<p> [Add description and leave in paragraph below.]</p>
<p>This is the first draft of the OPR's report. You can view the final report by selecting the appropriate related link to the right.</p>
OFFICE OF
PROFESSIONAL RESPONSIBILITY
REPORT
(U) Investigation into the Office of Legal Counsel's Memoranda on
Issues Relating to the Central Intelligence Agency's Use of "Enhanced
Interrogation Techniques" on Suspected Terrorists
December 22, 2008
DRAFT
NOTE: THIS REPORT CONTAINS SENSITIVE AND CONFIDENTIAL
INFORMATION. DO NOT DISTRIBUTE THE REPORT OR ITS CONTENTS
WITHOUT THE PRIOR APPROVAL OF THE OFFICE OF PROFESSIONAL
RESPONSIBILITY.
TABLE OF CONTENTS
TABLE OF CONTENTS
INTRODUCTION AND SUMMARY 1
I. BACKGROUND 9
A. The Office of Legal Counsel 9
B. The Bybee Memo and the Classified Bybee Memo
(August 1, 2002) 11
1. The CIA Interrogation Program 11
2. Drafting the Bybee Memo 22
3. Key Conclusions of the Bybee Memo 40
4. Key Conclusions of the Classified Bybee Memo 41
5. The Yoo Letter 42
a. Violation of CAT 43
b. Prosecution Under the Rome Statute 44
C. Military Interrogation, the March 14, 2003 Yoo Memo
to DOD, and the DOD Working Group Report 44
1. Guantanamo and the Military's
Interrogation of Detainees 44
2. Drafting the Yoo Memo 49
3. Key Conclusions of the Yoo Memo 53
.i. 4. The Working Group Report 55
D. Implementation of the CIA Interrogation Program 55
•z,\
1. Abu Zubaydah 56
2. Abd Al-Rahim Al-Nishiri 58
3. Khalid Sheik Muhammed 60
4. 61
5. CIA Referrals to the. Departm b.t y 62
6. Other Findings of the CIA OI Report 67
1.(22-SERRE'l laroaRicr
E. Reaffirmation of the CIA Program 68
1. The Question of "Humane Treatment" 68
2. The "Bullet Points" 71
3. The Leahy Letter 74
4. The CIA Request for Reaffirmation 75
F. AAG Goldsmith - Withdrawal of OLC's
Advice on Interrogation 79
1. The NSA Matter 80
2. The Withdrawal of the Yoo Memo 80
3. The CIA OIG Report and the
Bullet. Points Controversy 82
4. Goldsmiths' Draft Revisions to the Yoo Memo 85
5. The Withdrawal of the Bybee Memo 89
G. 'Case by Case Approvals and The Levin Memo 91
H. The Bradbury Memos 99
1. The Bradbury Memo (May 10, 2005) 100
2. The Combined Techniques Memo (May 10, 2005) 104
3. The Article 16 Memo 109
4. The 2007 Bradbury Memo 114
a. Background 114
b. The Memo 117
II. - Anat lysis 120
A. Legal Standards 120
1. The Duty of Competence 121
2. The Duty to Exercise:Independent
Professional Judgment and Render Candid Advice 125
B. Analysis of the Bybee Memo and the Yoo Memo 127
1. The Bybee Memo Did Not Constitute
Competent Legal Advice Within the Meaning
of Rule 1.1
128
a. Severe Pain
128
b. Specific Intent
133
c. Prolonged Mental Harm 139
d. Ratification History of the CAT 140
e. U.S. Judicial Interpretation 141
(1) Implementation of CAT Article 3 141
(2) The Torture Victim Protection Act 142
f. International Decisions
143
(1) Ireland v. United Kingdom 144
(2) Public Committee Against
Torture in Israel v. Israel 146
g.
The Commander-in-Chief Power
and Possible Defenses to Torture 149
(1) The President's
Commander-in-Chief Power 151
(2) Criminal Defenses to Torture 1.5567
(a) The Necessity Defense 1
(b) Self Defense
168
h. Conclusion
172
2. The Bybee Memo and the Yoo Memo Did
Not Represent Independent Professional
Judgment and Candid Advice Within the
...i
173
Meaning of Rule 2.1
C.
Analysis of the Classified Bybee Memo (August 1, 2002)
177
D. Analysis of Individual Responsibility
180
E. Analysis of the Bradbury Memos
182
CONCLUSION
190
IQP—SrfreRtil.11111R111111-aEGRIC- DRA
(U) INTRODUCTION AND SUMMARY
(U) On June 7, 2004, in the wake of media reports of detainee abuse by
United States soldiers at the Abu Ghraib prison in Iraq, the Wall Street Journal
reported that the Department of Justice had advised the Department of Defense
(DOD) that the President's Commander-in-Chief power allowed him to authorize
interrogations amounting to torture, notwithstanding the prohibitions of 18 U.S.C.
§§ 2340-2340A (the torture statute) and the United Nations Convention Against
Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment, Apr.
18, 1988, 1465 U.N.T.S. 113 (the CAT). Jess Bravin, Pentagon Report Set
Framework For Use of Torture, Wall Street Journal, June 7, 2004. The day the
article appeared, the paper posted on its web site a copy of a March 6, 2003 draft
of a classified report on military interrogation methods (the draft Working Group
Report), and alleged that the document reflected the advice of Department of
Justice lawyers.
(U) On June 8, 2004, the Washington Post reported:
In August 2002, the Justice Department advised the
White House that torturing al Qaeda terrorists in
captivity abroad 'may be justified,' and that international
laws against torture 'may be unconstitutional if applied
to interrogations' conducted in President Bush's war on
terrorism.
Dana PO.est and R. Jeffrey Smith, Memo Offered Justification for Use of Torture,
Washington Post, June 8, 2004 at A1..
(U) The article quoted extensively from "a newly obtained" Department of
Justice memorandum. Id. On June 13, 2004, the Washington Post posted a
copy of that memorandum on its web site, identifying it as an August 1, 2002
memorandum from ,then Assistant Attorney General (AAG) Jay S. Bybee of the
Office of. Legal Counsel (OLC) to Alberto R. Gonzales, then Counsel to the
President, captioned "Standards of Conduct for Ipterrogation under 18 U.S.C. §§
DRAFT
2340-2340A" (the Bybee Memo).
(U) Commentators, law professors and other members of the legal
community were highly critical of the Bybee Memo. The Dean of Yale Law School
characterized its authors as "blatantly wrong" and added that "[i]t's just erroneous
legal analysis." Edward Alden, US Interrogation Debate, Financial Times, June 10,
2004 (2004 WLNR 9744181). A past chairman of the international human rights
committee of the New York Bar Association stated that "the government lawyers
involved in preparing the documents could and should face professional
sanctions." Id. A law professor at the University of Chicago said: "It's egregiously
bad. It's very low level, it's very weak, embarrassingly weak, just short of
reckless." Adam Liptak, Legal Scholars Criticize Memos on Torture, New York
Times, June 25, 2004 at A14. In the same article, an expert in international
human rights law at Fordham University commented, "The scholarship is very
clever and original but also extreme, one-sided and poorly supported by the legal
authority relied on." Id.
(U) Other commentators observed that the Bybee Memo did not address
important Supreme Court precedent and that it ignored portions of the CAT that
contradicted its thesis. Id. One article suggested that the author of the Bybee
Memo deliberately ignored adverse authority and commented that "a lawyer who
is writing an opinion letter is ethically bound to be frank." Kathleen Clark and
Julie Meftus, Torturing Law; The Justice Department's Legal Contortions on
Interrogation, Washington Post, June 20, 2004 at B3; See also, R. Jeffrey Smith,
Slim Legal Grounds for Torture. Memos, Washington Post, July 4, 2004 at Al2.
Other critics suggested that the Bybee Memo was drafted to support a preordained
result. Mike Allen and Dana Priest, Memo on Torture Draws Focus to
Bush, Washington Post, June 9, 2004 at A3. Similar criticism was raised by a
group oftmore than 100 lawyers, law school professors and retired judges, who
called for a thorough investigation of how the Bybee Memo and other, related OLC
memoranda were prepared. Fran Davies, Probe U4ed Over Torture Memos, Miami
Herald, August 5, 2004 at 6A; Scott Higham, Law Experts Condemn U.S. Memos
(U) As discussed more fully below, substantial portions of the Bybee Memo appeared
verbatim in the draft Working Group Report.
11DE-SgeRETIMMEMINOgORND
RAFT
on Torture, Washington Post, August 5, 2004 at A4. 2
(U) On June 22, 2004, Executive Branch officials responded to public
criticism of the Bybee Memo. Then White House Counsel Gonzales told reporters:
[T]o the extent that [the Bybee Memo] in the context of
interrogations, explored broad legal theories, including
legal theories about the scope of the President's power as
Commander in Chief, some of their discussion, quite
frankly, is irrelevant and unnecessary to support any
action taken by the President. . . .
Unnecessary, over-broad discussions . . . that address
abstract legal theories, or discussions subject to
misinterpretation, but not relied upon by decisionmakers
are under review, and may be replaced, if
appropriate, with more concrete guidance addressing
only those issues necessary for the legal analysis of
actual practices.
White House Daily Press Briefing, June 22, 2004 (2004 WLNR 2608695).
(U) The same day, Deputy Attorney General (DAG) James Comey, cited in
news reports as a "senior Justice official" or a "top Justice official" told reporters
during a. not for attribution - briefing session that the analysis in the Bybee Memo
was "over broad," "abstract academic theory," and "legally unnecessary." Toni Locy
& Joan B4 iskupic, Interrogation Memo to be Replaced, USA Today, June 23, 2004
i
2 (U) A few lawyers defended the Bybee Memo. In a Wa11 ,Street Journal op-ed piece, two legal
scholars argued that the Bybee Memo appropriately conducted a dispassionate, lawyerly analysis
of the law and properly ignored moral and policy considerations. Eric Posner and Adrian
Vermeule, A "Torture" Memo and Its Tortuous Critics, Wall Street Journal, July 6, 2004 at A22.
(U) In addition, former OLC Deputy Assistant Attorney General John Yoo, the principal
author of title Bybee Memo, has vigorously defended his work since leaving the Department. See
e.g., John Yoo, War by Other Means: An Insider's Accountpf the War on Terror, Atlantic Monthly
Press (2006); John Yoo, A Crucial Look at Torture Law, L.A. Times, July 6, 2004 at B11; John Yoo,
Commentary: Behind the Torture Memos, UC Berkeley News, January 4, 2005 (available at
http: / / www. berkeley. edu / news/ media/ releases/ 2005/ 01/ 05 _johnyoo. shtml ).
11292-SEeRET EoRts--
DRAFT
at 2A. Comey reportedly added, "We're scrubbing the whole thing." Id.
(U) On June 21, 2004, the Office of Professional Responsibility (OPR)
received a letter from Congressman Frank Wolf. In his letter, Congressman Wolf
expressed concern that the Bybee Memo provided legal justification for the
infliction of cruel, inhumane and degrading acts, including torture, on prisoners
in United States custody, and asked OPR to investigate the circumstances
surrounding its drafting.
(U) On July 15, 2004, OPR asked then OLC AAG Jack Goldsmith, III, to
provide certain information and documents relevant to the Bybee Memo. Principal
Deputy Assistant Attorney General Steven G. Bradbury met with OPR Counsel H.
Marshall Jarrett on July 23, 2004, to discuss that request. Mr. Bradbury
provided OPR with a copy of the Bybee Memo, but asked us not to pursue our
request for additional material. After considering the issues raised by Bradbury,
we repeated our request for additional documents on August 9, 2004. On August
31, 2004, 'Bradbury gave OPR copies of unclassified documents relating to the
Bybee Memd, including email and documents from the computer hard drives and
files of the former OLC attorneys who worked on the project. We learned that in
addition to Bybee, the following OLC attorneys worked on the Bybee Memo: former
Deputy AAG John Yoo; former Deputy AAG Patrick Philbin; and former OLC
Attorney
(U) We reviewed the Bybee Memo and the draft Working Group Report, along
with email, correspondence, file material, drafts, and other unclassified
documents provided by OLC. On October 25, 2004, OPR formally initiated an
investigation.'
(tht On December 30, 2004, OLC Acting AAG Daniel Levin issued an
unclassified Memorandum Opinion for the Deputy. Attorney General captioned
(U) OLC initially provided us with a relatively small number of emails, files, and draft
documents. After it became apparent, during the course of our review, that relevant documents
were missing, we requested and were given direct access too the email and computer records of
YQ0, Philbin, Bybee and Goldsmith. However, we vyere told that most of John Yoo's email
records 11.03 been deleted and were not recoverable. Pllilbin's email records from July 2002
through August 5, 2002, had also been deleted and were reportedly not recoverable. Although we
were initially advised that Goldsmith's records had been deleted, we were later told that they had
been recovered and we were given access to them.
12S1P-SECIZET EC-
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DRAFT
"Legal Standards Applicable under 18 U.S.C. §§ 2340-2340A." That opinion,
which was posted on OLC's web site the same day, superseded the Bybee Memo
and eliminated or corrected much of its analysis.
(U) During the course of our investigation, we learned that the Bybee Memo
was accompanied by a second, classified memorandum (addressed to then Acting
General Counsel of the Central Intelligence Agency (CIA) John Rizzo and dated
August 1, 2002), which discussed the legality of specific interrogation techniques
(the Classified Bybee Memo). We also learned that the OLC attorneys who drafted
the Bybee Memo and the Classified Bybee Memo subsequently prepared a
classified March 14, 2003 Memorandum to the Department of Defense:
"Memorandum for William J. Haynes, II, from John C. Yoo, Deputy Assistant
Attorney General, Office of Legal Counsel, Re: Military Interrogation of Unlawful
Combatants Held Outside the United States (March 14, 2003)" (the Yoo Memo).
(U) We conducted interviews o Patrick Philbin and Jack
Goldsmith, all of whom told us that they could not fully discuss their involvement
without refeIrring to Secure Compartmented Information (SCI). We obtained the
necessary clearances and requested and reviewed additional documents from OLC
and from the CIA.' We then re-interviewedM.Philbin and Goldsmith, and
interviewed Yoo and Bybee.
(U) in addition, we interviewed former DAG James Comey, former OLC
Acting AAG Dan Levin, former Criminal Division AAG Michael Chertoff, former
Criminal Division Deputy AAG Alice Fisher, OLC Principal Deputy AAG Steven
Bradbury, CIA Acting General Counsel John Rizzo, 5 former. White House Counsel
Alberto Gonzales, and former Counselor to then Attorney General (AG) John
Ashcroft Adam Ciongoli. We are currently attempting to schedule an interview
with Jo14). Bellinger, III, former National Security Council (NSC) Legal Adviser.
(U) A number of witnesses declined to to interviewed. CIA Counter
Terrorism Center (CTC) attorneys oth refused
4 (U) For background purposes, we also reviewed newspaper articles, law review
commentaries and historical accounts.
'f
(U) Mr. Rizzo would not agree to meet with us until after his Senate confirmation hearing
for the position of CIA General Counsel. That hearing was canceled and rescheduled, and finally
held on June 19, 2007. We interviewed Mr. Rizzo on July 7, 2007.
TO N^EOR^F-
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DRAFT
to meet with us on the advice of counsel, but we were able to review brief
summaries of their interviews with the CIA's Office of the Inspector General (CIA
OIG) in connection with CIA OIG's investigation and May 7, 2004 report titled
"Counterterrorism Detention and Interrogation Activities (Se tember 2001 -
October 2003)" (the CIA OIG Report). CTC attorne also refused
our request for an interview, as did former CTC attorne
although spoke briefly with us by telephone. Former Attorney
General Ashcroft did not respond to several interview requests but ultimately
informed us, through his attorney, that he had declined our request. Finally,
former Counsel to the Vice President David Addington and former Deputy White
House Counsel Timothy Flanigan did not respond to our requests for interviews.
(U) Sometime in May 2005, then Acting AAG Bradbury informed us that he
had signed a classified memorandum that replaced the Classified Bybee Memo.
We reviewed that document, captioned "Memorandum for John A. Rizzo, Senior
Deputy Counsel, Central Intelligence Agency, from Steven G. Bradbury, Principal
Deputy Assistant Attorney General, 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)" (the Bradbury Memo). The Bradbury Memo discussed
a number of individual interrogation techniques and concluded that their use by
CIA interrogators would not violate the torture statute.
(U) On July 20, 2007, the New York Times reported that President Bush had
signed an executive order allowing the CIA to use interrogation techniques not
authorized for use by the military, and that the Department had determined that
those techniques did not violate the Geneva Conventions. Shortly thereafter,
reporter Jane Mayer wrote in the August 13, 2007 issue of the New Yorker
magazirte that Senator Ron Wyden had placed a "hold" on the confirmation of
John- RiAo as CIA General Counsel after reviewing a "classified addendum" to the
President's executive order.
(U) In late August 2007, we asked OLC to provide copies of the executive
order, the "classified addendum," and the Bradbury Memo. Bradbury informed
us that there was no "classified addendum," but that he had drafted an
accompanying classified opinion, captioned "M6morandum for John A. Rizzo,
Acting General Counsel, Central Intelligence A4ncy, from Steven G. Bradbury,
Principal Deputy Assistant Attorney General, Re: Application of the War Crimes Act,
the Detainee Treatment Act, and Common Article 3 of the Geneva Conventions to
DRAFT
Certain Techniques that May Be Used by the CIA in the Interrogation of High Value
al Qaeda Detainees (July 20, 2007)" (the 2007 Bradbury Memo). We also learned
that there was another classified OLC memo dated May 10, 2005, in addition to
the Bradbury Memo, a document captioned "Memorandum for John A. Rizzo,
Senior Deputy Counsel, Central Intelligence Agency, from Steven G. Bradbury,
Principal Deputy Assistant Attorney General, 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 (May 10, 2005)" (the Combined Techniques Memo). When we
obtained copies of those documents on August 29, 2007, we learned that there
was a third classified OLC memo - "Memorandum for John A. Rizzo, Senior
Deputy Counsel, Central Intelligence Agency, from Steven G. Bradbury, Principal
Deputy Assistant Attorney General, 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 (May 30, 2005)" (the
Article 16 Merno). 6 We reviewed those documents and conducted additional
interviews.
(U) On October 4, 2007, the New York Times reported the existence of the
Bradbury. Memo and the Combined Techniques Memo, and stated that they set
forth "an expansive endorsement of the harshest interrogation techniques ever
used by the Central Intelligence Agency." On November 6, 2007, the American
Civil Liberties Union (ACLU) announced that the Department had confirmed, in
papers f_red in response to the ACLU's pending Freedom of Information Act
lawsuit, that three interrogation memoranda - two dated May 10, 2005 and one
dated 'May 30, 2005 - had been issued by the Department.
(U) Although we have attempted to provide as complete an account as
possible of the facts and circumstances surrounding the Department's role in the
implemehtation of certain interrogation practices by the CIA, it is important to
note that our access to information and witnesses outside the Department of
Justice was limited to those persons and agenciethat were willing to cooperate
with our investigation. Moreover, we cannot say with certainty that the
documents provided to us by the CIA included all relevant material.
(U) During the course of our investigation significant pieces of information
6 (U) The Bradbury Memo, the Combined Techniques Memo, the Article 16 Memo, and the
2007 Bradbury Memo are hereinafter referred to collectively as the Bradbury Memos.
DRAFT
were brought to light by the news media and more recently, by congressional
investigations. While we believe our findings regarding the legal advice contained
in the Bybee Memo and related, subsequent memoranda are complete, we are
certain that additional information will eventually surface regarding the CIA
program and the military's interrogation programs in Guantanamo, Afghanistan
and Iraq.
(U) Based on the results of our investigation, we concluded that former AAG
Jay S. Bybee and former Deputy AAG John Yoo failed to meet their
responsibilities under D.C. Rule of Professional Conduct 1.1 to provide competent
representation to their client, the United States, and failed to fulfill their duty to
exercise independent legal judgment and to render candid legal advice, pursuant
to D.C. Rule of Professional Conduct 2.1. In violating D.C. Rules 1.1 and 2.1,
Bybee and Yoo :committed professional misconduct. Pursuant to Department
policy, we will notify their respective state bars of our findings.
(U) We concluded that Patrick Philbin did not commit rofessional
misconduct
Finally, we concluded that
because of her relative inexperience and subordinate position, did not commit
misconduct.
(U1 We did not find that other Department officials involved committed
professional misconduct. We found Michael Chertoff, as AAG of the Criminal
Division, and Adam Ciongoli, as Counselor to the AG, should have recognized
many of the Bybee Memo's shortcomings and should have taken a more active role
in evaluating the CIA program. John Ashcroft, as Attorney General, was
ultimat& responsible for the Bybee and Yoo Memos and for the Department's
approvaltof the CIA program. Ashcroft, Chertoff, Ciongoli, and others should have
looked beyond the surface complexity of the OLC . memoranda and attempted to
verify that the analysis, assumptions, and concluaons of those documents were
sound. However, we cannot conclude that, as a matter of professional
responsibility, it was unreasonable for senior Department officials to rely on advice
from OLC. We note that Ashcroft was at least consistent in his deference to OLC.
When Goldsmith and Comey recommended that the Yoo Memo be withdrawn,
Ashcrofedid not hesitate to support them.
(U) In addition to these findings, we recommend that, for the reasons
DRAFT
discussed in this report, the Department reexamine certain declinations of
prosecution regarding incidents of detainee abuse referred to the Department by
the CIA OIG.
(U) Finally, we recommend that the Department review the Bradbury Memos
carefully to determine whether they appropriately relied upon CIA representations,
whether they provided reasonable and objective legal advice, and whether the
Department has identified and evaluated all relevant moral and policy
considerations associated with the CIA interrogation program. Any such review
should, we believe, consider the views of the Criminal Division, the National
Security Division, the Department of State, and the intelligence community,
including the FBI and the United States military.
(U) I. BACKGROUND
(U) A. The Office of Legal Counsel'
(U) The Assistant Attorney General in charge of the Office of Legal Counsel
assists the Attorney General in his function as legal adyisor to the President and
all the executive branch agencies. The office is responsible for providing legal
advice to the executive branch on all constitutional questions. The first AAG for
OLC under the Bush administration was Jay Bybee, who was not sworn in until
November` 2001. Prior to that time, M. Edward Whelan, III, was the Acting AAG.
-(U) John Yoo joined the office as a Deputy AAG in the summer of 2001. He
had graduated from Yale Law School in 1992 and joined the faculty of the
University of California Berkeley School of Law in 1993. He later took a leave of
absencefrom Berkeley to clerk for United States Supreme Court Justice Clarence
Thomas.; At the time of the September 11, 2001 terrorist attacks, John Yoo was
the resident expert in the OLC on foreign policy issues. Yoo wrote in his book War
By Other Means:
Among scholars, I was probably best known for my work
on the historical understanding of the Commander's war
powers, and I had written a number of articles on the
7
(U) Chart 1 is a timeline of OLC leadership and significant events relevant to this report.
DRAFT
relationship between presidential and legislative powers
over foreign affairs. I was one of the few appointed
Justice Department officials whose business was
national security and foreign affairs. 8
(U) After September 11, John Yoo authored a number of OLC opinions
dealing with terrorism and presidential power. One of the first was dated
September 25, 2001, and was entitled "The President's Constitutional Authority
to Conduct Military Operations Against Terrorists and Nations Supporting Them."
In the opinion, signed by Yoo, he asserted that no law "can place any limits on the
President's determinations as to any terrorist threat, the amount of military force
to be used in response, or the method, timing, and nature of the response. These
decisions, under our Constitution, are for the President alone to make." In that
same time period, Yoo authored a memorandum on the legality of a program of
warrantless electronic surveillance by the National Security Agency 9 and a
memorandum on the applicability of the Geneva Convention to al Qaeda and
Taliban detainees. 1°
(U) Bybee was nominated by President Bush for a position as federal judge
on the United States Court of Appeals for the Ninth Circuit on May 22, 2002, but
was not confirmed until March 13, 2003, when he left the Department. Shortly
thereafter, in late May 2003, John Yoo left the Department. Bybee was replaced
by Jack goldsmith, III, who, became AAG in October 2003. Goldsmith resigned
in June 2004 and left the Department in July. Daniel Levin served as the Acting
AAG until he left the Department in February 2005. Steven Bradbury, the
Principal Deputy AAG under Goldsmith, then became the Acting AAG and was
nominated by the White House for the position of AAG on June 23, 2005. After
his norrrtnation expired without action by the Senate, Bradbury continued to act
as head bf OLC under the title of Principal Deputy AAG. He was renominated by
8
(U) War By Other Means, at 20.
9 (U) That memorandum was later withdrawn by the Department.
to (U) ;That memorandum was signed by OLC AAG Jay Bybee. The memorandum's position
that Comthon Article Three of the Geneva Convention <lid not apply to al Qaeda or Taliban
detainees was subsequently rejected by the United States Supreme Court in Hamdan v. Rumsfeld,
548 U.S. 557 (2006).
12SP--sF2PREI Pk-Qr"Rt'r
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President Bush in January 2007 and January 2008, but he has never been
confirmed.
(U) B. The Bybee Memo and the Classified Bybee Memo
(August 1, 2002)
(U) 1. The CIA Interrogation Program
(U) CIA Acting General Counsel Rizzo told us that the term "interrogation"
has traditionally been used by the CIA to describe active, aggressive questioning
designe0 to elicit information from an uncooperative or hostile subject, as opposed
to "debrifing," which involves questioning the subject in a non-confrontational
way. Rizzo told us that throughout most of its history the CIA did not detain
subjects or conduct interrogations. Prior to the eptember 11, 2001 terrorist
attacks, CIA personnel debriefed sources
but the agency was not authorized to
etain or interrogate individuals and therefore had no institutional experience or
expertise in that area."
(U) Cl Alfred W. McCoy, A Question of Torture: CIA Interrogation, from the Cold War to the
War on Terror (2006). McCoy described the CIA's role in sponsoring and conducting research into
..1...SIESBeRg lart42.IRTI-
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DRAFT
(U) The • CIA also gave us a copy of an undated, unsigned, ten-page
memorandum titled "United Nations Convention Against Torture and Other Cruel,
Inhumatie, or Degrading Treatment." The memorandum discussed the CAT
definitioA of torture, the ratification history of the CAT, United States reservations
to the treaty, interrogation-related case law from foreign jurisdictions, and a
discussion of cruel and unusual punishment unar the Eighth Amendment. 12
coercive interrogation techniques in the decades following World War II, and its propagation of
such techniques overseas during the Cold War era.
12
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DRAFT
(U) The interrogation of suspected terrorists overseas was initially conducted
jointly by CIA operational personnel and FBI agents. The FBI used traditional
"rapport building" interrogation techniques that were consistent with United
States criminal investigations. The CIA operatives soon became convinced,
however, that conventional interrogation methods and prison conditions were
inadequate to deal with hardened terrorists and that more aggressive techniques
would have to be developed and applied. CIA leadership agreed, and began
exploring the possibility of developing "Enhanced Interrogation Techniques," or
EITs.
(U) The issue of how to approach interrogations reportedly came to a head
after the capture of a senior al Qaeda leader, Abu Zubaydah, during a raid in
Faisalabad, Pakistan in late March 2002. Zuba dah was trans orted to a "black
site," a secret CIA prison facili where
he was treated for gunshot woun s he su ere uring is capture.
(U) According to a May 2008 report by the Department of Justice Office of
the Inspect6r General and other sources, the FBI and the CIA planned to work
together on the Abu Zubaydah interrogation, although the FBI acknowledged that
the CIA was in charge of the interrogation and that they were there to provide
assistance. 13 Because the CIA interrogators were not yet at the site when the FBI
agents arrived, however, two experienced FBI interrogators began using
"relationship building" or "rapport building" techniques on Abu Zubaydah. During
this initial period, the FBI was able to learn his true identity, and got him to
identify a photograph of another important al Qaeda leader, Khalid Sheikh
Muhammad, as. "Muktar," the planner of the September 11 attacks.
(L4 When the CIA personnel arrived, they took control of the interrogation.
4
1 13 (U)'The DOJ Inspector General's report, titled A 4eview of the. FBI's Involvement in and
Observations of Detainee Interrogations in Guantanamo Bay, Afghanistan, and Iraq, (the DOJ OIG
Report) focuses on the FBI's role in military interrogations at Guantanamo and elsewhere but also
discusses the CIA's handling of Abu Zubaydah.
12S1P_SEeREMMEMIDLOP7Z1
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The CIA interrogators were reportedly unhappy with the quality of information
being provided, and told the FBI that they needed to use more aggressive
techniques. The FBI believed that its traditional interrogation techniques were
achieving good results and should be continued. However, the CIA interrogators
were convinced that Zubaydah was withholding information and that harsh
techniques were the only way to elicit further information. According to the DOJ
OIG report, the CIA began using techniques that were "borderline torture," and
Abu Zubaydah, who had been responding to the FBI approach, became
uncooperative. According to one of the FBI interrogators, CIA personnel told him
that the harsh techniques had been approved "at the highest levels."
(U) According to the DOJ OIG Report, the FBI interrogators reported these
developments to headquarters and were instructed not to participate in the CIA
interrogations and to return to the United States One of them left the black site
in late May 2002, and the other left shortly thereafter, in early June 2002. 14
(U) The CIA's perception that a more aggressive approach to interrogation
was needed accelerated the ongoing development by the CIA of a formal set of EITs
by CIA contractor/psychologists, some of whom had been involved in the United
States military's Survival, Evasion, Resistance, and Escape (SERE) training
program for Air Force, Navy and Marine personnel.
(U) 'SERE training was developed after the Korean War in order to train
pilots to withstand the type of treatment they could expect to receive at the hands
of the- enemy during wartime. The SERE program placed trainees in a mock
prisoner of war camp and subjected them to degrading and abusive treatment,
similar to, but less intense than, actual conditions experienced by United States
troops iii the past. Its purpose was to prepare trainees for the demands they may
face as Srisoners of war and to improve° their ability to resist harsh treatment.
Aggressive interrogation techniques . used in SERE training were based on
techniques used by the German, Japanese, forean, Chinese, and North
Vietnamese military in past conflicts. They included slapping, shaking, stress
positions, isolation, forced nudity, body cavity searches, sleep deprivation,
exposure to extreme heat or cold, confinement in cramped spaces, dietary
(U) Although CIA and DOJ witnesses told us that the CIA was waiting for DOJ approval
before initiating the use of EITs, the DOJ OIG report indicates that such techniques were in fact
used on Abu Zubaydah prior to the August 1, 2002 OLC memoranda.
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manipulation and waterboarding.
(U) However, according to a May 7, 2002 SERE training manual, "Pre-
Academic Laboratory (PREAL) Operating Instructions,"(PREAL Manual) the SERE
training program differed in one significant respect from real world conditions.
The PREAL Manual noted that:
Maximum effort will be made to ensure that students do
not develop a sense of "learned helplessness" during the
pre-academic laboratory.
*
The goal is not to push the student beyond his means to
resist or to learn (to prevent "Learned Helplessness"). The
interrogator must recognize when a student is overly
frustrated and doing a poor job resisting. At this point
the interrogator must temporarily back off, and will
coordinate with and ensure that the student is
monitored by a controller or coordinator.
PREAL Manual, II 1.6 and 5.3.1.' 5
AIME
twelve -EITs to 'be used in the interrogation of Abu Zubaydah:
(1) Attention grasp: The interrogator grasps the subject with both
hands, with one hand on each side of the collar opening, in a
controlled and quick motion, and draws the subject toward the
interrogator;
(2) Walling: The subject is pulled forward and then quickly and firmly
pushed into a
false wall so that his shoulder blades hit the
wall. His head
and neck are supported with a rolled towel to prevent
whiplash;
15 (U) OLC's files included a copy of the PREAL Manual, but no indication of how or when it
was obtained.
The CIA psychologists eventually proposed the following
...TQP-SEeitETIMMMINDEGRIT
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(3) Facial hold: The interrogator holds the subject's head immobile by
placing an open palm on either side of the subject's face, keeping
fingertips well away from the eyes;
(4) Facial or insult slap: With fingers slightly spread apart, the
interrogator's hand makes contact with the area between the tip of
the subject's chin and the bottom of the corresponding earlobe;
(5) Cramped confinement: The subject is placed in a confined space,
typically a small or large box, which is usually dark. Confinement in
the smaller space lasts no more than two hours and in the larger
space it can last up to 18 hours;
(6) Insects: A harmless insect is placed in the confinement box with the
detainee;
(7) Wall standing: The subject may stand about 4 to 5 feet from a wall
lwith his feet spread approximately to his shoulder width. His arms
are stretched out in front of him and his fingers rest on the wall to
support all of his body weight. The subject is not allowed to
reposition his hands or feet;
' Stress positions: These positions may include having the detainee
sit on the floor with his legs extended straight out in front of him with
his arms raised above his head or kneeling on the floor while leaning
back at a 45 degree angle;
Sleep deprivation: The subject is prevented from sleeping, not to
exceed 11 days at a time; 16
(10) Use of Diapers: The subject is force& to wear adult diapers and is
denied access to toilet facilities for an extended period, in order to
humiliate him;
,t
16 )P5'.=ts initially proposed, sleep deprivation was to be induced by shackling the
subject in a standing position, with his feet chained to a ring in the floor and his arms attached
to a bar at head level, with very little room for movement.
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(11) Waterboard: The subject is restrained on a bench with his feet
elevated above his head. His head is immobilized and an interrogator
places a cloth over his mouth and nose while pouring water onto the
cloth in a controlled manner. Airflow is restricted for 20 to 40
seconds; the technique produces the sensation of drowning and
suffocation;
UT (U) Rizzo told us that although he thought use of the EITs would. not violate the torture
statute, he .recognized that some of the techniques were aggressive, and could be "close to the line
at a minimum." At the time, he therefore considered the legality of EITs an open question.
DRAFT
JrT.8== According to John Yoo, Bellinger told him during their
initial conversation that access to information about the program was extremely
restricted and that the State Department should not be informed. 18 Yoo recalled
telling Bellinger that he would have to report on the matter to Attorney General
Ashcroft and the AG's Counselor, Adam Ciongoli, and that additional OLC
attorneys would be needed to work on it.
(U) Shortly thereafter, Yoo contacted Ciongoli and arranged to brief him and
AG Ashcroft. According to Yoo, he told them that the CIA and NSC had asked
OLC to explain the meaning of the torture statute. He believed he would have told
them that the issue had been raised by the capture of Abu Zubaydah, and that
the CIA wanted to know what limits the torture statute placed on his
interrogation. Yoo also recalled consulting the Attorney General about who else
in the Department should know about the project. At that point, it was decided
that access would be limited to Ashcroft, Ciongoli, DAG Larry Thompson, AAG
Bybee, Yoo, and OLC Deputy AAG Patrick Philbin.' 9
(U) Yoo told us that shortly after his conversation with Ashcroft, he met with
AAG Bybee and Deputy AAG Philbin to tell them about the assignment and to
determine which OLC line attorne should work on the project with him."
According to Yoo, they agreed tha as the best choice, probably
because she had recently joined an therefore had some time available.
Philbin was the "second Deputy" on the project. 21
is • (U) Yoo told OPR that he did not know why the NSC excluded the State Department from
the draftigg process, but speculated that it may have been because of concerns about operational
security. , Bybee stated that he had no recollection of bein told at the draft w. not
distributed to the State De artment.
19 (U) Ciongoli's recollection of this meeting is generally consistent with that of Yoo, although
Ciongoli did not recall any discussion with Yoo or the Attorney General about who would be
granted access to information about the project..
20 (U) Neither Bybee nor Philbin have any specific memory of this meeting. Bybee told OPR
that he is ,pot sure when he first learned about the project, and suggested that Yoo may have
selected the line attorney without consulting him.
21 (U) As a matter of OLC practice, a second Deputy AAG reviews every OLC opinion before
it is finalized. This is referred to as the "second deputy review."
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(U) Email records indicate that the matter was recorded on an OLC log sheet
on April 11, 2002, with and Yoo designated as the assigned attorneys.
The log sheet listed "John Rizzo Central Intelligence Agency" as the client. Yoo
provided with the research he had already done and made a few
suggestions about where she should start. He instructed her to determine
whether anyone had ever been prosecuted under the torture statute, to check the
applicable statute of limitations, and to determine what types of conduct had been
held to constitute torture under the Torture Victim Protection Act (TVPA) 22 and the
Alien Tort Claims Act (ACTA). He also asked her to look at two foreign cases that
discussed interrogation techniques and torture.' sent Yoo a four-page
summary of her research on April 15, 2002, and they met that afternoon to
discuss it in advance of the NSC meeting that was scheduled for the following day.
01 At -the meeting, the CIA attorneys explained that the plan developed by
CIA psychologists relied on the theory of "learned helplessness," a passive and
depressed condition that leads a subject to believe that his actions are ineffective.
The condition reportedly creates a psychological dependance and instills a sense
22 (U) As discussed more fully below, the TVPA's definition of torture is similar to that of the
torture- statute.
23 (U) Those cases were Ireland v. the United Kingdom, 25 Eur. Ct. H.R. (sec. A) (1978) and a
decision of the Supreme Court of Israel, Public Committee Against Torture in Israel v. Israel, 38
I.L.M. 14'h (1999) (PCATI v. Israel).
24 (U) Most of the witnesses we asked about meetings on interrogation issues had only general
recollections of the dates and attendees. To our knowledge the DOJ participants did not take
notes or prepare written " summaries relating to any of the meetings. Our factual summary is
therefore based on the witnesses' recollections, occasionally substantiated by contemporaneous
email messages or calendar entries, and in some instances by a post-meeting Memorandum for the
Record (MFR) prepared by the CIA attendees. Although we have summarized the CIA MFRs to
describe what may have occurred, we recognize . that those reports reflect the agency's view of the
proceedings and are not necessarily accurate accounts.
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DRAFT
that because resistence is futile, cooperation is inevitable.
Accor. mg to the MFR, Yoo stated that his research into the torture statute
had revealed that there were no reported decisions interpreting the law, and that
findings of torture under the TVPA involved extremely shocking mistreatment that
went far beyond what was contemplated under the CIA's interrogation plan. He
stated that the closest applicable authority was Common Article Three of the
Geneva Conventions, but that OLC had already determined that members of al
Qaeda were not entitled to the protection of Common Article Three. 26
25 (U),TheMFR did not name or cite those cases, but the reference was clearly to the two cases
discussed above - Ireland v. United Kingdom and PCATI v. Israel. The CIA attorneys and Yoo
reporte-dly. discussed the cases and their descriptions of specific EITs used by the British and
Israeli military and intelligence services.
26 (U) OLC reported its conclusion regarding Commoi Article Three in a Memorandum for
Alberto R. ,Gonzales Counsel to the President, and Williarn 1 J Haynes, II, General Counsel of the
Department of Defense, from Jay S. Bybee, Assistant Attcirney General, Office of Legal Counsel,
Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees (January 22, 2002). As
noted earlier, that view of the law was subsequently rejected by the United States Supreme Court
in Hamdan u. Rumsfeld, 548 U.S. 557 (2006).
292..srbettrr iy...9.E.‘"Par
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(U) 2. Drafting the Bybee Memo
(U) After the meeting nd Yoo began drafting what would eventually
become the Bybee Memo. 2 Working together, they produced at least four drafts
before reporting back to the CIA and NSC in July 2002. Their normal practice was
foi to prepare a draft that incorporated whatever comments or direction
Yoo had provided. Yoo would then revie work and provide additional
comments by email, usually within a few days. They also met from time to time to
discuss the project. 28
(U) From the outset, the drafts argued the position that the statute's
definition of torture applied only to extreme conduct, and that lesser conduct,
which might constitute " ca - man or degrading" treatment, did not rise to the
level of torture. Yopo and sup orted this position through analysis of the
text and legislative history of the statute, the text and ratification history of the
CAT, case law relating to the TVPA, and the Israeli and European Court of Human
Rights cases mentioned above. As the drafts progressed, they emphasized this
point more strongly.
(U) For example, in the first draft noted that in order to constitute
physical torture under the statute, conduct must result in the infliction of "severe
pain" and cited two dictionary definitions of "severe," suggesting that the degree of
pain must be intense and difficult to endure. The torture statute's legislative
history, the text and ratification history of the CAT, the statements of fact in
several cases applying the TVPA, and the two international cases mentioned above
were also cited to support the conclusion that torture was "extreme conduct" that
went beyond cruel, inhuman or degrading treatment.
