated outside of occupied territory, but that such persons must be transferred back to their homes as soon as possible).

[admin]

PART 1 OF 2

MEMO __

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

Office of the Principal Deputy Assistant Attorney General

May 10, 2005

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

Re: Application of 18 U.S,C. §§ 2340-2340A to the Combined Use of Certain Techniques in the Interrogation of High Value al Qaeda Detainees

In our Memorandum for John A, Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, from Steven G, Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel Re: Application of 18 U.S.C. §§ 2340-2340A to Certain Techniques That May Be Used in the Interrogation of a High Value al Qaeda Detainee (May 10, 2005) ("Techniques"), we addressed the application of the anti-torture statute, 18 U.S.C, §§ 2340-2340A, to certain interrogation techniques that the CIA might use in the questioning of a specific al Qaeda operative. There, we considered each technique individually. We now consider the application of the statute to the use of these same techniques in combination. Subject to the conditions and limitations set out here and in Techniques, we conclude that the authorized combined use of these specific techniques by adequately trained interrogators would not violate sections 2340-2340A.

Techniques, which set out our general interpretation of the statutory elements, guides us here. [1] White referring to the analysis provided in that opinion, we do not repeat it, but instead presume a familiarity with it. Furthermore, in referring to the individual interrogation techniques whose combined use is our present subject, we mean those techniques as we described them in Techniques, including all of the limitations, presumptions, and safeguards described there.

One overarching point from Techniques bears repeating: Torture is abhorrent and universally repudiated, see Techniques at 1, and the President has stated that the United States will not tolerate it. Id. at 1-2 & n.2 (citing Statement on United Nations International Day in Support of Victims of Torture, 40 Weekly Comp. Pres. Doc. 1167-68 (July 5, 2004)). In Techniques, we accordingly exercised great care in applying sections 2340-2340A to the individual techniques at issue; we apply the same degree of care in considering the combined use of these techniques.

1.

Under 18 U.S.C. § 2340A, it is a crime to commit, attempt to commit, or conspire to commit torture outside the United States. "Torture" is defined as "an act committed by a person acting under color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control." 18 U.S.C. § 2340(1). "Severe mental pain or suffering" is defined as "the prolonged mental harm caused by or resulting from" any of four predicate acts. Id. § 2340(2). These acts are (1) "the intentional infliction or threatened infliction of severe physical pain or suffering"; (2) "the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality"; (3) "the threat of imminent death"; and (4) "the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality."

In Techniques, we concluded that the individual authorized use of several specific interrogation techniques, subject to a variety of limitations and safeguards, would not violate the statute when employed in the interrogation of a specific member of al Qaeda, though we concluded that at least in certain respects two of the techniques presented substantial questions under sections 2340-2340A. The techniques that we analyzed were dietary manipulation, nudity, the attention grasp, walling, the facial hold., the facial slap or insult slap, the abdominal slap, cramped confinement, wall standing, stress positions, water dousing, extended sleep deprivation, and the "waterboard." Techniques at 7-15.

Techniques analyzed only the use of these techniques individually. As we have previously advised, however, '''courts tend to take a totality-of-the-circumstances approach and consider an entire course of conduct to determine whether torture has occurred." Memorandum for John Rizzo, Acting General Counsel, Central Intelligence Agency, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Interrogation of al Qaeda Operative at 9 (Aug. 1, 2002) ("Interrogation Memorandum") (TS). A complete analysis under sections 2340-2340A thus entails an examination of the combined effects of any techniques that might be used.

In conducting this analysis, there are two additional areas of general concern. First, it is possible that the application of certain techniques might render the detainee unusually susceptible to physical or mental pain or suffering. If that were the case, use of a second technique that would not ordinarily be expected to -- and could not reasonably be considered specifically intended to -- cause severe physical or mental pain or suffering by itself might in fact cause severe physical or mental pain or suffering because of the enhanced susceptibility created by the first technique. Depending on the circumstances, and the knowledge and mental state of the interrogator, one might conclude that severe pain or suffering was specifically intended by the application of the second technique to a detainee who was particularly vulnerable because of the application of the first technique. Because the use of these techniques in combination is intended to, and in fact can be expected to, physically wear down a detainee, because it is difficult to assess as to a particular individual whether the application of multiple techniques renders that individual more susceptible to physical pain or suffering, and because sleep deprivation, in particular, has a number of documented physiological effects that, in some circumstances, could be problematic it is important that all participating CIA personnel, particularly interrogators and personnel of the CIA Office of Medical Services ("OMS"), be aware of the potential for enhanced susceptibility to pain and suffering from each interrogation technique. We also assume that there will be active and ongoing monitoring by medical and psychological personnel of each detainee who is undergoing a regimen of interrogation, and active intervention by a member of the team or medical staff as necessary, so as to avoid the possibility of severe physical or mental pain or suffering within the meaning of 18 U.S.C. §§ 2340-2340A as a result of such combined effects.

Second, it is possible that certain techniques that do not themselves cause severe physical or mental pain or suffering might do so in combination, particularly when used over the 30-day interrogation period with which we deal here. Again, depending on the circumstances, and the mental state of the interrogator, their use might be considered to be specifically intended to cause such severe pain or suffering. This concern calls for an inquiry into the totality of the circumstances, looking at which techniques are combined and how they are combined.

Your office has outlined the manner in which many of the individual techniques we previously considered could be combined in Background Paper on CIA's Combined Use of Interrogation Techniques (undated, but transmitted Dec. 30, 2004) ("Background Paper"). The Background Paper, which provides the principal basis for our analysis, first divides the process of interrogation into three phases: "Initial Conditions," "Transition to Interrogation," and "Interrogation." Id. at 1. After describing these three phases, see id. at 1-9, the Background Paper "provides a look at a prototypical interrogation with an emphasis on the application of interrogation techniques, in combination and separately," id. at 9-18, The Background Paper does not include any discussion of the waterboard; however, you have separately provided to us a description of how the waterboard may be used in combination with other techniques, particularly dietary manipulation and sleep deprivation, See Fax for Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from [delete] Assistant General Counsel, CIA, at 3-4 (Apr. 22, 2005) ("April 22 [delete] Fax).

