DOJ Office of Professional Responsibility Report: Investigation into the OLC's Memoranda Concerning Issues Relating to the CIA's Use of "Enhanced Interrogation Techniques" on Suspected Terrorists

 

OFFICE OF

PROFESSIONAL RESPONSIBILITY

REPORT

Investigation into the Office of Legal Counsel's Memoranda Concerning

Issues Relating to the Central Intelligence Agency's Use of "Enhanced

Interrogation Techniques" on Suspected Terrorists

July 29, 2009

NOTE: THIS REPORT CONTAINS SENSITIVE, CLASSIFIED 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 12

A. The Office of Professional Responsibility 12

B. This Investigation 13

C. The Office of Legal Coun S- el 15

D. OPR's Analytical Framework and Professional . Standards 18

1. OPR's Analytical Framework 18

2. Professional Standards 19

a. The Duty to Exercise Independent

Professional Judgment and to Render

Candid Advice 21

b. The Duty of Thoroughness and Care 22

3. Analytical Approach 24

II. FACTS 25

A. Subject and Witness Backgrounds 25

B. The Bybee Memo and the Classified Bybee Memo

(August 1, 2002) 30

1. The CIA Interrogation Program 30

2. Drafting the Bybee Memo 43

3. Key Conclusions of the Bybee Memo 67

4. Key Conclusions of the Classified Bybee Memo 68

5. The Yoo Letter 69

C. Military Interrogation, the March 14, 2003 Yoo Memo

to DOD, and the DOD Working Group Report 70

1. Guantanamo and the Military's

Interrogation of Detainees 70

2. Drafting the Yoo Memo 75

3. Key Conclusions of the Yoo Memo 80

4. The Working Group Report 81

D. Implementation of the CIA Interrogation Program 82

1. Abu Zubaydah 83

2. Abd Al-Rahim Al-Nishiri 85

3. Khalid Sheik Muhammed 87

4. 88

5. CIA Referrals to the Department 90

6. Other Findings of the CIA OIG Report 95

E. Reaffirmation of the CIA Program 97

1. The Question of "Humane Treatment" 97

2. The "Bullet Points" 100

3. The Leahy Letter 104

4. The CIA Request for Reaffirmation 106

F. AAG Goldsmith - Withdrawal of OLC's

Advice on Interrogation 110

1. The NSA Matter 110

2. The Withdrawal of the Yoo Memo 112

3. The CIA OIG Report and the

Bullet Points Controversy 114

4. Goldsmith's Draft Revisions to the Yoo Memo 117

5. The Withdrawal of the Bybee Memo 121

G. Case-by-Case Approvals and The Levin Memo 124

H. The Bradbury Memos 132

1. The 2005 Bradbury Memo (May 10, 2005) 133

2. The Combined Techniques Memo (May 10, 2005) 137

3. The Article 16 Memo (May 30, 2005) 145

4. The 2007 Bradbury Memo 151

a. Background 151

b. The 2007 Memo 154

II. Analysis 159

A. The Bybee Memo's Flaws Consistently Favored a Permissive

Viewofthe Torture Statute 159

1. Specific Intent 161

2. Severe Pain 176

3. Ratification History of the CAT 184

4. United States Judicial Interpretation 186

a. Implementation of. CAT Article 3 186

b. The Torture Victim Protection Act 187

S. International Decisions 190

a. Ireland v. United Kingdom 191

b. Public Committee Against

Torture in Israel v. Israel 193

6. The Commander-in-Chief Power

and Possible Defenses to Torture 196

a. The President's Commander-in-Chief Power 199

b. Criminal Defenses to Torture 207

(1) The Necessity Defense 207

(2) Self Defense 220

TORE NO

7. Conclusion 226

B. The Legal Analysis Set Forth in the Bybee Memo Was

Inconsistent with the Professional Standards

Applicable to Department of Justice Attorneys 226

C. Analysis of the Classified Bybee Memo (August 1, 2002) 234

D. The Yoo Letter 238

1. Violation of CAT 238

2. Prosecution Under the Rome Statute 239

E. Analysis of the Bradbury Memos 241

F. Individual Responsibility 251

1. John Yoo 251.

2. Jay Bybee 255

3. Patrick Philbin 257

4. 258

5. Steven Bradbury 258

6. Other Department Officials 259

G. Institutional Concerns 259

CONCLUSION

ATTACHMENT A:

ATTACHMENT B:

ATTACHMENT C:

ATTACHMENT D:

260

Office of Legal Counsel's Memoranda Timeline

Glossary of Acronyms

Glossary of Names Used in OPR Report

Chronological List of OLC Memoranda on Use of

Enhanced Techniques

RE '1 1PCS 11

-ivTOP

e 1 - nP e

ATTACHMENT E:

ATTACHMENT F:

ATTACHMENT G:

ATTACHMENT H:

Memorandum for Attorneys of the Office Re: Best

Practices for OLC Opinions, authored by Steven G.

Bradbury, Principal Deputy Assistant Attorney General,

May 16, 2005 (Best Practices Memo)

Principles to Guide the Office of Legal Counsel,

December 21, 2004 (Guiding Principles)

District of Columbia Rule of Professional Responsibility

2.1.

District of Columbia Rule of Professional Responsibility

1.1.

RN

INTRODUCTION AND SUMMARY

In June 2004, an August 1, 2002 memorandum from then Assistant

Attorney General (AAG) Jay S. Bybee of the Department of Justice's Office of Legal

Counsel (OLC) to Alberto R. Gonzales, then White House Counsel, was leaked to

the press. The memorandum was captioned "Standards of Conduct for

Interrogation under 18 U.S.C. §§ 2340-2340A" (the Bybee Memo), and had been

drafted primarily by OLC's then Deputy Assistant Attorney General, John Yoo.

The memorandum examined a criminal statute prohibiting torture, 18 U.S.C.

§§ 2340-2340A (the torture statute), in the context of interrogations conducted

outside the United States.

One of the primary areas of discussion in the Bybee Memo was the statute's

description of what constitutes "torture." The definition contained in the statute

is as follows:

(1) "torture" means an act committed by a person acting under the

color of law specifically intended to inflict severe physical or

mental pain or suffering (other than pain or suffering incidental

to lawful sanctions) upon another person within his custody or

physical control;

(2) "severe mental pain or suffering" means the prolonged mental

harm caused by or resulting from -

(A) the intentional infliction or threatened infliction of severe

physical pain or suffering;

(B) the administration or application, or threatened

administration or application, of mind-altering

substances or other procedures calculated to disrupt

profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be

subjected to death, severe physical pain or suffering, or

the administration or application of mind-altering

substances or other procedures calculated to disrupt

. profoundly the senses Or:personality.

18 U.S.C. § 2340.

The Bybee Memo concluded that under the torture statute, torture:

covers only extreme acts. Severe pain is generally of the kind difficult

for the victim to endure. Where pain is physical, it must be of an

intensity akin to that which accompanies serious physical injury

such as death or organ failure. Severe mental pain requires suffering

not just at the moment of infliction but it also requires lasting

psychological harm, such as seen in mental disorders like

posttraumatic stress disorder. Additionally, such severe mental pain

can arise only from the predicate acts listed in Section 2340.

Because the acts inflicting torture are extreme, there is sufficient

range of acts that though they might constitute cruel, inhuman, or

degrading treatment or punishment fail to rise to the level of torture.

Further, we conclude that under the circumstances of the current

war against al Qaeda and its allies, application of Section 2340A to

interrogations undertaken pursuant to the President's Commanderin-

Chief powers may be unconstitutional. Finally, even if an

interrogation method might violate Section 2340A, necessity or selfdefense

could provide justifications that would eliminate any criminal

liability.

Bybee Memo at 46.

Some commentators, law professors, and other members of the legal

community were highly critical of the Bybee Memo. For example, Harold Koh,

then Dean of Yale Law School, characterized the memorandum as "blatantly

wrong" and added: "[i]t's just erroneous legal analysis." Edward Alden, Dismay at

Attempt to Find Legal Justification for Torture, Financial Times, June 10, 2004. A

past chairman of the international human rights committee of the New York City

Bar Association, Scott Horton, stated that "the government lawyers involved in

preparing the documents could and should face professional sanctions." Id. Cass

Sunstein, 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, Martin Flaherty, 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.

Other commentators observed that the Bybee Memo did not address

important Supreme Court precedent and that it ignored portions of the

Convention Against Terrorism (CAT) that contradicted its thesis. Id. One article

suggested that 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 Mertus, Tor luring Law; The Justice Department's

Legal Contortions on Interrogation, Washington Post, June 20, 2004 at B3; see 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 pre-ordained 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 of more 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 came to be written. Fran Davies, Probe Urged Over Tor lure Memos,

Miami Herald, August 5, 2004 at 6A; Scott Higham, Law Experts Condemn U.S.

Memos on Torture, Washington Post, August 5, 2004 at A4.

A few lawyers defended the Bybee Memo. In a Wall 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. 1

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.

On June 22, 2004, Executive Branch officials responded to public criticism

of the Bybee Memo. Then White House Counsel Alberto 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 decision-makers 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). 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-

See also Testimony of Michael Stokes Paulsen, Professor of Law, University of St. Thomas

School of Law, before the Subcommittee on Administrative Oversight and the Courts of the United

States Senate Committee on the Judiciary (May 13, 2009). In addition, John Yoo has vigorously

defended his work since leaving the Department. See, e.g., John C. Yoo, War by Other Means: An

Insider's Account of the War on Terror (Atlantic Monthly Press 2006); John Yoo, A Crucial Look at

Torture Law, L.A. Times, July 6, 2004 at B 11; 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 ).

attribution briefing session that the analysis in the Bybee Memo was "over broad,"

"abstract academic theory," and "legally unnecessary." Toni Locy & Joan

Biskupic, Interrogation Memo to be Replaced, USA Today, June 23, 2004 at 2A.

Comey reportedly added, "We're scrubbing the whole thing." Id.

On July 15, 2004, OPR asked then OLC AAG Jack Goldsmith, III, to provide

certain information and documents relevant to the Bybee Memo. OLC's then

Principal Deputy AAG, Steven G. Bradbury, met with then OPR Counsel H.

Marshall Jarrett on July 23, 2004, to discuss that request. 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 Memo,

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

ohn Yoo• former Deputy AAG Patrick Philbin; and former OLC Attorney

We reviewed the Bybee Memo, along with email, correspondence, file

material, drafts, and other unclassified documents provided by OLC. On October

25, 2004, OPR formally initiated an investigation. 3

On December 30, 2004, OLC Acting AAG Daniel Levin issued an

unclassified Memorandum Opinion for the Deputy Attorney General captioned

2

3 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

mishs ing, we requested and were given direct access to the email and computer records of

Yoo, Philbin, Bybee, and Goldsmith. However, we were told that most of Yoo's email

recor s had been deleted and were not recoverable. Philbin's email records from July 2002

through August 5, 2002 - the time period in which the Bybee. Memo was completed and the

Classified Bybee Memo (discussed below) was created - 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.

"Legal Standards Applicable under 18 U.S.C. §§ 2340-2340A" (the Levin Memo).

The Levin Memo, which was posted on OLC's web site the same day, superseded

the Bybee Memo and eliminated or corrected much of its analysis.

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).

We conducted interviews of Patrick Philbin, and Jack

Goldsmith, all of whom told us that they could not fully discuss their involvement

without referring to Sensitive Compartmented Information. We eventually

obtained the necessary clearances and requested and reviewed additional

documents from OLC and from the CIA. We then re-interviewed Philbin,

and Goldsmith, and interviewed Yoo and Bybee. 4

In addition, we interviewed former DAG James Comey; former OLC Acting

AAG Daniel 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

4 Bybee complained in his comments on OPR's draft report that he did not have access to

classified material in preparing for his interview with OPR. That is inaccurate. Although our

request to the National Security Counsel for security clearances for Bybee's attorneys had not been

granted by the date of the interview, Bybee reviewed key documents, including emails and

classified material, prior to his interview.

5 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 Rizzo on July 7, 2007.

Alberto Gonzales; former Counselor to Attorney General (AG) John Ashcroft, Adam

Ciongoli; and former National Security Council (NSC) Legal Adviser John Bellinger,

III. 6

Some witnesses declined to be interviewed. Former AG Ashcroft did not

respond to several interview requests but ultimately informed us, through his

attorney, that he had declined our request. CIA Counter Terrorism Center (CTC)

attorneys refused 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 entitled "Counterterrorism

Detention and Interrogation Activities September 2001 - October 2003)" (the CIA

OIG Report). CTC attorney also refused our request for an

interview, as did former CTC attorney although

spoke briefly with us by telephone. 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.

In May 2005, Bradbury infoiiiied us that he had signed two classified

memoranda that replaced the Clas6ified Bybee Memo. Initially, we were permitted

to review, but not to retain, copies of those documents, 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 2005

Bradbury Memo), and "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). We were later provided with copies

of these documents. The 2005 Bradbury Memo discussed certain individual

6 Bellinger declined several requests for an interview, but informed us in response to a final

request, as we were completing our draft report, that he would be willing to talk to us. We

interviewed Bellinger on December 29, 2008.

interrogation techniques (referred to elsewhere herein as "enhanced interrogation

techniques" or "EITs") and concluded that their use by CIA interrogators would

not violate the torture statute. The Combined Techniques Memo concluded that

the combined effects of those EITs would not render a prisoner unusually

susceptible to severe physical or mental pain or suffering and thus would not

violate the torture statute.

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 United States military, and that the Department of

Justice 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 magazine that Senator Ron Wyden had placed a

"hold" on the confirmation of John Rizzo as CIA General Counsel after reviewing

a "classified addendum" to the president's executive order.

In late August 2007, we asked OLC to provide copies of the executive order

and the "classified addendum." Bradbury informed us that there was no

"classified addendum," but that he had drafted an additional classified opinion,

captioned "Memorandum for. John A. Rizzo, Acting General Counsel, Central

Intelligence Agency, 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 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). When we obtained copies of those. documents

on August 29, 2007, we learned that there was a third classified OLC

memorandum - "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

Memo).' We reviewed those documents and conducted additional interviews.

After he became Attorney General in late 2007, Michael Mukasey reported

to Congress, in his July 2, 2008 ResponSes to Questions for the Record by the

Senate Committee on the Judiciary, that he had reviewed the Bradbury Memos

and that he had concluded that the current CIA interrogation program was lawful.

He also reported that the Bradbury Memos' analyses were "correct and sound."

A draft of OPR's report was completed in December 2008, and provided to

Attorney General Mukasey and Deputy Attorney General Mark Filip for their

comments and a sensitivity review for information that could not be made public.

On December 31, 2008, OPR attorneys met with AG Mukasey and DAG Filip. The

two were highly critical of the draft report's findings. However, AG Mukasey

commented that the August 1, 2002 Bybee Memo was a "slovenly mistake."

On January 19, 2009, AG Mukasey and DAG Filip submitted a letter to OPR

outlining their concerns and criticisms of the draft report.

On January 22, 2009, President Obama issued an executive order

providing, among other things, that no officers, employees, or agents of the United

States government could rely upon any interpretation of the law governing

interrogation issued by the Department of Justice between September 11, 2001

and January 20, 2009.

OPR provided copies of the draft report to Bybee, Yoo, Philbin, and the CIA

for review and comment. AG Mukasey gave a copy of the draft to OLC for

comment and Bradbury participated in the review of the draft report. OLC's

According to Bradbury, he did not bring the Article 16 Memo to OPR's attention when it was

issued because it did not replace either the Bybee Memo or the Yoo Memo, which OLC understood

to be the only subjects of OPR's investigation. The Article 16 Memo may have been inadvertently

turned over to us when a junior OLC attorney produced other classified documents we had asked

to reexamine in August 2007. The 2005 Bradbury Memo, the Combined Techniques Memo, the

Article 16 Memo, and the 2007 Bradbury Memo are hereinafter referred to collectively as the

Bradbury Memos.

- 9 -

comments were received in January 2009. OPR later offered Bradbury an

additional opportunity to comment on the draft report, and he declined. Written

comments from Bybee, Yoo, and Philbin were received by OPR on May 3, 2009. 8

Yo also submited a leter from Ronald Rotunda, profesor at Chapman

University Law School. Comments were submitted by Rizzo on April 8, 2009.

OPR carefully reviewed these responses and made changes to the draft report

where appropriate. 9

Although-we have attempted to provide as complete an account as possible

of the facts and circumstances surrounding the Department's role in the

implementation 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 agencies that were willing to cooperate

with our investigation.

During the course of our investigation significant pieces of information were

brought to light by the news media and, more recently, by congressional

investigations. Although we believe our findings regarding the legal advice

contained in the Bybee Memo and related, subsequent memoranda are complete,

given the difficulty OPR experienced in obtaining information over the past five

years, it remains possible that additional information eventually will surface

regarding the CIA program and the military's interrogation programs that might

bear upon our conclusions.

Although we refer to works of legal commentary in this report, we did not

base our conclusions on any of those sources. We independently researched and

analyzed the issues that are discussed in this report. Citations to law review

articles and other commentary are intended to note the sources of certain

arguments and to inform the reader where further discussion can be found. They

8 Those comments are subsequently referred to as the Bybee Response, Bybee Classified

Response, Yoo Response, and Philbin Response.

9 Because they were not criticized in the draft report, OPR did not request that either

Levin, or Goldsmith provide comments on the draft report. However, Goldsmith sent Associate

Deputy Attorney General David Margolis a memorandum discussing the OPR investigation.

- 10 -

are not offered as support for our conclusions.

Similarly, although we report the views of some former Department officials

regarding .the merits of the memoranda, we did not base our findings on their

comments. Our findings are limited to the particular circumstances of this case,

which, as discussed below, involved issues of the highest importance that

demanded the highest degree of thoroughness, objectivity, and candor from the

lawyers involved.

Based on the results of our investigation, we concluded that foither Deputy

AAG John Yoo committed intentional professional misconduct when he violated

his duty to exercise independent legal judgment and render thorough, objective,

and candid legal advice.

We concluded that former AAG Jay Bybee committed professional

misconduct when he acted in reckless disregard of his duty to exercise

independent legal judgment and render thorough, objective, and candid legal

advice.'

We did not find that the other Department officials involved in this matter

committed professional misconduct.

In addition to these findings, we recommend that, for the reasons discussed

in this report, the Department review certain declinations of prosecution regarding

incidents of detainee abuse referred to the Department by the CIA OIG.

10 Pursuant to Department policy, we will notify bar counsel in the states in which Yoo and

Bybee are licensed.

I. BACKGROUND

A. The Office of Professional Responsibility

OPR has jurisdiction to investigate allegations of misconduct involving

Department attorneys that relate to the exercise of their authority to investigate,

litigate, or provide legal advice. 28 C.F.R. Section 0.39a(a)(1). In addition to

reporting its findings and conclusions in individual investigations, OPR is also

charged with providing advice to the Attorney General and Deputy Attorney

General concerning the need for changes in policies and procedures that become

evident during the course of OPR's investigations. 28 C.F.R. Section 0.39a(a)(8).

OPR receives allegations against Department attorneys from a variety of

sources, including self-referrals and referrals of complaints by officials in U.S.

Attorneys' offices and litigating divisions, private attorneys, defendants and civil

litigants, other federal agencies, state or local government officials, judicial and

congressional referrals, and media reports.

Upon receipt, OPR reviews allegations and determines whether further

investigation is warranted. OPR ordinarily completes investigations relating to the

actions of attorneys who have resigned or retired in order to better assess the

impact of alleged misconduct and to permit the Attorney General and Deputy

Attorney General to determine the need for changes in Department policies or

practices.

OPR investigations normally include a review of all relevant documents and

interviews of witnesses and the subjects of the investigation." OPR has the power

to compel the testimony of current Department employees and collect internal

Department documents, but it does not have the ability to subpoena documents

11 Typically, interviews of witnesses are audio recorded; interviews of subjects typically are

taken under oath and transcribed.

or witnesses. 12 In analyzing the evidence collected in the course of the

investigation, OPR uses the preponderance of the evidence standard.'

At the conclusion of the investigation, OPR makes findings of fact and

conclusions as to whether professional misconduct has occurred. OPR generally

finds professional misconduct in two types of circumstances: (1) where an

attorney intentionally violated an obligation or standard imposed by law,

applicable rule of professional conduct, or Department regulation or policy; or (2)

where an attorney acted in reckless disregard of his or her obligation to comply

with that obligation or standard. OPR may also find that the attorney exercised

poor judgment or made a mistake; such findings do not constitute findings of

professional misconduct.

If rOPR concludes that a Department attorney committed professional

misconduct, it will recommend an appropriate range of discipline for consideration

by the attorney's supervisors. OPR may include in its report information relating

to management and policy issues noted in the course of the investigation for

consideration by Department officials. In cases in which OPR finds professional

misconduct, pursuant to. Department policy, it ordinarily notifies bar disciplinary

authorities in the jurisdiction where the attorney is licensed of its finding:

B. This Investigation

This was not a routine investigation. A routine case investigated by OPR

receives little or no public attention and discipline is handled within the

Department without any public disclosure. This matter has been followed closely

by the media, Congress, the American public, and international audiences.

12 OPR's administrative review of allegations of professional misconduct is unlike civil

litigation, where parties may request documents or notice depositions, or a criminal investigation,

where access to witnesses and documents may be obtained through the use of a grand jury

subpoena.

13 OPR's use of the preponderance of the evidence standard is based on the statutory standard

of proof for upholding a disciplinary action for misconduct. See 5 U.S.C. § 770(c)(1)(B). State bar

authorities, on the other hand, generally use the higher "clear and convincing evidence" standard

of proof.

Despite the complexity and notoriety of this matter, however, OPR must

determine whether Department attorneys acted in conformity with the

Department's expectations and professional obligations. Assessing compliance

of Department attorneys with Departmental and professional standards, whether

in conducting litigation or providing legal advice, is the core function of OPR."

In order to best accomplish OPR's mission, we allowed the subjects of the

investigation to review and comment on a draft of this report prior to its issuance.

In addition, we recommended that the report be released publicly. We based our

recommendation on the amount of public interest in this matter, the gravity of the

matter, and the interest of the Department in full disclosure of the facts to the

American public.

This investigation was long and difficult. It was hampered by the loss of

Yoo's and Philbin's email records, our need to seek the voluntary cooperation of

non-DOJ witnesses, and our limited access to CIA records and witnesses

(including almost all of the CIA attorneys and all witnesses from the White House

other than former White House Counsel Alberto Gonzales). Our investigation was

slowed by some of the witnesses' initial reluctance to provide information, as well

as time spent obtaining the necessary security clearances for. OPR personnel,

witnesses, and their attorneys. In addition, we were initially not permitted to copy

or to retain copies of many of the key underlying documents, which increased the

difficulty of our task. Moreover, the scope of our investigation changed as new

information about the CIA interrogation • program came to light through press

reports and congressional investigations. All of these problems were exacerbated

14 In his response, Bybee argued that lilt is not the role of OPR to critique legal judgment at

all." Bybee Response at 59. We reject that assertion. As discussed above, the Department has

charged OPR with the investigation of allegations of misconduct involving Department attorneys

that relate to the exercise of their authority to investigate, litigate, or provide legal advice.

In his response, Bybee also claimed - based on an examination of OPR's annual reports

containing summaries of selected cases - that OPR has never previously reviewed legal advice.

That claim is incorrect.

- 14 -

by limited OPR resources, in light of an unprecedented number of complex

investigations of high-level officials occurring during this same time period.

C. The Office of Legal Counsel 15

The Attorney General has delegated to the OLC the function of providing

authoritative legal advice to the President and all the Executive Branch agencies.

The OLC provides written opinions and oral advice in response to requests from

the Counsel to the President, agencies of the Executive Branch, and offices within

the Department. OLC opinions are binding on the Executive Branch.

In a memorandum that "reaffirm[ed] the longstanding principles that have

guided and will continue to guide OLC attorneys in preparing the formal opinions

of the Office," Principal Deputy AAG Bradbury stated that OLC's role is to provide

'candid, independent, and principled advice - even when that advice may be

inconsistent with the desires of policymakers." 16 As Bradbury wrote to the OLC

attorneys:

In general, we strive in our opinions for clarity and conciseness in the

analysis and a balanced presentation of arguments on each side of an

issue. . OLC's interest is simply to provide the correct .answer on

the law, taking into account 211 reasonable counterarguments,

whether provided by an agency or not.

OLC Best Practices Memo at 3. Thus, "it is imperative that [OLC] opinions be

clear, accurate, thoroughly researched, and soundly reasoned. The value of an

OLC opinion depends on the strength of its - analysis." Id. at 1.

15 Attachment A is a timeline of OLC leadership and significant events relevant to this report.

Attachments B and C are glossaries of acronyms and of names used in the report. Attachment D

is a chronological list of OLC memoranda on the issue of enhanced interrogation techniques.

16 Memorandum for Attorneys of the Office Re: Best Practices for OLC Opinions, authored by

Steven G. Bradbury,. Principal Deputy Assistant Attorney General, May 16, 2005 tOLC Best

Practices Memo) (Attachment E) at 1. 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."

-15-

OLC attorneys from prior administrations share Bradbury's view of the

mission and role of the OLC. These views are expressed in a document entitled

Principles to Guide the Office of Legal Counsel, December 21, 2004 (OLC Guiding

Principles) (Attachment F), signed by nineteen former OLC attorneys. The

document explains that:

When providing legal advice to guide contemplated executive branch

action, OLC should provide an accurate and honest appraisal of

applicable law, even if that advice will constrain the administration's

pursuit of desired policies. The advocacy model of lawyering, in

which lawyers craft merely plausible legal arguments to support their

clients' desired actions, inadequately promotes the President's

constitutional obligation to ensure the legality of executive action.

OLC Guiding Principles at 1. The OLC should take the Executive Branch's goals

into account and "assist their accomplishment within the law" without "seek[ing]

simply to legitimate the policy preferences of the administration of which it is a

part." Id. at 5.

The legal standards, including the rules of professional responsibility, that

apply to all Department attorneys also apply to OLC attorneys.'' Despite the

complexity and difficulty of the issues the OLC attorneys handle, they are, and

must be, held to professional legal standards. Furthermore, OLC attorneys must

adhere to the well-established principles that were described in its own Best

Practices Memo.

OLC's obligation to counsel compliance with the law pertains with special

force in circumstances where OLC's advice is unlikely to be subject to review by

the courts.

An OLC approach that instead would equate "lawful" with "likely to

escape judicial condemnation" would ill serve the President's

17 We reject Bybee's assertion that the rules of profeSsional responsibility have no role to play

in evaluating the conduct of OLC attorneys." Bybee Response at 3.

Fay

- 16-

constitutional duty by failing to describe all legal constraints and by

appearing to condone unlawful action as long as the President could,

in a sense, get away with it. . . OLC's core function is to help the

President fulfill his constitutional _duty to uphold the Constitution

and "take care that the laws be faithfully executed" in all the varied

work of the executive branch.

OLC Guiding Principles at 1, 2. If the OLC fails to provide complete and objective

legal advice, it fails to properly represent its client — the Executive Branch.

These principles are not simply aspirational. They mirror' the Model Rules

of Professional Responsibility, which require that "a lawyer shall exercise

independent professional judgment and render candid advice." Model Rules of

Professional Conduct, Rule 2.1. 18

The OLC's duties are heightened because many of its opinions will never be

reviewed by a court or disclosed publicly and are made outside of an adversarial

system where competing claims can be raised. See Model Rules of Professional

Conduct, Rule 3.3(d), Candor toward the Tribunal ("In an ex parte proceeding, a

lawyer shall inform the tribunal of all material facts known to the lawyer that will

enable the tribunal to make an informed decision, whether or not the facts are

adverse"). In contrast to attorneys in private practice, the OLC establishes

through its opinions the state of the law for the Executive Branch, the head of

which is constitutionally charged with upholding the Constitution and laws of the

United States. U.S. Const. art. II, § 3.

The importance of the OLC's duties can be seen in the effect of its opinions

on actions by government officials. As former OLC AAG Goldsmith stated:

One consequence of OLC's authority to interpret the law is the power

to bestow on government officials what is effectively an advance

18 In addition, courts have frequently observed that the government has an overriding

obligation to see that justice is done, and that such an overriding obligation imposes an

expectation of even greater candor on government counsel than attorneys representing private

parties. See, e.g., Berger v. United States, 295 U.S. 78, 88 (1935).

- 17 -

pardon for actions taken at the edges of vague criminal laws. This is

the flip side of OLC's power to say 'no," and to put a brake on

government operations. It is one of the most momentous and

dangerous powers in the government: the power to dispense get-outof-

jail-free cards. .. Its everyday job of interpreting criminal laws

gives OLC the incidental power to determine what those laws mean

and thus effectively to immunize officials from prosecutions for

wrongdoing.

Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush

Administration 149-50 (WW Norton & Ca. 2007).

D. OPR's Analytical Framework and Professional Standards

1. OPR's Analytical Framework

OPR finds professional misconduct when an attorney intentionally violates

or acts in reckless disregard of a known, unambiguous obligation imposed by law,

rule of professional conduct, or Department regulation or policy. In determining

wheth6r an attorney has engaged in professional misconduct, OPR uses the

preponderance of the evidence standard to make factual findings..

An attorney intentionally violates an obligation or standard when the

attorney (1) engages in conduct with the purpose of obtaining a result that the

obligation or standard unambiguously prohibits; or (2) engages in conduct

knowing its natural and probable consequence, and that consequence is a result

that the obligation or standard unambiguously prohibits.

An attorney acts in reckless disregard of an obligation or standard when (1)

the attorney knows or should know, based on his or her experience and the

unambiguous nature of the obligation or standard, of an obligation or standard;

(2) the attorney knows or should know, based on his or her experience and the

unambiguous applicability of the obligation or standard, that the attorney's

conduct involves a substantial likelihood that he or she will violate, or cause a

violation of, the obligation or standard; and (3) the attorney nonetheless engages

- 19 -

in the conduct, which is objectively unreasonable under all the circumstances.

Thus, an attorney's disregard of 'an obligation is reckless when it 'represents a

gross deviation from the standard of conduct that an objectively, reasonable

attorney would observe in the same situation.'

If OPR determines that. an attorney did not engage in professional

misconduct, OPR determines whether the attorney exercised poor judgment,

engaged in other inappropriate conduct, made a mistake, or acted appropriately

under all the circumstances. An attorney exercises poor judgment when, faced

with alternative 'courses of action, he or she chooses a course of action that is in

marked contrast to the action that the Department may reasonably expect an

attorney exercising good judgment to take. Poor judgment differs from

professional misconduct in that an attorney may act inappropriately and thus

exhibit poor judgment even though he or she may not have violated or acted in

reckless disregard of a clear obligation or standard. In addition, an attorney may

exhibit poor judgment even though an obligation or standard at issue is not

sufficiently clear and unambiguous to support a professional misconduct finding.

A mistake, on the other hand, results from an excusable human error despite an

attorney's exercise of reasonable care under the circumstances.

2. Professional Standards

Pursuant to Department of Justice 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 court before which a particular

19 We disagree with Bybee's assertion in his response that the Supreme Court's decision in

Safeco Insurance Co. of America v. Burr, 551 U.S. 47 (2007), "squarely forecloses" any finding of

recklessness on the facts at issue here. Bybee Response at 28. In Safeco, the Court defined the

term "recklessness" as consistent with common law standards in the context of the Fair Credit

Reporting Act, which requires willfulness to establish civil liability. The definition of "recklessness"

under the OPR standard is explained in OPR's analytical framework and does not require

willfulne ss .

case is pending. 28 C.F.R. § 77.4. 20 Where.there is no case pending, "the attorney

should generally comply with the ethical rules of the attorney's state of licensure,

unless application of traditional choice-of-law principles directs the attorney to

comply with the ethical rules of another jurisdiction or court, such as the ethical

rule adopted by the court in which the case is likely to be brought." 28 C.F.R. §

77.4(c)(1). Because Bybee is a member of the District of Columbia Bar, the D.C.

Rules of Professional Responsibility apply to his conduct.

Yoo is a member of the Pennsylvania bar. Under the Pennsylvania

Disciplinary Rules of Professional Conduct, where the conduct in question is not

in connection with a matter pending before a tribunal, "the rules of the

jurisdiction in which the lawyer's conduct occurred [shall be applied], or, if the

predominant effect of the conduct is in a different jurisdiction, the rules of that

jurisdiction shall be applied to the conduct." Pennsylvania Disciplinary Rules of

Professional Conduct, Rule 8.5, Disciplinary Authority, Choice of Law. 21 Because

there is no

one jurisdiction in which the legal advice rendered in this 'matter will have effect,

the District of Columbia bar rules,. where Yoo authored the advice, apply. 22

20 These regulations implement Title 28, section 530B of the U.S. Code, which provides that

an "attorney for the Government shall be subject to State laws and rules, and Local Federal court

rules governing attorneys in each State where such attorney engages in that attorney's

duties . . ." The phrase "attorney for the Government" includes "any attorney ehiployed in .. .

a Department of Justice agency." 28 C.F.R. § 77.2.

21 In his response to the draft report, Yoo incorrectly asserted that the Pennsylvania Rules of

Professional Conduct apply. Yoo also asserted that the Pennsylvania Bar's statute of limitations

has run on any possible action against him. Department policy requires that OPR notify relevant

state bars of professional misconduct findings. The state bar then applies its rules as it sees fit.

As discussed above, the Department's interest in OPR's investigation of allegations of misconduct

is to ensure that Department attorneys adhere to the highest ethical standards, not to assist state

bars in enforcing their rules.

22 In addition, we note that Philbin and Bradbury are -

Columbia Bar. Philbin is also a member of the Massachusetts bar, an

a. The Duty to Exercise Independent

Professional Judgment and to

Render Candid Advice

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") (Attachment G),

to "exercise independent professional judgment and render candid advice."

