Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka
Posted: Sat Oct 12, 2013 12:38 amPART 1 OF 3
MEMO __
U.S. Department of Justice
Office of Legal Counsel
Washington, D.C. 20530
Office of the Principal Deputy Assistant Attorney General
May 30, 2005
MEMORANDUM FOR JOHN A. RIZZO
SENIOR DEPUTY GENERAL COUNSEL, CENTRAL INTELLIGENCE AGENCY
Re: Application of United States Obligations Under Article 16 of the Convention Against Torture to Certain Techniques that May Be Used in the Interrogation of High Value al Qaeda Detainees
You have asked us to address whether certain "enhanced interrogation techniques" employed by the Central Intelligence Agency ("CIA") in the interrogation of high value al Qaeda detainees are consistent with United States obligations under 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) ("CAT"). We concluded that use of these techniques, subject to the CIA's careful screening criteria and limitations and its medical safeguards, is consistent with United States obligations under Article 16. [1]
By its terms, Article 16 is limited to conduct within "territory under [United States] jurisdiction." We conclude that territory under United States jurisdiction includes, at most, areas over which the United States exercises at least de facto authority as the government. Based on CIA assurances, we understand that the interrogations do not take place in any such areas. We therefore conclude that Article 16 in inapplicable to the CIA's interrogation practices and that those practices thus cannot violate Article 16. Further. the United States undertook its obligations under Article 16 subject to a Senate reservation, which, as relevant here, explicitly limits those obligations to the "cruel, unusual and inhumane treatment ... prohibited by the Fifth Amendment ... to the Constitution of the United States." [2] There is a strong argument that through this reservation the Senate intended to limit the scope of United States obligations under Article 16 to those imposed by the relevant provision of the Constitution. As construed by the courts, the Fifth Amendment does not apply to aliens outside the United States. The CIA has assured us that the interrogation techniques are not used within the United States or against United States persons, including both United States citizens and lawful permanent residents. Because the geographic limitation on the face of Article 16 renders it inapplicable to the CIA interrogation program in any event, we need not decide in the memorandum the precise effect, if any, of the Senate reservation on the geographic reach of United States obligations under Article 16. For these reasons, we conclude in Part II that the interrogation techniques where and as used by the CIA are not subject to, and therefore do not violate, Article 16.
Notwithstanding these conclusions, you have also asked whether the interrogation techniques at issue would violate the substantive standards applicable to the United States under Article 16 if, contrary to our conclusion in Part II, those standards did extend to the CIA interrogation program. As detailed below in Part III, the relevant constraint here, assuming Article 16 did apply, would be the Fifth Amendment's prohibition of executive conduct that "shocks the conscience." The Supreme Court has emphasized that whether conduct "shocks the conscience" is a highly context-specific and fact-dependent question. The Court, however, has not set forth with precision a specific test for ascertaining whether conduct can be said to "shock the conscience" and has disclaimed the ability to do so. Moreover, there are few Supreme Court cases addressing whether conduct "shocks the conscience," and the few cases there are have all arisen in very different contexts from that which we consider here.
For these reasons, we cannot set forth or apply a precise test for ascertaining whether conduct can be said to "shock the conscience." Nevertheless, the Court's "shocks the conscience" cases do provide some signposts that can guide our inquiry. In particular, on balance the cases are best read to require a determination whether the conduct is "'arbitrary in the constitutional sense,'" County of Sacrament to v. Lewis, 523 U.S. 833, 846 (1998) (citation omitted); that is, whether it involves the "exercise of power without any reasonable justification in the service of a legitimate governmental objective," id. "[C]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." Id. at 849. Far from being constitutionally arbitrary, the interrogation techniques at issue here are employed by the CIA only as reasonably deemed necessary to protect against grave threats to United States interests, a determination that is made at CIA Headquarters, with input from the on-scene interrogation team, pursuant to careful screening procedures that ensure that the techniques will be used as little as possible on as few detainees as possible. Moreover, the techniques have been carefully designed to minimize the risk of suffering or injury and to avoid inflicting any serious or lasting physical or psychological harm. Medical screening, monitoring, and ongoing evaluations further lower such risk. Significantly, you have informed us that the CIA believes that this program is largely responsible for preventing a subsequent attack within the United States. Because the CIA interrogation program is carefully limited to further a vital government interest and designed to avoid unnecessary or serious harm, we conclude that it cannot be said to be constitutionally arbitrary.
The Supreme Court's decisions also suggest that it is appropriate to consider whether, in light of "traditional executive behavior, of contemporary practice, and the standards of blame generally applied to them," use of the techniques in the CIA interrogation program "is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." Id. at 847 n.8. We have not found evidence of traditional executive behavior or contemporary practice either condemning or condoning an interrogation program carefully limited to further a vital government interest and designed to avoid unnecessary or serious harm. We recognize, however, that use of coercive interrogation techniques in other contexts -- in different settings, for other purposes, or absent the CIA's safeguards -- might be thought to "shock the conscience." Cf., e.g., Rochin v. California, 342 U.S. 165, 172 (1952) (finding that pumping the stomach of a criminal defendant to obtain evidence "shocks the conscience"); U.S. Army Field Manual 34-52: Intelligence Interrogation (1992) ("Field Manual 34-52") (detailing guidelines for interrogations in the context of traditional warfare); Department of State, Country Reports on Human Rights Practices (describing human-rights abuses condemned by the United States). We believe, however, that each of these other contexts, which we describe more fully below, differs critically from the CIA interrogation program in ways that would be unreasonable to ignore in examining whether the conduct involved in the CIA program "shock[s] the contemporary conscience." Ordinary criminal investigations within the United States, for example, involve fundamentally different government interests and implicate specific constitutional guarantees, such as the privilege against self-incrimination, that are not at issue here. Furthermore, the CIA interrogation techniques have all been adapted from military Survival, Evasion, Resistance, Escape ("SERE") training. Although there are obvious differences between training exercises and actual interrogation, the fact that the United States uses similar techniques on its own troops for training purposes strongly suggests that these techniques are not categorically beyond the pale.
Given that the CIA interrogation program is carefully limited to further the Government's paramount interest in protecting the Nation while avoiding unnecessary or serious harm, we conclude that the interrogation program cannot "be said to shock the contemporary conscience" when considered in light of "traditional executive behavior" and "contemporary practice." Lewis, 523 U.S. at 847 n.8.
I.
[Big delete]
Elsewhere, we have described the CIA interrogation program in great detail. See Memorandum for John A. Rizzo, Senior 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 at 4-15, 28-45 (May 10, 2005) ("Techniques"); 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 the Combined Use of Certain Techniques in the Interrogation of High Value al Qaeda Detainees at 3-9 (May 10, 2005) ("Combined Use"). The descriptions of the techniques, including all limitations and safeguards applicable to their use, set forth in Techniques and Combined Use are incorporated by reference herein, and we assume familiarity with those descriptions. Here, we highlight those aspects of the program that are most important to the question under consideration. Where appropriate, throughout this opinion we also provide more detailed background information regarding specific high value detainees who are representative of the individuals on whom the techniques might be used. [3]
A.
Under the CIA's guidelines, several conditions must be satisfied before the CIA considers employing enhanced techniques in the interrogation of any detainees. The CIA must, based on available intelligence, conclude that the detainee is an important and dangerous member of an al Qaeda-affiliated group. The CIA must then determine, at the Headquarters level and on a case-by-case basis with input from the on-scene interrogation team, that enhanced interrogation methods are needed in a particular interrogation. Finally, the enhanced techniques, which have been designed and implemented to minimize the potential for serious or unnecessary harm to the detainees, may be used only if there are no medical or psychological contraindications.
1.
[Big delete] the CIA uses enhanced interrogation techniques only if the CIA's Counterterrorist Center ("CTC") determines an individual to be a "High Value Detainee," which the CIA defines as:
Fax for Daniel Levin, Acting Assistant Attorney General, Office of Legal Counsel, from [delete], Assistant General Counsel, Central Intelligence Agency, at 4 (Jan. 4, 2005) (January 4 [delete] Fax"). The CIA, therefore, must have reason to believe that the detainee is a senior member (rather than a mere "foot soldier") of al Qaeda or an associated terrorist organization, who likely has actionable intelligence concerning terrorist threats, and who poses a significant threat to United States interests.