Phases of the Interrogation Process

The first phase of the interrogation process, "Initial Conditions," does not involve interrogation techniques, and you have not asked us to consider any legal question regarding the CIA's practices during this phase. The "Initial Conditions" nonetheless set the stage for use of the interrogation techniques, which come later. [2]

According to the Background Paper, before being flown to the site of interrogation, a detainee is given a medical examination. He then is "securely shackled and is deprived of sight and sound through the use of blindfolds, earmuffs, and hoods" during the flight. Id. at 2, An on-board medical officer monitors his condition. Security personnel also monitor the detainee for signs of distress. Upon arrival at the site, the detainee "finds himself in complete control of Americans" and is subjected to "precise, quiet, and almost clinical" procedures designed to underscore "the enormity and suddenness of the change in environment, the uncertainty about what will happen next, and the potential dread [a detainee] may have of U.S. custody." Id. His head and face are shaved; his physical condition is documented through photographs taken while he is nude; and he is given medical and psychological interviews to assess his condition and to make sure there are no contraindications to the use of any particular interrogation techniques. See Id. at 2-3.

The detainee then enters the next phase, the "Transition to Interrogation." The interrogators conduct an initial interview, "in a relatively benign environment," to ascertain whether the detainee is willing to cooperate. The detainee is "normally clothed but seated and shackled for security purposes." Id. at 3. The interrogators take "an open, non-threatening approach," but the detainee "would have to provide information on actionable threats and location information on High-Value Targets at large -- not lower-level information -- for interrogators to continue with [this] neutral approach." Id.. If the detainee does not meet this "very high" standard, the interrogators submit a detailed interrogation plan to CIA headquarters for approval. If the medical and psychological assessments find no contraindications to the proposed plan, and if senior CIA officers at headquarters approve some or all of the plan through a cable transmitted to the site of the interrogation, the interrogation moves to the next phase. Id. [3]

Three interrogation techniques are typically used to bring the detainee to "a baseline, dependent state," "demonstrat[ing] to the [detainee] that he has no control over basic human needs" and helping to make him "perceive and value his personal welfare, comfort, and immediate needs more than the information he is protecting." Id. at 4. The three techniques used to establish this "baseline" are nudity, sleep deprivation (with shackling and, at least at times, with use of a diaper), and dietary manipulation. These techniques, which Techniques described in some detail, "require little to no physical interaction between the detainee and interrogator." Background Paper at 5.

Other techniques, which "require physical interaction between the interrogator and detainee," are characterized as "corrective" and "are used principally to correct, startle, or achieve another enabling objective with the detainee." Id. These techniques "are not used simultaneously but are often used interchangeably during an individual interrogation session." Id. The insult slap is used "periodically throughout the interrogation process when the interrogator needs to immediately correct the detainee or provide a consequence to a detainee's response or non-response." Id. at 5-6. The insult slap "can be used in combination with water dousing or kneeling stress positions" -- techniques that are not characterized as "corrective." Id. at 6. Another corrective technique, the abdominal slap, "is similar to the insult slap in application and desired result" and "provides the variation necessary to keep a high level of unpredictability in the interrogation process." Id. The abdominal.slap may be simultaneously combined with water dousing, stress positions, and wall standing. A third corrective technique, the facial hold, "is used sparingly throughout interrogation." Id. It is not painful, but "demonstrates the interrogator's control over the [detainee]." Id. It too may be simultaneously combined with water dousing, stress positions, and wall standing. Id. Finally, the attention grasp "may be used several times in the same interrogation" and may be simultaneously combined with water dousing or kneeling stress positions. Id.

Some techniques are characterized as "coercive." These techniques "place the detainee in more physical and psychological stress." Id. at 7. Coercive techniques "are typically not used in combination, although some combined use is possible." Id. Walling "is 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." Id. [4] A detainee "may be walled one time (one impact with the wall) to make a point or twenty to thirty times consecutively when the interrogator requires a more significant response to a question," and "will be walled multiple times" during a session designed to be intense. Id. Walling cannot practically be used at the same time as other interrogation techniques.

Water temperature and other considerations of safety established by OMS limit the use of another coercive technique, water dousing. See id. at 7-8. The technique "may be used frequently within those guidelines." Id. at 8. As suggested above, interrogators may combine water dousing with other techniques, such as stress positions, wall standing, the insult slap, or the abdominal slap. See id. at 8.

The use of stress positions is "usually self-limiting in that temporary muscle fatigue usually leads to the [detainee's] being unable to maintain the stress position after a period of time." Id. Depending on the particular position, stress positions may be combined with water dousing, the insult slap, the facial hold., and the attention grasp. See id. Another coercive technique, wall standing, is "usually self-limiting" in the same way as stress positions. Id. It may be combined with water dousing and the abdominal slap. See id. OMS guidelines limit the technique of cramped confinement to no more than eight hours at a time and 18 hours a day, and confinement in the "small box" is limited to two hours. Id. Cramped confinement cannot be used in simultaneous combination with corrective or other coercive techniques.

We understand that the CIA's use of all these interrogation techniques is subject to ongoing monitoring by interrogation team members who will direct that techniques be discontinued if there is a deviation from prescribed procedures and by medical and psychological personnel from OMS who will direct that any or all techniques be discontinued if in their professional judgment the detainee may otherwise suffer severe physical or mental pain or suffering. See Techniques at 6-7.

A Prototypical Interrogation

In a "prototypical interrogation," the detainee begins his first interrogation session stripped of his clothes, shackled, and hooded, with the walling collar over his head and around his neck. Background Paper at 9-10. The interrogators remove the hood and explain that the detainee can improve his situation by cooperating and may say that the interrogators "will do what it takes to get important information." Id. [5] As soon as the detainee does anything, inconsistent with the interrogators' instructions, the interrogators use an insult slap or abdominal slap. They employ walling if it becomes clear that the detainee is not cooperating in the interrogation. This sequence "may continue for several more iterations as the interrogators continue to measure the [detainee's] resistance posture and apply a negative consequence to [his] resistance efforts." Id. The interrogators and security officers then put the detainee into position for standing sleep deprivation, begin dietary manipulation through a liquid diet, and keep the detainee nude (except for a diaper). See id. at 10-11. The first interrogation session, which could have lasted from 30 minutes to several hours, would then be at an end. See id. at 11.

If the interrogation team determines there is a need to continue, and if the medical and psychological personnel advise that there are no contraindications, a second session may begin. See id at 12. The interval between sessions could be as short as an hour or as long as 24 hours. See id at 11. At the start of the second session, the detainee is released from the position for standing sleep deprivation, is hooded, and is positioned against the walling wall, with the walling collar over his head and around his neck. See id. Even before removing the hood, the interrogators use the attention grasp to startle the detainee. The interrogators take off the hood and begin questioning. If the detainee does not give appropriate answers to the first questions, the interrogators use an insult slap or abdominal slap. See id. They employ walling if they determine that the detainee "is intent on maintaining his resistance posture." Id. at 13. This sequence "may continue for multiple iterations as the interrogators continue to measure the [detainee's] resistance posture." Id. The interrogators then increase the pressure on the detainee by using a hose to douse the detainee with water for several minutes. They stop and start the dousing as they continue the interrogation. See id. They then end the session by placing the detainee into the same circumstances as at the end of the first session: the detainee is in the standing position for sleep deprivation, is nude (except for a diaper), and is subjected to dietary manipulation. Once again, the session could have lasted from 30 minutes to several hours. See id.