A
27 (U) On April 24, 2002 complained to a friend by email about the long hours she
was working, and stated, "I have a number of large pro'ects with different people. I would have
said no but it didn't seem like that was an option here. old her friend that she liked the
work she was doing but wanted "enough time to do a good job on it and complained that she was
working twelve hour days without breaks. In her OPR in,terview, denied that she was
overworked or that she had insufficient time to . devote to her projects.
•
28 (U) The first draft, dated April 30, 2002, was followed by drafts dated May 17, 2002, June
26, 2002, and July 8, 2002. The July 8, 2002 draft appears to be the first draft - that was
distributed outside OLC for comments.
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(U) In his comments of May 23, 2002, Yoo askedMMto see if "severe"
appeared elsewhere in the United States Code, and suggested other changes "to
demonstrate how high the bar is to meet the definition of torture." In the next
draft, dated June 26, 2002 cited several essentially identical health care
benefits statutes, which listed symptoms that would lead a reasonable person to
conclude that someone was suffering an "emergency medical condition." The term
"severe pain" was not defined in the health care statutes, but was listed as a
possible indicator that a person was experiencing an emergency medical condition.
(U) That draft included the statement that these health care benefits statutes
"suggest that 'severe pain,' as used in [the torture statute] must rise to . . . the level
that indicates that death, organ failure, or serious impairment of body functions
will reasonably result . . . ." Bybee June 26, 2002 draft memo at 2. This
proposition was _summarized in the conclusion section of the draft as follows:
"Severe pain is generally of the kind difficult for the victim to endure. Where the
pain is physical, it is likely to be accompanied by serious physical injury, such as
damage to one's organs or broken bones." Id. at 23. In his comments to
on this draft; 'Yoo told her to "cite and quote S.Ct. case for this proposition." Id.
at 2.
(U) On July 8, 2002,Yoo and had produced a draft that they were
ready to give to the White House Counsel, the CIA and NSC for review. On July 11,
2002, Koester provided a copy to OLC paralegal for cite checking, and
two meetings were scheduled - with White House Counsel on Friday, July 12,
2002, and with AAG Chertoff, the FBI, CIA and NSC on Saturday, July 13, 2002.
and Yoo appear to have had a briefing, session with Chertoff on July 11,
2002. A few minor changes and cite-checking corrections were made to the
memora4dum prior to the meeting at the White House, and a new draft dated July
12, .2002 iwas produced by Yoo and
(U) The July 12, 2002 draft was addressed tJohn Rizzo as Acting General
Counsel for the CIA, and was divided into four parts:
(1) an examination of the text and history of the Statute, which concluded
that (a) for physical pain to amount to torture, it "must be of such intensity
that it is likely to be accompanied , by serious physical injury, such as organ
failure, impairment of bodily function, or even death" and (b) for mental pain
or suffering to constitute torture, "it must result in psychological harm of
DRAFT
significant duration, e.g., lasting for months or even years";
(2) an examination of the text, ratification history and negotiating history of
the CAT, which concluded that the treaty "prohibits only the most extreme
acts by reserving criminal penalties solely for torture and declining to require
such penalties for cruel, inhuman, or degrading treatment";
(3) analysis of case law under the TVPA, concluding that "these cases
demonstrate that most often torture involves cruel and extreme physical
pain, such as the forcible extraction of teeth or tying upside down and
beating"; and
(4) examination of the Israeli Supreme Court and ECHR decisions mentioned
above, concluding that the cases "make clear that while many of these
techniques [such as sensory deprivation, hooding and continuous loud
noises] may amount to cruel, inhuman and degrading treatment, they simply
lack the requisite intensity and cruelty to be called torture . . . . Thus, [the
two cases] appear to permit, under international law, an aggressive
interpretation as to what amounts to torture, leaving that label to be applied
only where extreme circumstances exist.
(U) On Friday afternoon, July 12, 2002, Yoo and met Gonzales at the
White Holise Counsel's Office. It is likely that Deputy White House Counsel Tim
Flanigan and/or Counsel to the Vice President David Addington were also resent,
butMMand Yoo were not certain if either attended this meeting. rally
summarized the memorandum's conclusions for the group and they gave Gonzales
two copies of the memorandum for review. According to Yoo, none of the attendees
providedany feedback or comments at this meeting.
DRAFT
According to several sources, Levin stated that the FBI would
not conduct 'or participate in any interrogations employing EITs, whether or not
they were found to be legal, and that the FBI would not artici ate in an further
discussions on the sub'ect.
JeKAfter the meeting, Yoo drafted a two-page letter to Rizzo setting forth the
elements . of the torture statute and discussing the specific intent required to
establish. infliction of severe mental pain or suffering. The specific intent
discussion read as follows:
.; Specific intent can be negated by a showing of good faith.
1 Thus, if an individual undertook any of the predicate acts
for severe mental pain or suffering, but did so in the good
faith belief that those acts would not &use the prisoner
prolonged mental harm, he would not ha?e acted with the
specific intent ;necessary to establish torture. If, for
example, efforts were made to determine what long-term
impact; if any, specific conduct would have and it was
29 (U) The CIA allowed us to read this document and take notes, but we were not permitted
to retain a copy.
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DRAFT
learned that the conduct would not result in prolonged
mental harm, any actions undertaken relying on that
advice would have be [sic] undertaken in good faith. Due
diligence to meet this standard might include such
actions as surveying professional literature, consulting
with experts, or evidence gained from past experience.
The letter, dated July 13, 2002, appears to have been sent to Rizzo by secure fax
on July 15; 2002.
(U) Shortly thereafter, Chertoff asked Yoo to draft a letter to the CIA stating
that the Department does not issue pre-activity declination letters. On July 16,
2002, Yoo told o prepare a draft, and on July 17, 2002, after consulting
with Chertoff, Deputy AAG Alice Fisher, and other OLC attorneys sent Yoo
a one-page draft of a letter from Yoo to Rizzo, which included the following
statement:
you have inquired as to whether the Department of
Justice issues letters declining to prosecute future
activity that might violate federal law.. . . . It is our
understanding, . . . after consultation with the Criminal
Division, that the Department does not issue letters of
declination for future conduct that might violate federal
law. We have found no authority for issuing a letter for
such conduct.
The letter was reviewed and approved by OLC and the Criminal Division on. July
17, 2004", but does not appear to have ever been sent to the CIA. The witnesses
could-noti recall why the letter was never sent.
(U) Yoo told us that he provided regular briangs about the memorandum
to John Ashcroft and Adam Ciongoli, and remembered mentioning to Ashcroft that
the CIA had requested some sort of advance assurance that they would not be
prosecuted for using EITs. 36 According to Yoo, Ashcroft was sympathetic to the
30 (U) Bybee told us that he remembered attending one meeting with Ashcroft and Yoo about
the interrogation memorandum, but did not recall if anyone from the Attorney General's staff was
present. Bybee and Yoo told Ashcroft that OLC was preparing a sensitive memorandum for the
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request, and asked Yoo if it would be possible to issue "advance pardons." Yoo
replied that it was not, and told Ashcroft that Chertoff had rejected. the CIA
request. Ciongoli told us that he remembered Yoo telling him at some point that
the CIA had requested an advance declination of prosecution and that the request
had been denied, but did not recall if Ashcroft was present at the time. He also
remembered that the concept of an "advance pardon" was discussed as the Bybee
Memo was being finalized, but stated that Ashcroft was not present.at that time.
(U) On July 15, 2002, Yoo sent the following email message ton.
One other thing to include in the op: a footnote saying
that we do not address, because not asked, about
defenses, such as necessity or self defense, or the
separation of powers argument that the law would not
apply to the exercise of the commander in chief power.
(U) The next day, Tuesday, July 16, 2002, Yoo andlillmet once again
with Gonzales (and possibly Addington and Flanigan) at the White House. Yoo
provided a copy of his July 13, 2002 letter to Rizzo on the elements of the torture
statute and specific intent. Gonzales, Yoo and1111111311 told 'OPR that they had
no specific recollection of what was discussed at this meeting.
(U) „F011owing the meeting, and Yoo began working on two new
sections to the memo: (1) a discussion of how the Commander-in-Chief power
affected enforcement of the torture statute; and (2) possible defenses to violations
of the statute. On July 17, 2002,111111drafted a document she captioned
"Defenses to a charge of torture under Section 2340," in which she outlined
possiblelustification defenses to violations of the torture statute.
(U)11111111told us that Yoo had asked her to begin working on a section on
White HoUSe interpreting the torture statute. 'According tti Bybee, Ashcroft did not ask to review
the memorandum, and Bybee did not recall if he said anything about immunity or advance
pardons. Bybee did remember the Attorney General expressing regret that it was necessary to
answer such questions and acknowledging that it was necessary to do so,
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DRAFT
possible defenses, and that the notes reflect her preliminary research.' She added
that to her knowledge, the new section was not added in response to any request
from the White House, NSC or. CIA, or to address any concerns raised by them. At
about the same time, Yoo told her they were adding a section on the im act of the
Commander-in-Chief power on the enforceability of the statute. stated
that she believed both sections were added to "give the full scope of advice" to the
client. also told us that she thinks she ended up writing the Commanderin-
Chief section, with "a lot of input" from Yoo and Philbin, and that Yoo wrote the
section on defenses.
(U) Yoo told OPR that he was "pretty sure" that the two sections were added
because he, Bybee and Philbin "thought there was a missing element to the
opinion." He stated that he remembered the three of them talking about the
sections and whether to include them in the memorandum, and he believes that
Bybee went back and forth on that question before the memorandum was finalized.
Yoo acknowledged that the CIA may have indirectly suggested the new sections by
asking him what would happen in the case where an interro ator went "over the
line" and inadvertently violated the statute. Althoug ay have done a
draft of the sections, Yoo told us that he remembers writing a lot of them himself.
(U) Philbin told us that he did not know why the two sections were added.
As second deputy, he did not review any drafts until late in the process, and when
he did, he 'told Yoo that he thought the sections were superfluous and should be
removed: According to Philbin, Yoo responded, "They want it in there." Philbin did
not know who "they" referred to and did not inquire; rather, he assumed that it
was whoever had requested the opinion.
(Ur. Bybee told us he did not recall why the two sections were in the
memOranilum and he did not remember discussing them with Yoo and Philbin, nor
did he recall that Philbin raised any concerns about them. He did not remember
seeing any drafts that did not contain the two secaons.
31 (U wised several problems with the defenses, including the comment
that self defense "seems to me wholly implausible" becatiOe of the requirement that threatened
harm be imminent. In her interview with OPR old us that she ultimately resolved all of
her problems with the defenses and concluded that t e defenses were applicable to the torture
statute.
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(U) Rizzo stated that the CIA did not request the addition of the two sections.
Although he thought the Bybee Memo presented a very aggressive interpretation
of the torture statute, he did not offer any specific objections to the analysis. From
the agency's point of view, a broad, expansive view of permissible conduct was
considered a positive thing.
(U) Gonzales told us that he did not recall ever discussing the two sections,
or how they came to be added to the Bybee Memo. He speculated that because
David Addington had strong views on the Commander-in-Chief power, he may have
played a role in developing that argument.
(U) Addington appeared before the House Judiciary Committee on June 17,
2008, and testified that at some point, Yoo met with him and Gonzales in Gonzales'
office and outlined the subjects he planned to discuss in the Bybee Memo. Those
subjects included the constitutional authority of the President relative to the
torture statute and possible defenses to the torture statute. Addington testified
that he told Yoo, "Good, I'm glad you're addressing these issues."
(U) With regard to why the two new sections were added to the draft Bybee
Memo, we found it unlikely that Philbin and Bybee played a part in the decision,
notwithstandin Yoo's recollection to the contrary. We noted that on July 15,
2002, Yoo tol y email that he did not intend to address possible defenses
or the powers of the Commander in Chief in the memorandum, and that the day
after their July 16, 2002 meeting with Gonzales (and possibly Addington and
Flanigan)., he and began working on the two new sections. In view of this
sequence of events, we believe it is likely that the sections were added because
some number of attendees at that meeting requested the additions, perhaps
because-Ole Criminal Division had refused to issue any advance declinations.
4
On ul 2 Yoo sent an email io
sking him to explain how common law defenses were
•
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incorporated into federal criminal law. 32 responded that he was "just
headed out" but explained in a short email message, without citing any specific
statutory or case law authority, that federal courts generally accept and recognize
common law defenses.
(U) On July 23, 2002 asked paralegal or assistance in
obtainin additional dictionary definitions for "prolonged," "profound," and
"disrupt. lso sent Yoo a new draft, dated July 23, 2002, noting in her
email that she had incorporated the cite check, new material on specific intent,
and Philbin's comments. This draft was the first to include sections on possible
defenses and the Commander-in-Chief power. It also included a new discussion
of specific intent as it related to the infliction of prolonged mental harm under the
torture statute. 33 The memorandum was no longer addressed to John Rizzo.
According to Rizzo, he would not have wanted an unclassified memorandum on
interrogation techniques to be addressed to the CIA, because it would have
confirmed the existence of the classified interrogation program.
On July 24, 2002, Yoo telephoned Rizzo and told him that
the Attorney ,Genera had authorized him to say that the first six EITs (attention
grasp, walling, facial hold, facial slap, cramped confinement and wall standin
were lawful and that they could proceed to use them on Abu Zubaydah.
Rizzo re orted that as for more controversial techniques"
[water oar ing Yoo had told him that DOJ was waiting for more
data frorn the
32 (U}-(Yoo's email reads as follows:
I've got a work question for you. I-tow are the,common law defenses, such
as necessity, self-defense, etc., incorporated into the federal criminal law?
From what I can tell, there is no federal statute granting these defenses, yet
federal courts recognize that they , exist. Is there some Supreme Court case
that requires or mentions them? .
4EIT,That discussion incorporated and expanded upcin the language in Yoo's July 13, 2002
• letter to Riizo, including the letter's assertions: that specific intent "can be negated by a showing
of good faith," and "[d]ue diligence to meet thit [good faith] standard might include such actions
as surveying professional literature, consulting with experts, or evidence gained from past
experience." July 13, 2002 letter from John Yoo to John Rizzo at 1.
DRAFT
,(STS At some point thereafter, according to Rizzo and
OLC told the CIA that approval for the remaining techniques would take longer if
were part of the EIT program. Rizzo remembered Yoo asking how
important the technique was to them because it would take loner to corn•lete the
memorandum if it were included.
Over the next few days, seni additional
informatfon relating to the proposed interrogation, including a psychological
assessmebt of Abu Zubaydah and a report from CIA psychologists asserting that
the use of harsh interrogation techniques in SERE. training had resulted in no
adverse long term effects.
(U) On July 26, 2002, sent three memoranda the CIA had
obtained from the Department of Defense Joint Personnel Recovery Agency (JPRA)
and the United States Air Force. The memoranda, dated July 24 and July 25,
2002, were in response to requests for informatiol from the DOD Office of General
Counsel about SERE interrogation techniques. The two JPRA memoranda were in
response to a request for information about interrogation techniques used against
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United States prisoners of war, and the techniques used on students in SERE
training. The Air Force memorandum was from a psychologist who served in the
Air Force's SERE training program. The memorandum discussed the psychological
effects of SERE training, noting that the waterboard was 100% effective as an
interrogation technique, and that the long-term psychological effects of its use were
minimal.
(U) Later that afternoon, sent -Yoo the following email message:
I got a message from She said the agency wants
written approval rather than just oral approval. She said
that this did not need to be in the form of a written
opinion, but could be some sort of short letter that tells
them that they have the go ahead.
(U) Yoo and then began working on a second, classified
memorandum that evaluated the legality of the specific EITs. That evening, Yoo
sentMEthe following email message:
I talked to the white house. They would like the memos
done as soon as possible. I think that means you should
spend the time over the weekend completing
memorandum no 2 [the classified memorandum on
specific techniques], because memorandum 1 is pretty
close and I could finish 1 on Monday.
(U) In a July 26, 2002 email, Yoo asked to "stop by and pick up
[Philbin's] comments and input them . . . You also have Mike Chertoff's
comments, to input." Two days later, on July 28, 2002, Yoo sent a new
draft that he stated included "the Philbin, Gonzales and Chertoff comments."
(U) We did not find a record of Philbin's, Gonzales' or Chertoff s comments
in OLC's files. Philbin told us that he generally noted his comments in writing on
T RE
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the draft and then discussed them either with Yoo or He did not
remember any of his specific comments, but recalled telling Yoo that he thought
the discussion of the Commander-in-Chief power should be taken out of the
memorandum because it was not necessary to the analysis. Philbin told us he had
concerns about the section because the argument was aggressive and went beyond
what OLC had previously said about executive power, but he told us that it was not
"plainly wrong" or indefensible. He also said that he told Yoo the memorandum's
discussion of possible defenses to the statute was unnecessary. As noted above,
Philbin recalled Yoo's response to his comments was, "they want it in there," which
he took as a reference to "whoever had requested" .the opinion.
(U) Gonzales told us that when he reviewed drafts from John Yoo, he would
typically write his comments on the draft and either give them directly to Yoo, or
pass them along to other lawyers, such as Addington or Flanigan, who would
forward them to Yoo along with their own comments. Gonzales stated that he has
no recollection of reviewing a draft of the Bybee Memo, and that he does not recall
if he had any comments.
(U) Yoo told us that he remembered showing Chertoff a draft of the Bybee
Memo, and recalls sitting. in Chertoff's office and "walking him through" the
memorandum. According to Yoo, Chertoff read the memorandum carefully and
they discussed it together_ Yoo recalled that Chertoff was concerned that the
memorandum could be interpreted as providing a "blanket immunity."
(U) Chertoff acknowledged that Yoo gave him a draft of the Bybee Memo at
some point, and he read it and returned it to Yoo that same day. He remembered
discussing the memorandum with Yoo, but said it was not a long or detailed
discussion. Chertoff denied that Yoo "walked him through" the document.
(U) Chertoff remembered making two comments about the Bybee Memo's
discussion of specific intent. He prefaced those comments by telling Yoo that he
had not checked the memorandum's legal research and that he assumed it was
correct. He then told Yoo that while the discussion of specific intent might be
correct "in law school," he would not want to defend a case in front of a jury on
that basis. He also reportedly emphasized the importance of conducting additional
due diligehce into the effect of the interrogation techniques. According to Chertoff,
he told Yoo that the more investigation into the physical and mental consequences
of the techniques they did, the more likely it would be that an interrogator could
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successfully assert that he acted in good faith and did not intend to inflict severe
physical or mental pain or suffering. 34
(U) We were unable to pinpoint exactly when Bybee became involved in the
review process. Internal email suggests' that he had discussed aspects of the
memorandum with y July 26, 2002, and Yoo's files included a draft dated
611(A, 2002, titled "2340 (JSB Revisions)." 35 On the morning of July 31, 2002,
told Bybee by email that she had "a couple of questions" about his edits,
and later that afternoon, she told Philbin and Bybee that she had left revised drafts
in their offices. Bybee had a very poor memory of the drafting process and
provided little information about his role. According to Rizzo, he never met Bybee
or discussed the Bybee Memo with him, and "couldn't pick him out in a lineup."
(U) Yoo told us that sometime around the end of July, he briefed Ashcroft
and Ciongoli on the Bybee Memo. 36 According to Yoo, he provided Ciongoli and
Ashcroft copies of the draft, but the Attorney General did not read it or provide any
comments.,. Ciongoli told us, however, that he recalled a briefing at which Yoo
provided a copy of the shorter, classified memorandum that discussed specific
interrogation techniques. According to Ciongoli, Ashcroft read the memorandum
and engaged Yoo in a vigorous discussion of the memorandum's legal reasoning.
Ciongoli did not remember any specific questions or comments, but recalled that
the Attorney General was ultimately satisfied with the opinion's reasoning and
analysis. With respect to waterboarding, Ciongoli recalled that he and Ashcroft
concluded that Yoo's position was aggressive, but defensible.
(U) We found two drafts of the Classified Bybee Memo in OLC's files that
34 (U) The draft that apparently incorporated Chertoff's comments (as well as those of Philbin
and Gonzales) reflected some minor changes in the discussion of specific intent, but no major
revisions.
35 (U) Based on the revisions indicated by the dociiment's "track changes" feature, we
conclud4that Bybee's changes were not extensive.
36 (U) According to Yoo, he also briefed then DAG Larry Thompson about the memorandum
at some point.
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appeared to include Bybee's handwritten comments in red ink.' The comments
were all minor and did not materially change the substance of the final opinion.
Apart from the revisions displayed in the "track change" feature of the July 31,
2002 draft, we found no record of Bybee's comments on the unclassified Bybee
Memo.
37
; (up Bybee told us that he generally wrote his comments on drafts in red ink. The
documents in question bear Bybee's initials on the top of the first pages, along with the date "8/ 1"
and the times "11:00" and "4:45," respectively.
DRAFT
(U) The Bybee Memo and the Classified Bybee Memo were finalized and
signed on August 1, 2002. 4° Ciongoli told us that sometime that day in the late
afternoon, he was asked to come to Bybee's office. Bybee, Yoo, Philbin and
were all present. 41 According to Ciongoli, Yoo and .Bybee described the analysis
and conclusions of the Bybee Memo, but he did not recall reading the opinion or
giving any comments. Yoo confirmed that Ciongoli was in the room when Bybee
signed the opinions, and stated that Cion oli reviewed the last draft and continued
to make edits until the last minute. told us she remembers Ciongoli being
in the room as they finalized the documents, and stated that he asked them to add
language to the Classified Bybee Memo to make it clear that DOD's approval was
limited to the circumstances described in the memorandum, and that the CIA
would have to seek DOJ approval if they changed or added EITs. The meeting
ended with Bybee signing the opinion, sometime after 10:00 p.m. According to CIA
records, the Classified Bybee Memo was faxed to them at 10:30 p.m. on August 1,
2002.
(U) Philbin told us that, at the end of the review process when the opinions
were about to signed, he still had misgivings about the wisdom of including the
sections that .discussed the Commander-in-Chief power and possible defenses, but
that he nevertheless told Bybee that he could sign the opinion.. During his OPR
interview, Philbin explained his thought process at the time as follows:
[W]hat matters is you're giving advice about whether or
not those things can be done. The conclusion is that
these things do not violate the statute. That advice is
okay. You've got dicta in here about other theories that
I think is not a good idea. But given the situation and the
40 (U):In a July 31, 2002 email to Philbin te: "John wanted me to let you know
that the White House wants both memos signed and out 1331 COB tomorrow."
•
41 (U) This was the first time Ciongoli had ever spoken to Bybee about the interrogation issue.
2:90-eLrczEMII 5a;
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time pressures, and they are telling us this has to be
signed tonight - this was like at 9 o'clock, 10 o'clock at
night on the day it was signed - my conclusion is that's
dicta. That's not what's supporting this conclusion. I
wouldn't put it in there. But I think it is permissible, it's
okay for you to sign it.
(U) Philbin said he did not believe that defenses should have been included
in the memorandum, but rather that the analysis should have been limited to what
the CIA could do within the law. He said the defenses section "suggests that
maybe there is something wrong. You're going to have to use the defenses." He
added: "I don't think it is good lawyering to present that to your client."
(U) Philbin said he told Yoo that he had concerns about the Commander-in-
Chief discussion. He stated: "It was very aggressive. But we had been looking a
lot at a Commander-in-Chief authority since the beginning of the war, and I had
concerns about it because it was a step beyond things we had said." He told us he
advised Yoo to delete the section.
(U) On the morning of August 2, 2002 informed Yoo by email that
the original memoranda were in the DOJ Command Center. Shortly before noon,
Yoo emailed instructions for delivering copies of the memoranda to the
White House, CIA, AG's office and the DAG's office.' According to CIA records, the
agency received a copy of the Bybee Memo by fax at approximately 4 p.m. that day.
42 (U) In his email, Yoo stated that he would deliver copies of the memoranda to the White
House and to "DoD." In another email, Yoo.directed to send "both memos" to DOD. In his
OPR interview, however, Yoo stated that the Defense Department did not receive a copy of the
Bybee Memo.
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•
43 (U) Four days later old Yoo in an email that she had spoken t
"a cable was sent out last wee , o owing the issuance of the opinions."
and that
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(U) 3.. Key Conclusions of the Bybee Memo
(U) The final version of the Bybee Memo made the following key conclusions
regarding the torture statute:
(U) 1. In order to constitute a violation of the torture statute, the infliction
of physical pain "must be equivalent in intensity to the pain accompanying serious
Physical injury, such as organ failure, impairment of bodily function, or even
death." Based on the context of the language and dictionary definitions of "pain"
and "suffering," severe physical suffering is not distinguishable from severe
physical pain.
(U) 2: The infliction of severe physical pain or severe mental pain or suffering
must be "the defendant's precise objective." Even if a defendant knows that severe
pain will result from his actions, he may lack specific intent if "causing such harm
is not his objective, even though he does not act in good faith." However, a jury
might .conclude that the defendant acted with specific intent.. A good faith belief
that conduct would not violate the law negates specific intent. A good faith belief
need not be reasonable, but the more unreasonable the belief, the less likely it
would bthat a jury would conclude that a defendant acted in good faith.
(U) 3. The infliction of mental pain. or suffering does not violate the torture
statute unless it results in "significant psyChologicAl harm" that lasts "for months
or even years . . . such as seen .in mental disorders like posttraumatic stress
disorder." A defendant could negate a showing of specific intent to cause severe
mental pain or suffering by showing that he had read professional literature,
consulted experts, and relied on past experience to arrive at a good faith belief that
his condLict would not result in prolonged mental' harm. Such a . good faith belief
would constitute a complete defense to:such a charge.
(U) 4. Almost all of the United States court decisions applying the TVPA have
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involved instances of physical torture, of an especially cruel and even sadistic
nature. Thus, "the term torture' is reserved for acts of the most extreme nature!'
(U) 5. "[B]oth the European Court on Human Rights and the Israeli Supreme
Court have recognized a wide array of acts that constitute cruel, inhuman, or
degrading treatment or punishment, but do not amount to torture. Thus, they
appear to permit, under international law, an aggressive interpretation as to what
amounts to torture, leaving that label to be applied only where extreme
circumstances exist."
(U) 6. Prosecution of government interrogators under the torture statute
"may be barred because enforcement of the statute would represent an
unconstitutional infringement of the President's authority to conduct war."
(U) 7. The common law defenses of necessity and self-defense "could provide
justifications that would eliminate any criminal liability" for violations of the
torture statute.
1 -
(U) 4. Key Conclusions of the Classified Bybee Memo
L The use of ten EITs -= (1) attention grasp, (2) walling, (3)
facial hold ; (4) facial slap, (5) cramped confinement, (6) wall standing,. (7) stress
positions;18) sleep deprivation, (9) insects placed in a confinement box, and (10)
the waterboard.- would not violate the torture statute.
2. All Of the EITs, with the exception of the use of insects,
have been used on military personnel in SERE training, and no prolonged mental
harm had resulted.
3. None of the EITs Involve severe physical pain within the
meaning of the statute. Some EITs involve no pain1 Others may produce muscle
fatigue, but not of the intensity to constitute "severe , physical pain or suffering."
Because "pain or suffering" is a single concept, the "waterboard, which inflicts no
pain or actual harm whatsciever, does not . inflict 'severe pain or suffering."
..{2 4. None of the EITs involve (1severe mental pain or suffering.
The waterboard constitutes a threat of imminent death because it creates the
sensation.that the subject is drowning. However, based on the experience of SERE
trainees, and "consultation with others with expertise in the field of psychology and
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interrogation," the CIA does "not anticipate that any prolonged mental harm would
result from the use of the waterboard."
5. Based on the information provided by the CIA, DOJ
believes "that those carrying out these procedures would not have the specific
intent to inflict severe physical pain or suffering" because (1) medical personnel will
be present who can stop the interrogation if medically necessary, (2) the CIA is
taking steps to ensure that the subject's wound is not worsened by the EITs, and
(3) the EITs will contain precautions to prevent serious physical harm.
6. The interrogators do not appear to have specific intent to
cause severe men pain or suffering because they have a good faith belief that the
EITs will not cause prolonged mental harm.' This belief is based on due diligence
consisting of (1) consultation with mental health experts, who have advised the CIA
that the subject has a healthy psychological profile, (2) information derived from
SERE training, and (3) relevant literature on the subject. "Moreover, we think that
this represents not only an honest belief but also a reasonable belief based on the
information chat you have supplied to us." 45
(U) 5. The Yoo Letter (August 1, 2002)
(U) In addition to the Bybee Memo and the Classified Bybee Memo, on
August 1, 2002, Yoo signed a six-page unclassified letter, addressed to Gonzales,
that discussed. whether interrogation methods that did not violate the torture
statute - would: (1) violate United States obligations under the CAT; or (2) provide
a basis for prosecution in the International Criminal Court (ICC) (the Yoo Letter).
Yoo concluded that the United States' treaty obligations did not go beyond the
requirements of the torture statute and that, accordingly, conduct that did not
violate tht torture statute could not be prosecuted in the ICC.
44 The Classified Bybee Memo briefly restated the Bybee Memo's discussion
of the spec is intent requirement, but like the July 13, 20,02 letter from Yoo to Rizzo, it did not
include any of the caveats and qualifications briefly mentiikied in the Bybee Memo.
45 Yoo told OPR that most of the techniques "did not even come close to the
standard," :but that " waterboarding did." He told us during his interview: "I had actually thought
that we prohibited waterboarding. I didn't recollect that we had actually said that you could do
it."
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(U) a. Violation of the Convention Against Torture
(U) Yoo advised Gonzales that "international law clearly could not hold the
United States to an obligation different than that expressed in [the torture
statute]." Yoo Letter at 3. Yoo explained that the United States' instrument of
ratification to the CAT included a statement of understanding that defined torture
in terms identical to the language of the torture statute. Citing "core principles of
international law," Yoo concluded that "so long as the interrogation methods do not
violate [the torture statute], they also do not violate our international obligations
under the Torture Convention." Id. at 4.
(U) In arriving at that conclusion, Yoo noted that the United States had
submitted an "understanding" with its instrument of ratification as to the meaning
of torture. He then discussed, in the next five paragraphs, the legal effect of a
party's "reservation" to a treaty. Finally, Yoo concluded that the "understanding"
was in fact a "reservation" that limited the United States' obligations under the
CAT. 46
(U) Yoo did not elaborate on the well-established meanings of "reservation"
and "understanding" in United States and international law:
• ::Reservations change U.S. obligations without necessarily changing the
text [of a treaty], and they require the acceptance of the other party.
Understandings are interpretive statements that clarify or elaborate
provisions but do not alter them.
Congresqional Research Service, Treaties and Other International Agreements: the
Role of the United States Senate, 106 th Cong., 2d Sess. 11 (Comm. Print prepared
for the Senate Comm. on Foreign Relations, 1984) (Accord, e.g., Relevance of Senate
Ratification History to Treaty Interpretation; 11 Op. Q.L.C. 28, 32 (April 9, 1987)).
46 (U) Yoo explained, in a footnote, that the understanding might in fact be a reservation,
because although "the Bush administration's definition of torture was categorized as an
'understanding,' ... we consider it to be a reservation if it indeed modifies the Torture Convention."
Yoo Letter*t 4, n.5 (citing Restatement (Third) of ForeightRelations Law of the United States at
§ 313 cmt g). In the very next footnote, however, Yoo stated that "the understanding attached by
the Bush Administration is less a modification of the Convention's obligations and more of an
explanation of how the Untied States would implement its somewhat ambiguous terms." Yoo Letter
at 4, n. 6.
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(U) Thus, a reservation to a duly ratified treaty "is part of the treaty and is
law of the United States." Restatement (Third) of Foreign Relations Law of the
United States at § 314 cmt. b. A treaty subject to an understanding "becomes
effective in domestic law . . . subject to that understanding" Id. at cmt. d.
(U) b. Prosecution Under the Rome Statute
(U) In response to Gonzales's second question, the Yoo Letter stated that the
United States is not a signatory to the ICC Treaty, and that the treaty therefore
cannot bind the United States as a matter of international law, and that even if the
treaty did apply, "the interrogation of an al Qaeda operative could not constitute
a crime under the Rome Statute." Yoo Letter at 5. According to the letter, this is
because article 7, of the Rome Statute only applies to "a widespread and systematic
attack directed against any civilian population," not interrogation of individual
terrorists, and because article 8 is limited to acts that violate the provisions of the
Geneva Conventions.
(U) The Yoo letter went on to explain that article 8 would not apply because
President Bush declared on February 27, 2002, that Taliban and al Qaeda fighters
were not entitled to protection under the Geneva Conventions, consistent with
OLC's January 22, 2002 opinion to that effect. Thus, a[i]nterrogation of al Qaeda
members . cannot constitute a war crime because article 8 of the Rome Statute
applies only to those protected by the Geneva Conventions." Yoo Letter at 6.
(U) C. Military Interrogation, the March 14, 2003 Yoo Memo to DOD,
and the DOD Working Group Report
(U) 1. Guantanamo and the Military's Interrogation of Detainees
(U) In January 2002, Taliban and al Qaeda prisoners captured in the war in
Afghanistan began arriving at the United States Naval.Base at Guantanamo Cuba.
By the end of the year, more than 600 men were reportedly held at the base.
According to press accounts and declassified Defense Department documents, the
questioning of these prisoners was conducted by two groups with differing goals
and apprOaches to interrogation: the military interrogators of the Army intelligence
Joint Task Force 170 (JTF); and members of the military's Criminal Investigative
Task Force (CITF), which was composed of criminal investigators and attorneys
from the military services, assisted by FBI agents and interrogation experts
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detailed to the base.
(U) JTF was primarily interested in obtaining intelligence relating to future
terrorist or military actions, and promoted the use of aggressive, "battlefield"
interrogation techniques adapted from the SERE training program by the Defense
Intelligence Agency's Defense Humint Services (DHS). CITF was more focused on
criminal prosecution, and argued that conventional, rapport-building interrogation
methods advocated by the FBI were the most effective way to obtain information.
According to FBI observers, the JTF interrogators were inexperienced and poorly
trained, and as a result were able to obtain little useful intelligence.
DRAFT
(U) On October 11,2002, JTF's military commander submitted a request for
authorization to use non-standard interrogation techniques on three detainees
believed to be high-level members of al Qaeda. The techniques were classified into
three categories, and were described as follows:
(U) Category I:
1. Yelling at the detainee;
2. Deceiving the detainee by:
(a) Using multiple interrogators; or
(b) Posing as interrogators from a country that
tortures detainees;
(U) Category II:
1. Placing the detainee in stress positions;
2. Using falsified documents or reports to deceive the
detainee;
3. Placing detainee in isolation;
4. Interrogating detainee in non-standard interrogation
environments or booths;
5. Depriving detainee of light and auditory stimuli;
6. Hooding detainee during interrogation;
7. Interrogating detainee for twenty-hour sessions;
8. Removing all "comfort items" (including religious items);
9: Switching detainee from hot food to cold rations;
Id. Removing all clothing;
11. Forced grooming (shaving facial hair);
12. Exploiting individual phobias (such as fear of dogs) to
induce stress;
(U) Category III:
1. Convincing the, detainee that death or severe pain is
imminent for him or his family;
2. Exposing the detained „Ito cold weather or water (with
medical monitoring);
3. Waterboarding;
4. Using light physical contact, such as grabbing, pushing,
DRAFT
or poking with a finger. 47
(U) JTF's request was forwarded through channels to Defense Secretary
Rumsfeld, who approved the use of all of the JTF techniques except the first three
in Category III on December 2, 2002.
(U) Members of the CITF at Guantanamo, including FBI and military
personnel, objected to the techniques and reported apparent instances of abusive
treatment to their superiors. As more fully discussed in the report of the
Department's Office of the Inspector General, FBI personnel were ordered not to
participate or remain present when EITs were used. 48
(U) On December 17, 2002, David Brant, the director of the Naval Criminal
Investigative Service (NCIS), a component of the CITF, told the Navy's General
Counsel Alberto Mora that detainees at Guantanamo were being subjected to
abusive and degrading interrogation techniques. The following day, Mora met
again with Brant and with Guantanamo-based NCIS psychologist Michael Gelles,
who told hilt' that although they had not witnessed use of EITs, they had
discovered evidence of their use in interrogation logs and computer records. Brant
and Gelles told Mora that they believed the techniques being used on detainees
47 (U) This description is taken from an October 11, 2002 memorandum from Lieutenant
Colonel Jerald Phifer to the Commander of JTF, Major General Michael Dunlavey. That and other
documents were declassified and released by the Defense Department in June 2004.
48 (U) One of the military detainees who was reportedly subjected to EITs over the ob -ections
was Mohammed Al-Khatani ("Al-Qahtani" in the DOJ OIG Report). According to
sometime in 2003, John Yoo told her to draft a letter to the Defense Department opining
on the legality of the techniques that had bemused in Khlani's interrogation. In a May 30, 2003
email, written to Yoo shortly before he left the Department said that she "did not get a
chance to draft a letter to DOD re: techniques: My thought is I can draft it when I get back and
have Pat sign it." told us that she never drafted the letter because she did not receive
sufficient information about the interrogation from the Defense Department.
DRAFT
were illegal, dangerous, and ultimately ineffective and counter-productive, but that
they had been told by JTF personnel at Guantanamo that the interrogations had
been authorized at high levels in Washington.
(U) Mora asked the General Counsel of the Army, Steven Morello, if he were
aware of any interrogation abuse at Guantanamo. Morello reportedly. showed Mora
the official military documents authorizing the techniques, including an October
15, 2002 legal opinion by Lieutenant Colonel Diane Beaver, the legal adviser to
JTF, which concluded that the techniques were lawful (the Beaver Memo). Morella
reportedly added that he had argued against approval, without success.
(U) Mora reviewed the Beaver Memo and concluded that its legal
justifications for the techniques were seriously flawed and that the use of some of
the JTF techniques would be illegal. After noting his concerns with the Secretary
of the Navy, Mora met with DOD General Counsel William Haynes on December
20, 2002. According to Mora, Haynes listened to his objections and told him that
he would carefully consider what he had said.
(U) On January 6, 2003, Mora learned from Brant that the abusive
interrogations were continuing at Guantanamo. After making his objections
known to _several other high-ranking Pentagon officials, Mora met again with
Haynes on January 8, 2003. According to Mora, he further explained his legal,
practical,and policy objections to the program. Haynes reportedly responded that
United States officials believed the techniques were necessary to obtain information
about future al Qaeda operations.
(U) Sensing that his objections were being ignored, Mora drafted a
mernoralidum to Haynes and to the legal adviser to the Chairman of the Joint
Chiefs oil Staff, stating his belief that some of the EITs constituted cruel and
unusual treatment or torture and that, use of the techniques would violate
domestic and international law. On January 15, 2003, Mora delivered a draft of
the memorandum to Haynes and told him that he would sign it that afternoon
unless he heard that use of the techniques in question would be suspended. Later
that day, Haynes told Mora that Secretary Rumsfeld was rescinding authorization
for the techniques.
(U) In withdrawing the December 2, 2002 memorandum, Rumsfeld ordered
Haynes to- establish a working group to consider the legal, policy and operational
issues involved in the interrogation of detainees. Pursuant to the Secretary's
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directive, Haynes assembled a working group consisting of military and civilian
Defense Department personnel. Working Group members included Mora, the
general counsels of the other military branches, representatives of the Pentagon's
policy and intelligence components, and representatives of the Joint Chiefs of Staff.
(U) 2. Drafting the Yoo Memo
(U) Shortly after the Working Group was formed, Haynes asked John Yoo to
provide legal advice about interrogation to the Working Group. Yoo notified Bybee
of the request and consulted with the White House. In drafting the memorandum,
Yoo's main concern was to ensure that the DOD legal positions were consistent
with the Bybee Memo, without revealing any information- about the CIA program.
According to Yoo, Defense Department personnel were not authorized to know
anything about the CIA interrogation program, and the existence of the Bybee
Memo had to be kept secret from them. 49
(U) Yoo assigned to serve as OLC's liaison to the Working
Group, and both of them subsequently attended meetings to explain OLC's view
of the applicable laws to the Working Group. According to Yoo, they did not
discuss or provide copies of the Bybee Memo or the Classified Bybee Memo, but the
legal advice they provided was identical to what was set forth in the Bybee Memo.