The "waterboard," which is the most intense of the CIA interrogation techniques, is subject to additional limits. It may be used on a High Value Detainee only if the CIA has "credible intelligence that a terrorist attack is imminent"; "substantial and credible indicators that the subject has actionable intelligence that can prevent, disrupt or delay this attack"; and "[o]ther interrogation methods have failed to elicit the information [or] CIA has clear indications that other ... methods are unlikely to elicit this information within the perceived time limit for preventing the attack." Letter from John A. Rizzo, Acting General Counsel, Central Intelligence Agency, to Daniel Levin, Acting Assistant Attorney General, Office of Legal Counsel at 5 (Aug. 2, 2004) ("August 2 Rizzo Letter") (attachment).
To date, the CIA has taken custody of 94 detainees [big delete] and has employed enhanced techniques to varying degrees in the interrogations of 28 of these detainees. We understand that two individuals, [delete] [delete] are representative of the high value detainees on whom enhanced techniques have been, or might be, used. On [delete] the CIA took custody of [delete] whom the CIA believed had actionable intelligence concerning the pre-election threat to the United States. See Letter from [delete], Associate General Counsel, Central Intelligence Agency, to Daniel Levin, Acting Assistant Attorney General, Office of Legal Counsel at 2 (Aug. 25, 1004) ("August 25 [delete] Letter"). [Delete] extensive connections to various al Qaeda leaders, members of the Taliban, and the al-Zarqawi network, and intelligence indicated [delete] arranged a ... meeting between [delete] and [big delete] at which elements of the pre-election threat were discussed." Id. at 2-3; see also Undated CIA Memo, [big delete].
Intelligence indicated that prior to his capture, [delete] "perform[ed] critical facilitation and finance activities for al-Qa'ida," including "transporting people, funds, and documents." Fax for Jack L. Goldsmith, III, Assistant Attorney General, Office of Legal Counsel, from [delete], Assistant General Counsel, Central Intelligence Agency (March 12, 2004). The CIA also suspected [delete] played and active part in planning attacks against United States forces [big delete] had extensive contacts with key members of al Qaeda, including, prior to their captures, Khalid Shayk Muhammad ("KSM") and Abu Zubaydah. See id. [Delete] was captured while on a mission from [delete] to establish contact with al-Zarqawi. See CIA Directorate of Intelligence, U.S. Efforts Grinding Down al-Qa'ida 2 (Feb. 21, 2004).
Consistent with its heightened standard for use of the waterboard, the CIA has used this technique in the interrogations of only three detainees to date (KSM, Zubaydah, and Abd Al-Rahim Al-Nashiri) and has not used it since the March 2003 interrogation of KSM. See Letter from Scott W. Muller, General Counsel, Central Intelligence Agency, to Jack L. Goldsmith III, Assistant Attorney General, Office of Legal Counsel at 1 (June 14, 2004).
We understand that Abu Zubaydah and KSM are representative of the types of detainees on whom the waterboard has been used, or might be, used. Prior to his capture, Zubaydah was "one of Usama Bin Laden's key lieutenants." CIA, Zayn al-Abidin Muhammad Husayn ABU ZUBAYDAH at 1 (Jan. 7 2002) ("Zubaydah Biography"). Indeed, Zubaydah was al Qaeda's third or fourth highest ranking member and had been involved "in every major terrorist operation carried out by al Qaeda." 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 7 (Aug. 1 2003) ("Interrogation Memorandum"); Zubaydah Biography (noting Zubaydah's involvement in the September 11 attacks). Upon his capture on March 27, 2002, Zubaydah became the most senior member of al Qaeda in United States custody. See IG Report at 12.
KSM, "a mastermind" of the September 11, 2001, attacks, was regarded as "one of al-Qa'ida's most dangerous and resourceful operatives" (CIA "Khalid Shayk Muhammad (Nov. 1, 2002) ("CIA KSM Biography"). [Big delete] Prior to his capture, the CIA considered KSM to be one of al Qaeda's "most important operational leaders ... based on his close relationship with Usama Bin Laden and his reputation among the al-Qa'ida rank and file." Id. After the September 11 attacks, KSM assumed "the role of operations chief for al-Qa'ida around the world." CIA Directorate of Intelligence, Khalid Shayk Muhammad, Preeminent Source on A-Qa'ida 7 (July 13, 2004) ("Preeminent Source"). KSM also planned additional attacks within the United States both before and after September 11. See id. at 7-8; see also The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States 150 (official gov't ed. 2004) ("9/11 Commission Report"). [4]
2.
Even with regard to detainees who satisfy these threshold requirements, enhanced techniques are considered only if the on-scene interrogation team determines that the detainee is withholding or manipulating information. In order to make this assessment, interrogators conduct an initial interview "in a relatively benign environment." Fax for Daniel Levin, Acting Assistant Attorney General, Office of Legal Counsel, from [delete] Associate General Counsel, Central Intelligence Agency, Re: Background Paper on CIA's Combined Use of Interrogation Techniques at 3 (Dec. 30, 2004) ("Background Paper"). At this stage, the detainee is "normally clothed but seated and shackled for security purposed," and the interrogators take "an open, non-threatening approach." Id. In order to be judged participatory, however, a high value detainee "would have to willingly provide information on actionable threats and location information on High-Value Targets at large -- not lower level information." Id. If the detainee fails to meet this "very high" standard, the interrogation team develops an interrogation plan, which generally calls for the use of enhanced techniques only as necessary and in escalating fashion. See id. at 3-4; Techniques at 5.
Any interrogation plan that involves techniques must be reviewed and approved by "the Director, DCI Counterterrorist Center, with the concurrence of the Chief, CTC Legal Group." George J. Tenet, Director of Central Intelligence Guidelines on Interrogations Conducted Pursuant to the [big delete] at 3 (Jan. 28, 2003) ("Interrogation Guidelines"). [5] Each approval lasts for a period of at most 30 days, see id. at 1-2, although enhanced interrogation techniques are generally not used for more than seven days, see Background Paper at 17.
For example, after medical and psychological examinations found no contraindications, [delete]'s interrogation team sought and obtained approval to use the following techniques: attention grasp, walling, facial hold, facial slap, wall standing, stress positions, and sleep deprivation. See August 25 [delete] Letter at 2. The interrogation team "carefully analyzed Gul's responsiveness to different areas of inquiry" during this time and noted that his resistance increased as questioning moved to his "knowledge of operational terrorist activities." Id. at 3. [Delete] feigned memory problems (which CIA psychologists rules out through intelligence and memory tests) in order to avoid answering questions. Id.
At that point, the interrogation team believed [delete] "maintains a tough, Mujahidin fighter mentality and has conditioned himself for a physical interrogation." Id. The team therefore concluded that "more subtle interrogation measures designed more to weaken [delete] physical ability and mental desire to resist interrogation over the long run are likely to be more effective." Id. For these reasons, the team sought authorization to use dietary manipulation, nudity, water dousing, and abdominal slap. Id. at 4-5. In the team's view, adding these techniques would be especially helpful [delete] because he appeared to have a particular weakness for food and also seemed especially modest. See id. at 4.
The CIA used the waterboard extensively in the interrogations of KSM and Zubaydah but did so only after it became clear that standard interrogation techniques were not working. Interrogators used enhanced techniques in the interrogation of al-Nashiri with notable results as early as the first day. See IG Report at 35-36. Twelve days into the interrogation, the CIA subjected al-Nashiri to one session of the waterboard during which water was applied two times. See id. at 36.
3.