Again, if the interrogation team determines there is a need to continue, and if the medical and psychological personnel find no contraindications, a third session may follow. The session begins with the detainee positioned as at the beginning of the second. See id. at 14. If the detainee continues to resist, the interrogators continue to use walling and water dousing. The corrective techniques -- the insult slap, the abdominal slap, the facial hold, the attention grasp -- "may be used several times during this session based on the responses and actions of the [detainee] " The interrogators integrate stress positions and wall standing into the session. Furthermore, "[i]ntense questioning and walling would be repeated multiple times." Id. Interrogators "use one technique to support another." Id. For example, they threaten the use of walling unless the detainee holds a stress position, thus inducing the detainee to remain in the position longer than he otherwise would. At the end of the session, the interrogators and security personnel place the detainee into the same circumstances as at the end of the first two sessions, with the detainee subject to sleep deprivation, nudity, and dietary manipulation. Id.

In later sessions, the interrogators use those techniques that are proving most effective and drop the others. Sleep deprivation "may continue to the 70 to 120 hour range, or possibly beyond for the hardest resisters, but in no case exceed the 180-hour time limit." Id at 15. [6] If the medical or psychological personnel find contraindications, sleep deprivation will end earlier. See id at 15-16. While continuing the use of sleep deprivation, nudity, and dietary manipulation, the interrogators may add cramped confinement. As the detainee begins to cooperate, the interrogators "begin gradually to decrease the use of interrogation techniques." Id. at 16. They may permit the detainee to sit, supply clothes, and provide more appetizing food. See id.

The entire process in this "prototypical interrogation" may last 30 days. If additional time is required and a new approval is obtained from headquarters, interrogation may go longer than 30 days. Nevertheless, "[o]n average," the actual use of interrogation techniques covers a period of three to seven days, but can vary upwards to fifteen days based on the resilience of the [detainee]." Id. As in Techniques, our advice here is limited to an interrogation process lasting no more than 30 days. See Techniques at 5.

Use of the Waterboard in Combination with Other Techniques

We understand that for a small number of detainees in very limited circumstances, the CIA may wish to use the waterboard technique. You have previously explained that the waterboard technique would be used only if: (1) the CIA has credible intelligence that a terrorist attack is imminent; (2) there are "substantial and credible indicators the subject has actionable intelligence that can prevent, disrupt or delay this attack"; and (3) other interrogation methods have failed or are unlikely to yield actionable intelligence in time to prevent the attack. See Attachment to Letter from John A. Rizzo, Acting General Counsel, CIA, to Daniel Levin, Acting Assistant Attorney General, Office of Legal Counsel (Aug. 2, 2004). You have also informed us that the waterboard may be approved for use with a given detainee only during, at most, one single 30-day period, and that during that period, the waterboard technique may be used on no more than five days. We further understand that in any 24-hour period, interrogators may use no more than two "sessions" of the waterboard on a subject -- with a "session" defined to mean the time that the detainee is strapped to the waterboard -- and that no session may last more than two hours. Moreover, during any session, the number of individual applications of water lasting 10 seconds or longer may not exceed six. The maximum length of any application of water is 40 seconds (you have informed us that this maximum has rarely been reached). Finally, the total cumulative time of all applications of whatever length in a 24-hour period may not exceed 12 minutes. See Letter from [delete] Associate General Counsel, CIA, to Dan Levin, Acting Assistant Attorney General, Office of Legal Counsel, at 1-2 (Aug. 19, 2004).

You have advised us that in those limited cases where the waterboard would be used, it would be used only in direct combination with two other techniques, dietary manipulation and sleep deprivation. See April 22 [delete] Fax at 3-4. While an individual is physically on the waterboard, the CIA does not use the attention grasp, walling, the facial hold, the facial or insult slap, the abdominal slap, cramped confinement, wall standing, stress positions, or water dousing, though some or all of these techniques may be used with the individual before the CIA needs to resort to the waterboard, and we understand it is possible that one or more of these techniques, might be used on the same day as a waterboard session, but separately from that session and not in conjunction with the waterboard. See id at 3.

As we discussed in Techniques, you have informed us that an individual undergoing the waterboard is always placed on a fluid diet before he may be subjected to the waterboard in order to avoid aspiration of food matter. The individual is kept on the fluid diet throughout the period the waterboard is used. For this reason, and in this way, the waterboard is used in combination with dietary manipulation. See April 22 [delete] Fax at 3.

You have also described how sleep deprivation may be used prior to and during the waterboard session. Id. at 4. We understand that the time limitation on use of sleep deprivation, as set forth in Techniques, continues to be strictly monitored and enforced when sleep deprivation is used in combination with the waterboard (as it is when used in combination with other techniques). See April 22 [delete] Fax at 4. You have also informed us that there is no evidence in literature or experience that sleep deprivation exacerbates any harmful effects of the waterboard, though it does reduce the detainee's will to resist and thereby contributes to the effectiveness of the waterboard as an interrogation technique. Id. As in Techniques, we understand that in the event the detainee were perceived to be unable to withstand the effects of the waterboard for any reason, any member of the interrogation team has the obligation to intervene and, if necessary, to halt the use of the waterboard. See April 22 [delete] Fax at 4.

The issue of the combined effects of interrogation techniques raises complex and difficult questions and comes to us in a less precisely defined form than the questions treated in our earlier opinions about individual techniques. In evaluating individual techniques, we turned to a body of experience developed in the use of analogous techniques in military training by the United States, to medical literature, and to the judgment of medical personnel. Because there is less certainty and definition about the use of techniques in combination, it is necessary to draw more inferences in assessing what may be expected. You have informed us that, although "the exemplar [that is, the prototypical interrogation] is a fair representation of how these techniques are actually employed," "there is no template or script that states with certainty when and how these techniques will be used in combination during interrogation." Background Paper at 17. Whether any other combination of techniques would, in the relevant senses, be like the ones presented -- whether the combination would be no more likely to cause severe physical or mental pain or suffering within the meaning of sections 2340-2340A -- would be a question that cannot be assessed in the context of the present legal opinion. For that reason, our advice does not extend to combinations of techniques unlike the ones discussed here. For the same reason, it is especially important that the CIA use great care in applying these various techniques in combination in a real-world scenario, and that the members of the interrogation team, and the attendant medical staff, remain watchful for indications that the use of techniques in combination may be having unintended effects, so that the interrogation regimen may be altered or halted, if necessary, to ensure that it will not result in severe physical or mental pain or suffering to any detainee in violation of 18 U.S. C. §§ 2340-2340A.