This requirement is explained further in the commentary accompanying the

rule:

A client is entitled to straightforward advice expressing the lawyer's

honest assessment. Legal advice often involves unpleasant facts and

alternatives that a client may be disinclined to confront. In

presenting advice, a lawyer 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. 23

Echoing these concepts, the OLC,Best Practices Memo observes 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

policymakers." OLC Best Practices Memo at 1.

23 D.C. Rule 2.1 also states that, "Fun 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. D.C. Rules, Scope at q 1; ABA, Ann. Mod. Rules . Prof.. Cond., Preamble and Scope at ¶ 14

(6 th ed. 2007).

-21 -

The ABA Committee on Ethics and Professional Responsibility wrote, in

Formal Op, 85-352 (1985):

[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 . . .

Although some courts have found attorneys to have violated Rule 2.1, the

reported decisions and professional literature provided little guidance for

application of the standard in this context. 24 Accordingly, in addition to the rules

and comments set forth immediately above, we looked .to the OLC's own Best

Practices Memo, as well as the OLC. Guiding Principles Memo, for guidance.

b. The Duty of Thoroughness and Care

Relevant to Rule 2.1's duty to exercise independent professional judgment

and render candid advice are the provisions of D.C. Rule 1.1. Rule 1.1(a) 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." D.C. Rule 1.1 (b) states that: 'A

24 The Annotation to the Model Rule 2.1 explains the dearth of Rule 2.1 cases as follows:

Although Rule 2.1 is the ethics rule that clearly enunciates the lawyer's duty to

exercise independent professional judgment in representing a client, it is not

invoked nearly as frequently as the ethics rules that address specific threats to that

independence. These issues are fully addressed in the Annotations for Rule 1.7

(Conflict of Interest: Current Clients), Rule 1.8 (Conflict of Interest: Current Clients:

Specific Rules), and Rule 5.4 (Professional Independence of a Lawyer); also see Rule

1.9 (Duties to Former Clients) and Rule 1.18 (Duties to Prospective Client).

lawyer shall serve a client with skill and care commensurate with that generally

afforded to clients by other lawyers in similar matters." 25 (Attachment H.)

Comment 5 to Rule 1.1 adds, among other things: "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 consequen.ce." In addition, as noted in Comment 2 to Rule 1.1, the

analysis of precedent is an essential element of competent legal advice. Thus, an

error or omission that might be considered an excusable mistake in a routine

matter, might constitute professional misconduct if it relates to an issue of major

importance.

Legal research must be sufficiently thorough to identify all current, relevant

primary authority. Christina L. Kunz, et al., The Process of Legal Research 2-3

(Aspen Publishing 1989). 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").

Adequate steps must be taken to identify any subsequent authority that

affirms, overrules, modifies, or questions a cited authority. See, 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 U.S. 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

25 This rule has .been interpreted in the District of Columbia as requiring proof of a "serious

deficiency" in an attorney's work and more than 'mere careless errors." In re Ford, 797 A.2d 1231,

1231 {D.C. 2002) (citations omitted).

-23-

Shepardized his principle [sic] authority" and failed to identify later decisions that

limited the cited authority to its facts); Charles R. Calleros, Legal Method and

Writing 177-78 (Aspen Publishing 5 th ed. 2006).

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;

William Statsky, Legal Research and Writing, Some Starting Points 179 (West

Publishing Co. 1999). 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.

3. Analytical Approach

In order to determine whether the Department attorneys who drafted and

reviewed the OLC memos met the minimum standards of independent

professional judgment, candid advice, thoroughness, and care commensurate with

the complexity and sensitivity of the issues confronting them, we reviewed the

memoranda in question and identified the legal arguments and conclusions the

authors presented. We examined the methodology. and legal authority underlying

the memoranda's arguments and conclusions in light of the basic standards

discussed above. We also conducted independent research to determine whether

the cited authorities constituted a thorough, objective, and candid view of the law

at the time the memoranda were written.- •

Moreover, we looked at the circumstances surrounding these particular

requests for legal advice, to assess whether the requirements of the applicable

professional rules and Department regulations were met. In doing so, we began

with the premise that "the right to be free from official torture is fundamental and

universal, a right deserving of the highest status under international law, a norm

of jus cogens." Siderm.an de Blake v. Republic of Argentina, 965 F.2d 699, 717 (9 th

cert. denied, 507 U.S. 1017 (1993). See also, e.g., Filartiga v. Pena-Irala, 630 Cir.),

F.2d 876, 884 (2d Cir. 1980). 26 We thus determined 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 professional

conduct.

IL FACTS

A. Subject and Witness Backgrounds

The first AAG for the OLC under the Bush administration was. Jay Bybee,

who was not sworn in until November 2001. Bybee graduated from the J. Reuben

Clark Law School, Brigham Young University, in 1980. He worked as a

Department attorney early in his career, first at the Office of Legal Policy (1984-

1986), and then in the Civil Division (1986-1989). From 1989 to 1991, he was

Associate Counsel to the President in the White House Counsel's Office. From

1991 to 1998, he was a professor at the Paul M. Hebert Law Center, Louisiana

State University, and then at the William S. Boyd School . of Law, University of

Nevada from 1999 to 2000.

Bybee was nominated by President Bush for a_ position as federal judge on

the United States Court of Appeals for the Ninth. Cirduit on May 22, 2002. He was

confirmed on March 13, 2003, and he resigned from the Department on March 28,

2003.

John Yoo joined the OLC as a Deputy AAG in the Summer of 2001. He had

graduated from Yale Law School in 1992 and then clerked for Judge Laurence H.

Silberman, U.S. Court of Appeals for the D.C. Circuit. Yoo joined the faculty of the

University of California Berkeley. School of Law in 1993. He later took a leave of

absence from Berkeley to clerk for U.S. Supreme Court Justice Clarence Thomas.

He served as general counsel of the U.S. Senate Judiciary Committee from 1995-

1996, then continued to teach at Berkeley until joining OLC_

26 Jus cogens refers to principles of international Iaw so fundamental that no nation may

ignore them. Other jus cogens norms include the prohibitions 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).

-25-

At the time of the September 11, 2001 terrorist attacks, Yoo was the

resident expert in the OLC on foreign policy and national security 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 Constitution's war powers, and I had

written a number of articles on the 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.

John C. Yoo, War By Other Means: An Insider's Account of the War on Terror 20

(Atlantic Monthly Press 2006).

After September 11, 2001, 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 Natibria1 Security Agency (NSA) and a

memorandum on the applicability of the Geneva-Convention to al. Qaeda and

Taliban detainees. 27

27 The latter memorandum, which was signed by Bybee, concluded that Common Article Three

of the Geneva Conventions did not apply to al Qaeda or Taliban detainees. In a February 2002

memorandum, President Bush issued a formal decision that Common Article Three did not apply

to the armed conflict with al Qaeda. These findings were subsequently rejected by the U.S.

Supreme Court in Harridan v. Rumsfeld, 548 U.S. 557 (2006) (overturning the opinion of the United

States Court of Appeals for the D.C. Circuit by a 5-4 vote).

Yoo resigned from the Department in late May 2003 and returned to his

tenured position at Berkeley.

Patrick F. Philbin graduated from Harvard Law School in 1992. He clerked

for Supreme Court Justice Clarence Thomas from 1993 to 1994. Philbin was an

associate at the law firm of Kirkland &. Ellis for several years before joining the

Department. In September 2001, he became a Deputy AAG in OLC. In June

2003, he became an Associate Deputy Attorney General in the Office of the Deputy

Attorney General. He resigned from the Department in 2005 and returned as a

partner to Kirlkand 86 Ellis.

Jack Goldsmith, III, is a 1989 graduate of Yale Law School. In 1991, he

received a graduate degree from Oxford University, and from 1992 to 1994 he

worked as an associate at the Washington, D.C. office of Covington &Burling_ He

became an Associate Professor at the University of Virginia School of Law in 1994,

and a Professor at the University of Chicago School of Law in 1997. From

September 2002 until July 2003 he worked at the Defense Department, assisting

General Counsel Haynes on international law issues. In July 2003 he was asked

to take the position of AAG at OLC, and he began working at the Department on

October 6, 2003. Goldsmith resigned from the Department on July 17, 2004. He

is currently a tenured Professor of Law at Harvard Law School.

Daniel Levin served as the Acting AAG for OLC from June 2004, until he

resigned from the Department in February 2005. Prior to serving as Acting AAG,

Levin held a number of high-level positions in the Department,-including Chief of

Staff to the Director of the FBI (2001-2002), and Counselor to the Attorney

General (2002, 2003-2004). Levin became Senior Associate Counsel to the

President and Legal Adviser to the National Security Council in 2005. He is

currently a partner at the law firm of White & Case.

After Levin's departure from OLC, Steven G. Bradbury, the Principal Deputy

AAG under Goldsmith, became the Acting AAG and was nominated by the White

House for the position of AAG of OLC on June 23, 2005. Bradbury graduated

from the University of Michigan Law School in 1988. He was an Attorney Advisor

at OLC from 1991-1992, and served as a law clerk for Supreme Court Justice

Clarence Thomas from 1992-1993. Bradbury was at Kirkland & Ellis from 1993 .

to 2004, first as an associate and then as a partner. In April 2004, Bradbury was

hired by Goldsmith to serve as his Principal Deputy AAG.

Bradbury's nomination to be AAG . expired without action by the Senate.

Bradbury continued to act as head of OLC under the title of Principal Deputy

AAG. He was renominated by President Bush in January 2007 and January

2008, but he was not confirmed.

Prior to the current administration taking office, the OLC either withdrew

or cautioned against reliance on a number of Yoo's and Bybee's opinions. In

addition to the withdrawal of the Bybee and Yoo Memos, the memorandum

authored by Yoo relating to warrantless electronic surveillance by the NSA was

withdrawn by Goldsmith. Bradbury later cautioned against reliance on seven

additional memoranda. On October 6, 2008, Bradbury wrote a memorandum

"advising that caution should be exercised before relying in any respect" on the

October 23, 2001 Memorandum for Alberto R. Gonzales, Counsel to the President,

and William J. Haynes, II, General Counsel, Department of Defense, from John

C. Yoo, Deputy Assistant Attorney General, and Robert J. Delahunty, Special

Counsel, Office of Legal Counsel, Re: Authority for Use of Military Force to Combat

Terrorist Activities Within the United States. Bradbury found that the memorandum

was "the product of an extraordinary - indeed, we hope, a unique - period in the

history of the Nation: the immediate aftermath of the attacks of 9/11." However,

it found that the memorandum's treatment of several legal issues was "either

incorrect or highly questionable." 28

On January 15, 2009, Bradbury issued another memorandum, identifying

certain propositions in several OLC memoranda authored after September 11,

2001, and stating that they did not "reflect the current views' of the OLC. 29

Bradbury stated that some of the OLC opinions - including previously

withdrawn Bybee and Yoo Memos and three additional opinions authored by

Bybee, Yoo, and Philbin, "advanced a broad assertion of the President's

Commander-in-Chief power that would deny Congress any role in regulating the

detention, interrogation, prosecution, and transfer of enemy combatants captured

in the global War on Terror." Bradbury January 15, 2009 Memo at 2.

Bradbury also withdrew a Yoo memorandum which "relied on a doubtful

interpretation of the Foreign Intelligence Surveillance Act (FISA)," and confirmed

that two other opinions - one by Bybee and one by Yoo.- that dealt with the

President's authority to suspend treaties had been withdrawn. Id. at 6-8. Finally,

Bradbury withdrew another memorandum by Yoo, noting that the memorandum's

assertion that "national self-defense" was a justification for warrantless searches

"inappropriately conflate[d] the Fourth Amendment analysis for government

searches with that for the use of deadly force." Id. at 10.

28 Bradbury October 6, 2008 Memo at L These included Yoo's findings in the memorandum

that: (1) the Fourth Amendment would riot apply to domestic military operations designed to deter

and prevent further terrorist attacks; (2) "broad statements" suggesting that First Amendment

speech and press rights under the Constitutionally would potentially be subordinated to overriding

military necessities; and (3) that domestic deployment of the Alined Forces by the President to

prevent and deter terrorism would fundamentally serve a military purpose rather than law

enforcement purpose and thus would not violate the Posse Comitatus Act. These and other

positions taken in the memorandum were disavowed by Bradbury.

29 Bradbury January 15, 2009 Memo at 1. Bradbury noted that his memorandum on the

previous OLC opinions was not "intended to suggest in any way that the attorneys involved in the

preparation of the opinions in question did not satisfy all applicable standards of professional

responsibility."

Bradbury resigned from the Department in January 2009. He is currently

a partner at Dechert, LLP.

B. The Bybee Memo and the Classified Bybee Memo

(August 1, 2002)

1. The CIA Interrogation Program.

CIA Acting General Counsel John Rizzo told us that the term "interrogation"

has traditionally been used by the CIA to describe active, aggressive questioning

designed to elicit information from an uncooperative or hostile subject, as opposed

to "debriefing,"' 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 September 1 1 , 2001 terrorist

attacks, CIA•ersonnel debriefed sources

but the agency was not authorized to

detain or interrogate individuals and, therefore, had no institutional experience

or expertise in that area.' °

The CIA also provided us with a copy of an undated, unsigned, ten-page

memorandum titled "United Nations Convention Against Torture and Other Cruel,

30 But see Alfred W. McCoy, A Question of Torture: CIA Interrogation, from the Cold War to the

War on Terror (Henry Holt & Co. 2006) (describing the CIA's role in sponsoring and conducting

research into coercive interrogation techniques in the decades following World War II, and its

propagation of such techniques overseas during the Cold War era).

=11 1

-31-

Inhumane, or Degrading Treatment." The memorandum discussed the CAT

definition 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 under the Eighth Amendment.'

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.

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. Abu Zubaydah was transported to a

"black site," a secret CIA prison facility

where he was treated for gunshot wounds he suffered during his capture.

According to a May 2008 report by the Department of Justice Office of the

Inspector 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 the FBI was there to provide

assistance. 32 Because the CIA interrogators were not yet at the site when the FBI

agents arrived, 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, 2001 attacks.

When the CIA personnel arrived, they took control of the interrogation. The

CIA interrogators were reportedly unhappy with the quality of information being

provided, and told the FBI interrogators 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 Abu Zubaydah was withholding information and that harsh

techniques were the only way to elicit further information. According to an FBI

interrogator quoted in 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."

According to the DOJ OIG Report, the FBI interrogators reported these

developments to FBI 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 in early June 2002. 33

32 The DOJ Inspector General's Report, A Review 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.

33 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 may have been used

on Abu Zubaydah before the CIA received oral or written approval from OLC.

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 military personnel.

SERE training was developed after the Korean War 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 in the.

past. Its purpose was to prepare trainees for the demands they may face as

prisoners 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, Korean, 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 manipulation, and waterboarding.

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, 111 1.6 and 5.3.1. 34

The CIA psychologists eventually proposed the following twelve EITs to be

used in the interrogation of Abu Zubaydah:

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 flexible false wall so that his shoulder

blades hit the wall. His head and neck are supported with a

rolled towel to prevent whiplash;

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 up to 18 hours;

34 OLC's files included a copy of the PREAL Manual but no indication of how or when it was

obtained.

( 1 )

(3)

-36-

(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 with 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;

(8) 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;

(9) Sleep deprivation: The subject is prevented from sleeping, not

to exceed 11 days at a time; 35

(10) Use of Diapers: The subject is forced to wear adult diapers and

is denied access to toilet facilities for an extended period, in

order to humiliate him;

(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. Airflow is restricted for 20 to 40

seconds; the technique produces the sensation of drowning

and suffocation;

(12)

35 As 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.

According to Rizzo, CIA personnel were concerned that the mi ht face

criminal liability for employing some of the EITs

concluded that most of the proposed techniques were lawful the had not made

a determination with respect to waterboarding and

recommended asking the Department's Office of Legal Counsel for guidance on the

legality of all the proposed techniques. 36

Bellinger told us that he received a telephone call from CIA attorneys in the

Spring of 2002 informing him that Abu ZUbaydah had been captured and the CIA

wanted to use an aggressive interrogation plan to question him. Bellinger said the

CIA wanted a Department of Justice - criminal declination in .advance of the

interrogation because of concerns about the application of criminal laws, in

particular the torture statute, to their actions. Bellinger said that he arranged a

meeting between Department attorneys Yoo and Chertoff and the CIA, and that

he thought the CIA attorneys may have even brought a draft declination

36 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." When he raised the question with OLC, he considered the legality of EITs to be

an open question.

38

Bybee stated that he ha

distributed to the State De artment.

memorandum to the meeting. However, Rizzo disputed that the CIA had ever

drafted a proposed declination memorandum_

According to Yoo, Bellinger told .him during their initial telephone

conversation that access to information about the program was extremel

restricted and that the State Department should not be informed. 37

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.

Bellinger added that, by the Spring of 2002, he had confrontations with John Yoo over the OLC's

failure to include him, as the NSC Legal Adviser, in OLC opinions that affected national security

and that, in some case s, he was not even aware that OLC opinions had been issued on important

legal issues.

Bellinger concluded

that Yoo was "under pretty significant pressure to come up with an answer that

would justify [the programl" and that, over time, there was significant pressure on

the Department to conclude that the program was legal and could be continued,

even after changes in the law in 2005 and 2006.

Shortly after Yoo's conversation with Bellinger, Yoo contacted Ciongoli and

arranged to brief him and Attorney General 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, the Attorney General decided that access would be limited

to AG Ashcroft, Ciongoli, DAG Larry Thompson, AAG Bybee, Yoo, and OLC Deputy

AAG Patrick Philbin.39

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 attorneyshould work on the project with him. 4°

Acording to Yo, they agred thas the best choice, probably because

she had recently joined OLC and therefore had some time available. Philbin was

the "second Deputy" on the project.'

Email records indiate that the matter was recorded on an OLC log sheet

on April I I, 2002, with r and Yoo designated as the assigned attorneys.

39 Ciongoli's, recollection of the meeting with AG Ashcroft and Yoo 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.

40

Neither Bybee nor Philbin have any specific memory of this meeting. Bybee told OPR that

he is not sure when he first learned about the project, and suggested that Yoo may have selected

the line attorney without consulting him

41 As a matter of OW practice, a second Deputy AAG reviews every OLC opinion before it is

finalized. This is referred to as the "second Deputy review."

MI6 3

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) 42 and the

Alien Tort Claims Act. 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.

42 As discussed more fully below, the TVPA's definition of torture is similar to that of the

torture statute.

43 Those cases were Ireland v. the United Kingdom, 25 Eur. Ct. H.R. (ser. A) (1978). (Ireland v.

United Kingdom) and a decision of the Supreme Court of Israel, Public Committee Against Torture

in Israel v. Israel, 38 1471 (1999) (PCATI v. Israel).

" 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 ma have occurred, we recognize that those rennrts reflect the author's view of the

proceedings.

-41-

45 The MFR did not name or cite those cases, but the reference was clearly to the two cases

referenced above - Ireland v. United Kingdom and PCATI u. Israel. The CIA attorneys and Yoo

reportedly discussed the cases and their descriptions of specific EITs used by the British and

Israeli military and intelligence services.

46 OLC reported its conclusion regarding Common Article Three in a Memorandum for Alberto

R. Gonzales, Counsel to the President, and William J. Haynes, II, General Counsel of the

Department of Defense, from Jay S. Bybee, Assistant Attorney General, Office of Legal.Counsel,

Re: Application of Treaties and Laws to at Qaeda and Taliban Detainees (January 22, 2002). As

noted earlier, that view of the law was subsequently rejected in a five-to-four decision by the U.S.

Supreme Court in Hamdan u. Rumsfeld, 548 U.S. 557 (2006).

 

2. Drafting the Bybee Memo

After the meeting, and Yoo began drafting what would eventually

become the Bybee Memo. 47 Working together, they produced at least four drafts

before re orting back to the CIA and NSC in July 2002. Their normal practice was

for Lo prepare a draft that incorpo ated whatever comments or direction

Yoo had provided. Yoo would then review ork and provide additional

comments by email, usually within a few days. They also met from time to time

to discuss the project. 48

Yoo told us that he did not feel time pressure to complete the memoranda.

He said the time between the original request and the issuance of the opinions

was "fairly lengthy," although not by OLC opinion standards, as the office

sometimes "takes years" to issue opinions. Yoo said there was some time pressure -

towards the end because the decision to prepare the classified memorandum

(addressing specific techniques as opposed to general advice) was made "late in

the game."

From the outset, the drafts took the position that the torture statute's

definition of torture applied only to extreme conduct, and that lesser conduct,

which might constitute "cruel inhuman or degrading" treatment, did not rise to

the level of torture. Yoo and supported this position through analysis of

the text and legislative history of the torture statute, the text and ratification

history of the CAT, case law relating to the TVPA, and the Israeli and European

Court of Human Rights (ECHR) cases mentioned above. As the drafts progressed,

they emphasized this point more strongly.

47 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 projevitIti. 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 com lained that she was

working twelve hour days without breaks. However, in her OPR interview denied that she

was overworked or that she had insufficient time to devote to her projects.

48 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 comment.

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.

In his comments of May 23, 2002, Yoo responded to the above definition of

"severe" by asking [I] s severe used in this wa in other parts of the US

Code?"' In the next draft, dated June 26, 2002 ited 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.

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 the

statement in this draft that "Congress's use of 'severe pain' elsewhere in the

United States Code can shed more light on its meaning, Yoo wrote "[cite and quote

S.Ct. case for this proposition]." Id. at 2.

On July 10, 2002, Yoo told _b email "We're oin over to visit with

the NSC at 10:45 on Friday [July 12, 2002] and give

them at that time our draft of the opinion to comment on." The subject line of

49 Yoo also suggested that they "discuss in the text a few of what we consider the leading

[TVPA] cases from the appendix to demonstrate how high the bar is to meet the definition of

torture."

Yoo's email was "bad things opinion." responded by sending Yoo a copy

of a draft dated July 8, 2002, with the comment, "I like the opinion's new title."

She also stated:

I'm a little concerned about the useof the phrase "life threatening."'

Did you mean for that [to] apply beyond the physical pain context?

As drafted, I think it suggests that mental pain would somehow have

to rise to that level as well. While I think that's a wholly legitimate

characterization with respect to physical pain, I'm a little concerned

that it suggests that the bar is perhaps higher than it is for mental

pain or suffering. Of course, I could be reading far too much into it.

I just don't want to give anyone the wrong idea.

On Jul 11 2002, provided a copy of the draft opinion to OLC

paralegal or cite c ecking, and two meetings were scheduled - one

with White House Counsel on Friday, July 12, 2002, and one with AAG Chertoff,

the FBI, CIA, and NSC on Saturday, July 13, 2002. From emails, it appears that

d Yoo had a briefing session with AAG Chertoff on July 11, 2002. A few

minor chLiaann ges and cite-checking corrections were made to the memorandum prior

to the meeting at the White House, and a new draft dated July 12, 2002 was

produced by Yoo and

The July 12, 2002 draft was addressed to John 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 thatla) 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 significant duration,

e.g., lasting for months or even years"; Bybee July 12, 2002 draft

memo at 1.

50 The July 8, 2002 draft concluded its discussion of the TVPA by stating that the case law

shows that "only acts of an extreme, life-threatening nature rise to the level [of] torture." "Lifethreatening"

was removed from the next draft.

(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"; Id.

(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"; Id. at 2.

(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." Id. at 26-27.

On Friday morning, July 12, 2002, Yoo told y email, 'Let's plan on

going over [to the White House] at 3:30 to see some other folks about the bad

things opinion. Please starr -aft on it and make two copies (and one for me and

you, of course)." Yoo and met 'Gonzales at the White House Counsel's

Office later that day. It is likely that either Deputy White House Counsel Tim

Flani an or Counsel to the Vice President David Addington was present, but

and Yoo were not certain who else attended this meeting. orally

summarized the memorandum's conclusions for the group and they gave Gonzales

and the other attendee a copy of the memorandum for review. According to Yoo,

none of the attendees provided any feedback or comments at this meeting.

In his OPR interview, Chertoff stated at e to

group that in his view; it would not be possible for the Department to provide an

advance declination. Rizzo confirmed, in his interview, that Chertoff flatly refused

to provide any form of advance declination to the CIA. Although Bybee was not

present at this meeting, he told us that he was aware that "there was some

discussion with the criminal division over the question of providing advance

immunity. . . [and that it] was not their practice, to provide that kind of advance

[sic]."

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 participate in any further

discussions on the subject.

After the meeting, at Rizzo's request, 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. 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 cause the prisoner prolonged mental harm, he would not have

acted with the specific intent necessary to establish torture. lf, for

example, efforts were made to determine what long-term impact, if

any, specific conduct would have and it was 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.

Some time between July 13, 2002 and July 16, 2002, 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 to prepare a draft, and on

July 17, 2002, after consulting with Chertoff, Criminal Division 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

-48-

- 49 -

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 and 18, 2002, but the Department doe's not have any record of it being sent to

the CIA. John Rizzo told us he does not believe he ever received it, although he

stated after reviewing the document that it is consistent with his understanding

of the Department's position.

Yoo told us that he provided regular briefings about the draft memorandum

to Attorney General Ashcroft and Adam Ciongoli, and remembered mentioning to

Ashcroft .that the CIA had requested some sort of advance assurance that CIA

officers would not be prosecuted for using EITs. 52 According to Yoo, Ashcroft was

sympathetic to the 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.

On July 1.5, 2002, Yoo sent the following email message

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.

52 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

White House interpreting the torture statute. According to 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 but acknowledging that it was necessary to do so.

The next day, Tuesday, July 16, 2002, Yoo and rnet 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, andMall told OPR that they had

no specific recollection of what was discussed at this meeting.

Following 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,Midrafted a document she captioned "Defenses

to a charge of torture under Section 2340," in which she outlined possible

defenses to violations of the torture statute.

told us that Yoo had asked her to begin working on a section on

possi e e enses, and that the notes reflect her preliminary research. 53 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

f 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 Commander-in-Chief section, with "a lOt of input" from Yoo and Philbin, and

that Yoo wrote the section on defenses. 54

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

53 In her notes, raised several problems with the defenses, including the comment

that self defense "seems to me wholly implausible" because of the requirement that threatened

harm be imminent. In her interview with OPR, Koester told us that she ultimately resolved all of

her problems with the defenses and concluded that the defenses were applicable to the torture

statute.

54 According to Bradbury and Philbin, the Commander-in-Chief section of the report was

similar to discussions in other OW memoranda authored since September 11, 2001, relating to

the war on terror. Philbin told OPR, however, that he believed the section in the Bybee Memo was

"very aggressive" and "a step beyond things we had said [in prior memoranda]."

-50-

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 a case where an interrogator went

"over the line" and inadvertently violated the statute. Although he initially

thought nay have worked on a draft of the two sections, when we showed

him a copy of the first draft to include them, Yoo told us, "I think I wrote this. I

don't think rote this. It's sort of written in my style. And it's all redlined,

which means I probably e-mailed it ... to her and had her cut and paste

it into the thing."

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.

Bybee told us he did not recall why the two sections were in the

memorandum 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 sections. He told OPR,

however, that criticism that the Commander-in-Chief and defenses sections were

not necessary was "just flat wrong if the client requested the analysis." Bybee

Response at 11.

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.

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.

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's 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."

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 collection to the contrary. We noted that on July 15,

2002, Yoo told by 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. Although

at Chertoff's direction, - drafted a letter from Yoo to Rizzo confirming that

the Department would not provide an advance declination of prosecution, Yoo

does not appear to have signed or transmitted the letter. In view of this sequence

of events, we believe it is likely that the sections were added because some

number of attendees at the July 16 meeting requested the additions, perhaps

because the Criminal Division had refused to issue any advance declinations.

On Jul 22, 2002, Yoo sent an email to

asking him to' how common law defenses

were incorporated intofederalcriminal law. 55 esponded that he was "just

55 Yoo's email reads as follows:

I've got a work question for you. How 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

Pam

- 52 -

-53-

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.

On July 23, 2002, asked paralegal or assistance in

obtaining additional dictionary definitions for "prolonged," "profound," and

"disrupt." also 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. 56 The memorandum was no longer addressed to John. Rizzo, but

rather to Gonzales. 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 General 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 sorted that as for more controversial techniques"

water oar in Yoo had told him that DOJ was waiting for more

data from the CIA.

Yoo told OPR that most of the techniques "did not even come close to the

[legal] standard [of torture]," but that "waterboarding did." He told us during his

mentions them?

56 That discussion incorporated and expanded upon the language in Yoo's July 13, 2002 letter

to Rizzo, including the letter's assertions that specific intent "can be negated by a showing of good

faith," and Idlue diligence to meet this [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.

interview: "I had actually thought that we prohibited waterboarding. I didn't

recollect that we had actually said that you could do it." He added:

[Tihe waterboarding as it's described in that memo, is very different -

than the waterboarding that was described in the press. And so

when I read the description in the press of what waterboarding is, I

was like, oh, well, obviously that would be prohibited by the statute.

At some point thereafter, according to Rizz 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 the CIA, beca e it would "take loner" to corn lete the

memorandum if it were included.

-54-

lk

On July 24, 2002, sent an email to another OLC attorney, asking

about the protocol for working on .a. classified laptop computer. This suggests that

work on the Classified Bybee Memo began sometime thereafter.

-55-

Over the next few days, sent additional information

relating to the proposed interrogation, including a psychological assessment 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.

also n rovided additional information about the roposed interrogation

program to 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 information 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 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-tei in psychological effects of its use were minimal.

Later that afternoon, sent Yoo the following email message:

I got a message from 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.

- 56 -

Yoo andMcontinued working on the second, classified memorandum

that evaluated the legality of the specific EITs. That evening, Yoo sent the

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 memo no .2 [the classified memorandum on

specific techniques], because memo 1 is pretty close and I could

finish 1 on Monday.

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."

On July 30, 2002, Yoo asked by email, "[D]o we know if Boo boo is

allergic to certain insects?" responded, "No idea, but I'll check withW

Although there is no record of a reply by the final version of the Classified

Bybee Memo included the following statement: "Further, you have informed us

that you are not aware that Zubaydah has any allergies to insects."

We did not find a record of Philbin's, Gonzales's or Chertoff's comments in

OLC's files. Philbin told us that he generally noted his comments in writing on the

draft and then discussed_ them either with Yoo or Philbin told OPR he

told Yoo that he "did not like the use of the medical benefits statute-for construing

`severe pain."' Philbin Response at 8. He said he thought the clinical terminology

of the statute was "imprudent to use in this context," and that it did not provide

"useful, concrete guidance concerning what amounts to 'severe pain."' Id. Philbin

said this was a practical concern and turned on the fact that there is no readily

identifiable level of pain that precedes medical events such as organ failure.

Philbin said he also did not agree with part of the specific intent analysis.

He was concerned that it could be read "to suggest that, if an interrogator caused

someone severe pain, but did so with the intent of eliciting information, that would

somehow eliminate the intent to cause severe pain." Id. Philbin said he

communicated his concerns to Yoo, who then asked Chertoff to review the

memorandum. Philbin recalled that Chertoff said that the memorandum "seemed

okay as a strict statement of the law, but that Chertoff would not want to have to

rely on parsing intent that way to a jury." Id. Philbin said he still had concerns

and did not want to rely on the specific intent analysis.

Philbin also 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 Yoo he had concerns about the

section because the argument was aggressive and went beyond what OLC had

previously said about executive power but that it was not "plainly wrong" or

indefensible. 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.

Gonzales told us that, when he reviewed drafts from 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. Gonzales commented, however, that ,Addington was "an

active player" in providing his view and input on the draft memorandum. He

stated: "I'd be very surprised in David [Addington] did not participate in the

drafting of this document."

Yoo told us that he remembered showing Chertoff a draft of the Bybee

Memo, and recalls sitting in Chertoffs 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 "blanket immunity."

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.

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

-58-

- 59 -

correct. He then told Yoo•that although 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 diligence on 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 successfully assert that he acted in good faith and did not

intend to inflict severe physical or mental pain or suffering.'

With respect to his comments on the Commander-in-Chief section of the

Bybee Memo, Chertoff told us, "I think I said in substance that I'm not saying I

disagree, but I'm not in a position to sign onto this." As for the discussion of

common law defenses, .Chertoff stated that he did not "look at it particularly

closely."

We were unable to pinpoint exactly when Bybee became involved in the

review process. In al email suggests that he had discussed aspects of the

memorandum with by July 26, 2002, and Yoo's files included a draft

datedAlr6., 2002, titled "2340 (JSB Revisions)." 58 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.

Philbin said that Bybee was "very involved" in the review process and "went

through multiple drafts," at ones point "churning through three drafts with

comments on them per day." He said Bybee "was so personally involved, he was

kind of taking over." He added that Bybee was so "focused on this personally and

making all the changes to the drafts" that he decided to "step out until the end."

57 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.

58 Based on the revisions indicated by the document's "track changes" feature, we concluded

that Bybee's changes to the June 31 draft were not extensive.

-60-

Bybee had a poor memory of the drafting process and provided little

information about his role. He told us:

Well, on this matter I reviewed the document from start to finish on

more than one - more than one draft," and I reviewed it for logic. You

asked whether I would read cases or read statutes. I would

sometimes do that.

According to Rizzo, he never met Bybee or discussed the Bybee Memo with him,

and "couldn't pick him out in a lineup."'

Yoo told us that sometime around the end of July, he briefed Ashcroft and

Ciongoli on the Bybee Memo. 59 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 classified

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.

We found two drafts of the Classified Bybee Memo in OLC's files that

appeared to include Bybee's handwritten comments in red ink. 6° 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.

sg According to Yoo, he also briefed then DAG Larry Thompson about the memorandum at

some point.

60 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.