Medical and psychological professionals from the CIA's Office of Medical Services ("OMS") carefully evaluate detainees before any enhanced technique is authorized in order to ensure that the detainee "is not likely to suffer any severe physical or mental pain or suffering as a result of interrogation." Techniques at 4; see OMS Guidelines on Medical and Psychological Support to Detainee Rendition, Interrogation and Detention at 9 (Dec. 2004) ("OMS Guidelines"). In addition, OMS officials continuously monitor the detainee's condition throughout any interrogation using enhanced techniques, and the interrogation team will stop the use of particular techniques or the interrogation altogether if the detainee's medical or psychological condition indicates that the detainee might suffer significant physical or mental harm. See Techniques at 5-6. OMS has, in fact, prohibited the use of certain techniques in the interrogations of certain detainees. See id. at 5. Thus, no technique is used in the interrogation of any detainee -- no matter now valuable the information the CIA believes the detainee has -- if the medical and psychological evaluations or ongoing monitoring suggest that the detainee is likely to suffer serious harm. Careful records are kept of each interrogation, which ensures accountability and allows for ongoing evaluation of the efficacy of each technique and its potential for any unintended or inappropriate results. See id.
B.
Your office has informed us that the CIA believes that "the intelligence acquired from these interrogations has been a key reason why al-Qa'ida has failed to launched a spectacular attack in the West since 11 September 2001." Memorandum for Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from [big delete] OCI Counterterrorist Center, Re: effectiveness of the CIA Counterintelligence Interrogation Techniques at 2 (Mar. 2, 2005) ("Effectiveness Memo"). In particular, the CIA believes that it would have been unable to obtain critical information from numerous detainees, including KSM and Abu Zubaydah without these enhanced techniques. Both KSM and Zubaydah had "expressed their belief that the general U.S. population was 'weak," lacked resilience, and would be unable to 'do what was necessary' to prevent the terrorists from succeeding in their goals." Id. at 1. Indeed, before the CIA used enhanced techniques in its interrogation of KSM, KSM resisted giving any answers to questions about future attacks, simply noting, "Soon, you will know." Id. We understand that the use of enhanced techniques in the interrogations of KSM, Zubaydah, and others, by contrast, has yielded critical information. See IG Report at 86, 90-91 (describing increase in intelligence reports attributable to use of enhanced techniques). As Zubaydah himself explained with respect to enhanced techniques, "brothers who are captured and interrogated are permitted by Allah to provide information when they believe they have reached the limit of their ability to withhold it in the face of psychological and physical hardships." Effectiveness Memo at 2. And, indeed, we understand that since the use of enhanced techniques, "KSM and Abu Zubaydah have been pivotal sources because of their ability and willingness to provide their analysis and speculation about the capabilities, methodologies, and mindsets of terrorists." Preeminent Source at 4.
Nevertheless, current CIA threat reporting indicates that, despite substantial setbacks over the last year, al Qaeda continues to pose a grave threat to the United States and interests. See CIA [big delete]. You have informed us that the CIA believes that enhanced interrogation techniques remain essential to obtaining vital intelligence necessary to detect and disrupt such emerging threats.
In understanding the effectiveness of the interrogation program, it is important to keep two related points in mind. First the total value of the program cannot be appreciated solely by focusing on individual pieces of information. According to the CIA Inspector General:
IG Report at 86. As illustrated below, we understand that even interrogations of comparatively lower-tier high value detainees supply information that the CIA uses to validate and assess information elicited in other interrogations and through other methods. Intelligence acquired from the interrogation program also enhances other intelligence methods and has helped to build the CIA's overall understanding al Qaeda and its affiliates. Second, it is difficult to quantify with confidence and precision the effectiveness of the program. As the IG Report notes, it is difficult to determine conclusively whether interrogations have provided information critical to interdicting specific imminent attacks. See id. at 88. And, because the CIA has used enhanced techniques sparingly, "there is limited data on which to assess their individual effectiveness." Id. at 89. As discussed below, however, we understand that interrogations have led to specific, actionable intelligence as well as a general increase in the amount of intelligence regarding al Qaeda and its affiliates. See id. at 85-91.
With these caveats, we turn to specific examples that you have provided to us. You have informed us that the interrogation of KSM -- once enhanced techniques were employed -- led to the discovery of a KSM plot, the "Second Wave," "to use East Asian operatives to crash a hijacked airliner into" a building in Los Angeles. Effectiveness Memo at 3. You have informed us that information obtained from KSM also led to the capture of Riduan bin Isomuddin, better known as Hambali, and the discovery of the Guraba Cell, a 17-member Jemaah Islamiyah cell tasked with executing the "Second Wave." See id. at 3-4; CIA Directorate of Intelligence, Al-Qa'ida's Ties to Other key Terror Groups: Terrorists Links in a Chain 2 (Aug. 28, 2003). More specifically, we understand that KSM admitted that he had tasked Majid Khan with delivering a large sum of money to an al Qaeda associate. See Fax from [big delete] DCI Counterterrorist Center, Briefing Note on the Value of Detainee Reporting at 1 (Apr. 15, 2005) ("Briefing Notes"). Khan subsequently identified the associate (Zubair), who was then captured. Zubair, in turn, provided information that led to the arrest of Hambali. See id. The information acquired from theses captures allowed CIA interrogators to pose more specific questions to KSM, which led the CIA to Hambali's brother, al-Hadi. Using information obtained from multiple sources, al-Hadi was captured, and he subsequently identified the Guraba cell. See id. at 1-2. With the aid of this additional information, interrogations of Hambali confirmed much of what was learned from KSM. [6]
Interrogations of Zubaydah -- again, once enhanced techniques were employed -- furnished detailed information regarding al Qaeda's "organizational structure, key operatives, and modus operandi" and identified KSM as the mastermind of the September 11 attacks. See Briefing Notes at 4. You have informed us that Zubaydah also "provided significant information on two operatives, [including] Jose Padilla[,] who planned to build and detonate a 'dirty bomb' in the Washington DC area." Effectiveness Memo at 4. Zubaydah and KSM have also supplied important information about al-Zarqawi and his network. See Fax for Jack L. Goldsmith III, Assistant Attorney General, Office of Legal Counsel, from [delete] Office of General Counsel, CIA, [very big delete].
More generally, the CIA has informed us that, since March 2002, the intelligence derived from CIA detainees has resulted in more than 6,000 intelligence reports and, in 2004, accounted for approximately half of CTC's reporting on al Qaeda. See Briefing Notes at 1; see also IG Report at 86 (noting that from September 11, 2001, through April 2003, the CIA "produced over 3,000 intelligence reports from" a few high value detainees). You have informed us that the substantial majority of this intelligence has come from detainees subjected to enhanced interrogation techniques. In addition, the CIA advises us that the program has been virtually indispensable to the task of deriving actionable intelligence from other forms of collection. [Big delete]
C.
There are three categories of enhanced interrogation techniques: conditioning techniques, corrective techniques, and coercive techniques. See Background Paper at 4. As noted above, each of the specific enhanced techniques has been adapted from SERE-training, where similar techniques have been used, in some form, for years on United States military personnel. See Techniques at 6; IG Report at 13-14.
1. Conditioning techniques
Conditioning techniques are used to put the detainee in a "baseline" state, and to "demonstrate to the (detainee] that he has no control over basic human needs." Background Paper at 4. This "creates ... a mindset in which [the detainee] learns to perceive and value his personal welfare, comfort, and immediate needs more than the information he is protecting." Id. Conditioning techniques are not designed to bring about immediate results. Rather, these techniques are useful in view of their "cumulative effect..., used over time and in combination with other interrogation techniques and intelligence exploitation methods" Id. at 5. The specific conditioning techniques are nudity, dietary manipulation, and sleep deprivation.
Nudity is used to induce psychological discomfort and because it allows interrogators to reward detainees instantly with clothing for cooperation. See Techniques at 7. Although this technique might cause embarrassment, it does not involve any sexual abuse or threats of sexual abuse. See id. at 7-8. Because ambient air temperature are kept above 68°F, the techniques is at most mildly physically uncomfortable and poses no threat to the detainee's health. Id. at 7.
Dietary manipulation involved substituting a bland, commercial liquid meal for a detainee's normal diet. We understand that its use can increase the effectiveness of other techniques, such as sleep deprivation. As a guideline, the CIA uses a formula for caloric intake that depends on a detainee's body weight and expected level of activity and that ensures that caloric intake will always be set at or above 1,000 kcal/day. See id. at 7 & n.10. [8] By comparison, commercial weight-loss programs used within the United States not uncommonly limit intake to 1000 Kcal/day regardless of body weight. Detainees are monitored at all times to ensure that they do not lose more than 10% of their starting body weight. See id. at 7. The CIA also sets a minimum fluid intake, but a detainee undergoing dietary manipulation may drink as much water as he pleases. See id.