Finally, in both of our previous opinions about specific techniques, we evaluated the use of those techniques on particular identified individuals. Here, we are asked to address the combinations without reference to any particular detainee. As is relevant here, we know only that an enhanced interrogation technique, such as most of the techniques at issue in Techniques, may be used on a detainee only if medical and psychological personnel have determined that he is not likely, as a result, to experience severe physical or mental pain or suffering. Techniques at 5. Once again, whether other detainees would, in the relevant ways, be like the ones previously at issue would be a factual question we cannot now decide. Our advice, therefore, does not extend to the use of techniques on detainees unlike those we have previously considered. Moreover, in this regard, it is also especially important, as we pointed out in Techniques with respect to certain techniques, see, e.g., id at 37 (discussing sleep deprivation), that the CIA will carefully assess the condition of each individual detainee and that the CIA's use of these techniques in combination will be sensitive to the individualized physical condition and reactions of each detainee, so that the regimen of interrogation would be altered or halted, if necessary, in the event of unanticipated effects on a particular detainee.

Subject to these cautions and to the conditions, limitations, and safeguards set out below and in Techniques, we nonetheless can reach some conclusions about the combined use of these techniques. Although this is a difficult question that will depend on the particular detainee, we do not believe that the use of the techniques in combination as you have described them would be expected to inflict "severe physical or mental pain or suffering" within the meaning of the statute. 18 U.S.C. § 2340(1). Although the combination of interrogation techniques will wear a detainee down physically, we understand that the principal effect, as well as the primary goal, of interrogation using these techniques is psychological -- "to create a state of learned helplessness and dependence conducive to the collection of intelligence in a predictable, reliable, and sustainable manner." Background Paper at 1 -- and numerous precautions are designed to avoid inflicting "severe physical or mental pain or suffering."

For present purposes, we may divide "severe physical or mental pain or suffering" into three categories: "severe physical ... pain," "severe physical ... suffering," and "severe ... mental pain or suffering" (the last being a defined term under the statute). See Techniques at 22-26; Memorandum for James B. Comey, Deputy Attorney General, from Daniel Levin, acting Assistant Attorney General, Office of Legal Counsel, Re: Legal Standards Applicable Under 18 U.S.C. §§ 2340-2340A (Dec. 30, 2004).

As explained below, any physical pain resulting from the use of these techniques, even in combination, cannot reasonably be expected to meet the level of "severe physical pain" contemplated by the statute. We conclude, therefore, that the authorized use in combination of these techniques by adequately trained interrogators, as described in the Background Paper and the April 22 [delete] Fax, could not reasonably be considered specifically intended to do so. Moreover, although it presents a closer question under sections 2340-2340A, we conclude that the combined use of these techniques also cannot reasonably be expected to -- and their combined use in the authorized manner by adequately trained interrogators could not reasonably be considered specifically intended to -- cause severe physical suffering. Although two techniques, extended sleep deprivation and the waterboard, may involve a more substantial risk of physical distress, nothing in the other specific techniques discussed in the Background Paper and the April 22 [delete] Fax, or, as we understand it, in the CIA's experience to date with the interrogations of more than two dozen detainees (three of whose interrogations involved the use of the waterboard), would lead to the expectation that any physical discomfort from the combination of sleep deprivation or the waterboard and other techniques would involve the degree of intensity and duration of physical distress sufficient to constitute severe physical suffering under the statute. Therefore, the use of the technique could not reasonably be viewed as specifically intended to cause severe physical suffering. We stress again, however, that these questions concerning whether the combined effects of different techniques may rise to the level of physical suffering within the meaning of sections 2340-2340A are difficult ones, and they reinforce the need for close and ongoing monitoring by medical and psychological personnel and by all members of the interrogation team and active intervention if necessary.

Analyzing the combined techniques in terms of severe mental pain or suffering raises two questions under the statute. The first is whether the risk of hallucinations from sleep deprivation may become exacerbated when combined with other techniques, such that a detainee might be expected to experience "prolonged mental harm" from the combination of techniques. Second, the description in the Background Paper that detainees may be specifically told that interrogators will "do what it takes" to elicit information, id. at 10, raises the question whether this statement might qualify as a threat of infliction of severe physical pain or suffering or another of the predicate acts required for "severe mental pain or suffering" under the statute. After discussing both of those possibilities below, however, we conclude that the authorized use by adequately trained interrogators of the techniques in combination, as you have described them, would not reasonably be expected to cause prolonged mental harm and could not reasonably be considered specifically intended to cause severe mental pain or suffering. We stress that these possible questions about the combined use of the techniques under the statutory category of severe mental pain or suffering are difficult ones and they serve to reinforce the need for close and ongoing monitoring and active intervention if necessary.

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PART 2 OF 2

Severe Physical Pain

Our two previous opinions have not identified any techniques that would inflict pain that approaches the "sever[ity] required to violate the statute. A number of the techniques -- dietary, manipulation, nudity, sleep deprivation, the facial hold, and the attention grasp -- are not expected to cause physical pain at all. See Techniques at 30-36. Others might cause some pain, but the level of pain would not approach that which would be considered "severe." These techniques are the abdominal slap, water dousing, various stress positions, wall standing, cramped confinement, walling, and the facial slap. See id. We also understand that the waterboard is not physically painful. Id. at 41. In part because none of these techniques would individually cause pain that even approaches the "severe" level required to violate the statute, the combined use of the techniques under the conditions outlined here would not be expected to -- and we conclude that their authorized use by adequately trained interrogators could not reasonably be considered specifically intended to -- reach that level. [7]

We recognize the theoretical possibility that the use of one or more techniques would make a detainee more susceptible to severe pain or that the techniques, in combination, would operate differently from the way they would individually and thus cause severe pain, But as we understand the experience involving the combination of various techniques, the OMS medical and psychological personnel have not observed any such increase in susceptibility. Other than the waterboard, the specific techniques under consideration in this memorandum -- including sleep deprivation -- have been applied to more than 25 detainees. See [delete] Fax at 1-3. No apparent increase in susceptibility to severe pain has been observed either when techniques are used sequentially or when they are used simultaneously -- for example, when an insult slap is simultaneously combined with water dousing or a kneeling stress position, or when wall standing is simultaneously combined with an abdominal slap and water dousing. Nor does experience show that, even apart from changes in susceptibility to pain, combinations of these techniques cause the techniques to operate differently so as to cause severe pain. OMS doctors and psychologists, moreover, confirm that they expect that the techniques, when combined as described in the Background Paper and in the April 22 [delete] Fax, would not operate in a different manner from the way they do individually, so as to cause severe pain.