At about this time started working on a draft of what would become the
49 • (U), Evidence suggests that the CIA and the DOD General Counsel's Office had in fact
discussed the agency!s use of EITs before Yoo was asked to draft the 2003 memorandum. As noted
above, on July 26, 2002, the CIA provided OLC copies of two memoranda about the effects of SERE
training. pose memoranda, dated July 24 and 25, 2002, were prepared by military personnel at
•the direction of the DOD OGC and then forwarded to the CIA. OLC cited one of the memoranda
in the-Cladsified Bybee Memo to support its finding that the EITs used in the CIA interrogation
program did not violate the torture statute. AS also noted above, email evidence suggests that Yoo
may have provided copies of the Bybee Memo and. the Classified Bybee Memo to DOD on August
2, 2002. There is additional evidence, discussed later in thrs re ort that Haynes and Rumsfeld
fedonn the CIA tro on January 16. 2003.
(U) iln a June 10, 2004 memorandum to , the files, then AAG Goldsmith reported talking to
John Yoo ‘'about oral advice that Yoo may ha,Ve provicleq to DOD General Counsel Haynes in
• November and December 2002. Yoo told Goldsmith that he tlimly recalled discussions with Haynes
about specific interrogation techniques to be used on a military detainee at that time, but that any
advice he gave was "extremely tentative" and that "he never gave Mr. Haynes any advice that went
beyond what was contained" in the Au st 2002 o inions.
TOP alglafer
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DRAFT
Yoo Memo. Although the Yoo Memo was the only formal advice OLC provided on
military interrogation, Yoo anc1==consulted with the Working Group as they
formulated Defense Department policy.
(U) The Yoo Memo incorporated the Bybee Memo virtually in its entirety, but
was organized differently and contained some new material. The memorandum
was divided into four parts: (I) the United States Constitution; (II) federal criminal
law; (III) international law; and (IV) the necessity defense and self defense.
(U) In Part I, the Yoo Memo discussed the relevance of the United States
Constitution to military interrogation, first observing that "Congress has never
attempted to restrict or interfere with the President's [Commander-in-Chief]
authority . Yoo Memo at 6. The, memorandum concluded that neither the
Fifth Amendment Due Process Clause nor the Eighth Amendment prohibition
against cruel and unusual punishment applied to the conduct of military
interrogations of alien enemy combatants held outside the United States. Id. At 10.
(U) Pal't II of the Yoo Memo prefaced its review of the federal statutes
prohibiting assault, maiming, interstate stalking, war crimes, and torture with a
discussion of six canons of statutory construction, all of which, the memorandum
argued, "indicate that ordinary federal criminal statutes do not apply to the
properly-authorized interrogation of enemy combatants" by the military. Id. at 11.
(U) An Part III, the Yoo Memo discussed international law. The Bybee Memo's
analyses of the CAT and two foreign court decisions - Ireland v. U.K. and PCATI v.
Israel- were incorporated almost verbatim, and the memorandum included a new
discussion of customary international law. The memorandum concluded that
custom* international law did not affect military obligations because it cannot
"impose ai standard that differs from United States obligations under CAT [and] is
not federal law . . . the President is free to. override it as his discretion. Yoo Memo
at 62.
(U) Finally, in Part IV, the Yoo Memo reiterated the Bybee Memo's arguments
regarding the necessity defense and selftdefense. The memorandum stated that,
even if federal criminal law applied to military interrogations, and even if an
interrogation method violated one of., ,those lays, the defense "could provide
justification for any criminal liability." at 81.
(U) In the discussion in Part III of the United States' obligations under the
TO
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CAT, the Yoo Memo noted that, in addition to CAT Article 2's prohibition of torture,
Article 16 required the United States to prevent acts of cruel, inhuman or
degrading treatment or punishment. After observing that the United States'
reservation to Article 16 had defined such acts as conduct prohibited by the Fifth,
Fourteenth and Eighth Amendments to' the United States Constitution, the
memorandum discussed what conduct would be covered by Article 16.
(U) With respect to the Eighth Amendment, the memorandum noted that
case law generally involved situations where force was used against prisoners or
where harsh conditions of confinement had been imposed. In both situations, the
memorandum concluded, as long as officials acted in good faith and not
maliciously or sadistically, and as long as there was a government interest for the
conduct - such as obtaining intelligence to prevent terrorist attacks - the Eighth
Amendment prohibitions would not apply to the interrogation of enemy
combatants. Yoo Memo at 62, 65.
(U) The Yoo Memo's analysis of the Fifth and .Fourteenth Amendments
reached a similar result. The memorandum explained that substantive due
process protects individuals from "the exercise of power without any reasonable
justification in the service of a legitimate governmental objective," and that
"conduct must shock the conscience" in order to violate the Constitution. Id. at 65
(citations omitted). The "judgment of what shocks the conscience . . . 'necessarily
reflects an 'understanding of traditional executive behavior, of contemporary
practice, and of the standards of blame generally applied to them." Id. At 66
(citations. omitted). After reviewing some of the case law, the memorandum
summarized four principles that it believed determined whether government
conduct would shock the conscience: (1) whether the conduct was without any
justificatfon; (2) the government official must have acted with "more than mere
negligerA"; (3) some physical contact is permitted; and (4) "the detainee must
sustain some sort of injury as a result of the conduct, e.g., physical injury or
severe mental distress." Id. at 68.
(U) Several members of the Working Group were highly critical of the advice
provided by Yoo and On or about January 28, 2003, met with
several members of the Working Group and summarized some of the conclusions
129E_SEGRE NSIEORN
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Muller. .reviewed the draft and wrote t on March 7, 2003:
111P-sEetirm ppest14
DRAFT
in the draft Yoo Memo. She reported back to Yoo by email that some members of
the Working Group expressed concern that :
(1) the commander-in-chief section sweeps too
broadly;
(2) necessity defense sweeps too broadly and doesn't make clear
enough that it would not apply in all factual scenarios,
(3) the c-in-c argument (as with the other defenses) is a violation of
our international obligations.
(U) added that she was "not worried about the first two concerns but
with respect to the third I pointed them to national right of self-defense but I
sensed serious skepticism." Yoo responded that she should keep "plugging away"
and that they would address the concerns in the editing process.
(U) Yob. told us that he had "a lot of arguments" with members of the
Working GrOup who disagreed with OLC's analysis. According to Yoo, he generally
responded by pointing out that the criticism involved matters of policy, not legal
analysis.
(U) On March 3, 2003, Yoo instructed to send a draft of the Yoo
Memo to 'CIA General Counsel Scott Muller. According to Yoo, Muller wanted to
make sure nothing in the new memorandum detracted from the assurances QLC
had provided to the CIA in the Bybee Memo.
TOP
DRAFT
(U) Bybee apparently began reviewin drafts of the Yoo Memo sometime
around March 4, 2003, when he asked d Yoo by email for a draft s°
Email traffic indicates that he and Yoo exchanged several drafts of the Yoo
Memo over the next few days.
..(er On March 6, 2003, Haynes sent Yoo a copy of a March 3, 2003
memorandum from Army JAG Major General Thomas J. Romig to Haynes,
commenting on a draft of the Working Group report that incorporated OLC's
analysis. In his memorandum, Romig stated that he had "serious concerns" about
the "sanctioning of detainee interrogation techniques that may appear to violate
international law, domestic law, or both." Romig added that the OLC opinion,
which controlled the DOD report's legal analysis, set forth an extremely broad view
of the necessity defense that would be unlikely to prevail in United States or foreign
courts. Romig also criticized OLC's view that 'customary international law cannot
bind the United States executive and asserted! that the adoption of aggressive EITs
would ultimately subject United States military personnel to greater risk.
(U) On March 11, 2003, Yoo received comments on the draft memorandum
from Deputy White House Counsel David Leitch. Leitch's comments, which were
copied to Gonzales and. Addington, were limited and did not address any of the
substance of Yoo's legal analysis.
(U) -"Bybee was confirmed for the lid eship on March 13, 2003, and sworn
in on March 28, 2003. According to ybee was prepared to sign the Yoo
Memo, but Yoo persuaded him not to because he was about to assume a
judgeship. Bybee told us that he does not remember why Yoo signed the opinion,
but thatAt was not unusual for deputies to sign OLC memoranda. On March 14,
2003,-Ydd finalized and signed the Yoo Memo.
(U) 3. Key Conclusions of the Yoo Remo
(U) The Yoo Memo incorporated virtually all of the Bybee Memo more or less
verbatim, and advanced the following additional conclusions of law.
so (U) At the time, Bybee had been nominated for a judgeship on the United States Court of
Appeals for the Ninth Circuit and had corn s leted his confirmation hearing.
T
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DRAFT
(U) 1. The Fifth Amendment Due Process Clause does not apply to military
interrogations outside the United States because that amendment was not
"designed to restrict the unique war powers of the President as Commander in
Chief" and because it does not apply extraterritorially to aliens who have no
connection to the United States. Yoo Memo at 6.
(U) 2. The Eighth Amendment does not apply to military interrogations
because it only applies to persons upon whom criminal sanctions have been
imposed. Id. at 10.
(U) 3. Various canons of statutory construction "indicate that ordinary
federal criminal statutes" such as assault, maiming, and interstate stalking "do not
apply to the properly-authorized interrogation of enemy combatants by the United
States Armed Forces during an armed conflict." Id. at. 11, 23.
(U) 4. The War Crimes Act does not apply to military interrogation of al
Qaeda and Taliban prisoners because "they do not qualify for the legal protections
under the Geneva or Hague Conventions . ." Id. at 32.
(U) 5. The torture statute does not apply to interrogations conducted at a
United States military base in a foreign state, such as Guantanamo. Id. at 35.
(U) 6: CAT Article 16 does not require nation parties to criminalize acts of
cruel, inhuman or degrading treatment or punishment, and does not prohibit such
acts "so long as_ their use is justified by self-defense or necessity." Id. at 59.
(U) 7. Eighth Amendment jurisprudence does not forbid interrogation
techniquis that involve "varying degrees of force" as long as the interrogator acts
in good taith and not "maliciously and sadistically." Whether force was used in
good faith turns "in part on the injury inflicted" and "the necessity of its use."
Interrogation methods that involve harsh condition' .of confinement do not violate
the Eighth Amendment unless they are "wanton or unnecessary." Where the
government has an interest in interrogation such as "that which is presented here,"
subjecting prisoners to such deprivations "would not be wanton or unnecessary."
Id. at 60-61, 65.
(U) 8: Substantive due process under the Filth and Fourteenth Amendments
protects individuals against only the most egregious and arbitrary government
conduct, conduct that "shocks the conscience." Four factors are considered in
ICIP-Sgrerittu allruaitir - 54 -
TsixerBeRET
IsLOPORtr
DRAFT
determining whether conduct shocks the conscience: (1) it must be "without any
justification, . . . 'inspired by malice or sadism"'; (2) the interrogator must act "with
more than mere negligence"; (3) not all "physical contact" is prohibited; and (4) the
prisoner "must sustain some sort of injury as a result of the conduct, e.g., physical
injury or severe mental distress." Id.. at 68.
(U) 4. The Working Group Report
(U) The April 4, 2003 Working. Group Report incorporated substantial
portions of the Yoo Memo, in addition to new material from the military lawyers in
the, Working Group. 51 The new material included an introduction outlining the
background, methodology and goals of the report, an overview of international law
as applied to the military, a review of applicable military law, and a lengthy
discussion of policy considerations, including a number of considerations that were
specific to the Department of Defense. Imported from the Yoo Memo, with only
slight revisions, were discussions of the torture statute,' federal criminal statutes,
the Commander-in-Chief authority, the necessity defense and self-defense, and the
CAT Article lb, prohibition of cruel, inhuman or degrading treatment, as interpreted
through the , Eighth, Fifth and Fourteenth Amendments to the United States
Constitution. The Working Group Report also included a chart of 35 interrogation
techniques that it recommended be approved . for use on detainees outside the
United States.
(WD. Implementation of the CIA Interrogation Program
Other agency personnel separately told CIA OIG that they were concerne • a. out
human rights abuses at CIA facilities. In January 2003, CIA OIG initiated an
51 (U) The Working Group Report was originally classified "Secret," but was declassified by the
Departmeiit of Defense on June 21, 2004 and released tot je public. The Yoo Memo was originally
classified "Secret," but was declassified by the-DOD on M ch 31, 2008.
52 (U) The report omitted the Bybee Memo's and the Yoo Memo's argument that "severe pain"
must rise to the level of the pain of "death, or an failure or serious impairment of body functions."
DiGLIFeRN
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- 56 -
The CIA ntif s ecific clandestine facilities which
.7.011-FrECITri aroarrir
DRAFT
investigation into CIA detention and interrogation practices, and on May 7, 2004,
it issued a report titled "Counterterrorism Detention and Interrogation Activities"
(the CIA OIG Report). The facts in the following discussion are based primarily
upon that document.
.+1481. Abu Zubaydah
CIA detention facili began using EITs in the
interrogation of Abu Zubaydah. According to the CIA OIG Report,
independent contractor psychologists were assigned to lead the interrogation team
• I • • i .I se - • .ersonnel
The two psychologist/interrogators administered all of the
interrogation sessions involving EITs, which were closely followed by headquarters
ersonnel
.1,TAS According to the. CIA OIG report, the interrogation team
decided arthe outset to videotape Abu Zubaydah's sessions, primarily in order to
document his medical condition. CIA OIG examined a total of 92 videotapes,
twelve Of which recorded the use of EITs. Those twelve tapes included a total of 83
1 sted less than ten seconds.
DRAFT
1,1•19 9n one of the interrogation videotapes, CIA OIG investigators
noted that a psychologist/interrogator verbally threatened Abu Zubaydah by
stating, "If one child dies in America, and I find out ou knew something about it,
I will personally cut your mother's throat." ommented, in its review of
the CIA OIG report, that the threat was permissible because of its conditional
nature.
Apart from the use of the waterboard, the CIA OIG report did
not describe the manner or frequency of the EITs that were administered to Abu
Zubaydah. The volume of intelligence obtained from Abu Zubaydah reportedly
increased after the waterboard sessions, but CIA OIG concluded that it was not
possible to determine whether the waterboard or other factors, such as the length
of his detention, were responsible.
After the on-site interrogation team determined that Abu
Zubaydah had ceased resisting interrogation, they recommended that EITs be
discontinued. However, CTC head uarters officials believed the sub'ect was still
withholding information,
Senior CIA officia s re ortedl made the decision to resume the u •f
waterboar
to assess the subject's
compliance. After that session greed with the on-site interrogators that the
subject was being truthful, and no further waterboard
administered.
j„.T. According to CIA OIG, an attorney from the CIA General
Counsel_ Office reviewed the videotapes of Abu Zubaydah's waterboard
interrogation and concluded that the applications complied with the guidance
obtained from DOJ. However, the CIA OIG investigators who reviewed the same
tapes reported that the technique used on Abu Zu'baydah was different from the
technique used in SERE training and as described in` the Classified Bybee Memo.
The report noted that unlike the method described in the DOJ memorandum,
which involved a damp cloth and small applications of water, the CIA interrogators
continuously applied large volumes of water to th&subject's mouth and nose. One
of the psychologists involved in the interrogation. -Orogram. reportedly told CIA OIG
that the technique was different becauSe it was "for real" and was therefore more
"poignant -and convincing."
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DRAFT
..reT•8 2. Abd Al-Rahim Al-Nashiri
On November 15, 2002, a second' risoner, Abd Al-Rahim Al-
Nashiri, was brought to facility. sychologist/ interrogators
immediately began using EITs, and Al-Nashiri reportedly provided lead information
about other terrorists during the first day of interrogation. On the twelfth'day, the
psychologist/interrogators applied the waterboard on two occasions, without
achieving any results. Other EITs continued to be used, and the subject eventually
become compliant. 2002, both Al-Nashiri and Abu Zubaydah
were moved to another CIA black site
DRAFT
While EITs were being administered, several unauthorized
techni ues were also used on Al-Nashiri. -Sometime around the end of December,
ebriefer tried to frighten Al-Nashiri by coc ng an un oa•e• pisto next o
prisoner's head while he was shackled in a sitting position in his cell. On what
may have been the same day, Al-Nashiri was forced to stand naked and hooded in
his cell while the debriefer operated a power drill, breating the impression that he
was abou't to use it to harm Al-Nashiri:
n another occasion in December 2002
debriefer
LiaE01;1714-
told A
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DRAFT
Nashiri that if he did not talk, his mother and family would be brought to the
facility. Accordin to the CIA OIG report, there is a widespread perception in the
Middle East that intelligence services torture prisoners by sexually
abusing female family members in their presence.
.1.T.K On other occasions, the CIA debriefer blew cigar smoke in Al-
Nashiri's face, manhandled him while he was tied in stress positions, and stood on
his shackles to induce pain.
Accordin to CIA OIG,
Nashir At some point,
nterrogators determined that he was cooperating and the use of EITs was
discontinued.
jp,T0EMM In January 2003, the CIA's Deputy Director of Operations
notified the ?CIA OIG that CIA personnel had used the above unauthorized
interrogation techniques on Al-Nashiri and asked CIA OIG to investigate. As
discussed below, DOJ was notified on January 24, 2003.
3. Khalid Sheik Muhammed
(U.) -EITs were also used on Khalid Sheik Muhammed (KSM), a high-ranking
al Qaeda official who, accordin to media reports, was ca tured in Islamabad,
Pakistan on March 1, 2003 to a CIA black site CIA officers
have been quoted in the media as saying that KSM was defiant to his captors and
was extri; m- ely resistant to EITs, including the waterboard.
- 4
The CIA OIG report.stated that KSM was taken t
facility for interrogation and that he was accomPli hed at resistin • EITs. He
reportedly underwent waterb aid sessions involvin
a roximatel 183 a 1 tions
..(..Te The CIA OIG also reported that on one occasion, one of the
-60-
CIA psychologist/interrogators threatened KSM by saying that "if anything else
happens in the United States, 'We're going to kill your children.'
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met with Michael
(U) 5. CIA Referrals to the Department
AK According to a CIA MFR drafted by John Rizzo on January 24, 2003,
Scott Muller (then CIA General Counsel), Rizzo and
DRAFT
Chertoff Alice Fisher, John Yoo, and to discuss the incidents at
According to Rizzo, he told Chertoff before the meeting that he
needed to discuss "a recent incident where CIA personnel apparently employed
unauthorized interrogation techniques on. a detainee."
uller ha describe the unauthorized EITs that had been used
and mentioned that the matter had been referred to the CIA OIG as
part of an overall review of the CIA's detention and interrogation policies.
je2rChertoff reportedly commented, that the CIA was correct to advise them
because the use of a weapon to frighten a detainee could have violated the law. He
stated that the Department would let CIA OIG develop the facts and that DOJ
would determine what action to take when the facts were known. According to
Rizzo, "Chertoff expressed no interest or intention to pursue the matter of the
,(KOn January 28, 2003, CIA Inspector General John Hel erson called John
Yoo and told him that the CIA OIG was looking into th atter. According
to Helgerson's email message to Rizzo, Yoo "specifically said they feel they do not
need to be involved until after the OIG report is completed." Rizzo responded:
"Based on what Chertoff told us when we gave him the heads up on this last week,
the Criminal Division's decision on whether or not some criminal law was violated
here wilrbe predicated on the facts that you gather and present to them."
I
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Tog..seertti Nce6r
DRAFT
Acco commend that the declination decision
with respect to the death of be reexamined. Primarily because of the
changed legal landscape, we ur er recommend that the other declination
decisions,inade by CTS and the EDVA be reexamined as well.
(U) .6. Other Findings of the CIA OIG Report
,(X,EMM In addition to reporting on specific incidents, the. CIA OIG
Report nfade the following general observations:
Measuring the overall effectiveness of EITs is challenging
for a number of reasons including: (1) the Agency cannot
determine with any certainty the totality of the
intelligence the detainee actually possesses; (2) each
detainee has different fears of and tolerance for EITs; (3)
the application of the same EITs by different interrogators
61 {U) The EDVA Memorandum was issued after the Bybee Memo had been publicly
withdrawn, but before the Supreme Court's decision in Harndan.
tc1B-EECIZVI SOP016.
DRAFT
ma have different results . and
CIA OIG Report at ¶ 221.
Id. at ¶ 1233-235.
(U) E. Reaffirmation of the CIA Program
(U) 1. The Question of "Humane Treatment"
„,(0T5In a February 7, 2002 order, the Presidelnt determined that armed forces
were re uired to treat detainees humanel
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(U) 2. The "Bullet Points",
On April 28, 2003, Muller faxed John Yoo a draft document,
in bullet point orm, captioned "Le at Princi les Applicable to CIA Detention and
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Interrogation of Captured Al-Qa'ida Personnel" (the Bullet Points). On the cover
sheet, Muller wrote, "I would like to discuss this with you as soon as you get a
chance." According to later correspondence by Muller, the Bullet Points were
jointly created by OLC and CTC for use by the CIA OIG in connection with
its review of the CIA detention and interrogation program. 6/14/04 Muller letter
to Goldsmith.
...k.T.16In her OPR interview onfirmed that she
received the draft Bullet Points from Muller, and stated that she "reworked" the
draft and sent it back to the CIA. She understood that the Bullet Points were
drafted to give the CIA OIG a summary of OLC's advice to the CIA about the legality
of the detention and interro ation program. understood that the CIA OIG
had indicated to CTC that it might evaluate the legality of the program in
connection with its investigation, and that the Bullet Points were intended to
demonstrate that OLC had already weighed in on the subject.
62
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The Bullet Points stated that the CAT definition of torture "is
identical in material respects to the definition of torture" in the torture statute,
that customary international law imposes no obligations on the United States
beyond the CAT, and that the War Crimes Act does not apply to CIA interrogations
of al Qaeda members. One bullet point summarized the Bybee Memo's conclusions
regarding specific intent as follows:
The interrogation of al-Qa'ida detainees does not
constitute torture within the meaning of [the torture
statute] where the interrogators do not have the specific
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.
Additional paragraphs stated that the interrogation program
did not violate the Fifth, Eighth or Fourteenth Amendments to the United States
Constitution, and that the following speCific EIT-g did not "violate any Federal
statute or other law:" (1) isolation; (2) reduced caloric intake; (3) deprivation of
reading material; (4) loud music or white noise; (5) the attention grasp; (6) walling;
(7) the facial hold; (8) the facial slap; . (9) the abdominal slap; (10) cramped
confinement; (11) wall standing; (12) stress positions; (13) sleep deprivation; (14)
the use of diapers; (15) the use of harmless insec tts; and (16) the water board.
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DRAFT
..4•T'S On June 16, 2003, prepared a MFR
referencing the Bullet Points, statin that the document "was fully coordinated with
John Yoo . . . as well as with who reported to Mr. Yoo at OLC. It
was drafted in substantial part by Mr. Yoo and and was approved
verbatim. It reflects the joint conclusion of the CIA Office of General Counsel and
the DoJ Office of Legal Counsel."
provided a copy of the Bullet Points to the CIA OIG,
which discussed them and incorporated them into their draft report. As discussed
below, OLC subsequently disavowed the Bullet Points.
(U) 3. The Leahy Letter
(U) On June 20, 2003, Muller an met with Gonzales at his office
to discuss how the administration should respond to a June 2, 2003 letter from
Senator Patrick Leahy to Condoleezza Rice, requesting confirmation that the United
States was treating detainees humanely. Also attending the meeting were Deputy
White House Counsel David Leitch, John Bellinger, Whit Cobb (from DOD OGC),
Patrick Philbin an Prior to the meeting, Muller prepared a draft
response to Leahy's letter, which was redrafted by Philbin and circulated at the
meeting for comments.
Philbin reportedly confirmed, in response to
a direct-- uestion from Bellinger, that the EITs authorized by the Department
"could beriused consistent with CAT and the Constitution."
(U) The response was subsequently redrafted by Bellinger and went out
under Haynes' signature.
.1.T.€1 The letter advised Senator Leahy that the United States
Government complies with its domestic and international legal obligations not to
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engage in torture and does not subject detainees to cruel, inhuman or degrading
treatment or punishment. An internal CIA summary noted that:
The letter does not highlight the fact that other nations
might define the terms "cruel, inhuman or degrading
treatment or punishment" differently than does the
United States.
jeT After the meeting, Muller . and Bellinger reportedly
remained behind to discuss questions raised about the implementation of the CIA
program that had been raised by the CIA OIG review. Gonzales had previously
questioned whether the use of the waterboard during the interrogation of KSM
"could be viewed as excessive." The group noted that the Classified Bybee Memo
had stated, on page two, that the technique would not be repeated sub 'ally
because it loses its effectiveness after several repetitions. Muller an old
Gonzales, who reportedly agreed, that, "as per standard legal practice, the
memorandum provided both a legal 'safe harbor' . . ..and a touchstone with which
to assess thelawfulness of any future activities that did not fall s uarely within the
specific facts: reflected in the memorandum .' All of them
also reportedly agreed that simply because conduct wen_t beyond the 'safe harbor'
did not necessarily mean that the conduct violated the statute or convention.
Muller and described for Gonzales the numbers of
times the'waterboard had been used on KSM and Abu Zubaydah, and "discussed
the provisions of the [Classified Bybee Memol as applied to the actual use of the
water board with respect to AZ and KSM. We agreed that the use of the water
board in those instances was well within the law, even if it could be viewed as
outside the 'safe harbor.'"
(U) 4. The CIA Request for Reaffir n ation
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(U) E. AAG Goldsmith - Withdrawal of OLC's Advice on Interrogation
(U) :After Bybee left the Department in March 2003, OLC's AAG position
remained unfilled for several months, reportedly because of disagreement between
the White House and the Attorney General's Office over a replacement. 65 The. White
House offered Goldsmith the position in. July 2003, and he began his service as
AAG on October 6, 2003. The following day, h_e was read into the CIA interrogation
progranO3y Scott Muller.
65
(U) Goldsmith confirmed that when Bybee left OLC, then White House Counsel Gonzales
wanted Yoo to take over as AAG. Ashcroft reportedly obje'cted because he thought Yoo was too
close to the White House, and recommended 14s Counselofr, Adam Ciongoli, for the job. Ciongoli
was reportedly not acceptable to Gonzales, however, bOause he was too close to Ashcroft.
Goldsmith .was eventually proposed as a compromise candidate. Goldsmith is not sure who
suggested him for the job, but speculated that either Yoo or Haynes might have recommended him.
In their OPR interviews, Ciongoli and Gonzales confirmed the general outlines of this account.
--T-Qa tsw6eirs
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(U) 1. The NSA Matter
(U) Because of the problems with Yoo's NSA opinions, Goldsmith asked
Philbin, whd was familiar. with Yoo's work at OLC, to bring him copies of any other
opinions that might be problematic. Philbin gave Goldsmith a copy of the Yoo
Memo,-which he read sometime in December 2003.
(U) 2. The Withdrawal of the Yoo Memo
"(1A boldsmith's reaction to the Yoo Memo was that it was "deeply flawed,"
and his immediate concern was that the Defense Department might improperly rely
67 (u)iwtold us that after Goldsmith read the Yoo Memo, he told her it was.
'riddled w error.
T....212'.S.FtererT awierrr
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on the opinion in determining the legality of new interrogation techniques. 68 The
broad nature of the memorandum's legal advice troubled him because it could have
been used to justify many additional interrogation techniques. As he later
explained in an email to other OLC attorneys, he saw the Yoo Memo as a "blank
check" to create new interrogation procedures without further DOJ review or
approval."
(U) Accordingly, Goldsmith telephoned Haynes in late December 2003 and
told him that the Pentagon could no longer rely on the Yoo Memo, that no new
interrogation techniques should be adopted without consulting OLC, and that the
-military could continue to use the noncontroversial techniques set forth in the
Working Group Report, but that they should not use any of the more extreme
techniques requiring Secretary of Defense approval without first consulting OLC.
Having allayed his immediate concerns, Goldsmith temporarily set the Yoo Memo
aside and continued to deal with the more urgent matter of the NSA program.
(U) In early March 2004, the Defense Department told Goldsmith that they
wanted to us'e one of the four EITs to question a detainee. Goldsmith read the Yoo
Memo in detail, and after consulting with Philbin, Goldsmith concluded that his
initial impression was correct the memorandum was seriously flawed and would
have to be formally withdrawn and replaced.
(U) On Saturday, March 13, 2004, Goldsmith telephoned DAG Carney at
home and asked to meet with him that day. Philbin and Goldsmith went to
(U) Goldsmith told us that he approached his review of the Yoo Memo - with great caution,
because he was reluctant to reverse or withdraw a prior OLC opinion. In reviewing the
memoranium, he did not intend to identify any and all possible errors, but was looking for the
"really bibfundamental mistakes that couldn't be justified and that were perhaps unnecessary .
. . .
69 (U) Philbin responded to that email as follows:
John's March memorandum was not a blank check at least as of the time
started work at DoD OGC (summer 2003) because I told her to m e sure
that they did not go beyond the Rumsfeld approved procedures and did not rely on
the memo. This was only an oral caution but please Flo not sell us short by ignoring
it.
(U) Goldsmith answered as follows: "I'm not selling anyone short - It's just that Haynes
said he heard nothing about that advice."
-1t1P-SaeRri gPOIZIT
DRAFT
Comey's house and Goldsmith explained the problems he had discovered in the
Yoo Memo. Goldsmith told Comey, among other things, that the memorandum's
presidential powers analysis was wrong, that there were problems with the
discussion of possible defenses, and that the memorandum had arrived - at an
overly broad definition of the term "severe pain." Goldsmith added that generally
speaking, the memorandum's legal analysis was loosely done and was subject to
misinterpretation.
(U) Comey remembered that Philbin seemed in accord with Goldsmith's
comments, and that Philbin claimed that he had advised Yoo to remove the
questionable sections from the memorandum. Both Goldsmith and Philbin were
friendly with Yoo at the time, and Comey got the impression that they were both
embarrassed and disappointed by the sloppy legal work they had uncovered.
(U) Shortly after this meeting, Comey told AG Ashcroft that Goldsmith had
found problems with the legal analysis in the Yoo Memo and that it would have
to be replaced. According to Comey, Ashcroft agreed without hesitation that any
problems with the analysis should be corrected. Sometime in April 2004,
Goldsmith began working on a replacement draft for the Yoo Memo, assisted by
Principal Deputy AAG Steve Bradbury and several OLC line attorneys.
(U) 3. The CIA OIG Report and the Bullet Points Controversy
..E.?S On March 2, 2004, Goldsmith received a letter from Muller,
asking OLC to reaffirm the legal advice they had given the CIA regarding the
interrogation program. Muller specifically asked for reaffirmation of the Yoo Letter,
the Bybee Memo, the Classified Bybee Memo, and the Bullet Points.7°
---T43P-emzg'1=MMINeverr
DRAFT
(U) Goldsmith told us that he was unaware of the Bullet Points until he
received Muller's letter, which attached a copy and which asserted that they had
been "prepared with OLC's assistance and . . . concurrence . . . in June 2003.' 71
Goldsmith was concerned because the Bulet Points apeared to be a CIA
document, with no legal analysis and no indication that OLC had ever reviewed its
content. He made inquiries, and learned tha=Mand Yoo had in fact worked
on the document.
Sometime in late May 2004, the CIA OGC gave OLC a copy
of the final May 7, 2004 CIA OIG Report, which included descriptions of the legal
advice provided to the CIA by OLC, and which included copies of the Classified
Bybee Memo and the Bullet Points as appendices. 72 On May 25, 2004, Goldsmith
wrote to CIA 1G Helgerson, asking for an opportunity to provide comments on the
report's discussion of OLC's legal advice before the report was sent to Congress.
...fi'SMEAfter reviewing the CIA OIG Report, on May 27, 2004,
Goldsmith wrote to Muller and advised him that the report "raised concerns about
certain aspetts of interrogations in practice." Goldsmith pointed out that the
advice in the Classified Bybee Memo depended upon a number of factual
assumptions and limitations, and that the report suggested that the actual
interrogation practices may have been inconsistent with those assumptions and
limitations The waterboard, in particular, was of concern, in that the CIA OIG -
Report stated that "the SERE waterboard experience is so different from the
subsequeilt Agency usage as to make it almost irrelevant."
JeT45.1.Goldsmith concluded the letter by recommending that use
of the waterboard be suspended until the Department had an opportunity to review
the CIA-SIG Report more thoroughly. With respect to the other nine EITs,
Goldsmiti asked Muller to ensure that they were used in accordance with the
71 According to a CIA MFR prepared -by Muller on October 16, 2003, .the CIA
gave Goldsmi a copy of the Bullet Points when he was briefed into the CIA interrogation program
on October 7, 2003.
(U) Goldsmith told us that he did not know what motivated Muller to ask for reaffirmation
of the OLC. advice at this time. We note, howeyrer, that CIA) OGC had submitted its comments on
the draft CIA OIG report the previous week, on February 14, 2004.
72 (U) OLC's files also include a copy of a January 2004 draft of the CIA OIG Report, with CIA
OGC's comments. There is no indication of how or when OLC received this document.
DRAFT
assumptions and limitations set forth in the Classified Bybee Memo.
During this period, OLC began preparing comments on the
CIA OIG Report. OLC and CIA OGC initially contemplated submitting a joint letter
to Helgerson, and early drafts of the letter included signature blocks for both
Muller and Goldsmith.
.1.1 On June 9, 2004, Goldsmith talked to Yoo by telephone
about the Bullet Points. 73 With respect to the Bullet Points, Yoo told Goldsmith
that to the extent they may have been used to apply the law to a set of facts, they
did not constitute the official views of OLC. Yoo stated that "OLC did not generate
the Bullet Points, and that, at most, OLC provided summaries of the legal views
that were already in other OLC opinions." Yoo reportedly added that "almost all
of the OLC: work on the Bullet Points was done by an Attorne
who could never have signed off on such broad conclusions applying aw to act,
especiallTin such a cursory and - conclusory fashion."
geg*- On June 10, 2004, Goldsmith wrote to Muller that OLC
would not reaffirm the Bullet Points, which "did not and do not represent an
opinion or a.statement of the views of this Office." Muller responded on June 14,
2004, arguing that the Bullet Points were jointly prepared by OLC and CIA OGC,
that Ol4(knew that they would be provided to the CIA OIG for use in their report,
and that they "served as a basis for the 'Legal Authorities' briefing slide used at a
29 July 2003 meeting attended by the Vice Prftident, the National Security
73 (U) Goldsmith also asked Yoo about some oral advice he had provided to Haynes in
connection with DOD's December 2, 2002 decision to use EITs on a detainee at the Guantana.mo
facility. YOo reportedly told Goldsmith that he, did not kno;fr the identity of the detainee (who was
probably Mohammed AI-Khatani), but that he dimly recalled discussing specific techniques with
Haynes in November and December 2002. • Yoo stated that any advice he gave Hayes was
"extremely informal," and was clearly "extremely tentative." According to Yoo, he "never gave Mr.
Haynes any advice that went beyond what was contained" in the August 2002 opinions.
DRAFT
Advisor, the, Attorney General, who was accompanied by Patrick Philbin, the
Director of Central Intelligence, and others."
,Rfil=lOn June 15, 2004, CIA OGC informed OLC that because the
two offices had different views about the significance of the Bullet Points, OGC
would not be a joint signatory to the letter to Helgerson.
j.T411MIGoldsmith submitted his comments to Helgerson on June 18,
2004. He as ed that two "areas of ambiguity or mistaken characterizations" in the
report be corrected. The first related to a description of Attorney General Ashcroft's
comments on the "expanded use" of EITs at the July 29, 2003 NSC Principals
meeting. Goldsmith explained that the statement was intended to refer to the use
of approved techniques on other detainees in addition to Abu Zubaydah, not the
use of new techniques. The second area of disagreement related to the conflicting
views of OLC and CIA OGC over the significance of the Bullet Points. Goldsmith
asserted that the Bullet Points "were not and are not an opinion from OLC or
formal statement of views."
ni,T054MOn June 23, 2004, Helgerson transmitted copies of the CIA
OIG Report to the Chairs and Ranking Members of the House and Senate Select
Committees on Intelligence. In his cover letter, he explained that the report had
been prepared without input from DOJ, but that he had attached, with Goldsmith's
permission; a copy of DOJ's June 18, 2004 comments and requested changes.
(U) 4. Goldsmith's Draft Revisions to the Yoo Memo
(U) The first draft of the replacement memorandum was produced in mid-
May 200,4, and at least 14 additional drafts followed, with the last one dated July
17, 2004J Beginning with the sixth draft, dated June 15, 2004, Goldsmith noted
specific criticisms of the Yoo Memo in footnotes. Although he decided to remove
that criticism from later drafts, Goldsmith told OPR that he did not do so out of
any doubts about his criticism. Rather, he concluded that it was unnecessary to
specifically address the errors in the replacement memorandum. Goldsmith
criticized the Yoo Memo as follows:
(U) The Yoo Memo "is flawed ixa so manvimportant respects that it must
be withdrawn." June 15, 2004 draftlat 1, n. 1.
••
•
(U) 2. The Yoo Memo "contains numerous overbroad and unnecessary
RN
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assertions of the Commander-in-Chief power vis-à-vis statutes,
treaties, and constitutional constraints, and fails adequately to
consider the precise nature of any potential interference with that
power, the countervailing congressional authority to regulate the
matters in question, and the case law concerning the balance of
authority between Congress and the President, see, e.g., Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38, 641-46 (1952)
(Jackson, J., concurring)." Id. at 1, n. 1. 74
(U) 3. Yoo's "sweeping use of the canon against application of statutes to the
sovereign outlined in Nardone v. United States, 302 U.S. 379 (1937),
is too simplistic and potentially erroneous, particularly as applied to
the federal torture statute . and possibly other criminal statutes."
Id. at 1-2 , 1.
(U) 4. "The memorandum incorrectly concludes, contrary to an earlier
opinion of this Office, that the torture statute does not apply to the
conduct of the military during wartime." Id. at 2, n. 1.
"This conclusion contradicted an earlier opinion of this Office, which
had concluded that the torture statute 'applies to official conduct
-engaged in by United States military personnel.' Memorandum for
=William J. Haynes, II, General Counsel, Department of Defense, from
Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re:
The President's Power as Commander in. Chief to Transfer Captured
Terrorists to the Control and Custody of Foreign Nations at 25-26 (Mar.
13, 2002).. We agree with the March 2002 opinion that Congress's
4 explicit extension of the prohibition of the torture statute to
. 4 individuals acting under calor of law' naturally includes military
personnel acting during wartime. We therefore disavow the contrary
conclusion on this question in [the Yotx Memo]." June 24, 2004draft
74 (U) In a June 30, 2004 email to DOJ attorneys working on a draft reply to a June 15, 2004
letter from the Senate Judiciary Committee, Goldsmith wrote:
1
It is my view that the blanket construction of the [Yo4a Memo's Commander-in-Chief]
section is misleading and under-analyzed to the point of being wrong. I have no
view as to whether we say that in this letter, as long as we do not say anything
inconsistent with this position
—Perrs 'PcTITR
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DRAFT
at 29-30 n. 28.
(U) 5. "[T]he memorandum makes overly broad and unnecessary claims
about possible defenses to various federal crimes, including torture,
without considering, as we must, the specific circumstances of
particular cases." June 15, 2004 draft at 2, n. 1.
The Yoo Memo "makes overly broad, unnecessary, and in some
respects erroneous claims about possible defenses to various federal
crimes that we need not consider here." July 1, 2004 draft at 25, n.
27.
(U) 6. The Yoo Memo "described the 'severe pain or suffering' contemplated
by the torture statute by referring to the level of physical pain 'that
would ordinarily be associated with a physical condition or injury
sufficiently serious that it would result in death, organ failure, or
serious impairment of body functions.' [Yoo Memo] at 38-39. . . . [T]he
effort to tie the severity of physical pain to particular physical or
medical conditions is misleading and unhelpful, because it is possible
that some forms of maltreatment may inflict severe physical pain or
suffering on a victim without also threatening to cause death, organ
failure or serious impairment of bodily functions. We have no need to
define that line or indeed to say anything more about the meaning of
the torture statute, in reviewing the particular interrogation
techniques at issue here." June 24, 2004 draft at 28, n. 26.
(U) 7. The Yoo Memo "asserts that Congress lacks authority to regulate
wartime interrogation and, relatedly, that the [Executive Branch]
1 4 could not enforce any statute that purported to do so. [Yoo Memo] at
4-6, 11-13, 18-19. These assertions, in addition to being unnecessary
to support the legality of the techniques . . , are plainly wrong.