Sleep deprivation involves subjecting a detainee to an extended period of sleeplessness. Interrogators employ sleep deprivation in order to weaken a detainee's resistance. Although up to 180 hours may be authorized, the CIA has in fact subjected only three detainees to more than 96 hours of sleep deprivation. Generally, a detainee undergoing this technique is shackled in a standing position with his hands in front of his body, which prevents him from failing asleep but also allows him to move around within a two- to three-foot diameter. The detainee's hands are generally positioned below his chin, although they may not be raised above the head for a period not to exceed two hours. See id. at 11-13 (explaining the procedures at length). As we have previously noted, sleep deprivation itself generally has few negative effects (beyond temporary cognitive impairment and transient hallucinations), though some detainees might experience transient "unpleasant physical sensations from prolonged fatigue, including such symptoms as impairment to coordinated body movement, difficulty with speech, nausea, and blurred vision." Id. at 37; see also Id. 37-38. Subjects deprived of sleep in scientific studies for longer than the 180-hour limit imposed by the CIA generally return to normal neurological functioning with as little as one night of normal sleep. See id. at 40. In light of the ongoing and careful medical monitoring undertaken by OMS and the authority and obligation of all members of the interrogation team, and of OMS personnel and other facility staff, to stop the procedure if necessary, this technique is not to be expected to result in any detainee experiencing extreme physical distress. See id. at 38-39. [9]
With respect to the shackling, the procedures in place (which include constant monitoring by detention personnel, via closed-circuit television, and intervention if necessary) minimize the risk that a detainee will hang by his wrists or otherwise suffer injury from the shackling. See id. at 11. Indeed, these procedures appear to have been effective, as no detainee has suffered any lasting harm from the shackling. See id.
Because releasing a detainee from the shackles would present a security problem and would interfere with the effectiveness of the technique, a detainee undergoing sleep deprivation frequently wears and adult diaper. See Letter from [delete] Associate General Counsel, Central Intelligence Agency, to Dan Levin, Acting Assistant Attorney General, Office of Legal Counsel at 4 (Oct, 12, 2004) ("October 12 [delete] Letter"). Diapers are checked and changed as needed so that no detainee would be allowed to remain in a soiled diaper, and the detainee's skin condition is monitored. See Techniques at 12. You have informed us that diapers are used solely for sanitary and health reasons and not in order to humiliate the detainee.
2. Corrective techniques
Corrective techniques entail some degree of physical interaction with the detainee and are used "to correct, startle, or to achieve another enabling objective with the detainee." Background Paper at 5. These techniques "condition a detainee to pay attention to the interrogator's questions and ... dislodge expectations that the detainee will not be touched. Techniques at 9. This category comprises the following techniques: insult (facial) slap, abdominal slap, facial hold, and attention grasp. See Background Paper at 5; see also Techniques at 8-9 (describing these techniques). [10] In the facial hold technique, for example, the interrogator uses his hands to immobilize the detainee's head. The interrogator's fingers are kept closely together and away from the detainee's eyes. See Pre-Academic Laboratory (PREAL) Operating Instructions at 19 ("PREAL Manual"). The Technique instills fear and apprehension with minimal physical force. Indeed, each of these techniques entails only mild uses of force and does not cause any significant pain or any lasting harm. See Background Paper at 5-7.
3. Coercive techniques
Coercive techniques "place the detainee in more physical and psychological stress" than the other techniques and are generally "considered to be more effective tools in persuading a resistant [detainee] to participate with CIA interrogators." Background Paper at 7. These techniques are typically not used simultaneously. The Background Paper lists walling, water dousing, stress positions, wall standing, and cramped confinement in this category. We will also treat the waterboard as a coercive technique.
Walling is performed by placing the detainee against what seems to be a normal wall but is in fact a flexible false wall. See Techniques at 8. The interrogator pulls the detainee towards him and then quickly slams the detainee against the false wall. The false wall is designed, and a c-collar or similar device is used, to help avoid whiplash or similar injury. See id. The technique is designed to create a loud sound and shock the detainee without causing significant pain. The CIA regards walling as "one of the most effective interrogation techniques because it wears down the [detainee] physically, heightens uncertainty in the detainee about what the interrogator may do to him, and creates a sense of dread when the [detainee] know he is about to be walled again." Background Paper at 7. 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. At no time, however, is the technique employed in such a way that could cause severe physical pain. See Techniques at 32 n.38. [11]
In the water dousing technique, potable cold water is poured on the detainee either from a container or a hose without a nozzle. Ambient air temperatures are kept above 64°F. The maximum permissible duration of water exposure depends on the water temperature, which may be no lower than 41°F and is usually no lower than 50°F. See id. at 10. Maximum exposure durations have been "set at two-thirds the time at which, based on extensive medical literature and experience, hypothermia could be expected to develop in healthy individuals who are submerged in water of the same temperature" in order to provide adequate safety margins against hypothermia. Id. This technique can easily be used in combination with other techniques and "is intended to weaken the detainee's resistance and persuade him to cooperate with interrogators." Id. at 9.
Stress positions and wall standing are used to induce muscle fatigue and the attendant discomfort. See Techniques at 9 (describing techniques); see also PREAL Manual at 20 (explaining that stress positions are used "to create a distracting pressure" and "to humiliate or insult"). The use of these techniques is "usually self-limiting in that temporary muscle fatigue usually leads to the [detainee's] being unable to maintain the stress position after a period of time." Background Paper at 8. We understand that these techniques are used only to induce temporary muscle fatigue; neither of these techniques is designed or expected to cause severe physical pain. See Techniques at 33-34.
Cramped confinement involves placing the detainee in an uncomfortably small container. Such confinement may last up to eight hours in a relatively large container or up to two hours in a smaller container. See Background Paper at 8; Techniques at 9. The technique "accelerate[s] the physical and psychological stresses of captivity." PREAL Manual at 22. In OMS's view, however, cramped confinement "ha[s] not proved particularly effective" because is provides "a safehaven offering respite from interrogation." OMS Guidelines at 16.
The waterboard is generally considered to be "the most traumatic of the enhanced interrogation techniques," id. at 17, a conclusion with which we have readily agreed, see Techniques at 41. In this technique, the detainee is placed face-up on a gurney with his head inclined downward. A cloth is placed over his face on which cold water is then poured for periods of at most 40 seconds. This creates a barrier through which it is either difficult of impossible to breathe. The technique thereby induce[s] a sensation of drowning." Id. at 13. The waterboard may be authorized for, at most, one 30-day period, during which the technique can actually be applied on no more than five days. See id. at 14 (describing, in detail, these and additional limitations); see also Letter from [delete] Associate General Counsel, Central Intelligence Agency, to Dan Levin, Acting Assistant Attorney General, Office of Legal Counsel at 1 (Aug. 19, 2004) ("August 19 [delete] Letter"). Further, there can be no more than two sessions in any 24-hour period. Each session -- the time during which the detainee is strapped to the waterboard -- lasts no more than two hours. There may be at most six applications of water lasting 10 seconds or longer during any session, and water may be applied for a total of no more than 12 minutes during any 24-hour period. See Techniques at 14.
As we have explained, "these limitations have been established with extensive input from OMS, based on experience to date with this technique and OMS's professional judgment that the health risks associated with the use of the waterboard on a healthy individual subject to these limitations would be 'medically acceptable.'" Id. at 14 (citing OMS Guidelines at 18-19). In addition, although the waterboard induces fear and panic, it is not painful. See id. at 13.