Yoo may have provided a draft of the Classified Bybee Memo to the White

House on July 31, 2002. In email correspondence on that date, Yoo told

that he would be leaving for the White House at 11:30 a.m. and asked her to get

him 'a print out of the classified opinion . . with a copy to take to the White

House." At 12:12 p.m., sent Philbin the following email message: "John

wanted me to let you know at the White House wants both memos signed and

out by COB tomorrow."

The Bybee Memo and the Classified Bybee Memo were finalized and signed

on August 1, 2002. Ciongoli told us that sometime that day in the late afternoon,

he was asked to come to Bybee's office. Bybee, Yoo, Philbin, an were all

present. 63 According to Ciongoli, Yoo and Bybee described e 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 DOJ's approval

was limited to the circumstances described in the memorandum, and that the CIA

would have to seek DOJ approval if it 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 the CIA at 10:30 p.m. on August

1, 2002.

Philbin told us that, at the end of the review process when the opinions were

about to be signed, he still had misgivings about the wisdom of including the

sections that discussed the Commander-in-Chief power and possible defenses, but

63 This was the first time Ciongoli had ever spoken to Bybee about the interrogation issue.

that he nevertheless advised 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 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.

Philbin said he did not believe that defenses should have been included in

the memorandum, and 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."

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.

Philbin said he told Bybee that he had concerns about the specific intent

analysis, Commander-in-Chief section and the defenses. He told Bybee that the

sections were unnecessary, but that he could sign the memoranda. Philbin said

he so advised Bybee because -he agreed that the ten specific practices approved

in the Classified Bybee Memo were lawful; and the unnecessary portions of the

Bybee Memo did not affect that conclusion. Philbin added that there was no

reasonable basis to believe that the Bybee Memo would be used to justify any

operational activity apart from the specific practices authorized in the Classified

Bybee Memo.

Yoo defended the inclusion of the Commander-in-Cef section, stating that

the section would have been unnecessary if they had bee hi

n aware of the proposed

interrogation techniques, but that they had not had this information until close

-63- .

to the end. Yoo was asked to explain how the torture statute would interfere with

the President's war making abilities, and gave the following answers:

Q: I guess the question I'm raising is, does this particular law

really affect the President's war-making abilities . .

A: Yes, certainly.

Q:

What is your authority for that?

A: Because this is an option that the President might use in war.

What about ordering a village of resistants to be massacred? .

... Is that a power that the President could legally —

A: Yeah. Although, let me say this. So, certainly that would fall

within the Commander-in-Chiefs power over tactical decisions.,

To order a village of civilians to be [exterminated'?

A: Sure.

Yoo added that, were he to have-had the opportunity to rewrite the Bybee Memo,

he would not have deleted the Commander-in-Chief sections or defenses because.

they were "important and relevant."

On the morning of August 2, 2002, informed Yoo by email that the

original memoranda were in the Dal Command Center. Shortly before noon, Yoo

emailed Mil instructions for delivering copies of the memoranda to the White

House, CIA, the AG's office, and the DAG's office. 64 According to CIA records, the

agency received a copy of the Bybee Memo by fax at approximately 4:00 p.m. that

day.

64 In his email, Yoo stated that he would deliver copies of the memoranda to the White House

and to ."DoD.n 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.

Q:

* * *

-65-

Four days later,Mtold Yoo in an email that she had spoken. to

'and that "a cable was sent out last week, following the issuance of the opinions."

In his OPR interview, Yoo told us that this email referred "to the CIA then issuing

the interrogation instructions to the field."

3. Key Conclusions of the Bybee Memo

The final version of the Bybee Memo made the following key conclusions

regarding the torture statute:

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, impair anent 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. Bybee Memo at 1.

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 be that a jury would conclude that a defendant acted in good faith. Id. at

3-5.

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 conduct would not result in prolonged mental harm. Such a good faith

belief would constitute a complete defense to such a charge. Id. at 18, 46.

4. Almost all of the United States court decisions applying the TVPA have

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."

Id. at 24, 27.

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." Id. at 31.

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." Id. at 2.

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. Id. at 46.

4. Key Conclusions of the Classified Bybee Memo

1. 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, (8)

sleep deprivation, (9) insects placed in a confinement box, and (10) the waterboard

- would not violate the torture statute. Classified Bybee Memo at 1-2.

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 has

resulted. Id. at 4.

3. None of the. EITs involves severe physical pain within the meaning of the

statute. Some EITs involve no pain. 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 whatsoever, does not . . . inflict 'severe pain or suffering." Id. at 10-11.

4. None of the EITs involves severe 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 interrogation, [the CIA does] not anticipate that any prolonged

mental harm would -result from the use of the waterboard." Id. at 15.

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 orsuffering" 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. Id. at 16.

6. The interrogators do not appear to have specific intent to cause severe

mental 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 that you have supplied to us." Id. at 17-18.

5. The Yoo Letter (August 1, 2002)

In addition to the Bybee Memo and the Classified .Bybee Memo, on August

1, 2002, Yoo signed a six-page unclassified letter, addressed to White House

Counsel 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 conduct which did

not violate the torture statute could not be prosecuted in the ICC. The Yoo Letter

is discussed in greater detail in the Analysis section of this report.

C. Military Interrogation, the March 14, 2003 Yoo Memo to

DOD, and the DOD Working Group Report

1. Guantanamo and the Military's Interrogation of

Detainees

In January 2002, Taliban and al Qaeda prisoners captured in -the war in

Afghanistan began arriving at the United States Naval Base at Guantanamo Bay,

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 detailed to the base.

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.

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:

Category I:

1. Yelling at the detainee;

2. Deceiving the detainee by:

(a) Using multiple interrogators; or

(b) Posing as interrogators from a country with a

reputation for harsh treatment of detainees;

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; •

10. Removing all clothing;

11. Forced grooming (shaving facial hair);

12. Exploiting individual phobias (such as fear of dogs) to

induce stress;

Category III:

1. Convincing the detainee that death or severe pain is

imminent for him or his family;

2. Exposing the detainee to cold weather or water (with

medical monitoring);

3. Waterboarding;

4. Using light physical contact, such as grabbing, pushing,

or poking with a finger. 66

66 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.

JTF's request was forwarded through channels to Defense Secretary Donald

Rumsfeld, who approved the use of all of the JTF techniques except the first three

in Category III on December 2, 2002.

Members of the CITF at Guantananio, 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 aggressive techniques were used. 67

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 him that, although they had not witnessed use of aggressive techniques,

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 were illegal, dangerous, and ultimately ineffective and counterproductive,

but that they had been told by JTF personnel at Guantanamo that the

interrogations had been authorized at high leVels in Washington.

Mora asked the General Counsel of the Army, Steven Morello, if he was

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

67 One of the military detainees who was reportedly subjected to aggressive techniques over

the objections of the FBI 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 e egality of the techniques that had been used in Al-IChatani's

interro ation. 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 raft it when I get back and have Pat [Philbin] sign it." Lold us that she never drafted

the letter because she did not receive sufficient information a out the interrogation from the

Defense Department.

adviser to JTF, which concluded that the techniques were lawful (the Beaver

Memo). Morella reportedly added that he had argued against approval, without

success.

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.

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.

. Sensing that his objections were being ignored, Mora drafted a

memorandum to Haynes and to the legal adviser to the Chairman of the Joint

Chiefs of 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.

In withdrawing the December 2, 2002 approval of all the JTF techniques

except the first three in Category III, 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 directive, Haynes

assembled a working group consisting of military and civilian DOD personnel.

Working Group members included Mora, the general counsel of the other military

branches, representatives of the Pentagon's policy and intelligence components,

and representatives of the Joint Chiefs of Staff.

2. Drafting the Yoo Memo

Shortly after the Working Group was formed, Haynes asked Yoo to provide

legal advice about interrogation to the Working Group. Yoo told us that he •

notified Bybee of the request and consulted with the White House. Yoo then

began drafting a responsive memorandum. In preparing this memorandum (the

Yoo Memo), 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. 68

Yoo assigned to serve as OLC's liaison to the Working Group, and

both of them subsequen y 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

68 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. Those 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 Classified 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 this report, that Haynes and Rumsfeld

were briefed on thelikoiam on January 16, 2003. As we have also discussed, on October 2,

2002, CTC attorney briefed JTF personnel at Guantanamo about the CIA's use of EITs

and the legal analysis provided by OLC in the Bybee Memo.

In a June 10, 2004 memorandum to the file, then AAG Goldsmith reported talking to John

Yoo about oral advice that Yoo may have provided to DOD General Counsel Haynesin November .

and December 202. Yo told Goldsmith that he dimly recalediscusions 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 August 2002 opinions.

-75-

advice they provided was identical to what was set forth in the Bybee Memo. At

about this time, started working on the draft Yoo Memo. Although the

Yoo Memo was the only formal advice OLC provided on military interrogation, Yoo

and consulted with the Working Group as it formulated Defense

• Department policy.

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.

In Part I, the Yoo Memo discussed the relevance of the United States

7 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.

Part 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 properlyauthorized

interrogation of enemy combatants" by the military. Id. at 11.

In Part III, the Yoo Memo discussed international law: The Bybee Memo's

analyses of the CAT and two foreign court decisions - Ireland v. United Kingdom.

and PCATI v. Israel - were incorporated almost verbatim, and the memorandum

included a new discussion of customary international law. The memorandum

concluded that customary international law did not affect military obligations

because it cannot "impose a standard that differs from United States obligations

under CAT [and] is not federal law . . . the President is free to override it as his

discretion. Id. at 2.

Finally, in Part IV, the Yoo Memo reiterated the Bybee Memo's arguments

regarding the necessity defense and self defense. The memorandum stated that,

even if federal criminal law applied to military interrogations, and even if an

interrogation method violated one of those laws, the defense "could provide

justifications for any criminal liability." Id. at 81.

In the discussion in Part III of the United States' obligations under the 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.

With respect to the Eighth Amendment, the memorandum noted that case

law generally involved situations where three 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.

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 67 (citations omitted). After reviewing some of the case law, the

memorandum summarized four principles that it concluded would determine

whether government conduct would shock the conscience: (1) whether the conduct

was without any justification; (2) the government official must have acted with

"more than mere negligence"; (3) some physical contact is permitted; and (4) "the

-77-

detainee must sustain some sort of injury as a result of the conduct, e.g., physical

injury or severe mental distress." Id. at 68.

Several members of the Working Group were highly critical of the advice

provided by Yoo and On or about January28, 2003, met with

several members of the Working Group and summarized some of e conclusions

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) the necessity defense sweeps too broadly and doesn't make

clear enough that it would not apply in all factual scenarios,

the c-in-c argument (as with the other defenses) is a violation

of our international obligations.

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.

Yoo 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.

Philbin told OPR that he had concerns about the Yoo Memo and that it was

issued without his concurrence. Philbin said Yoo assured him that "none of the

expansive analysis in that memo was actually going to be used by DOD and that

DOD was approving only a limited set of interrogation practices that would raise

no concerns under [the] relevant statutes." Philbin Response at 10-11.

Nevertheless, Philbin "was concerned that the Yoo Memo created the potential for

DOD to approve additional interrogation practices that might be legally

problematic." Id.

(3)

On March 3, 2003, Yoo instructed to send a draft of the Yoo Memo

to then CIA General Counsel Scott Muller. According to Yoo, Muller wanted to

make sure nothing in the new memorandum detracted from the assurances OLC

had provided to the CIA in the Bybee Memo.

Muller reviewed the draft and wrote to on March 7, 2003:

Bybee apparentaye in reviewing drafts of the Yoo Memo sometime before

March 4, 2003, when

sentIirid Yoo a draft "with Jay's changes."69

Email traffic indicates that Bybee, and Yoo exchanged several drafts of

the Yoo Memo over the next few days.

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." R_ omig added that the Yoo Memo, 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

69 At the time, Bybee had been nominated for a judgeship on the United States Court of

Appeals for the Ninth Circuit and had completed his confirmation hearing.

courts. Romig also criticized 01.4C'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.

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 the substance of

Yoo's legal analysis.

Bybee was confirmed for his 'ud eship on March 13, 2003, and sworn in on

March 28, 2003. According to Bybee 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 that it

was not unusual for deputies to sign OLC memoranda. On March 14, 2003, Yoo

finalized and signed the Yoo Memo.

3. Key Conclusions of the Yoo Memo

The Yoo Memo incorporated virtually all of the Bybee Memo, and advanced

the following additional conclusions of law.

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.

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.

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.

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.

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.

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.

7. Eighth Amendment , jurisprudence . does not forbid interrogation

techniques that involve "varying degrees of force" as long as the interrogator acts

in good faith 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 conditions 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 61-62, 65.

8. Substantive due process under the Fifth and Fourteenth Amendments

protects individuals against only the most egregious and arbitrary government

conduct, conduct that "shocks the conscience." Four factors are considered in

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.

4. The Working Group Report

. The April 4, 2003 Working Group Report incorporated substantial portions

of the Yoo Memo, in addition to new material from the military lawyers in theWorking

Group. 7° 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 16 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.

D. Implementation of the CIA Interrogation Program

Other

agency personnel separately told CIA OIG that they were concerne• a sou uman .

rights abuses at CIA facilities. In January 2003, CIA OIG initiated an

investigation into CIA detention and interrogation practices, and on May 7, 2004,

it issued its report. The facts in the following discussion are based primarily upon

that document.

70 The Working Group Report was originally classified "Secret," but was declassified by the

Department of Defense on June 21, 2004 and released to the public. The Yoo Memo was originally

classified "Secret," but was declassified by the DOD on March 31, 2008.

71 The report omitted the Bybee Meino's and the Yoo Memo's argument that "severe pain"

must rise to the level of the pain of "death, organ failure or serious impairment of body functions."

1. Abu Zubaydah

a CIA detention facility 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, consisting of CIA security, medical, personnel.73

Overall supervision of the facility was the responsibility of a CIA case officer

assigned as Chief of Base (COB), who reported to CTC headquarters. CIA OIG

Report at 11 73, 74..

psychologist/interrogators administered all of the interrogation

sessions involvin EITs which were closel followed by head uarters ersonnel.

According to the CIA OIG Report, the interrogation team decided at the

outset to videotape Abu Zubaydah's sessions, primarily in order to document his

medical condition. CIA OM- examined a total of 92 videotapes, twelve of which

recorded the use of EITs. Those twelve tapes included a total of 83 waterboard

a lications, the ma'ori of which lasted less than ten seconds.

On one of the interrogation videotapes, CIA OIG investigators noted that a

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

72 The CIA

to identify specific clandestine facilities, which the agency also

refers to as "black sites."

Report, that the threat was peiiiiissible because of its conditional nature. Id. at

18.

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, C head uarters Officials believed the subject was still withholding

information Senior

CIA officials reportedly made the decision to resume the use of the waterboard

to assess e subject's compliance.

After that session, agreed .with the on-site interrogators that the subject was

being. truthful, and no urther waterboard applications were administered.

According to CIA OIG, an attorney from the CIA General Counsel's 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 Zubaydah 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 the subject's mouth and nose. One of the psychologists

involved in the interrogation program reportedly told CIA OIG that the technique

was different because it was "for real" and was therefore more "poignant and

convincing."

2. Abd Al-Rahim AI-Nashiri

On November 15, 2002, a second risoner, Abd Al-Rahim Al-Nashiri, was

brought to facility. psychologist/ 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_ Othe ntinued to be used, and the subject

eventually become compliant. 2002; both Al-Nashiri and Abu

Zubaydah were moved to another CIA black site, CIA OIG

Report at ¶ 76.

While EITs were being administered, several unauthorized techniues were

also used on Al-Nashiri. Sometime around the end of December,

debriefer tried to frighten Al-Nashiri by cocking an unloaded pistol next to the

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, creating the impression that

he was about to use it to harm Al-Nashiri. Id: at 11192, 93.

debriefer

told Al-Nashiri

at, if he did not talk, his mother and family would be brought to the facility.

According to the CIA OIG report, there is a widespread perception in the Middle

East that intelligence services torture prisoners by sexually abusing

female family mem ers in their presence. - Id. at 1 94.

- On other occasions, the CIA debriefer blew cigar smoke in Al-Nashiri's face,

manhandled him was tied in stress positions, and stood on his shackles

to induce pain.

CIA OIG 1-Nashi

At some point,

interrogators determined that he was coopera ng and the use of EITs was

discontinued.

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

EITs were also used on Khalid Sheik Muhammed (KSM), a high-ranking al

Qaeda official who, according to media reports was captured in Pakistan on

March 1, 2003, to a CIA black site CIA officers have been

quoted in the me is as saying that KSM was defiant to his captors and was

extremely resistant to EITs, including the waterboard.

The CIA OIG Report stated that KSM was taken to facility for

interrogation and that he was accomplished at resisting EITs. He reportedly

On another occasion in December 2002,

underwen u aterboard sessions involving approximately

183 a lications

The CIA OIG also reported that on one occasion, one of the CIA

psychologist/interrogators threatened KSM by saying that "if anything else

happens in the United States, 'We're going to kill your children.'" Id. at ¶ 95.

 

5. CIA Referrals to the Department

According to a CIA MFR drafted by John Rizzo onjanuary 24, 2003, Scott

Muller (then CIA General Counsel) Rizzo and met with Michael

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 had describe the unauthorized EITs that had been used at

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.

Chertoff 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

On January 28, 2003, CIA Inspector General John Helgerson called Yoo and

told him that the CIA OIG was looking into the matter. 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 to

Helgerson: "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 will be predicated on the facts that you gather and present

to them."

 

-93-

 

Accordingly, we recommend that the declination decision with respect tc

e reexamined. Primarily because of the changed legal

landscape, we further recommend that the other declination decisions made by

CTS and the EDVA be reexamined as well.

6. Other Findings of the CIA OIG Report

In addition to reporting on specific incidents, the CIA OIG Report made the

following general observations:

The Agency's detention and interrogation of terrorists has provided

intelligence that has enabled the identification and apprehension of

other terrorists and warned of terrorist plots planned for the United

78 The. EDVA Memorandum was issued after the Bybee Memo had been publicly withdrawn,

but before the Supreme Court's decision in Hamdan. Accordingly, the prosecutors may have relied

upon OLC's earlier determination that the War Crimes Att did not apply to suspected terrorists

held abroad. We found no indication, however, that the EDVA declination decisions were revisited

after Hamdan. In reviewing the declination decisions, the Department will have to determine

whether prior OLC opinions and executive orders bar prosecution of these matters.

States and around the world. The CTC Program has resulted in the

issuance of thousands of individual intelligence reports and analytic

products supporting the counterterrorism efforts of U.S. policymakers

and military commanders.

CIA OIG Report at 1[16.

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 s

may have different results; and

Id. at ¶ 221.

Id_ at ¶ 233.

Id. at 111233-235.

E. Reaffirmation of the CIA Program

1. The Question of "Humane Treatment"

In a February 7, 2002 order, the. President determined that the armed forces

were resuired to treat detainees humanel

 

=ill -99- ii

2. The "Bullet Points"

On April 28, 2003, Muller faxed John Yoo a draft document, in bullet point

form, captioned "Legal Principles Applicable to CIA Detention and 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. •

In her OPR interview, confirmed 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

interrogation 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.

The Bullet Points stated that the CAT definition of torture "is identical in all

material ways 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

80 Yoo left the De artment on Ma 30 2003 an

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 EITs 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 insects; and (16) the waterboard. Bullet Points at 2-3.

provided a copy of the Bullet Points to the CIA OIG, which

incorporated them into its draft report. As discussed below, OLC subsequently

disavowed the Bullet Points.

3. The Leahy Letter

On June 20, 2003, Muller an onzales at his office to

According to MFR, the group recognized that the CIA EITs

involved "certain 'stress and duress' measures and physical contact," and "[n]a

one suggested that these measures were inconsistent with the statement in the

draft letter that the US is complying with Constitutional standards and with

Article 16 of the [CAT]." Philbin reportedly confirmed, in response to a direct

question from Bellinger, that the EITs authorized by the De artment "could be

used consistent with CAT and the Constitution." ai

According to Philbin, Muller stated at the meeting that the CIA had relied

on the Bullet Points to establish that the EITs were consistent with Article 16.

Philbin said he told Muller that the Bullet Points were an unsigned, undated

document that was not on OLC letterhead and that he was unsure how they had

been prepared. He told Muller that he could not rely on the Bullet Points as an

OLC opinion.

The draft response letter was subsequently redrafted by Bellinger and went

out under Haynes' signature. The letter advised Senator Leahy that the United

81 Philbin told OPR that he told the attendees at the meeting that he was not prepared to say

that the EITs met the substantive requirements of the Fifth, Eighth, and Fourteenth Amendments

because he had not done that analysis. He told them he was prepared to endorse the view that

the EITs did not violate those provisions because those provisions did not apply. Philbin asserted

that the Fourteenth Amendment applies to state and not federal government; the Eighth

Amendment applies to punishment for crimes; and the Fifth Amendment did not apply

extraterritorially in this situation at that time.

States Government complies with its domestic and international legal obligations

not to engage in torture and does not subject detainees to cruel, inhuman, or

degrading treatment or punishment. An internal CIA summary noted that "[t]he

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."

After the meeting, Muller, and Bellinger reportedly remained

behind to discuss questions raised about the implementation of the CIA

interrogation 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 because

it loses its effectiveness after several repetitions. Muller and told

Gonzales, who reportedly agreed, that, "as per standard legal practice, the

memorandum provided both a legal 'safe harbor' . . . and a touchstone by which

to assess the lawfulness of any future activities that did not fall squarely within

the specific facts reflected in the memorandum." They also reportedly agreed that

simply because conduct went beyond the "safe har " did not necessaril mean

that the conduct violated the statute or convention.

Muller and described for Gonzales the numbers of times the

waterboard had been use on KSM and Abu Zubaydah, and "discussed the

provisions of the [Classified Bybee Memo] as applied to the actual use of the water

board with respect to AZ and KSM. [It was] 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.' Id. at 3.

4. The CIA Request for Reaffirmation

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- 108 -

- 109 -

F. AAG Goldsmith - Withdrawal of OLC's Advice on Interrogation

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. 83 The

White House offered Goldsmith the position in July 2003, and he began his

service as AAG on October 6, 2003. The following day, he was read into the CIA

interrogation program by Scott Muller.

I. The NSA Matter

83 Goldsmith confirmed that when Bybee left OLC, then White House Counsel Gonzales

wanted Yoo to take over as AAG. Ashcroft reportedly objected because he thought Yoo was too

close to the White House, and recommended his Counselor, Adam Ciongoli, for the job. Ciongoli

was reportedly not acceptable to Gonzales, however, because 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.

- 110 -

Because of the problems with Yoo's NSA opinions, Goldsmith asked Philbin,

who 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 Goldsmith read sometime in December 2003.

Philbin told us that he had concerns aboUt the Yoo Memo because it could

be used by DOD to independently approve interrogation techniques that might

violate the law. Philbin said that soon after Yoo's departure from the Department

in May 2003, he instructed who had recently begun work at the DOD's

Office of General Counsel, to instruct GC Haynes that DOD should not rely on the

Yoo Memo for any purpose beyond the 24 specific interrogation practices that had

been approved.

2. The Withdrawal of.the Yoo Memo

Goldsmith's reaction to the Yoo Memo was that it was "deeply flawed," 85

and his imediate concern was thathe Defense Department might improperly

rely on the opinion in determining the legality of new interrogation techniques.

86

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. 87

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 techniques

requiring Secretary of Defense approval without first consulting OLC. Having

85

error."

=told us that after Goldsmith read the Yoo Memo, he told her it was "riddled with

86 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

memorandum, he did not intend to identify any and all possible errors, but was looking for the

"really big fundamental mistakes that couldn't be justified and that were perhaps unnecessary."

87 Philbin responded to that email as follows:

k a' trch 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 ey did not go beyond the Rumsfeld approved procedures and did not rely on

the memo. This was only an oral caution but please do not sell us short by ignoring

it.

Goldsmith answered as follows: "I'm not selling anyone short - It's just that Haynes said

he heard nothing about that advice."

allayed his immediate concerns, Goldsmith temporarily set the Yoo Memo aside

and continued to deal with what he believed was the more urgent matter - the

NSA program.

In early March 2004, the Defense Department told Goldsmith that it wanted

to use one of the four extreme techniques 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.

On Saturday, March 13, 2004, Goldsmith telephoned DAG Comey at home

and asked to meet with him that day. Philbin and Goldsmith went to 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 unduly high

threshold for the application of the term "severe pain." Goldsmith added that,

generally speaking, the memorandum's legal analysis was loosely done and was

subject to misinterpretation.

Comey remembered that Philbin seemed in accord with Goldsmith's

comments, and that Philbin said he had advised Yoo to remove the questionable

sections from the memorandum. Both Goldsmith and Philbin were friendly with

You at the time, and Comey got the impression that they were both embarrassed

and disappointed by the "sloppy" legal work they had uncovered.

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 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 then Principal Deputy AAG

Steve Bradbury and several OLC line attorneys.

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3. The CIA OIG Report and the Bullet Points Controversy

On March 2, 2004, Goldsmith received a letter from Muller, asking OLC to

reaffirm the legal advice it 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. 88

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.' 189

Goldsmith was concerned because the Bulet Points apeared to be a CIA

document, with no legal analysis and no indicaatio lC h ad ever reviewed

its content. He made inquiries, and learned that and Yoo had in fact

worked on the document. .

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

89 According to a CIA MFR prepared by Muller on October 16, 2003, the CIA gave Goldsmith

a copy of the Bullet Points when he was briefed into the CIA interrogation program on October 7,

2003.

Goldsmith told us that he did not know what motivated Muller to ask for reaffirmation of

the OLC advice at this time We note, however, that CIA OGC had submitted its comments on the

draft CIA OIG report the previous week, on February 24, 2004_

Bullet Points as appendices. 9° 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.

After reviewing the CIA OIG Report, on May 27, 2004, Goldsmith wrote to

Muller and advised him that the report "raised concerns about certain aspects of

interrogations in practice." Goldsmith pointed out thatthe advice in the Classified

Bybee Memo depended upon 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 subsequent Agency usage as to

make it almost irrelevant."

Goldsmith concluded the letter by recommending that use of the waterboard

be suspended until the Department had an opportunity to review the CIA OIG

Report more thoroughly. With respect to the other nine EITs, Goldsmith asked

Muller to ensure that they were used in accordance with the 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 CIA IG

Helgerson, and early drafts of the letter included signature blocks for both Muller

and Goldsmith.

90 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.

- 115 -

On June 9, 2004, Goldsmith talked to Yoo by telephone about the Bullet

Points. 91 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 app ying aw to ac , especially in such a

cursory and conclusory fashion."

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 OLC' knew that they

would be provided to. the CIA OIG for use in its 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 President, the National Security Advisor, the Attorney

General, who was accompanied ..by Patrick Philbin, the Director of Central

Intelligence, and others."

On 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 1G Helgerson.

Goldsmith submitted his comments to Helgerson on June 18, 2004. He

asked 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

91 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 Guantanamo Bay facility.

Yoo reportedly told Goldsmith that he did not know the identity of the detainee (who was probably.

Mohammed Al-Khatani), but that he dimly recalled discussing specific techniques with Haynes in

November and December 2002. Yoo stated that any advice he gave Haynes 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.

- 116 -

of approved techniques on other detainees in addition to Abu Zubaydah, not the

use of new techniques, and that with respect to the number of times the

waterboard had been used on detainees, the "Attorney General expressed the view

that, while appropriate caution should be exercised in the number of times the

waterboard was administered, the repetitions described did not contravene the

principles underlying DOJ's August 2002 [classified] opinion." 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."

On 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.

4. Goldsmith's Draft Revisions to the Yoo Memo

The first draft of the replacement memorandum was produced in mid-May

2004, and at least 14 additional drafts followed, with the last one dated July 17,

2004. Beginning with the sixth draft, dated June 15, 2004, specific criticisms of

the Yoo Memo were discussed in footnotes. Although the criticism was removed

from later drafts, Goldsmith told OPR that it was not removed because of any

doubts about its accuracy. Rather, Goldsmith ultimately concluded that it was

unnecessary to specifically address the errors. The footnotes in question, which

were drafted by Bradbury pursuant to Goldsmith's request, criticized the Yoo

Memo as follows:

1. The Yoo Memo "is flawed in so many important respects that it must be

withdrawn." June 15, 2004 draft at 1, n.1.

2. The Yoo Memo "contains, numerous overbroad and unnecessary

assertions of the Commander in Chief power vis-a-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

117 -

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. 92

3. Yoo's "sweeping use of the canon against application of statutes to the

sovereign outlined in Nardone U. 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, n. 1 .

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 explicit

extension of the prohibition of the torture statute. to individuals acting 'under color

of law' naturally includes military personnel acting during wartime. We therefore

disavow the contrary conclusion on this question in [the Yoo Memo]." June 24,

2004 draft at 29-30, n.28.

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.l.

g2 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:

It is my view that the blanket construction of the [Yoo 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..

118 -

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.

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

Menio] 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.

7. The Yoo Memo "asserts that Congress lacks authority to regulate

wartime interrogation and, relatedly, that the [Executive Branch] 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 swept much too broadly, to the point of being 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, cl. 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. It is 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 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,

- 119 -

491 U.S. 440, 482-89, (1989) (Kennedy, J., concurring in the judgement);

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38, 641-46 (1952)

(Jackson, 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.

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. •

9. "[The 110.0 Memo] states that the Fifth Amendment to the United States

Constitution is `inapplicab[le]' during wartime, particularly with respect to the

conduct of interrogations or the detention of enemy aliens. [Yoo Memo} at 9. The

memorandum'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, 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.

Goldsmith left the. Justice Department on July 17, 2004, before he was able

to finalize a replacement for the Yoo Memo. On July 14, 2004, then Associate

Deputy AG Patrick Philbin testified before the House Permanent Select Committee

on Intelligence as to the legality of the 24 interrogation methods that had been

approved for use by the Defense Departnient. Sometime thereafter, the Defense

Department reportedly informed OLC that it no longer needed a replacement for

the Yoo Memo.

5. The Withdrawal of the Bybee Memo

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

Washington Post made a copy of the Bybee Memo available on its web site.

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 Memo. Because the analysis in that document was essentia lly the same as

the Yoo Memo, which he had already -withdrawn, Goldsmith 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 Attorney

General Ashcroft that he had concluded 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.

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.

Goldsmith said he found it "deeply strange" that both the Classified Bybee

Memo and the unclassified memoranda were issued on the same day. He told

OPR:

One [the classified memo] is hyper narrow and cautious and splitting

hairs and not going one millimeter more than you needed to answer

the question. And the other [the unclassified memo] 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.

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."

Bradbury said part of the problem with Yoo's work on the Commander-in-

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 secondary importance because

he had such a firmly held view of what the prin. ciples 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 work, you know,

you've already developed on these questions. And I just think that for

practical reasons that's healthy.

=11

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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, Gamey, Goldsmith, and Philbin met with reporters in a not-forattribution

briefing session to explain that the Bybee Memo had been withdrawn.

On the same day, White House Counsel 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 misinterpretation."

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.

93 Several replacement drafts for the Bybee Memo were prepared under Goldsmith's direction,

the last of which was dated July 16, 2004.

- 124 -

(Pending classification review by the CIA)

G. Case-by-Case Approvals and the Levin Memo (December 30, 2004)

When Goldsmith left the Department in August 2006, Dan Levin, who was

Counselor to Attorney General Ashcroft 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 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. 95

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.

95 Prior to the Bullet Points controversy, the CIA did not seek OLC approval to use EITs on

new prisoners brought into the CIA interrogation program, but simply relied on the analysis

provided in the Classified Bybee Memo. After Goldsmith disavowed the Bullet Points, however, the

agency appears to have sought written approval when it intended to use EITs.

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

interrogation 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 jurisdictional exclusion, rather than

asking OLC to hypothetically consider whether the program would meet the

- 125 -

- 126 -

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 that it didn't violate the cruel, inhuman and degrading [standard], at

least unless you came up with an argument for how it meant something different

than [what it would mean if applied] to aUnited States citizen in New York." 96

Levin and other OLC attorneys met with CTC officers on August 4, 2004,

and reciuested additional information about the waterboarding procedure. CTC

esponded by fax the next day, noting

some of the time limitations that the CIA had placed on the use of the waterboard.

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

prisoners awake for such extended periods, which was an aspect of the technique

that he considered highly relevant to analyzing its effect.' He learned that

detainees were typically shackled in a standing position, naked except for a

diaper, with their hands handcuffed at head level to a chain bolted to the ceiling.

96 That question was eventually addressed by Bradbury in the Article 16 Memo, which

concluded that thirteen CIA EITs, including the waterboard, sleep deprivation and forced nudity,

did not 'violate the substantive standards applicable to the United States under Article 16 . . ."

Article 16 Memo at 39-40.

47 Similarly, none of the OLC lawyers who worked on the Classified Bybee Memo appears to

have asked the CIA how prisoners were induced to maintain stress positions such as " -wall

standing."

In some cases, a prisoner's hands would be shackled above the head for more

than two hours at a time. CIA personnel were expected to monitor the subjects

to ensure that they carried 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 stay awake to keep

his balance.

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 question the 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 State s

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, which

he noted were "consistent with the [Classified Bybee Memo] and with the previous

uses of the technique, as they have been described to us."'

ga

Althou:h Levin concluded that use of the waterboard was lawful,

gg The conditions of Levin's approval were: (1) the use of the technique would conform to 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) there 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) consistent 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 a total of twenty minutes each day.

=16

- 127 -

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. m°

Levin continued to work on a. replacement for the Classified Bybee Memo,

and in late September 2004, he asked CIA attorney for more information

about the administration of the followingEITs: nudity, water dousing, sleep

deprivation, and the waterboard. esponded on October 12, 2004.

