CIA Memo: Legal Principles Applicable to CIA Detention and Interrogation of Captured Al-Qa'ida Personnel

<p>An undated CIA memo arguing that the CIA's interrogation program does not violate the Convention Against Torture, 18 U.S.C. &sect;&sect; 2340-2340A, or 18 U.S.C. &sect; 2441. Part of the memo relies upon the contention that so long as interrogators act with a good-faith belief that they will not cause &quot;severe physical or mental pain or suffering,&quot; they do not violate these principles. According to the memo:&nbsp;&quot;A good faith belief need not be a reasonable belief; it need only be an honest belief.&quot; [OLC Vaughn Index #151]</p>

Legal Memo
Sunday, August 23, 2009

Legal Principles Applicable to CIA Detention and Interrogation of Captured Al-Qa'ida Personnel • The Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment ("the Convention") applies to the-United States only in accordance with the reservations, understandings, and declarations that the United States submitted with its instrument of ratification of the Convention. The Convention's definition of torture, as interpreted by the U.S. understandings, is identical in all material ways to the definition of torture contained in 18 U.S.C. §2340-2340A. The standard for what constitutes torture under §2340-2340A and under the Convention is therefore identical. 0 The Convention also provides that state parties are to undertake to prevent other cruel, inhuman, or degrading treatment or punishment. Because of U.S reservations to the Convention, the U.S: obligation to undertake to prevent such treatment or punishment extends only to conduct that would constitute cruel and inhuman treatment. under the Eighth Amendment or would "shock the conscience" under the Fiftheand Fourteenth Amendments. Additionally, the Convention permits the use of such treatment or punishment in exigent circumstances, such as a national emergency or war. Customary international law imposes no obligations regarding the treatment of al-Qa'ida detainees beyond that which the Convention, as interpreted and understood by the United States in its reservations, understandings, and declarations, imposes. The Convention therefore definitively establishes what constitutes torture and cruel, inhuman, or degrading treatment or punishment for the purposes of U.S. international law obligations. CIA interrogations of foreign nationals are not within the "special maritime and territorial, jurisdiction". of the United States where the interrogation occurs on foreign TOP CRET/. DOJ OLC 001199 513,8ECRET//' territory in buildings that are not owned or leased by or under the legal jurisdiction of the U.S. government. The criminal laws applicable to the special maritime and territorial jurisdiction therefore do not apply to such interrogations. The only two federal criminal statutes that might apply to these interrogations are the War Crimes Statute, 1B U.S.C. §2441, and the prohibition against torture, 18 U.S.C. §2340-2340A. • The federal War Crimes Statute, 18 U.S.C. §2441,. does not apply to al-Qa'ida because the Geneva Conventions and the - Hague Convention IV, the conventions that the conduct must violate in order to violate section 2441, do not apply to al-Qa'ida. A1-Qa'ida is a non-governmental international terrorist organization whose members cannot be considered POWs within the meaning of the Geneva Conventions or receive the protections of the Hague Convention IV. Because these conventions do not protect al-Qa'ida members, conduct toward those members cannot violate section 2441. • The interrogation of al-Qa'ida detainees does not constitute torture within the meaning of section 2340 where the interrogators do not have the specif ic intent'to cause "severe physical or mental pain or suffering. -The absence of specific intent (i.e., good faith) can be established through, among other things, evidence of efforts to review relevant professional literature, consulting with experts, reviewing evidence gained from past experience where available (including experience gained in the course of U.S. interrogations of detainees), providing medical and psychological assessments of a detainee (including the ability of the detainee to withstand interrogation without experiencing severe physical or mental pain or suffering), providing medical and psychological personnel on site during the conduct of interrogations, or conducting legal and policy reviews of the interrogation process (such as the review of reports from the interrogation facilities and visits to those locations). A good faith belief need not be a reasonable belief; it need only be an honest belief. • The interrogation of members of al-Qa'ida, who are foreign nationals, does not violate the Fifth, Eighth, and Fourteenth Amendments because those amendments do not apply. The Due Process Clauses of the Fifth and Fourteenth Amendments, which would be the only clauses in those 2 TOP •ET/. X1 /NO. DOJ OLC 001200 ?11,..1.14-X1 5110/5-EUHET1 .171 amendments that could arguably apply to the conduct of interrogations, do not apply extraterritorially to aliens. The Eighth Amendment has no application because it applies solely to those persons upon whom criminal sanctions have been imposed. The detention of enemy combatants is in no sense the imposition of a criminal sanction and thus the Eighth Amendment does not-apply. • Taking all of -the relevant circumstances into account (such as the Government's need for information to avert terrorist activities against the United States and its citizens, the good faith efforts to avoid producing severe physical or mental pain or suffering, and the-absence of malicious or sadistic purpose by those conducting the interrogations), the use of the techniques described below and of comparable, approved techniques 'Would not constitute conduct of the type that would be prohibited by the Fifth, Eighth, or Fourteenth Amendments even• were they to be applicable. • The use of the following techniques and of comparable, approved techniques in the interrogation of al-Qa'ida detainees by the CIA does not violate any Federal statute or other law, where the CIA interrogators do not specifically intend to cause the detainees to undergo severe phySical or mental pain or suffering (i.e., they act with'the good faith belief that their conduct will not cause such pain or suffering): isolation, reduced caloric intake (so long as the. amount -is calculated to maintain the general health of the detainees), deprivation of reading material, loud music or white noise (at a decibel level calculated to avoid ' damage to the detainees' hearing), the attention grasp, walling, the facial hold, the facial slap (insult slap), the abdominal slap, cramped confinement, wall standing, stress positions, sleep deprivation, the use of diapers, the use of harmless insects, and the water board. 3 'NO.X1 DOJ OLC 001201