MEMO __
U.S. Department of Justice
Office of Legal Counsel
Washington, D.C. 20530
Office of the Principal Deputy Assistant Attorney General
May 30, 2005
MEMORANDUM FOR JOHN A. RIZZO
SENIOR DEPUTY GENERAL COUNSEL, CENTRAL INTELLIGENCE AGENCY
Re: Application of United States Obligations Under Article 16 of the Convention Against Torture to Certain Techniques that May Be Used in the Interrogation of High Value al Qaeda Detainees
You have asked us to address whether certain "enhanced interrogation techniques" employed by the Central Intelligence Agency ("CIA") in the interrogation of high value al Qaeda detainees are consistent with United States obligations under 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) ("CAT"). We concluded that use of these techniques, subject to the CIA's careful screening criteria and limitations and its medical safeguards, is consistent with United States obligations under Article 16. [1]
By its terms, Article 16 is limited to conduct within "territory under [United States] jurisdiction." We conclude that territory under United States jurisdiction includes, at most, areas over which the United States exercises at least de facto authority as the government. Based on CIA assurances, we understand that the interrogations do not take place in any such areas. We therefore conclude that Article 16 in inapplicable to the CIA's interrogation practices and that those practices thus cannot violate Article 16. Further. the United States undertook its obligations under Article 16 subject to a Senate reservation, which, as relevant here, explicitly limits those obligations to the "cruel, unusual and inhumane treatment ... prohibited by the Fifth Amendment ... to the Constitution of the United States." [2] There is a strong argument that through this reservation the Senate intended to limit the scope of United States obligations under Article 16 to those imposed by the relevant provision of the Constitution. As construed by the courts, the Fifth Amendment does not apply to aliens outside the United States. The CIA has assured us that the interrogation techniques are not used within the United States or against United States persons, including both United States citizens and lawful permanent residents. Because the geographic limitation on the face of Article 16 renders it inapplicable to the CIA interrogation program in any event, we need not decide in the memorandum the precise effect, if any, of the Senate reservation on the geographic reach of United States obligations under Article 16. For these reasons, we conclude in Part II that the interrogation techniques where and as used by the CIA are not subject to, and therefore do not violate, Article 16.
Notwithstanding these conclusions, you have also asked whether the interrogation techniques at issue would violate the substantive standards applicable to the United States under Article 16 if, contrary to our conclusion in Part II, those standards did extend to the CIA interrogation program. As detailed below in Part III, the relevant constraint here, assuming Article 16 did apply, would be the Fifth Amendment's prohibition of executive conduct that "shocks the conscience." The Supreme Court has emphasized that whether conduct "shocks the conscience" is a highly context-specific and fact-dependent question. The Court, however, has not set forth with precision a specific test for ascertaining whether conduct can be said to "shock the conscience" and has disclaimed the ability to do so. Moreover, there are few Supreme Court cases addressing whether conduct "shocks the conscience," and the few cases there are have all arisen in very different contexts from that which we consider here.
For these reasons, we cannot set forth or apply a precise test for ascertaining whether conduct can be said to "shock the conscience." Nevertheless, the Court's "shocks the conscience" cases do provide some signposts that can guide our inquiry. In particular, on balance the cases are best read to require a determination whether the conduct is "'arbitrary in the constitutional sense,'" County of Sacrament to v. Lewis, 523 U.S. 833, 846 (1998) (citation omitted); that is, whether it involves the "exercise of power without any reasonable justification in the service of a legitimate governmental objective," id. "[C]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." Id. at 849. Far from being constitutionally arbitrary, the interrogation techniques at issue here are employed by the CIA only as reasonably deemed necessary to protect against grave threats to United States interests, a determination that is made at CIA Headquarters, with input from the on-scene interrogation team, pursuant to careful screening procedures that ensure that the techniques will be used as little as possible on as few detainees as possible. Moreover, the techniques have been carefully designed to minimize the risk of suffering or injury and to avoid inflicting any serious or lasting physical or psychological harm. Medical screening, monitoring, and ongoing evaluations further lower such risk. Significantly, you have informed us that the CIA believes that this program is largely responsible for preventing a subsequent attack within the United States. Because the CIA interrogation program is carefully limited to further a vital government interest and designed to avoid unnecessary or serious harm, we conclude that it cannot be said to be constitutionally arbitrary.
The Supreme Court's decisions also suggest that it is appropriate to consider whether, in light of "traditional executive behavior, of contemporary practice, and the standards of blame generally applied to them," use of the techniques in the CIA interrogation program "is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." Id. at 847 n.8. We have not found evidence of traditional executive behavior or contemporary practice either condemning or condoning an interrogation program carefully limited to further a vital government interest and designed to avoid unnecessary or serious harm. We recognize, however, that use of coercive interrogation techniques in other contexts -- in different settings, for other purposes, or absent the CIA's safeguards -- might be thought to "shock the conscience." Cf., e.g., Rochin v. California, 342 U.S. 165, 172 (1952) (finding that pumping the stomach of a criminal defendant to obtain evidence "shocks the conscience"); U.S. Army Field Manual 34-52: Intelligence Interrogation (1992) ("Field Manual 34-52") (detailing guidelines for interrogations in the context of traditional warfare); Department of State, Country Reports on Human Rights Practices (describing human-rights abuses condemned by the United States). We believe, however, that each of these other contexts, which we describe more fully below, differs critically from the CIA interrogation program in ways that would be unreasonable to ignore in examining whether the conduct involved in the CIA program "shock[s] the contemporary conscience." Ordinary criminal investigations within the United States, for example, involve fundamentally different government interests and implicate specific constitutional guarantees, such as the privilege against self-incrimination, that are not at issue here. Furthermore, the CIA interrogation techniques have all been adapted from military Survival, Evasion, Resistance, Escape ("SERE") training. Although there are obvious differences between training exercises and actual interrogation, the fact that the United States uses similar techniques on its own troops for training purposes strongly suggests that these techniques are not categorically beyond the pale.
Given that the CIA interrogation program is carefully limited to further the Government's paramount interest in protecting the Nation while avoiding unnecessary or serious harm, we conclude that the interrogation program cannot "be said to shock the contemporary conscience" when considered in light of "traditional executive behavior" and "contemporary practice." Lewis, 523 U.S. at 847 n.8.
I.
[Big delete]
Elsewhere, we have described the CIA interrogation program in great detail. See Memorandum for John A. Rizzo, Senior 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 at 4-15, 28-45 (May 10, 2005) ("Techniques"); 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 the Combined Use of Certain Techniques in the Interrogation of High Value al Qaeda Detainees at 3-9 (May 10, 2005) ("Combined Use"). The descriptions of the techniques, including all limitations and safeguards applicable to their use, set forth in Techniques and Combined Use are incorporated by reference herein, and we assume familiarity with those descriptions. Here, we highlight those aspects of the program that are most important to the question under consideration. Where appropriate, throughout this opinion we also provide more detailed background information regarding specific high value detainees who are representative of the individuals on whom the techniques might be used. [3]
A.
Under the CIA's guidelines, several conditions must be satisfied before the CIA considers employing enhanced techniques in the interrogation of any detainees. The CIA must, based on available intelligence, conclude that the detainee is an important and dangerous member of an al Qaeda-affiliated group. The CIA must then determine, at the Headquarters level and on a case-by-case basis with input from the on-scene interrogation team, that enhanced interrogation methods are needed in a particular interrogation. Finally, the enhanced techniques, which have been designed and implemented to minimize the potential for serious or unnecessary harm to the detainees, may be used only if there are no medical or psychological contraindications.
1.
[Big delete] the CIA uses enhanced interrogation techniques only if the CIA's Counterterrorist Center ("CTC") determines an individual to be a "High Value Detainee," which the CIA defines as:
a detainee who, until time of capture, we have reason to believe: (1) is a senior member al-Qai'da or an al-Qai'da associated terrorist group (Jemaah Islamiyyah, Egyptian Islamic Jihad, al-Zarqawi Group, etc.); (2) has knowledge of imminent terrorist threats against the USA, its military forces, its citizens and organization, or its allies; or that has/had direct involvement in planning and preparing terrorist actions against the USA or its allies, or assisting the al-Qai'da leadership in planning and preparing such actions; and (3) if released, constitutes a clear and continuing threat to the USA or its allies.