Congress clearly has some authority to enact legislation related to the
interrogation of enemy combatants during wartime, see, e.g., U.S.
Const. art. I, §'8, cf. 9 (power to 'define and punish Offenses against
the Laws of Nations'), and clearly the Executive Branch can enforce
those laws when they are violated. Itas true that the Commander-in-
Chief has extraordinarily broad authority in conducting operations
against hostile forces during wartime . and that the Executive
Branch has long taken the view that congressional statutes in some
DRAFT
contexts unconstitutionally impinge on the Commander-in-Chief
Power . . . To assess the precise allocation of authority between the
President and Congress to regulate wartime interrogation of enemy
combatants, we would need to analyze closely a variety of factors,
including the nature and scope of any potential statutory interference
with the Commander in Chief power, the countervailing congressional
authority to regulate the matters in question, the case law concerning
the balance of authority between Congress and the President, see, e.g.,
Public Citizen v. U.S. Department of Justice, 491 U.S. 440, 482 -89,
(1989) (Kennedy, J., concurring), and the historical practices of the
political branches, cf. Dames & Moore v. Regan, 453 U.S. 654, 675-83
(1981) - factors that [the Yoo Memo] did not consider and that we view
as unnecessary to consider here." Id. at 36-37 n. 38.
(U) 8. "With respect to treaties, [the Yoo Memo] maintains that a presidential
order of an interrogation method in violation of the CAT would amount
to a suspension or termination of the treaty and thus would not
'violate the treaty. [Yoo . Memo] at 47. It is true that the President has
authority, under both domestic constitutional law, see Memorandum
for Alan J. Kreczko, Special Assistant to the President, and Legal
Adviser to the National Security Council, from Christopher Schroeder,
Acting Assistant Attorney General, Office of Legal Counsel, Re: Validity
of Congressional-Executive Agreements That Substantially Modify the
• United States' Obligations Under an Existing Treaty at 8 n. 14 (Nov. 25,
1996), and international law, Vienna Convention on the Law of
Treaties....to suspend treaties in some circumstances. But it is error
to say that every presidential action pursuant to the Commander-in-
Chief authority that is inconsistent with a treaty operates to suspend
or terminate that treaty and, therefore does not violate it. It is also
unnecessary to consider this issue, because [the techniques] are fully
consistent with all treaty obligations of the United States, including
the Geneva Conventions and the CAT." Id. at 37 n.38.
(U) 9. "[The Yoo MemO] states that the Fifth Amendment to the United States
Constitution is `inapplicab[le]' during wartime, particularly with
1. respect to the conduct of interroga_tions or the detention of enemy
aliens. [Yoo Memo] at 9. The memorafidum 's citations of authority for
the proposition that the Fifth Amendment Due Process Clause does
not prohibit certain wartime actions by the political branches do not,
-xala-em-nrinnfflerFrimv-
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DRAFT
however, support the broader proposition — a proposition once again
not necessary to uphold the techniques in question here — either that
the Fifth Amendment is inapplicable in wartime or that it 'does not
apply to the President's conduct of a war.' Cf. Hamdi, supra, slip op.
at 21-32 (plurality opinion of O'Connor, J.)." July 1, 2004 draft at 27,
n. 30.
(U) Goldsmith left the Justice Department on July 17, 2004, before he was
able to finalize a replacement for the Yoo Memo. As discussed below, his
successor, Dan Levin, continued to work on the project.
(U) 5. The Withdrawal of the Bybee Memo
(U) On June 8, 2004, the Washington Post reported that "[i]n August 2002,
the Justice Department advised the White House that torturing al Qaeda terrorists
in captivity abroad 'may be justified,' and that international laws against torture
`may be unconstitutional if applied to interrogations' conducted in President Bush's
war on terrorism, according to a newly obtained memo." On June 13, the Post
made a copy of the Bybee Memo available on its web site.
(U) Up until this time, Goldsmith's focus had been on the Yoo Memo, rather
than the Bybee Memo. Shortly after the Bybee Memo was leaked, Goldsmith was
asked by the White House if he could reaffirm the legal advice contained in the
Bybee Merrno. Since the analysis in that document was essentially the same as the
Yoo Memo, which he had already withdrawn, Goldsinith concluded that he could
not affirm the Bybee Memo. He consulted with Comey and Philbin, who agreed
with his decision, and on June 15, 2004, Goldsmith informed Ashcroft that he had
concludad that the Department should withdraw the Bybee Memo. Although
Ashcroft:was "not happy about it," according to Goldsmith, he supported the
decision. The following day, June 16, 2004, Goldsmith submitted a letter of
resignation to become effective August 6, 2004.
(U) Later that week, Goldsmith notified the White House Counsel's Office that
he was planning to withdraw the Bybee Memo. According to Goldsmith, this
caused "enormous consternation in the Executive Branch because basically they
thought the whole program was in jeopardy," but the White House did not resist
his decision.
(U) Goldsmith said he found it "deeply strange" that both the Classified
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Bybee Memo and the unclassified memoranda were issued on the same day. He
commented:
One is hyper narrow and cautious and splitting hairs and
not going one millimeter more than you needed to to
answer the question. And the other issued the same day
is the opposite. It wasn't addressing particular problems.
It was extremely broad. It went into all sorts of issues
that weren't directly implicated, and issued the same day
by the same office.
(U) Bradbury told OPR that he believed it was appropriate to withdraw the
unclassified Bybee Memo. He stated that Yoo's view of the Commander-in-Chief
powers was "not a mainstream view" and that the memorandum did not adequately
consider counter arguments. He commented that 'somebody should have
exercised some adult leadership in that respect."
(U) BrAdbury said part of the problem with Yoo's work on the Commanderin-
Chief section was his entrenched scholarly view of the issue. He commented:
He had a deeply ingrained view of the operative
principles. And to the extent there were sources that
reflect that view, he may bring them in and cite them and
use them. But it's almost as if he could have written that
opinion without citation to any sources. And if a court
here or a court there or a commentator here or a
commentator there takes a different view, that's almost of
4 secondary importance because he had such a firmly held
A view of what the principles are.
In my view, there's something to be said for not being a
scholar or professor in this job [in the OLC]. . And
taking a more practical approach, and one where you
don't think you know the answers already, because you
haven't got a body of scholarly wor t , you know, you've
already developed on these questions. And I just think
that for practical reasons that's healthy.
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(U) In the days that followed, there was a great deal of discussion between
Department officials, the CIA and the White House about how to proceed. On June
22, 2004, Comey, Goldsmith and Philbin met with reporters in a not for attribution
briefing session to explain that the Bybee Memo had been withdrawn. On the same
day, Gonzales announced at a press conference that the Bybee Memo had been
meant to "explore the limits of the legal landscape," and to his knowledge had
"never made it to the hands of soldiers in the field, nor to the president." He
acknowledged that some of the conclusions were "controversial" and "subject to
interpretation."
(U) Goldsmith was determined to complete his replacement for the Yoo Memo
before he left the Department, and he also assigned an OLC line attorney to
prepare a replacement for the Bybee Memo.' At some point during the summer,
however, it became apparent that the Yoo Memo could not be replaced by August,
and Goldsmith decided to advance his departure date to July 17, 2004.
-(UjiF. Case by Case Approvals and The Levin Memo
(U) When Goldsmith left the Departinent, Dan Levin, who was Counselor to
the Attorney General at the time, was asked to serve as Acting AAG of OLC. Among
other duties, Levin inherited, the task of drafting replacements for the Bybee Memo,
75 (1J),1. Several replacement drafts for the Bybee MOio were prepared under Goldsmith's
direction, the last of which was dated July 16;- 2004. 1
DRAFT
the Yoo Memo, and the Classified Bybee Memo. In addition, he assumed
responsibility for evaluating the CIA's pending and future requests for
authorization to use EITs at the black sites. 77
(U) Levin stated that when he first read the Bybee Memo, he remembered
"having the same reaction I think everybody who reads it has - 'this is insane, who
wrote this?'" He thought the tone was generally inappropriate and the
Commander-in-Chief and defenses sections were completely unnecessary. Levin
thought an OLC opinion should be a carefully crafted analysis that did not engage
in hypothetical and unnecessary analysis, but the Bybee Memo fell far short of that
ideal, in his view.
1
77 (U) Prior to the Bullet Points controversy, the CIA hid not seek OLC approval to use EITs
on new prisoners brought into the interrogation program, but simply relied on the analysis
provided in the Classified Bybee Memo. After Goldsmith disavowed the Bullet Points, however, the
agency sought written approval every time it intended to use EITs.
—112P-"GR UlaPerZir
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(U). At that time, the Department had advised the CIA that the CAT Article
16 standard of cruel, inhuman and degrading treatment did not apply to the CIA
interrbgaiion program because the activity took place outside territory subject to
United States jurisdiction. Levin told us that he and Ashcroft tried to convince the
CIA that they were better off relying on the jurisdltional exclusion, rather than
asking OLC to hypothetically consider whether the program would meet the
standards of Article 16. The CIA insisted, however, and although Levin left OLC
before that question was addressed, he ;"thought it would be very, very hard to
conclude ithat it didn't violate the cruel, inhumah and degrading [standard], at
least unless you came up with an argument for b illow it meant something different
—TrOP-See ertntff
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DRAFT
than [what it would mean if applied] to a United States citizen in New York." 78
j,6 Levin and other OLC attorneys met with CTC officers on
August 4, 2004, and requested additional information about the waterboarding
procedure. CT responded by fax the
next day, noting some of t e time limitations that the CIA had placed on the use
of the waterboard.
jeTg Levin also asked the CIA for information about how the sleep
deprivation technique was administered. He told us that he was surprised to learn
that no one at OLC had previously asked the CIA about the methods used to keep
prisonersAWake for such extended periods, which was an aspect of the technique
that he Considered highly relevant to analyzing its effect. 79 He learned that
detainees were typically shackled in a standing position, naked except for a diaper,
with their hand§ handcuffed at head level to a chain bolted to the ceiling. In some
cases, a prisoner's hands would be shackled above the head for more than two
hours ON time. CIA personnel were expected to monitor the subjects to ensure
that they &flied all their weight on their feet, rather than hanging from the chains,
which could result in injuries. In some cases, a prisoner would be shackled in a
seated position to a small stool so that he had to sZay awake to keep his balance.
78 That qUestion was eventually addressed by Bradbury in the Article 16
Memo, 3,71.ic concluded that thirteen CIA EITs, then including the waterboard, sleep deprivation
and forcedpudity, did not "violate the substantiVe standards applicable to the United States under
Article 16 . . ." Article 16 Memo at 39-40.
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DRAFT
PS111.= Levin. approved the CIA's request to use the waterboard in
a letter to Rizzo dated August 6, 2004. Levin wrote to "confirm our advice that,
although it is a close and difficult questi n use of the waterboard technique
in the contemplated interrogation of . would not violate any United
States statute, including [the torture statute , nor would it violate the United States
Constitution or any treaty obligation of the United States.' Levin noted that OLC
would subsequently provide a legal opinion that 'explained the basis for his
conclusion, and listed certain conditions and assumptions to the approval.'
(U) At the time, Levin planned to issue a replacement for the Classified Bybee
Memo, and OLC's files show that he prepared several drafts in August and
September 2004, which were circulated to four other OLC attorneys, including
Bradbury, who was read into the interrogation program around that time. 82
80 Although Levin authorized its use,
81 The conditions of Levin's approval were: (1) the use of the technique would
conform td the description in Rizzo's August 2, 2004 letter; (2) a physician and psychologist would
approve the use of the technique before each session, would be present for the session, and would
have the authority to stop the session at any time; (3) then would be no material change in the
subject's medical and psychological condition as described in the attachment to Rizzo's letter, with
no new medical or psychological contraindications; and (4) conbistent with the description in the
Classified Bybee Memo, the technique would be administered during a thirty day period, would be
used on no more than fifteen days during that period, would be applied no more than twice on any
given day, and the subject would be waterboarded no more than twen minutes each da .
? _ -4- k • •
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DRAFT
.11.8 Levin continued to work on a replacement for the Classified
Bybee Memo, and in late September 2004, he asked CIA attorne or more
information about the administration of the following EITs: nudity, water dousing,
sleep deprivation, and the waterboard responded on October 12, 2004.
jeT43 1 On October 18, 2004, sent Levin a 28-page
document, titled "OMS [CIA Office of Medical Services] Guidelines on Medical and
Psychological Support to Detainee Rendition, Interrogation, and Detention," dated
May 17, 2004 (OMS Guidelines). That document included the following
observations about the waterboard:
This is by far the most traumatic of the enhanced
interrogation techniques . . . SERE trainees usually have
only a single exposure to this technique, and never more
than two . . .
OMS Guidelines
84 (U) Levin told us that he got "two rounds of very detailed excellent comments" from the
State Department on his classified draft.
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(U) At some point that fall, Comey directed Levin to focus on a replacement
for the unclassified Bybee Memo, which he wanted completed by the end of the
year. In late November or early December 2004, Levin started working on the
unclassified replacement memorandum. Levin used the last draft created under
Goldsmith's supervision as a starting point, but changed it significantly as the
drafting progressed. Virtually all of OLC's attorneys and deputies were included
in the review process, and Levin also sought comments from the Criminal Division,
Solicitor General Paul Clement, Philbin, Comey, the White House Counsel's Office,
the State Department, the CIA, and the Defense Department.
(U) Lellin deleted the Bybee Memb's discussion of the Commander-in-Chief
power because it was unnecessary to the analysis, and because he considered it
to be an enormously complicated question that could not be addressed in the
abstract. He also deleted the discussion of possible defenses, which was
unnecessary and some of which he considered to be clearly wrong.
, •
(U) lie modified the discussion of specific intent, which he also believed to
be wrohg. As presented in the Bybee Memo, Levin thought the section "suggested
that if I hit you on the head with a . . . hammer, even though I know it's going to
cause specific pain, if the reason I'm doing it is to get you to talk rather than to
cause paln, I'm not violating the statute. I think that's just ridiculous."
(U) Levin also changed the discussion of "severe mental or physical pain or
suffering" by withdrawing and criticizing the Bybee Memo's conclusion that "severe
pain" under the torture statute must be the equivalent of pain resulting from organ
failure or death. As he recalled, only . Patrick Philbin defended the previous
analysis, and he told us that the two of. them. had "spirited discussions" on the
subject. Levin disagreed with Philbin in, the end, ;and criticized that argument in
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the final draft. 85
(U) The Levin Memo was signed on December 30, 2004, and was posted on
the OLC website; Levin continued working on a replacement for the ClaSsified
Bybee Memo.
On December 30, 2004 provided Levin a copy of a
twenty-page document titled "Background Paper on CIA's Combined Use of
Interrogation Techniques."
On January 15, 2005 sent Levin an updated copy
(December 2004) of the OMS Guidelines and provided comments on portions of
Levin's January 8, 2005 replacement draft of the Classified Bybee Memo. 88
(U) Levin told us that when Gonzales was named as Ashcroft's replacement,
he knew he would not be nominated for the permanent AAG position. According
to Levin, he and Gonzales never got along very well, and although he would have
loved to stayOn as AAG, he knew it was not a realistic possibility.' At that point,
Bellinger and Rice had moved to the State Department, and Gonzales asked him
to take over Bellinger's position as legal adviser to the NSC. Levin was not
interested 'in the job, but Gonzales, the new National Security Adviser Stephen
Hadley, and Harriet Miers all urged him to take the position. As a further
incentive x Gonzales knew that Levin was interested in serving as United States
Attorney in the Central District of California, and he told Levin that if the position
85 (1.14 Levin told us that he was unaware that Philbin was the "second deputy" on the Bybee
Memo. lit a December 21, 2004 email to Levin, Philbin argued that the criticism was not "entirely
fair to the1authors"of the Bybee Memo because the health benefit statutes could shed light on a
"lay person's understanding of what kind of pain would be associated with" death, organ failure
or loss of bodily function.
86 All of Levin's drafts that we saw in OLC's files authorized the CIA to use
the EITs un er consi eration.
87 (U) Levin told us that Gonzales' opinion of him may ihave been shaped by an incident that
occurred when Levin was at the FBI. Levin recalled being isummoned to the White House, where
Gonzales tOld him that the President was very•ipset becaufse Levin was allowing too many people
at the FBI to be read into the NSA surveillance program. According to Levin, because access to the
NSA program was so restricted, people at the FBI had become suspicious that the NSA was doing
something illegal. Levin got permission to show Yoo's OLC opinions to a few senior FBI officials,
who were then able to "calm down" the other FBI personnel.
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became vacant, he would be nominated.
(U) Levin did not take Gonzales' promise seriously; he told us that he
cynically suspected that the White House was worried that if he left government
right after completing the Levin Memo, it would look like he had been forced to
resign because of the memorandum. He accepted the position at NSC, -but once
he got there, found he had "nothing to do." After about a month, he asked for
permission to leave, and returned to private practice.
(U) In describing his work on the issue of EITs, Levin said the CIA never
pressured him. Rather, he said it only "made clear that they thought it was
important," but that "their view was you guys tell us what's legal or not." He
stated, however, that the "White House pressed" him on these issues. He
commented: "I mean, a part of their job is to push, you know, and push as far as
you can. Hopefully, not push in a ridiculous way, but they want to make sure
you're not leaving any executive power on the table."
(U) H. I The Bradbury Memos
(U) When Levin left the Department in early February 2005, Bradbury was
named OLC's Acting AAG. He continued to work on a replacement for the
Classified :Bybee Memo, as well as a second classified memorandum that
considered the legality of the combined use of EITs. 88
radbu 's •oint of contact at the CIA for these memoranda
was CTC attorney
Correspondence fro o Bradbury indicates that e CIA provi its
commenis3 on the Combined Techniques Memo to OLC on March 1, 2005.
88 Bradbury told us that Levin h started working on the combined
techniques memorandum before he left the Departmen , but we found no reference to that
document in OLC's files prior to late February 2005. We noted, however, that on December 30,
2004, the CIA sent Levin a twenty-page "Background Paper on CIA's Combined Use of Interrogation
Techniques."
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(U) t3r,adbury circulated drafts . of his memoranda widely within the
Department. Both the Office of the Attorney General (OAG) and the Office of the
Deputy Attorney General (ODAG) reviewed drafts, as did lawyers from the National
Security Division and the Criminal Division. John Bellinger at the State
Department and Dan Levin, then at the NSC, were also included in the process.
As discussed below, DAG Comey voiced no objections to the Bradbury Memo, but
requested' changes in the Combined Techniques Memo, which were not made.
Former AAG Levin told us that he passed along comments on the Article 16 Memo
to Bradbury, but that he never saw a final draft of the document.
(U) 1. The Bradbury Memo (May 10, 2005)
The Bradbury Memo was one of two May 10, 2005
memoranda written to replace the Classified Bybeq/lemo.' The Bradbury Memo
considered whether the use of thirteen specific EITs by the CIA would be
"consistent with the federal statutory prohibition on torture" and concluded that
"although extended sleep deprivation and use of the waterboard present more
substantial questions . . . none of these [EITs], considered individually, would
89 The Bradbury Memo noted that it superseded the Classified Bybee Memo,
but added that con irms the conclusion of [the Classified Bybee Memo] that the use of these
techniques on a particular high value al Qaeda detainee, subject to the limitations imposed herein,
would not violate [the torture statute]." Bradbury Memo at 6, n.9.
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violate" the torture statute.
..felThe Bradbury Memo authorized the CIA to use the following
EITs: (1) dietary manipulation; (2) nudity; (3) attention grasp; (4) walling; (5) facial
hold; (6) facial slap or insult slap; (7) abdominal slap; (8) cramped confinement; (9)
wall standing; (10) stress positions; (11) water dousing; (12) sleep deprivation (more
than 48 hours); and (13) the waterboard. Each technique was described in the
memorandum, along with the restrictions and safeguards CIA OMS had
represented would be implemented with their use.
The memorandum noted at the outset that the CIA had
represents that EITs would only be used on "High Value Detainees." Those
individuals were defined by the CIA as (1) senior members of al Qaeda or an
associated group, (2) who have knowledge of imminent terrorist threats against the
United States or who have had direct involvement in planning such terrorist
actions, and who (3) would constitute a clear and continuing threat to the United
States or its f.11ies if released.
JeT#6*M. Following a general .discussion of the torture statute, the
Bradbury Memo considered whether each individual technique would cause "severe
physical or mental pain or suffering." As a preliminary matter, the memorandum
noted that, the EITs were developed from SERE training, and recited some of the
same statistics regarding the effect of EITs on trainees that had appeared in the
Classified Bybee Memo to support the conclusion that SERE EITs did not result in
prolonged mental harm. Bradbury Memo at 29, n. 33; Classified Bybee Memo at
5. Although the Bradbury Memo prefaced its discussion with the qualif in
statement, "fully recognizing the limitations of reliance on this experience,'
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In evaluating the legality of the first eleven techniques, the
memorandum concluded without extensive discussion that those EITs clearly did
not rise to the level of "severe mental pain or suffering." The memorandum then
turned to the two remaining techniques - sleep deprivation and waterboarding.
JeT. The discussion of sleep deprivation noted that the Classified
Bybee Memo had failed to "consider the potential for physical pain or suffering
resulting from the shackling used to keep detainees awake or any impact from the
diapering of the detainee" or the possibility of severe physical suffering
unaccompanied by severe physical pain. The Bradbury Memo pointed to
information provided by CIA OMS that "shackling of detainees is not designed to
and does not result in significant physical pain," reviewed the OMS monitoring
procedures, and concluded that "shackling cannot be expected to result in severe
physical pain" and that "its authorized use by adequately trained interrogators
could not reasonably be considered specifically intended to do so." Bradbury
Memo at 37. The memorandum also cited OMS data and three books on the
physiology 'of sleep and concluded that sleep deprivation did not result in any
physical paid: Id. at 36.
•
,(261 0n the question of whether sleep deprivation caused severe
physical suffering, the Bradbury Memo noted that lallthough it is a more
substantial question," it "would not be expected to cause 'severe physical
suffering.:" Id. at 37. The memorandum acknowledged that for some individuals,
the technique could result in "prolonged fatigue, ... impairment to coordinated
body Movement, difficulty with speech, nausea, and blurred vision," and concluded
that this could constitute "substantial physical distress" Id. at 37-38. However,
because CIA OMS "will intervene to alter or stop" the technique if it "concludes in
its medic* judgment that the detainee is or may be experiencing extreme physical
distress,"ithe Bradbury Memo found that sleep deprivation "would not be expected
to and could not reasonably be considered specifically intended to cause severe
physical suffering in violation of the torture statute. Id. at 39. Relying on similar
assurances from CIA OMS, and on one medical text, the Bradbury Memo also
concluded that sleep deprivation would not cause "severe mental pain or suffering"
within the meaning of the torture statute. Id. at 39-40.
With respect to the waterbflard, the Bradbury Memo noted
that the "panic associated with the feeling of drowning could undoubtedly be
significant" and that "[t]here may be few more frightening experiences than feeling
that one is unable to breathe." Id. at 42. However, the memorandum noted that,
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according to OMS, the technique was not physically painful, and that it had been
administered to thousands of trainees in the SERE program. 9° id. Furthermore,
"the CIA has previously used the waterboard repeatedly on two detainees, and, as
far as can be determined, these detainees did not experience physical pain . .
Id. Accordingly, "the authorized use of the waterboard by adequately trained
interrogators could not reasonably be considered specifically intended to cause
`severe physical pain.'" Id.
.4.T43METhe Bradbury Memo also concluded that the waterboard did
not cause "severe physical suffering" because any unpleasant sensations caused
by the technique would cease once it was discontinued. Since each application
would be limited to forty seconds, the memorandum reasoned, any resulting
physical distress "would not be expected to have the duration required to amount
to severe physical suffering." 91 Id.
...1.T.8 .The Bradbury Memo commented that the "most substantial
question" raised by the waterboard related to the statutory definition of "severe
mental pain or suffering." Noting that an act, must produce "prolonged mental
harm" to violate the statute, the memorandum again cited the experience of the
SERE program and the CIA's experience in waterboarding three detainees to
conclude that "the authorized use of the waterboard by adequately trained
interrogators could not reasonably be considered specifically intended to cause
`prolonged' mental harm.'" Bradbury Memo at 44.
The Bradbury Memo referred, in a footnote, to the CIA OIG
Report's findings regarding the CIA's previous use of the waterboard, where the
OIG had highlighted the lack of training, improper administration,
misreprentation of expertise, and divergence from the SERE model in the CIA
inten-bgation program. The Bradbury. Memo stated that
90 The Bradbury Memo acknowledged that most SERE trainees experienced
the technique on y once, or twice at most, whereas the CIA program involved multiple applications,
and that "SERE trainees know it part of a training program," that it will last "only a short time,"
and that "they will not be significantly harmed by the training. Bradbury Memo at 6.'
91 he Bradbury Memo stated in its in. ial paragraph that it had incorporated
the 1.,e;i71 genieerr'm al analysis of the torture statute by reference. The Levin Memo, citing
dictionary definitions of suffering as a "state" or "condition," concluded that "severe physical
suffering" was "physical distress that is 'severe' considering its intensity and duration or
persistence [and not] merely mild or transitory." Levin Memo at 12.
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we have carefully considered the [CIA OIG Report] and
have discussed it with OMS personnel. As noted, OMS
input has resulted in a number of changes in the
application of the waterboard, including limits on the
frequency and cumulative use of the technique.
Bradbury Memo at 41, n. 51.
1,5;Ein Thus, "assuming adherence to the strict limitations" and
"careful medical monitoring," the Bradbury Memo concluded that "the authorized
use of the waterboard by adequately trained interrogators and other team members
could not reasonably be considered specifically intended to cause severe physical
or mental pain or suffering and thus would not violate" the torture statute. Id. at
45.
(U) 2. The Combined Techniques Memo (May 10, 2005)
he Combined Techniques Memo began by briefly recapping
the Bradbury Memo's conclusions, and stated that it would analyze whether the
combined effects of the authorized EITs could render a prisoner unusually
susceptible to physical or mental pain or suffering and whether the combined,
cumulative effect of the EITs could result in an increased level of pain or suffering.
The memorandum outlined the phases, conditions and progression of a
"prototypical" CIA interrogation, based upon the "Background Paper on CIA's
Combined Use of Interrogation Techniques" that the CIA had sent to Levin on
December 30, 2004 (CIA Background Paper). The Combined Techniques Memo
noted that the waterboard would be used only in certain limited circumstances,
and thatt would be used in combination with only two EITs: dietary manipulation
and sleepl deprivation.. 92
IThe memorandum classified EITs into three categories based
on their purpose. e first category, referred to as "conditioning techniques" was
designed "to bring the detainee to 'a baseline, dependent state' . . . demonstrat[ing]
i
92
IT ., ,r
he Combined Techniques Memo ngted that the waterboard must be used
in comb ary manipulation, "because a fluid Iiet reduces the risks of the technique."
ombined Techni•ues Memo at 16. According .to the CIA OMS Guidelines a lis uid diet is itn sed
3.Q.P.S.BeRETE=MINOKI‹.
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. . . 'that he has no control over basic human needs . . . 1" Combined Techniques
Memo at 5 (quoting CIA Background Paper at 4). The EITs included in this category
are forced nudity, sleep deprivation, and dietary manipulation. Id.
„PriA=MTechniques in the second category, classified as "corrective
techniques," are those that require physical action by the interrogator, and which
"are used principally to correct, startle, or . . . achieve another enabling objective
with the detainee." Id. (quoting CIA Background Paper at 5). This category includes
the insult slap, the abdominal slap, the facial hold, and the attention grasp.
.4X411=MThe third category, "coercive techniques," includes walling,
water dousing, stress positions, wall standing, and cramped confinement. Their
use "places the detainee in more physical and psychological stress." Id. (quoting
CIA Background, at 7). 93
8E...The memorandum then examined whether the combined use
of EITs would result in severe physical pain, severe physical suffering, or severe
mental pain br suffering. With respect to severe physical pain, the memorandum
noted that some of the EITs did not cause any physical pain, and that none of
them used individually caused "pain that even approaches the 'severe' level
required toviolate the [torture] statute . . . ." The memorandum concluded that the
combined use of the EITs therefore "could not reasonably be considered specifically
intended :to . . . reach that level." Combined Techniques Memo at 11-12.
Acknowledging that some individuals might be more susceptible to pain, or that
sleep deprivation might make some detainees more susceptible to pain, the
memorandum described the medical and psychological monitoring procedures that
CIA OMS had represented would be in place for each interrogation session, and
observechat interrogation team members were required to stop an interrogation
if "their oiDservations indicate a detainee is at risk of experiencing severe physical
pain . • ." The memorandum noted that such procedures were "essential to our
advice." Id. at 13-14. Thus, the memorandum concluded that the combined use
of EITs, as described by the CIA, "would not reasonably be expected by the
interrogators to result in severe physical pain." Id. at14.
93 jeT4METhe waterboard, which was not discussed in the CIA Background Paper or
in this section of the Combined Techniques Memo, is another coercive technique, and "is generally
considered to be the most traumatic of the enhanced interrogation techniques . . . . 1" Article 16
Memo at 15 (quoting CIA OMS Guidelines at 17
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.1,TeS . Turning to "severe physical suffering," the Combined
Techniques Memo noted that extended sleep deprivation used alone could cause
"physical distress in some cases" and that the CIA's limitations and safeguards
were therefore important to ensure that it did not cause severe physical suffering.
However, it noted that its combined use with other EITs did not cause "severe
physical pain," but only increased, "over a short time, the discomfort that a
detainee subjected to sleep deprivation experiences." After citing two TVPA cases
that described extremely brutal conduct as torture, the memorandum opined that
"we believe that the combination of techniques in question here would not be
`extreme and outrageous"' and therefore "would not reach the high bar established
by Congress" in the torture statute. Id. at15.
Noting that sleep deprivation could reduce a subject's
tolerance or pain, and that it might therefore increase physical suffering, the
memorandum observed that "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 candition of extreme physical distress such as may constitute 'severe
physical suffering' within the meaning of the torture statute. In light of the CIA's
monitoring procedure, the memorandum asserted that the use of sleep deprivation
would be discontinued if OMS personnel saw indications that it was inducing
severe physical suffering. Id. at 16.
j,„Tpk§ With respect to the waterboard, the memorandum pointed
to the Bradbury Memo, which concluded that the technique resulted in relatively
short periods Of physical distress. Because "nothing in the literature or
experience" suggested that sleep deprivation would "exacerbate any harmful effects
of the w4erboard," or that it would prolong the distress of being waterboarded, or
that the vIraterboard would prolong the effects of sleep deprivation, the Combined
Techniques Memo concluded that the combined use of the waterboard, sleep
deprivation and dietary manipulation "could at reasonably be considered
specifically intended to cause severe physical suffering within the meaning of the
'torture statute. Combined Techniques Memo at 17.
The memorandum then considered, in a brief, two-page
discussio , w e er e combined use of EITs would result in severe mental pain
or suffering. Citing past experience from the CIA detention program, the
memorandum concluded that there was no medical evidence that sleep deprivation
or waterboarding would cause "prolonged mental harm," or that the combined use
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of any of the other techniques would do so. Again stressing the importance of CIA
monitoring and assuming that OMS personnel would intervene if necessary, the
memorandum concluded that the combined use of EITs would not result in severe
mental pain or suffering. Combined Techniques Memo at 19.
jeT.e... In its concluding paragraph, the Combined Techniques
Memo cited "the experience from past interrogations, the judgment of medical and
psychological personnel, and the interrogation team's diligent monitoring of the
effects" of EITs, and opined that "the authorized combined use of these [thirteen]
specific techniques by adequately trained interrogators would not violate" the
torture statute.
(U) Former DAG James Comey told us that he reviewed and approved the
Bradbury Memo, but that after he reviewed the Combined Techniques Memo, he
argued that it should not be issued as written. His main concern was that the
memorandum was theoretical and not tied to a request for the use of specific
techniqueson a specific detainee. Comey believed it was irresponsible to give legal
advice about -the combined effects of techniques in the abstract.
(U) In an email to Chuck Rosenberg dated April 27, 2005, Comey recounted
a meeting on April 22, 2005 with Philbin, Bradbury, and Gonzales in which he
expressed his concerns about the memorandum. Comey wrote:
The AG exnlaine.d that he was under great nressure from
the. Vice President to comilateadith_me-mosi-and-thati.he
Pregi-dFirf-h—a-d even ' ir :•• - • y at the
VP's -r quest and the AG had promised they would be
ready early this week. He added that the VP kept telling
him "we are getting killed on the Hill." (Patrick [Philbin]
had previously expressed that Steve "Bradbury] was
getting constant similar pressure froniHarriet Miers and
David Addington to produce t'he opinions.
Parenthetically ; I have previously expressed my worry
that having Steve as "Acting" - and wanting the job -
would make him susceptible to just this kind of
.10,1a-BEL OPPOlt1C
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pressure.) 94
(U) After receiving a new draft of the memorandum, Comey met with
Gonzales on April 26, 2005, and urged him to delay issuance of the memorandum.
Comey believed that the AG had agreed with him and Comey instructed Philbin to
stop OLC from issuing it. In the April 27 email, Comey stated that Philbin reported
back that he had spoken to Bradbury, who "seemed 'relieved' that [DOJ] would not
be sending out" the memorandum.
(U) However, Comey wrote in the April 27 email that the AG had visited the
White House that day and "the AG's instnictions were that the sernn ri nninion was
to be finalized by Friday, with ha fever changr we thought appropnate
(U) In an email dated April 28, 2005 to Rosenberg, Comey recounted a
telephone call he had with Ted Ullyot, Gonzales' Chief of Staff, about the imminent
issuance of the memorandum.. Ullyot had informed Carney that the memorandum
was likely to be issued the next day and that he was aware of Comey's concerns
about the prbspective nature of the opinion. Comey wrote in the email:
I responded by telling him that was a small slice of my
concerns, which I then laid out in detail, just as I had for
the AG. I told him that this opinion would come back to
' haunt the AG and DOJ and urged him not to allow it. . . .
I told him that the people who were applying pressure
now would not be here when the shit hit the fan. Rather,
they would simply say they had only asked for an
opinion. It would be Alberto Gonzales in the bullseye. I
-4 told him that my job was to protect the Department and
4 the AG and that I could not agree to this because it was
wrong.
(U) Comey further commented in the email:
Anyhow, that's where we are. It leaves me feeling sad for
•
94 (U) In the email, Comey also shared concerns exIiressed by Philbin about whether the
memorandum's analysis of combined techniques and "severe physical sufferings" was adequate.
He wrote that Philbin had told him that he had repeatedly marked up drafts to highlight the
inadequacy of the analysis under that category, only to have his comments ignored.
DRAFT
the Department and the AG. I don't know what more is
to be done, given that I have already submitted my
resignation. I just hope that when all of this comes out,
this institution doesn't take the hit, but rather the hit is
taken by those individuals who occupied positions at OLC
and OAG and were too weak to stand up for the
principles that undergird the rest of this great institution.
(U) We asked Bradbury about Comey's objections. He told us that he felt
OLC would have been giving incomplete legal advice if they addressed the use of
individual techniques without also considering their combined use. He understood
Comey's concerns to be over the "optics" of the memorandum, and recalled that
Comey asked rhetorically how it would. look if the memorandum were made public.
Bradbury concluded that Comey's disagreement was a "policy" one and argued that
the memorandum should be issued to avoid an incomplete analysis of the issues.
Bradbury said he believed that Gonzales considered both arguments and made a
decision to , go forward.
).,
(U) 3. The Article 16 Memo
je.T.S.Maks noted above, OLC's initial advice to the CIA about the CAT
Article 16 prohibition of "cruel, inhuman or degrading treatment or punishment,"
was that Article 16 did not, by its terms, apply to conduct outside United States
territory. - However, the CIA (and, according to Bradbury, the NSC principals)
insisted that OLC also examine whether the use of EITs would violate Article' 16 if
the geographic limitations did not apply.
AM.. The memorandum began with an overview of the CIA
interrogation program and the guidelines j safeguards and limitations attached to
the use of EITs by the agency. The interrogations of Abu Zubaydah, KSM
and Al-Nashiri were briefly described and wee cited as examples of the type
of prisoner that would be subjected to EITs.
A brief discussion, of the effectiveness of the interrogation
program followed, based upon: the CIA Effectiveness Memo• • .ort;
and a faked memorandum from DCI
Co nterterr
activeness
enter,
The
Memo, that
emo cone u• e , •ase primarily on the
the use of EITs had produced critical information,
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including "specific, actionable intelligence." Article 16 Memo at 10.
J.T.S.M.Next, the Article 16 Memo described the three categories of
EITs and the thirteen specific EITs under consideration: (1) conditioning
techniques (nudity, dietary manipulation, and sleep deprivation); (2) corrective
techniques (insult slap, abdominal slap, facial hold, and attention grasp); and (3)
coercive techniques (walling, water dousing, stress positions, wall standing,
cramped confinement, and the waterboard).
The Article 16 Memo revisited and reaffirmed OLC's
conclusion t at Article 16 does not apply outside United States territory. It went
on to note that a United States reservation to CAT stated that the United States
obligation to prevent "cruel, inhuman or degrading treatment or punishment' was
limited to "the cruel, unusual and inhumane treatment or punishment prohibited
by the Fifth, Eighth, and/or Fourteenth Amendments" to the United States
Constitution. The Eighth Amendment, the memorandum concluded, did not apply
to CIA prisoners because it has been interpreted as applying only to persons
convicted oficrimes. Thus, the only restraint imposed on CIA interrogators by
Article 16, according to the memorandum, was the substantive due process ban
on "executive conduct that 'shocks the conscience."' Article 16 Memo at 2.
...4.TelMEThe memorandum acknowledged that there was no "precise
test" for cOnduct that shocks the conscience, but concluded that under United
States case law, the conduct cannot be constitutionally arbitrary, but must have
a "reasonable justification in the service of a legitimate governmental objective."
Id. at 2 -3 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998).
Another relevant factor was 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.'
Article 164 at 3 (quoting Lewis, 523 U.S. at 847 n.8).
goiaMIThe Article 16 Meino noted that the CIA. EITs would only be
used on senior al Qaeda members with knowledge of imminent threats and that
the waterboard would be used only when (1) the CIA has "credible intelligence that
I/E-SFOREI V RP1----
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a terrorist attack is imminent," (2) there are "substantial and credible indicators
that the subject has actionable intelligence that can prevent, disrupt or delay this
attack," and (3) other methods have failed or the CIA "has clear indications that
other . .. methods are unlikely to elicit this information" in time to prevent the
attack. Id. at 5 (quoting from "Description of the Waterboard," attached to Letter
from John Rizzo, Acting General Counsel, Central Intelligence Agency, to Daniel
Levin, Acting AAG, OLC at 5 (August 2, 2004)).
,T43= As to whether the use of EITs was constitutionally arbitrary,
the memorandum cited the government's legitimate objective of preventing future
terrorist attacks by al Qaeda and concluded, based on the Effectiveness Memo,
that the use of EITs furthered that governmental interest. Article 16 Memo at 29.
Again summarizing the limitations and safeguards attached to the use of EITs, the
memorandum concluded that the program was "clearly not intended 'to injure [the
detainees] in some way unjustifiable by any government interest."' Article 16 Memo
at 31 (quoting Lewis, 523 U.S. at 849).
.4,18.1.. Finally, the Article 16 Memo considered whether, in light of
"traditional executive behavior," the use of EITs constituted conduct that "is so
egregious, so outrageous, that it may fairly be said to shock the contemporary
conscience." Conceding that "this aspect of the analysis poses a more difficult
question," the memorandum looked at jurisprudence relating to traditional United
States criminal investigations, the military's tradition of not using coercive
techniques, and "the fact that the United States regularly condemns conduct
undertaken by other countries that bears at least some resemblance to the
techniques at issue." Article 16 Memo at 32.
...(111. The memorandum looked briefly at several cases in which
the Unite tates
M
Supreme Court found that the conduct of police in domestic
criminal investigations "shocked the conscience" — Rochin v. California, 342 U.S.
165 (1952) (police pumped defendant's stomach to'tecover narcotics), Williams v.
United States, 341 U.S. 97 (1951) (suspects were beaten with a rubber hose, a
pistol, and other implements for several hours until they confessed), Chavez v.
Martinez, 538 U.S. 760 (2003) (police questioned a gunshot victim who was in
severe pain and believed he was dying). .