On October 18, 2004, sent Levin a 28-page document, entitled

"OMS [CIA Office of Medical Services] Guidelines on Medical and Psychological

Support to Detainee Rendition, Interrogation, and Detention," dated May 17, 2004

too The six EITs under consideration in the Levin drafts were dietary manipulation, nudity,

abdominal slap, water dousing, sleep deprivation, and the waterboard. The Levin drafts we

reviewed concluded that the use of those techniques, subject to limitations and protections

described by the CIA, would not constitute torture within the meaning of the torture statute.

- 129 -

(OMS Guidelines). That document included the following observations about the

waterboard:

This is by far the most traumatic of the enhanced.

technique s. ... .. SERE trainees usually have only a single exposure

to this technique, and never more than two . . . .

OMS Guidelines

At some point that fall, Corney 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. Principal Deputy AAG Bradbury

prepared an initial draft, using the last draft created under Goldsmith's

supervision as a starting point. As the drafting progressed, Goldsmith's draft was

102 Levin told us that he got "two rounds of very detailed excellent comments" from the State

Department on his classified draft.

changed significantly. 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.

The Levin Memo deleted the Bybee Memo's discussion of the Commanderin-

Chief power because Levin believed it was unnecessary to the analysis, and

because Levin considered it to be an enormously complicated question that could

not be addressed in the abstract. Levin also deleted the discussion of possible

defenses, which he believed was unnecessary and some of which he considered

to be clearly wrong.

Levin modified the discussion of-specific intent, which he also believed to

be wrong. 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 pain, I'm not violating the statute. I think that's just ridiculous."

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 the final draft.'

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.

103 Levin told us that he was unaware that Philbin was the "second deputy" on the Bybee

Memo. In a December 21, 2004 email to Levin, Philbin argued that the criticism was not "entirely

fair to the authors" of the Bybee Memo because the health benefit statutes could shed light on a

"Iay person's understanding of what kind of pain would be associated with" death, organ failure,

or loss of bodily function.

- 130 -

- 131 -

On December 30, 2004, provided Levin a copy of a 20-page

document en ound Pa er on CIA's Combined Use of Interro ation

Techni s ues."

On January 15, 2005, sent Levin an up ate

copy (December 2004) of the OMS Guidelines an• provi e comments on portions

of Levin's January 8, 2005 replacement draft of the Classified Bybee Memo: 1'4

Levin told us that after Gonzales became Attorney General, he asked Levin

to take over Bellinger's job as legal adviser to the NSC. Levin was not interested

in the job, but Gonzales, the new National Security Advisor, Stephen Hadley, and

White House Counsel Harriet Miers all urged him to take the position. Levin

accepted the job, 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.

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."

104 All of Levin's drafts that we saw in OLC's files concluded that the use of EITs as described

by the CIA was lawful.

H. The Bradbury Memos

When Levin left the Department in early February 2005, Bradbury became

OLC's Acting AAG. 105 Bradbury 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 ElTs. 1'6

B int of contact at the CIA for these memoranda was CTC

attorne

Correspondence from o Bradbury indicates that the CIA provided its

comments on the Combined Techniques Memo to OLC on March 1, 2005.

los Bradbury was Acting AAG from February 5 to February 14, 2005. He then reverted to

Principal Deputy AAG, but no acting AAG was appointed. He again became Acting AAG in June

2005,when his nomination to the position of AAG was submitted to the Senate, until April 27,

2007, when his time as AAG expired without Senate action on his nomination. He again reverted

to the position of Principal Deputy AAG, but, again, no acting AAG was appointed.

106 Levin started working on the combined techniques memorandum before he left the

Department, but was unable to complete it before his departure.

Bradbury 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 Department's

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 Carney voiced no objections to the 2005 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 does not remember seeing a final draft of the

document.'w

1. -The 2005 Bradbury Memo (May 10, 2005)

The 2005 Bradbury Memo was one of two May 10, 2005 memoranda written

to replace the Classified Bybee Memo. 1°8 The 2005 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 violate" the torture

statute.

The 2005 Bradbury Memo concluded that the use of the following EITs, as

proposed by the CIA, would be lawful: (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

107 Bradbury told us, however, that he remembers personally delivering a copy of the signed

Article 16 Memo to Levin in his office at the NSC.

1' The 2005 Bradbury Memo noted that it superseded the Classified Bybee Memo, but added

that it "confirms 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]_" 2005 Bradbury Memo at 6, n.9.

• - 133

- 134 -

waterboard. Each technique was described in the memorandum, along with the

restrictions and safeguards the CIA had represented would be implemented with

their use.

The memorandum noted at the outset that the CIA had represented 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 (3) who

would constitute a clear and continuing threat to the United States or its allies if

released. 2005 Bradbury Memo at 6.

Following a general discussion. of the torture statute, the 2005 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. 2005 Bradbury Memo at 29, n.33; Classified Bybee

Memo at 5. Although the 2005 Bradbury Memo prefaced its discussion with the

qualifying recognizing the limitations of reliance on this

In evaluating the legality of the first eleven techniques, the memorandum

concluded 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.

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 2005 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." 2005 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 pain.

Id. at 36.

On the question of whether sleep deprivation caused Severe physical

suffering, the 2005 Bradbury Memo noted that, lapthough 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 medical judgment that the detainee is or may be experiencing

extreme physical distress," the 2005 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 39-39. Relying on similar assurances.from:CIA.OMS,.and on one.medical text,

the 2005 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 waterboard, the 2005 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, according

to OMS, the technique was not physically painful, and that it had been

administered to thousands of trainees in the SERE program. 1°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. at 42-43.

The 2005 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. Because each application would

be limited to forty seconds, the memorandum reasoned, any resulting physicaldistress

"would not be expected to have the duration required to amount to severe

physical suffering." ki. 11°

The 2005 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."'

Id. at 44.

The 2005 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, misrepresentation of

109 The 2005 Bradbury Memo acknowledged that most SERE trainees experienced the

technique only once, or twice at most, whereas the CIA program involved multiple applications,

and that "SERE trainees know it is part of a training program," that it will last 'only a short time,"

and that "they will not be significantly harmed by the training." 2005 Bradbury Memo at 6.

The 2005 Bradbury Memo stated in its initial paragraph that it had incorporated the Levin

Memo's general 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 land not]

merely mild or transitory." Levin Memo at 12.

expertise, and divergence from the SERE model in the CIA interrogation program.

The 2005 Bradbury Memo stated that

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.

Id. at 41, n.51.

Thus, "assuming adherence to the strict limitations" and "careful medical

monitoring," the 2005 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.

2. The Combined Techniques Memo (May 10, 2005)

The Combined Techniques Memo began by briefly recapping the 2005

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 that it may be used in combination with only two EITs: dietary manipulation

and sleep deprivation. 111

The Combined Techniques Memo noted that the waterboard must be used in combination

with dietary manipulation, "because a fluid diet reduces the risks of the technique." C

Techniques Memo at 16. According to the CIA OMS Guidelines, a liquid diet is impose

- 137 -

The memorandum classified EITs into three categories based cm their

purpose. The first category, referred to as "conditioning techniques" was designed -

"to bring the detainee to 'a baseline, dependent state' . . demonstrat[ing] . 'that

he has no control over basic human needs . . .'" Combined Techniques Memo

at 5 (quoting CIA Background Paper at 5). The EITs included in this category were

forced nudity, sleep deprivation, and dietary manipulation. Id.

Techniques 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.

The 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. at 5-6 (quoting CIA

Background Paper at 7). 112

The memorandum then examined whether the combined use of EITs would

result in severe physical pain, severe physical suffering, or severe mental pain or

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 to violate

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

112 The 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 . . . Article 16 Memo at 15

(quoting CIA OMS Guidelines at 17).

- 138 -

represented would be in place for each interrogation session, and observed that

interrogation team members were required to stop an interrogation if "their

observations indicate a detainee is at risk of experiencing severe physical pain

. ." Id. at 14. The memorandum noted that such procedures were "essential to

our advice." Id. 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.

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 discomfortthat a detainee subjected

to sleep deprivation experiences." After citing two TVPA cases that described

extremely brutal conduct (such as beatings) as torture, the memorandum opined

that "we believe that the combination of techniques in question here would not be

`extreme and outrageous' and thus would not reach the high bar established by

Congress" in the torture statute. Id. at 15.

Noting that sleep deprivation could reduce a subject's tolerance for pain,

and that it might therefore increase physical suffering, the memorandum

observed:

[Y]ou have informed us that the interrogation techniques at issue

would not be used during a course of extended sleep deprivation with

such frequency a_ndintensity as to. induce in the:detainee a persistent

condition of extreme physical distress such as may constitute 'severe

physical suffering' within the meaning of [the torture statute.]

Id. at 16. 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.

With respect to the waterboard, the memorandum pointed to the 2005

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

waterboard," or that it would prolong the distress of being waterboarded, or that

the waterboard 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 not reasonably be considered

specifically intended to cause severe physical suffering within the meaning of the

torture statute. Id. at 16-17.

The memorandum then considered whether the 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 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. " Id. at

19.

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. Id.

Philbin told us that he had two major concerns with the Combined Effects

Memo and that he told the ODAG that he could not agree with its analysis or

conclusion. Philbin said that, as a result of the CIA OIG investigation, significant

new information had become available. Philbin noted in his written response:

For example, it had not been known in 2002 that detainees were kept

in diapers, potentially for days at a time. It had also not been known

that detainees were kept awake by shackling their hands to the

ceiling. . . . Similarly, dietary manipulation and water dousing had

not been described to OLC in 2002 and were not even considered in

the Classified Bybee Memo. All of these factors combined to create

a picture of the interrogation process that was quite different from the

one presented in 2002.

Philbin Response. at 14.

Philbin was also concerned that, under the new reading of the law under the

Levin Memo (OLC's determination that, in referring to "severe physical . . . pain

or suffering," the torture statute was referring to distinct concepts of "pain" or

"suffering," and that if either were inflicted with the necessary intent, a violation

could be established), he could not agree with the Combined Techniques Memo

that the use of all of the specified practices, taken together, would not violate the

statute. Id. at 15. Philbin believed, that the Combined Effects Memo did not

adequately deal with the category of "severe physical suffering." Philbin told OPR:

II] did not think the memo provided a sufficient analysis to conclude

that depriving a person of sleep for days on end while keeping him

shackled to the ceiling in a diaper and at the same time using other

techniques on him would not cross the line into producing "severe

physical suffering."

Id. at 15. Philbin said he recommended to former DAG Comey that Comey should

not concur in the Bradbury Combined Effects Memo.

Former DAG Comey told us that he reviewed and approved the 2005

Bradbury Memo, which found the CIA's proposed use of thirteen EITs, including

forced nudity, extended sleep deprivation, and the waterboard to be lawful, but

that, after he reviewed the Combined Techniques Memo, he argued that the

Combined Techniques Memo 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 techniques on a specific detainee. Comey believed it was irresponsible

to give legal advice about the combined effects of techniques in the abstract.

In an email to ODAG Chief of Staff Chuck Rosenberg dated April 27, 2005,

Comey recounted a meeting on April 27, 2005 with Philbin, Bradbury, and AG

Gonzales in which Corney expressed his concerns about the memorandum.

- 141 -

- 142 -

Comey wrote:

The 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, apparently at the VP's request 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 from Harriet Miers and David Addington to produce

the 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 pressure.) 113

After receiving a new draft of the Combined Techniques 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 to Rosenberg,

lin Bradbury told us that Comey's concern that he was susceptible to pressure because he was

seeking the President's nomination to be AAG of OLC was incorrect. Bradbury asserted that the

President's formal approval of his nomination occurred in early to mid-April 2005, prior to Comey's

email. We were .unable to confirm this date. In addition, we were unable to ascertain if any

pressure was applied to Bradbury prior to the date of his formal nomination.

In the email, Corney also shared .concerns expressed by Philbin about whether the

memorandum's analysis of combined techniques and "severe physical suffering" was adequate.

He wrote that Philbin had told him that Philbin had repeatedly marked up drafts to highlight the

inadequacy of the analysis, only to have his comments ignored. However, Bradbury told us that

Philbin's concerns centered on the Combined Technique Memo's conclusion, identical to that of

the Levin Memo, that "severe physical suffering" was a separate concept from "severe physical

pain." Philbin reportedly urged Bradbury to adopt the more permissive view of the Classified Bybee

Memo, which had concluded that there was no difference between severe physical pain and severe

physical suffering. Bradbury told us that he responded to Philbin's comments by expanding the

discussion of severe physical suffering and by further refining the memorandum's analysis,

although he did not change his ultimate conclusion that 'pain" and "suffering" were distinct

concepts.

Comey stated that Philbin reported back that he had spoken to Bradbury, who

"seemed 'relieved' that [Da] would not be sending out" the memorandum."

Comey also wrote in the April 27 email that the AG had visited the White

House that day and "the AG's instructions were that the second opinion was to be

finalized by Friday, with whatever changes we thought appropriate."

Philbin told OPR that his advice to Gamey that he not concur in the

Combined Effects Memo was "certainly not welcome to the White House or the

OAG." According to Philbin, in November 2004, he had a private conversation

with Addington, who told him that, based on his participation in the withdrawal

of Yoo's NSA opinion and the withdrawal of the Bybee Memo, Addington believed

that Philbin had violated his oath to uphold, protect, and defend the Constitution

of the United States. Addington told Philbin that he would prevent Philbin from

receiving any advancement to another job in the government and that he believed

that it would be better for Philbin to resign immediately- and return to private

practice. 115

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 Combined Techniques Memo. Ullyot had informed Comey that the

memorandum was likely to be issued the next day and that he was aware of

114 Bradbury told us that he mistakenly understood the instruction to mean that a joint

decision had been reached by Gonzales and Comey in consultation with the White House and

possibly the CIA, which would involve only a. short delay in the issuance.of the opinion. According

to Bradbury, when he learned that the instruction came from Carney alone and that Carney

believed the Combined Techniques Memo should not be issued, he did not consider that to be an

acceptable option.

"5 • Philbin told OPR that, in the Summer of 2005, then Solicitor General Paul Clement chose

Philbin to be the Principal Deputy Solicitor General, AG Gonzales had•agreed, and the proposal was

sent to the White House personnel office for approval. According to Philbin, Addington strenuously

objected to Philbin's appointment and Vice President Cheney personally called AG Gonzales to ask

him to reconsider. AG Gonzales agreed and told Philbin that he had decided that Philbin would

not receive the job in order to maintain good relations with the White House. Philbin told OPR that

he told AG Gonzales that he should have defended him, and AG Gonzales responded that Philbin

should resign if he felt that way. Philbin then resigned and returned to private practice.

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Comey's concerns about the prospective nature of the opinion. Conley wrote in

the email to Rosenberg:

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 told him that my job

was to protect,the Department and the AG and that I could not agree

to this because it was wrong. 116

Comey further commented in the email:

Anyhow, that's where we are. It leaves me feeling sad for 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." ?

Comey told us that there was significant pressure on OLC and the

Department from the White House, particularly Vice President Cheney and his

staff. Comey said that no one was ever specific about what end result was

wanted, but that one would have to The an idiot not to know what was wanted."

Gamey said that,' in his opinion, Bradbury knew that."if he rendered an opinion

116 In an April 27, 2005, email to Rosenberg, Comey-stated that the AG had instructed that

whatever changes were appropriate should be made, but that the memorandum had to be issued

by Friday (two days later). Asked if this was an indication that the AG was flexible on the results

of the memorandum, Comey answered that it was not. He stated: "This was a way of giving

process but in a way that foreclosed real input' because time was too short.

117 Comey told us that he wrote the emails to Rosenberg to memorialize what he considered

to be a very important and serious situation. Rosenberg recommended to Comey that he write the

emails in order to have a written record of the matter in the Department computer system.

Pam

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that shut down or hobbled the [interrogation] program," the Vice President and

Addington would be "furious." 118 Carney added that people in the Department

leadership believed that Levin had not "delivered" on the interrogation program

and the result was that Levin was not made OLC AAG. 19

We asked Bradbury about Comey's objections. He told us that he felt OLC

would have been giving incomplete legal advice if it 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.

Bradbury also told us that he neither felt nor received any pressure from the

White House Counsel's Office, the Office of the Vice President, the NSC, the CIA,

or the AG's Office as to the outcorne of his opinions concerning the legality of the

CIA interrogation program. He acknowledged that there was time pressure to

complete the memoranda, and stated that he believed Comey's comments reflect

a confusion between time pressure, which was not at all unusual at OLC, and

pressure to reach a certain result, which he vehemently denied was present.

Bradbury also strongly denied that his nomination as AAG in any way depended

on his finding that the CIA interroga:tion program was lawful. Bradbury added

that, although his nomination was not forwarded to the Senate until June 23,

2005, as noted above, the President had approved his nomination by early to mid-

April 2005.

3. The Article 16 Memo by Bradbury (May 30, 2005)

As 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.

118 Comey Interview, February 24, 2009.

119

Id.

- .145 -

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.

Article 16 of the CAT required each party to the treaty to "undertake to

prevent in any territory under its jurisdiction other acts of cruel, inhuman or

degrading treatment or punishment which do not amount to torture" as defined

under the treaty "when such acts are committed by or at the instigation of or with

the consent or acquiescence of a public official. . . ."

The memorandum began with an overview of the CIA interrogation program

and the guidelines, safeguards, and limitations att d to the use of EITs by the

agency. The interrogations of Abu Zubaydah, KSM, d Al-Nashiri

were briefly described and were 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; the CIA OIG Report; and a faxed

memorandum from DCI Counterterrorist

Center,

The Article 16 Memo concluded, based primarily on the Ef ectiveness Memo, at

the use of EITs had produced critical information, including "specific, actionable

intelligence." Article 16 Memo at 10.

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 that Article

16 does not apply outside United States territory. In addition, 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.

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- 147 -

The Memo concluded that the Eighth and Fourteenth Amendments did not apply

in this context. Thus, the only restraint imposed on CIA interrogators by Article

16, according to the memorandum, was the "Fifth Amendment's prohibition of

executive conduct that 'shocks the conscience.' Article 16 Memo at 2.

The 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 16 Memo at 3 (quoting Lewis, 523 U.S. at 847 n.8).

The Article 16 Memo 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 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 interrogation 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)).

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.'" Id. at 31

(quoting Lewis, 523 U.S. at 849).

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." Id.

(quoting Lewis, 523 U.S. at 847 n.8). 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." Id.

The memorandum looked briefly at several cases in which the U.S. Supreme

Court found that the conduct of police in domestic criminal investigations

"shocked the conscience." See Rochin v. California, 342 U.S. 165 (1952) (police

pumped defendant's stomach to recover 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). Article 16 Memo at 34.

Although acknowledging that some of the Justices in Chavez v. Martinez

"expressed the view that the Constitution categorically prohibits such coercive

interrogations," the memorandum asserted that the CIA's use of EITs "is

considerably less invasive or extreme than much of the conduct at issue in these

cases." Article 16 Memo at 33. 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 solely to prevent foreign terrorist attacks against the United States

and its interests." Id. at 35.

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...." Id. at 36.

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 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 involves techniques and is undertaken in ways that bear

no resemblance to the CIA interrogation program." Id. at 36. The memorandum

also noted that the State Department Reports do not "provide precise descriptions"

of the techniques 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 interests . . ." 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." Id. at 36-37.

As evidence that the use of EITs was "consistent with executive tradition

and practice," the Article 16 Memo cited their use during SERE training. The

memorandum acknowledged the significant differences between SERE training

and the CIA interrogation program, but balanced those differences against the

fact that the CIA program furthered the "paramount interest of the. United States

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 interrogation program did not

"shock the contemporary conscience." Id. at 37-38.

In its final pages, the Article 16 Memo cautioned that, because of "the

relative paucity of Supreme Court precedent" and the "context-specific, factdependent,

and somewhat subjective nature of the inquiry," it was possible that

- 149 -

- 150 -

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 "teritory under

[United States] jurisdiction," and that it is not authorized for use

against United States persons. 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 inqi

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.

Id. at 39-40.

According to Bradbury, the Article 16 Memo was reviewed by the offices of

the Attorney General and the Deputy Attorney General, the State Department, the

NSC, CIA, and the White House Counsel's Office. Carney told us that, although

he reviewed the 2005 Bradbury Memo and the Combined Techniques Memo, 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." Levin stated that he gave Bradbury specific

comments on the draft, but that he did not remember seeing a final version.

However, Bradbury remembered providing a final copy of the opinion to Levin, and

told us that, although Levin commented that the CIA interrogation program raised

a difficult issue under the substantive Fifth Amendment standard if the same

standard were to apply to United States citizens within the United States, he did

not tell Bradbury that he thought the opinion was wrong. 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."

Bellinger told us that, although he did in fact defer to OLC's legal analysis, the

Article 16 Memo was a turning point for him. The memo's conclusion that the use

of the thirteen EITs - including forced nudity, sleep deprivation and waterboarding

- did not violate CAT Article 16 was so contrary to the commonly held

understanding of the treaty that he concluded that the memorandum had been

"written backwards" to accommodate a desired result.

4. The 2007 Bradbury Memo

a. Background

In late Fall 2005, congressional efforts to legislate against the abuses that

had taken place at Iraq's Abu Ghraib prison intensified. By that time, NSC

Advisor Stephen Hadley and NSC attorney Brad Wiegman were negotiating with

the Senate over the terms of what would eventually become the Detainee

Treatment Act of 2005 (DTA).'' Bradbury did not participate directly in those

negotiations, but advised Wiegman on proposed statutory language.

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.

Bradbury told us that he believed the CIA was also, involved in the

negotiations with Congress, and that agency representatives may have talked

directly to one of the sponsors, Senator John McCain. Although Bradbury was

not involved in any of the talks with Senator McCain, he told us that it was his

understanding that the CIA removed waterboarding from the list of EITs sometime

after those discussions.'

120 Detainee Treatment Act of 2005, Pub.L. No. 109-148, 119 Stat. 2739 (2005) (codified at 42

U.S.C. § 2000dd). 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 reportedly took over the negotiations.

121 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 Advisor Stephen Hadley in late 2006, during negotiations over the

Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006) (codified in part at

28 U.S.C. § 2241 & note).

ar

- 151 -

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

administration did gain a provision acknowledging that the advice of counsel

defense was available to interrogators, but according to Bradbury, that was simply

a restatement of existing case law.

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.orpunishment prohibited bythe Fifth, Eighth,

and Fourteenth Amendments to the United States Constitution." 42 U.S.C. §

2000dd.

Those seven EITs were • forced nudity, dietary manipulation, extended sleep

deprivation, the facial hold, the attention grasp, the abdominal slap, and the

insult slap.

On June 29, 2006, while Bradbury was drafting an opinion on the use of

the EITs, the U.S. Supreme Court handed down its decision in Hamdan v.

Rumsfeld, holding, among other things, that Common Article 3 of the Geneva

Conventions applied to "unlawful enemy combatants" held by the United States

government. Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (overturning the opinion

of the United States Court of Appeals for the D.C. Circuit by a 5-4 vote). 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

- 153 -

to captured members of al Qaeda. 122 After Hamdan, it was clear that the

prohibitions of Common Article 3, including certain specific acts of mistreatment

and "folutrages 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.

According to Bradbury, officials from the Departments of State, Defense,

and Justice 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 enacted to address the

application of Common Article 3 and the War Crimes Act to the CIA interrogation

program.

An interagency effort was immediately launched to draft what would

eventually become the Military Commissions Act (MCA) of 2006. The process went

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.

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.

The MCA was signed into law on October 17, 2006. It included provisions

designed to remove the legal barriers to the CIA program that had been created

by the DTA and Hamdan.

The MCA amended the War Crimes Act by limiting the type of abusive

treatment that 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,

122 In addition, the Court held that the military commissions established by the President to

try captured at Qaeda terrorists were unlawful.

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. 123 In addition, the MCA specified that the President

had the authority to interpret the applicability 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.

The MCA included one additional prohibition, against "cruel, inhuman or

degrading treatment or punishment," defined as "cruel, unusual, and inhumane

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, inhumane, 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.

b. The 2007 Memo

After the MCA was enacted, Bradbury continued working., on his

memorandum on the legality of the revised interrogation program, consisting of

six EITs, that 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.

123 Thus, "outrages upon personal dignity, in particular humiliating and degrading treatment"

no longer constituted war crimes as a separate category. 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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On February 9, 2007, John Bellinger, then Legal Adviser to Secretary of

State Condoleezza Rice, sent Bradbury an 11-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

relevance of domestic law to support controversial

conclusions"; Bellinger Letter at 1-2.

• 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; Id. at 2-3.

The legislative history of the MCA included statements that

suggested a bipartisan consensus that nudity and sleep

deprivation constituted grave breaches of Common Article 3;

Id. at 5.

• 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;

Id. at 6.

• 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"; Id. at 7.

• 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"; Id. at 10.

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The 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.

Id. at 11.

Bradbury responded on February 16, 2007, with a 16-page 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

addressed Bellinger's comments in detail, and rejected almost all of them,

including his criticism of forced nudity and extended sleep deprivation.

Bradbury's memorandum was issued on July 20, 2007, contemporaneously

with President Bush's executive order holding that the CIA's detention and

interrogation program was in compliance with Common Article 3 of the Geneva

Convention. 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 of the Geneva Convention. After

79 pages of analysis, relying in part on the reasoning and conclusions of the 2005

Bradbury Memo, the Combined Techniques Memo, and the Article 16 Memo, the

2007 Bradbury Memo concluded that the use of the six EITs in question did not

violate the DTA, the War Crimes Adt, or Common Article 3.

In concluding that the six 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." 124 2007 Bradbury Memo at 30-31.

On April 12, 2007, and again on August 2, 2007, Bradbury testified before

the Senate Select Committee on Intelligence (SSCI) 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 Crimes 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," meaning whether it is justifiable

by the government interest involved. Bradbury emphasized that, with regard to

the CIA interrogation program, the government interest was of the "highest order."

Bradbury April 12, 2007 SSCI Testimony at 2-3.

Bradbury testified that the War Crimes Act differed from the torture statute

because, although the torture statute prohibited "prolonged mental harm," the

War Crimes Act prohibits only "serious and non-transitory mental harm (which

need not be prolonged.)"•d. 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.

124 The 2007 Bradbury Memo again cited the CIA Effectiveness Memo to support its conclusion

that the use of EITs was not arbitrary. 2007 Bradbury Memo at 31.

- 159 -

Finally, Bradbury explained that, consistent with the views of international

tribunals, 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." Id. Instead, to violate

Common Article 3, humiliating and degrading treatment must rise to the leVel of

an "outrage upon personal dignity." Id.

Bradbury prepared a four-page set of "Points Regarding Specific Enhanced

Interrogation Techniques" for his testimony, summarizing OLC's analysis and

findings regarding specific interrogation techniques under the new legal

standards. The talking points outlined OLC's reasons for concluding that nudity,

sleep deprivation, and dietary manipulation were permissible techniques under

the torture statute, the War Crimes Act, and Common Article 3.

III. ANALYSIS

A. The Bybee Memo's Flaws Consistently Favored a Permissive View

of the Torture Statute 125

Because the withdrawal of two OLC opinions - the Bybee and Yoo Memos

- by the same administration within such a short time was highly unusual, and

because of the criticisms leveled at them by the OLC attorneys who withdrew and

amended them, we initially focused on those two memoranda and on the sections

of those memoranda that were set aside or modified by the Department in 2004.

We found the withdrawal of certain arguments and conclusions of law by the

Department 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.

As discussed in the following sections, we found errors, omissions,

misstatements, and illogical conclusions in the Bybee Memo. Although some of

those flaws were more serious than others, they tended to support a view of the

125 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 significant errors in the Yoo Memo's legal analysis, which we

have described earlier in this report.

torture statute that allowed the CIA interrogation program to go forward, and their

cumulative effect compromised the thoroughness, objectivity, and candor of OLC's

legal advice. We discuss below several areas of the Bybee Memo that, when

viewed together, support our conclusion that the Yoo and Bybee Memos did' not

represent thorough, objective, and candid legal advice.

We did not attempt to determine and did not base our findings on whether

the Bybee and Yoo Memos arrived at a correct result. Thus, the fact that other

OLC attorneys subsequently concluded that the CIA's use of EITs was lawful was

not relevant to our analysis. Rather, we limited our review to whether the legal

analysis and advice set forth in the Bybee and Yoo Memos were consistent with

applicable professional standards.

Our view that the memoranda were seriously deficient was consistent with

comments made by some of the former Department officials we interviewed, even

though those individuals would not necessarily agree with some of our findings

in this matter. Levin stated that when he first read the Bybee Memo, "fI had the

same reaction I think everybody who reads it has — 'this is insane, who wrote

this?"' Jack Goldsmith found that the memoranda were "riddled with error,"

concluded that key portions were "plainly wrong," and characterized them as a

"one-sided effort to eliminate any hurdles posed by the torture law." 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. Mukasey

acknowledged that the Bybee Memo was "a slovenly mistake," even though he

urged us not to find misconduct.

1. Specific Intent

We found that OLC's advice concerning the specific intent element of the

torture statute was incomplete in that it failed to note the ambiguity and

complexity of this area of the law. We also found that, notwithstanding certain

qualifications included in the Bybee Memo and the Yoo Memo, OLC's advice

erroneously suggested that an interrogator who inflicted severe physical or mental

pain or suffering on an individual would not violate the torture statute if he acted

with the goal or purpose of obtaining information.

We based our conclusions on the totality of OLC's legal advice to the CIA on

this subject, including the legal analysis of the Bybee.Memo, the Classified Bybee

Memo, Yoo's July 13, 2002 letter to John Rizzo on the elements of the torture

statute, and the June 2003 CIA bullet its that were drafted in part and

reviewed in their entirety by Yoo and We also based our conclusion on

the contemporaneous interpretation of the advice by the CIA, and by Department

of Justice lawyers who later reviewed it in 2004.

When the Bybee Memo was issued a few weeks later, it included a more

extensive discussion of the specific intent element. The memorandum's

conclusion.s were based primarily upon United States v. Carter, 530 U.S. 255

(2000), in which the Court explained the difference between general and specific

intent through the example of a person who robs a bank not intending to keep the

money, but in order to be arrested and returned to prison, where he could be

treated for alcoholism. In that example, the Court explained, the defendant would

have only had general intent because he did not intend to permanently deprive the

bank of its money. Based on Carter, the Bybee Memo concluded that, in theory,

"-knowledge alone that a particular result is certain to occur does not constitute

specific intent." Bybee Memo at 4.

The Bybee Memo also cited United States v. Bailey, 444 U.S. 394 (1980), in

which the Court noted that the law of homicide distinguishes between a person

who knows that someone will be killed as a result of his conduct and a person

who acts with the specific purpose of taking another's life. Turning to another

Supreme Court case, Vacco v. Quill, 521 U.S. 793 (1997), where the Court

considered whether a law barring assisted suicide was constitutional, the Bybee

Memo quoted the following excerpt from the Court's discussion of the difference

between assisted suicide and the withdrawal of life-sustaining treatment: "the law

distinguishes actions taken 'because of a given end from actions - taken 'in spite

of their unintended but foreseen consequences." Bybee Memo at 4 (quoting Vacco

at 802-03). Based on those sources, the Bybee Memo concluded:

Thus, even if the defendant knows that severe pain will result from

his actions, if causing such harm is not his objective, he lacks the

requisite specific intent even though the defendant did not act in good

126 The letter closed with: lads you know, our office is in the course of finalizing a more

detailed memorandum opinion analyzing se 'on 2340. We look forward to working with you as

we finish that project. Please contact me or if you have any further questions."

faith. Instead, a defendant is guilty of torture only if he acts with the

express purpose of inflicting severe pain or suffering on a person

within his custody or physical control.

Bybee Memo at 4. The memo noted that, notwithstanding the above, a jury could

infer from factual circumstances that a defendant had specific intent to do an act.

The Bybee Memo then stated that "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. . . . Where a defendant acts in good faith, he

acts with an honest belief that he has not engaged in the proscribed conduct.. .

. A good faith belief need not be a reasonable one." Id. at 4-5 (citations omitted).

Again, the memo noted that, as a practical matter, a jury would be unlikely to

acquit where a. defendant held an unreasonable belief, and that "a good faith

defense will prove more compelling when a reasonable basis exists for the

defendant's belief." Id. at 5.

The Classified Bybee Memo . summarized the specific intent element of the

torture statute as follows:

As we previously opined, to have the required specific intent, an

individual must expressly intend to cause such severe pain or

suffering. We have further found that if a defendant acts with the

good faith belief that his actions will not cause such suffering, he has

not acted with specific intent. A defendant acts in good faith when he

has an honest belief that his actions will not result in severe pain or

suffering. Although an honest belief need•not.be reasonable, such a

belief is easier to establish where there is a reasonable basis for it.

Good faith may be established by, among other things, the reliance

on the advice of experts.

Classified Bybee Memo at 16 (citation to Bybee Memo and citations to cases

omitted).

The memorandum continued: "Based on the information you have provided

us, we believe that those carrying out these procedures would not have the

specific intent to inflict severe physical pain or suffering. The objective of these

techniques is not to cause severe physical pain." Id.

The Classified Bybee Memo also summarized some of the information

provided to OLC by the CIA concerning the medical supervision and monitoring

of interrogation, the views of experts about the effects of EITs, the experience of

SERE training, and the CIA's review of relevant professional literature. In the

context of severe mental pain or suffering, it offered the following legal advice:

As we indicated above, a good faith belief can negate [specific intent].

Accordingly, if an individual conducting the interrogation has a good

faith belief that the procedures he will apply, separately or together,

would not result in prolonged mental harm, that individual lacks the

requisite specific intent. This conclusion concerning specific intent

is further bolstered by the due diligence that has been conducted

concerning the effects of these interrogation procedures.

Classified Bybee Memo at 17.