Fax for Daniel Levin, Acting Assistant Attorney General, Office of Legal Counsel, from [delete], Assistant General Counsel, Central Intelligence Agency, at 4 (Jan. 4, 2005) (January 4 [delete] Fax"). The CIA, therefore, must have reason to believe that the detainee is a senior member (rather than a mere "foot soldier") of al Qaeda or an associated terrorist organization, who likely has actionable intelligence concerning terrorist threats, and who poses a significant threat to United States interests.
The "waterboard," which is the most intense of the CIA interrogation techniques, is subject to additional limits. It may be used on a High Value Detainee only if the CIA has "credible intelligence that a terrorist attack is imminent"; "substantial and credible indicators that the subject has actionable intelligence that can prevent, disrupt or delay this attack"; and "[o]ther interrogation methods have failed to elicit the information [or] CIA has clear indications that other ... methods are unlikely to elicit this information within the perceived time limit for preventing the attack." Letter from John A. Rizzo, Acting General Counsel, Central Intelligence Agency, to Daniel Levin, Acting Assistant Attorney General, Office of Legal Counsel at 5 (Aug. 2, 2004) ("August 2 Rizzo Letter") (attachment).
To date, the CIA has taken custody of 94 detainees [big delete] and has employed enhanced techniques to varying degrees in the interrogations of 28 of these detainees. We understand that two individuals, [delete] [delete] are representative of the high value detainees on whom enhanced techniques have been, or might be, used. On [delete] the CIA took custody of [delete] whom the CIA believed had actionable intelligence concerning the pre-election threat to the United States. See Letter from [delete], Associate General Counsel, Central Intelligence Agency, to Daniel Levin, Acting Assistant Attorney General, Office of Legal Counsel at 2 (Aug. 25, 1004) ("August 25 [delete] Letter"). [Delete] extensive connections to various al Qaeda leaders, members of the Taliban, and the al-Zarqawi network, and intelligence indicated [delete] arranged a ... meeting between [delete] and [big delete] at which elements of the pre-election threat were discussed." Id. at 2-3; see also Undated CIA Memo, [big delete].
Intelligence indicated that prior to his capture, [delete] "perform[ed] critical facilitation and finance activities for al-Qa'ida," including "transporting people, funds, and documents." Fax for Jack L. Goldsmith, III, Assistant Attorney General, Office of Legal Counsel, from [delete], Assistant General Counsel, Central Intelligence Agency (March 12, 2004). The CIA also suspected [delete] played and active part in planning attacks against United States forces [big delete] had extensive contacts with key members of al Qaeda, including, prior to their captures, Khalid Shayk Muhammad ("KSM") and Abu Zubaydah. See id. [Delete] was captured while on a mission from [delete] to establish contact with al-Zarqawi. See CIA Directorate of Intelligence, U.S. Efforts Grinding Down al-Qa'ida 2 (Feb. 21, 2004).
Consistent with its heightened standard for use of the waterboard, the CIA has used this technique in the interrogations of only three detainees to date (KSM, Zubaydah, and Abd Al-Rahim Al-Nashiri) and has not used it since the March 2003 interrogation of KSM. See Letter from Scott W. Muller, General Counsel, Central Intelligence Agency, to Jack L. Goldsmith III, Assistant Attorney General, Office of Legal Counsel at 1 (June 14, 2004).
We understand that Abu Zubaydah and KSM are representative of the types of detainees on whom the waterboard has been used, or might be, used. Prior to his capture, Zubaydah was "one of Usama Bin Laden's key lieutenants." CIA, Zayn al-Abidin Muhammad Husayn ABU ZUBAYDAH at 1 (Jan. 7 2002) ("Zubaydah Biography"). Indeed, Zubaydah was al Qaeda's third or fourth highest ranking member and had been involved "in every major terrorist operation carried out by al Qaeda." 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 7 (Aug. 1 2003) ("Interrogation Memorandum"); Zubaydah Biography (noting Zubaydah's involvement in the September 11 attacks). Upon his capture on March 27, 2002, Zubaydah became the most senior member of al Qaeda in United States custody. See IG Report at 12.
KSM, "a mastermind" of the September 11, 2001, attacks, was regarded as "one of al-Qa'ida's most dangerous and resourceful operatives" (CIA "Khalid Shayk Muhammad (Nov. 1, 2002) ("CIA KSM Biography"). [Big delete] Prior to his capture, the CIA considered KSM to be one of al Qaeda's "most important operational leaders ... based on his close relationship with Usama Bin Laden and his reputation among the al-Qa'ida rank and file." Id. After the September 11 attacks, KSM assumed "the role of operations chief for al-Qa'ida around the world." CIA Directorate of Intelligence, Khalid Shayk Muhammad, Preeminent Source on A-Qa'ida 7 (July 13, 2004) ("Preeminent Source"). KSM also planned additional attacks within the United States both before and after September 11. See id. at 7-8; see also The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States 150 (official gov't ed. 2004) ("9/11 Commission Report"). [4]
2.
Even with regard to detainees who satisfy these threshold requirements, enhanced techniques are considered only if the on-scene interrogation team determines that the detainee is withholding or manipulating information. In order to make this assessment, interrogators conduct an initial interview "in a relatively benign environment." Fax for Daniel Levin, Acting Assistant Attorney General, Office of Legal Counsel, from [delete] Associate General Counsel, Central Intelligence Agency, Re: Background Paper on CIA's Combined Use of Interrogation Techniques at 3 (Dec. 30, 2004) ("Background Paper"). At this stage, the detainee is "normally clothed but seated and shackled for security purposed," and the interrogators take "an open, non-threatening approach." Id. In order to be judged participatory, however, a high value detainee "would have to willingly provide information on actionable threats and location information on High-Value Targets at large -- not lower level information." Id. If the detainee fails to meet this "very high" standard, the interrogation team develops an interrogation plan, which generally calls for the use of enhanced techniques only as necessary and in escalating fashion. See id. at 3-4; Techniques at 5.
Any interrogation plan that involves techniques must be reviewed and approved by "the Director, DCI Counterterrorist Center, with the concurrence of the Chief, CTC Legal Group." George J. Tenet, Director of Central Intelligence Guidelines on Interrogations Conducted Pursuant to the [big delete] at 3 (Jan. 28, 2003) ("Interrogation Guidelines"). [5] Each approval lasts for a period of at most 30 days, see id. at 1-2, although enhanced interrogation techniques are generally not used for more than seven days, see Background Paper at 17.
For example, after medical and psychological examinations found no contraindications, [delete]'s interrogation team sought and obtained approval to use the following techniques: attention grasp, walling, facial hold, facial slap, wall standing, stress positions, and sleep deprivation. See August 25 [delete] Letter at 2. The interrogation team "carefully analyzed Gul's responsiveness to different areas of inquiry" during this time and noted that his resistance increased as questioning moved to his "knowledge of operational terrorist activities." Id. at 3. [Delete] feigned memory problems (which CIA psychologists rules out through intelligence and memory tests) in order to avoid answering questions. Id.
At that point, the interrogation team believed [delete] "maintains a tough, Mujahidin fighter mentality and has conditioned himself for a physical interrogation." Id. The team therefore concluded that "more subtle interrogation measures designed more to weaken [delete] physical ability and mental desire to resist interrogation over the long run are likely to be more effective." Id. For these reasons, the team sought authorization to use dietary manipulation, nudity, water dousing, and abdominal slap. Id. at 4-5. In the team's view, adding these techniques would be especially helpful [delete] because he appeared to have a particular weakness for food and also seemed especially modest. See id. at 4.
The CIA used the waterboard extensively in the interrogations of KSM and Zubaydah but did so only after it became clear that standard interrogation techniques were not working. Interrogators used enhanced techniques in the interrogation of al-Nashiri with notable results as early as the first day. See IG Report at 35-36. Twelve days into the interrogation, the CIA subjected al-Nashiri to one session of the waterboard during which water was applied two times. See id. at 36.
3.