,(7.91=MAlthough acknowledging tha
1
t some of the Justices in Chavez
v. Martinez "expressed the view that the Constitution categorically prohibits such
coercive interrogatio-nWs," "thBe emretmriolran=-d1u1m1 a=sserted. th1a1t1 5thPee iCggI-A 's use of EITs "is -
DRAFT
considerably less invasive or extreme than much of the conduct at issue in these
cases." Moreover, the memorandum drew a distinction between the government's
"interest in ordinary law enforcement" and its interest in protecting national
security. Because of that distinction, the memorandum stated that "we do not
believe that the tradition that emerges from the police interrogation context
provides controlling evidence of a relevant executive tradition prohibiting use of
these techniques in the quite different context of interrogations undertaken to
prevent foreign terrorist attacks against the United States and its interests."
Article 16 Memo at 35.
.1„TESEME The military's long tradition of forbidding abusive
interrogation tactics, including specific prohibitions against the use of food or sleep
deprivation, was not relevant, the Article 16 Memo concluded, because the
military's regulations and policies were limited to armed conflicts governed by the
Geneva Conventions. A policy premised on the applicability of those conventions
"and not purporting to bind the CIA," . the memorandum stated, "does not
constitute controlling evidence of executive tradition and contemporary
practice ... 1 Article 16 Memo at 36.
pfl.M. Similarly, the State Department's practice of publicly
condemning the use of coercive interrogation tactics by other countries was found
to be of little, if any importance. The reports in question, in which the United
States executive strongly criticized countries such as Indonesia, Egypt, and Algeria
for using' EITs such as "food and sleep deprivation," "stripping and blindfolding
victims;" ."dousing victims with water," and "beating victims," were found by the
Article 16 Memo to be "part of a course of conduct that [often] bear[s] no
resemblance to the CIA interrogation program." The memorandum also noted that
the Stag Department Reports do not "provide precise descriptions" of the
techniquds being criticized, and that the countries in question use EITs to punish,
to obtain confessions, or to control political.dissent, not to "protect against terrorist
threats or for any similarly vital government intOests . ." Nor is there any
"indication that [the criticized] countries apply careful screening procedures,
medical monitoring, or any of the other safeguards required by the CIA
interrogation program." Article 16 Memo at 36-37.
jeT.E.M. As evidence that the used of EITs was "consistent with
executive tradition and practice," the Article 16 Memo cited their use during SERE
training. The memorandum once again acknowledged the significant differences
between SERE training and the CIA interrogation program, but balanced those
DRAFT
differences against the fact that the CIA program furthered the "paramount interest
in the security of the Nation," whereas the SERE program furthered a less
important government interest, that of preparing United States military personnel
to resist interrogation. Thus, the memorandum concluded that when considered
in light of traditional executive practice, the CIA program did not "shock the
conscience." Article 16 Memo at 37-38.
pf5M. In its final pages, the Article 16 Memo cautioned that
because of "the relative paucity of Supreme Court precedent" and the "contextspecific,
fact-dependent, and somewhat subjective nature of the inquiry," it was
possible that a court might not agree with its analysis. The memorandum's
concluding paragraph reads as follows:
Based on CIA assurances, we understand that the CIA
interrogation program is not conducted in the United
States or "territory under [United States] jurisdiction,"
and that it is not authorized for use against United States
Iersons. Accordingly, we conclude that the program does
not implicate Article 16. We also conclude that the CIA
interrogation program, subject to its careful screening,
limits, and medical monitoring, would not violate the
substantive standards applicable to the United States
under Article 16 even if those standards extended to the
CIA interrogation program. Given the paucity of relevant
precedent and the subjective nature of the inquiry,
however, we cannot predict with confidence whether a
court would agree with this conclusion, though, for the
reasons explained, the question is unlikely to be subject
to judicial inquiry.
(U) It is not clear who outside of OLC reviewal•the Article 16 Memo. Comey
told us that he reviewed the Bradbury Memo and the Combined Techniques Memo,
but that he was not aware of the Article 16 Memo. Levin told us that he reviewed
a draft of the Article 16 Memo when he was at the NSC, "and I remember telling
[Bradbury] I thought he was just wrong. " Levinl stated that he gave Bradbury
specific comments on the draft, but never saw( a final version. According to
Bradbury, John Bellinger, then at the State Department, reviewed a draft, but
"largely deferred to us because it involved analysis of domestic constitutional law."
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(U) 4. The 2007 Bradbury Memo
(U) a. Background
(U) In late Fall 2005, congressional efforts to legislate against the type of
abuse that had taken place at Iraq's Abu Ghraib prison intensified. By that time,
NSC attorneys Brad Wiegman and Stephen Hadley were negotiating with the
Senate over the terms of what would eventually become the Detainee Treatment Act
of 2005 (DTA). 95 Bradbury did not participate directly in those negotiations, but
advised Wiegman on proposed statutory language.
(U) According to Bradbury, the NSC was worried that the legislation would
prevent the CIA from continuing its interrogation program. The CIA was also
concerned that the legislation would subject its interrogators to civil or criminal
liability.
(U) Bradbury told us that he believed the CIA was also involved in the
negotiationslWith Congress, and that the agency may have talked directly to one
of the sponsors, Senator John McCain. At some point during those negotiations,
the CIA reportedly agreed with the Senator that they would discontinue use of the
waterboard.96
(U) ;Bradbury told us that during the negotiations, the NSC unsuccessfully
asked the Senate to include an exception for national security emergencies.
Despite-the threat of a presidential veto, the legislation's sponsors would not agree
to that request, and when the law was finally passed on December 30, 2005, few
of the concessions sought by the Bush administration had been granted. The
adminis4ation did gain a provision acknowledging that the advice of counsel
defence wias available to interrogators, .but according to Bradbury, that was simply
a restatement of existing case law. •
95 (U) According to Bradbury and to later press accounts, Vice President Cheney and his
counsel, David Addington, were involved in earlier discussions with the Senate. After they were
unable to block the legislation, the NSC attorneys reportectly took over the negotiations.
96 (U) Bradbury acknowledged that he was not entirely certain when contacts between McCain
and the CIA took place, and stated that they may have occurred in 2006. According to news
accounts, McCain met with NSC legal adviser Stephen Hadley in late 2006, during n_ egotiations
over the Military Commissions Act of 2006 fM
- 114-
97 (U) In addition, the Court held that the military commissions established by the President
to try captured al Qaeda terrorists were unlawful.
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DRAFT
(U) As enacted, the DTA stated that it applied to all detainees in the custody
of the United States government anywhere in the world, whether held by military
or civilian authorities. Among other things, the DTA barred the imposition of
"cruel, unusual, [or] inhumane treatment or punishment prohibited by the Fifth,
Eighth, and Fourteenth Amendments to the United States Constitution."
ose seven s were orced nudity, dietary manipulation, extended sleep
deprivation, the facial hold, the attention grasp, the abdominal slap, and the insult
slap.
(U) On June 29, 2006, while Bradbury was drafting an opinion on the use
of the seven EITs, the United States Supreme Court handed down its decision in
Hamdan v. ,Rurnsfeld, holding, among other things, that Common Article 3 of the
Geneva Comtentions applied to "unlawful enemy combatants" held by the United
States government. Hamdan directly contradicted OLC's January 22, 2002 opinion
to the White House and the Department of Defense, which had concluded that
Common Article 3 did not apply to captured members of al Qaeda. 97 Thereafter,
it was clear that the prohibitions of Common Article 3, including certain specific
acts of mistreatment and ato]utrages upon personal dignity, in particular,
humiliating and degrading treatment," applied to the CIA interrogation program.
It was also apparent that interrogation techniques that violated Common Article
3 would also constitute war crimes under the War Crimes Act, 18 U.S.C. § 2441.
(UAccording to Bradbury, officials from the Departments of State, Defense
and Justibe met with the President and officials from the CIA and NSC to consider
the impact of the Court's decision and to. explore possible options. It was clear
from the outset that legislation would have to be engtted to address the application
of Common Article 3 and the War Crimes Act to the CIA program.
(U) An interagency effort was immediately launched to draft what would
eventually become the Military Commissions Act (MCA) of 2006. The process went
TO RN
DRAFT
quickly, and by early August a draft bill had been completed. According to
Bradbury, OLC had a central role in analyzing the legal issues and drafting
legislative options, with the assistance of the State Department and the
Department of Defense.
(U) John Rizzo told us that the CIA had input into the drafting of the MCA
as well. As noted above, the DTA had raised significant questions about the
legality of the CIA interrogation program, and Hamdan raised additional concerns
about "the shifting legal ground" for the program. The CIA reviewed OLC's drafts
of the proposed legislation and .provided extensive comments during the drafting
process.
(U) The MCA was signed into law on October 17, 2006. It included a number
of provisions designed to remove the legal barriers to the CIA program that had
been created by the DTA and Hamdan.
(U) The MCA amended the War Crimes Act by limiting the type of abusive
treatment tkit could be punished as a war crime under federal law. Prior to the
MCA, "grave breaches" of CoMmon Article 3 and "(o]utrages upon personal dignity,
in particular, humiliating and degrading treatment" constituted war crimes. The
MCA limited the applicability of the War Crimes Act to "grave breaches" of Common
Article 3 and defined "grave breaches" as a limited number of specific acts: torture;
cruel or inhuman treatment (defined as "an act intended to inflict severe or serious
physical or mental pain or suffering . . . including serious physical abuse");
performing biological experiments; murder; mutilation or maiming; intentionally
causing serious bodily injury; rape; sexual assault or abuse; and taking hostages."
In addition, the MCA specified that the President had the authority to interpret the
applicabity of the Geneva Conventions to the CIA interrogation program by
executive(order. The MCA also granted retroactive immunity to CIA interrogators
by providing that it would be effective as of November 26, 1997, the date the War
Crimes Act was enacted.
(U) The MCA included one additional prohibition, against "cruel, inhuman
or degrading treatment or pUnishment," defined as "cruel, unusual, and inhumane
98 (U) Thus, outrages upon personal dignity and humiliating and degrading treatment no
longer constituted war crimes. Moreover, the MCA forbade federal courts from consulting any
"foreign or international source of law" in interpreting the prohibitions of Common Article 3 and
the WCA.
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treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth
Amendments to the Constitution of the United States . . . ." This provision, which
is identical to the DTA's prohibition against cruel, inhuman or degrading
treatment, had the effect of defining violations of Common Article 3 in terms of
violations of the DTA. Thus, the language of the DTA and the MCA was identical
to the United States reservation to Article 16 of the CAT, which OLC had already
determined, in the Article 16 Memo, did not prohibit the use of EITs in the CIA
interrogation program.
(U) b. The 2007 Memo
(U) After the MCA was enacted, Bradbury continued working on his
memorandum on the legality of the revised interrogation program the CIA had
proposed following enactment of the DTA.' According to. Bradbury, the AG's Office,
the DAG's Office, the Criminal Division and the National Security Division were
included in the drafting process, as were the State Department, the NSC and the
CIA.
jeTAMOn February 9, 2007, John Bellinger, then Legal Adviser to
Secretary of State Condoleezza Rice, sent Bradbury an eleven-page letter (the
Bellinger Letter) that outlined the State Department's objections to Bradbury's
draft opinion. The letter focused on the draft's analysis of Common Article 3, and
offered the following comments:
The draft relied too heavily on U.S. law to interpret the terms of
Common Article 3, ignoring "well-accepted norms of treaty
interpretation" and substituting "novel theories concerning the
r4 relevance of domestic law to support controversial conclusions . . .";
• The draft's conclusion that , two EITs , - forced nudity and
extended sleep deprivation - did not violate Common Article 3
was inconsistent with traditional treaty interpretation rules and
was inappropriately based, on the "shock-the-conscience"
standard;
• The legislative history of the MCA eluded statements that
suggested a bipartisan consensus that nudity and sleep
deprivation constituted grave breaches of Common Article 3;
TSIE-SeCIIIMMINDgelnr
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DRAFT
• The remaining EITs may not be consistent with the
requirements of Common Article 3, depending upon what
restrictions and safeguards have been instituted by the CIA;
• The practice of treaty partners and decisions of international
tribunals indicate that "the world would disagree with the
[draft's] interpretations of Common Article 3 . . . .";
• The opinion should "assess risks of civil or criminal liability in
foreign tribunals" because "foreign courts likely would view
some of these EITs as violating Common Article 3 and as war
crimes . . . .";
,(PSMEThe Bellinger Letter concluded with the following observation:
While [the draft OLC opinion] does a careful job analyzing
the precise meanings of relevant words and phrases, I am
concerned that the opinion will appear to many readers
to have missed the forest for the trees. Will the average
American agree with the conclusion that a detainee,
naked and shackled, is not being subject [sic] to
humiliating and degrading treatment? At the broadest
level, I believe that the opinion's careful parsing of
- statutory and treaty terms will not be considered the
better interpretation of Common Article 3 but rather a
work of advocacy to achieve .a desired outcome.
Bradbury responded on February 19,2007, with a nineteenpage
letter challenging Bellinger's criticism (the Bradbury Letter). He reproached
Bellinger for taking positions that were inconsistent with his previous support of
the CIA program when he was NSC Legal Adviser, and observed that the NSC
Principals had previously approved the same EITs that Bellinger now described as
humiliating and degrading within the meaning of Common Article 3. Bradbury
rejected almost all of Bellinger's comments, including his criticism of forced nudity
and extended sleep deprivation.
T
118
ICI"L46CII211...MEDWP016.-.
D RAFT
jeTeME Bradbury's memorandum was issued on July 20, 2007,
contemporaneously with President Bush's executive order. The memorandum was
divided into four parts: (I) a brief history of the CIA program, including the six
proposed EITs and the safeguards and restrictions attached to their use by the
CIA; (II) the legality of the use of EITs under the War Crimes Act; (III) the legality
of the use of EITs under the DTA; and (IV) the status of EITs under Common
Article 3. After 79 pages of densely-reasoned analysis, relying in part on the
reasoning and conclusions of the Bradbury Memo, the Combined Techniques
Memo, and the Article 16 Memo, the 2007 Bradbury Memo concluded that the use
of the EITs in question did not violate the DTA, the War Crimes Act, or Common
Article 3.
i,T011.. In concluding that the EITs did not violate the DTA, the
memorandum incorporated much of the Article 16 Memo's "shock the conscience"
analysis, including the balancing of government interests, examination of
"traditional executive behavior," and consideration of whether the conduct was
"arbitrary in the constitutional sense." °° 2007 Memorandum at 30-31.
On April 12, 2007 and again on August 2, 2007, Bradbury
testified before - the Senate Select Committee on Intelligence in classified and
unclassified hearings on the CIA's interrogation program. He presented the OLC's
interpretation of the three new legal requirements discussed above: the DTA; the
War Cries Act; and Common Article 3. He explained that the DTA prohibited
only methods of interrogation that "shock the conscience" under the "totality of the
circumstances." He stated that a key part of this inquiry was whether the conduct
is "arbitrary in the constitutional sense," meaninglyhether it is justifiable by the
•
99 Bradbury also told us that as a result of the policy review the CIA had
commenced in December 2005, and pursuant 'to the agency's subsequent understanding with
Senator McCain, the Director made the deciSion, on policy grounds, to drop the use of the
waterboarci from the program.
The 2007 Bradbury Memo again cited the CIA Effectiveness Memo to
support itsconc usion that the use of EITs was not arbitrary. 2007 Memo at 31.
33:1E-Seerill.==.1113FETRir
100
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2-13"EICIZRI=MaLOPernir
DRAFT
government interest involved. Bradbury emphasized that, with regard to the CIA
interrogation program, the government interest was of the "highest order."
Bradbury April 2007 SSCI Testimony at 2-3.
.,11.81M.Bradbury stated that the War Crimes Act differed from the
torture statute because, while the torture statute required "prolonged mental
harm," the War Crimes Act required only "serious and non-transitory mental harm
(which need not be prolonged.)" Id. at 4. He commented that, therefore, under the
new standard "we're looking for some combination of duration and intensity" rather
than for "duration under the "prolonged" mental harm standard of the torture
statute. Id.
1,T08.M. Finally, Bradbury explained that Common Article 3's
prohibition on "outrages upon personal dignity, in particular, humiliating and
degrading treatment," does not contain a "freestanding prohibition on degrading
or humiliating treatment. Instead, to violate Common Article 3, humiliating and
degrading treatment must rise to the level of an 'outrage upon personal dignity."
Id.
Bradbury provided the Committee with a written analysis of
speci is interrogation techniques under the new legal standards, and concluded
that nudity, sleep deprivation, and dietary manipulation were permissible
techniques under these standards.
(U) II. -ANALYSIS
(U) A. Legal Standards
-(U)4'>ursuarit to Department ofJustice regulations set forth at 28 C.F.R. Part
77, Ethical Standards for Attorneys for the Government, Department attorneys must
conform to the rules of ethical conduct of the courtbefore which a particular case
is pending.' In this case, the legal advice in question was rendered in the District
of Columbia. Therefore, the District of Columbia Rules of Professional Conduct
'° (U).28 C.F.R. § 77.3. These regulations implement., itle 28, section 530B of the U.S. Code,
which provides that an attorney for the Government is sabject to the state laws and rules, and
local Federal court rules governing attorneys in each State where such attorney engages in that
attorney's duties . . ." The term "attorney for the Government" includes "any attorney employed
in ... a Department of Justice agency." 28 C.F.R. 77
T
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DRAFT
(D.C. Rules) are applicable.'
(U) 1. The Duty of Competence
(U) Rule 1.1(a) of the D.C. Rules provides that: "A lawyer shall provide
competent representation to a client. Competent representation requires the legal
knowledge, skill, thoroughness, and preparation reasonably necessary for the
representation." Rule 1.1 (b) states that: "A lawyer shall serve a client with skill
and care commensurate with that generally afforded to clients by other lawyers in
similar matters."
(U) Comment 2 to the rule identifies the following legal skills as essential:
"the analysis of precedent, the evaluation of evidence, and legal drafting."
Comment 5 adds that "f competent handling of a particular matter includes inquiry
into and analysiS of the factual and legal elements of the problem, and use of
methods and procedures meeting the standards of competent practitioners. . .
The required attention and preparation are determined in part by what is at stake;
major litigation and complex transactions ordinarily require more elaborate
treatment than matters of lesser consequence."
(U) We reviewed specific examples of "methods and procedures meeting the
standards of competent practitioners" in cases cited in the ABA's Annotated Model
Rules of Professional Conduct (5 th ed. 2003) and in other reported decisions in
which courts have judged the competence of attorneys' written work.' We also
consulted some, of the textbooks and treatises used to teach basic legal method,
analysis and drafting to law students and other legal professionals. Finally, we
reviewed a May 16, 2005 Memorandum by OLC's then Acting AAG Steven
Bradbur-j, captioned "Best Practices for OLC Opinions" (OLC Best Practices
102 (U) in addition, we note that Judge Bybee, Patrick Philbin an are all
members of the District of Columbia Bar. Philbin is also a member of the Massachusetts bar.
John Yoo is a member of the Pennsylvania bar. Those jurisdictions have all adopted the American
Bar Association's (ABA) Model Rules of Professional Conduct, with no significant changes, and the
rules applicable to this matter are identical in substance. I
. t
103 (U) Such cases generally arise in the context Of bar disciplinary proceedings, legal
malpractice actions, the consideration of sanctions under Fed. R. Civ. P. 11, or judicial criticism
that stops short of sanctions. See Judith D. Fischer, Bareheaded and Barefaced Counsel: Courts
React to Unprofessionalism in Lawyers' Papers, 31 Suffolk Univ. L. R. 1 (1997).
jap....sgeterW
- 121.-
DRAFT
Memo). 104 Based on our review of those materials, we concluded that the following
minimum standards of competence apply to Department attorneys who provide
written legal advice to executive branch clients.
(U) As specifically noted in Comment 2 to Rule 1.1, the analysis of precedent
is an essential element of competent legal advice. On a very basic level, this
requires the ability to research the law and to identify controlling legal authority.
See, e.g., Massey v. Prince George's County, 907 F. Supp. 138, 142 (D. Md. 1995)
("to provide competent representation [under Rule 1.1], a lawyer must be able to
research the law") (quoting Jacobstein and Mersky, Fundamentals of Legal
Research 13 (5th ed.)); William P. Statsky and R. John Wernet, Jr., Case Analysis
and Fundamentals of Legal Writing 161-165 (1995) (Statsky & Wernet); Charles R.
Calleros, Legal Method . and Writing 77-81 (5th ed. 2006) (Calleros)._ An attorney
must be able to distinguish controlling authority from persuasive authority or nonauthority,
and to determine whether the facts and law of a case are analogous to
the matter under consideration. David J. Smith, Legal Research and Writing 203-
210 (1996),(Smith); Stasky at 161-172; Calleros at 77-81.
(U) Conclusions of law should be supported by relevant authority. See, e.g.,
In re Shepperson, 164 Vt. 636 (1996) (court found, in bar disciplinary proceeding,
that attorney's briefs fell below minimum standards because they failed to cite legal
authority, contained numerous citation errors, and inaccurately represented cited
cases); Smith v. Town of Eaton, Indiana, 910 F.2d 1469, 1471 (7 th Cir. 1990) (court
criticized `counsel, citing Rule 1.1 and noting that a court "cannot be called upon
to supply the legal research and organization to flesh out a party's arguments");
Borowski v. DePuy, Inc., 850 F.2d 297, 304 (7 th Cir. 1988) (legal claims with no
support in existing law merit Rule 11 sanctions). See also, Michael D. Murray and
Christy jiallam DeSanctis, Objective Legal Writing and Analysis 175-176 (2006)
(Murray 'fnd DeSanctis); OLC Best Practices Memo at 2-3 ("Decisions of the
Supreme Court and courts of appeals directly on point often provide guiding
authority and should be thoroughly addressed, parAicularly where the issue is one
that is likely to become the subject of litigation."). .
(U) Legal research must be sufficiently thorough to identify all current,
relevant primary authority. Christina L. Kunz et al., The Process of Legal Research
109 (U) Bradbury told us that the OLC Best Practices Memo was written to "set forth some basic
principles that we should all keep in mind as we prepare opinions" and to "reaffirm traditional
practices in order to address some of the shortcomings of the past"
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2-3 (1989) (Kunz). See United States v. Russell, 221 F.3d 615, 620 (4 th Cir. 2000)
(in evaluating allegations of ineffective assistance of counsel, the court noted that
pursuant to Rule 1.1, "an attorney has a duty to adequately examine the law and
facts relevant to the representation of his .client"); OLC Best Practices Memo at 1
("it is imperative that our opinions be clear, accurate, thoroughly researched, and
soundly reasoned").
(U) Adequate steps must be taken to identify any subsequent authority that
affirms, overrules, modifies or questions a cited authority. E.g., Continental Air
Lines, Inc., v. Group Systems International Far East, Ltd., 109 F.R.D. 594, 596 (C.D.
Cal. 1986) (in considering the imposition of Rule 11 sanctions, the court noted that
failure to cite important United States Supreme Court case decided four months
earlier "fell below the required standard of reasonable inquiry"); Cimino v. Yale, 638
F. Supp. 952, 959 n. 7 (D. Conn. 1986) (admonishing counsel that "diligent
research, which includes Shepardizing cases, is a professional responsibility");
Taylor v. Belger Cartage Service, Inc., 102 F.R.D. 172, 180 (W.D. Mo. 1984) (award
for attorney's fees justified in part by fact that opposing counsel "never
Shepardizedlhis principle [sic] authority" and failed to identify later decisions that
limited the cited authority to its facts); Calleros at 177-178.
(U) Secondary authority should be relied upon only when relevant primary
authority is not available. 105 Murray and DeSanctis at 82-83. See Randall v. The
Salvation;-Army, 100 Nev. 466, 470-471 (1984) (court declined to consider
arguments supported solely by citation to secondary authority).
(U) Legal 'authorities must be described and cited accurately. Wallace
Computers Services, Inc. v. David Noyes & Co., 1994 WL 75201 at *1 (N.D. Ill.)
(court n4ed that the defendant's citation of three cases "in an inappropriate, out
of conteXlt manner" was sufficiently misleading to justify sanctions); Jones v.
Hamelman, 869 F.2d 1023 (7th Cir. 1989). ("We do not feel it is unreasonable to
expect carefully drafted briefs clearly articulating the issues and the precise
citation of relevant authority for the points in issue frOm professionals trained and
educated in the law"); Kunz gat 3; Smith at 172. See OLC Best Practices Memo at
3 (opinions "must undergo a thorough cite check by our paralegal staff to ensure
105 (U) "Primary authority includes constitutions, trLties, statutes and local ordinances,
administrative rules and regulations, and judicial opinions. . Secondary authorities, such as
treatises, restatements of the law, and law review articles, do not directly supply the rule of law
in a legal dispute [and have] no mandatory or binding effect." Calleros at 78.
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the accuracy of all citations").
(U) Selective quotations that omit relevant information are at worst,
misrepresentations, and at best, reflect sloppy research and writing. See
Northwestern National Insurance Co., v. Guthrie, 1990 WL 205945 (N.D. 111. 1990)
(court assumed counsel's "glaring omission" of sentence explaining exception to, a
quoted rule was "the result of sloppy research and writing, and not an intentional
effort to mislead or misdirect").
(U) In legal memoranda or opinion letters that seek to predict a legal
outcome, a thOrough discussion of the law should include the strengths and
weaknesses of the client's position and should identify any counter arguments.
Calleros at 88; Statsky at 179. The OLC Best Practices Memo specifically states:
"In general, we strive in our opinions for . . . a balanced presentation of arguments
on each side of an issue . . , taking into account all reasonable counter
arguments." OLC Best Practices Memo at 3. 106
(U) In }order to determine whether the attorneys who drafted the Bybee
Memo, the Classified Bybee Memo, and the Yoo Memo met the minimum standards
of competence and objectivity that apply to Department attorneys, we reviewed the
memoranda in question and identified the legal arguments and conclusions the
authors presented. We examined the logic, methodology and legal authority
underlyin,g the memoranda's arguments and conclusions in light of the basic
standar& discussed above. We also conducted independent research to determine
whether the cited authorities constituted a complete, accurate and current view of
the law at the time the memoranda were written.
( The commentary to Rule 1.1 explains that the degree of thoroughness
and atter)tion an attorney is required .to devote to a matter is determined by the
importance and significance of that matter. See D.C. Rule 1.1, comment 5. Thus,
an error or omission that might be considered an reusable mistake in a routine
matter, might constitute professional misconduct if it relates to an issue of major
importance.
(U) is universally recognized that "the right to be free from official torture
106 (U) While identifying and analyzing reasonable counterarguments is an important element
of competent legal writing, it is also mandated by D.C. Rule 2.1 ("Advisor"), discussed below.
DRAFT
is fundamental and universal, a right deserving of the highest status under
international law, a norm of jus cogens." Siderman de Blake v. Republic of
Argentina, 965 F.2d 699, 717 (9th Cir. 1992), cert. denied, 507 U.S. 1017 (1992).
See also, e.g., Filartiga v. Pena-Orala, 630 F.2d at 884. 1°7 It therefore seems selfevident
that Department attorneys considering the possible abrogation or
derogation of a jus cogens norm such as the prohibition against torture must be
held to the highest standards of thoroughness and attention.
(U) 2. The Duty to Exercise Independent Professional Judgment
and to Render Candid Advice
(U) The Bybee Memo was written to advise the CIA on whether certain
conduct would violate federal law. Thus, the OLC attorneys were not acting as
advocates, but advisors, and had the duty, under D.C. Rule 2.1 ("Advisor"), to
provide candid, realistic advice. The OLC Best Practices Memo observed that the
office "has earned a reputation for giving candid, independent, and principled
advice — even when that advice may be inconsistent with the desires of
policymakerA." OLC Best Practices Memo at 1.
(U) Rule 2.1 requires an attorney to "exercise independent professional
judgment and render candid advice." 08 This requirement is further explained in
the commentary as follows:
A client is entitled to straightforward advice expressing
the lawyer's honest assessment. Legal advice often
involves unpleasant facts and alternatives that a client
4,
may be disinclined to confront. In presenting advice, a
107 (U) "Jus cogens" refers to principles of international law so fundamental that no nation may
ignore them. Other jus cogens norms include the prohilaitios against slavery, murder, genocide,
prolonged arbitrary detention, and systematic racial discrimination. See, e.g., Restatement (Third)
of Foreign Relations Law of the United States § 702 (1987).
108 (U) Rule 2.1 also states that "[i]ri rendering advice, a lawyer may refer not only to law but
to other considerations such as moral, economic, social and political factors, that may be relevant
to the client's situation." The relevant commentary adds. that "moral and ethical considerations
impinge upon most legal questions and may-decisively influence how the law will be applied."
Because the rule's language regarding extra-legal considerations is permissive, however, a lawyer's
decision not to provide such advice should not be subject to disciplinary review. ABA, Annotated
Rules of Professional Conduct, Preamble and Scope at ¶ 14 (6 th ed. 2007); D.C. Rules, Scope at ¶
1.
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llaawwyyeerr endeavors to sustain the client's morale and may
put advice in as acceptable a form as honesty permits.
However, a lawyer should not be deterred from giving
candid advice • by the prospect that the advice will be
unpalatable to the client.
(U) The ABA Committee on Ethics and Professional Responsibility wrote, in
Formal Op. 85-352 (1985), that
[i]n the role of advisor, the lawyer should counsel the
client as to whether the position is likely to be sustained
. by a court if challenged . . . Competent representation
of the client would require the lawyer to advise the client
fully as to whether there is or was subStantial authority
for the position taken . . . .
"The] position to be asserted must be one which the
ta.wyer in good faith believes is warranted in existing law
or can be supported by a good faith argument for an
extension, modification or reversal of existing law. This
requires that there is some realistic possibility of success
: if the matter is litigated.
(U) We - foundlittle guidance for application of this standard in the case law
and prbfessional literature. We therefore approached our Rule 2.1 analysis by
considering, as 'a threshold matter, whether there was evidence that the client
desired -ayarticular result or outcome, and whether the attorney was aware of the
desired result. • :f so, we looked for the following acts or omissions by the attorney,
all of whi4h we considered evidence that the attorney failed to meet the obligations
of Rule 2.1:
1. Exaggerating or misstating the significance of authority that
supported the desired result;
2. Ignoring adverse authority or failing td discuss it accurately and fairly;
t
3 Using convoluted and counterintuitive arguments to support the
desired result, while ignoring more straightforward and reasonable
arguments contrary to the desired result;
TO
DRAFT
4. Adopting inconsistent reasoning or arguments to favor the desired
result;
5. Advancing frivolous or erroneous arguments to support the desired
result.
(U) We then considered whether the evidence, taken as a whole, established
by a preponderance of the evidence that the attorney violated his duty to provide
a straightforward, candid and realistic assessment of the law, without regard to the
outcome desired by the client.
(U) As discussed below, our review of.the Bybee Memo and the Yoo Memo
revealed numerous failures of scholarship and analysis resulting in violations of
Rules 1.1 and 2.1. While it may be that no single one of those failures, considered
in isolation, would compel a finding of less than competent representation, we
concluded that the many instances of unsupported arguments, incomplete
analysis, failure to discuss adverse authority, and mischaracterization of precedent
compelled thle conclusion that the authors of the Bybee Memo and the Yoo Memo
failed to meet their obligations under Rule 1.1 and thus committed misconduct.
(U) We also found evidence that the authors of the Bybee Memo and the Yoo
Memo tailored their analysis to reach the result desired by the client. In many
instances: the authors exaggerated or misstated the significance of cited legal
authority, failed to acknowledge or fairly present adverse authority, took
inconsistent approaches to favor the desired result, and advanced convoluted or
frivolous arguments. Accordingly, we concluded that they also violated their duty
under Rule 2.1 to provide a straightforward, candid and realistic assessment of the
law.
(U) B. Analysis of the Bybee Memo and the Yoo Memo
(U) As noted, the withdrawal of two OLC opinions - the Bybee and Yoo
Memos — by the same administration within such a short time was unprecedented.
Therefore, we initially focused on those memoranda, and particularly the sections
that were set aside or modified by the Departinent in 2004. We found the
withdrawal of certain arguments and conclusion' of law to be significant, but we
did not limit our review to those areas.. Rather, we examined the memoranda in
their entirety in light of the drafters' professional obligations set out above.
ET
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(U) 1. The Bybee Memo Did Not Constitute Competent Legal
Advice Within the Meaning of Rule 1.1'
(U) As discussed in detail in the following sections, we found errors,
omissions, misstatements, and illogical conclusions in the Bybee Memo. We found
that these problems resulted in incompetent legal advice from the OLC on this
issue. As discussed above, "the required attention and preparation [to a legal
matter] are determined in part by what is at stake." 11° In this matter, we concluded
that the legal advice was of critical importance to the CIA and the White House and
demanded the highest degree of care.
(U) The failure to provide competent legal advice to the CIA and White House
on this issue constituted a violation of Rule 1.1. In the paragraphs that follow, we
discuss seven areas of the Bybee Memo which we found, taken together,
constituted incompetent legal advice. 111
(U) a. Severe Pain
(U) The'Bybee Memo's definition of "severe pain" as necessarily "equivalent
in intensity to the pain accompanying serious physical injury, such as organ
failure, impairment of bodily function, or even death" was widely criticized, both
within and 'outside the Department. Goldsmith and Levin explicitly rejected that
formulation and characterized the reasoning behind it as illogical or irrelevant.
109 (li)t As noted earlier in this report, Yoo's March 14, 2003 memorandum to Haynes
incorporated the Bybee Memo in its entirety, with very few changes. Thus, our conclusions with
respect to the Bybee Memo, as set forth below, apply equally to the Yoo Memo. Moreover, former
AAG Goldsmith and other OLC attorneys identified sig -nifiatnt errors in the Yoo Memo's legal
analysis, which we have described earlier in this report.
110 (U) D.C. Rule 1.1, Comment 5.
11 (U).Our view that the memoranda did not constitute competent legal advice was shared by
others we interviewed. Levin stated that when he first read the Bybee Memo, he remembered
"having the same reaction I think everybody who reads it .tias - this is insane, who wrote this?'"
Jack Goldsmith found that key portions of the memoranda were "plainly wrong.7 Bradbury told
us that Yoo did not adequately consider counter arguments in writing the memoranda and that
"somebody should have exercised some adult leadership" with respect to Yoo's section on the
Commander-in-Chief powers.
T NO
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Various commentators described the definition as "absurd," 112 "strained logic," 113
or "bizare."' Aftereviewing the analysis and authority cited in the Bybe
Memo, we concluded that the reasoning underlying this legal conclusion was
illogical and unsupported by conventional legal analysis.
(U) The analysis began with the assertion that "Congress's use of the phrase
`severe pain' elsewhere in the United States Code can shed more light on its
meaning." Bybee Memo at 5. In support of that proposition, the memorandum
quoted the following language from West Virginia University Hospitals, Inc. v. Casey,
499 U.S. 83, 100 (1991): "[W]e construe [a statutory term] to contain that
permissible meaning which fits most logically and comfortably into the body of
both previously and subsequently enacted law." Bybee Memo at 5 (quoting West
Virginia University Hospitals, Inc. v. Casey). 115
(U) The Bybee Memo went on to state that "Isjignificantly, the phrase 'severe
112 (U) Darid Luban, Liberalism, Torture, and the Ticking Bomb, in The Torture Debate in
America 58, (Karen J. Greenberg ed., 2006).
113 (U) George C. Harris, The Rule of Law and the War on Terror: The Professional
Responsibilities of Executive Branch Lawyers in the Wake of 9/ 11, 1 J. Nat'l' Security L. & Policy
409, 434 (2005).
114 (U)`Kathleen Clark, Ethical Issues Raised by the OLC Torture Memo, 1 J. Nat'l Security L.
86 Policy 455, 459, (2005) ("This claimed standard is bizarre for a number of reasons. In.the first
place, organ failure is not necessarily associated with pain at all. In addition, this legal standard
is lifted from a statute wholly unrelated to torture." ).
115 • (IlfThe quoted excerpt omitted a qualifying introductory phrase: "Where a statutory term
presented Ito us for the first time is ambiguous, we construe ." Casey at 100. Thus, under
Casey, the Bybee Memo should have demonstrated that the term "severe pain" was ambiguous
before turning to other statutory sources. One way . of doing so would have been to cite
inconsistent definitions. See MCI v. ATT, 512 U.S. 218, 227 (f94) ("Most cases of verbal ambiguity
in statutes involve . . . a selection between accepted alternative meanings shown as such by many
dictionaries.").
(U) However, any difficulty in interpreting "severe pain" is more properly attributable to the
subjective nature of physical pain, rather than ambiguous language. See Levin Memo at 8, n. 18
(citing and quoting Dennis C. Turk, Assess the Person, Nolt Just the Pain, Pain: Clinical Updates,
Sept. 1993). The Bybee Memo's attempt to clarify the termtby associating it with "organ failure or
death" was,. if anything, more confusing than the plain language of the statute. There are many
forms of death and organ failure, but there is no level of physical pain that can logically be
associated with either event.
LOS_SEORVI CIPeltr-
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pain' appears in statutes defining an emergency medical condition for the purpose
of providing health benefits," and cited several nearly identical statutes that
defined the term "emergency medical condition" as
[A medical condition] manifesting itself by acute
symptoms of sufficient severity (including severe pain)
such that a prudent lay person, who possesses an
average knowledge of health and medicine, could
reasonably expect the absence of immediate medical
attention to result in— (i) placing the health of the
individual ... in serious jeopardy, (ii) serious impairment
to bodily functions, or (iii) serious dysfunction of any
bodily organ or part . .
Bybee Memo at 5-6 (citing and quoting 42 U.S.0 § 1395w-22(d)(3)(B)).
(U) The discussion concluded with the statement that "'severe pain,' as used
in [the tortute statute] must rise to a similarly high level - the level that would
ordinarily be associated with a sufficiently serious physical condition or injury
such as death, organ failure, or serious impairment of body functions - in order to
constitute torture." Bybee Memo at 6. 116
(U) The excerpt from West Virginia University Hospitals, Inc. v. Casey quoted
in the Bybee -Memo did not include the authority cited by the Court in that case
ilb ) This conclusion is restated several times in the Bybee Memo:
(11in the introduction at page 1 ("Physical pain amounting to torture must be equivalent
in intensity to the pain accompanying serious physical injury, such as organ failure,
impairment of bodily function, or even death");
(2) In the summary of Part I at page 13 ("The victim must experience intense pain or
suffering of the kind that is equivalent to the pain that would be associated with serious
physical injury so severe that death, organ failure, or permanent damage resulting in a loss
of significant body function will likely result");
(3) In the introduction to Part IV at page 27 (torturelis "extreme conduct, resulting in pain
that is of an intensity often accompanying serious !physical injury"); and
(4) In the conclusion at page 46 ("Severe pain ... must be of an intensity akin to that
which accompanies serious physical injury such as death or organ failure").
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2 J. Sutherland, Statutory Construction § 5201 (3d F. Horack ed. 1943) — which
discusses the "in pari materia" canon of statutory construction. That doctrine is
described as follows: "The intent of the legislature when a statute is found to be
ambiguous may be gathered from statutes relating to the same subject matter —
statutes in pari materia." Id. "Statutes are considered to be in pari materia . .
when they relate to the same person or thing, or to the same class of persons or
things, or have the same purpose or object." 117 Id. at § 5202. Accord, e.g., 82 CJS
Statutes 352 (2006); 73 Am. Jur. 2d Statutes 103 (2006); Black's Law Dictionary
(7th ed. 1990).
(U) The current edition of Sutherland also notes that
where the same subject is treated in several acts having
different objects the statutes are not in pari materia.
"The adventitious occurrence of like or similar phrases, or
even of similar subject matter, in laws enacted for wholly
different ends will normally not justify applying the rule."
Sutherland at § 51.03 (quoting Sylvestre v. United States, 771 F. Supp. 515 (D.
Conn. 1990)). Accord, 82 CJS Statutes 352 ("another dissimilar statute generally
is not persuasive in construing a statute") (footnote omitted); 73 Am. Jur. 2d
Statutes § 103 ("statutes which have no common aim or purpose, and which do not
relate to the same subject, thing, or person are not in pari materia") (footnote
omitted).