In conclusion, the Classified Bybee Memo restated its findings on specific

intent as follows:

Reliance on this information about Zubaydah and about the . effect of

the use of these techniques more generally demonstrates the

presence of a good faith belief that no prolonged mental harm will

result from using these methods in the interrogation of Zubaydah.

Moreover, we think that this represents not only an honest belief but

also a reasonable belief based on the information that you have

supplied to us. Thus, we believe that the specific intent to inflict

prolonged mental [sic' is not present, and conseqUently, there is no

specific intent to inflict severe mental pain or suffering. Accordingly,

we conclude that on the facts in this case the use of these methods

separately or [sic] a course of conduct would not violate [the torture

statute].

Classified Bybee Memo at 18.

The June 2 3 CIA Bullet Points, which were drafted in part and reviewed

in'their entirety by d Yoo, included the following regarding the negation

of specific intent by goo aith:

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.

The CIA Bullet Points do not mention the one qualification to the good faith

defense cited in the Bybee Memo - that although a good faith belief need not be

reasonable, the defense is "more compelling" when it is reasonable.

In his OPR interview, Yoo stated that he relied on for the specific

intent section of the Bybee Memo, and that he only "looked at the cases quickly!'

His sense at the time was "that the Supreme Court's doctrine in the. area [was]

messed up," and that the Carter case was "confusing." He asked "to try

to take those cases and try to figure out what, you know, from reading that, those

cases which seemed not very clear, what the law really is on specific intent at that

time."

Yoo also discussed the issue with Chertoff and with persons outside of

government who had expertise in criminal law. According to Yoo, they told him

"that they thought the specific intent standard, this idea of specific intent was

awfully confused, and it was kind of a we-know-it-when-we-see-it kind of thing."

This was the first time Yoo had ever dealt with the question of specific intent, and

he "was very surprised to see that the Supreme Court cases were so confused

about it." He also remembered reading a law review article or treatise, possibly

LaFave & Scott, that discussed "how they're not sure what the exact definition of

specific intent is."

We asked Yoo about criticism that the Bybee Memo could be interpreted as

saying that if an interrogator's motive was to obtain information, rather than to

inflict pain, he would not have the necessary specific intent to violate the torture

statute. 127 We pointed to the following sentence from the Bybee Memo:

Thus, even if the defendant knows that severe pain will result from

his actions, if causing such harm is not his objective, he lacks the

requisite specific intent even though the defendant did not act in good

faith.

Bybee Memo at 4.

Yoo told us that he remembered discussing this point withMand that

he thought the sentence was included to answer the question, "what if someone

causes severe pain, but wasn't trying.to cause severe pain when they were doing

the interrogation." He conceded that "the sentence is just not clear" and that it

did not address that issue; but explained that the next sentence in the Bybee

Memo ("Instead, a defendant is guilty of torture only if he acts with the express

purpose of inflicting severe pain or suffering on a person within his custody or

physical control") clarified what they intended to say because "it says, a defendant

is guilty only if he acts with the express purpose of inflicting severe pain or

suffering on the person." 128 Yoo also included qualifying language that made it

clear that notwithstanding legal theory, as a practical matter a jury could infer

specific intent from a defendant's actions.

127 See, e.g., Andrew C. McCarthy, A Manufactured Scandal, National Review Online, June 25,

2004, http:/ /ww-w.nationalreview.combnccarthy/mccarthy200406250856.asp ("the 'specific

objective' qualification (in the Bybee Memo] seems especially unworthy, conflating the separate

legal (and common sense) issues of intent and motive").

128 In light of the sentence that preceded it, it was not apparent to us how this sentence

clarified what Yoo told us he intended to say— that there is a difference between acting with the

express purpose of inflicting severe pain or suffering on the person" and "accidentally causing the

pain."

- 167 -

We asked current and former Department attorneys about this section of

the Bybee Memo. Levin told us that he thought the Bybee Memo's analysis on this

point was wrong because:

it sort of suggested that if I hit you on the head with a, you know,

steel 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

pain, I'm not violating the statute. I think that's just ridiculous...

It's just not the law. I mean, as far as I can tell, it's just not the law.

Accordingly, the Levin Memo stated explicitly 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, 200-01

(1991)).

Philbin told us that he:

did not agree with part of the specific intent analysis to the extent it

could be read to suggest that, if an interrogator caused someone

severe pain, but did so with the intent of eliciting information, that

would somehow eliminate the intent to cause severe pain. Mr.

Philbin thought that such reasoning was incorrect. . . . Mr. Philbin

believes he informed Jay Bybee that he did not agree with this aspect

of the specific intent analysis, but he explained that he considered it

unnecessary dicta because none of the conclusions in the Classified

Bybee Memo turned on it.

Philbin Response at 8-9.

The OLC Attorney assigned to review and redraft the Bybee Memo

in June 2004 also concluded that the specific intent discussion could be read as

- 169 -

conflating intent and motive, as evidenced by the following email comment to

Philbin on June 20, 2004:

The way the section reads now, you're left wondering whether

someone could ever be charged under the statute if the purpose of

the acts was to gather information.

The same OLC attorney commented a few days later to Goldsmith:

One particular area that I wanted to [draw] your attention to is the

requirement of specific intent_ I have added a paragraph cautioning

that you can be liable under the statute if you specifically intend to

cause severe harm even if the intent to cause harm is not your only

intention or ultimate motivation. The way it reads now makes you

wonder whether this is just an anti-sadism statute.

Based on the above comments, and based on our reading of the Bybee

Memo, we concluded that the memorandum erroneously suggested that an

interrogator who inflicted severe physical or mental pain or suffering on an

individual would not violate the torture statute if he acted with the goal or purpose

of obtaining information.

We also concluded, based on our review of the Bybee Memo, that its

erroneous view was supported by an over-simplification of this difficult area of the

law. As the Levin Memo observed, "[i]t is well recognized that the tend' 'specific

intent' is ambiguous and that the courts do not use it consistently." Levin Memo

at 16 (citing 1 Wayne R. LaFave, Substantive Criminal Law 5.2(e), at 355 86 n.79

(2d ed. 2003)). The Levin Memo 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-

17.

The 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 crim-e" and that the distinction between specific and general intent "has

been the source of a good deal of confusion" Id. at 403. 129

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] and eschew use of difficult legal concepts like 'specific intent' and

`general intent."' Liparota v. United States, 471 U.S. 419, 433 n.16 (1985).

The Bailey Court noted, "the ambiguous and elastic term 'intent' [has tended

to be replaced] with a hierarchy of culpable states of mind . . . , commonly

identified, in descending order of culpability, as purpose, knowledge, recklessness,

and negligence." Bailey, 444 U.S..- at 403-04 (citing W. LaFave & A. Scott,

Handbook on Criminal Law 194 (1972) and American Law Institute, Model Penal

Code § 2.02 (Prop. Off. Draft 1962)).

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

The Court quoted the following passage from LaFaye & Scott's treatise on criminal law:

Sometimes "general intent" is used in the same way as "criminal intent" to mean

the general notion of mens rea, while "specific intent" is taken to mean the mental

state required for a particular 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 intent"

will be used to characterize an intent , to do something on an undetermined

occasion, and "specific intent" to denote an intent to do that thing at a particular

time and place.

Bailey,

444 U.S. at 403 (quoting W. LaFave & A. Scott, Handbook on Criminal Law § 28, 201-02

(1972)).

129

- 170 -

- 171 -

found that "Et]he specific intent required ... includes reckless disregard for ,the

interests of the plan." United States v. Krimsky, 230 F.3d 855 860-61 (6 th Cir.

2000) (emphasis added). See United States v. Woods, 877 F.2d 477, 480 (6 th

Cir.1989) (specific intent in cases involving wilful misaplication 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).

As noted above, Yoo acknowledged in his OPR interview that the law in this

area was "confusing" and "messed up," but that he "looked at the cases quickly"

and was willing to rely upon a relatively inexperienced, junior OLC attorney to "try

to figure out . . . what the law really is on specific intent . . . ."

Some of the Bybee Memo's analysis was oversimplified to the point of being

misleading. The first paragraph of the Bybee Memo's discussion of specific intent

cited Ratzlaf v. United States, 510 U.S. 135 (1994), as an example of what was

required to show specific intent:

For example, in Ratzlaf , the statute at issue was construed to

require that the defendant act with the "specific intent to commit the

crime." (Internal quotation marks and citation omitted.) As a result,

the defendant had to act with the express "purpose to disobey the

law" in order for the mens rea element to be satisfied... .

Bybee Memo at 3 (citing and-quoting Ratzlaf, 510 U.S. at 141). The Bybee Memo

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.

However, the Ratzlaf decision did not address the meaning of "specific

intent" in a general sense. 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, 510 U.S. at 136-37 and 141-49. 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).

Yoo has argued that Ratzlaf was used properly "as an example of a statute

that was construed to require specific intent [because] the willfulness requirement

at issue in Ratzlaf is, in fact, a specific intent requirement." Yoo Response at 29

n.15 (emphasis in original). However, although "willfulness" can be characterized

as a form of specific intent, specific intent to inflict severe pain or suffering has

nothing to do with "willfulness." Rather, "willfulness" "‘carv[es] out an exception

to the traditional rule' that ignorance of the law is no excuse." Bryan u. United

States, 524 U.S. 184, 195 (1998). Thus, a statute that specifies a defendant must .

act "willfully" "require[s] that the defendant have knowledge of the law" he is

charged with violating. Id. As used in Ratzlaf and other cases involving highly

technical tax or currency regulations, "willfulness" is considered a "heightened

mens rea" standard, even compared to the way "willfulness" is applied in other,

less complex statutes. Id. at 194-195, 195 n.17.

In his response to OPR, Bybee similarly characterized the "willfulness"

requirement of Ratzlaf as "a specific intent to violate the currency structuring

law." Thus, he argued, the Bybee Memo's statement that the defendant in Ratzlaf

"had to act with the express 'purpose to disobey the law' in order for the mens rea

element to be satisfied" was accurate in a literal sense because "the law" in that

sentence referred to the currency structuring law. Bybee claimed that, because

the Bybee Memo did not "seek to extend Ratzlaf to other statutory regimes," and

because the memorandum did not say elsewhere that the torture statute requires

a defendant to act with a specific intent to violate the law, the citation to Ratzlaf

was proper.

However, Ratzlaf was cited in a section of the Bybee Memo devoted to the

elements of the torture statute, in a paragraph that began by noting that "[the

torture] statute requires that severe pain and suffering must be inflicted with

specific intent," and which proposed a general definition of "specific intent,"

relying on Carter and Black's Law Dictionary. Ratzlaf was cited in that same

paragraph as an example of how the Supreme Court had construed specific intent,

and the Bybee Memo did not identify or describe the "statute at issue" in that

case. Based on that context, we concluded that the Bybee Memo misleadingly

suggested that, in order to violate the torture statute, a defendant would have to

act with a "purpose to disobey the law."' 3°

This was stated more explicitly in the July 28, 2002 draft of the Bybee

Memo, which concluded the discussion of Ratzlaf quoted above with the following

comment:

In other words, the intent to achieve the actus reus of a crime is not

sufficient to satisfy a specific intent standard, but rather a defendant

must have knowledge of the legal prohibition established by the

criminal statute and the purpose to violate that prohibition.

July 28, 2002 draft at 3 (citation to Ratzlaf omitted) (emphasis in original). As a

general statement of the law, this was clearly wrong, and was deleted from the

final draft. However, as the introductory phrase "in other words" signifies, it

represented a restatement of the memorandum's preceding analysis, which

remained unchanged in the final draft.

We also found that the Bybee Memo's discussion of a potential good faith

defense to violations of the torture statute was incomplete. 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, but cautioned that

a jury would be unlikely to acquit a defendant on the basis of an 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 defendant's belief." Id.

130 If the Bybee Memo had disclosed that Ratzlaf construed a currency structuring statute that

required a showing of "willfulness," a form of specific intent that requires proof of the defendant's

knowledge of the law he is accused of violating, the citation would not have been misleading, but

the case's relevance to the torture statute, which does not include an element of willfulness, would

have been hard to discern.

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 limited to fraud or tax

prosecutions. See Kevin F. O'Malley, Jay E. Grenig & Hon. William C. Lee, Federal

Jury Practice and Instructions § 19.06 (5 th ed. 2000 & 2007 Supp.) (Federal Jury

Instructions)("The defense of good faith is discussed in the context of mail, wire,

and bank fraud, and in tax prosecutions, infra."). 131 The Bybee Memo did not

address the possibility that a court might refuse to extend the good faith defense

to a crime of violence such as torture.

The availability of good faith as a defense to torture is not a foregone

conclusion. 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 the defendant had failed to

demonstrate that he was entitled.to the defense and that "[s]uch 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.

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 eviderice supported inference that

they "consciously chose to remain ignorant . about the extent- of their criminal

behavior"); United States v. Duncan, 850 F.2d 1104, 1118 (6th Cir. 1988) (reversing

for failure to give requested instruction but observing that the trial court could

have instructed the jury "on the adverse effect 'willful blindness' must have on a

good faith defense to criminal intent"). Thus, a CIA interrogator who argued that

131 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. In his response to OPR, Bybee stated that the Bybee

Memo "openly disclosed that most of its cited cases were in the context of mail fraud.' In fact, the

Bybee Memo only disclosed that one of the three cases was decided "in the context of mail fraud?

his good faith belief in the benign effect of EITs negated the specific intent to

torture could have faced a challenge to his defense on willful blindness grounds.

In his comments on a draft of this report, Yoo argued that our criticism was

unfounded because the Third Circuit, in Pierre v. Attorney General, 528 F.3d 180,

190 (3d Cir. 2008) (en Banc) ruled, in interpreting the CAT specific intent

requirement in the context of an immigration matter, that willful blindness can be

used to establish knowledge but not specific intent. However, we did not assert

that the government could establish a defendant's specific intent through .a willful

blindness theory. We stated that a willful blindness instruction might be granted

under some circumstances to counter a defendant's claim that he held a goad

faith belief - based on knowledge obtained from the CIA - that the use of EITs

would not result in the infliction of severe mental or physical pain or suffering.

Moreover, Pierre was decided long after the Bybee Memo was issued, and has no

bearing on whether its authors presented a thorough view of the law at that

time. 132

Bybee stated that it was reasonable for him to assume that at least one of

the memorandum's recipients, Alberto Gonzales, a former judge on the Texas

Supreme Court, was aware of the willful blindness instruction, "since it is a

standard doctrine in the law." Nevertheless, a thorough, objective, and candid

discussion of a possible good faith defense to torture would have analyzed possible

problems with the defense.

The cursory qualifications contained in the Bybee Memo - that, as a

practical matter, a jury could infer specific intent from factual circumstances or

would be unlikely to acquit a defendant who.held an unreasonable belief that he

acted in good faith - were insufficient to counteract the incomplete analysis and

erroneous implications of the Bybee Memo's analysis. Moreover, OLC's advice to

the CIA on specific intent and good faith was not limited to the Bybee Memo. In

the Yoo Letter, the Classified Bybee Memo, and the CIA Bullet Points, OLC

132 Similarly, although Pierre and other appellate cases decided after issuance of the Bybee and

Yoo Memos have narrowly interpreted specific intent as it applies to CAT Article 3 immigration

matters, those cases are not relevant to whether the OLC attorneys presented a thorough,

objective, and candid analysis of the law in 2002 and 2003.

presented an unqualified, oversimplified view of the law without acknowledging

potential problems.

2. Severe Pain

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. 133

The Bybee Memo began its discussion of-"severe pain" by noting that the

torture statute only applied to the infliction of pain or suffering that was "severe."

It quoted several dictionary definitions of "severe" and concluded that "the

adjective 'severe' conveys that the pain or suffering must be of such a high level

of intensity that the pain is difficult for the subject to endure." Bybee Memo at 5.

The Bybee Memo went on to state that "Congress's use of the phrase 'severe

pain' elsewhere in the United States Code can shed more light on its meaning. . . .

Significantly, the phrase 'severe pain' appears in statutes defining an emergency

medical condition for the purpose of providing health benefits." Id. (citation

omitted). The memorandum then cited several nearly identical statutes that

defined the term "emergency medical condition" and quoted from one of them as

follows:

[An emergency medical condition is one 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

133 Various commentators described the definition as: 'absurd," David Luban, Liberalism,

Torture, and the Ticking Bomb, in The Torture Debate in America 58, (Karen J. Greenberg ed.,

2006); based on "strained logic," 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. & Pol'y 409, 434 (2005); or "bizarre," Kathleen Clark, Ethical Issues Raised by the OLC Torture

Memo, 1 J. Nat'l Security L. & Pol'y 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.").

medical attention to result in — (1) 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.C. § 1395w-22(d)(3)(B)) (emphasis

added in Bybee Memo).

The discussion concluded with the statement that "'severe pain,' as used in

[the torture 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. The Bybee Memo restated that

conclusion several times, with slight variations:

• In 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,

iriipairment of bodily function, or even death");

• 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");

• In the introduction to Part IV at page 27 (torture is "extreme

conduct, resulting in pain that is of an intensity. often

accompanying serious physical injury"); and

• 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").

We found several problems with the Bybee Memo's analysis. In the first

place, the medical benefits statutes in question do not associate severe pain with

"death," "organ failure," or "permanent damage." The language used by Congress

was "serious jeopardy," "serious impairment of bodily functions," and "serious

dysfunction of any bodily organ or part." We asked Yoo why OLC changed the

words of the statute. He offered the following explanation:

I don't think that was an effort to try to change it. I think that was

just an effort to, you know, sort of paraphrase what the statutory

language was. . . I don't think there was anything, any effort to

make it a different or higher standard.

We noted, however, that the words chosen to paraphrase the statute tended

to heighten the severity of the listed consequences. In the Bybee Memo, "serious

jeopardy" became "death," "serious dysfunction of any bodily organ" became

"organ failure," and "serious impairment of bodily functions" became "permanent

damage." Thus, we concluded that, contrary to Yoo's denial, the reason the

authors of the Bybee Memo rephrased the language of the statutes was to add

further support to their "aggressive" interpretation of the torture statute.

Second, the benefits statutes do not define or even describe "severe pain."

They simply cite severe pain as one of an unspecified number of symptoms that

would lead a prudent layperson to believe that serious health consequences are

likely to result from a failure to provide immediate medical attention.

Finally, the Bybee Memo's use of the medical benefits statutes was illogical.

When we asked Yoo to describe the pain of death, he replied, "Well, I think I

assume that's very painful, but I don't know." We concluded that the intensity

of pain that accompanies organ failure or death has no commonly understood

meaning and had no practical value in explaining the meaning of "severe pain."

Levin told us that, although he thought it was reasonable for the authors

of the Bybee Memo to look to other statutes for the meaning of "severe pain," their

use of the health benefits statutes "just didn't make sense." The Levin Memo

specifically rejected the Bybee Memo's analysis, stating, "We do not believe that

[the medical benefits statutes] provide a proper guide for interpreting 'severe pain'

in the very different context of the prohibition against torture in sections 2340-

2340A." Levin Memo at n..17.

Philbin defended the legal reasoning behind the use of the medical benefits

statutes, but told us that he advised Yoo against including the argument in the

Bybee Memo. In his. OPR interview, Philbin stated that his "practical lawyer's

instinct" told him that "optically," it was better not to use the "kind of gruesome

language" of the Bybee Memo to describe the consequences of severe pain. He

also stated that the memorandum's characterization of severe pain was "not very

accurate, not very helpful." In written comments on a draft of this report, Philbin

stated that he "did not think the terms of the medical benefit statutes actually

provided useful, concrete guidance concerning what amounts to 'severe pain'

[because] there is no readily identifiable level of pain that precedes medical events

such as 'organ failure.."' Philbin Response at 8.

Similarly, Bradbury told us that the Bybee Memo's analogy of pain

equivalent to organ failure or death "is fairly meaningleSs" because there are many

forms of death and organ failure that are not associated with pain.

Goldsmith commented as follows on the Bybee Memo's analysis of "severe

pain":

It is appropriate, when trying to figure out the meaning of words in

a statute, to see how the same words are defined or used in similar

contexts. But the health .benefit statute's use of "severe pain" had no

relationship whatsoever to the torture statute. And even if it did, the

health benefit statute did not define "severe pain." ... It is very hard

to say in the abstract what the phrase "severe pain" means, but

OLC's clumsy definitional arbitrage didn't seem even in the ballpark.

Goldsmith, The Terror Presidency at 145.

In Goldsmith's and Bradbury's draft revisions to the Yoo Memo, they

described the use of the medical benefits statutes as:

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.

The Bybee Memo's definition could be interpreted as advising interrogators

that they may legally inflict pain up to the point of organ failure, death,-or serious

physical injury. 1' Indeed, as discussed above, 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 fmal drafts, the authors 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 that

pain could be inflicted as long as no injury resulted.

•

Bybee has asserted that "no rational interrogator" could interpret the Bybee

Memo as advising that he could "legally inflict pain up to the point of organ

failure, death, or serious physical injury." Yoo argued that the advice was

"written to guide a very small and quite sophisticated legal audience, not for any

`interrogators' in the field . . ." In light of those comments, it is worth noting that

114 See, e.g., Andrew C. McCarthy, A Manufactured Scandal, National Review Online, June 25,

2004, (to "equate 'severe physical pain' with pain 'like that accompanying death . . .' would suggest

that any pain which is not life-threatening cannot be torture").

- 181 -

The only legal authority cited by the Bybee Memo to justify its use of the

medical benefits statute was West Virginia University Hospitals, Inc. v. Casey, 499

U.S. 83 (1991), cited after the statement, "Congress's use of the phrase 'severe

pain' elsewhere in the United States Code . can shed more light on its meaning [in

the torture statute]." Casey appears to have been inserted in response to Yoo's

comment, on the June 26, 2002 draft, that they should "cite and quote S.Ct. for

this proposition." The following language from Casey was quoted in a

parenthetical:

[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.' s

Casey, 499 U.S. at 100 (citing 2 J. Sutherland, Statutory Construction § 5201 (3d

ed. 1943) (discussing the in pari materia doctrine of statutory construction). 136

135 The quoted excerpt omitted a qUalifying introductory phrase, Where a statutory term

presented to us for the first time is ambiguous,. we construe . . ." Casey, 499 U.S. at 100.

(emphasis added). Thus, the Bybee Memo should have demonstrated that the term "severe pain"

was ambiguous before turning to other statutory sources. See, e.g., Robinson v. Shell Oil Co., 519

U.S. 337, 340 (1999) (first step in interpreting a statute is to determine whether the language at

issue has a plain and unambiguous meaning, and the inquiry must cease if the statutory language

is unambiguous and the statutory scheme is coherent and consistent).

One way of establishing that "severe pain" was ambiguous would have been to cite

inconsistent definitions. See MCI v. ATT, 512 U.S. 218, 227 (1994) ("Most cases o•verbal ambiguity

in statutes involve ... a selection between accepted alternative meanings shown as such by many

dictionaries."). In Casey, the Court assessed the meaning of a statute's attorney's fees provision

by turning to similar provisions in other statutes and by reviewing some of the prior judicial

decisions that had interpreted those provisions. The Court found that the language in question

had a clearly accepted meaning in judicial and legislative practice and that it was plain and

• unambiguous. Casey, 499 U.S. at 98-101.

As the Levin Memo noted, however, any difficulty in interpreting the term "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, Not

Just the Pain, Pain:. Clinical Updates, Sept. 1993).

136 The in pari materia 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 part materia" 2 J. Sutherland, Statutory Construction at § 5202. However,

In his OPR 'interview, Bybee defended the use of the medical statutes as

follows:

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 pari 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.

Interpreting ambiguous statutory language. by analogy to unrelated but

similar legislation is a recognized technique of statutory construction. See, e.g.,

Dep't of Energy v. Ohio, 503 U.S. 607 (1992); Firstar Bank v. Faul, 253 F.3d 982,

991 (7th Cir. 2001); Doe v. DiGenova, 779 F.2d 74, 83 (D.C. Cir. 1985). See also

Sutherland at g 53:03. 137 However, where courts look to unrelated statutes for

as noted in a later edition of Sutherland's treatise, N. Singer, Sutherland on Statutes and Statutory

Construction (6 th ed. 2000) (Sutherland), "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 Syluestre 1.1: United States, 771 F. Supp. 515 (D.

Conn. 1990)).

137 Sutherland describes the interpretive relevance of unrelated statutes as follows:

On the basis of analogy the interpretation of a doubtful statute may be influenced

by language of other statutes which are not specifically related, but which apply to

similar persons, things, or relationships. By referring to other similar legislation, a

court is able to learn the purpose and course of legislation in general, and by

transposing the clear intent expressed in one or several statutes to a similar statute

- 183 -

guidance in interpreting ambiguous language, there is generally a logical basis for

doing so. In some cases, the unrelated statute is helpful because it defines or

gives context to the term, or because the term in the unrelated statute has been

interpreted by the courts. See, e.g., Carcieri v. Salazar, U.S. , 129 S. Ct. 1058,

1064 (2009) (definition of term is consistent with interpretations given to the word

by Court with respect to its use in other statutes); Dep't of Energy v. Ohio, 503

U.S. at 607, 621-22 (reviewing examples of usage of term in other contexts);

Casey, 499 U.S. at 99-100. In other cases, the unrelated statutes are similar in

purpose or subject matter._ See, e.g., Doe v. DiGenova, 779 F.2d 74, 83 (D.C. Cir.

1985) (incorporation of identical or similar language from an act with a related

purpose evidences some intention to use it in a similar vein); Stribling v. United

States, 419 F.2d 1350, 1352-53 (8 th Cir. 1969) (where interpretation of particular

statute at issue is in doubt, express language and legislative construction of

another statute not strictly in pari materia but employing similar language and

applying to similar persons, things or cognate relationships may control by force

of analogy).

However, "borrowing from an unrelated statute . . . is a relatively weak aid

given that Congress may well have intended the same word to have a different

meaning in different statutes." Firstar, 253 F.3d at 991. See, Sutherland at

§ 53:05 ("The interpretation of one statute by reference to an analogous but

unrelated statute is considered an unreliable means of discerning legislative

intent.") (footnote and citations omitted).

Even in those instances where courts refer to language in completely

dissimilar statutes to interpret an ambiguous term, there is some logical basis for

doing so. See, e.g., Buckeye Check Cashing, Inc v. Cardegna, 546 U.S. 440, 448

n.3 (2006) (the Court concluded that the word "contract" in the Federal Arbitration

Act, 9 U.S.C. § 2, included contracts that later prove to be void, in part because

of doubtful meaning, the court not only is able to give effect to the probable intent

of the legislature, but also to establish a more uniform and harmonious system of

law. It is useful to look to the function of statutes having similar language to

determine if there is a possibility of reference. It also follows that the usefulness of

the rule is greatly enhanced where analogy is made to several statutes or a statute

representing general legislation.

Sutherland at § 53,03 (footnotes and citations omitted) (emphasis added).

"contract" is used "elsewhere in the United States Code to refer to putative

agreements, regardless of whether they are legal") 138

The fact that the medical benefits statutes were neither related, similar, nor

analogous to the torture statute, coupled with the fact that they did not in fact

define, explain or interpret the meaning of "severe pain," undermined their utility

in interpreting the torture statute and led us to conclude that the Bybee Memo's

reliance on those statutes was unreasonable. The occurrence of the phrase

"severe pain" in the medical benefits statute provided little or no support for the

conclusion that "severe pain" in the torture statute must rise to the level of pain

associated with "death, organ failure, or serious impairment of body functions."

3. Ratification History of the United Nations

Convention Against Torture

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

physical or mental harm." Bybee Memo at 16. Drawing primarily 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 the CAT is "in substance not different from" pain that is

"excruciating and agonizing." 139

The memorandum did not disclose that those conditions were never ratified

by the Senate, in part because, Itlhose conditions, in number and substance,

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

138 In Buckeye, however, the Court did not rely solely upon similar language in dissimilar

statutes. That opinion relied primarily on the way the word "contract" was used in the same

section of the same statute. Id. at 448. The Court's reference to unrelated statutes appeared in

a footnote that reinforced its conclusion, as stated in the text of the opinion, that Iblecause the

sentence's final use of 'contract' so obviously includes putative contracts, we will not read the same

word earlier in the same sentence to have a more narrow meaning." Id.

139

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 8 (citation and footnote omitted).

from human rights groups, the American Bar Association, and members of the

Senate Foreign Relations Committee, the first Bush administration acknowledged

that the Reagan administration understanding regarding the definition of torture,

which included the phrase "excruciating. and agoniiing 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; Convention Against Torture: Hearing Before the Senate Comm. On Foreign

Relations, 101st Cong. 8-10 (1990) (CAT Senate Hearing) (testimony of Hon.

Abraham D. Sofaer, legal adviser, U.S. Department of State).

The Bybee Memo mentioned the revision but minimized its importance,

stating that "it might be thought significant that the Bush administration's

language differs from the Reagan 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 dismissed the

differences as "rhetorical," and asserted that the revisions "merely sought to

remove the vagueness created by [the] concept of 'agonizing and excruciating'

mental pain." Id. at 18-19. The Bybee Memo concluded that:

[t]he Reagan administration's understanding that the pain be

"excruciating and agonizing" is in substance not different from the

Bush Administration's proposal that the pain must be severe. .. .

The Bush understanding simply took a rather abstract concept —

excruciating and agonizing mental pain — and gave it a more concrete

form.

Bybee Memo at 19.

It is inaccurate to suggest that the Reagan administration language was

changed simply to clarify the definition of mental pain. Although that was one

reason for the revisions, that aspect was addressed by adding a detailed definition

of mental pain or suffering to the understanding. It is clear frOm the ratification .

history that the first Bush administration's proposed definition of severe physical

pain or suffering, 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 . . . ." CAT Senate Hearing at 9-10 (Sofaer

testimony). Thus, the understanding that was ratified by the Senate only referred

to the infliction of "severe physical pain.

Finally, we concluded that. the Bybee Memo's emphasis on the Reagan

administration's proposed conditions was misplaced because those conditions

were never ratified by the Senate, and, unlike the Bush administration's

conditions, 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 and understandings are effective only if ratified

or acceded to by the United States with the advice and consent of the Senate).

4. United States Judicial, Interpretation

Part III of the Bybee Memo stated accurately 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. • Moreover, the Bybee Memo's discussion of TVPA cases focused on the

more brutal examples of conduct courts have found to be torture, and downplayed

less severe examples in the reported decisions.

a. Implementation of Article 3 of the

Convention Against Torture

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 regulations are at 8 C.F.R. § 208.18(a) (Department of Homeland

Security), and 22 C.F.R. § 95.1(b) (State Department) (the CAT regulations). Like

the CAT, the CAT 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 does not include lesser forms of cruel, inhuman

or degrading treatment or punishment that do not amount to torture.").

- 187 -

At the time the Bybee Memo was being drafted, some courts had already

interpreted the CAT regulations' definition, providing additional examples of how

courts have distinguished between torture and less severe conduct. See, e.g., Al

-Saher v. LN.S., 268 F.3d 1143 (9th Cir. 2001);` 4° Cornejo-Barreto v. Seifert, 218

F.3d 1004, 1016 (9 th Cir. 2000) (also stating that the prohibition on torture is a

jus cogens norm that can "never be abrogated or derogated" and that acts of

Congress must be construed consistently with that prohibition); Khanuja v. L N. S.,

11 Fed. Appx. 824 (9 th -Cir. 2001) (unpublished).

141

The Bybee Memo's failure to discuss the CAT regulations was a relatively

minor omission, and we note that the case law and CAT regulations are generally

consistent with the Bybee Memo's uncontroversial conclusion that torture is an

aggravated form of cruel, inhuman, and degrading treatment. We note the

omission here because of our determination that OLC's interpretation of the

torture statute in the context of the CIA interrogation program demanded the

highest level of thoroughness, objectivity, and candor.

b. The Torture Victim Protection Act

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,

required 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 n.13. The

memorandum also asserted that courts in TVPA cases have not engaged in

lengthy analyses of what constitutes torture because lailrnost all of the cases

involve physical torture, some of which is of an especially cruel and even sadistic

140 Although Al -Saher and another immigration case were listed and briefly described in the

appendix to the Bybee Memo, the CAT regulations were not cited or discussed.

141 At our December 31, 2008 meeting with AG Mukasey and DAG Flip, Filip, a former federal

district court judge, stated that he thought OPR attorneys faced possible sanctions under Ninth

Circuit Rule 36-3 for citing the Khanuja decision. That rule states that unpublished Ninth Circuit

decisions are not precedent and that they "may not be cited to the courts of this circuit' except

under certain specified conditions. We do not agree that the rule forbids Department attorneys

from discussing unpublished Ninth Circuit decisions in executive branch legal memoranda or

reports. Moreover, the case is cited here not as precedent, but as an example of a judicial decision

that applied the CAT regulations and which was available to the drafters of the Bybee Memo.

nature." Id. at 24. As support, the memorandum cited one district court case,

Mehinovic u. Vuckovic, 198 F. Supp. 2d 1322 (N.D. Ga. 2002), and described the

brutal physical treatment that the court found to constitute torture in that case. 142

Bybe Memo at 24-27. Seven aditional TVPA cases

and seven other discussing torture in the context of the Alien Tort Claims Act, the Foreign

Sovereign Immunities Act, or CAT Article 3, were summarized in an appendix to

the memorandum.'"

Acknowledging that the courts have not engaged "in a careful parsing of the

statute," but have simply recited the definition of 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, Mehinovic "and the other

TVPA cases generally do not approach [the lowest] boundary [of what constitutes

torture]." Id.

That statement was inaccurate. In fact, conduct far less extreme than that

described in Mehinovic was held to constitute torture in two of the TVPA cases

cited in the appendix to the Bybee Memo. In Daliberti 1). Republic of Iraq, 146 F.