Medical and psychological professionals from the CIA's Office of Medical Services ("OMS") carefully evaluate detainees before any enhanced technique is authorized in order to ensure that the detainee "is not likely to suffer any severe physical or mental pain or suffering as a result of interrogation." Techniques at 4; see OMS Guidelines on Medical and Psychological Support to Detainee Rendition, Interrogation and Detention at 9 (Dec. 2004) ("OMS Guidelines"). In addition, OMS officials continuously monitor the detainee's condition throughout any interrogation using enhanced techniques, and the interrogation team will stop the use of particular techniques or the interrogation altogether if the detainee's medical or psychological condition indicates that the detainee might suffer significant physical or mental harm. See Techniques at 5-6. OMS has, in fact, prohibited the use of certain techniques in the interrogations of certain detainees. See id. at 5. Thus, no technique is used in the interrogation of any detainee -- no matter now valuable the information the CIA believes the detainee has -- if the medical and psychological evaluations or ongoing monitoring suggest that the detainee is likely to suffer serious harm. Careful records are kept of each interrogation, which ensures accountability and allows for ongoing evaluation of the efficacy of each technique and its potential for any unintended or inappropriate results. See id.
B.
Your office has informed us that the CIA believes that "the intelligence acquired from these interrogations has been a key reason why al-Qa'ida has failed to launched a spectacular attack in the West since 11 September 2001." Memorandum for Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from [big delete] OCI Counterterrorist Center, Re: effectiveness of the CIA Counterintelligence Interrogation Techniques at 2 (Mar. 2, 2005) ("Effectiveness Memo"). In particular, the CIA believes that it would have been unable to obtain critical information from numerous detainees, including KSM and Abu Zubaydah without these enhanced techniques. Both KSM and Zubaydah had "expressed their belief that the general U.S. population was 'weak," lacked resilience, and would be unable to 'do what was necessary' to prevent the terrorists from succeeding in their goals." Id. at 1. Indeed, before the CIA used enhanced techniques in its interrogation of KSM, KSM resisted giving any answers to questions about future attacks, simply noting, "Soon, you will know." Id. We understand that the use of enhanced techniques in the interrogations of KSM, Zubaydah, and others, by contrast, has yielded critical information. See IG Report at 86, 90-91 (describing increase in intelligence reports attributable to use of enhanced techniques). As Zubaydah himself explained with respect to enhanced techniques, "brothers who are captured and interrogated are permitted by Allah to provide information when they believe they have reached the limit of their ability to withhold it in the face of psychological and physical hardships." Effectiveness Memo at 2. And, indeed, we understand that since the use of enhanced techniques, "KSM and Abu Zubaydah have been pivotal sources because of their ability and willingness to provide their analysis and speculation about the capabilities, methodologies, and mindsets of terrorists." Preeminent Source at 4.
Nevertheless, current CIA threat reporting indicates that, despite substantial setbacks over the last year, al Qaeda continues to pose a grave threat to the United States and interests. See CIA [big delete]. You have informed us that the CIA believes that enhanced interrogation techniques remain essential to obtaining vital intelligence necessary to detect and disrupt such emerging threats.
In understanding the effectiveness of the interrogation program, it is important to keep two related points in mind. First the total value of the program cannot be appreciated solely by focusing on individual pieces of information. According to the CIA Inspector General:
CTC frequently uses the information from one detainee, as well as other sources, to vet the information of another detainee. Although lower-level detainees provide less information than the high value detainees, information from these detainees has, on many occasions, supplied the information needed to probe the high value detainees further... [T]he triangulation of intelligence provides a fuller knowledge of Al-Qa'ida activities than would be possible from a single detainee.
IG Report at 86. As illustrated below, we understand that even interrogations of comparatively lower-tier high value detainees supply information that the CIA uses to validate and assess information elicited in other interrogations and through other methods. Intelligence acquired from the interrogation program also enhances other intelligence methods and has helped to build the CIA's overall understanding al Qaeda and its affiliates. Second, it is difficult to quantify with confidence and precision the effectiveness of the program. As the IG Report notes, it is difficult to determine conclusively whether interrogations have provided information critical to interdicting specific imminent attacks. See id. at 88. And, because the CIA has used enhanced techniques sparingly, "there is limited data on which to assess their individual effectiveness." Id. at 89. As discussed below, however, we understand that interrogations have led to specific, actionable intelligence as well as a general increase in the amount of intelligence regarding al Qaeda and its affiliates. See id. at 85-91.
With these caveats, we turn to specific examples that you have provided to us. You have informed us that the interrogation of KSM -- once enhanced techniques were employed -- led to the discovery of a KSM plot, the "Second Wave," "to use East Asian operatives to crash a hijacked airliner into" a building in Los Angeles. Effectiveness Memo at 3. You have informed us that information obtained from KSM also led to the capture of Riduan bin Isomuddin, better known as Hambali, and the discovery of the Guraba Cell, a 17-member Jemaah Islamiyah cell tasked with executing the "Second Wave." See id. at 3-4; CIA Directorate of Intelligence, Al-Qa'ida's Ties to Other key Terror Groups: Terrorists Links in a Chain 2 (Aug. 28, 2003). More specifically, we understand that KSM admitted that he had tasked Majid Khan with delivering a large sum of money to an al Qaeda associate. See Fax from [big delete] DCI Counterterrorist Center, Briefing Note on the Value of Detainee Reporting at 1 (Apr. 15, 2005) ("Briefing Notes"). Khan subsequently identified the associate (Zubair), who was then captured. Zubair, in turn, provided information that led to the arrest of Hambali. See id. The information acquired from theses captures allowed CIA interrogators to pose more specific questions to KSM, which led the CIA to Hambali's brother, al-Hadi. Using information obtained from multiple sources, al-Hadi was captured, and he subsequently identified the Guraba cell. See id. at 1-2. With the aid of this additional information, interrogations of Hambali confirmed much of what was learned from KSM. [6]
Interrogations of Zubaydah -- again, once enhanced techniques were employed -- furnished detailed information regarding al Qaeda's "organizational structure, key operatives, and modus operandi" and identified KSM as the mastermind of the September 11 attacks. See Briefing Notes at 4. You have informed us that Zubaydah also "provided significant information on two operatives, [including] Jose Padilla[,] who planned to build and detonate a 'dirty bomb' in the Washington DC area." Effectiveness Memo at 4. Zubaydah and KSM have also supplied important information about al-Zarqawi and his network. See Fax for Jack L. Goldsmith III, Assistant Attorney General, Office of Legal Counsel, from [delete] Office of General Counsel, CIA, [very big delete].
More generally, the CIA has informed us that, since March 2002, the intelligence derived from CIA detainees has resulted in more than 6,000 intelligence reports and, in 2004, accounted for approximately half of CTC's reporting on al Qaeda. See Briefing Notes at 1; see also IG Report at 86 (noting that from September 11, 2001, through April 2003, the CIA "produced over 3,000 intelligence reports from" a few high value detainees). You have informed us that the substantial majority of this intelligence has come from detainees subjected to enhanced interrogation techniques. In addition, the CIA advises us that the program has been virtually indispensable to the task of deriving actionable intelligence from other forms of collection. [Big delete]
C.
There are three categories of enhanced interrogation techniques: conditioning techniques, corrective techniques, and coercive techniques. See Background Paper at 4. As noted above, each of the specific enhanced techniques has been adapted from SERE-training, where similar techniques have been used, in some form, for years on United States military personnel. See Techniques at 6; IG Report at 13-14.
1. Conditioning techniques
Conditioning techniques are used to put the detainee in a "baseline" state, and to "demonstrate to the (detainee] that he has no control over basic human needs." Background Paper at 4. This "creates ... a mindset in which [the detainee] learns to perceive and value his personal welfare, comfort, and immediate needs more than the information he is protecting." Id. Conditioning techniques are not designed to bring about immediate results. Rather, these techniques are useful in view of their "cumulative effect..., used over time and in combination with other interrogation techniques and intelligence exploitation methods" Id. at 5. The specific conditioning techniques are nudity, dietary manipulation, and sleep deprivation.
Nudity is used to induce psychological discomfort and because it allows interrogators to reward detainees instantly with clothing for cooperation. See Techniques at 7. Although this technique might cause embarrassment, it does not involve any sexual abuse or threats of sexual abuse. See id. at 7-8. Because ambient air temperature are kept above 68°F, the techniques is at most mildly physically uncomfortable and poses no threat to the detainee's health. Id. at 7.