(U) Many United States Supreme Court opinions have discussed the in pari
materia doctrine in greater detail than the one case cited in the Bybee Memo. See,
e.g., Viteibo v. Friedlander, 120 U.S. 707 (1887) ("laws in pari materia, or upon the
same subject-matter, must be construed with a reference to each other") (emphasis
added); Ehrlenburg, et al. v. United States, 409 U.S. 239 (1972) (statutes are in pari
materia only if they "were intended to serve the sanA function") (citations omitted);
United States v. Cleveland Indians Baseball Co., 532 U.S. 200, 213 (2001)
("Although we generally presume that identical words used in different parts of the
same act are intended to haVe the same meaning, the presumption is not rigid, and
(U) The current edition of Sutherland's treatise, N. Singer, Sutherland on Statutes and
Statutory Construction (6 th ed. 2000) (Sutherland), was available in the main DOJ library when
the Bybee Memo was written. In fact, that treatise was cited elsewhere in the Bybee Memo to
define the doctrine "expression unius est exclusio alterius.' Bybee Memo at 8.
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DRAFT
the meaning of the same words well may vary to meet the purposes of the law")
(citation and internal quote marks omitted) (emphasis added).
(U) We know of no authority, and the Bybee Memo cited none, in support of
the proposition that identical words or phrases in two unrelated statutes are
relevant in interpreting an ambiguous term. Because the medical benefits statutes
relied upon in the Bybee Memo were unrelated to the torture statute, we concluded
that it was unreasonable to use the language of those statutes to define terms used
in the torture statute. 118
(U) In his OPR interview, Bybee explained his use of the medical statutes:
I think that we ought to look to any tools we can to try to
understand by analogy what the term "severe pain"
means, and by looking to the medical emergency
provisions, these are not statutes, we haven't made an in
pan materia argument here, we aren't arguing that
congress knew what it said in 42 U.S.C., and that it
incorporated that deliberately here, it's taken that phrase
out of . . . the CAT statute, but both the Levin
, memorandum and our memorandum reflect, there was a
great deal of concern on the part of the United States at
the drafting of CAT that these terms were not specific,
- that they didn't have any meaning in American law, and
there was even some concern that the statute might be
void, for vagueness. We're struggling here to try and give
some meaning that we can work with because we had an
application that we were also required to make at this
time, and we couldn't discuss this just simply as a
philosophical nicety; we had .real questions before us.
(U) Although Bybee stated that he did not rely upon the in pan materia
doctrine, he pointed to no , other authority for his use of the medical benefits
statutes. Moreover, as noted, the sole authority cited in the Bybee Memo - the
(U) The Bybee Memo acknowledged that the benefits statutes 'address a substantially 118
different subject from" the torture statute, but asserted, without citing any authority, that they
are nonetheless helpful for understanding what constitutes severe physical pain." Bybee Memo
at 6.
..1.SLE-SEeirri lasciPerrfri
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DRAFT`
Casey case — for turning to the medical benefits statutes was premised upon the
in pari materia doctrine. As such, we found that the section on severe pain in the`
Bybee Memo was not supported by relevant legal authority.
(U) As noted by a number of critics, the Bybee Memo's definition of severe
Pain could be interpreted as advising interrogators that they may legally inflict pain
up to the point of organ failure, death, or serious physical injury."' Indeed,
several early drafts of the Bybee Memo explicitly stated that the torture statute
only outlaws the intentional infliction of pain that "is likely to be accompanied by
serious physical injury, such as damage to one's organs or broken bones."
Although, in the final drafts, the authors removed the reference to "broken bones"
and modified the language by stating that severe pain must be "equivalent to" pain
"so severe that death, organ failure, or permanent damage" is likely to result, the
difference between the two formulations is minor. Whether severe pain is
described as pain that is likely to result in injury, or as "equivalent" or "akin" to
pain that is likely to result in injury, an interrogator could still draw the erroneous
conclusion'tiiat pain could be inflicted as long as no injury resulted.
(U) b. Specific Intent
(U) The torture statute states that in order to constitute torture, an act must
be "specifically intended to inflict severe physical or mental pain or suffering." 18
U.S.C. § 340(1). In examining this element of the statute, the Bybee Memo
engaged in a lengthy discussion of the common law concepts of general and
specific intent, drawing on language from a handful of Supreme Court cases and
secondary authorities to suggest that under certain circumstances, it would be
difficult fr the government to prove that a government interrogator acted with the
requisite Intent to violate the torture statute.
(U) In making such a broad finding, the Bybee Memo failed to adequately
analyze the legal complexities of the issue of specific intent, and thus failed to
adequately advise the client on the availability of the defense. As the Levin Memo
later observed, lilt is well recognized that the term 'specific intent' is ambiguous
and that the courts do not use it consistently." Levin Memo at 16 (citing 1 Wayne
119 (U) See, e.g., Andrew C. McCarthy, A Manufactured Scandal, National Review Online, June
25, 2004, http:/ /www.nationaIreviel.v.com / mccarthy/mccarthy200406250856.asp (to "equate
`severe physical pain' with pain 'like that accompanying death . . would suggest that any pain
which is not life-threatening cannot be torture."
T
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DRAFT
R. LaFave, Substantive Criminal Law § 5.2(e), at 355 n. 79 (2d ed. 2003)).
(U) The United States Supreme Court has commented more than once on the
imprecision of the terms "specific intent" and "general intent." In United States v.
Bailey, 444 U.S. 394 (1980), for example, the Court noted that "[flew areas of
criminal law pose more difficulty than the proper definition of the mens rea
required for any particular crime" and that the distinction between specific and
general intent "has been the source of a good deal of confusion" Id. at 403. 1'
(U) In United States v. United States Gypsum Co -., 438 U.S. 422 (1978), the
Court commented on "the variety, disparity and confusion' of judicial definitions
of the 'requisite but elusive mental element' of criminal offenses." Id. at 444
(quoting Morissette v. United States, 342 U.S. 246, 252 (1952)). In another case,
the Court noted that jury instructions on the meaning of specific intent have "been
criticized as too general and potentially misleading" and that a "more useful
instruction, might relate specifically to the mental state required under [the statute
in question] land eschew use of difficult legal concepts like 'specific intent' and
`general intent.' Liparota v. United States, 471 U.S. 419, 433 n. 16 (1985).
(U) The Bailey Court observed that "[i]ri, a general sense, 'purpose'
corresponds loosely with the common-law concept of specific intent, while
`knowledge' corresponds loosely with the concept of general intent." Bailey at 405.
However,)`l[i]n the case of most crimes, the limited distinction between knowledge
and purpOse has not been considered important since there is good reason for
imposilig: liability whether the defendant desired or merely knew of the practical
certainty of the result[s]." Id. at 404 (quoting United States Gypsum at 445)
(internal quotation marks omitted).
120 (U) The Court quoted the following passage from LaFave & Scott's treatise on criminal law:
Sometimes "general intent" is used in the same way as "criminal intent" to mean
the general notion of rnens rea, while "specific intent" is taken to mean the mental
state required for a paiticular crime. Or, "general intent" may be used to
encompass all forms of the mental state requirement, while "specific intent" is
limited to the one mental state of intent. Another possibility is that "general
intkrit" will be used to characterize an intent to dojomething on an undetermined
occasion, and "specific intent" to denot; an intent'o do that thing at a particular
time and place.
Bailey at 403 (quoting W. LaFave & A. Scott, Handbook on Criminal Law § 28, 201-202(1972)).
TO
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(U) The meaning of specific intent may vary from statute to statute. For
example, in evaluating the mental state required to prove a violation of 18 U.S.C.
§ 664 (theft or embezzlement from employee benefit plan) one appellate court found
that "Nile specific intent required . . . includes reckless disregard for the interests
of the plan." United States v. Krirnsky, 230 F.3d 855 860-861 (6 th Cir. 2000)
(emphasis added). See also, United States v. Woods, 877 F.2d 477, 480 (6th
Cir.1989) (specific intent in cases involving willful misapplication of bank funds in
violation of 18 U.S.C. § 656 "exists whenever the officer acts knowingly or with
reckless disregard of the bank's interests and the result of his conduct injures or
defrauds the bank"); United States v. Hoffman, 918 F.2d 44, 46 (6th Cir.1991)
(district court correctly instructed the jury that reckless disregard is equivalent to
intent to injure or defraud).
(U) In an obstruction of justice case, the specific intent issue was addressed
as follows:
N1AT e see no need to undertake an extended excursion into
the subtleties of specific intent. In our view, the
defendant need only have had knowledge or notice that
success in his fraud would have likely resulted in an
obstruction of justice. Notice is provided by the
reasonable foreseeability of the natural and probable
consequences of one's acts.
United States v. Neiswender, 590 F.2d 1269, 1273 (4th Cir. 1979) (emphasis added).
(U) The current trend, as noted by the Supreme Court in Bailey, is
exemplified by the Model Penal Code. Thus, "the ambiguous and elastic term
`intent' [has been replaced] with a hierarchy of culpable states of mind . . ,
commonly identified, in descending order, of culpability, as purpose, knowledge,
recklessness, and negligence." Bailey at 403-404' (citing W. LaFave & A. Scott;
Handbook on Criminal Law 194 (1972) and Americai'i Law Institute, Model Penal
Code § 2.02 (Prop. Off. Draft 1962)).
(U) .This trend is also reflected in the current model jury instructions for
federal criminal cases. 1A Kevin F. O'Malley, Jay. Grenig & Hon. William C. Lee,
Federal Jury Practice and Instructions § 17.03 (5 th ed. 2000 & 2006 Supp.)
(Federal Jury Instructions). That treatise's circuit by circuit survey on the subject
includes the following observation:
DRAFT
No jury instruction is provided or should be given for the
term "specific intent" because the law has grown and now
developed away from charging the jury on this
concept. . . . Each of the jury instruction committees of
the circuit courts of appeals have followed suit and
discouraged the use of jury instructions on specific
intent. Where a precise mental state is an element of the
offense charged, that mental state should be clearly set
out in the "elements of the offense charged" instruction to
the jury.
Id.
(U) None of the uncertainty or ambiguity of federal case law was reflected in
the Bybee Memo's analysis.' As such, the memorandum failed to adequately
advise the client of the state of the law. Instead, the memorandum made broad
assertions about the torture statute's specific intent requirement and based those
conclusions bn brief excerpts from a limited number of cases or, more commonly,
on secondary, 'sources.
(U) An example of the Bybee Memo's failure to accurately present relevant
authority lies in the memorandum's analysis of Ratzlaf v. United States, 510 U.S.
135 (1994).' The first paragraph of the Bybee Memo's discussion of specific intent
included -a citation to Ratzlaf, and summarized that case as follows:
[I]n 'Ratz/af, . . . the statute at issue was construed to
require that the defendant act with the "specific intent to
1, commit the crime." (Internal quotation marks and citation
.1 omitted). As a result, the defendant had to act with the
express "purpose to disobey , the law" in order for the
rnens rea element to be satisfied.
121 (U) The omission is surprising in light of the fact qiat Bailey, which commented on the
complexity and ambiguity of the issue, was cited in the meworandurn's specific intent discussion
and elsewliere in the memorandum. The Levin! Memo noted the complexity and ambiguity of this
area of the law, concluded that it would not be 'useful to try to define the precise meaning of
`specific intent"' in the torture statute, and disavowed the Bybee Memo's conclusions, adding that
"it would not be appropriate to rely on parsing the specific intent element of the statute to approve
as lawful conduct that might otherwise amount to torture." Levin Memo at 16 and 16 n. 27.
_ICLE-Seeitgr INSIECARfe-
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Bybee Memo at 3 (citing and quoting Ratzlaf at 141). The summary clearly implied
that the Court had considered the meaning of specific intent and had concluded
that it required an express purpose to disobey the law on the part of the defendant.
(U) However, the Ratzlaf decision did not address the meaning of specific
intent. The statute under review in .that case penalized "willful violations" of the
Treasury Department's cash transaction reporting regulations, and the only
question before the Court was the meaning of the term "willful." Ratzlaf at 136-
137 and 141-149. In that context, the Court ruled that the term "consistently has
been read by the Courts of Appeals to require both 'knowledge of the reporting
requirement' and a 'specific intent to commit the crime,' i.e., 'a purpose to disobey
the law.'" Id. at 141 (italics in original).
(U) In addition, the Bybee Memo has been criticized for implying that an
interrogator who knowingly inflicted severe pain with some other objective, or goal,
in mind (such as obtaining information) would not violate the torture statute. See,
e.g., Andrew C. McCarthy, supra, ("the 'specific objective' qualification [in the Bybee
Memo] seems especially unworthy, conflating the separate legal (and common
-
sense) issues of intent and motive"). The memorandum suggested as much in
several instances, in statements such as "the infliction of .. . pain must be the
defendant's precise objective" or "a defendant is guilty of torture only if he acts with
the expres purpose of inflicting severe pain or suffering." Bybee Memo at 3-4.
(U) dn. response, the Levin Memo explicitly stated that "there is no exception
under _the statute permitting torture to be used for a 'good reason'" and "a
defendant's motive (to protect national security, for example) is not relevant to the
question whether he has acted with the requisite specific intent under the
statute. Levin Memo at 17 (citing Cheek v. United States, 498 U.S. 192, 200-201
(1991)). 1 4
(U) Finally, the Bybee Memo's discuSsion of a„pbtential good faith defense to
violation of the torture statute is overly simplistic. The ,memorandum characterized
the good faith defense as: "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 intent." Bybee Memo at 4. The memorandum added that even an
unreasonable belief could constitute good faith, -lint cautioned that a jury would
be unlikely to acquit a defendant on the basis Jan unreasonable, but allegedly
good faith. belief. Id. at 5. Thus, the memorandum concluded, "a good faith
defense will prove more compelling when a reasonable basis exists for the
1QPSgeftET NDge'Rlr
DRAFT
defendant's belief." Id.
(U) The Bybee Memo cited three cases in support of its conclusion that the
good faith defense would apply to prosecutions under the torture statute, but did
not point out that the good faith defense is generally applied only in fraud or tax
prosecutions. See Federal Jury Instructions § 19.06 at 857 ("The defense of good
faith is discussed in the context of mail, wire, and bank fraud, and in tax
prosecutions, infra."). 122
(U) The Bybee Memo failed to acknowledge the possibility that a court might
refuse to extend the good faith defense to a crime of violence such as torture. For
example, in United States v. Wilson, 721 F.2d 967 (4th Cir. 1983), the defendant
argued that he was entitled to a good faith instruction relating to the charge that
he willfully and specifically intended to export firearms. Id. at 974. The court of
appeals disagreed, noting that Isluch an unwarranted extension of the good faith
defense would grant any criminal carte blanche to violate the law should he
subjectively decide that he serves the government's interests thereby." Id. at 975.
1.
(U) The Bybee Memo also failed to advise the client that under some
( circumstances, a prosecutor can challenge a good faith defense by alleging willful
blindness, or conscious or deliberate ignorance or avoidance of knowledge that
would negate a claim of good faith. See, e.g., United States v. Goings, 313 F.3d 423,
427 (8th Cir. 2002) (court properly gave willful blindness instruction where
defendants claimed they acted in good faith but evidence supported inference that
they "consciously chose to remain ignorant _about the extent of their criminal,
behavior"); United States v. Dunccin, 850 F.2d 1104, 1118 (6th Cir. 1988) (reversing
for failure to give requested instruction but observing that the trial court could
have ins. 4ructed the jury "on the adverse effect 'willful blindness' must have on a
good faitll defense to criminal intent"). See also S. Exec. Rep. No. 101-30 at 36
(App. A) (1990) (changes to U.S. CAT understanding regarding "acquiescence"of
public officials to torture intended "to make it clearer that both actual knowledge
and willful blindness fall within the meaning of acquiescence."). Thus, a CIA
interrogator who argued that he lacked the specific intent to torture, based on
information provided to him by the CIA and the Bybee Memo, could be accused of
deliberately ignoring contradictory inforMation from outside sources.
"-
122 (U) Bybee Memo at 4-5. The cases cited in the Bybee Memo included two mail fraud cases
and one prosecution for failure to file tax returns.
fi
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(U) c. Prolonged Mental Harm
(U) The Bybee Memo's discussion of what constituted "prolonged mental
harm" under the torture statute made conclusions that were unsupported by legal
authority. In an introductory paragraph, the Bybee Memo stated that "[gar purely
mental pain or suffering to amount to torture • . . it must result in significant
psychological harm of significant duration, e.g., lasting for month_s or even years."
Bybee Memo at 1. This analysis was not based on any judicial interpretation or
legislative history. Rather, it is based on a summary finding by the authors that
"prolonged mental harm" is harm "that is endured over some period of time."
Bybee Memo, Part LC.1. The authors went on to assert that the mental harm must
be "lasting, though not necessarily permanent," and that the mental stress of a
typical police interrogation would not violate the statute, but "the development of
a mental disorder such as posttraumatic stress disorder, which can last months
or even years .. might satisfy the prolonged harm requirement." Id. The Bybee
Memo noted that the phrase "prolonged mental harm" appeared nowhere else in
the United States Code, and cited no other legal authority to support its conclusion
that "prolonged mental harm" would have to last "months or even years" to
constitute evidence of torture.
(U) The Levin Memo conducted a similar analysis but rejected the Bybee
Memo's conclusion that mental harm must last months or years, noting that
"tallthouglejyre believe that the mental harm must be of some lasting duration to
be `prolor}ged,' to the extent that that formulation was intended to suggest that the
mental.•. . harm would have to last for at least 'months or even years,' we do not.
agree." Levin Memo at 14, n. 24.
(y4Based on our review, we concluded that the Bybee Memo's conclusion
that mental harm must last months or years in order to constitute evidence of
torture was supported by no legal authority. 123
123 (U) This section. of the Bybee Memo also incorporated, in a somewhat expanded form, the
paragraph from Yoo's July 13, 2Q02 letter to Rizzo, in which he stated that specific intent to cause
severe mental pain or suffering could be negated by a showing of good faith. The memorandum
advised the client that a "defendant could show'that he acted in good faith by taking such steps
as surveyipg professional literature, consulting with experts, or reviewing evidence gained from
past expe bee Memo at 8. The finat.draft of the,ybee Memo retreated somewhat from
Yoo's an iew of the law in earlier drafts. The ollowing sentence, which appeared in
drafts of e Bybee Memo as late as July 31, 2002, was deleted from the final version: "[lJf a
defendant threatens a prisoner with the imminent death of his fellow prisoners fully knowing that
prolonged mental harm will result from this threat, but he does so solely to extract information
12:2ESSORIL MENUECLIZS--
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(U) d. Ratification History of the United Nations
Convention Against Torture
(U) The Bybee Memo's analysis of this issue was incomplete and misleading.
The Bybee Memo cited the ratification history of the CAT in support of its
conclusion that the torture statute prohibited "only the most extreme forms of
mental and physical harm." Bybee Memo at 16. Drawing on conditions that were
submitted to the Senate Foreign Relations Committee by the Reagan
administration during the CAT ratification process, the Bybee Memo concluded
that "severe pain" under CAT is "in substance not different from" pain that is
"excruciating and agonizing. 73124
(U) The memorandum failed to disclose that those conditions were never
ratified by the Senate, in part because, "in number and substance, [they] created
the impression that the United States was not serious in its commitment to end
torture worldwide." S. Exec. Rep. No. 101-30 at 4. In reaction to criticism from
human rights groups, the American Bar Association, and members of the Senate
Foreign ReWions Committee, the Bush administration acknowledged that the
Reagan administration understanding regarding the definition of torture, which
included the phrase "excruciating and agonizing physical or mental pain or
suffering," could be seen as establishing "too high a threshold of pain for an act to
constitute torture," and deleted that language from the proposed conditions. Id.
at 9; Cony ention Against Torture: Hearing Before the Senate Comm. On Foreign
Relations; 101st Cong. 8-10 (1990) (Senate Hearing) (testimony of Hon. Abraham D.
Sofaer,r_Legal Adviser, Department of State).
(1.J) The Bybee Memo minimized the importance of the revision, stating that
"it mighte thought significant that the Bush administration language differs from
the Rea* administration understanding" because it was changed "in response
to criticism" that the language "raised the bar for the level of pain . . . ." Bybee
Memo at 18. However, the Bybee Memo dismissedthe differences as "rhetorical"
and asserted that the revisions "merely sought to remove the vagueness created by
[the] concept of 'excruciating and agonizing' mental pain." Id. at 19.
•
from the prisoner, the defendant has not acted .with specific intent." July 31, 2002 draft at 8.
124 (U) Id. at 19. The Levin Memo rejected that conclusion, noting that the Reagan
administration proposal was "'criticized for setting too high a threshold of pain,' and was not
adopted." Levin Memo at 2 (citation and footnote omitted).
--UULSEherrIMMEMI
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(U) It is inaccurate and misleading to state that the Reagan administration
language was changed solely to clarify the definition of mental pain. While that
was one reason for the revisions, it was addressed by inserting a detailed definition
of mental pain or suffering. However, it is clear from the ratification history that
the Bush I administration's proposed definition, which deleted the phrase
"excruciating and agonizing," was included in response to criticism that the United
States had adopted "a higher, more difficult evidentiary standard than the
Convention required" and to ensure that the United States proposal did "not raise
the high threshold of pain already required under international law . . . ." Senate
Hearing at 9-10 (Sofaer testimony).
(U) Finally, the Bybee Memo's almost exclusive reliance on the Reagan
administration's proposed conditions is difficult to understand, since those
conditions were never ratified by the Senate, and should therefore have no effect
on the United States' obligations under the CAT. See Restatement (Third) of
Foreign Relations Law of the United States § 314, cmt. a and b. (1987)
(reservations are effective only if ratified or acceded to by the United States with
the advice and consent of the Senate).
(U) e. United States Judicial Interpretation
(U) Part III of the Bybee Memo accurately stated that "[t]here are no reported
prosecutions under [the torture statute,]" and went on to discuss federal court
decisions under the Torture Victim Protection Act (TVPA). Bybee Memo at 22.
However,: the memorandum ignored a relevant body of federal case law that has
applied the CAT definition of torture in the context of removal proceedings against
aliens.
• :
(U) (1) Implementation of Article 3 of the Convention
Against Torture ,
(U) When Congress implemented Article 3 of the CAT, which prohibits the
expulsion of persons "to another State where . [they] would be in danger of being
subjected to torture," it directed the responsible agencies to prescribe regulations
incorporating the CAT definition of torture. 8 U.S.C. § 1231 note (2000). Those
regulatioris are at 8 C.F.R. § 208.18(a) (Departmeilt. of Homeland Security), and 22
C.F.R. § 95.1(b)(State Department). Like the OIT, the regulations distinguish
between torture and cruel, inhuman and degrading treatment. 8 C.F.R.
§ 208.18(a)(2) ("Torture is an extreme form of cruel and inhuman treatment and
DRAFT
does not include lesser forms of cruel, inhuman or degrading treatment or
punishment that do not amount to torture.")
(U) At the time the Bybee Memo was being drafted, a number of courts had
already interpreted the regulation's definition, providing additional examples of
how courts have distinguished between torture and less severe conduct. E.g., Al
-Saher v. I.N.S., 268 F.3d 1143 (9 th Cir. 2001); Kourteva v. I.N.S., 151 F. Supp. 2d
1126 (N.D. Cal. 2001); Khanuja u. I.N.S., 11 Fed. Appx. 824 (9 th Cir. 2001). While
the case law and the regulations are generally consistent with the Bybee Memo's
conclusion that torture is an aggravated form of cruel, inhuman, and degrading
treatment, a thorough and competent discussion of the issue would have identified
and discussed these cases. 125
(U) (2) The Torture Victim Protection Act
(U) In its discussion of cases decided under the TVPA, the Bybee Memo
pointed out that the TVPA's definition of torture, which closely follows the CAT
definition, r4quired the intentional infliction of "severe pain or suffering . . .
whether physical or mental;" and concluded that TVPA cases would therefore be
useful in determining what acts constituted torture. Bybee Memo at 23 and 23,
n.13. The memorandum also asserted that courts in TVPA cases have not engaged
in lengthy analyses of what constitutes torture because "railmost all of the cases
involve physical torture, some of which is of an -especially cruel and even sadistic
nature." 'Id. at 24. As support, the memorandum cited one district court case,
Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322 (N.D. Ga. 2002), and described, in a
two-and-a-half page discussion, the brutal physical treatment that the court found
to constitute torture in that case. Bybee Memo at 24-27. Thirteen additional TVPA
cases we'e summarized in an appendix to the memorandum.
(U) Acknowledging that the courts have not engaged "in a careful parsing of
the statute," but have simply recited the definitiormf torture and concluded that
the described acts met that definition, the Bybee Memo proposed that the reason
for the lack of detailed analysis was because only "acts of an extreme nature" that
were "well over the line of What constitutes torture" have been alleged in TVPA
cases. Id. at 27. Thus, the memorandum asserted, "there are no cases that
125 (U) As discussed below, one of the cases, United States v. Cornejo-Barreto, 218 F.3d 1004,
1016 (9th Cir. 2000), included language that undercuts the Bybee Memo's analysis of the necessity
defense.
Tar_SSORLF1Wr
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analyze what the lowest boundary of what constitutes torture.' [sic] Id.
(U) That assertion was misleading. In fact, conduct far less extreme than
that described in Mehinovic v. Vuckovic was held to constitute torture in one of the
TVPA cases cited in the appendix to the. Bybee Memo. That case, Dalbierti v.
Republic of Iraq, 146 F. Supp. 2d 146 (D.D.C. 2001), held that imprisonment for
five days under extremely bad conditions, while being threatened with bodily harm,
interrogated, and held at gunpoint, constituted torture with respect to one
claimant. Id. Other plaintiffs in that case, imprisoned for much longer periods
under similar or worse conditions, were also found to have stated claims for torture
under the TVPA. Id. The court made no findings regarding severe pain and only
general findings of psychological harm in concluding that the claimants were
entitled "to compensation for their mental and physical suffering during their
incarceration, - since their release, and in the future" Id.
(U) f. International Decisions
(U) Pa -.t IV of the Bybee Memo discussed the decisions of two foreign
tribunals: the European Court of Human Rights (European Court), in Ireland v.
the United Kingdom, 25 Eur. Ct. H.R. (sec.. A) (1978) (Ireland v. U.K.); and the
Supreme Court of Israel, in Public Committee Against Torture. in Israel v. Israel, 38
I.L.M. 1471 (1999) (PCATI v. Israel). That discussion began with the reminder that
"[a]lthough. decisions by foreign 'or international bodies are in no way binding
authority_ lipon the United States, they provide guidance about how other nations
will likely react to our interpretation of the CAT and [the torture statute]." Bybee
Memo at- 27. After referring in the next paragraph to the European-Court and the
European Convention on Human. Rights and Fundamental Freedoms (European
ConventVn), the memorandum stated that European Convention decisions
concerning torture "provide a useful barometer of the international view of what
actions amount to torture." Id. at 28.
(U) Despite those statements, the memoran.dum made no further reference
to international opinion. The Bybee Memo did claim, however, that the
international cases discussied in Part IV "make clear that while many extreme
interrogation techniques may amount to' cruel, inhuman or degrading treatment,
they do not produce pain or suffering of the.necessary intensity to meet the
definition of torture" and that the cafes "perniit, under international law, an
aggressive interpretation as to what amounts to torture, leaving that label to be
-1Q2-"€ftrr
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applied only where extreme circumstances exist." Id. at 2, 31 (emphasis added) . 126
We therefore concluded that the memorandum's discussion of the two foreign cases
was intended to add support to its "aggressive" definition of torture. 127
(U) (1) Ireland v. the United Kingdom
(U) The Bybee Memo's discussion of Ireland v. U.K. consisted of a detailed
description of five interrogation techniques that the European Court found did not
rise to the level of torture: wallstanding (a stress position); hooding; subjection to
noise; sleep deprivation; and deprivation of food and drink. Bybee Memo at 2'7-29.
The memorandum also noted that the court found other abusive techniques, such
as beating prisoners, not to constitute torture. Id. at 29.
(U) Based on our review of Ireland u. U.K., we concluded that the Bybee
Memo overlooked or ignored the following significant aspects of the European
Court's opinion:
• The opinion reviewed and reversed portions of the report and
findings of the European Commission of Human Rights (the
Commission), which initially investigated the Irish government's
complaint, held evidentiary hearings and interviewed witnesses.
In its report, the Commission unanimously found that the
combined use of the five interrogation techniques in question
violated the European Convention's ban on torture. Ireland v.
126 (U) The suggestion that the two cases supported an aggressive interpretation of what
constituted torture "under international law" was inaccurate.. A competent examination of what
is permisOle under international law would have required, at a minimum, a discussion of: (1) all
relevant international treaties, agreements and declarations (including, in addition to the European
Conventioti and the CAT, the U,N. Charter, the Universal Declaration of Human Rights, the
International Covenant on Political and Civil Rights, and related reports and studies); (2) the
doctrine of jus cogens; and (3) the laws, practices and judicial decisions of other States. See
Restatement (Third) of Foreign Relations Law of the United States at § 102 (summarizing the
sources of international law).
L27 (U) In his OPR interview, -Yoo acknowledged that his purpose in discussing the two foreign
cases was not to gauge possible international reaction, but to show how other common law
jurisdictions had addressed the issue of torture.. Because qf then prevailing disputes between the
State Department and DOJ over the effect of international law "on the way American law was to
be interpreted," he prefaced his discussion by stating that it was intended to show "how other
nations will likely react" to OLC's interpretation. Yoo told us that he personally believes that
international law "has no formal binding effect . . . but, you know, one part of common law is
looking at how other reasonable people interpret similar phrases."
19.2.,SrproftEi rt.p.Rir.
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U.K. at ¶ 147(iv).
The respondent government, the United Kingdom, did not
contest the Commission's findings that the interrogation
techniques constituted torture. Id. at ¶ 8(b).
Prior to the Commission's investigation, the government of the
United Kingdom formed a committee to review the interrogation
techniques in question. The committee's majority report
concluded that the techniques "need not be ruled out on moral
grounds." A minority report took the opposite view. However,
both the majority and minority reports concluded that the
methods were illegal under domestic law. Id. at ¶ 100.
• Following publication of the committee's report and prior to the
European Commission's investigation, the United Kingdom
renounced further use of the techniques in question. Id. at IT
oi, 102, 135.
• The case was decided by a seventeen judge panel of the
European Court. Four of those judges dissented from the
court's opinion, writing separately that they believed the
tec.h niques in question constituted torture. Id., Separate
Opinions of Judges Zelda, °Donoghue, Evrigenis and Matscher.
Although the majority of the European Court found that the
techniques did not constitute torture, it nevertheless found that their
use violated the European Convention. Id. at ¶ 168.
(U) A thorough and objective disaussion of Ireland v. U.K. would have
mentioned some or all of the above facts.' It would' also have considered a body
of post-Ireland case law from the European Court, n which the meaning of cruel,
inhuman, and degrading treatment and torture haS. been discussed further. 129
128 (U),The Bybee Memo's use of Ireland v. U.K. is discussed in Jeremy Waldron, Torture and
Positive Lau: Jurisprudence for the White House, 105 Coluin. L. Rev. 1681, 1705- 1706 (2005).
129 (U) Much of that case law in fact supports the Bybee Memo's conclusion that the term
"torture" should be applied to more severe forms of cruel, inhuman and degrading treatment. See,
e.g., Aksoy v. Turkey at ¶ 63.
TOP
•
•
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E.g., Selmouni v. France, (25803/94) [1999] ECHR 66 (28 July 1999); Aydin v.
Turkey, 23178/94 [1997]. ECHR 75 (25 September 1997); Aksoy v. Turkey,
(21987/93) [1996] ECHR 68 (18 December 1996). The failure to discuss Selmouni
is significant, since that case cited the definitions of torture and cruel, inhuman,
and degrading treatment of the CAT. Selmouni at ¶ 100. Selmouni also included
the following statement:
[C]ertain acts which were classified in the past as
"inhuman and degrading treatment" as opposed to
"torture" could be classified differently in the future... .
[T]he increasingly high standard being required in the
area of the protection of human rights and fundamental
liberties correspondingly and inevitably requires greater
firmness in assessing breaches of the fundamental values
of democratic societies.
Selmouni at 1 101. Thus, Selmouni raised questions about the continuing validity
of the Eurolian Court's findings in Ireland v. U.K. A thorough, candid assessment
of the law would have included a diScussion of that case.
(U) (2) Public Committee Against Torture in
Israel v. Israel
(U);the Bybee Memo cited PCATI v. Israel as further support for the
proposition that there is "a wide array of acts that constitute cruel, inhuman, or
degratfing treatment or punishment, but do not amount to torture." Bybee Memo
at 31. In that case, the Israeli court examined five extreme physical interrogation
techniiEjuss, similar to the techniques examined in Ireland v. U.K., and concluded
that all a the techniques were illegal and could not be used by the Israeli security
forces to interrogate prisoners. PCATI v. Israel at 11 24-31.' 3°
(U) The Bybee Memo acknowledged that theZourt did not address whether
the techniques amounted to torture, but claimed that the opinion "is still best read
as indicating that the acts at issue did not constitute torture." Bybee Memo at 30.
The, following reasons were given for this conclusion:
130 (U) The techniques were: (1) shaking; (2) "the Shabach" (a combination of hooding, exposure
to loud music, and stress positions); (3) the "Frog Crouch" (a stress position); (4) excessive
tightening of handcuffs; and (5) sleep deprivation. Bybee Memo at 30.
T
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•
"[I]iac court carefully avoided describing any of these acts as having
the severity of pain or suffering indicative of torture."
• The court "even relied on [Ireland v. U.K.] for support and it did
not evince disagreement with that decision's conclusion that the
acts considered therein did not constitute torture."
"The court's descriptions of and conclusions about each method
indicate that the court viewed them as merely cruel, inhuman
or degrading but not of the sufficient severity to reach the
threshold of torture."
• The court "concluded that in certain circumstances
[interrogators' could assert a necessity defense. CAT, however,
expressly provides that Inlo exceptional circumstance
whatsoever, . or any other public emergency may be invoked
as a justification of torture.' Art. 2(2). Had the court been of
tpe view that the . . . methods constituted torture, the Court
could not permit this affirmative defense under CAT.
Accordingly, the court's decision is best read as concluding that
these methods amounted to cruel and inhuman treatment, but
not torture."
Id. at 304T.
(J). An examination of the court's opinion in PCATI v. Israel led us to
conclude that the Bybee Memo's assertions were misleading and not supported by
the text 4f the opinion. The court's opinion was limited to three questions: (1)
whetherIsrael's General Security Service (GSS) was authorized to conduct
interrogations; (2) if so, whether the `GSS could use "physical means" of
interrogation, including the five specific techniques4 and (3) whether the statutory
necessity defense of the Israeli Penal Law could be used to justify advance approval
of prohibited interrogation techniques. PCATI v. Israel at ¶ 17.
(U) After determining that the GSS• was authorized to interrogate prisoners,
the court considered the methods that could bIle used to interrogate terrorist
suspects.' The court stated that although ttie "law of interrogation" was
"intrinsically linked to the circumstances of each case," two general principles were
worth noting. Id. at ¶ 23.
--T-C46BECW1Perl
DRAFT
(U) The first principle was that "a reasonable investigation is necessarily one
free of torture, free of cruel, inhuman treatment of the subject and free of any
degrading handling whatsoever." Id. The court added that Israeli case law
prohibits "the use of brutal or inhuman means," and values human dignity,
including "the dignity of the suspect being interrogated." Id. (citations and internal
quotation marks omitted). The court noted that its conclusion was consistent with
international treaties that "prohibit the use of torture, cruel, inhuman treatment
and degrading treatment." Id. 131 Accordingly, "violence directed at a suspect's body
or spirit does not constitute a reasonable investigation practice." Id. The court
cited as a second principle, that some discomfort, falling short of violence, is an
inevitable consequence of interrogation.. Id.
(U) After stating these general principles, the court considered the legality of
each of the five techniques. In describing the GSS's use of the interrogation
methods, the court observed that some of the techniques caused "pain," "serious
pain," "real pain," or "particular pain and suffering;" that they were "harmful" or
"harmed the suspect's body;" that they "impinge[d] upon the suspect's dignity" or
"degraded" dr suspect; or that they harmed the suspect's "health and potentially
his dignity." Id. at ¶1 24-30. However, the court did not attempt to categorize any
of the techniques as "torture" or "cruel, inhuman and degrading" treatment and did
not define those terms or refer to other sources' definitions. The court simply
concluded in each instance • that the practice was "prohibited," "unacceptable," or
"not to be leemed as included within the general power to conduct interrogations."
Id.
(U) 'Turning to the final issue, the court noted that although the question of
whether the necessity defense could be asserted by an interrogator accused of
using improper techniques was open to debate, the court was "prepared to accept
that in the appropriate circumstances, GSS investigators may avail themselves of
the necessity defence, if criminally indicted." Id. at ¶ 34,35. The court made it
clear, however, that this was not the quedtion that ‘Was under consideration. Id.
at 35. At issue was whether Israel's statutory necessity defense could be invoked
to justify advance authorization of otherwise prohibited interrogation techniques
in emergency situations. Id: The court concluded that the statute could not be so
used. Id. at 37.
131 (U) The court added: "These prohibitions are 'absolute.' There are no exceptions to them
and there is no room for balancing." Id.
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DRAFT
(U) The Bybee Memo's assertion that the court's opinion in PCATI v. Israel is
"best read" as saying that EITs do not constitute torture was not based on the
language of the opinion. The Israeli court never considered whether the techniques
constituted torture or cruel, inhuman and degrading treatment. There was
therefore no basis for.the Bybee Memo's statement that "the court carefully avoided
describing any of these acts as having the severity of pain or suffering indicative
of torture" or that the court's "descriptions of and conclusions about each method
indicate that the court viewed them as merely cruel, inhuman or degrading but not
of the sufficient severity to reach the threshold of torture." Bybee Memo at 30. 132
We concluded thathe Bybe Memo's argument on this isue was based the
authors' speculation as to what the court may have intended to say, not the actual
language and reasoning of the court's opinion, and that it therefore violated basic
principles of legal reasoning and analysis.
(U) g. The Commander-in-Chief Power and Possible
Defenses to Torture
(U) ThF last two sections of the Bybee Memo, addressing the President's
Commander-in-Chief power. (Part V) and possible defenses to the torture statute
-. (Part VI), differ in one important respect from the preceding sections. Earlier
sections were generally responsive to the CIA's request for advice concerning the
limits on interrogation created by the torture statute. The last two sections went
beyond that request and outlined circumstances under which acts of outright
torture would not be prosecutable under the statute. Because of OLC's recognized
role as the definitive interpreter of the law within the Executive Branch, these
sections in effect constituted an advance declination of prosecution for future
violations of the torture statute, notwithstanding Criminal D_ ivision AAG Chertoff's
refusal ti provide a formal declination.
(U) In 2004, these parts of the Bybee Memo were criticized by the
Department and White House officials as "or-broad," "irrelevant," and
"unnecessary," and were disavowed shortly after the memorandum was leaked to
the press. Even before the memorandum was made available to the public, OLC
132 (LTIOne of Yoo's comments on an early draft of the ifybee Memo indicates that the authors
knew the Isr opinion did not provide direct support for their position. In his comments,
Yoo wrote to "isn't there some language in the opinion that we can characterize as
showing that e court did not think the conduct amounted to torture?" responded,
"Unfortunately, no."
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AAG Goldsmith concluded that the reasoning in those sections was erroneous. 133
When the Levin Memo apeared in late 204, it refered briefly to Parts V and VI
of the Bybee Memo, noted that those sections had been superseded, and concluded
that further discussion was therefore unnecessary. Levin Memo at 2.
(U) We asked the OLC attorneys who worked on the Bybee Memo whythe
two sections were added to the memorandum shortly before it was signed
told us that she believed the sections were added to give the client "the full scope
of advice." Yoo stated that'he was "pretty sure" they were added because he, Bybee
and Philbin "thought there was a missing element to the opinion." 134 However,
Philbin recalled that he told Yoo the sections should be removed, and that Yoo
responded, "they want it in there." Bybee had no recollection of how the two
sections came to be added, did not remember discussing their inclusion with Yoo
or Philbin, and did not remember seeing a draft that did not contain them.
(U) John Rizzo told us that the CIA did not ask OLC to include those sections
and that he did not remember if he saw them before the final draft appeared.