We understand that experience supports these conclusions even though the Background Paper does give examples where the distress caused by one technique would. be increased by use of another. The "conditioning techniques" -- nudity, sleep deprivation, and dietary manipulation -- appear designed to wear down the detainee, physically and psychologically, and to allow other techniques to be more effective, see Background Paper at 5, 12; April 22 [delete] Fax at 4; and "these [conditioning[ techniques are used in combination in almost all cases," Background Paper at 17. And, in another example, the threat of walling is used to cause a detainee to hold a stress position longer than he otherwise would. See id at 14. The issue raised by the statute, however, is whether the techniques would be specifically intended to cause the detainee to experience "severe ... pain." 18 U.S.C. § 2340(1). In the case of the conditioning techniques, the principal effect, as you have described it, is on the detainee's will to resist other techniques, rather than on the pain that the other techniques cause. See Background Paper at 5, 12; April 22 [delete] Fax at 4. Moreover, the stress positions and wall standing, while inducing muscle fatigue, do not cause "severe physical ... pain," and there is no reason to believe that a position, held somewhat longer than otherwise, would create such pain. See Techniques at 33-34. [8]

In any particular case, a combination of techniques might have unexpected results, just as an individual technique could produce surprising effects. But the Background Paper and the April 22 [delete] Fax, as well as Techniques, describe a system of medical and psychological monitoring of the detainee that would very likely identify any such unexpected results as they begin to occur and would require an interrogation to be modified or stopped if a detainee is in danger of severe physical pain. Medical and psychological personnel assess the detainee before any interrogation starts. See, e.g., Techniques at 5. Physical and psychological evaluations are completed daily during any period in which the interrogators use enhanced techniques, including those at issue in Techniques (leaving aside dietary manipulation and sleep deprivation of less than 48 hours). See id at 5-7. Medical and psychological personnel are on scene throughout the interrogation, and are physically present or are otherwise observing during many of the techniques. See id. at 6-7. These safeguards, which were critically important to our conclusions about individual techniques, are even more significant when techniques are combined.

In one specific context, monitoring the effects on detainees appears particularly important. The Background Paper and the April 22 [delete] Fax illustrate that sleep deprivation is a central part of the "prototypical interrogation." We noted in Techniques that extended sleep deprivation may cause a small decline in body temperature and increased food consumption. See Techniques at 33-34. Water dousing and dietary manipulation and perhaps even nudity may thus raise dangers of enhanced susceptibility to hypothermia or other medical conditions for a detainee undergoing sleep deprivation. As in Techniques, we assume that medical personnel will be aware of these possible interactions and will monitor detainees closely for any signs that such interactions are developing. See id. at 33-35. This monitoring, along with quick intervention if any signs of problematic symptoms develop, can be expected to prevent a detainee from experiencing severe physical pain.

We also understand that some studies suggest that extended sleep deprivation may be associated with a reduced tolerance for some forms of pain. [9] Several of the techniques used by the CIA may involve a degree of physical pain, as we have previously noted, including facial and abdominal slaps, walling, stress positions, and water dousing. Nevertheless, none of these techniques would cause anything approaching severe physical pain. Because sleep deprivation appears to cause at most only relatively moderate decreases in pain tolerance, the use of these techniques in combination with extended sleep deprivation would not be expected to cause severe physical pain.

Therefore, the combined use of techniques, as set out in the Background Paper and the April 22 [delete] Fax, would not reasonably be expected by the interrogators to result in severe physical pam. We conclude that the authorized use of these techniques in combination by adequately trained interrogators, as you have described it, could not reasonably be considered specifically intended to cause such pain for purposes of sections 2340-2340A. The close monitoring of each detainee for any signs that he is at risk of experiencing severe physical pain reinforces the conclusion that the combined use of interrogation techniques is not intended to inflict such pain. OMS has directed that "[m]edical officers must remain cognizant at all times of their obligation to prevent severe physical or mental pain or suffering." OMS Guidelines at 10. The obligation of interrogation team members and medical staff to intercede if their observations indicate a detainee is at risk of experiencing severe physical pain, and the expectation that all interrogators understand the important role played by OMS and will cooperate with them in the exercise of this duty, are here, as in Techniques, essential to our advice. See Techniques at 14.

Severe Physical Suffering

We noted in Techniques that, although the statute covers a category of "severe physical ... suffering" distinct from "severe physical pain," this category encompasses only "physical distress that is 'severe' considering its intensity and duration or persistence, rather than merely mild or transitory." Id.. at 23 (internal quotation marks omitted). Severe physical suffering for purposes of sections 2340-2340A, we have concluded, means a state or condition of physical distress, misery, affliction, or torment, usually involving physical pain, that is both extreme in intensity and significantly protracted in duration or persistent over time. Id. Severe physical suffering is distinguished from suffering that is purely mental or psychological in nature, since mental suffering is encompassed by the separately defined statutory category of "severe mental pain or suffering," discussed below. To amount to torture, conduct must be "sufficiently extreme and outrageous to warrant the universal condemnation that the term 'torture' both connotes and invokes." See Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82, 92 (D.C. Cir. 2002) (interpreting the TVPA); cf. Mehinovic v. Vuckovic, 198 F. Supp; 2d 1322, 1332-40, 1345-46 (N.D. Ga. 2002) (standard met under the TVPA by a course of conduct that included severe beatings to the genitals, head, and other parts of the body with metal pipes and various other items; removal of teeth with pliers; kicking in the face and ribs; breaking of bones and ribs and dislocation of fingers; cutting a figure into the victim's forehead; hanging the victim and beating him; extreme limitations of food and water; and subjection to games of "Russian roulette").

In Techniques, we recognized that, depending on the physical condition and reactions of a given individual, extended sleep deprivation might cause physical distress in some cases. Id. at 34. Accordingly, we advised that the strict limitations and safeguards adopted by the CIA are important to ensure that the use of extended sleep deprivation would not cause severe physical suffering. Id. at 34-35. We pointed to the close medical monitoring by OMS of each detainee subjected to sleep deprivation, as well as to the power of any member of the interrogation team or detention facility staff to intervene and, in particular, to intervention by OMS if OMS concludes in its medical judgment that the detainee may be experiencing extreme physical distress. With those safeguards in place, and based on the assumption that they would. be strictly followed, we concluded that the authorized use of sleep deprivation by adequately trained interrogators could not reasonably be considered specifically intended to cause such severe physical suffering. Id. at 34. We pointed out that "[d]ifferent individual detainees may react physically to sleep deprivation in different ways," id., and we assumed that the interrogation team and medical staff "will separately monitor each individual detainee who is undergoing sleep deprivation, and that the application of this technique will be sensitive to the individualized physical condition and reactions of each detainee." Id.