Supp. 2d 19 (D.D.C. 2001), the district court 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. 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. at 25. The court made no findings regarding severe pain and

only general findings of psychological harm in concluding that the claimants were

142 The Bybee Memo noted that the plaintiffs in Mehinovic were severely and repeatedly beaten

with bat and other weapons were forced to endure games of Russian roulette, had their teeth

pulled, aasn d were subjected to

,

several other forms of brutal treatment. Bybee Memo at 24-26.

143 Mehinovic

appears to have been added in response to the following comment from Yoo on

the May 23, 2002 draft of the Bybee Memo: "discuss in the text a few of what we consider the

leading cases from the appendix, to demonstrate how high the bar is to meet the definition of

torture? Mehino vic

was not one of the cases listed in the appendix and none of those cases was

discussed in the text of the Bybee Memo.

- 188 -

entitled "to compensation for their mental and physical suffering during their

incarceration, since their release, and in the future." Id.

In Simpson v. Socialist People's Libyan Arab Jamahiriya, 180 F. Supp. 2d 78

(D.D.C. 2001), aff'd in part, rev'd in part, vacated in part 326 F.3d 230 (D.C. Cir.

2003), the district court held, without detailed analysis, that the plaintiff had

stated a claim for torture under the TVPA by alleging:

that she was "interrogated and then held incommunicado,"

"threatened with death by representatives of the defendant if [she]

moved from the quarters where [she was] held," and "forcibly

separated from her husband . . . [and unable] to learn of his welfare

or his whereabouts . . " 144

Those district court cases contradict the Bybee Memo's assertion that the reason

the courts had not carefully parsed the meaning of torture under the TVPA was

because the acts under consideration were "so shocking and obviously incredibly

painful."

In his response to OPR, Bybee maintained that the Bybee Memo's

discussion of Mehinovic was not misleading because it disclosed 'that a single

beating [in Mehinovic] sufficed to constitute torture" and because it.acknowledged

"that a single incident can constitute torture." In fact, the Bybee Memo stated

144 Id. at 88 (quoting from plaintiffs complaint). Although Simpson was subsequently reversed

because the acts alleged were not "unusually cruel or sufficiently extreme and outrageous as to

constitute torture" within the meaning of the TVPA, the Court of Appeals' decision was issued on

April 22, 2003, after the Bybee and Yoo Memos had been issued. Simpson v. Socialist People's

Libyan Arab Jamahiriya, 326 F.3d at 234.

that the district court "would have been in error" if it found a single blow, in

isolation, constituted torture, and that:

to the extent the [Mehinovic] opinion can be read to endorse the view

that this single act and the attendant pain, considered in isolation,

rose to the level of "severe pain or suffering," we would disagree with

such a view based on our interpretation of the criminal statute.

Bybee Merno at 27.

5. International Decisions

Part 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. (ser. 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, "Iallthough

decisions by foreign or international bodies are in no way binding authority upon

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

Convention), 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.

Despite those statements, the memorandum made: no further reference to

international opinion. The Bybee Memo did.claim, however, that the international

• cases discussed in Part IV "make clear that while many of these [enhanced

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 cases "permit, under international law, an

aggressive interpretation as to what amounts to torture, leaving that label to be

applied only where extreme circumstances exist." Id. at 2, 31 (emphasis added) . 1'

a. Ireland v. the United Kingdom

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: wall standing (a stress position); hooding; subjection to

noise; sleep deprivation; and deprivation of food and drink. Bybee Memo at 27-29.

The memorandum also noted that the court found other abusive techniques, such

as beating prisoners, not to constitute torture. Id. at 29.

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. U.K. at ¶ 147(iv).

We found that the Bybee Memo ignored several important facts surrounding

the decision. First, the respondent government, the United Kingdom, did not

contest the Commission's findings that the interrogation techniques constituted

torture. Id. at ¶ 8(b). Second, 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

L45 The suggestion that the two cases support an aggressive interpretation of what constituted

torture "under international law" was inaccurate. A thorough examination of what is permissible

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

Convention 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 nations. See

Restatement (Third) of Foreign Relations Law of the United States at § 102 (summarizing the

sources of international law).

the methods were illegal under domestic law. Id. at ¶ 100. Third, 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 VI 101, 102, 135. Fourth, the case was decided by a 17-judge

panel of the European Court. Four of those judges dissented from the court's

opinion, writing separately that they believed the techniques in question

constituted torture. Id., Separate Opinions of Judges Zekia, O'Donoghue,

Evrigenis and Matscher. Finally, 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.

A thorough, objective, and candid examination of Ireland v. U.K. would have

mentioned some or all of the above facts. 146 It would also have considered a body

of post-Ireland case law from the European Court, in which the meaning of cruel,

inhuman, and degrading treatment and torture has been discussed further. 147

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 (1.8 December 1996). The failure to discuss Selmouni

is significant, as that case cited the CAT's definitions of torture and cruel,

inhuman, and degrading treatment. Selmouni at ¶ 10.0. 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.

L46 The Bybee Memo's use of Ireland u. U.K. is discussed in Jeremy Waldron, Torture and

Positive Law: Jurisprudence for the

White House, 105 Colum. L. Rev. 1681, 1705-06 (2005).

L47 Much of that case law in fact supports the uncontroversial conclusion that the term

"torture should be applied to more severe forms of cruel, inhuman and degrading treatment.

See,

e.g., Aksoy v. Turkey, (21987/93) [1996] ECHR 68 (18 December 1996) at ¶ 63.

- 193 -

Selmouni at ¶ 101. Thus, Selmouni raised questions about the continuing validity

of the European Court's findings in Ireland v. U.K. A thorough, objective, and

candid assessment of the law would have included a discussion of that case.

b. Public Committee Against Torture

in Israel v. Israel

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 degrading

treatment or punishment, but do not amount to torture." Bybee Memo at 31: In

that case, the Israeli court examined five physical interrogation techniques,

similar to the techniques examined in Ireland v. U.K., and concluded that all of the

techniques were illegal and could not be used by the Israeli security forces to

interrogate prisoners. PCATI v. Israel at NI 24-31. 148

The Bybee Memo acknowledged that the court 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:

• "[T]he 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."

148 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.

• The court "concluded that in certain circumstances

[interrogators] could assert a necessity defense. CAT, however,

expressly provides that Into exceptional circumstance

whatsoever, ... or any other public emergency may be invoked

as a justification of torture.' CAT art. 2(2). Had the court been

of the 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 30-31.

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

of the opinion. The court's opinion was limited to three questions: (1) whether

Israel'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 techniques; 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.

After determining that the GSS was authorized to interrogate prisoners, the

court considered the methods that could be used to interrogate terrorist suspects.

The court stated that, although the "law of interrogation" was "intrinsically linked

to the circumstances of each case," two general principles were worth noting. Id.

at¶ 23.

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,

1

inhuman treatment' and 'degrading treatment'? Id 149 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.

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" the suspect; or that they harmed the suspect's "health and potentially

his dignity." Id. at 11124-30. 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 deemed as included within the general power to conduct

interrogations." Id.

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 11 34, 35. The court made it

clear, however, that this was not the question 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.

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 did not consider 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

149 The court added: "These prohibitions are 'absolute.' There are no exceptions to them and

there is no room for balancing." Id.

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.

One of Yoo's comments on an early draft of the Bybee Memo indicates that

the authors knew the Israeli court's opinion did not provide direct support for

their position. In his comments, Yoo wrote to "[ilsn't there some language

in the opinion that we can characterize as showing that the court did not think

the_ conduct amounted to torture?" i esponded, "Unfortunately, no."

We concluded that the Bybee Memo's argument on this issue was not based

on the actual language and reasoning of the court's opinion, and was intended to

advance an aggressive interpretation of the -torture statute.

6. The Commander-in-Chief Power and Possible

Defenses to Torture

The 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. Although

earlier sections interpreted the applicability of the torture statute to government

interrogators and posited that the bar was very high for violations of the torture

statute, the last two sections asserted that there were circumstances under which

acts of outright torture could not be prosecuted.

In 2004, these parts of the Bybee Memo were characterized by Department

and White House officials as "over-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 AAG Goldsmith

concluded that the reasoning in those sections was erroneous.' When the Levin

Memo appeared in late 2004, it referred briefly to Parts V and VI of the Bybee

'so Goldsmith initially reviewed and withdrew the Yoo Memo, which incorporated the

arguments and reasoning of the Bybee Memo.

Memo, noted that those sections had been superseded, and concluded that further

discussion was unnecessary_ Levin Memo at 2.

Although portrayed as unnecessary and irrelevant, the sections were

essential to what Goldsmith characterized as "get-out-of-jail-free cards," a "golden

shield" for the CIA, and an "advance pardon." Goldsmith, The Terror Presidency,

at 96-97, 162. In addition, he commented:

In their redundant and one-sided effort to eliminate any hurdles

posed by the torture law, and in their analysis of defenses and other

ways to avoid prosecution for executive branch violation of federal

laws, the opinions could be interpreted as if they were designed to

confer immunity for bad acts: Its everyday job of interpreting

criminal laws gives OLC the incidental power to determine what those

laws mean and thus effectively to immunize officials from

prosecutions for wrongdoing.

Id. at 149-150. Goldsmith also expressed concern that the Yoo Memo was a

"blank check" for the military to engage in interrogation techniques beyond those

specifically approved by OLC. 151

We asked the OLC attorneys who worked on the Bybee Memo why the two

sections were added to the memorandum shortly before it was signed.

told us that she did not know why the sections were added, but believed it was 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." However, Philbin recalled that he .told Yoo the sections should be

removed, and that Yoo responded, "[T]hey want it in there." 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."

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

reviewing a draft that did not contain them.

151 Despite these and other highly critical public and private remarks, Goldsmith's stated in

his memorandum to Associate. Deputy AG Margolis that he never believed that the analysis in the

opinions "implicated any professional misconduct." Goldsmith June 5, 2009 Memorandum to

Margolis at 1.

- 197' -

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 h

appeared.

Alberto Gonzales did not recall how the sections came to be added to te Bybee

Memo, but mentioned that David Addington had a

general

into

inte

the memorandum.

rest in the poWers

of the Commander-in-Chief and may have had some input

David Addington testified before the House

an

Judiciary Committee that Yoo

met with him aannd Gonzales at the White Hou

including the

Se Counsel's Office d outlined for

them the subjects he planned to address in the Bybee Memo,

constitutional authority of the President apart from the statute and pose

defenses to the statute. Addington testified that he did not advocat any p

oseis ibl

at the meeting, but that he responded to .

Yoo's outline by saying, "Good, Im glad

you're addressing these issues!' Later in the hearing, however, Addington stated,

"In defense of Mr: Yoo, I would simply like to point out that is what his client

asked him to do." 152

As discussed above, the two.. sections were drafted after the Criminal

Division told the CIA, on July 13, 2002, that it would not provide an advance

declination for the CIA's use of EITs. 153 On July 15, 2002, Yoo told that

he did not plan to address the Comm ander-in-Chief power or de fenses in the

an

in.emorandum and told her to note in the memorandum that those issues were not

discussed because OLC had not been asked to address them. On July d

16, 2002,

Yoo and

met at the White House with Gonzales, Addington, an possibly

Flanigan to discuss the memorandum. The next day, July 17, d Yoo

beagna n working on those two new sections. Based on this sequence

- o events, it

appears likely that the sections were added,following.a. u

discuss

desired by

ion amotnget hc e OLC

and White House lawyers, to achieve indirectly the reslt hlient —

------"'--------

► 52

There were no follow up questions or further testimony regarding who asked Yoo to address.

those issues. In their responses to OPR, Yoo and Bybee argued that Addington was Yoo's 'client,"

and because Addington testified that Yoo did "what his client asked. him to do," Addington 's

testimony establishes that he personally asked Yoo to add the sections. Although that is a possible

interpretation, it appears to be inconsistent with Addington's earlier testimony ed that it was a

that it was Yoo gwohood

announced that he would address the subject and that Addington simply agre

idea. It is also inconsistent with Yoo's sworn statement to OPR.

153 Sometime between July 13 and 16, at Chertoff s direction

drafted a letter dated

July 17, 2002, from Yoo to Rizzo, stating that the Department would not provide an advance

declination, but Yoo apparently never signed or sent the letter.

immunity for those who engaged in the application of EITs - after Chertoff refused

to provide it directly.

Yoo denied to OPR that the sections provided blanket immunity to CIA

agents who violated the torture statute, although he conceded that he may have

added the discussions in response to a question from the CIA about what would

happen if an interrogator went "over the line." He also acknowledged that the

section had "implications for the Criminal Division, which is, you know, why I

showed it to Mike Chertoff and had him review it." Yoo asserted, however, that

the Commander-in-Chief defense could not be invoked by a defendant unless

there was an order by the President to take the actions for which the defendant

was charged. Yoo admitted, however, that the Bybee Memo did not specify that

the use of the Commander-in-Chief defense required a presidential order. He

stated: "I'm pretty sure we would have made it clear. I don't know - we might

have made it clear orally."

Philbin told OPR that he was not aware of any evidence of intent to provide

immunity to CIA officers.

a. The President's Commander-in-Chief Power

As discussed above, Bradbury commented that Yoo's approach to the issue

of Commander-in-Chief powers reflected a school of thought that 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 that it

contained errors and constituted an "advance pardon."

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).

The memorandum's reasoning with regard to the Commander-in-Chief

power can be summarized as follows:

• The United States is at war with al Qaeda. Bybee Memo, Part

V. A.

• The President's Commander-in-Chief power gives him sole and

complete authority over the conduct of war. Id. at 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 upon the President's Commander-in-Chief

power. Id. at 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. Id. at

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." Id. at Part V. C.; Introduction;

Conclusion.

The argument assumed, without explanation or reference to supporting

authority, that enforcing the statutory prohibition against torture would 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. L54

Torture has not been deemed available or acceptable as an interrogation tool -

in the Anglo-American legal tradition since well before the drafting of the United.

States Constitution. See, e.g., A v. Secretary of State for the Home Department

[2005] UKHL 71 at ¶¶ 11-12 (H.L.) (discussing English common law's rejection of

interrogation by torture and Parliament's abolition in 1640 of royal prerogative to

interrogate • by torture); 155 Waldron, Torture and Positive Law at 1719-20

(discussing Anglo-American legal syStert'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, 673-79 (2004) (discussing the views of the framers of the Constitution

on interrogation by torture).

The Bybee Memo cited no authority to suggest that the drafters of the

Constitution (or anyone else) believed or intended that the President's

Commander-in-Chief powers would include the power to torture prisoners during

times of war to obtain information. Thus, the Bybee Memo's conclusion that the

torture statute "does not apply to the President's detention and interrogation of

enemy combatants pursuant to his Commander-in-Chief authority" was wrong

and most certainly did not constitute thorough,. objective,.. and candid legal advice.

Bybee Memo at 35.

159 The tone of this section of the Bybee Memo is noticeably 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 an "unconstitutional . . . law[] that

seek[s] to prevent the President from gaining the intelligence he believes necessary to prevent

attacks upon the United States." Bybee Memo at 39. Bradbury characterized this section as

"overly tendentious and one-sided." Goldsmith found the Yoo and Bybee Memos "tendentious in

substance and tone." Goldsmith, The Terror Presidency at 151.

iss The House of Lords opinion is available online at www.publications.parliament.uk/pa/

Id200506 ildjudgmt/ j dO 51208 / aand-1. htm.

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. This conclusion, which was specifically rejected by Bradbury

in his January 15, 2009 memorandum, was not based on a thorough discussion

of all relevant provisions of the Constitution. Among the enumerated powers of

Congress are the following:

To define and punish Piracies and Felonies committed on the high

seas, and 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 ofthe land and

naval Forces . . . .

To provide for organizing, arming, and .disciplining, the Militia....

U.S. Const., art. I, g 8 (emphasis added).

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 powers were exclusive.'

156 In Part V, the Bybee Memo cited a previous OLC memorandum that discussed the Captures

Clause. Bybee Memo at 38 (citing 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

(March 13, 2002) (the Bybee Transfer Memo) at 5-7). The Bybee Transfer

Memo asserted that under the Constitution, "captures" were limited to the capture of property, not

persons, and that Congress therefore had no authority to make rules concerning captures of

persons. Bybee Transfer Memo at 5.

- 202 -

- 203 -

Goldsmith singled out "the unusual lack of care and sobriety" of the legal

analysis of this section. Goldsmith, The Terror Presidency at 148. He added that:

. -

OLC might have limited its set-aside of the torture statute to the rare

situations in which the President believed that exceeding the law was

necessary in an emergency, leaving the torture law intact in the vast

majority of instances. But the opinion went much further. "Any

effort by Congress to regulate the interrogation of battlefield detainees

would violate the Constitution's sole vesting of the Commander-in-

Chief authority in the President," the August 2002 memo concluded.

This extreme conclusion has no foundation in prior OLC opinions, or in

judicial decisions, or in any other source of law.

Id. at 148-49 (emphasis in original).

In the draft of OPR's report that was reviewed by Yoo and Bybee, we noted that the Bybee

Transfer Memo's conclusion was flawed because it inaccurately diScussed a historical source, failed

to acknowledge other historical sources that contradicted its thesis, and summarily asserted that

an adverse Supreme Court case had been wrongly decided. Bybee responded that he was "wholly

justified in relying on what was then good law," i.e., an OLC opinion that he himself signed five

months earlier.

As discussed above, on January 15, 2009; OLC's outgoing Principal Deputy AAG, Steven

Bradbury issued a Memorandum for the .Files Re: Status of Certain OLC Opinions Issued in the.

Aftermath of the Terrorist Attacks of September 11, 2001 (January 15, 2009). That memorandum.

anounced thathe Bybe Transfer Memo and four other previous OLC opinions concerning "the

allocation of authorities between the President and Congress in matters of war and national

security" did not "currently reflect, and have not :for some years reflected, the views of OLC."

Bradbury cited numerous historical sources that contradicted the Bybee Transfer Memo's view of

the Captures Clause, noted that the historical examples cited in the Bybee Transfer Memo did "not

support that opinion's assertion that an 'unbroken historical chain' recognizes 'exclusive

Presidential control over enemy soldiers," and cited a Supreme Court case (the 'same case that the

Bybee Transfer Memo asserted was wrongly decided) in support of the conclusion that the

Captures Clause does in fact grant Congress power over the detention and capture of enemy

prisoners. January 15, 2009 Memo at 6 & n.2.

Accordingly, we concluded that the Bybee Memo's brief reference to the Bybee Transfer

Memo did not constitute an adequate consideration of the relevance of the Captures Clause to the

power of Congress to outlaw torture in the context of the CIA interrogation program.

Bradbury and Goldsmith, as well as commentators and other legal scholars,

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, Liberalism, Torture, and the Ticking Bomb at 68; Kathleen Clark,

Ethical Issues Raised by the OLC Torture Memorandum, 1 J. Nat'l Sec. L. & Poly

455, 461 (2005). Although 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, a thorough, objective, and candid discussion would have

acknowledged its relevance to the debate. 157

Finally, in its discussion of presidential powers, the Bybee Memo neglected

to acknowledge the Executive's duty to "take Care that the Laws be faithfully

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.

155

157 Bybee told us that the Bybee Memo was "quite consistent" with Youngstown, and stated

that:

[w]e recognized that we're in Category 3, Congress has enacted a statute that might

interfere with the Commander in Chiefs authority and 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.

158 As a matter of constitutional interpretation, the Commander-in-Chief clause should not

have been considered 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 inadmissible, 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 provisions are to be deemed of equal validity.").

In his response to OPR's report, Bybee repeatedly asserted that the Bybee

Memo was written for "sophisticated executive branch attorneys" and, as such,

did not always explain basic concepts_ Bybee wrote: "OLC attorneys were asked

to answer difficult issues in a direct and succinct manner, and it is unreasonable

to expect them to survey the case law in a manner more appropriate for a law

review article." Bybee Response at 43.

Thus, Bybee argued that the recipients of the Bybee Memo "did not need a

primer on the separation of powers.". Bybee Response at 70. Specifically, Bybee

asserted that the "decision not to reiterate' Youngstown was appropriate. Id. at

64. This assertion is belied by the fact that Goldsmith - a "sophisticated executive

branch attorney," and an expert in this area - found that the memorandum was

"flawed in so many respects that is must be withdrawn." Goldsmith commented

in his first draft of a replacement memorandum that -the Yoo Memo contained

"numerous overbroad" assertions in the Commander-in-Chief section, and

specifically pointed out that it failed to consider adequately "case law such as

Youngstown Sheet & Tube Co. v. Sawyer." June 15, 2004 draft at 1, n.1 (citation

omitted). Goldsmith also told others in the Department that it was his view that

the Commander-in-Chief section was "misleading and under-analyzed to the point

of being wrong." June 30, 2004 email. As such, we reject Bybee's assertion that

the memorandum, although not as "fulsome" as it could have been, was sufficient

for the audience for which it was intended.

Bybee also disputed that the Commander-in-Chief section in effect

constituted an advance declination for future violations of the torture statute.

Bybee stated:

The Commander-in-Chief section never advised CIA officials that they

would be immune from prosecution no matter what they did. To the

contrary, the [Bybee Memo] explained that this section was only

addressed to interrogations "ordered by the President" and to the

interrogations "he believes necessary to prevent attacks upon the

United States."

The Bybee Memo did not, in fact, make it clear that its conclusion that the

torture statute could not be constitutionally applied to the CIA interrogation

program was conditioned on the issuance of a direct order from the president.

When Bybee was asked in his initial interview about whether a direct presidential

order was required, he answered: "Well, we haven't explored that in this

memorandum. . . . That is not addressed here. We haven't reached that level of

specificity." Nowhere in.the Commander-in-Chief section does OLC lay out such

a requirement. In fact, the sole reference to the requirement is made indirectly in

the introduction to the Defenses Section, which follows the Commander-in-Chief.

section ("We have also demonstrated that Section 2340A, as applied to

interrogations of enemy combatants ordered by the President pursuant to his

Commander-in-Chief power would be unconstitutional." Bybee Memo at 39). We

found this single reference did not adequately inform the reader that OLC's

analysis may have assumed the existence of a presidential order.

When we asked Yoo why he did not explicitly state in the Bybee Memo that

the torture statute would be unconstitutional only if the President directly ordered

the CIA to torture a prisoner, he commented:

I do think that orally we told [the CIA] that this is, you know, this

argument to be triggered - if it's not in the opinion itself, that the

argument to be triggered requires the President's direct approval... .

Ido remember we talked abOut it because we, I think Jay, Pat and I

talked about, you know, the sort of chain of command issues and

whether this defense could be claimed by people lower down. I don't

know if we made a conscious decision to include it or not include it

for, I don't know, appearance reasons, or whether - I do know we

talked about it and that was sort of the conclusion we came to is that

this was something the President would have to approve, and that it

wasn't something that could just be claimed by everybody lower

down, because then it would sort of be this kind of general immunity

from everything anybody ever did. 159

From Yoo's statement, we concluded that, although Yoo was aware of the

possibility that that the Bybee Memo could become "this kind of general immunity

from everything anybody ever did," he failed to clarify that his conclusions

regarding the unconstitutionality of the torture statute presumed the existence of

a direct presidential order.

159 Yoo added that he did not believe it was a problem if the requirement of a direct presidential

order was not included in the Bybee Memo because he thought it would be "perfectly clear for

people who work in this area."

- 207 -

b. Criminal Defenses to Torture

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 "[sitandard 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 relied on questionable interpretations of

case law.'"

(1) The Necessity Defense

The Bybee Memo concluded: "We believe that a defense of necessity could

be raised, under the current circumstances, to , an allegation of a Section 2340A

violation." Bybee Memo at 39. .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 U.S. Supreme Court decision, United States v.

Bailey, 444 U.S. 394 (1984 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.

A 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 U.S. Supreme Court or the U.S. Circuit Courts of Appeals.' At the time

the Bybee Memo.was drafted, the Supreme Court had discussed the necessity

160 See Luban, Liberalism, Torture, and the Ticking Bomb at 62-67, for a critique of the Bybee

Memo's analysis of self-defense 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.

161 Venue for violations of the torture statute could lie in any judicial district. See 18 U.S.C.

§ 3238 (venue for offenses committed out of the jurisdiction of any particular 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):

defense in two opinions:

United States v. Bailey,

444 U.S. 394 (1980), and United

States v. Oakland Cannabis Buyers' Cooperative, 532 U..S 4. 83 (2001).

In Bailey,

the Court was asked to consider whether the common law

defenses of necessity or duress were available

r to a defendant charged with

escaping from a federal prison. The Court b the

defense at common law, but concluded that there was no need to consider the

availability or the elements of a possible necessity or duress defenses because

lulnder any definition of these defenses one principle remainsn cc onoth

stant: if therree

was a reasonable, legal alternative to violating the law-, 'a chae b

to r

to do the criminal act aannd also to avoid th e•threatened harm,' the defenses will

fail." Bailey

444 U.S. at 410 (quoting LaFaye & 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 cu at

sto

4 15

dy . as soon oasn

ve force." Id. Based

the claimed duress or necessity had lost its coerce

the record before it the Court concluded that the defendant. could not meet his

burden and that the necessity defense was therefore unavailable.

Id.

In United States v. .Oakland •C annabis Buyers' Cooperative, the respondent

contended that, "because necessity was a defense . at common law, medical

necessity.should be read into the Controlled Substan available in federal court..

ces Act," and suggested that

Bailey

had established that the necessity defense was

Court disagreed, noting that, although

Bailey had

Oakland 532 U.S. at 490. The C

"discussed the possibility of a necessity defense without altogether rejecting it,"

the respondent was "incorrect to suggest that

Bailey has settled the question

er federal courts have authority to recognize a , and so

necessity de not

wheth "

provided by statute. . . . it was not argued [in Baiiey

there

efe ns

was no

occasion to consider, whether the statute might be unable to bear any necessity

defense at all." 162

162 Id.

at 490 & n.3. The Court revisited this issue in Dixon v.

United States, 548 U.S. 1 (2006),

which discussed both Bailey and Oakland. ix

on, the Court assumed that a defense of duress

would be available to a defendan

In D

t charged with a firearms violation. Id. at 6. 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 Congress intended the government

to bear the burden of disproving the defense beyond a reasonable doubt. rd.

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. Although the Oakland Court's comments about

Bailey were arguably dictum (as were the Bailey Court's comments about the

necessity defense), the Court's opinion nevertheless explicitly rejected the very

proposition for which the Bybee Memo cited Bailey;

During his interview with OPR, 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." 163

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 (1s 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 (4 th Cir.1979); United

States v. Gant, 691 F.2d 1159 (5 th Cir. 1982); United States v. Singleton, 902 F.2d

471 (6th Cir.1990); United States v. Mauchlin, 67.0 F.2d 746 (7th Cir. 1982); United

States v. Griffin, 909 F.2d 1222 (8th Cir.1990); United States v. Schoon, 971 F.2d

193 (9th Cir.1991) cert. denied, 504 U.S. 990 (1992); United States v. Turner, 44

F.3d 900 (10 th Cir. 1995); United States V. Bell, 214 F.3d 1299 (1 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); United States v. Gaviria, 116 F.3d 1498 (D.C. Cir.

1997). 164 See also Federal Jury Instructions at § 19.02 (surveying federal jury

163 Judge Bybee was unaware of the Oakland decision when the memorandum was drafted,

but told us that because Oakland came close to overruling Bailey but did not actually do so, it was

not necessary to discuss it in the memor- did not know whether Yoo and were

aware of Oakland, or simply overlooked it. refused to discuss the legal research

and analysis that went into the Bybee Memo saying, "[T he document speaks for itself."

164 A 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

instructions and case law for coercion and duress defenses, including the

necessity and justification defenses).

During his OPR interview, Bybee stated that a discussion of existing federal

case law on the necessity defense was not needed in the Bybee Memo because the

reported cases were "far afield?' from a "ticking time bomb" situation.

Yoo told us:

EW)e 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

have 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 self-defense. 165

A review of the cases mentioned above 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. Although 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

apprehension of death or serious bodily injury;

166

"justification defense"). Several federal cases were also cited in the treatises relied upon by the

Bybee Memo.

165 Yoo appears to have had a limited knowledge of criminal law, and may not have known that

federal courts had considered the necessity defense in many reported decisions. In his OPR

.

to look at "every state court case" on the necessity interview, Yo stated that he told

defense "because that's the only way it would come up."

166 A few federal courts have adopted a "choice of evils" analysis similar to the "balancing of

harrns"described in the first element of the MPC definition_ See, e.g., United States u. Turner, 44

F.3d at 902.

(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 -73. '67

A thorough, objective, and candid discussion of the necessity defense in the

context of the CIA interrogation program would have included an element-byeleinent

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.

The first element of the defense, as noted above, requires a defendant to

demonstrate as a preliminary matter that he (or arguably, a third party) faced an

immediate, well-grounded threat of death or serious injury. The Bybee and Yoo

Memos briefly acknowledged this issue, but did not explain how a government

interrogator with a prisoner in his physical custody would make such a showing.

See, e.g., United States v. Perrin, 45 F.3d 869, 874 (4th Cir. 1995) ("It 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"); see also Singleton, 902 F.2d at 472 (noting the infrequency with which

a defense of justification is appropriate); United States u. Crittendon, 883 F.2d 326,

330 (4th Cir. 1989) (generalized fears will not support a defense of justification);

United States v. Panter, 688 F.2d 268, 269 (5th Cir. 1982) (reversing a conviction

for illegal possession of a firearm based on finding that possession of the firearm

occurred in the actual, physical course of a conflict" when defendant, after being

167 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. See e.g., Singleton, 902 F.2d at 473 (citing Bailey, 444 U.S. at 399).

stabbed three times, discovered a gun lying within reach). 168

Another element of the federal defense that merited a more complete

discussion was the requirement that a defendant prove that he had no reasonable,

legal alternative to violating the law. As one court noted:

168 The Bybee Memo, in Part IV (International Decisions), briefly alluded to the "ticking time

bomb" scenario. Bybee Memo at 31 n.17 (stating that the Israeli Supreme Court "drew upon the

ticking time bomb hypothetical proffered by the [Israeli security service] as a basis for asserting

the necessity defense . . . . Under those circumstances, the court agreed that the necessity

defense's requirement of imminence . . . would be satisfied."). As noted above, in their OPR

interviews, Bybee and Yoo both referred to the ticking time bomb hypothetical as support for their

analysis of the necessity defense.

The ticking time bomb scenario is frequently advanced as moral or philosophical

justification for interrogation by torture. See, e.g.; Eric A. Posner and Adrian Verrneule, Terror in

the Balance, Security, Liberty, and the Courts 196-197 (2007); Alan M. Dershowitz, Why Terrorism

Works, Understanding the Threat, Resporuding to the Challenge 132-163 (2002). However, other

scholars have argued that the scenario is based on unrealistic assumptions and has little, if any,

relevance to intelligence gathering in the real world. See, e.g., Luban, Liberalism, Torture, and the

Ticking Bomb at 68; Kim Lane Sheppele, Hypothetical Torture in the War .on Terrorism,' 1 J. Nat'l

Security L. & Pol'y 285, 293-95, 337-40 (2005); Henry Shue, Torture, 7 Phil. & Pub. Aff. 124-43

(1978). Reliance upon the scenario has been criticized because it assumes, among other things:

(1) that a specific plot to attack exists; (2) that it will happen within hours or minutes; (3) that it

will kill many people; (4) - that the person in custody is known with absolute certainty to be a

perpetrator of the attack; (5) that he has information that will prevent the attack; (6) that torture

will produce immediate, truthfulinformation that will prevent the attack; (7) that no other means

will produce the information in time; and (8) that no other action could be taken to avoid the liar-

Association for the. Prevention of Torture,. Defusing the Ticking. Bomb. Scenario {2007y(availabIe at

http; / / www.apt.ch/ component/ option, com_docman/ task, cat view/ gid,115/ Itemid,59 /lang, en/).

To our knowledge, none of the information presented to OLC about Abu Zubaydah, KSM,

Al-Nashir ' i, or the other detainees subjected to EITs approached the level of imminence and

certainty associated with the "ticking time bomb" scenario. Although the OLC attorneys had good

reasons to believe that the detainees possessed valuable intelligence about terrorist operations in

general, there is no indication that they had any basis to believe the CIA had specific information

about terrorist operations that were underway, or that posed immediate threats.

Moreover, any reliance upon the "ticking time bomb" scenario to satisfy the imminence

prong of the necessity defense would be unwarranted in this instance, as the EITs under

consideration were not expected or intended to produce immediate results. Rather, the goal of the

CIA interrogation program was to condition the detainee gradually in order to break down his

resistance to interrogation.

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 involved criminal

acts.

United States v. Lewis, 628 F.2d 1276, 1279 (10th Cir.), cert. denied, 450 U.S. 924

(1980); see also United States v. Gaviria, 116 F.3d at 1531 (defendant had ample

opportunities to inform others of a threat to his daughter that caused him to

participate unwillingly in a drug conspiracy distribution ring); United States v.

Jeanrette, 744 F.2d 817, 820-21 (D.C. Cir. 1984) (congressman who claimed he

accepted bribe only because he feare•he was dealing with mobsters may not raise

duress defense because he had opportunity to notify law enforcement officials

during two days between agreeing to take bribe and actually taking it), cert.

denied, 471 U.S. 1099 (1985).' 69

The 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.

Bailey, 444 U.S. at 410 (citing LaFave & Scott at 379). 1" Thus, a government

official charged with torture would have the burden of proving that no other

method of persuasion or interrogation or any other way of getting information

169 Although the Bybee Memo did cite LaFave & Scott's 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).

170 See The Diana, 74 U.S. (7 Wall) 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?).

would have prevented the harm in question. The Bybee Memo did not explain how

an interrogator could prove this element.