Alberto Gonzales did not recall how the sections came to be added to the Bybee
Memo, but mentioned that David Addington had a general interest in the powers
of the Commander in Chief and may have had some input into that section. David
Addington testified before the House Judiciary Committee that Yoo met with him
and Gonzales at the White House Counsel's Office and outlined for them the
subjects he, planned to address in the Bybee Memo, including the constitutional
authority:.Of the President apart from the statute and possible defenses to the
statute. Addington testified that he told Yoo, "Good, I'm glad you're addressing
these issues."
(0) As discussed above, the two sections were drafted after the Criminal
Division declined to provide an advance declination for the CIA's use of EITs.
Based on4this timing, we believe the sections were added to achieve indirectly the
result they were unable to obtain - immunity for those who engaged in the
application of EITs.
133 (U).'Although Goldsmith initially reviewed and withdrew the Yoo Memo, that document
incorporated the arguments and reasoning of the Bybee Memo.
134 (U) Yoo conceded, however, that the CIA may have indirectly given him the idea to add the
two sections by asking him what would happen if an interrogator "went over the line."
TO
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(U) (1) The President's Commander-in-Chief Power
(U) In Part V, the Bybee Memo in effect advised the client that the
Department of Justice would not prosecute CIA interrogators for violating the
torture statute during the questioning of al Qaeda suspects, because such a
prosecution would be an unconstitutional interference with the President's
Commander-in-Chief power. Critics both inside and outside the Department
characterized this argument as a minority view, one that did not acknowledge or
address more widely-held, mainstream views as to the scope of executive power.'
We agreed with the criticisms of the opinion, and concluded that in light of the
importance of the subject matter, the analysis in Part V was not adequately
supported by authority.
(U) The legal conclusion of Part V is stated conditionally in several places (the
torture statute "may be" or "would be unconstitutional under the circumstances),
but is expressed without qualification elsewhere (the statute "must be construed"
not to apply; the factors discussed "preclude an application" 'of the statute; and the
Department "could not enforce" the statute). In light of the overall tone of Part V,
Ithe
fact that the purpose of the memorandum was to assess the lawfulness of EITs,
and the fact that the Commander-in-Chief discussion was added to the
memorandum within days of a request for a prospective declination of prosecution,
we concluded that Part V was, in effect, a declaration that the Department of
Justice would not prosecute CIA interrogators.
(U) The memorandum's reasoning can be summarized as follows:
• The United States is at war with al Qaeda. Part V. A.
The President's Commander-in-Chief power gives him sole and
complete authority over the conduct of war. Part V. B.
Statutes should be interpreted to avoid constitutional problems, and
a criminal statute cannot be interpreted in such a way as to infringe
135 (U) j As discussed above, Bradbury commented- that Yoo's approach to the issue of
Commander-in-Chief powers reflected a school,Ofthought fiat is "not a mainstream view" and did
not adequately consider counter arguments. Levin commented that he did not believe it was
appropriate: to address the question of Commander-in-Chief powers in the abstract and that the
memorandum should have addressed ways to comply with the law, not circumvent it. Goldsmith
believed that the section was overly broad and unnecessary, but also contained errors.
DRAFT
upon the President's Commander-in-Chief power. Part V. B.
• Accordingly, OLC must construe the torture statute as "not applying
to interrogations undertaken pursuant to [the President's]
Commander-in-Chief authority? Part V. B.
• In addition, the detention and interrogation of enemy prisoners is one
of the core functions of the Commander in Chief. Part V. C.
"Any effort by Congress to regulate the interrogation of battlefield
combatants would violate the Constitution's sole vesting of the
Commander-in-Chief authority in the President." Part V. C.
Therefore, prosecution under the torture statute "would represent an
unconstitutional infringement of the President's authority to conduct
war." Part V. C.; Introduction; Conclusion.
(U) Thi argument assumed, without explanation or reference to supporting
authority, that enforcing the statutory prohibition against torture would somehow
regulate or interfere with the interrogation of prisoners during wartime. This
proposition is not stated directly, and in fact, the word "torture" does not appear
in Part V. Instead, the discussion is framed in terms of the President's "discretion
in the interrogation of enemy combatants," or interrogation methods that
"arguably'' violate the statute.' Notwithstanding the authors' careful choice of
words, interrogation methods that violate the torture statute are acts of torture.
(U) Torture has not been deemed available or acceptable as an interrogation
tool In
to
Anglo-American legal tradition since well before the drafting of the
United Slates Constitution. See, e.g., A v. Secretary of State for the Home
Department [2005] UKHL 71 at 111 11 and 12 (H.L.) (discussing the English
common law's rejection of interrogation by torture nd Parliament's abolition in
136 (UrThe tone of this section of the Bybee Memo is npticeably argumentative, and in many
respects resembles a piece of advocacy more than an impartial analysis of the law. For example,
at one point, the memorandum refers to the torture statute as one of an unspecified number of
"unconstitutional laws that seek to prevent the President from gaining the intelligence he believes
necessary to prevent attacks upon the United States." Bybee Memo at 39.
TO
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DRAFT
1640 of the royal prerogative to interrogate by torture); 137 Waldron, Torture and
Positive Law, supra, at 1719-1720 (2005) (discussing the Anglo-American legal
system's "long tradition of rejecting torture and of regarding it as alien to our
jurisprudence"); Celia Rumann, Tortured History: Finding Our Way Back to the Lost
Origins of the Eighth Amendment, 31 Pepp. L. Rev. 661, 673-679 (2004) (discussing
the views of the framers of the Constitution on interrogation by torture).
(U) The Bybee Memo cited no authority to suggest that the drafters of the
Constitution (or anyone else) believed or intended that the President's Commanderin-
Chief powers would include the power to torture prisoners during times of war
to obtain information. In the absence of any reason to believe that the legal
restrictions imposed by the torture statute are in conflict with the President's
ability to conduct war, we concluded that Part V of the Bybee Memo was based
upon an argument without legal support.
(U) The Bybee Memo also asserted that the President alone has the
constitutional authority to interrogate enemy combatants and that any attempt by
Congress to regulate military interrogation thus "would violate the Constitution's
sole vesting of the Commander-in-Chief authority in the President." Bybee Memo
at 39. 138 Whatever the merits of this conclusion, it was not based on a thorough
discussion of all relevant provisions of the Constitution. Among the enumerated
powers of Congress are the following:
To cl'ehne and punish Piracies and Felonies committed on the high seas, and
137 (U) The•House of Lords opinion is available online at
www.. publications. parliamentukpa/ Id200506/1djudgrnt/jd051208 / aand-l.htm.
• 4
138 - (UVrhe Bybee Memo asserted that "the Supreme Court has unanimously stated that it is
'the President alone [] who is constitutionally invested with the entire charge of hostile operations.'
Bybee Memo at 33-34 (emphasis added in Bybee'Memo) (citi and quoting Hamilton v. Dillin, 88
U.S. (21 Wall.) 73, 87 (1874)). The excerpted language overstated the significance of the Court's
Comment in Hamilton. The complete sentence is as follows: s
Whether, in the absence of Congressional action, the power of permitting partial
intercourse with a public enemy may or may not be exercised by the President alone, who
is constitutionally invested with the entire charge of hostile operations, it is not now
necessary to decide, although it would seem that litt'e doubt could be raised on the subject.
Hamilton of 87. In fact, the Hamilton decision can be read to support the view that Congress and
the President have concurrent powers in this area. See Hamilton at 87-88..
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DRAFT
Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules
concerning Captures on Land and Water, .. .
To make Rules for the Government and Regulation of the land and naval
Forces . . . .
To provide for organizing, arming, and disciplining, the Militia, .
U.S. Const., art. I, § 8 (emphasis added).
(U) Congress has exercised the above powers to regulate the conduct of the
military and the treatment of detainees in a number of ways, including enactment
of the Articles of War, the Uniform Code of Military Justice, the War Crimes Act,
and, more recently, the Detainee Treatment Act of 2005 and the Military
Commissions Act of 2006. The Bybee Memo should have addressed the
significance of the enumerated powers of Congress before concluding that the
President's pbwers were exclusive. 139
•
139 (U) 17 Part V, 'the Bybee Memo cited another OLC memorandum that discussed two of the
relevant enumerated powers of Congress: the Captures Clause and the power to regulate the armed
forces. Bybee Memo at 38 (citing Memorandum for. William J. Haynes, II, General Counsel,
Departmegf Of Defense, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel,
Re: The President's power as Commander in Chief to transfer captured terrorists to the control and
custody-of foreign nations (March 13, 2002) (the Transfer Memo) at 5-7). The Transfer Memo's
discussion of the Captures Clause concluded that the word "captures" was limited to the capture
of property; not persons, and that Congress therefore had no authority to make rules concerning
captureS of persons. Transfer Memo at 5. This conclusion was based on quotations from two
historicalAources that used the word "captures" in connection with the seizure of property, but
did not mention persons. Id.
(U) The Transfer Memo also cited language in the A tieles of Confederation that granted
Congress power to establish "rules for deciding, in all cases, vkrhat captures on land or water shall
be legal, and in what manner prizes taken by land or naval forces in the service of the United
States shall be divided or appropriated." Id. (quoting Articles of Confederation, art. IX, reprinted
in Encyclopedia of the American`Constitution app. 2, at 2094 (Leonard W. Levy ed., 1986)). The
Transfer Memo asserted that because persont cannot be divided or appropriated, the word
"caPtures" ias used in the Articles of Confederation must elude persons. However, the language
in question referred to "prizes," not "captures.."; A prize isit:. vessel or cargo captured by a nation
at war and subject to condemnation or appropriation as enemy property. Black's Law Dictionary
(8' ed. 2004). Thus, a "prize" can readily be "divided or appropriated."
(U) In fact, other historical sources refer to the capture of both persons and property. See,
-111"ael LCIEC71141*-
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(U) Commentators and legal scholars have also criticized the Bybee Memo
for failing to discuss Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952),
the leading Supreme Court case on the distribution of governmental powers
between the executive and the legislative branches. See, e.g., Luban, supra n. 112,
at 68; Kathleen Clark, Ethical Issues Raised by the OLC Torture Memorandum , 1
J. Nat'l Sec. L. & Policy 455, 461 (2005). As noted above, AAG Goldsmith and
other .OLC attorneys also criticized the omission in their review of the Yoo Memo.
While arguments can be made for or against the applicability of Youngstown to the
question of the President's power to order the torture of prisoners during war, we
believe a competent attorney providing objective advice to his client would have
acknowledged its relevance to the debate. 14°
(U) Finally, in its discussion of presidential powers, the Bybee Memo
neglected to acknowledge the executive's duty to "take Care that the Laws be
e.g., Joseph Story, Commentaries on the Constitution of the United States, § 573 at 412 (reprinted
1987)(1833) [congressionally granted letters of marque and reprisal "contain an authority to seize
•the bodies or goods of the subjects of the.offending state"); 3 The Papers of Alexander Hamilton
• (Harold C.• Syrett et al., eds.) (rePrinted1979)(1801) (available at
http:/ /press-pUbs.uchicago.edu/ founders/ docurrients/a1_8_1 1s 11.html), (discussing the power
"to capture and detain . . . cruisers with their crews" and the right of warring parties "to capture
the persons.and property of each other") (emphasis added).
(U) In,addition, the Transfer Meino inaccurately claimed that Congress has never enacted
a statute addressing the treatment of enemy combatants. Transfer Memo at 6. In fact, the
Transfer Memo itself mentioned three such statutes, id. at 9-12, but dismissed their relevance with
the corialusory statement that "Congress may have acted outside the scope of its constitutionally
granted powers in ,passing at least some of these statutes." Id. at 9,. n. 15. A fourth statute
addressing the treatment of enemy combatants, the Act of July 6, 1812, ch. 128, 2 Stat. 777 ("An
Act for th3safe keeping and accommodation of prisoners of war"), was perfunctorily dismissed as
"at best . .1•za recognition by Congress of powers that President Madison already enjoyed." Transfer
Memo` at12-.13. A Supreme Court case that took the contrary view of that statute, and which
noted that Congress, not the President, has the power to regulate enemy persons and property,
was cited in the Transfer Memo, but summarily dismisses} as having been wrongly decided.
Transfer Memo at 12 (citing Brown v. United States, 12 U.S. (8 cranch) 110 (1814)).
140 (U) Bybee told us that the.Bybee Memo was "quite consistent" with Youngstown, and stated
that:
NT recognized that we're in Category 3, Congress N.s enacted a statute that might
interfere with the Commander in Chief. authority'tind Justice Jackson's analysis
sharpens the issues; it doesn't answer the question, you still have to define what
is the substantive content of the vesting clause of Article II, and what is the
substantive content of conferring the Commander-in-Chief authority on the
President.
DRAFT
ffaaiitthhffuullllyy executed." U.S. Const., art. II, § 3. Under the Constitution, international
treaties "shall be the supreme Law of the Land; . . ." U.S. Const. art. VI. Before
interpreting the Commander-in--Chief clause in such a way as to bar enforcement
of a federal criminal statute implementing an international treaty, the authors of
the Bybee Memo should have considered an alternate approach that reconciled the
Commander-in-Chief clause with the Take Care clause?"
(U) Bybee defended the Commander-in-Chief section of the report, but stated
that "at the time [he] had the impression that the section was not as fulsome as it
might be." .Bybee said he did not want the opinion to be overly long because he
was "afraid that would overblow the question because this is more in the sense of
sort of directing their attention to the issue."
(U) (2) Criminal Defenses to Torture
(U) The last section of the Bybee Memo discussed possible defenses to
violations of the torture statute and concluded that "even if an interrogation
method might violate [the torture statute], necessity or self-defense could provide
justifications that would eliminate any criminal liability." Bybee Memo at 46.
Although the memorandum suggested that its analysis was based upon "[s]tandard
criminal law defenses," id. at 39, we found that not to be the case. At various
points, the memorandum advanced novel legal theories, ignored relevant authority,
failed to adequately support its conclusions, and misinterpreted case law.'
141 ( As a matter of constitutional interpretation, the Commander-in-Chief clause should not
have been tonsidered in isolation from the Take Care clause. See, e.g., Marbury v. Madison, 5 U.S.
137, 174 (1803) ("It cannot be .presumed that any clause in the constitution is intended to be
without effect; and therefore such a construction is inadmisfible, unless the words require it.");
Cohens v. Virginia, 19 U.S. 264, 393 (1821) (It is the duty of the Court "to construe the constitution
as to give effect to both {arguably inconsistent" provisions, as far as it is possible to reconcile them,
and not to permit their seeming repugnancy to destroy each other. We must endeavor so to
construe them as to preserve the true intent and meaning of the instrument."); Prout v. Starr, 188
U.S. 537, 543 (1903) ("The Constitution of the United States with the several amendments thereof,
must be regarded as one instrument, all of whoSe provisioqs are to be deemed of equal validity.").
142 (U) See Luban, supra n. 112, at 62-67, for a critique of the Bybee Memo's analysis of selfdefense
and necessity. That article was expanded upon in a subsequent book by the same author,
Legal Ethics and Human Dignity (2007), at pp.162-205, which raised several of the issues discussed
in this report.
T_QP_ASSOREI SORrrer
156
DRAFT
(U) (a) The Necessity Defense
(U) The Bybee Memo based its definition of the necessity defense on two
treatises, the Model Penal Code and LaFave & Scott's treatise on criminal law. One
United States Supreme Court decision, United States v. Bailey, 444 U.S. 394
(1980), was cited for the proposition that "the Supreme Court has recognized the
defense," but was not discussed further. Bybee Memo at 40. No other case law
was cited or discussed.
(U) Of course, any prosecution for violations of the torture statute would take
place in federal district court, and the relevant controlling judicial authority would
be the opinions of the United States Supreme Court or the United States Circuit
Courts of Appea1. 143 At the time the Bybee Memo was drafted, the Supreme Court
had discussed the necessity defense in two opinions: United States v. Bailey supra,
and United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483 (2001).
(U) In Bailey, the Court was asked to consider whether the common law
defenses of 1n-- ecessity or duress were available to a defendant charged with
escaping froth a federal prison. The Court briefly discussed the nature of the
defense at common law, but concluded that it was not necessary to consider the
availability or the elements of a possible necessity or duress defenses because
"[u]nder any definition of these defenses one principle remains constant: if there
was a reasonable, legal alternative to violating the law, 'a chance both to refuse to
do the criminal act and also to avoid the threatened harm,' the defenses will fail."
Bailey at 410 (quoting LaFave 136 Scott). The Court held that because the crime of
escape was a continuing offense, the defendant would have to prove that he had
made an effort "to surrender or return to custody as soon as the claimed duress
or necessity had lost its coercive force." Id. at 4.15. Based on the record before it,
the Couri concluded that the defense could not meet its burden and that the
necessity defense was therefore unavailable. Id.
(U) In United States v. Oakland Cannabis Buyers' Cooperative, the respondent
contended that "because necessity was a defense at common law, medical
necessity should be read into the Controlled Substances Act," and suggested that
Bailey had established that the necessity defens9 was available in federal court.
143 (U) Venue for violations of the torture statute could lie in any judicial district. 18 U.S.C. §
3238 (venue for offenses committed out of the jurisdiction of any state or district shall be in the
district where the defendant is first brought, in the district of the defendant's last known residence,
or in the District of Columbia).
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Oakland at 490. The Court disagreed, noting that although Bailey had "discussed
the possibility of a necessity defense without altogether rejecting it," the
respondent was "incorrect to suggest that Bailey has settled the question whether
federal courts have authority to recognize a necessity defense not provided by
statute. . . It was not argued [in Bailey], and so there was no occasion to
consider, whether the statute might be unable to bear any necessity defense at
all 144
(U) The Bybee Memo did not cite or discuss Oakland, and apart from stating
that the Bailey Court had "recognized" the necessity defenSe, no federal judicial
opinions were cited or discussed. 145 While the Oakland Court's comments about
Bailey were arguably dictum, they nevertheless explicitly rejected the very
proposition for which the Bybee Memo cited Bailey. 146
(U) In addition, a large body of relevant federal case law on the necessity
defense existed at the time the Bybee Memo was being drafted. • Opinions
discussing and setting forth the elements and limitations of the necessity defense
were available from every federal judicial circuit except the Federal Circuit (which
does not hear-criminal cases). E.g., United States v. Maxwell, 254 F.3d 21 (1't Cir.
2001); United States v. Smith, 160 F.3d 117 (2d Cir. 1998); United States v. Paolello,
951 F.2d 537 (3d Cir.1991); United States v. Cassidy, 616 F.2d 101 (4th Cir.1979);
laa (U)Id: at 490 and 490 n. 3. The Court revisited this issue in Dixon v. United States, 126
S.Ct. 2437 (2006), which discussed both Bailey and Oakland. In Dixon, the Court assumed that
a defense of duress would be available to a defendant charged with a firearms violation. Id.. at
2442. The Court ruled that the defense would be an affirmative one, which the defendant must
prove by a preponderance of the evidence, and concluded that there was no indication that
Congreesjntended the government to bear the burden of disproving the defense beyond a
reasonab doubt. Id.
145 (U) A simple cite check of Bailey would have revealed the existence of Oakland and dozens
of relevant federal appellate decisions.
146 (U) During his interview with OPR, John Yoo acknowledged that he was not familiar with
the Court's decision in Oakland. He also told us that "what we did is looked at the standard
criminal law authorities and, you know, didn't, you know, Shepardize all the authorities that we
used."
(U)'judge Bybee was unaware of the Oakland decisicin when the memorandum was drafted,
but told us that because Oakland came close to overruling Bailey but did not actuall do so it was
not necessary to discuss it in the memorandum. He did not know whether Yoo an were
aware of Oakland, or simply overlooked it. refused to discuss the legal research
and analysis that went into the Bybee Memo saying, "the document speaks for itself."
2CIESXGRer liti0X9.13Z--
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DRAFT
United States v. Gant, 691 F.2d 1159 (5th Cir. 1982); United States u. Singleton, 902
F.2d 471, 472 (6th Cir.1990); United States v. Mauchlin, 670 F.2d 746 (7 t1, Cir.
1982); United States v. Griffin, 909 F.2d 1222 (8 th Cir.1990); United States v.
Schoon, 955 F.2d 1238, 1239-1240 (9th Cir.1991); United States v. Turner, 44 F.3d
900 (10th Cir. 1995); United States v. Bell, 214 F.3d 1299 (11 th Cir. 2000); United
States v. Bailey, 585 F.2d 1087 (D.C. Cir. 1978), rev'd, United States v. Bailey, 444
U.S. 394 (1980). 147 See also Federal Jury Instructions, supra, at § 19.02 (surveying
federal jury instructions and case law for coercion and duress defenses, including
the necessity and justification defenses). 148
(U) A review of these and other judicial opinions reveals that the elements of
the necessity defense in federal court differ from the elements set forth in the
Bybee Memo. While the defense varies slightly among the circuits, most courts
have endorsed the following elements:
(1) the defendant was under an unlawful and present, imminent, and
impending threat of such a nature as to induce a well-grounded
r'
, 147 (U) (A s Westlaw search in the "ALLFEDS" data base for "necessity /1 defense & before
4/2002" yielded 454 cases. Although many of those cases were not on point (for example, cases
dealing-with the doctrines of business or medical necessity), the search identified Oakland
Cannabis. Buyers' Cooperative and dozens of relevant opinions of the United States Circuit Courts
of Appeals, including all of the cases cited above except Paolello (which refers to the defense as the
"justifica on defense"). Several federal cases were also cited in the treatises relied upon by the
Bybee Me4 o.
148 (U) During his OPR interview, Judge Bybee stated that a discussion of existing federal case
law on the necessity defense was not needed in the Bybee IVIefio because the reported cases were
"far afield" from a "ticking time bomb" situation.
(U) John Yoo told us:
pile were trying to articulate what the : federal common law defense was
generally, and we used the standard authorities to do that. . . . But the
other thing was that other situations that would haire arisen would just be
so different than this one, because this. was a case, this necessity defense
in the context of torture, is such a sort of well-known, well-discussed
hypothetical that, you know - like I say, that's almost all the writing about
this hypothetical circumstances are written about is necessity and selfdefense.
DRAFT
apprehension of death or serious bodily injury;' 49
(2) the defendant did not recklessly or negligently place himself in a situation
in which it was probable that he would be forced to choose the criminal
conduct;
(3) the defendant had no reasonable, legal alternative to violating the law, a
chance both to refuse to do the criminal act and also to avoid the threatened
harm; and
(4) a direct causal relationship may be reasonably anticipated between the
criminal action taken and the avoidance of the threatened harm.
See, e.g., United States v. Singleton, 902 F.2d at 472 - 473.' 5°
(U) A, thorough and competent discussion of the necessity defense would
have included an element by element analysis of how the defense would be applied
to a government interrogator accused of violating the torture statute. Such an
analysis would have identified the following issues.
(U) The first element of the defense, as noted above, required a defendant to
demonstrate as a preliminary matter that he faced an immediate, well-grounded
threat of death or serious injury. It is difficult to imagine a real-world scenario in
which a government interrogator with a prisoner in his physical custody would be
able to demonstrate that he personally faced such a threat. See, e.g., United States
v. Perrin, 45 F.3d 869, 874 (4 th Cir. 1995) rIt has been only on the rarest of
occasions that our sister circuits have found defendants to be in the type of
imminent danger that would warrant the application of a justification defense.").
A See, however, United States v. Newcomb, 6 F.3d 1129, (6th Cir. 1993) (justification
defense should be understood to apply when a defendant acts to prevent harm to
a third person, if threat of death or serious injiiry was immediate and well-
149 (U) IA few federal courts have adopted , a "choice of eiils" analysis similar to the "balancing
of harms"described in the first element of the MPC definit4n. See, e.g., U.S. v. Turner, 44 F.3d at
902.
1SO (11) In some cases involving escape from prison or unlawful possession of a firearm, the
courts have added a fifth element — that the defendant did not maintain the illegal conduct any
longer than-necessary. E.g., United States v. Singleton, 902 F.2d at 473 (citing Bailey at 399).
T
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DRAFT
grounded). 151
(U) Another element of the federal defense that merited discussion was the
requirement that a defendant prove that he had no reasonable, legal alternative to
violating the law. As one court noted:
The defense of necessity does not arise from a "choice" of
several sources of action; it is instead based on a real
emergency. It may be asserted only by a defendant who
was confronted with a crisis as a personal danger, a crisis
that did not permit a selection from among several
solutions, some of which would not have involuted
criminal acts.
United States v. Lewis, 628 F.2d 1276, 1279 (10th Cir. 1980), cert. denied, 450 U.S.
924 (1980). 152
(U) Thl.Bailey Court also stressed this element:
Under any definition of these defenses 'of duress or
necessity] one principle remains constant: if there was a
reasonable, legal alternative to violating the law, 'a
chance both to refuse to do the criminal act and also to
avoid the threatened harm,' the defenses will fail.
isi (U) The Bybee Memo, in Part IV (International Decisions), briefly alluded to the "ticking
timerbomy scenario, which is often used as moral justification for interrogation by torture. Bybee
Memo af731, n. 17. As many scholars have noted, that scenario is based on a number of
unreaiistid assumptions and has little, if any, relevance to intelligence gathering in the real world.
See, e.g., Luban, supra n. 112, at 44 -47; Kim Lane Sheppele, Hypothetical Torture in the 'War on
Terrorism," 1 J. Nat'l Security L. & Policy 285, 293-295, 337340 (2005); Henry Shue, Torture, 7
Phil. & Pub. Aff. 124, 141-43 (1978). Moreover, any reliance upon the "ticking time bomb" scenario
to satisfy the imminence prong of the necessity defense would be unwarranted in this instance,
since none of the EITs under consideration were designed or intended to produce immediate
results. Rather, the goal of the 'CIA program was to gradually condition the detainee in order to
break down his resistance to interrogation.
I 152 (U)Vhile the Bybee Memo did cite LaFaVe Seott'Ef version of this element, it distilled the
treatise's analysis, which included citations to six federal cases (including Bailey) to one short
sentence: "the defendant cannot rely upon the necessity defense if a third alternative is open and
known to him that will cause less harm." Bybee Memo at 40 (apparently referring to, but failing
to cite, LaFave & Scott at 638).
..'1.92-SierePRET EULECIEffr-
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DRAFT
Bailey at 410. 153 Thus, a government official charged with torture would have the
burden of proving that no other method of persuasion or interrogation would have
prevented the harm in question. The Bybee Memo did not address this issue.
(U) A similar issue is raised by the fourth element of the defense - that there
be a direct causal relationship reasonably anticipated between the criminal action
taken and avoidance of the threatened harm_. Thus, a defendant would have to
prove, by a preponderance of the evidence, that he reasonably anticipated that
torture would produce information directly responsible for preventing an
immediate, impending attack. Again, it is difficult to imagine a real-world situation
where this would be likely.
(U) The only other aspect of the necessity defense that was discussed in
detail by the Bybee Memo. was LaFave & Scott's observation that the "defense is
available 'only in situations wherein the legislature has not itself, in its criminal
statute, made a determination of values."' Bybee Memo at 41 (quoting LaFave &
Scott at 629.' 54 As LaFave & Scott's treatise explains, in a passage not cited in the
Bybee Memo,ffhen a criminal statute expressly provides that a necessity defense
is prohibited, : or conversely, that it is available, the statute's determination is
controlling. LaFave & Scott at 629.
(U) The Bybee Memo advanced two arguments in favor of the proposition that
Congress intended the necessity defense to be available to persons charged with
violating the torture statute. First, the memorandum stated that "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
153 (Wee also, United States v. The Diana, 7 Wall. (74 U.S.) 354,361 (1869) ( for the necessity
defense to'be available, the case must be one of 'absolute and uncontrollable necessity; and this
must be established beyond a reasonable doubt.... Any rule less stringent than this would open
the door to all sorts of fraud").
154 (U) Although TaFave 86. Scott cited only state statutes fOr this proposition, it is likely that
a federal court asked to permit, the defense in . a prosecution under the torture statute would
consider, as an initial matter, whether the defense was contemplated by Congress when it enacted
the law. See U.S. v. Bailey at 415, n.11 (recognizing "that Congress in enacting criminal statutes
legislates against a background of Anglo-Saxori common. Iv.t ... and that therefore a defense of
duress or coercion may well have been contemplated byfongress when it enacted" the prison
escape statute). See, however, Oakland at 490 n.3 (pointing out that the Bailey Court refused to
balance the harms of the proposed necessity defense and that 'we are construing an Act of
Congress, not drafting it.").
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by the necessity defense." Bybee Memo at 41. In a footnote, the memorandum
explained that argument as follows: the definition of torture in Convention Against
Torture only applied when severe pain is inflicted for the purpose of obtaining
information or a confession. Id. at n. 23. "One could argue that such a definition
represented an attempt to to [sic) indicate that the good of of [sic] obtaining
information . . . could not justify an act of torture. In other words, necessity would
not be a defense." Id. The memorandum went on to reason that when Congress
defined torture under the torture statute and did not include the CAT requirement
that pain be inflicted for the purpose of obtaining information or a confession, it
intended "to remove any fixing of values by statute." Id. Therefore, according to
the Bybee Memo, Congress intended to allow defendants charged with torture to
raise the necessity defense. Id.
(U) That argument depends on the following series of assumptions, none of
which is supported by the ratification history of CAT or the legislative history of the
torture statute: (1) the CAT definition's reference to the purpose of torture was
intended to signal that the necessity defense was unavailable, (2) Congress
interpreted the definition as such a signal, and (3) Congress adopted a broader
definition of torture than the CAT definition in order to indicate that the necessity
defense should remain available under United States law.
(U) Of course, it would be far simpler .and much more logical to conclude that
if Congress had intended to allow the necessity defense to apply to the torture
statute, it -Would have made an explicit statement to that effect, rather than relying
on attorneys and judges in future criminal prosecutions to discern a hidden reason
for its decision to broaden the scope of the definition of torture. Moreover, the
Bybee Memo's premise - that the wording of the CAT definition was "an attempt to
indicate"4hat necessity should not be a defense to torture - is unreasonable, since
the treatylexplicitly provided elsewhere that necessity was not a defense to torture.
CAT Art. 2(2). We concluded that the Bybee Memo's argument on this point was
plainly frivolous.
(U) In support of its second argument for concluding that Congress intended
to allow the necessity defense to apply to the torture statute, the Bybee Memo cited
CAT article 2(2). The memorandum reasoned that Congress was aware of article
2(2), "and of the [Model Penal Code] definition of the necessity defense that allows
the legislature to provide for an exception to the[ defense, [but] Congress did not
incorporate CAT article 2.2 into [the torture statute]." Bybee Memo at 41, n. 23.
Congress's failure to explicitly prohibit the defense, the memorandum concluded,
DRAFT
should be read as a decision by Congress to permit the defense. Id.
(U) The Bybee Memo failed to point out, however, that the fact that Congress
has not specifically prohibited a necessity defense does not mean that it is
available. U.S. v. Oakland Marijuana Buyers' Cooperative, 532 U.S. at 491, n.4 ("We
reject the Cooperative's intimation that elimination of the defense requires an
explicit statement.") (citation and internal quotation marks omitted).
(U) Moreover, the Bybee Memo's argument depends on the assumption that
Congress intended to enact implementing legislation for one section of CAT that
was inconsistent with the clear terms of another section. The memorandum did
not address the possibility that a court might conclude that the torture statute
should be interpreted in a manner that is consistent with article 2(2)'s prohibition
of the necessity defense.' 55 See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876, 887 n.20
(2d Cir. 1980) (referring to "the long-standing rule of construction first enunciated
by Chief Justice Marshall: 'an act of congress ought never to be construed to
violate the law of nations, if any other possible construction remains . .' (citing
and quoting ?Murray v. Schooner Charming Betsy, 6 U.S. 64, 67 (1804)). See also
Restatement(Third) of Foreign Relations Law of the United States at § 114 ("Where
fairly possible, a United States statute is to be construed so as not to conflict with
international law or with an international agreement of the United States.")
(U) ,More importantly, the Bybee Memo's convoluted arguments regarding
congressional intent ignored directly relevant material in the ratification history of
the CAT that undermined or negated its arguments. As the drafters of the Bybee
Memo apparently knew, but did not discuss in the memorandum, the Reagan
administration's proposed conditions for ratification of the CAT included the
followingunderstanding:
1 4
The United States understands that paragraph 2 of
Article 2 does not preclude the availOility of relevant
common law defenses, including but not limited to selfdefense
and defense of others.
155 (U) The authors of the Bybee Memo were able to r4cognize the logic of such an argument
when it supported a permissive view of the torture statute. In Part IV of the Bybee Memo
(International Decisions), in arguing that harsh Israeli interrogation methods did not constitute
torture, the authors concluded that the court must have interpreted Israeli law in a manner
consistent with the prohibition of CAT article 2(2). Bybee Memo at 31.
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S. Exec. Rep. No. 101-30 at 16.
The first Bush administration deleted that understanding from the proposed
conditions, with the following explanation:
Paragraph 2 of Article 2 of the Convention states 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." We accept this provision, without reservation.
As indicated by President Reagan when he transmitted
the Torture Convention to the Senate, no circumstances
can, justify torture.
The Reagan administration, without in any way
narrowing the prohibition on torture, had thought it
desirable to clarify that the Convention does not preclude
the availability of relevant common law defenses,
including self-defense and defense of others. That is, the
Convention does not prevent a person from acting in selfdefense,
as long as he does not torture. While there was
no opposition to this concept, substantial concern was
J.• expressed that if this understanding were included in the
instrument of ratification, it would be misinterpreted or
misused by other states to justify torture in certain
circumstances. We concluded that this concern was
justified and therefore reviewed whether the
Iunderstanding was necessary. We decided it was not,
since nothing in the Convention purports to limit
defenses of actions which are not committed with the
specific intent to torture. We wouldp6t object to your
including this letter in the Senate report on the Convention,
so that U.S. courts are clear on this point.
S. Exec. i Rep. No. 101-30 at 40-41 (App. B) (correspondence from the Bush
Administration to Members of the Foreign Relatiops Committee, Letter from Janet
G. Mullins, Assistant Secretary, Legislative Affair, Department of State, to Senator
1 .22LSEQRZT1111111111.40X7ORN'
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Pressler (April 4, 1990) (emphasis added)). 156
(U) Moreover, in considering whether Congress had made a "determination
of values" as to the applicability of the necessity defense to the torture statute, the
Bybee Memo failed to consider the following provision of the United States
Sentencing Guidelines:
Sometimes, a defendant may commit a crime in order to
avoid a perceived greater harm. In such instances, a
reduced sentence may be appropriate, provided that the
circumstances signifiCantly diminish society's interest in
punishing the conduct . . . .
U.S.S.G. § 5K2.11 (Policy Statement). As one state court has held, when a
legislature has addressed the factors that would give rise to the common law
necessity defense in the sentencing provisions of a statute, it has in effect made a
"determination of values" that the , defense should not be available. Long v.
Corrunonweaith of Virginia, 23 Va. App. 537, 544 (1966).
(U) While it can be argued that the guidelines do not constitute a legislative
determination with respect to the entire body of federal criminal law, much of
which predates Congress's creation of the United States Sentencing Commission
in 1984 cu', the implementation of the Sentencing Guidelines in 1987, a thorough
discussio-h of the necessity defense would have considered the relevance of
U.S.S.G. § 5K2.,11. If, as the Bybee Memo contended, Congress was aware of the
Model Pehal Code's definition of the necessity defense when it enacted the torture
statute, thereby making a "determination of values" that the defense was available,
Bybee Mitmo at 41, n. 23, it is equally reasonable to conclude that lawmakers were
aware of the Sentencing Guidelines and intended that the defense's factors should
be addressed at sentencing, rather than as a defense to criminal liability.
(U) The Bybee Memo also failed to consider the possibility that a court might
consult additional relevant statements from the executive branch, such as the
State Department's initial report to the United Nations Committee Against Torture,
documenting United States implementation of the CAT (prepared "with extensive
IS6
(U) On the copy of the Senate report we found in files, sections of the
Reagan administration's proposed understanding regarding common aw e enses and the Bush
administration's explanation for its deletion were underlined or marked in the margins.
i_LQESECRE-I NUEPR-N-
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assistance from the Department of Justice"). That report included the following
statement:
No exceptional circumstances may be invoked as a
justification of torture. United States law contains no
provision permitting otherwise prohibited acts of torture
or other cruel, inhuman or degrading treatment or
punishment to be employed on grounds of exigent
circumstances (for example, during a "state of public
emergency") or on orders from a superior officer or public
authority, and the protective mechanisms of an
independent judiciary are not subject to suspension.
United States Department of State, Initial Periodic Report of the United States of
America to the UN Committee Against Torture at ¶ 6 (October 15, 1999).' 57
(U) A court might also be influenced by the strong judicial condemnation of
torture in otlier federal cases. For example, in interpreting CAT Article 3, one court
wrote:
The individual's right to be free from torture is an
international standard of the highest order. Indeed, it is
a fits cogens norm: the prohibition against torture may
never be abrogated or derogated. We must therefore
construe Congressional enactments consistent with this
prdhibition.
United Statesv. Cornejo-Barret°, 218 F.3d 1004, 1016 (9 th Cir. 2000). Accord, e.g.,
Filartiga Pena-Orala, 630 F. 2d at 884.
(U) We also concluded that a thorough discussion of the relevant case law
would have noted that although the necessity defense has been considered by the
federal courts on many occasions, it has rarely been 'allowed to be presented to a
jury and, to our knowledge; has never resulted in an acquittal. See Oakland at
491, n.4 ("we have never held necessity to be a viable justification for violating a
is7 (U) Inits most recent report to the ComMittee Against Torture, the United States reaffirmed
its position-that "[n]o circumstance whatsoever ... may be invoked as a justification for or defense
to committing torture." United States Department of State, Second Periodic Report of the United
States of America to the UN Committee Against Torture at 1 6 (June 29, 2005).
auBsEettEr ai--- -
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federal statute") (citation to Bailey omitted). In most reported cases, courts have
found, as in Bailey, that the defendant would be unable to prove the elements of
the defense. See., e.g., United States v. Singleton, 902 F.2d at 472 (noting that a
defense of justification is infrequently appropriate).
(U) We also found it significant that the memorandum failed to mention that
the necessity defense is an affirmative defense, and that even if a court were to
allow it, a defendant would bear the burden of proving each element of the defense
by a preponderance of the evidence. E.g., Bailey at 415. Accord, MPC § 1.12(3)0;
LaFave & Scott at § 3.01.
(U) (b) Self Defense
(U) The Bybee Memo's discussion of self-defense suffers from some of the
same shortcomings as its treatment of the necessity defense. The description of
the doctrines of self-defense and defense of others was based on secondary
authorities - LaFave & Scott and the Model Penal Code. There was no analysis or
discussion of how the defense has been applied in federal court, and no review of
federal jury instructions for the defense.' In addition, significant aspects of the
CAT ratification history relating to the availability of the defense were ignored.
(U) The memorandum presented a two-page summary of the common law
doctrines'of self-defense and the defense of others, and acknowledged that those
defenses -would not ordinarily be available to an interrogator accused of torturing
a prisoner who posed no personal threat to the interrogator. Bybee . Memo at 44.
However, the memorandum asserted that "leading scholarly commentators believe
that interrogation of such individuals using methods that might violate 'the torture
statuter.iwould be justified under the doctrine of self-defense . . ." Id. Thus,
terrorists who help create a deadly threat"may be hurt in an interrogation because
they are part of the mechanism that has., set the attack in motion . . ." Id.
(U) The only authority cited for the Bybee Memo's extension of the doctrine
of self-defense was a law review article: Michael S. Moore, Torture and the Balance
of Evils, 23 Israel L. Rev. 280 (1989) (Moore Article). The author of that article, was
one per'son, not "leading scholarly commentator• , or "some commentators," as he
•
1511 (U) The memorandum did mention one federal case, United States v. Peterson, 483 F.2d
1222, 1228-1229 (D.C. Cir. 1973), but only to quote its summary of what Blackstone wrote about
self-defense in the mid-eighteenth centu
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was described in the Bybee Memo. 159
(U) Moreover, Professor Moore's article was a theoretical exploration of the
morality of torturing terrorists to obtain information. The article cited more
scholarly and philosophical works than legal authorities, and made no attempt to
summarize or analyze United States law. The arguments adopted by the Bybee
Memo were based on hypothetical situations proposed by Moore or other legal
theorists, and clearly represented Moore's personal views, which he did not claim
were supported by legal authority. See id. at 322-323. 160 Thus, the Bybee Memo's
conclusion that "a detained enemy combatant . . . may be harmed in self-defense
if he has knowledge of future attacks because he has assisted in their planning
and execution," Bybee Memo at 44, had no basis in the law; it was a novel
159 (U) The "track changes" feature of a February 2003 draft of the Yoo Memo (which
incorporated the Bybee Memo's discussion of self-defense nearly verbatim) indicates that AAG
Bybee questioned at that time whether the reference to "commentators" should be plural. In
response, eitherl or Yoo changed "leading scholarly commentators" to "some leading
scholarly commentators" and added another cite from the same issue of the Israel Law Review
Is It Necessary to Apply 'Physical Pressure" to Terrorists -Alan M. Dershowitz, - and to Lie About It?