Although it is difficult to calculate the additional effect of combining other techniques with sleep deprivation, we do not believe that the addition of the other techniques as described in the Background Paper would result in "severe physical ... suffering." The other techniques do not themselves inflict severe physical pain. They are not of the intensity and duration that are necessary for "severe physical suffering"; instead, they only increase, over a short time, the discomfort that a detainee subjected to sleep deprivation experiences. They do not extend the time at which sleep deprivation would end, and although it is possible that the other techniques increase the physical discomfort associated with sleep deprivation itself, we cannot say that the effect would be so significant as to cause "physical distress that is 'severe' considering its intensity and duration or persistence." Techniques at 23 (internal quotation marks omitted). We emphasize that the question of "severe physical suffering" in the context of a combination of techniques is a substantial and difficult one, particularly in light of the imprecision in the statutory standard and the relative lack of guidance in the case law. Nevertheless, we believe that the combination of techniques in question here would not be "extreme and outrageous," and thus would not reach the high bar established by Congress in sections 2340-2340A, which is reserved for actions that "warrant the universal condemnation that the term 'torture' both connotes and invokes." See Price v. Socialist People 's Libyan Arab Jamahiriya; 294 F.3d at 92 (interpreting the TVPA)

As we explained in Techniques experience with intended sleep deprivation shows that "'[s]urprisingly, little seemed to go wrong with the subjects physically. The main effects lay with sleepiness and impaired brain functioning, but even these were no great cause for concern.'" Id. at 36 quoting James Horne Why We Sleep: The Functions of Sleep in Humans and Other Mammals 23-24 (1988)). The aspects of sleep deprivation that might result in substantial physical discomfort, therefore, are limited in scope; and although the degree of distress associated with sleepiness, as noted above, may differ from person to person, the CIA has found that many of the at least 25 detainees subjected to sleep deprivation have tolerated it well. The general conditions in which sleep deprivation takes place would not change this conclusion. Shackling is employed as a passive means of keeping a detainee awake and is used in a way designed to prevent causing significant pain. A detainee is not allowed to hang by his wrists. When the detainee is shackled in a sitting position, he is on a stool adequate to bear his weight; and if a horizontal position is used, there is no additional stress on the detainee's arm or leg joints that might force his limbs beyond their natural extension or create tension on any joint. Furthermore, team members, as well as medical staff, watch for the development of edema and will act to relieve that condition, should significant edema develop. If a detainee subject to sleep deprivation is using an adult diaper, the diaper is checked regularly and changed as needed to prevent skin irritation.

Nevertheless, we recognize, as noted above, the possibility that sleep deprivation might lower a detainee's tolerance for pain. See supra p. 13 & n.9. This possibility suggests that use of extended sleep deprivation in combination with other techniques might be more likely than the separate use of the techniques to place the detainee in a state of severe physical distress and, therefore, that the detainee might be more likely to experience severe physical suffering. However, you have informed us that the interrogation techniques at issue would not be used during a course of extended sleep deprivation with such frequency and intensity as to induce in the detainee a persistent condition of extreme physical distress such as may constitute "severe physical suffering" within the meaning of sections 2340-2340A. We understand that the combined use of these techniques with extended sleep deprivation is not designed or expected to cause that result. Even assuming there could be such an effect, members of the interrogation team and medical staff from OMS monitor detainees and would intercede if there were indications that the combined use of the techniques may be having that result, and the use of the techniques would be reduced in frequency or intensity or halted altogether, as necessary. In this regard, we assume that if a detainee started to show an atypical, adverse reaction during sleep deprivation, the system for monitoring would identify this development.

These considerations underscore that the combination of other techniques with sleep deprivation magnifies the importance of adhering strictly to the limits and safeguards applicable to sleep deprivation as an individual technique, as well as the understanding that team personnel, as well as OMS medical personnel, would intervene to alter or stop the use of an interrogation technique if they conclude that a detainee is or may be experiencing extreme physical distress.

The waterboard may be used simultaneously with two other techniques: it maybe used during a course of sleep deprivation, and as explained above, a detainee subjected to the waterboard must be under dietary manipulation, because a fluid diet reduces the risks of the technique. Furthermore, although the insult slap, abdominal slap, attention grasp, facial hold, walling, water dousing, stress positions, and cramped confinement cannot be employed during the actual session when the waterboard is being employed, they may be used at a point in time close to the waterboard, including on the same day. See April 22 [delete] Fax at 3.

In Techniques, we explained why neither sleep deprivation nor the waterboard would impose distress of such intensity and duration as to amount to "severe physical suffering," and, depending on the circumstances and the individual detainee, we do not believe the combination of the techniques, even if close in time with other techniques, would change that conclusion. The physical distress of the waterboard, as explained in Techniques, lasts only during the relatively short periods during a session when the technique is actually being used. Sleep deprivation would not extend that period. Moreover, we understand that there is nothing in the literature or experience to suggest that sleep deprivation would exacerbate any harmful effects of the waterboard. See supra p. 9. Similarly, the use of the waterboard would not extend the time of sleep deprivation or increase its distress, except during the relatively brief times that the technique is actually being used. And the use of other techniques that do not involve the intensity and duration required for "severe physical suffering" would not lengthen the time during which the waterboard would be used or increase, in any apparent way, the intensity of the distress it would cause. Nevertheless, because both the waterboard and sleep deprivation raise substantial questions, the combination of the techniques only heightens the difficulty of the issues. Furthermore, particularly because the waterboard is so different from other techniques in its effects, its use in combination with other techniques is particularly difficult to judge in the abstract and calls for the utmost vigilance and care.

Based on these assumptions, and those described at length in Techniques, we conclude that the combination of techniques, as described in the Background Paper and the April 22 [delete] Fax, would not be expected by the interrogators to cause "severe physical ... suffering," and that the authorized use of these techniques in combination by adequately trained interrogators could not reasonably be considered specifically intended to cause severe physical suffering within the meaning of sections 2340-2340A.