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 in a real-world situation. 171

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).' 72 As LaFave & Scott's treatise explains, when a criminal statute

171 Bybee responded to this statement . by claiming that the Bybee Memo did discuss "the

ticking time bomb scenario as precisely sudh a real world situation." He cited as an example a

footnote in the Bybee Memo's discussion of PCATI v. Israel. However, that footnote simply

summarized the ticking time bomb hypothetical discussed in the. Israeli court's decision. Bybee

Memo at 31 n.17. Bybee offered a second example of a "real world" ticking time bomb scenario

•by claiming that:

the OLC attorneys working on the [2002] Memo had been briefed on the

apprehension of Jose Padilla on May 8, 2002. Padilla was believed to have built and

planted a dirty bomb . . . in New York City_ •

Bybee Response at 74 n.6 (emphasis added). Bybee did not cite a. source for that statement, but

it is inconsistent with press accounts and with former Attorney General Ashcroft's announcement

at a press conference that Padilla "was exploring a plan to build and explode a radiological

dispersion device, or 'dirty bomb,' in the United States." (http:edition.cnn.comitranscripts/ 0206/

10/bn.02.html (emphasis added).

172 Although LaFave & 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 Bailey, 444 U.S. at 415 ri . 11 (recognizing "that Congress in enacting criminal statutes

legislates against a background of Anglo-Saxon common law ... and that therefore a defense of

duress or coercion may well have been contemplated by Congress when it enacted" the prison

escape statute). But see Oakland, 532 U.S. 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.").

expressly provides that a necessity defense is prohibited, or conversely, that it is

available, the statute's determination is controlling. LaFave & Scott at 629.

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:

Congress has not explicitly made a determination of values vis-a-vis

torture. In fact, Congress explicitly removed efforts to remove torture

from the weighing of values permitted by the necessity defense.

Bybee Memo at 41.

In a footnote, the memorandum explained that argument as follows: the

definition of torture in the CAT only applied when severe pain is inflicted for the

purpose of obtaining information or a confession. Id. at n: 23. Therefore:

One could argue that such a definition represented an attempt to to

[sic] indicate that the good or of [sic] obtaining information ... could

not justify an act of torture. In other words, necessity would not be

a defense.

Id.

The memorandum then reasoned that when Congress defined torture under •

the torture statute and did not include the the CAT requirement that pain be

inflicted for the purpbse 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..

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.

However, if Congress had intended-to allow the necessity defense to apply

to the torture statute, it could 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 argument's underlying assumption - that the wording of

the CAT definition was 'an attempt to indicate" that necessity should not be a

defense to torture - is unwarranted, as the treaty explicitly stated elsewhere that

necessity was not a defense to torture. CAT art. 2(2).

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 prohibit explicitly the defense, the memorandum

concluded, should be read as a decision by Congress to permit the defense. Id.

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. Oakland, 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).

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.'" See, e.g., Filart-iga v. Pena-Irala, 630 F.2d at 887 n.20

173 The authors of the Bybee Memo recognized 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

(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 u. Schooner Charming Betsy, 6 U.S. (2 Cranch) 34, 67 (1804)). See also

Restatement (Third) of Foreign Relations Law of the United States at § 114 (1987)

("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.").

More importantly, the Bybee Memo's discussion of congressional intent

ignored directly relevant material in the ratification history of the CAT that

undermined or negated its position. As the drafters of the Bybee Memo knew, but

did not discuss in the memorandum, the Reagan administration's proposed

conditions for ratification. of the CAT included the following understanding:

The United States understands that paragraph 2 of Article 2 does not

preclude the availability of relevant common law defenses, including

but not limited to self-defense and defense of others.

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

authors concluded that the court must have interpreted Wadi law in a manner consistent with

the prohibition of CAT article 2(2). Bybee Memo at 31.

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 self-defense, as

long as he does not torture. While there was no opposition to this

concept, substantial concern was 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 understanding 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 would not 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. Rep. No. 101-30 at 40-41 (App. B) (Correspondence from the Bush

Administration to Members of the Foreign Relations Committee, Letter from Janet

G. Mullins, Assistant Secretary, Legislative Affairs, Department of State, to

Senator Pressler (April 4, 1990) (emphasis added) (Mullins Letter)).

Yoo and knew that the Bush administration had withdrawn the

Reagan administration's understanding on self =defense and defense of others. On

July 31, 2002, wrote to Yoo:

Something we don't mention in our. discussion of defense is the fact

[that) the Reagan administration had submitted an understanding

with respect to justification defenses that the . Bush administration

dropped. . . . The Bush Administration explained the decision. to drop

this understanding as follows: "Upon reflection, this understanding

was felt to be no longer necessary." Thoughts on whether we should

include this and, if so, where?

Yoo responded:

1 guess we should drop a footnote. In terms of whether it is no longer

necessary, is there any further explanation given by the Bush

administration[?} It could be because it was felt to be understood that

the treaty did not preclude those defenses.

replied:

I just looked through the hearing on the Convention - Sofaer's

prepared testimony states that one [of] "the basic obligations of a_

state party" to the Convention was "[t]o make clear that torture

cannot be justified and that no order from a superior or office or

public authority may be invoked as a justification of torture." Sen.

Exec. Rep. 101-30, at 7. He later describes the Reagan

administration understanding as "widely misunderstood." But that's

all I've found on it.

Neither the Bybee Memo nor the Yoo Memo acknowledged this issue in their

discussions of common law defenses.. A copy of the full Senate Executive Report

cited above; including the Mullins Letter, was among the documents provided to

us by OLC in a folder labeled Hard Drive and Hard Copy Files."

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 in_ itial report to the United Nations Committee Against Torture,

documenting United States implementation of the CAT (prepared "with extensive

assistance from the Department of Justice") (emphasis added). 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 16 (October 15, 1999). 174

174 In its 2005 report to the Committee Against Torture, the United States reaffirmed its

position that Inlo 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

- 220 -

A court might also be influenced by the strong judicial condemnation of

torture in other 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. jus cogens norm: the

prohibition against torture may never be abrogated or derogated. We

must therefore construe Congressional enactments consistent with

this prohibition.

Cornejo-Barreto, 218 F.3d at 1016. Accord, e.g., Filartiga, 630 F. 2d at 884.

We also concluded that a thorough, objective, and candid 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. See Oakland 532 U.S. at 491 n.4 ("we have never held

necessity to be a viable justification for violating a 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.,

Singleton, 902 F.2d at 472 (noting that a defense of justification is infrequently

appropriate).

(2) Self Defense

The Bybee Memo's discussion of self-defense exhibits 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. 1' In addition, as discussed above, significant

aspects of the CAT ratification history relating to the availability of the defense

were ignored.

States of America to the UN Committee Against Torture at ¶ 6 (June 29, 2005).

•

175 The memorandum did mention one federal case, United States v. Peterson, 483 F.2d 1222,

1228-29 (D.C. Cir. 1973), but only to quote, its summary of what Blackstone wrote about selfdefense

in the mid-eighteenth century.

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The memorandum presented a two-page summary of the common law

doctrines of self-defense and the defense of others, and acknowledged that the

situation under consideration differed from "the usual self-defense justification"

because it involved inflicting injury on a prisoner in custody, who posed no

personal threat to the interrogator. 176 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

statute] would 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.

The only authority cited for this proposition was a law review article:

Michael S. Moore, Torture and the Balance of Evils, 23 Israel L. Rev. 280 (1989).

The author of that article was one person, not "leading scholarly commentators,

or "some commentators," as he was described in the Bybee Memo.

• We found evidence that Yoo. knew he was exaggerating the legal authority

for this argument and consciously chose to conceal that fact. 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 Bybee

questioned at that time whether the reference to "commentators" should be plural.

In response, the phrase "leading scholarly commentators" was changed to "some

leading scholarly commentators" and a citation to another article from the same

issue of the Israel Law Review was added: Alan M. Dershowitz, Is It Necessary to

Apply "Physical Pressure" to Terrorists — and to Lie About It? 23 Israel L. Rev. 192,

199-200 (1989) (the Dershowitz article). Yoo Memo at .79. The Yoo Memo cited

176 In his response, Bybee claimed that "the [Bybee] Memo qualified its analysis by saying that

self-defense 'would not ordinarily be available to an interrogator accused of torturing a prisoner

who posed no personal threat to the interrogator.' Standards Memo [Bybee Memo] at 44." Bybee

Response at 73. The quoted sentence does not appear in the Bybee Memo. Rather, the sentence

is from OPR's draft report and Bybee mistakenly attributed it to the Bybee Memo.

In fact, the Bybee Memo stated that this situation is different from the usual self-defense

justification" but that "[u]nder the present circumstances, . . even though a detained enemy

combatant may not be the exact attacker . . . he still 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.

the Dershowitz article with the signal, "see also," indicating that the Ic]ited

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 selfdefense;

it discusses the possible application of the broader necessity defense to

interrogators charged with using illegal methods and systematically committing

perjury to conceal the practice. In the passage cited by the Yoo Memo, Dershowitz

stated:

I lack the information necessary to reach any definitive assessment

of whether the GSS [Israeli General Security Service] should be

allowed to employ physical smo e in the interrogation of some

suspected terrorists under some circumstances. (I am personally

convinced that there are some circumstances - at least in theory -

under which extraordinary means, including physical pressure, may

properly be authorized; I am also .convinced that 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 reviewed the Dershowitz

article in its entirety and concluded that it offers no support for the statement that

violations of the torture statute "would be justified under the doctrine of selfdefense."

178

Furthermore, Professor Moore's article.was a theoretical exploration of the

morality of torturing terrorists to obtain information. The article cited more

177

We concluded that this was the paragraph cited by Yoo, as it continues from page 199 to

page 200.

178 The Dershowitz article briefly alluded to self-defense twice: once, in order to contrast the

"subjective perceptions and priorities" of the necessity defense with the "established rules of action

and inaction' of the self-defense doctrine, Dershowitz article at 196-197; and again, in a footnote,

to explain when a prisoner being tortured out of "necessity" might be able to invoke the right of

self-defense as justification for resisting his interrogators. Id. at 198 n.17.

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 322-33. 179 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

argument that the authors misrepresented as a "standard" criminal law

defense. 180

• The Bybee Memo presented another novel interpretation of the common law

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 U.S. 1 (1890)." Bybee Memo at 44. According to the Bybee Memo, Neagle

held that Deputy U.S. Marshal Neagle, "an agent of the United States and of the

executive branch, was justified in [killing a man who attacked U.S. Supreme Court

Justice Stephen Field] because, in protecting Justice Field, he was acting

pursuant to the executive branch's inherent constitutional authority to protect the

United States government." Id. at 44-1-5.

However, Neagle did not hold that the officer's action was justified by the

President's authority to protect the government. The case involved an appeal from

the U.S. Court of Appeals for the Ninth Circuit, which, pursuant to a writ of

habeas corpus filed after Neagle was arrested on state homicide charges, ordered

his release from county jail. At the time, the federal 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." Neagle 135 U.S. at 40-41. The sole question

179 The author's conclusions were introduced with the phrases "to my mind," and "Dilly own

answer to this question is . . ." Id. at 323.

180 . As discussed earlier, the ratification history of the CAT shows that the first Bush

administration, which submitted the reservations, understandings, and declarations to CAT that

were ratified by the Senate, did not view self-defense to acts of torture as a possible defense. As

the State Department explained in correspondence to Senator Pressler, "[bjecause 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).

before the Court was whether Neagle was acting "in pursuance of the laws of the

United States" when he shot and killed Justice Field's attacker. lal Id.

The county sheriff, represented by the California Attorney General, argued

that Neagle was not acting pursuant to federal law because no federal statute

authorized a U.S. Marshal to protect federal judges. The Court rejected that

argument, stating that IN* 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. 182

The Court then noted that a federal statute granted United States Marshals

the same powers as state law enforcement personnel, and that California law

directed sheriffs to "prevent and suppress all ... breaches of the peace." Id. at 68.

Because a California sheriff would have had the power to do what Neagle did, the

Court reasoned, "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. We found no support in Neagle for the proposition advanced in the

Bybee Memo that the right to defend the national government "can bolster and

support an individual claim of, self-defense in a prosetution . . ." Bybee Memo

at 44. 183

181

Justice Field "did not sit at the hearing of this case and took no part in its decision."

Neagle, 135 U.S. at 76.

182 This passage.was quoted in the Bybee . Memo to-support its-argument.that an. interrogator

could defend himself against a charge of torture "on the ground that he was implementing the

Executive Branch's authority to protect the United States government." Bybee Memo at 45.

183 Neagle's value as a criminal law precedent is arguably limited by the unusual factual

background of the case. See Neagle 135 U.S. 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"). Nevertheless, Bybee and Yoo argue that they

appropriately relied upon Neagle because it has been cited in other OLC opinions to support the

general proposition that the President haS the inherent power to protect U.S. personnel and

property. However, none of those OLC opinions relied solely on Neagle, or cited it to support a

proposition comparable to the Bybee Memo's theory that the President's inherent power to protect

a federal judge "can bolster and support an individual claim of self-defense in a prosecution' for

torture. Bybee Memo at 44.

- 225 -

The Bybee Memo went on to discuss the nation's right to defend itself

against armed attack, citing the United States Constitution, Article 51 of the

United Nations Charter, and several U.S. Supreme Court cases. Bybee Memo at

45. Based on those authorities, the memorandum concluded:

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 Qaethdaa t 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 selfdefense

could supplement and bolster the government defendant's

individual right.

Id. at 46.

The authorities upon which this conclusion was based either spoke in

general 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

statements, this conclusion was a novel 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.

184 One of the cited cases, United States u. Verdugo-Urquidez, 494 U.S. 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 261. 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

nationalSecurity. " Id. at 273. The 'case did not discuss the doctrine of self-defense.

7. Conclusion

For the reasons cited above, we found that the Bybee and Yoo Memos

contained seriously flawed arguments and that they did not constitute thorough,

objective or candid legal advice. 185

B. The Legal Analysis Set Forth in . the Bybee Memo Was

Inconsistent with the Professional Standards Applicable to

Department of Justice Attorneys.' 86

Yoo and Bybee told us that OLC was asked to provide a candid 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 torture statute's meaning

and that they never intended to arrive at a preordained result. Despite these

assertions, we concluded that the memoranda did not represent thorough,

objective, and candid legal advice, but were drafted to provide the client with a

legal justification for an interrogation program that included the use of certain

EITs.

As an initial matter, we found ample evidence that the CIA did not expect

just an objective, candid discussion of the meaning of the torture statute. Rather,

as John Rizzo candidly admitted, the agency was seeking maximum legal

protection for its officers, 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, it adopted them from the

SERE program, which incorporated many of the techniques used by tot2litarian

185 We note that none of the attorneys involved in drafting the Bybee and Yoo Memos asserted

that they did not have sufficient time to complete the memoranda or that time pressures affected

the quality of their work. Yo ld us that they had a "fairly lengthy" period of time to complete the

unclassified Bybee Memo_ also stated that she had sufficient time to devote to her

projects. We also note that, ter e issuance of the Bybee Memos, the OLC had approximately

six additional months to produce the Yoo Memo, which incorporated the Bybee Memo nearly

verbatim.

185 As discussed above, the analysis which follows applies equally to the March 14, 2003 Yoo

Memo.

- 226 -

regimes to extract intelligence or false confessions from captured United States

airmen. OLC's approval was sought as a final step before implementing the EITs.

We also found evidence that the OLC attorneys were aware of the result

desired by the client and drafted memoranda to support that result, at the

expense of their duty of thoroughness, objectivity, and candor. 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 portrayed as essential to the success of the

program. 187 As told us, "[M]y personal perspective was there

could be thousands of American lives lost" if the techniques were not approved.

Yoo provided the CIA with an unqualified, permissive statement regarding

specific intent in his July 13, 2002 letter, and approved an equally permissive

statement in the June 2003 Bullet Points that were drafted in part and reviewed

in their entirety by Yoo and for use by the CIA. Goldsmith viewed the

Bybee Memo itself as a "blank check" that could be used to justify additional EITs

without further DOJ review. Although Yoo told us that he had concluded that the

techni ue would violate the torture statute, he nevertheless told the

client, according to Rizzo, that he would "need more time" if the

client wanted it approved.

According to Rizzo, there was never any doubt that waterboarding would be

approved by Yoo, and the client clearl re arded OLC as willin to find a wa to

achieve the desired result,

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 . ."

- 227 -

Finally, immediately after the Criminal Division stated

that the Department wou not provide an advance declination of prosecution for

violations of the torture statute, Yoo added the Commander-in-Chief and defenses

sections to the Bybee Memo.

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 under U.S. law by the common law doctrine of self-defense in fact

supported that argument. Nor did the 1890 Supreme Court case, In re Neagle,

provide adequate support for the statement that "the right to defend the national

government can be raised as a defense in an individual prosecution" for torture.

In addition, Yoo's conclusions about the. broad scope of the Commander-in-Chief

power did not reflect widely-held views of the Constitution.

The memoranda relied upon the phrase "severe pain" in medical benefits

statutes to suggest that the torture statute applied only to physical pain that

results in organ failure, death, or permanent injury. Another case describing the

statutory meaning of "-willful' was used to suggest a heightened standard 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. That case and one other foreign case was relied on for the conclusion

that international law permits "an aggressive interpretation as to what amounts

to torture."

We found instances in which adverse authority was not discussed and its

effect on OLC's position was not assessed accurately and objectively. For

example, the Bybee Memo cited United States v. Bailey for the proposition that the

U.S. Supreme Court "has recognized the [necessity] defense," but did not cite a

later case, United States v. Oakland Cannabis Buyers' Cooperative, which stated

it was "incorrect to suggest that Bailey has settled the question whether federal

courts have authority to recognize a necessity defense not provided by statute."

In discussing the Torture Victim Protection Act, the Bybee Memo focused

almost exclusively on Mehinovic v. Vuokouic, which involved extremely brutal

conduct, to support the argument that TVPA cases were all "well over the line of

- 228 -

what constitutes torture." 188 However, two other cases, in which far less serious

conduct was found to constitute torture, were relegated to the appendix and their

significance was not fully discussed.

In taking the extreme position that acts of torture could not be punished

under certain circumstances or could be justified by common law defenses, the

memoranda did not refer to or discuss the relevance of article. 2(2) of the

Convention Against Torture, 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 supported a permissive view of

the torture statute. 189 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 statute must be "excruciating and agonizing."

We also noted that the Bybee and Yoo Memos adopted inconsistent

positions to advance a permissive view of the torture statute. The torture statute's

ban on "threat[s] of imminent death" resulting in severe mental pain or suffering

was minimized by the assertion that "[ciommon 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 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.

However, in the discussion of self-defense that appeared later in the

memoranda, the authors interpreted that authority differently to minimize

1813 Where the court in Mehinouic v. Vuckouic found one example of less extreme treatment —

hitting and kicking a detainee and forcing him into a kneeling position — to constitute torture, the

Bybee Memo simply observed that "we would disagree with such a view based on our interpretation

of the criminal statute." Bybee Memo at 27.

189 As discussed above, the Bybee and Yoo Memos argued, 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 consider harsh interrogation techniques to constitute torture.

possible problems with the defense. The same section of LaFave & Scott, along

with the Model Penal Code's diScussion of self-defense, were cited to support the

conclusion that `Tit 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 78_ 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 self-defense, but would not constitute a "threat of imminent death"

under the torture statute, even if it caused severe mental pain or suffering.

Some of the arguments in the memoranda were illogical or convoluted, but

were nevertheless advanced to support an aggressive interpretation of the torture

statute. For example, the use of medical benefits statutes to define "severe pain"

as the pain associated with "death, organ failure; or permanent damage" was of

no practical value in interpreting the statute. The memoranda also presented a

particularly convoluted argument about the necessity defense, suggesting that

subtle differences between the CAT and the torture statute meant that "Congress

explicitly removed efforts to remove torture from the weighing of values permitted

by the necessity defense."

In his response, Bybee claimed that the Bybee Memo made it clear that the

assertion of the necessity defense or self-defense by an interrogator accused of

torture would be an extension of the law.. Bybee argued That .the purpose of the

defenses sections "was to call attention to the fact that such defenses might be

available to an official prosecuted under the statute" and "was not meant to be an

exhaustive study of the common law defenses." Bybee Response at 74 (emphasis

in original). Bybee also asserted that "Nt is certainly not an ethical violation or

incompetent lawyering to advance a position that extends the current case law to

novel factual scenarios." Id. at 73.

First, we agree that it can be appropriate to advance a position that extends

the case law to new factual situations. However, it is a violation of professional

standards and Department standards to advance such a position as legal advice,

- 230 -

without making clear to the client that the advice is an extension of existing law

and that there are countervailing arguments against such a position.

The Bybee Memo did not make clear that extension of these defenses to

prosecutions for torture would be novel. - For example, in the section on selfdefense,

the memorandum presented only one qualification, consisting of a brief

acknowledgment that "this situation is different from the usual self-defense

justification:' The memorandum went on to assert that "leading scholarly

commentators believe that interrogation of such individuals using methods that

might violate [the torture statute] would be justified under the doctrine of selfdefense

. . . ." Bybee Memo at 44. Thus, the Bybee Memo concluded, 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.

The language of the section on self-defense gave the impression that the

defense would be readily available. For example, the section began with the

sentence: "Even if a court were to find that a violation of Section 2340A was not

justified by necessity, a defendant: could still appropriately raise a claim of selfdefense."

Id. at 42. The Memo added: 'Under the circumstances, we believe that

a defendant accused of violating Section 2340A could have, in certain

circumstances, grounds to properly claim the defense of another." Id. at 43.

Similarly, the language in the Commander-in-Chief section created the

impression that the memorandum was presenting a definitive view of the law. The

Memo stated that "it could be argued" that Congress enacted the torture statute

with the intention of restricting the president's discretion in the interrogation of

enemy combatants, but went on to conclude as follows:

Even were we to accept this argument, however, we conclude that the

Department of Justice could not enforce Section 2340A against

federal officials acting pursuant to the President's constitutional

authority to wage a military campaign. . . . Congress can no more

interfere with the President's conduct of the interrogation of enemy

combatants than it can dictate strategic or tactical decisions on the

battlefield.

Bybee Memo at 36, 39.

- 231 -

Bybee conceded in his response that Islome language in the [Bybee Memo],

viewed in isolation, could be read to suggest that Congress has no power to

criminalize any interrogations." Bybee Response at 58 (emphasis in original). He

went on to assert that the Commander-in-Chief section, "properly viewed as a

whole," was narrowly confined to a power that the President must invoke

'personally. Id. However, the Bybee Memo failed to state anywhere in the

Commander-in-Chief section that its analysis was conditioned upon issuance of

an order by the President. 19° In addition, Bybee told OPR in his interview: "we

haven't explored that [issue] in this memorandum."

Similarly, on the issue of specific intent, Bybee asserted that the Bybee

Memo "includes numerous qualifications that would be counterproductive if the

objective was to obtain the most robust defense for interrogators possible." Bybee

Response at 46-47. In fact, as discussed above, the Bullet Points 191 said about

specific intent:

The interroga.tion of al-Qa'ida detainees does not constitute torture

within the meaning of section 2340 where the interrogators do not

have the specific intent to cause the detainee to experience severe

physical or mental pain or suffering. The absence of specific intent

is demonstrated by a good faith belief that severe physical or mental

pain or suffering will not be inflicted upon the detainee. A good faith

belief need not be a reasonable belief. The presence of good faith can

be established through evidence of efforts to review relevant

professional literature, consulting with experts, or reviewing evidence

gained from past experience.

190 As noted, the sole reference to the requirement is made indirectly in the introduction to the

Defenses section, which follows the Commander-in-Chief section. Bybee Memo at 39 ("We have

also demonstrated that Section 2340A, as applied to interrogations of enemy combatants ordered

by the President pursuant to his Commander-in-Chief power would be unconstitutional." (emphasis

added)). We found this single reference was inadequate to make it clear to the reader that such

an order was required.

191 Yoo denied to Goldsmith that he authored or approved the Bullet Points. We found,

wever that the Bullet Points were drafted in part and reviewed in their entirety by Yoo and

and that neither of them expressed any disagreement with their contents.

Third, the argument that the Classified Bybee Memo narrowed the scope of

the Bybee Memo does not apply in the case of the March 2003 Yoo Memo to the

DOD. As recognized by Philbin and Goldsmith, the Yoo Memo was not limited to

specific techniques or the interrogation of a specific individual. Both Philbin and

Goldsmith told OPR that they were concerned that the Defense Department might

improperly rely on the opinion in determining the legality of new interrogation

techniques. Goldsmith later explained, in an email to other OLC attorneys, that

he saw the Yoo Memo as a "blank check" to create new interrogation procedures

without further DOJ review or approval.

- 234 -

These and other examples discussed above led us to conclude that the

Bybee Memo and the Yoo Memo did not present a thorough, objective, and candid

assessment of the law.

C. Analysis of the Classified Bybee Memo (August 1, 2002)

Based on the results of our investigation, we concluded that the Classified

Bybee Memo did not constitute thorough, objective, and candid legal advice.

First, the Classified Bybee Memo did not consider the United States legal

history surrounding the use of water to induce the sensation of drowning and

suffocation in a detainee. The government has historically condemned the use of

various forms of water torture and has punished those who applied it. After World

War II, the United States convicted several Japanese soldiers for the use of "water

torture" on American and Allied prisoners of war.' American soldiers also have

been court-martialed for administering the "water cure." 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. 193

192 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.

According to records from that time period, there were two main forms of water torture, which was

also referred to as water treatment, the water test, or suffocation by immersions. In the first, the

subject was tied or held down on his back and cloth placed over his nose and mouth. Water was

then poured on the cloth. As the interrogation continued, he would be beaten and water poured

down his throat "until he could hold no more." In the second, the subject was tied lengthways on

a ladder, face upwards. He was then slipped into a tub of water and held there until 'almost

drowned." Evan Wallach, Drop by Drop: Forgetting the History of Water Torture in U.S. Courts, 45

Colum. J. Transnatil L. 468, 490-494 (2007) (citing United States of America u. Chinsaku Yuki,

Manilla (1946)) (citation omitted); Affidavit of J.L. Wilson, The Right Reverend Lord Bishop of

Singapore, admitted as Prosecution Exhibit 1519A, December 16, 1946, IMTFE Record, at 12,935;

United States of America v. Hideji Nakamura, Yukio Asano, Seitara Hata, and Takeo Kita, United

States Military Commission, Yokohama, May 1-28, 1947; United States of America v. Yagoheiji

Iwata, Case Docket No. 135 31 March 1947 to 3 April, 1947, Yokohama (citation omitted);

Judgment of the IMTFE, note 96 at 49,663 ("The practice of torturing 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.").

• to See .Guenael Mettraux, US Courts-Martial and the Armed Conflict in the Philippines (1899-

1902): Their Contribution to National Case Law on War Crimes, 1 Oxford Journal of International

Criminal Justice 135 (2003) (Major Edwin Glenn and Lieutenant Edwin Hickman were tried for

The 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 "for-m[ of torture." In Re Estate of Marcos, Human Rights Litigation, 910 F. Supp.

1460, 1463 (D. Haw. 1995). The court's description of the "water cure" closely

resembles that of the CIA in its request to use enhanced interrogation techniques.

In addition, the use of "water torture" was punished when it was used 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.'" United States u. Carl Lee,

744 F.2d 1124 (5th Cir. 1984). All four men were convicted.

None of these cases involved the interpretation of the specific elements of

the torture statute. Nor are there sufficient descriptions in the opinions to

determine how similar the techniques were to those proposed by the CIA.

However, a thorough and balanced examination of the technique of waterboarding

would have included a review of the legal history of water torture 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.

conduct to the prejudice of good order and military discipline by courts martial in May 1902 based

upon infliction of the "water cure." The "water cure" was essentially forcing a subject's mouth open

and pouring water down his throat. Glenn was convicted and Hickman acquitted.).

L94 The court did not describe what consistuted the "water torture."

In light of the fact that the express goal o

the CIA interrogation program was to induce a state of "learned helplessness," we

found that the Classified Bybee Memo's conclusion that use of the ten specific

EITs in the interrogation of Abu Zubaydah would not violate the torture statute

was not based on a thorough, objective, and candid analysis of the issues.

We also found that the Classified Bybee Memo's conclusion that the use of

sleep deprivation would not result in severe physical pain or suffering was not

based on a thorough, objective, and candid analysis of the issues. As noted in the

2005 Bradbury Memo, the Classified Bybee Memo's analysis "did not consider the

potential for physical pain or suffering resulting from the shackling used to keep

detainees awake." 2005 Bradbury Memo at 35. Rather, the OLC attorneys limited

their analysis to the physical effects of lack of sleep, without inquiring about or

considering how the subject would be kept awake. In light of the fact that

prisoners were typically shackled in a standing position with their arms elevated,

wearing only a diaper, we concluded that the Classified Bybee Memo's analysis

was incomplete.

We note that the Bybee Memo did not discuss the fact that the use of sleep

deprivation as an interrogation technique was condemned as "torture" in a report

cited by the U.S. Supreme Court in Ashcraft v. Tennessee, 322 U.S. 143, 151, n.6

(1944). In that opinion, the Court quoted the following language from a 1930

American Bar Association report: "It has been known since 1500 at least that

deprivation of sleep is the most effective torture and certain to produce any

confession desired." Id.

Similarly, the Classified Bybee Memo failed to consider how prisoners

would be forced 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 well 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, threatened, or beaten by the

interrogators, to ensure that they maintained those positions.

Bybee argued that he should not be responsible for these omissions given

his role as a "reviewer" of the Classified Bybee Memo. He stated that it was

reasonable for him to rely on the work of his "extremely experienced staff' -

Yoo and Philbin. Indeed, Bybee conceded in his written response that he

would have included the legal history of waterboarding had he been aware of it.

He wrote:

Without pre-existing knowledge of the charging specifications in the

World War II war crimes trials, or the techniques employed by U.S.

soldiers in the years following the 1898 Spanish-American War, there

would be no reason for Judge Bybee to suspect that such legal

precedent existed. Nor did the CIA inform Judge Bybee that the U.S.

military had historically condemned this interrogation technique as

torture - a fact he would expect .to be told if it were true. . . .

Consistent with this, Judge Bybee maintains that he was unaware of

any legal history at the time and would have included such history in

the [Classified Bybee Memo] had he knoWn of it- 195

Because of the authors' failure to address the issues detailed above, we

concluded that the legal advice provided was not thorough, objective, and candid

legal advice.

195 Bybee Classified Response at 4. Bybee also notes that the Classified Bybee Memo did list

one case on waterboarding in the Appendix, which Bybee asserts "demonstrates that [OLC] did

consider reported decisions holding that practices satisfied the definition of torture, but likely

found this particular case factually distinguishable." Id. at 4-5 (emphasis in original). We do not

agree that listing a case in the Appendix without discussion satisfied the attorneys' professional

obligations in this matter. Bybee also argued that the cases relating to waterboarding were

"obscure" and "easily missed even by diligent researchers." Id. Again, we disagree.

D. The Yoo Letteri 96

On August 1, 2002, Yoo also issued a six-page letter to White House

Counsel Gonzales, in response to Gonzales's question whether interrogation

methods that did not violate the torture statute could nevertheless be found to (1)

violate U.S. obligations under CAT, or (2) provide a basis for prosecution under the

Rome Statute in the International Criminal Court.

1. Violation of CAT

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 U.S. 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 3, 4.

In arriving at that conclusion, Yoo blurred some important distinctions that

are recognized by international law and by the foreign relations law of the United

States. 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 four 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.'

196 Yoo subsequently incorporated the substance of the Yoo Letter into the Yoo Memo. Yoo

Memo at 55-57.

ig7 Yoo explained, in a footnote, that the understanding might 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 standard." Yoo

Letter at 4, n.5 (citing Restatement (Third) of Foreign Relations Law of the United States at § 313

cmt g). In the very next footnote, however, Yoo stated that, "if we are correct in our suggestion that

[CAT] itself creates a heightened intent standard, then the understanding attached by the Bush

Administration is less a modification of the Convention's obligations and more of an explanation

of how the United States would implement its somewhat ambiguous terms." Yoo Letter at 4, n.6.

Yoo did not elaborate on the well-established meanings of "reservation" and

"understanding" in U.S. 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.

Congressional Research Service, Treaties and Other International Agreements: the

Role of the United States Senate, 106th 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. O.L.C. 28, 32 (April 9,

1987)).

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.

The difference between a reservation and an understanding could not have

been lost on the first Bush administration or the Senate when the CAT was

ratified, because - as Yoo subsequently observed in the Yoo Memo - the Bush

administration intentionally "upgraded" one of the Reagan administration's

proposed conditions to the CAT from an understanding to a reservation. Yoo

Memo at 51. See Senate Hearing at 41 (1990) (testimony of Hon.. Abraham D.

Sofaer, Legal Adviser, Department of State) ("that is why we have proposed the

reservation, as a reservation, not merely an understanding . . ."). Thus, it is

likely that a court would consider the international obligations of the United

States separately from the enforcement of domestic law implementing the treaty.

Yoo did not acknowledge or discuss that possibility.

2. Prosecution Under the Rome Statute

In response to Gonzales's second question, the Yoo Letter stated that the

U.S. is not a signatory to the ICC Treaty, and that the treaty therefore cannot bind

the U.S. as a matter of international law, and that even if the treaty did apply, "the

111

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. Id.

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, "iiinterrogation 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.

The Yoo Letter's analysis of article 8 was incomplete in two respects. First,

the letter ignored a relevant provision of article 8. The Yoo Letter referred only to

subsection 2(a), which defines war crimes as grave breaches of the Geneva

Conventions. However, subsection 2(b) of article 8 also defines war crimes as

"[o]ther serious violations of the laws and customs applicable in international

armed conflict, within the established framework of international law." Those

enumerated violations include Iclommitting outrages upon personal dignity, in

particular humiliating and degrading treatment." Rome Statute, article

8(2)(b)(xxi). Because certain of the CIA EITs would likely be found by the

international community to constitute humiliating and degrading treatment, we

concluded that the Yoo Letter's assertion that "interrogation of an al Qaeda

operative could not constitute a crime under the Rome Statute" was based on an

incomplete analysis of the law.'