23 Israel L. ReV. 192, 199-200 (1989) (the Dershowitz article). Yoo Memo at 79. The Yoo Memo
cited the Dershowitz: article with the signal, "see also," indicating that the Iclited authority
constitutes additional source material that supports the proposition." The Bluebook: A Uniform
System of Citation R.1.2 (a) at 23 (Columbia Law Review Ass'n et al. eds., 17 th ed. 2000). However,
the Dershowitz article does not address the doctrine of self-defense - it discusses the possible
application of the necessity defense to interrogators charged with using illegal methods and
systematically committing perjury to conceal the practice. The passage apparently cited by the Yoo
Memo Offers the following comment:
.I-lack the information necessary to reach any definitive assessment of whether the
GS (Israeli General Security Service] should be allowed to employ physical
pressure in the interrogation of some suspected terrorists under some
circmustances. (I am personally convinced that there are some circumstances - at
least in theory - under which extraordina,ry means, including physical pressure,
may properly be authorized; I am also convinced tat these circumstances are
present far less frequently than law enforcement personnel would claim.) My
criticism is limited solely to the dangers inherent in using- misusing in my view
- the open-ended "necessity" defense to justify, even retroactively, the conduct of
the GSS.
Dershowitz article at 199-200 (footnote omitted). We revilwed the entire Dershowitz article and
concluded it offers no support for the statement that "lqading scholarly commentators believe"
violations of the torture statute "would be justified under the doctrine of self-defense."
160 (U) The author's conclusions were introduced with the phrases "to my mind," and "[m]y own
answer to this question is . ." Id. at 323.
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argument that the authors misrepresented as a "standard" criminal law defense. 161
(U) The Bybee Memo presented another unprecedented interpretation of the
doctrine of self-defense, based on the principle that a nation has the right to defend
itself in time of war, and "the teaching of the Supreme Court in In re Neagle, 135
United States 1 (1890)." Id. at 44. According to the memorandum, Neagle held
that "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." Id. at 45.
The Bybee Memo asserted that Neagle "suggests" that "the right to defend the
national government can be raised as a defense in an individual prosecution." Id.
(U) We found the Bybee Memo's characterization of Neagle to be misleading.
The question before the Court in Neagle was whether a Deputy Marshal assigned
to protect Supreme Court Justice Stephen Field during his travels as Circuit
Justice for the Ninth Circuit was acting "in pursuance of the laws of the United
States" when he shot and killed a man who attacked Field. Id. at 41. The issue
arose becaUle Deputy Marshal Neagle was arrested and jailed. on state murder
charges after the incident. Id. at 7. The. United States Court of Appeals for the
Ninth Circuit ordered his release pursuant to a writ of habeas corpus, and the
county sheriff, represented by the California Attorney General, appealed to the
United States Supreme Court. Id. at 7.
(U)f At the time, the habeas corpus statute applied to prisoners held in
custody for, among other things, "an act done in pursuance of the laws of the
United States." Id. at 40-41. The sole question before the Court was whether
Neagle was acting "in pursuance of the laws of the United States" when he shot the
attackerend whether the Ninth Circuit had correctly ordered Neagle's release from
the count jail where he was being held. Id.
(U) The Court reasoned that because a federa, Statute granted United States
Marshals the same powers as state law enforcement personnel, and because a
California sheriff would have had the duty to defend Justice Field, Neagle was
16/ (U)1The first Bush administration's prOposal of cxr reservations, understandings and
declarations to the Senate Foreign Relations Committee r eveals that the administration did not
view self-defense to acts of torture as a possible defense. As the State Department explained in
correspondence to Senator Pressler, "[b]ecause the [CAT] applies only to custodial situations, i.e.,
when the person is actually under the control of a public official, the legitimate right of self-defense
is not affected by the Convention." S. Exec. Rep. No. 101-30 at 40 [App. B).
TO
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authorized by federal law to resist the attack, and "under the circumstances, he
was acting under the authority of the law of the United States, and was justified
in so doing; and that he is not liable to answer in the courts of California on
account of his part in that transaction." Id. at 76.
(U) The Neagle Court did observe that "[wle 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 . . ." Id. at 67.
However, the Court did not modify or enlarge the common law doctrine of selfdefense.
In fact, California's criminal self-defense statute was cited as the
applicable law. Id. at 68 (citing and quoting section 197 of the Penal Code of
California).'
(U) The Bybee Memo's assertion that Neagle would allow a government
official accused of torture to "defend his actions on the ground that he was
implementing the Executive Branch's authority to protect the United States
government,T, Bybee Memo at 45, .is an unreasonable and misleading
characterization of the holding of Neagle. 163
(U) The memorandum went on to discuss the nation's right to defend itself
against alined attack, citing the United States Constitution, Article 51 of the
United Nations Charter, and several United States Supreme Court cases. Bybee
Memo at 5. .Based on those authorities, the memorandum concluded:
162 (U) The Court summarized and quoted the statute as follows:
[Homicide is justifiable when committed by any person "when resisting any attempt
- to inurder any person, or to commit a felony, or to do some great bodily injury upon
any person," or "when committed in defense of habitation, property, or person
against one who manifestly intends or endeavors, by violence or surprise, to commit
a felony."
Id. at 68.
163
(U) Neagle's value as precedent is arguably limited by the unusual factual background of
the case, very little of which was reported in theCourt's opiillion. See Robert Kroniger, The Justice
and the Lady, in the Supreme Court Historical Stfciety 1977 Yearbook, available at
http:/ iwww. supremecourthistory. org/04_librarY/ subs_volUmes/ 04_c02_c.html. See also, Neagle
at 56 ("The :occurrence which we are called upon to consider was of so extraordinary a character
that it is not to be expected that many cases can be found to cite as authority upon the subject").
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If a government defendant were to harm an enemy
combatant during an interrogation in a manner that
might arguably violate [the torture statute], he would be
doing so in order to prevent further attacks on the United
States by the al Qaeda terrorist network. In that case, we
believe that he could argue that his actions were justified
by the executive branch's constitutional authority to
protect the nation from attack. This national and
international version of the right to self-defense could
supplement and bolster the government defendant's
individual right.
Id. at 46.
(U) 1-49wever, the authorities upon which this conclusion was based either
spoke in getieral terms of national defense or addressed the law of war, not the
domestic criminal law of the United States.' The Bybee Memo did not explain
how those authorities would apply to a criminal prosecution, or how they would
"bolster" an individual defendant's claim of self-defense in federal court. Like the
preceding; this conclusion was a hovel argument for the extension of
the law: of self-defense, without any direct support in the law, and without
disclosure of its unprecedented, novel nature.
(U) h. Conclusion
i For the reasons cited in Sections a through g above, we found that the Bybee
Memo' did not constitute competent legal advice within the meaning of Rule 1.1.
Accordingly, we concluded that the 'authors failed to meet their professional
obligations under the rule.
1
1" (U) One of the cited cases, United States U. Verfiugo-Urquidez, 494 United States 259 (1990),
held that the Fourth Amendment to the . United States Constitution did not apply to the search of
property in a foreign country owned by a non-resident alien. Id. at 2M. The page cited by the
Bybee Memo included a passing reference to the fact that the "United States frequently employs
Armed Forces outside this country - over 200 times in our history - for the protection of American
citizens or national security. " Id. at 273. The did not discuss the doctrine of self-defense.
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(U) 2. The Bybee Memo and the Yoo Memo Did Not Represent
Independent Professional Judgment and Candid Advice
Within the Meaning of Rule 2.1 165
(U) The drafters of the Bybee Memo and the Yoo Memo told us that OLC was
asked to provide an honest assessment of how the torture statute would apply to
the use of EITs, and that no one at the White House or the CIA ever pressured
them to approve the use of EITs or to provide anything other than an objective
analysis of the law. They also maintained that their analysis was a fair and
objective view of the statute's meaning and that they never intended to arrive at a
foreordained result. Despite these assertions, we concluded that the memoranda
did not represent independent professional judgment or candid legal advice, but
were drafted to provide the client with a legal justification to engage in its planned
course of conduct.'"
(U) As an initial matter, we found ample evidence that the CIA was not
looking for aril.objective, neutral explanation of the meaning of the torture statute.
Rather, .as John Rizzo candidly admitted, the agency was seeking "the Attorney
General's bleing" to use EITs, and at one point Rizzo even asked the Department
for an advance declination of criminal prosecution. The CIA did not develop EITs
with the liMitations of the torture statute in mind; rather, they adopted them
wholesale Jrom the SERE program, which incorporated techniques used by
totalitaridn regimes to extract intelligence or false confessions from captured
UnitedStates airmen. OLC's approval was sought as a final step before putting the
EITs into practice,
(1.11 We also found evidence that the OLC attorneys were aware of the result
desired Vy the client and drafted memoranda that supported that result. The
specific techniques the agency proposed were described to the OLC attorneys . in
detail, and were presented as essential to the success of the interrogation program.
The waterboard, in particular, was initially portrved as essential to the success
165 (U) As discussed above, the analysis which follows applies equally to the March 14, 2003
Yoo Memo.
icrs (U) We were unable to determine why the Bybee was issued, in light of the fact that
the Classified Bybee Memo provided specific, detailed aicdev to the CIA on what was permissible
in the interrogation of a specific individual. Goldsmith commented that it was 'deeply strange"
that two opinions were prepared. Rizzo told OPR that he had told Yoo that the unclassified opinion
was not "essential" to what the CIA needed from the OLC.
NO
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of the program:" A old us, "my personal perspective was there
could be thousands of American ives ost" if the techniques were not approved.
Yoo provided the CIA with an unqualified, permissive
statement regar mg specific intent in his July 13, 2002 letter, and provided an
equally permissive statement in the June-2003 bullet points he and Inn
reviewed and approved for use by the CIA. Goldsmith viewed the Yoo Memo itself
as a "blank check" that could be used to justify additional ElTs without further
DOJ review. Although Yoo told us that he had concluded that the mock burial
technique would violate the torture" statute, he nevertheless told the client,
according to Fredman and Rizzo, that he would "need more time" if thoy wanted
it approved.
'eS111111111 According to Rizzo, there was never any doubt that
waterboarding would be approved by Yoo, and the client clearly_rewarded
willing to find a way to achieve the desired result,
Finally, irntnediately after the Crimma
Division stated that the Department would not provide an advance declination of
prosecutiOn for violations of the torture statute, Yoo added two sections to the
Bybee Meino that had the same practical effect.
(U) As -set forth in this report, our review of the Bybee' Memo led us to
conclude thatthe OLC attorneys tailored their research and analysis to achieve the
result desired by the client. This is particularly disturbing because of the role that
OLC Oiays in the Executive Branch as the final arbiter on a large number of legal
issues Because of this unique role, the OLC Best Practices Memo specifically
stated: "In general, we strive in our opinions for . . . a balanced presentation of
167 On July 24, 2002, the CIA told the`OLC attorneys that:
(wlithout the water board, the remaining [EITsj would constitute a
50 percent solution and their effectiveness would dissipate
progressively over time, as the subject figures out that he will not be
physically beaten and as Ile adapts to/cramped confinement.
After dropping the waterboard from the program, the 'CIA told OLC, as stated in the 2007
Bradbury Memo, that sleep deprivation was "crucial" and that the remaining EITs were "the
minimum necessary to maintain an effective program . . . ."
DRAFT
arguments on each side of an issue .. . , taking into account all reasonable counter
arguments." OLC Best Practices Memo at 3. As demonstrated above, that practice
was not followed in this case.
(U) For example, several of the memoranda's arguments were supported by
authority whose significance was exaggerated or misrepresented. Neither of the
two law review articles cited in the Yoo Memo to support the position that torture
could be justified by the common law doctrine of self-defense in fact supported that
argument. Nor did the 1890 Supreme Court case, In re Neagle, provide any real
support for the view that "the right to defend the national government can be
raised as a defense in an individual prosecution? In addition, Yoo's conclusions
about the broad scope of the Commander-in-Chief power were based upon a onesided
and idiosyncratic view of the Constitution.
(U) A case citing the "in pari materia" doctrine was unjustifiably relied upon
to support an argument that language taken from an unrelated medical benefits
statute was relevant by analogy to the torture statute. Another case describing the
statutory rhrning of "willful" was selectively used to misleadingly suggest a
heightened seandard of specific intent. A case from the Supreme Court of Israel
was, according to the memorandum, "best read" as saying that the use of certain
EITs did not constitute torture, despite the fact that the question was not
addressed •in the court's opinion. The memorandum's authors exaggerated the
significance of two foreign court decisions to support the conclusion that "under
internatiaiLl law, an aggressive interpretation as to what amounts to torture [is
permitted ."
(U) We alSo found several instances in which adverse authority was not
discusSel and its effect on OLC's position was not assessed accurately and fairly.
For example, the Bybee Memo cited United States v. Bailey for the proposition that
the United States Supreme Court "has recognized the [necessity] defense," but did
not cite a later case, United States v. Oakland Cannabis Buyers' Cooperative, which
explicitly rejected the same proposition.
(U) In discussing the Torture Victim Protection Act, the Bybee Memo focused
almost exclusively on Mehinovic v. Vuckovic, which involved extremely brutal
conduct, to support the argument that :TVPA cases were all "well over the line of
D RAFT
what constitutes torture." 168 However, another case, in which far less serious
conduct was found to constitute torture, was relegated to the appendix and was
not fully discussed.
(U) In taking the extreme position that acts of torture could not be punished
under certain circumstances or could be justified by common law doctrines, the
memoranda did not refer to or discuss the relevance of the Convention Against
Torture Article 2(2), which explicitly states that no exceptional circumstances can
be invoked to justify torture. The drafters were, however, aware of Article 2(2) and
invoked it to the extent it was useful to them. Thus, they relied on it in two
separate, convoluted arguments to support a permissive view of the torture
statute. 169 Similarly, the memos failed to acknowledge the statement, in the United
States' 1999 report to the United Nations Committee Against Torture, that no
exceptional circumstances could ever justify torture, and ignored statements from
the first Bush administration that undercut the authors' theory that Congress
intended to permit common law defenses to torture, or that "severe pain" under the
torture statuti Jnust be "excruciating and agonizing."
(U) The authors of the memos also adopted inconsistent positions to
advance a permissive view of the torture statute. The statute's provision outlawing
"threat[s] of imminent death" resulting in severe mental pain or suffering was
minimized by the assertion that "(clommon law cases and legislation generally
define imminence as requiring that the threat be almost immediately forthcoming."
Bybee .Memo at 12; Yoo Memo at 44 (citing LaFave & Scott § 5.7, at 655.
According to the memoranda, only threats of immediate, certain death would be
covered_ by the statute. Bybee Memo at 12; Yoo Memo at 44.
JUNHowever, in the discussion of self-defense that appeared later in the
memoranda, the authors interpreted that authority differently to minimize possible
problems with the defense. The same section of LaFave & Scott, along with the
168 (II) Where the court in ilfehinovic v. Vuckouic found one example of less extreme treatment
- hitting and kicking a detainee and forcing hitia into a kneeling position - to constitute torture,
the Bybee Memo simply observed that "we Would disagree with such a view based on our
interpretition of the criminal statute." Bybee. Memo at 27.
169 (U). As discussed above, the memorandum ar ced, without acknowledging adverse
authority,.that because Congress did not explicitly adopt Article 2(2) in the torture statute, it must
have intended the common law defense of necessity to remain available to persons accused of
torture. CAT Article 2(2) was also cited as support for the memoranda's contention that the
Supreme Court of Israel did not conside interro ation techniques to constitute torture.
DRAFT
Model Penal Code's discussion of self-defense, was used to support the conclusion
that "[it would be a mistake . . . to equate imminence necessarily with timing that
an attack is immediately about to occur. . . ." Bybee Memo at 43; Yoo Memo at 7S.
The memoranda cited LaFave & Scott's example of a kidnapper telling a victim he
would be killed in a week; in such a situation, the victim could use force to defend
himself before the week passed. Based on that logic, a threat that would be
sufficiently imminent to justify killing a person in self-defense could nevertheless
be insufficiently immediate or certain to qualify as a "threat of imminent death"
under the torture statute. Put differently, an interrogator could threaten a prisoner
in such a way that would justify the prisoner killing the interrogator in selfdefense,
but would not constitute a "threat of imminent death" under the torture
statute, even if it caused severe mental pain or suffering.
(U) We also found that some of the arguments advanced in the memoranda
were convoluted, counterintuitive, or frivolous, albeit useful in achieving the
client's desired result. The use of medical benefits statutes to limit the application
of the torture statuteto acts involving pain so severe that it is associated with
"death, organ /failure, or permanent damage" falls within that category. Another
particularly cOnvoluted argument concerning the necessity defense suggested that
subtle differences between the CAT and the torture statute meant that "Congress
explicitly reinoved efforts to remove torture from the weighing of values permitted
by the necessity defense."
(p) These and other examples discussed above led us to conclude that the
authors of the Bybee Memo and the Yoo Memo violated their duty under Rule 2.1
to provide a straightforward, candid and realistic assessment of the law..
(Ulf-C. Analysis of the Classified Bybee Memo (August 1, 2002)
(U) Based on the results of our investigation, we similarly concluded that the
Classified Bybee Memo did not constitute thorougk; competent, and candid legal
advice, and thus violated D.C. Rules of Professional Responsibility 1.1 and 2.1.
First, the Classified Bybee Memo did not consider the United
States legal history surrounding the technique of iwaterboarding. The government
has historically condemned the use of ya.terboarding and has punished those who
applied it. After World War II, the United Sates convicted several Japanese
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DRAFT
soldiers for waterboarding American and Allied prisoners of war. 17° American
soldiers also have been court-martialed for administering waterboarding. One
such court-martial occurred for actions taken by United States soldiers during the
American occupation of the Philippines after the 1898 Spanish-American War.'
he general view that waterboarding is torture has also been
adopted in the United States judicial system. In civil litigation against the estate
of the former Philippine President Ferdinand Marcos, the district court found the
"water cure," in which a cloth was placed over a detainee's mouth and nose and
water poured over it to produce a drowning sensation, was both "a human rights
violation" and "a form of torture.' In addition, its use was punished when it was
applied by law enforcement officers as a means of questioning prisoners. In 1983,
Texas Sheriff James Parker and three of his deputies were charged by the
Department of Justice with civil rights violations stemming from their abuse,
including the use of "water torture," of prisoners to coerce confessions.' All four
men were convicted.
one of these cases involved the interpretation of the specific
elements of he torture statute, and as such are not precedential. However, a
thorough and complete examination of the technique of waterboarding surely
170 These trials took place before United States military commissions, and in
the International Military Tribunal for the Far East (IMTFE),commonly known as the Tokyo War
Crimes Trial. See Evan Wallach, Drop by Drop: _Forgetting the History of Water Torture in United
States Courts, 45,Colurn. J. Transnat'l L. 468 (2007) (citing United States of America v. Chinsaku
Yuki, Manilla (1946) (citation omitted); United States of America v. Hideji Nakaini.cra, Yukio Asano,
SeitaraHata, and Takeo Kitz, United States Military Commission, Yokohama, 1-28 May, 1947
(citation ()pitted); United States of America v. Yagohetji Iwata, Case Docket No. 135 31 March 1947
to 3 Apri171947, Yokohama (citation omitted); Judgement of the IMTFE at 49, 663: "The practice
of torturini prisoners of war and civilian internees prevailed at practically all places occupied by
Japanese troops . . . . Methods of torture were employed in all areas so uniformly as to indicate
policy both in training and execution. Among these tortures were the water treatment.") •
171 ee Guenael Mettraux, US Courts-Martial and the Armed Conflict in the
Philippines (1899-190 ): Their Contributions to National Case Law of War Crimes, 1 Oxford Journal
of International Criminal Justice . 135 (2003) (Major Edwin Glenn and Lieutenant Edwin Hickman
were tried for conduct to the prejudice of good Order and 'military discipline by courts martial in
May 1902 based upon infliction of the "water cure." Glenn Was convicted and Hickman acquitted.)
-.$
172 (U) In Re Estate of Ferdinand E. Marcos, Human Rights Litigation, 910 F. Supp. 1460, 1463
(D. Hawaii,..1995).
(U) United States u. Carl Lee, 744 F.2d 1124 5m Cir. 1 • 84).
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would have included a review of the legal history of waterboarding in the United
States.
In addition, in concluding that the CIA's use of ten specific
EITs during the interrogation of Abu Zubaydah would not violate the torture
statute, the Classified Bybee Memo relied almost exclusively on the fact that the
"proposed interrogation methods have been used and continue to be used in SERE
training" without "any negative long-term mental health consequences." Classified
Bybee Memo at 17.
n light of the fact
that the express goal of the CIA interrogation program was to induce a state of
"learned helplessness," we concluded that the Classified Bybee Memo's analysis
failed to provide a basis for concluding that use of the ten specific EITs in the
interrogation of Zubaydah would not violate the torture statute.
We also found that there was an insufficient basis for the
Classified Bybee Memo's conclusion that the use of sleep deprivation would not
result in_severe physical pain or suffering. As noted in the Bradbury Memo, the
ClassifielBybee Memo's analysis "did not consider the potential for physical pain
or suffering resulting from the shackling used to keep detainees awake." Bradbury
Memo at 35. Rather, the OLC attorneys limited their analysis to the physical
effects of lack of sleep, without inquiring about oN considering how the subject
would be kept awake: In light of the fact that prisoners were typically shackled in
standing positions with their arms elevated, wearing only a diaper, we concluded
that the Classified Bybee Memo's analysis was insufficient.'
t74 (U) The use of sleep deprivation as an interrogatiog technique was condemned as "torture"
in a report cited by the United States Supreme Court in Ashcroft v. Tennessee, 322 United States
143, 151n. 6 (1944). In that opinion, the Court quoted the following language from a 1930
American. Bar . Association report: "It has been known since 1500 that deprivation of sleep is the
most effective torture and certain to pro- ion desired."
DRAFT
Similarly, the ClasSified Bybee Memo failed to consider how
prisoners woul e orced to maintain stress positions and thus there was an
insufficient basis for the memorandum's conclusion that the use of stress positions
would not result in severe physical pain or suffering. The memorandum recited
that subjects subjected to wall standing would be "holding a position in which all
of the individual's body weight is placed on his finger tips." In other stress
positions, they would sit on the floor "with legs extended straight out in front and
arms raised above the head" or would be kept "kneeling on the floor and leaning
back at a 45 degree angle." Classified Bybee Memo at 10. However, the authors
did not consider whether subjects would be shackled, or threatened or beaten by
the interrogators, to ensure that they maintained those positions.
(U) Because of the authors' failure to address the issues detailed above, we
concluded that the legal advice provided was not competent or independent and
candid legal advice within the meaning of D.C. Rules of Professional Conduct 1.1
and 2.1.
(U) D. Analysis of Individual Responsibility
(U) Based on the results of our investigation, we concluded that former AAG
Jay S. Bybee failed to meet his responsibility .under D.C. Rule of Professional
Conduct 1,1 to provide competent representation to his client, the United States.
We found-that Bybee failed, to correct a significant number of analytical errors and
inadequately supported arguments in the Bybee Memo, the Yoo Memo, and the
Classified Bybee Memo.. Given the importance of the matter in question, we
concluded that Bybee's review of those documents and his attention to the
argumegts and analysis fell far short of the standards expected of competent
Departrkent of Justice attorneys. Although Yoo was responsible for drafting the
memoranda, Bybee, as the signator on two of them, was fully responsible for their
content.
(U) We also concluded that Bybee violated his scluty to exercise independent
legal judgment and to render candid, legal advice, pursuant to D.C. Rule of
Professional Conduct 2.1, because he failed to discuss or acknowledge significant
adverse; authority and did not present a candid, realistic assessment of the
likelihood that a court would sustain the positidns advocated in the memorandum.
Rather, he provided the client with the legal justification to engage in conduct OLC
knew the client wanted and intended to engage in. .We concluded that, in violating(
D.C. Rules 1.1 and 2.1, Bybee committed professional misconduct.
--Tga-erBelW
DRAFT
(U) We concluded that former Deputy AAG John Yoo failed to meet his
obligations under the D.C. Rule of Professional Conduct 1.1 to provide competent
representation to his client, the United States. We found that Yoo, as the principal
drafter of the Bybee Memo, the Classified Bybee Memo, and the Yoo Memo, was
responsible for the significant number of analytical errors and inadequately
supported arguments in those documents. Given the importance of the matter in
question, and in light of the number of errors and oversights we identified, we
concluded that Yoo's research and analysis fell far short of the standards expected
of competent Department of Justice attorneys.
(U) We also concluded that Yoo violated his duty to exercise independent
legal judgment and to render candid legal advice, pursuant to D.C. Rule of
Professional Conduct 2.1 because he failed to discuss or acknowledge significant
adverse authority and did not present a candid, realistic assessment of the
likelihood that a court would sustain the positions advocated in the memorandum.
Rather, he provided the client with the legal justification to engage in conduct OLC
knew the client wanted and intended to engage in. We concluded that in violating
these rules of)professional conduct, Yoo committed professional misconduct.
(U) Pursuant to Department policy, we will inform Bybee and Yoo's respective
state bars of our findings.
(U) .,We concluded that Patrick Philbin did not commit professional
misconduct in this matter because he did not participate in the drafting and did
not sign .the memoranda.
(U) We concluded thati.....because of relative inexperience
and subordinate position, did not commit misconaict. Although appears to
bear initial responsibility for a number of significant errors of scholarship and
judgment, work was reviewed by, and Mwas under the direction of, more
experienced attorneys who bear ultimate responsibility for the errors.
(U) We did not find that the other Departrrfent officials involved committed
professional misconduct We found Michael Chertoff, as AAG of the Criminal
Division, and Adam Ciongoli as Counselor to the AG, should have recognized many
of the Bybee Memo's shortcomings and should have taken a more active role in
DRAFT
evaluating the CIA program. John Ashcroft, as Attorney General, was ultimately
responsible for the Bybee and Yoo Memos and for the Department's approval of the
CIA program. Ashcroft, Chertoff, Ciongoli, and others should have looked beyond
the surface complexity of the OLC memoranda and attempted to verify that the
analysis, assumptions, and conclusions of those documents were sound. HoWever,
we cannot conclude that, as a matter of professional responsibility, it was
unreasonable for senior Department officials to rely on advice from OLC. We note
that Ashcroft was at least consistent in his deference to OLC. When Goldsmith
and Comey recommended that the Yoo Memo be withdrawn, Ashcroft did not
hesitate to support them.
(U) E. Analysis of the Bradbury Memos
(U) We did not subject the four Bradbury Memos to the same degree of
scrutiny as we did the Bybee Memo, the Classified Bybee Memo, and the Yoo
Memo."' The Bradbury Memos were not rescinded by the Department, and were
based in large part on the legal analysis of the Levin Memo, which corrected the
most obvious errors of the Bybee and Yoo Memos. However, our review raised a
number of ciuestions about the objectivity and reasonableness of some of the
Bradbury Memos' analysis.
(U) Others within the government expressed similar concerns. As discussed
above, DAG Comey and Philbin objected to the issuance of the Combined
TechniquO'Memo. In addition, Bellinger, then Legal Adviser to Secretary of State
CondoleeZza Rice, wrote to Bradbury and stated that, although a draft of the 2007
BradbUrY Memo did a "careful job analyzing the precise meaning of relevant words
and phrases," he was "concerned that the opinion's careful parsing of statutory
and trea. terms" would be considered "a work of advocacy to achieve a desired
outcome February 9, 2007 Bellinger letter at 11.
(U) -We found several indicia that the %Bradbury Memos were written with the
goal of allowing the ongoing CIA program to continue. First, we found evidence
that there was pressure on the Department to complete legal opinions which would
allow the CIA interrogation program to go forward, and that Bradbury was aware
of that pressure. Although Bradbury denied that he was obligated to arrive at a
desired outcome, in Comey's April 27, 2005 email & Rosenberg, Comey stated that
175 (U) The May 2005 Bradbury Memos were in some respects superseded by the 2007
Bradbury Memo, but part of their analysis was adopted by incorporation in the 2007
memorandum, and they were not withdrawn b the De artment.
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182 -
T * ' No • -,„,
DRAFT
"[t]he AG explained that he was under great pressure from the Vice President to
complete both memos, and that the President had even raised it last week." He
wrote "Patrick [Philbin] had previously expressed that Steve [Bradbury] was getting
constant similar pressure from Harriet Miers and David Addington to produce the
opinions."
JeT*8 We also found that the Bradbury Memos shared some of the
faults that we criticized in the Bybee and Yoo Memos. Although the Bradbury
Memos, unlike the Classified Bybee Memo, acknowledged the substantial
differences between SERE training and the use of EITs by the CIA, some sections
of the Bradbury Memos nevertheless cited data obtained from the SERE program
to support the conclusion that the EITs under consideration were lawful as
implemented by the CIA. In another argument, the SERE program was cited as
evidence that the CIA interrogation program and its use of EITs was "consistent
with executive tradition and practice." In light of the vast differences, as pointed
out by the CIA itself, between a training program and real world application of
techniques, we found this argument to be strained.
- 183 -
In addition, we question whether it was reasonable for OLC
to rely on CIA representations as to the effectiveness of the EITs. The CIA
Effectiveness Memo was essential to the conclusion, in both the Article 16 Memo
and the 2007 Bradbury Memo, that the use of EITs did not "shock the conscience"
and thus violate the Due Process Clause because the CIA interrogations were not
"arbitrary in the constitutional sense," that is, had a governmental purpose that
the EITs achieved. However, as Bradbury acknowledged, he relied entirely on the
CIA's representations as to the effectiveness of EITs, and did not attempt to verify
or question' the information he was given. As Bradbury put it, "it's not my role,
reall , to do:a factual investigation of that."
----------- . .,!
176
e had similar concerns about two documents that were not the subject
of this investigation - a letter and a memorandum f rom
Bradbu
ement at
ry to the CIA
CIA's se c
, both da
ret fac
ted Augu
ies.
s
. evaluating the legality of the concl,tions of cdpfin the ilitt 31, 206:
Some of the conditions that were approved because, among other reasons, they were represented
as essential to the facilities' security, were similar or identical to conditions that as "
were
conditioning
previously
described by the CIA or the military, in documents we found in OLC's files,
techniques." Those conditions of confinement included isolation, blindfolding, and subjection to
constant noise and light. NO •
- 184 -
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proximately thirty detainees
- 185 -
DRAFT
have been sub'ected to EITs.
as Al-Nashiri, the third
detainee to be waterboarded, who, according to the CIA OIG Report, continued to
be subjected to EITs - despite the objections of interrogators - because
CIA heads uarters officials believ- - ss _ es. •••• - 1 • 'so
We examined CIA assertions regarding
specific disrupted terrorist plots. 179 The memorandum stated that Abu Zubaydah
"provided significant information" about Jose Padilla and Binyam Mohammed,
"who planries1 to build and detonate a 'dirty bomb' . . . ." FBI sources cited in the
DOJ 1G Report stated, however, that the information in question was obtained
through the use of traditional interrogation techniques, before the CIA began using
EITs.
179 (U) Much of the following information was made public in a February 9, 2006 speech by
President Bush, and in a non-classified document issued by the Director of National Intelligence
on September 6, 2006, "Summary of the Hi _h Value Terrorist Detainee Program."
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...(..T•8 In addition, in considering whether the use of EITs is
"arbitrary in the constitutional sense," we believe the failures as well as the alleged
successes of the .ro_ram should have been considered.
„CT43 We also note that, to the extent the CIA Effectiveness Memo
was relied upon by Bradbury in approving the legality of the waterboard as an EIT
in 2005, iinost if not all of the CIA's past applications of that technique appear to
have exceeded the limitations, conditions and understandings recited in the
Bradbury Memos. Moreover, the program. approvektby Bradbury in 2007, which
does not include the use of the waterboard, is based upon the "effectiveness" of
interrogation sessions that made extensive use of the waterboard. Thus, the
programs approved by Bradbury in 2005 and 2007 differed significantly from the
one that produced the intelligence data Cited in the CIA Effectiveness Memo.
DRAFT
(U) Based on our review of the CIA Effectiveness Memo, and in light of the
questions that have been publicly raised about the effectiveness and usefulness of
EITs, we question whether OLC's conclusion that the use of EITs does not violate
substantive due process standards was adequately supported.'
,fe.T46 Our review of the Bradbury Memos raised additional
concerns about the reasonableness and objectivity of OLC's legal analysis. Some
of the memoranda's reasoning could be considered counterintuitive. For example,
the Article 16 Memo concluded that the use of thirteen EITs, including stress
positions, forced nudity, cramped confinement, sleep deprivation, and the
waterboard, did not violate the United States obligation under CAT to prevent "acts
of cruel, inhuman or degrading treatment or punishment which do not amount to
torture." The 2007 Bradbury Memo concluded that Common Article 3 of the
Geneva Conventions, which requires the United States to ensure that detainees
"shall in all circumstances be treated humanely," and which bars, among other
things, "cruel treatment" and a[o]utrages upon personal dignity, in particular,
humiliating and degrading treatment," did not :bar the use of six EITs, including
extended sleep deprivation that involves dietary manipulation, shackling and
•
180
181 (UWe also found that, since March 2, 2005, when the CIA Effectiveness Memo was
provided to OLC, a number of reliable sources haire questioned whether EITs are in fact uSeful in
obtaining intelligence. The Intelligence Science Board, an organization of intelligence professionals
in the public and private sectors whose mission it is to advise (the Office of the Director of National
Intelligence and senior Intelligence Community leaders on emerging scientific and technical issues
of special importance to the Intelligence Community," issued a lengthy report titled, "Educing
Information - Interrogation: Science and Art" which found, among other things, that there is no
scientific basis to believe that coercive interrogation techniques are effective and may be
"counterproductive to the elicitation of good information."
(U) In addition, on June 10, 2008, foiiner FBI a nt John Cloonan testified before the
Senate Judiciary Committee that "based on a 27 year career as a Special Agent and interviews with
hundreds or subjects in custodial settings, including members of al Qaeda, )1 believe' that the use
of coercive interrogation techniques is not effective." Cloonan further testified that an alternative,
rapport-based approach is "more effecti
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liable."
- 188
-Iilla-geeTAMMMENDEORTr.
DRAFT
diapering. Those conclusions, although the product of complex legal analysis,
appear to be inconsistent with the plain meaning and commonly-held
understandings of the language of Common Article 3.
Pe...Moreover, the Article 16 Memo's and the 2007 Bradbury
Memo's analysis of substantive due process appears incomplete in some respects.
On the question of what would "shock the contemporary conscience" in light of
executive tradition and contemporary practice, OLC looked to United States case
law on coercive treatment, discussed the military's tradition of not using abusive
techniques, noted the State Department's regular practice of condemning "conduct
undertaken by other countries that bears at least some resemblance to the
techniques at issue" and discussed the rulings of foreign tribunals. In each
instance, the memoranda attempted to distinguish the CIA program from those
accepted standards of conduct.' Thus, OLC found that the condemnation of
coercive or abusive interrogation in those contexts did not apply to the CIA
interrogation plan, and that executive tradition therefore did not prohibit the use
of EITs by the CIA. However, the absence of an exact precedent is not evidence
that conduct}js traditional. The OLC opinions failed to consider the fact that the
official, DOJ-sanctioned use of EITs was a unique event in this country's history.
(U) We also note that Bradbury and others told us that it was not appropriate
for OLC to address moral or policy considerations when considering the legality of
government, action. However, no one else in the Department appears to have
addressed those issues in any meaningful fashion.'" Apart from concerns Carney
182 For example; criminal law prohibitions on coercive interrogation were
distinguishedecause OLC found the governmental interest in preventing terrorism to be more
importantfihan conducting "ordinary criminal investigations." Military doctrine was distinguished
because aliQaeda terrorists are "unlawful enemy, combatants" and not prisoners of war. Official
United States condemnations of harsh interrogation in other countries "are not meant to be legal
conclusions" and are merely "public diplomatic statements designed to encourage foreign
governments to alter their policies in a manner that woulderve United States interests." The
judgments of foreign tribunals were distinguished because courts did not make any findings "as
to any safeguards that accompanied the ... interrogation techniques," because the foreign courts
did not make inquiries into "whether any governmental . interest might have reasonably justified
the conduct," or because the cases involved legal systems where intelligence officials are "subject
to the same rules as 'regular police interrogation[s]."'
183 (U) As noted above, D.C. Bar Rule 2.1 states that "[iln rendering advice, a lawyer may refer
not only to.law but to other considerations such as moral, economic, social and political factors,
that may be relevant to the client's situation." The relevant commentary adds that "moral and
ethical considerations impinge upon most legal questions and may decisively influence how the law
will be applied."
DRAFT
communicated orally to Gonzales about the Combined Techniques Memo, we found
no evidence that the Department formally considered or identified any of the many
policy issues that were implicated, by the Department's approval of the CIA
interrogation program. While consideration of moral, social and political factors
is not mandatory as a matter of profesSional responsibility, we believe it is
appropriate and necessary with regard to the Department's interpretation of the
torture statute, the CAT, Common Article 3, the DTA and the MCA, and that the
analysis is incomplete without reference to such factors.
(U) Because of the concerns outlined above, we recommend that the
Department review the Bradbury Memos carefully and consider whether the
memoranda appropriately relied upon CIA representations, whether they provided
reasonable and objective legal advice, and whether the Department has identified
and evaluated all relevant moral and policy considerations associated with the CIA
interrogation program. Any such review should, we believe, include consideration
of the views of the Criminal Division, the National Security Division, the
Department of State, and the intelligence community, inclUding the FBI and the
United State4'rnilitary.
(U) CONCLUSION
(U) Based on the results of our investigation, we concluded that former AAG
Jay S. Bybee and former Deputy AAG John Yoo failed to meet their responsibilities
under D.C. Rule of Professional Conduct 1.1 to provide competent representation
to their client, the United States, and failed to fulfill their duty to exercise
independent legal judgment and to render candid legal advice, pursuant to D.C.
Rule. of Professional Conduct 2.1. In violating D.C. Rules 1.1 and 2.1, Bybee and
Yoo committed professional misconduct. Pursuant to Department policy, we notify
their iesplective state bars of our findings.
(U) We concluded that Patrick Philbin Aid not commit professional
misconduct
Finally, we concluded that
because of her relative inexperience and subordinate position, did not commi
misconduct.
- I
(U) We did not find that the other Departgent officials involved committed
professional misconduct. We found Michael Chertoff, as AAG of the Criminal
Division, and Adam Ciongoli, as Counselor to the AG, should have recognized
many of the Bybee Memo's shortcomin s and should have taken a more active role
- 190 -
xix24weREI LCIEGRfr.
DRAFT
in evaluating the CIA program. John Ashcroft, as Attorney General, was ultimately
responsible for the Bybee and Yoo Memos and for the Department's approval of the
CIA program. They and others should have looked beyond the surface complexity
of the OLC memoranda and attempted to verify that the analysis, assumptions,
and conclusions of those documents were sound. However, we cannot conclude
that, as a matter of •professional responsibility, it was unreasonable for senior
Department officials to rely on advice from OLC.. We note that Ashcroft was at
least consistent in his deference to OLC. When Goldsmith and Comey
recommended that the Yoo Memo be withdrawn, Ashcroft did not hesitate to
support them.
(U) We recommend that, for the reasons outlined in this report, the
Department reexamine the declination decisions made with respect to potential
criminal prosecutions referred to the Department by the CIA.
(U) Finally, we recommend that the Department review the Bradbury Memos
carefully and consider whether the memoranda appropriately relied upon CIA
representations, whether they provided reasonable and objective legal advice, and
whether the Department has identified and evaluated all relevant moral and policy
considerations associated with the CIA interrogation program. Any such review
should, we believe, consider the views of the Criminal Division, the National
Security Division, the Department of State, and the intelligence community,
including, e FBI and the United States military.
Office of Legal Counsel's Memoranda Timeline