Severe Mental Pain or Suffering

As we explained in Techniques, the statutory definition of "severe mental pain or suffering" requires that one of four specified predicate acts cause "prolonged mental harm." 18 U.S.C. § 2340(2); see Techniques at 24-25. In Techniques, we concluded that only two of the techniques at issue here -- sleep deprivation and the waterboard -- would even arguably involve a predicate act. The statute provides that "the administration or application ... of ... procedures calculated to disrupt profoundly the senses or the personality" can be a predicate act, 18 U.S.C. § 2340 (2)(B). Although sleep deprivation may cause hallucinations, OMS, supported by the scientific literature of which we are aware, would not expect a profound disruption of the senses and would order sleep deprivation discontinued if hallucinations occurred. We nonetheless assumed in Techniques that any hallucinations resulting from sleep deprivation would amount to a profound disruption of the senses. Even on this assumption, we concluded that sleep deprivation should not be deemed "calculated" to have that effect. Techniques at 35-36. Furthermore, even if sleep deprivation could be said to be "calculated" to disrupt the senses profoundly and thus to qualify as a predicate act, we expressed the understanding in Techniques that, as demonstrated by the scientific literature about which we knew and by relevant experience in CIA interrogations, the effects of sleep deprivation, including the effects of any associated hallucinations, would rapidly dissipate. Based on that understanding, sleep deprivation therefore would not cause "prolonged mental harm" and would not meet the statutory definition for "severe mental pain or suffering." Id. at 36.

We noted in Techniques that the use of the waterboard might involve a predicate act. A detainee subjected to the waterboard experiences a sensation of drowning, which arguably qualifies as a "threat of imminent death." 18 U.S.C. § 2340(2)(C). We noted, however, that there is no medical basis for believing that the technique would produce any prolonged mental harm. As explained in Techniques, there is no evidence for such prolonged mental harm in the CIA's experience with the technique, and we understand that it has been used thousands of times (albeit in a somewhat different way) during the military training of United States personnel, without producing any evidence of such harm.

There is no evidence that combining other techniques with sleep deprivation or the waterboard would change these conclusions. We understand that none of the detainees subjected to sleep deprivation has exhibited any lasting mental harm, and that, in all but one case, these detainees have been subjected to at least some other interrogation technique besides the sleep deprivation itself. Nor does this experience give any reason to believe that, should sleep deprivation cause hallucinations, the use of these other techniques in combination with sleep deprivation would change the expected result that, once a person subjected to sleep deprivation is allowed to sleep, the effects of the sleep deprivation, and of any associated hallucinations, would rapidly dissipate.

Once again, our advice assumes continuous, diligent monitoring of the detainee during sleep deprivation and prompt intervention at the first signs of hallucinatory experiences. The absence of any atypical, adverse reaction during sleep deprivation would buttress the inference that, like others deprived of sleep for long periods, the detainee would fit within the norm established by experience with sleep deprivation, both the general experience reflected in the medical literature and the CIA's specific experience with other detainees. We understand that, based on these experiences, the detainee would be expected to return quickly to his normal mental state once he has been allowed to sleep and would suffer no "prolonged mental harm."

Similarly, the CIA's experience has produced no evidence that combining the waterboard and other techniques causes prolonged mental harm, and the same is true of the military training in which the technique was used. We assume, again, continuous and diligent monitoring during the use of the technique, with a view toward quickly identifying any atypical, adverse reactions. and intervening as necessary.

The Background Paper raises one other issue about "severe mental pain or suffering." According to the Background Paper, the interrogators may tell detainees that they "will" do what it takes to get important information." Background Paper at 10. (We understand that interrogators may instead use other statements that might be taken to have a similar import.) Conceivably, a detainee might understand such a statement as a threat that, if necessary, the interrogators will imminently subject him to "severe physical pain or suffering" or to "the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality," or he perhaps even could interpret the statement as a threat of imminent death (although, as the detainee himself would probably realize, killing a detainee would end the flow of information). 18 U.S.C. § 2340 (2)(A)-(C).

We doubt that this statement is sufficiently specific to qualify as a predicate act under section 2340(2). Nevertheless, we do not have sufficient information to judge whether, in context, detainees understand the statement in any of these ways. If they do, this statement at the beginning of the interrogation arguably requires considering whether it alters the detainee's perception of the interrogation techniques and whether, in light of this perception, prolonged mental harm would be expected to result from the combination throughout the interrogation process of all of the techniques used. We do not have any body of experience, beyond the CIA's own experience with detainees, on which to base an answer to this question. SERE training, for example, or other experience with sleep deprivation, does not involve its use with the standing position used here, extended nudity, extended dietary manipulation, and the other techniques which are intended "to create a slate of learned helplessness." Background Paper at 1, and SERE training does not involve repeated applications of the waterboard. A statement that the interrogators "will do what it takes to get important information" moves the interrogations at issue here even further from this body of experience.

Although it may raise a question, we do not believe that, under the careful limitations and monitoring in place, the combined use outlined in the Background Paper, together with a statement of this kind, would violate the statute. We are informed that, in the opinion of OMS, none of the detainees who have heard such a statement in their interrogations has experienced "prolonged mental harm," such as post-traumatic stress disorder, see Techniques at 26 n.31, as a result of it or the various techniques utilized on them. This body of experience supports the conclusion that the use of the statement does not alter the effects that would be expected to follow from the combined use of the techniques. Nevertheless, in light of these uncertainties, you may wish to evaluate whether such a statement is a necessary part of the interrogation regimen or whether a different statement might be adequate to convey to the detainee the seriousness of his situation.

***

In view of the experience from past interrogations, the judgment of medical and psychological personnel, and the interrogation team's diligent monitoring of the effects of combining interrogation techniques, interrogators would not reasonably expect that the combined use of the interrogation methods under consideration, subject to the conditions and safeguards set forth here and in Techniques, would result in severe physical or mental pain or suffering within the meaning of sections 2340-2340A. Accordingly, we conclude that the authorized use, as described in the Background Paper and the April 22 [delete] Fax, of these techniques in combination by adequately trained interrogators could not reasonably be considered specifically intended to cause severe physical or mental pain or suffering, and thus would not violate sections 2340-2340A. We nonetheless underscore that when these techniques are combined in a real world scenario, the members of the interrogation team and the attendant medical staff must be vigilant in watching for unintended effects, so that the individual characteristics of each detainee are constantly taken into account and the interrogation may be modified or halted, if necessary, to avoid causing severe physical or mental pain or suffering to any detainee. Furthermore, as noted above, our advice does not extend to combinations of techniques unlike the ones discussed here, and whether any other combination of techniques would be more likely to cause severe physical or mental pain or suffering within the meaning of sections 2340-2340A would be a question that we cannot assess here. Similarly, our advice does not extend to the use of techniques on detainees unlike those we have previously considered, and whether other detainees would, in the relevant ways, be like the ones at issue in our previous advice would be a factual question we cannot now decide. Finally, we emphasize that these are issues about which reasonable persons may disagree. Our task has been made more difficult by the imprecision of the statute and the relative absence of judicial guidance, but we have applied our best reading of the law to the specific facts that you have provided.