Dietary manipulation involved substituting a bland, commercial liquid meal for a detainee's normal diet. We understand that its use can increase the effectiveness of other techniques, such as sleep deprivation. As a guideline, the CIA uses a formula for caloric intake that depends on a detainee's body weight and expected level of activity and that ensures that caloric intake will always be set at or above 1,000 kcal/day. See id. at 7 & n.10. [8] By comparison, commercial weight-loss programs used within the United States not uncommonly limit intake to 1000 Kcal/day regardless of body weight. Detainees are monitored at all times to ensure that they do not lose more than 10% of their starting body weight. See id. at 7. The CIA also sets a minimum fluid intake, but a detainee undergoing dietary manipulation may drink as much water as he pleases. See id.
Sleep deprivation involves subjecting a detainee to an extended period of sleeplessness. Interrogators employ sleep deprivation in order to weaken a detainee's resistance. Although up to 180 hours may be authorized, the CIA has in fact subjected only three detainees to more than 96 hours of sleep deprivation. Generally, a detainee undergoing this technique is shackled in a standing position with his hands in front of his body, which prevents him from failing asleep but also allows him to move around within a two- to three-foot diameter. The detainee's hands are generally positioned below his chin, although they may not be raised above the head for a period not to exceed two hours. See id. at 11-13 (explaining the procedures at length). As we have previously noted, sleep deprivation itself generally has few negative effects (beyond temporary cognitive impairment and transient hallucinations), though some detainees might experience transient "unpleasant physical sensations from prolonged fatigue, including such symptoms as impairment to coordinated body movement, difficulty with speech, nausea, and blurred vision." Id. at 37; see also Id. 37-38. Subjects deprived of sleep in scientific studies for longer than the 180-hour limit imposed by the CIA generally return to normal neurological functioning with as little as one night of normal sleep. See id. at 40. In light of the ongoing and careful medical monitoring undertaken by OMS and the authority and obligation of all members of the interrogation team, and of OMS personnel and other facility staff, to stop the procedure if necessary, this technique is not to be expected to result in any detainee experiencing extreme physical distress. See id. at 38-39. [9]
With respect to the shackling, the procedures in place (which include constant monitoring by detention personnel, via closed-circuit television, and intervention if necessary) minimize the risk that a detainee will hang by his wrists or otherwise suffer injury from the shackling. See id. at 11. Indeed, these procedures appear to have been effective, as no detainee has suffered any lasting harm from the shackling. See id.
Because releasing a detainee from the shackles would present a security problem and would interfere with the effectiveness of the technique, a detainee undergoing sleep deprivation frequently wears and adult diaper. See Letter from [delete] Associate General Counsel, Central Intelligence Agency, to Dan Levin, Acting Assistant Attorney General, Office of Legal Counsel at 4 (Oct, 12, 2004) ("October 12 [delete] Letter"). Diapers are checked and changed as needed so that no detainee would be allowed to remain in a soiled diaper, and the detainee's skin condition is monitored. See Techniques at 12. You have informed us that diapers are used solely for sanitary and health reasons and not in order to humiliate the detainee.
2. Corrective techniques
Corrective techniques entail some degree of physical interaction with the detainee and are used "to correct, startle, or to achieve another enabling objective with the detainee." Background Paper at 5. These techniques "condition a detainee to pay attention to the interrogator's questions and ... dislodge expectations that the detainee will not be touched. Techniques at 9. This category comprises the following techniques: insult (facial) slap, abdominal slap, facial hold, and attention grasp. See Background Paper at 5; see also Techniques at 8-9 (describing these techniques). [10] In the facial hold technique, for example, the interrogator uses his hands to immobilize the detainee's head. The interrogator's fingers are kept closely together and away from the detainee's eyes. See Pre-Academic Laboratory (PREAL) Operating Instructions at 19 ("PREAL Manual"). The Technique instills fear and apprehension with minimal physical force. Indeed, each of these techniques entails only mild uses of force and does not cause any significant pain or any lasting harm. See Background Paper at 5-7.
3. Coercive techniques
Coercive techniques "place the detainee in more physical and psychological stress" than the other techniques and are generally "considered to be more effective tools in persuading a resistant [detainee] to participate with CIA interrogators." Background Paper at 7. These techniques are typically not used simultaneously. The Background Paper lists walling, water dousing, stress positions, wall standing, and cramped confinement in this category. We will also treat the waterboard as a coercive technique.
Walling is performed by placing the detainee against what seems to be a normal wall but is in fact a flexible false wall. See Techniques at 8. The interrogator pulls the detainee towards him and then quickly slams the detainee against the false wall. The false wall is designed, and a c-collar or similar device is used, to help avoid whiplash or similar injury. See id. The technique is designed to create a loud sound and shock the detainee without causing significant pain. The CIA regards walling as "one of the most effective interrogation techniques because it wears down the [detainee] physically, heightens uncertainty in the detainee about what the interrogator may do to him, and creates a sense of dread when the [detainee] know he is about to be walled again." Background Paper at 7. 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. At no time, however, is the technique employed in such a way that could cause severe physical pain. See Techniques at 32 n.38. [11]
In the water dousing technique, potable cold water is poured on the detainee either from a container or a hose without a nozzle. Ambient air temperatures are kept above 64°F. The maximum permissible duration of water exposure depends on the water temperature, which may be no lower than 41°F and is usually no lower than 50°F. See id. at 10. Maximum exposure durations have been "set at two-thirds the time at which, based on extensive medical literature and experience, hypothermia could be expected to develop in healthy individuals who are submerged in water of the same temperature" in order to provide adequate safety margins against hypothermia. Id. This technique can easily be used in combination with other techniques and "is intended to weaken the detainee's resistance and persuade him to cooperate with interrogators." Id. at 9.
Stress positions and wall standing are used to induce muscle fatigue and the attendant discomfort. See Techniques at 9 (describing techniques); see also PREAL Manual at 20 (explaining that stress positions are used "to create a distracting pressure" and "to humiliate or insult"). The use of these techniques is "usually self-limiting in that temporary muscle fatigue usually leads to the [detainee's] being unable to maintain the stress position after a period of time." Background Paper at 8. We understand that these techniques are used only to induce temporary muscle fatigue; neither of these techniques is designed or expected to cause severe physical pain. See Techniques at 33-34.
Cramped confinement involves placing the detainee in an uncomfortably small container. Such confinement may last up to eight hours in a relatively large container or up to two hours in a smaller container. See Background Paper at 8; Techniques at 9. The technique "accelerate[s] the physical and psychological stresses of captivity." PREAL Manual at 22. In OMS's view, however, cramped confinement "ha[s] not proved particularly effective" because is provides "a safehaven offering respite from interrogation." OMS Guidelines at 16.
The waterboard is generally considered to be "the most traumatic of the enhanced interrogation techniques," id. at 17, a conclusion with which we have readily agreed, see Techniques at 41. In this technique, the detainee is placed face-up on a gurney with his head inclined downward. A cloth is placed over his face on which cold water is then poured for periods of at most 40 seconds. This creates a barrier through which it is either difficult of impossible to breathe. The technique thereby induce[s] a sensation of drowning." Id. at 13. The waterboard may be authorized for, at most, one 30-day period, during which the technique can actually be applied on no more than five days. See id. at 14 (describing, in detail, these and additional limitations); see also Letter from [delete] Associate General Counsel, Central Intelligence Agency, to Dan Levin, Acting Assistant Attorney General, Office of Legal Counsel at 1 (Aug. 19, 2004) ("August 19 [delete] Letter"). Further, there can be no more than two sessions in any 24-hour period. Each session -- the time during which the detainee is strapped to the waterboard -- lasts no more than two hours. There may be at most six applications of water lasting 10 seconds or longer during any session, and water may be applied for a total of no more than 12 minutes during any 24-hour period. See Techniques at 14.
As we have explained, "these limitations have been established with extensive input from OMS, based on experience to date with this technique and OMS's professional judgment that the health risks associated with the use of the waterboard on a healthy individual subject to these limitations would be 'medically acceptable.'" Id. at 14 (citing OMS Guidelines at 18-19). In addition, although the waterboard induces fear and panic, it is not painful. See id. at 13.