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

Steven G. Bradbury
Principal Deputy Assistant Attorney General

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Notes:

1. As noted in Techniques, the Criminal Division of the Department of Justice is satisfied that our general interpretation of the legal standards under sections 2340-2340A, found in Techniques, is consistent with its concurrence in our Memorandum for James B. Comey, Deputy Attorney General, from Daniel Levin, Acting Assistant Attorney General, Office of Legal Counsel, Re: Legal Standards Applicable Under 18 U.S.C. §§ 2340- 2340A (Dec. 30, 2004). In the present memorandum, we address only the application of 18 U.S.C. §§ 2340-2340A to combinations of interrogation techniques. Nothing in this memorandum or in our prior advice to the CIA should be read to suggest that the use of these techniques would conform to the requirements of the Uniform Code of Military Justice that governs members of the Armed Forces or to United States obligations under the Geneva Conventions in circumstances where those Conventions would apply. We do not address the possible application of article 16 of the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Dec. 10; 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for U.S. Nov. 20, 1994), nor do we address any question relating to conditions of confinement or detention, as distinct from the interrogation of detainees. We stress that our advice on the application of sections 2340-2340A does not represent the policy views of the Department of Justice concerning interrogation practices. Finally, we note that section 6057 (a) of H.R. 1268 (109th Cong. 1st Sess.), if it becomes law, would forbid expending or obligating funds made available by that bill "to subject any person in the custody or under the physical control of the United Stales to torture," but because the bill would define "torture" to have "the meaning given that term in section 2340(1) of title 18, United Stales Code," § 6057(b)(1), the provision (to the extent it might apply here at all) would merely reaffirm the preexisting prohibitions on torture in sections 2340-2340A.

2. Although the OMS Guidelines on Medical and Psychological Support to Detainee Rendition, Interrogation and Detention (Dec. 2004) ("OMS Guidelines") refer to the administration of sedatives during transport if necessary to protect the detainee or the rendition team, id. at 4-5, the OMS Guidelines do not provide for the use of sedatives for interrogation. The Background Paper does not mention the administration of any drugs during the detainee's transportation to the site of the interrogation or at any other time, and we do not address any such administration. OMS, we understand, is unaware of any use of sedation during the transport of a detainee in the last two years and states that the interrogation program does not use sedation or medication for the purpose of interrogation. We caution that any use of sedatives should be carefully evaluated, including under 18 U.S.C, § 2340(2)(B). For purposes of our analysis, we assume that no drugs are administered during the relevant period or that there are no ongoing effects from any administration of any drugs; if that assumption does not hold, our analysis and conclusions could change.

3. The CIA maintains certain "detention conditions" at all of its detention facilities. (These conditions "are not interrogation techniques," id. at 4, and you have not asked us to assess their lawfulness under the statute.) The detainee is "exposed to white noise/loud sounds (not to exceed 79 decibels) and constant light during portions of the interrogation process." Id. These conditions enhance security. The noise prevents the detainee from overhearing conversations of staff members, precludes him from picking up "auditory clues" about his surroundings, and disrupts any efforts to communicate with other detainees. Id. The light provides better conditions for security and for monitoring by the medical and psychological staff and the interrogators. Although we do not address the lawfulness of using white noise (noise not to exceed 79 decibels) and constant light, we note that according to materials you have furnished to us, (1) the Occupational Safety and Health Administration has determined that there is no risk of permanent hearing loss from continuous, 24-hour per day exposure to noise of up to 82 decibels, and (2) detainees typically adapt fairly quickly to the constant light and it does not interfere unduly with their ability to sleep. See Fax for Dan Levin, Acting Assistant Attorney General, Office of Legal Counsel, from [delete] Assistant General Counsel, Central Intelligence Agency at 3 (Jan. 4, 2005) ("[delete] Fax").

4. Although walling "wears down the [detainee] physically," Background Paper at 7, and undoubtedly may startle him, we understand that it is not significantly painful. The detainee hits "a flexible false wall," designed "to create a loud sound when the individual hits it" and thus to cause '''shock and surprise." Interrogation Memorandum at 2. But the detainee's "head and neck are supported with a rolled hood or towel that provides a collar effect to help prevent whiplash"; it is the detainee's shoulder blades that hit the wall, and the detainee is allowed to rebound from the flexible wall in order to reduce the chances of any injury. See id. You have informed us that a detainee is expected to feel "dread" at the prospect of walling because of the shock and surprise caused by the technique and because of the sense of powerlessness that comes from being roughly handled by the interrogators, not because the technique causes significant pain.

5. We address the effects of this statement below at pp. 18-19.

6. As in Techniques, our advice here is restricted to one application of no more than 180 hours of sleep deprivation.

7. We are not suggesting that combinations or repetitions of acts that do not individually cause severe physical pain could not result in severe physical pain. Other than the repeated use of the "walling" technique, however, nothing in the Background Paper suggests the kind of repetition that might raise an issue about severe physical pain; and, in the case of walling, we understand that this technique involves a false, flexible wall and is not significantly painful, even with repetition. Our advice with respect to walling in the present memorandum is based on the understanding that the repetitive use of walling is intended only to increase the shock and drama of the technique, to wear down the detainee's resistance, and to disrupt expectations that he will not be treated with force, and that such use is not intended to, and does not in fact, cause severe physical pain to the detainee. Along these lines, we understand that the repeated use of the insult slap and the abdominal slap gradually reduces their effectiveness and that their use is therefore limited to times when the detainee's overt disrespect for the question or questioner requires immediate correction, when the detainee displays obvious efforts to misdirect or ignore the question or questioner, or when the detainee attempts to provide an obvious lie in response to a specific question. Our advice assumes that the interrogators will apply those techniques as designed and will not strike the detainee with excessive force or repetition in a manner that might result in severe physical pain. As to all techniques, our advice assumes that the use of the technique will be stopped if there is any indication that it is or may be causing severe physical pain to the detainee.

8. Out advice about wall standing and stress positions assumes that the positions used in each technique are not designed to produce severe pain that might result from contortions or twisting of the body, but only temporary muscle fatigue.

9. For example, one study found a statistically significant drop of 8-9% in subjects' tolerance thresholds for mechanical or pressure pain after 40 hours of total sleep deprivation. See S. Hakki Onen, et al., The Effects of Total Sleep Deprivation, Selective Sleep Interruption and Sleep Recovery on Pain Tolerance Thresholds in Healthy Subjects, 10 J. Sleep Research 35, 41 (2001); see also id. at 35-36 (discussing other studies). Another study of extended total sleep deprivation found a significant decease in the threshold for heat pain and some decrease in the cold pain threshold.. See B. Kundermann, et al., Sleep Deprivation Affects Thermal Pain Thresholds but not Somatosensory Thresholds in Healthy Volunteers, 66 Psychosomatic Med. 932 (2004).