Second, Yoo's analysis was based on the assumption that a court in a

nation that is party to the ICC treaty would accept the determination of the

President of the' United States — a non-party nation — that a given detainee was not

protected under the Geneva Conventions. We believe that assumption was

unwarranted.

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E. Analysis of the Bradbury Memos

Our review raised questions about the objectivity and reasonableness of

some of the Bradbury Memos' analyses, although we did not conclude that those

failings rose to the level of professional misconduct. The Bradbury Memos relied

substantially upon the legal analysis of the Levin Memo (which corrected the most

obvious errors of the Bybee and Yoo Memos) and applied that analysis to the facts

and information provided to the Department by the CIA. 199 The Bradbury Memos

were more carefully and thoroughly written than the Bybee and Yoo Memos, and

unlike those memoranda, did not advance unsupported legal arguments that

suggested that acts of torture were permitted or could be justified in certain

circumstances. We nevertheless had some concern about the Bradbury Memos'

analyses.

Others within the government expressed similar concerns. As discussed

above, DAG Comey and Philbin objected to the issuance of the Combined

Techniques Memo. In addition, Bellinger, then Legal Adviser to Secretary of State

Condoleezza Rice, wrote to Bradbury and stated that he was "concerned that the

[2007 Bradbury] opinion's careful parsing of statutory and treaty terms" would be

considered "a work of advocacy to achieve a desired outcome." February 9, 2007

Bellinger letter at 11.

We found several indicia that the Bradbury Memos were written with the

goal of allowing the ongoing CIA program to continue. First, we found some

evidence that there was pressure on the. Department to produce legal opinions

which would allow the CIA interrogation program to go forward, and that

Bradbury was aware of that pressure. Although Bradbury strongly denied that

he was expected to arrive at a desired - outcome, in Com-ey's April 27, 2005 email

to Rosenberg, Comey stated that "[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 reported

that Steve [Bradbury] was getting constant similar pressure from Harriet Miers

1' The May 2005 Bradbury Memos were in some respects replaced or updated by the 2007

Bradbury Memo, which adopted much of their analysis. Prior to President Obama's executive order

of January 22, 2009, providing that no one was to rely upon any interpretation of the law

governing interrogation issued. by the Department of Justice between September 11, 2001 and

January 20, 2009, the 2005 Bradbury Memos had not been withdrawn by the Department.

and David Addington to produce the opinions." In addition, Bellinger told us that

there was tremendous pressure placed on the Department to conclude that the

program was legal and could be continued, even after the DTA and MCA were

enacted.

The Bradbury Memos contained some of the flaws we noted 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

were lawful as implemented by the CIA. The SERE program was also cited as

evidence that the CIA interrogation program and its use of EITs was "consistent

with executive tradition and practice." In light of the significant 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.

We also noted that the Bradbury Memos frequently relied upon.

representations and assurances from the CIA concerning the procedures,

monitoring, and safeguards that would accompany the use of EITs. For example,

OLC's approval of the sleep deprivation technique was based on assurances from

the CIA that medical officers would "intervene to alter or stop" the technique if

they concluded in their "medical judgment that the detainee is or may be

experiencing extreme physical distress." OLC's approval of waterboarding

assumed "adherence to the strict limitations" and "careful medical monitoring,"

implicitly acknowledging that application of the techniques could constitute

torture under certain circumstances.

Similar representations had accompanied the CIA's original request to use

EITs in the interrogations of Abu Zubaydah, KSM and others, and as the CIA OIG

Report determined, many abuses nevertheless took place. Under these

circumstances, we question whether it was reasonable for Department officials to

accept such representations at face value, given the CIA's previous history with

EITs, the inevitable pressures faced by interrogation teams to achieve results, the

CIA's demonstrated interest in shielding its interrogators from legal jeopardy, and

the difficulty of detecting, through "monitoring," the largely subjective experiences

of severe mental or physical pain or suffering.

24

- 243 -

The Bradbury Memos also reflect uncritical acceptance of the CIA's

representations regarding the method of implementation of certain EITs. For

example, in concluding that prolonged sleep deprivation, which involves shackling

and diapering detainees, did not constitute cruel, inhuman, or degrading

treatment, Bradbury noted that the CIA asserted that the use of diapers was

necessary because releasing detainees from shackles to relieve themselves "would

present a security problem and would interfere with the effectiveness of the

technique" and that "diapers are used solely for sanitary and health reasons and

not in order to humiliate the detainee." Article 16 Memo at 13; 2007 Bradbury

Memo at 9-10. However, the CIA's 2002 list of proposed EITs described diapering

as a separate EIT, in which the detainee "is forced to wear adult diapers and is

denied access to toilet facilities for an extended period, in order to humiliate

him. ”.200

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, drafted in 2005, and -

the 2007 Bradbury Memo, that theuse of EITs did not "shock the conscience" and

thus did not 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, "[I]t's not

my role, really, to do a factual investigation of that. "20'

200 ' We had similar concerns about two documents that were not the subject of this

investigation - a letter and a memorandum from Bradbury to the CIA, both dated August 31, 2006,

evaluating the legality of the conditions of confinement at the CIA's secret facilities. Some of the

conditions were approved because, among other reasons, they were represented as essential to the

facilities' security. However, these conditions were similar or identical to conditions that were

previously described by the CIA or the military, in documents we found in OLC's files, as

"conditioning techniques." Those conditions of confinement included isolation, blindfolding, and

subjection to constant noise and light.

201 Bellinger told OPR that he pushed for years to obtain information about whether the CIA

interrogation program was effective. He said he urged AG Gonzales and White House Counsel Fred

Fielding to have a new CIA team review the program, but that the effectiveness reviews consistently

relied on the originators of the program. He said he was unable to get informatiOn from the CIA

to show that, but for the enhanced techniques, it would have been unable to obtain the

information it believed necessary to stop potential terrorist attacks.

We were able to obtain limited information about the interrogations of some

detairiees from other sources. As discussed above, the CIA Briefing

Slides and the CIA OIG Report stated that Abu Zubaydah and KSM, the two main

sources cited in the CIA Effectiveness Memo, were subjected to EITs and were

a — • • arded extensioel b CIA interrogators.

According to CIA documents, by 2005, approximately thirty detainees had

been subjected to EITs.

as A1-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

head uarters officials believed he must be withholdin: information. .

e examined CIA assertions regarding specific

- 246 -

disrupted terrorist plots. 204 The memorandum stated that Abu Zubaydah

"provided significant information" about Jose Padilla and Binyam Mohammed,

"who planned to build and detonate a 'dirty bomb' . . . :" CIA Effectiveness Memo

at 4. FBI sources cited in the DOJ IG Report stated, however, that the

information in question was obtained through the use of traditional interrogation

techniques, before the CIA began using EITs.

More importantly, the CIA Effectiveness Memo provided inaccurate

information about Abu Zubaydah's interrogation. It asserted that:

Abu Zubaydah provided significant information on two operatives,

Jose Padilla and Binyam Mohammed, who planned to build and

detonate a "dirty bomb" in the Washington DC area. Zubaydah's

reporting arrest a Padilla on his arrival in Chica o in May

2003 sic

CIA Effectiveness Memo at 4 (emphasis added).

was arrested in Ma 2002 not 2003.

e information [leading] to the arrest of Padilla" coul not ave

been obtained through the authorized use of EITs. Yet, Bradbury relied upon this

plainly inaccurate information in both the Article 16 Memo and the 2007

Bradbury Memo. In the Article 16 Memo, he wrote:

You have informed us that Zubaydah also "provided significant

information on two operatives, [including] Jose Padilla[,] who planned

to build and detonate a 'dirty bomb' in the Washington DC area."

(quoting CIA Effectiveness Memo at 4).

Article 16 Memo at 10.

204 Much of the following information was made public in a September 6, 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 High Value Terrorist Detainee Program."

- 247 -

The 2007 Bradbury Memo made the following assertion:

Interrogations of Zubaydah - again, once enhanced techniques were

employed - revealed two al Qaeda operatives already in the United

States and planning to destroy a high rise apartment building and to

detonate a radiological bomb in Washington, D.C.

2007 Bradbury Memo at 32.

In addition, in considering whether the use of EITs is 'arbitrary in the

constitutional sense," we believe the failures as well as the claimed successes of

the •ro I am should have been considered b Bradbu .

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, most

if not all of the CIA's past experience with that technique appear to have exceeded

the limitations, conditions, and understandings recited in the Classified Bybee

Memo and the Bradbury Memos. 205 As noted in the 2005 Bradbury Memo, the

CIA OIG Report concluded that the CIA's past use of the waterboard "was different

from the technique described in the [Classified Bybee} opinion and used in the

205 Because CIA video tapes of its actual use of the waterboard were destroyed by the CIA, a

definitive assessment of how that technique was applied may be impossible.

- 248 -

SERE training." 2005 Bradbury Memo at 41, n.51 (quoting CIA OIG Report at 37).

In addition, the report found that "the expertise of the SERE

psychologist/interrogators on the waterboard was probably misrepresented at the

time, as the SERE waterboard experience is so different from the subsequent

Agency usage as to make it almost irrelevant" and that there was no "reason to

believe that applying the waterboard with the frequency and intensity with which

it was used by the psychologist/interrogators was either efficacious or medically

safe." Id. (citing CIA OIG Report at 21, n.26).

The 2005 Bradbury Memo. stated that the CIA's proposed use of EITs in

2005 reflected "a number of changes in the application of the waterboard,.

including limits on the frequency and cumulative use of the technique." Id.

Moreover, the

program approved by Bradbury in 2007, which did not include the use of the

waterboard, was based upon the "effectiveness" of interrogation sessions that

made extensive use of the waterboard. Thus, the programs approved by Bradbury

in 2005 and 2007, largely on the .basis of intelligence data cited in the CIA

Effectiveness Memo, were significantly different from the program that produced

the intelligence in question.

We also note that the Bradbury Memos' analysis rested in part on

assurances provided by the CIA that EITs would be administered only .to highvalue

detainees with knowledge of imminent al Qaeda threats, or, - in the case of

the waterboard, where there were "substantial and credible indicators-" that the

subjects had ac t or delay an imminent

terrorist attack.

We question whether it was reasonable for Bradbury not to have demanded

more specific information before concluding that the use of EITs was both

essential and effective in disrupting terrorist attacks. Given the importance of the

CIA Effectiveness Memo's conclusions to Bradbury's constitutional analysis, and

in light of the CIA OIG report, he should have insisted that it set forth: the CIA's

- 249 -

basis for believing the subjects possessed information about imminent attacks;

the type and sequence of EITs that were applied; the information obtained after

EITs were used; and any verification or follow up use of that information_ The CIA

also should have described any instances where the use of EITs produCed no

useful information, or false information. 2°6 Absent this type of information and

analysis, we question Bradbury' reliance on the CIA Effectiveness Memo to

approve the use of EITs going forward.

Accordingly, 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. _

Our review of the Bradbury Memos raised additional concerns about OLC's

legal analysis. Some of the memoranda's reasoning was 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 "[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 diapering. Those conclusions, although the product of complexlegal analysis,

206 According to the September 8, 2006 report of the Senate Select Committee on Intelligence

on "Postwar Findings About Iraq's WMD Programs and Links to Terrorism and How They Compare

with Prewar Assessments" (the SSCI Report), the CIA "relied heavily on the information obtained

[in 2002] from the debriefing of detainee Ibri al-Shaykh al-Libi, a senior al-Qa'ida operational

planner, to assess Iraq's potential [chemical and biological weapons] training of al-Qa'ida." SSCI

Report at 76. Al-Libi recanted that information in 2004, and claimed that, after he was subjected

to harsh treatment by CIA debriefers, he "decided he would fabricate any information the

interrogators wanted in order to gain better treatment and avoid being handed over to [a foreign

government ]" IcL at 79-80. Al-Libi was in fact transferred to the custody of a foreign government

and was allegedly subjected to threats and harsh physical treatment. Id. at 80-81. He later stated

that he continued to fabricate information in order to avoid harsh treatment Id. at 81.

- 250 -

appear to be inconsistent with the plain meaning and commonly-held

understandings of the language of Common Article 3.

Moreover, the Article 16 Memo's and the 2007 Bradbury Memo's analysis

of substantive due process appears incomplete. 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 interrogation program

from those accepted standards of conduct.

For example, criminal law prohibitions on coercive interrogation were

distinguished because OLC found the governmental interest in preventing

terrorism to be more important than conducting "ordinary law enforcement."

Article 16 Memo at 33. Military doctrine was distinguished because al Qaeda

terrorists are "unlawful combatants" and not prisoners of war. Id. at 35. 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

would serve United States interests." 2007 Bradbury Memo at 38. 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]."' Id. at 40, 42.

Thus, OLC found that the condemnation of coercive or abusive interrogation

in those contexts did not apply to the CIA interrogation program, 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 is traditional.

Even though the OLC opinions found no "evidence of traditional 'executive

behavior or contemporary practice . . . condoning an interrogation program" using

coercive techniques, it concluded, based on the absence of any previous, explicit

condemnation of a program that was virtually identical to the CIA interrogation

program, that "in light of 'an understanding of traditional executive behavior, of

contemporary practice, and of the standards of blame generally applied to them,'

the use of [EITs by the CIA] as we understand it, does not constitute government

behavior" that shocks the contemporary conscience. Article 16 Memo at 38.

Although we had serious concerns about the objectivity of the advice in the

Bradbury Memos, as discussed above, we did not find that the shortcomings we

identified rose to the level of professional misconduct.

F. Individual Responsibility

Having concluded that much of the legal analysis of the Bybee Memo, the

Classified Bybee Memo, the Yoo Memo, Yoo's July 13, 2002 Letter, and the Yoo

Letter fell short of the standards of thoroughness, objectivity, and candor that

apply to Department of Justice lawyers, we now consider the levels of

responsibility that apply to each of the subjects. As Yoo was the primary author

of those documents, we first consider those questions with respect to him.

I. John Yoo

John Yoo accepted the initial assignment from the NSC and the CIA on

behalf of the Department. He was directly responsible for the contents of the

Bybee Memo, the Classified Bybee Memo, the Yoo Memo, the July 13 Letter, and

the Yoo Letter. In addition, he signed the Yoo Memo the July 13 Letter, and the

Yoo Letter. He also directed and reviewed research and drafting. We

therefore concluded that he was primarily responsible for ensuring that the legal

analysis in those documents was thorough, objective, and candid.

Under OPR's analytical framework, an attorney commits intentional

professional misconduct when he violates a clear and unambiguous obligation

purposefully or knowingly. We found, based on a preponderance of the evidence,

that Yoo knowingly failed to provide a thorough, objective, and candid

interpretation of the law. 2°7 The Bybee Memo had the effect of authorizing a

program of CIA interrogation that many would argue violated the torture statute,

207 Because subjects rarely acknowledge or announce their intent to disregard a professional

obligation, our findings here, as in most cases, are largely based on circumstantial evidence.

the War Crimes Act, the Geneva Convention, and the Convention Against Torture,

and Yoo's legal analyses justified acts of outright torture under certain

circumstances, and characterized possible prosecutions under the torture statute

as unconstitutional infringements on the President's war powers. We based our

conclusion that Yoo committed intentional professional misconduct on the

following:

First, we -found that Yoo knowingly provided incomplete and one-sided

advice in his analysis of the Constitution's Commander-in-Chief clause, which he

asserted could bar enforcement of the torture statute in the context of the CIA

interrogation program. Philbin told us that he thought the Commander-in-Chief

section was aggressive and went beyond what. OLC had previously said about

executive power, and that he told Yoo. to take it out of the Bybee Memo. In

addition, given Yoo's academic and teaching background, we found that Yoo knew

his view of the Commander-in-Chief power was a minority view . and would be

disputed by many scholars. As such, Yoo had an obligation to inform his client

that his analysis was a novel and untested one.

We also found that Yoo knew that the Commander-in-Chief section might

be used in an effort to provide immunity to CIA officers engaged in acts that might

be construed as torture. We found significant the timing of the addition to the

Bybee Memo of the Commander-in-Chief section directly after Criminal Division

AAG Chertoff refused to provide an advance criminal declination in CIA

interrogation cases. In addition, we found that Yoo was aware that, absent the

requirement of a direct presidential order, the Commander-in-Chief section could

become "this kind of general immunity from everything anybody ever did."

Despite this knowledge, he failed to include in the memoranda that a direct

presidential order was required to trigger the Commander-in Chief clause.

In addition, we found that Yoo was aware that the Bybee Memo's

discussion of specific intent was insufficient. As discussed in detail above, that

section suggested that an interrogator who inflicted severe pain and suffering

during an interrogation would not violate the torture statute if his objective was

to obtain information. Yoo told us that he had not dealt with the question of

specific intent prior to the Bybee Memo, and that he "was very surprised to see

that the Supreme Court cases were so confused about it." Yet, he only "looked at

the cases quickly" and relied upon a relatively inexperienced attorney 'to figure

out . . . what the law really is." Yoo acknowledged that Chertoff and others told

MI6M11-

- 253 -

him that the law of specific intent was "awfully confused." Philbin stated that he

told Yoo his reasoning was incorrect. Yoo also remembered reading a law review

article or treatise, possibly La Fa_ve & Scott, that discussed "how they're not sure

what the exact definition of specific intent is."

Despite Yoo's knowledge, the Bybee and Yoo Memos' advice on the issue

of specific intent did not convey any of the uncertainty or ambiguity of this area

of the law. This was even more apparent in Yoo's July 13, 2002 letter to Rizzo and

in the Classified Bybee Memo, where Yoo provided a less complete explanation of

the torture statute's specific intent element, and in the 2003 CIA Bullet Points,

which Yoo tacitly approved. Given Yoo's background as a former Supreme Court

law clerk and tenured professor of law, we concluded that his awareness of the

complex and confusing nature of the. law, his failure to carefully read the cases,

and his exclusive reliance on the work of a junior attorney, established by a

preponderance of the evidence that he knowingly failed to present a sufficiently

thorough, objective, and candid analysis of the specific intent element of the

torture statute.

We found additional evidence that Yoo knowingly provided incomplete

advice to the client. Shortly before the Bybee Memo was signed, told Yoo

that the memorandum's discussion of common law defenses did not mention that

one of the Reagan administration's proposed understandings to the CAT (the

understanding that common law defenses would remain available to persons

accused of torture under United States law), had been withdrawn prior to the

treaty's ratification. told Yoo that the understanding had been withdrawn

"[t]o make clear that torture cannot be justified." Despite receiving this

information contradicting the memorandum's assertion that self-defense could be

invoked by CIA interrogators charged with torturing detainees, Yoo did not alter

the memorandum. The Bybee Memo continued to rely on other aspects of the CAT

ratification history to support its aggressive interpretation of the torture statute,

while ignoring this important aspect of its history.

We also found that Yoo knowingly misstated the strength of the Bybee

Memo's argument "that interrogation of [prisoners] using methods that might

violate [the torture statute] would be justified under the doctrine of selfdefense

. . ." The Bybee Memo asserted that "leading scholarly commentators"

supported that proposition, even though a single law review article was the only

support.

During the .drafting of the Yoo Memo, Bybee questioned Yoo about the

reference to "commentators," to determine whether there was more than one such

commentator. Rather than change the memorandum to assert that there was one

"commentator," Yoo added a citation to an article by Professor Dershowitz that did

not support the proposition in question. 2°8 Accordingly, we concluded that Yoo

knowingly misrepresented the authority that supported his statement that "some

leading scholarly commentators believe that interrogation of such individuals

using methods that might violate [the torture statute] would be justified under the

doctrine of self-defense, because the combatant by aiding and promoting the

terrorist plot 'has culpably caused the situation where someone might get hurt."'

Some of the other flaws discussed in the Analysis section of this report,

considered in isolation, could be seen as the result of reckless action or mistake.

However, the evidence of the knowing violations discussed above led us to

conclude that Yoo put his desire to accommodate the client above his obligation

to provide thorough, objective, and candid legal advice, and that he therefore

committed intentional professional misconduct.

We recognize that the Bybee Memo was written at a difficult time in our

nation's history, and that the fear and uncertainty that followed the September

11, 2001 attacks might explain why some Department of Justice lawyers were

willing to conclude, contrary to core principles of American and international law,

that the torture statute could not be enforced against CIA interrogators under

certain circumstances, or that acts of outright torture could be justified by

common law. defenses. However, situations of great stress, danger, and fear do

not relieve Department attorneys of their duty to provide thorough, objective, and

candid legal advice, even if that advice is not what the client wants to hear.

Accordingly, we concluded that the extraordinary circumstances that surrounded

the drafting of the Bybee and Yoo Memos did not excuse or justify the lack of

thoroughness, objectivity, and candor. reflected in those documents.

208 by a preponderance of the evidence that Yoo added the Dershowitz citation_ Both

Yoo a cknowledged that Yoo was responsible for the sections of the memorandum on

common aw e enses. In addition, Yoo told us that he recalled reading the symposium issue of

the law review that contained the Moore and Dershowitz articles. We considered the possibility

that Yoo may have rnisrecollected the substance of the Dershowitz article and simply added the

citation without looking at the article. However, because the citation included a reference to

specific page numbers, we discounted that possibility_

MI6M2J01- -

2. Judge Jay Bybee

We concluded that Bybee, as the head of OLC and sigriator of the Bybee

Memo and the Classified Bybee Memo, was responsible for ensuring that the

advice provided to the clients presented a thorough, objective, and candid view of

the law. Although Bybee did not conduct the basic research that went into the

memoranda and did not draft any sections, he reviewed many drafts, provided

comments, and signed both memoranda. Philbin told us that Bybee was so

personally involved, he was kind of taking over" and, ultimately "churn[ed]

through three drafts with comments on them per day."

We acknowledge that an Assistant Attorney General should not be held

responsible for checking the accuracy and completeness of every citation, case

summary, or argument in every legal memorandum submitted for his signature

by a Deputy AAG. However, this was not a routine project that simply required

Bybee to sign off as an administrative matter. Bybee's signature had the effect of

authorizing a program of CIA interrogation that many would argue violated the

torture statute, the War Crimes Act, the Geneva Convention, and the Convention

Against Torture, and he endorsed legal analyses that justified acts of outright

torture under certain circumstances, and that characterized possible prosecutions

under the torture statute as unconstitutional infringements on the President's war

powers.

When Bybee reviewed and signed the Bybee Memo and the Classified Bybee

Memo, he assumed responsibility for verifying that the documents provided

thorough, objective, and candid legal analysis.. He also assumed the responsibility

for investigating problems that were apparent in the analysis or that were brought

to his attention by others. Bybee's signature, which added greater authority to the

memoranda, carried with it a significant degree of personal responsibility. 209

209 Bybee did not have to sign the opinions. Yoo had the authority to sign OLC memoranda

and did so on many other occasions.

- 255 -

Unlike Yoo, we found insufficient evidence to conclude that Bybee knew at

the time that the advice in question was incomplete or one-sided. 21° Accordingly,

we concluded that Bybee did not commit intentional professional misconduct.

However, we concluded, based on a preponderance of the evidence, that

Bybee, at a minimum, should have known that the memoranda were not

thorough, objective, or candid in terms of the legal advice they were providing to

the clients and that thus he acted in reckless disregard of his professional

obligations. As noted above, an attorney commits professional misconduct

through reckless disregard of an obligation when he when (1) the attorney knows

or should know, based on his or her experience and the unambiguous nature of

the obligation or standard, of an obligation or standard, (2) knows, or should know

based on his experience and the unambiguous applicability of the obligation or

standard, that his conduct involves a substantial likelihood that he will violate or

cause a violation of the obligation or standard, and (3) engages in the conduct,

which is objectively unreasonable under all the circumstances.

The memoranda were densely written in a confident and authoritative tone,

and included citations to many historical sources and legal authorities. Moreover,

Yoo had a reputation as an expert in presidential war powers, adding an

additional air of authority to the drafts he submitted to Bybee. However, we

believe an attorney of Bybee's background and experience, who had the

opportunity to review and comment on numerous drafts over an approximately

two-week period, should have recognized and questioned the unprecedented

nature of the Bybee Memo's conclusion that acts of outright torture could not be

210 To date, Bybee has not acknowledged that the Bybee and Yoo Memos were incomplete or

otherwise deficient in any respect, but has conceded that certain sections could have been more

thorough. In his response to a draft of this report, he commented that: (1) in discussing the

ratification history of the CAT, "OLC may have unwittingly overstated the degree of unity between

[the Bush and Reagan] Administrations' views"; (2) "certain portions of the [Commander-in-Chief

and common law defenses] analysis would benefit from additional clarification"; (3) "in retrospect,

this particular-section [concluding that Congress had no power to regulate interrogation] could

have been more fulsome"; (4) "even if it would have been better to cite Oakland, this is not evidence

of an ethics violation"; and (5) "in retrospect, it would have been useful to cite either the Bush

Administration's understanding of the availability of the necessity defense or both the Reagan

Administration's and the Bush Administration's understanding . . ." Bybee Response at 48, 54-

55, 68, 72, 75.

prosecuted under certain circumstances, or that common law defenses could be

successfully invoked by a defendant in a prosecution for torture.

We also found that Bybee should have questioned the logic and utility of

applying language from the medical benefits statutes to the torture statute, and

should have recognized the potentially misleading nature of statements such as,

"even if the defendant knows that severe pain will result from his actions, if

causing such harm is not his objective, he lacks the requisite specific intent even

though the defendant did not act in good faith."

Our conclusion that Bybee should have known about the serious flaws. in

the memoranda is reinforced by Philbin's statement that he voiced his doubts to

Bybee about the accuracy of the Bybee Memo's specific intent discussion, and

advised against discussing possible defenses or including the section on the

Commander-in-Chief power. Although Philbin stated that he ultimately advised

Bybee that he could sign the Bybee Memo because he thought the questionable

sections were dicta, we would expect a reasonable attorney in Bybee's position to

react to these significant concerns.raised by one of his Deputy AAGs by verifying

that the opinion was thorough, objective, and candid before signing it, even if that

meant conducting independent research, reading the authorities that supported

the questionable arguments, or obtaining comments from other Department

attorneys or government national security experts. As such, we concluded that

Bybee knew or should have known that there was a substantial likelihood the

Bybee Memo did not present a thorough, objective, and candid view of the law,

and, given the importance of the matter, his actions were objectively unreasonable

under the circumstances. Consequently, we concluded that he acted in reckless

disregard of his obligation to provide thorough, objective and candid legal advice.

3. Patrick Philbin

Philbin conducted the second Deputy reviews for the Bybee Memo, the

Classified Bybee Memo, and the Yoo Memo. As with Bybee, we concluded that he

was not responsible for checking the accuracy and completeness of every citation,

case summary, or argument, and that he was responsible for verifying that the

memoranda provided thorough, objective, and candid legal analysis. He also had

the duty to bring any apparent problems to the attention of the OLC official who

signed the document in question.

- 257 -

We concluded that Philbin did not commit professional misconduct in this

matter. Philbin raised his concerns about the memoranda with both Yoo and

Bybee, he did not have ultimate control over the content of the memoranda, and

he did not sin After Yoo and Bybee resigned from the Department, Philbin

directed to notify the Department of Defense that it could not rely on the

Yoo Memo to approve any additional enhanced interrogation techniques. He later

alerted Goldsmith to the flawed reasoning in the memoranda, and participated in

the decision to formally withdraw the Bybee and Yoo Memos. Accordingly, we

concluded that Philbin did notcommit professional misconduct in this matter.

was a relatively inexperienced attorney when the Bybee and Yoo.

Memos were beinilfted, and worked under the direction and supervision

of Yoo. Although appears to have made errors of research_ and analysis in

drafting portions of the Bybee and Yoo MemosMwork was subject to Yoo's and

Bybee's review and approval. We therefore concluded thatMhould•not be held

professionally responsible for the incomplete and one-sidedlegal advice that was

provided in the memoranda.

5. Steven Bradbury

Bradbury signed four OLC memoranda related to the CIA interrogation

program- the 2005 Bradbury Memo, the Combined Techniques Memo, the Article

16 Memo, and the 2007 Bradbury Memo. As discussed above, we had serious

concerns about some of his analysis, but we did not conclude that those problems

rose to the level of professional misconduct. The Bradbury Memos incorporated

the legal analysis of the Levin Memo, which Bradbury helped draft, and which

substantially corrected the defects in the Bybee and Yoo. Memos — specifically

eschewing reliance on the Commander-in-Chief, necessity, and self-defense

sections, correcting the inaccurate specific intent section, and removing the earlier

memoranda's reliance on the health benefits statute. None of the analysis in the

Bradbury Memos is comparable to the inadequately supported, unprecedented

theories advanced in the Bybee and Yoo Memos to support the proposition that

torture can be permitted or justified under certain circumstances.

- 259 -

In applying the facts to the law, Bradbury explicitly qualified his

conclusions and explained the assumptions and limitations that underlay his

analysis. Moreover, Bradbury distributed drafts of the memoranda widely, within

and without the Department, for comments. The memoranda were written in a

careful, thorough, lawyerly manner, which we concluded fell within the

professional standards that apply to Department attorneys.

As previously discussed, in light of the interrogation abuses described in

the CIA OIG Report and the ICRC report, as well as the fact that the SERE

program was fundamentally different from the CIA interrogation program,

however, we believe Bradbury should have cast a more critical eye on the

conclusory findings of the Effectiveness Memo, which were essential to his

analysis, in both the Article 16 Memo and the 2007 Bradbury Memo, that the use

of EITs was consistent with constitutional standards and international norms.

However, we found that these issues did not rise to the level of professional

misconduct.

6. Other Department Officials

We did not find that the other Department officials who reviewed the Bybee

Memo 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 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.

G. Institutional Concerns

In addition to assessing individual responsibility in this matter, we noted,

in the course of our investigation, several managerial concerns. First, we found

that the review of the OLC memoranda within the Department and the national

security arena was deficient. The memoranda were not circulated to experts on

national security law in the Criminal Division, or to the State Department, which

had an interest in the interpretation of treaties. Given the significance of the issue

- opining on the CIA's use of EITs to gain intelligence in the absence of clear

precedent on the issue - and the pressure of knowing that missed intelligence

might result in another terrorist attack, the memoranda should have been

circulated to all attorneys and policy makers with expertise and a stake in the

issues involved.

We found that the limitations imposed on the circulation of the draft were,

in part, based on the limited number of security clearances granted to review the

materials. This denial of clearances to individuals who routinely handle highly

classified materials has never been explained satisfactorily and represented a

departure from OLC's traditional practices of widely circulating drafts of important

opinions for comment. In the end, the restrictions added to the failure to identify

the major flaws in the OLC's legal advice.

We commend the Best Practices as laid out by Bradbury and urge the OLC

to adhere to them. In order to effect, its mission of providing authoritative legal

advice to the Executive Branch, the OLC must remain independent and produce

thorough, objective, and candid legal opinions. The Department, and in particular

the Attorney General and Deputy Attorney General, must encourage and support

the OLC in its independence, even when OLC advice prevents its clients, including

the White House, from taking the actions it desired.

CONCLUSION

Based on the results of our investigation, we concluded that former Deputy

AAG John Yoo committed intentional professional misconduct when he violated

his duty to exercise independent legal judgment and render thorough, objective,

and candid legal advice.

We found that former AAG Jay Bybee committed professional misconduct

when he acted in reckless disregard of his duty to exercise independent legal

judgment and render thorough, objective, and candid legal advice. 211

211 Pursuant to Department policy, we will notify bar counsel in the states where Yoo and

Bybee are licensed.

We did not find that the other Department officials involved in this matter

committed professional misconduct in this matter.

In addition to these findings, we recommend that, for the reasons

discussed in this report, the Department review certain declinations of

prosecution regarding incidents of detainee abuse referred to the Department by

the CIA OIG.

Jun 2004

Unclassified Bybee Memo

Withdrawn

Unclassified Bybee Memo to

WH Counsel Gonzales

Abu Zubaydah Captured Yoo Memo Withdrawn

2001 2002 2003 2004

Mar 2002 Dec 2003

Classified Bybee Memo

Aug 1, 2002

Office of Legal Counsel's Memoranda Timeline

Bybee Leaves OLC:

Whelan Becomes Acting AAG

Bybee Confirmed as AAG

Yoo Joins OLC as DRAG

Koffsky Becomes Acting AAG

Whelan becomes Acting AAG

ATTACHMENT A

Yoo Leaves OLC

Goldsmith Becomes AAG

Corney Becomes DAG

Goldsmith Leaves OLC:

Levin Becomes Acting AAG

Combined Use Memo

Dec 30, 2005

Detainee Treatment Act Passed

Jul 20, 2007

Military Commissions Act Passed

Oct 17, 2006

Jul 29 2006

Supreme Court Rules in

Hamdan v. Rumsfeld

2007

Bradbury Renominated

Corney Leaves DOJ Bradbury Resumes Principal Deputy Position

Bradbury Nominated for AAG, OLC Bradbury Renominated

and Becomes Acting AAG

Bradbury Becomes Principal Deputy

Levin Leaves OLC

2005

2006

Attachment B

Glossary of Acronyms

AAG Assistant Attorney General

ABA American Bar Association

ACLU American Civil Liberties Union

AG Attorney General

CAT United Nations Convention Against Torture and Other Cruel,

Inhumane, or Degrading Treatment

CIA Central Intelligence Agency

CITA Department of Defense's Criminal Investigative Task Force

CTC CIA Counter Terrorism Center

DAG Deputy Attorney General

DHS Department of Defense's Defense Humint Services

DOD Department of Defense

DOJ Department of Justice

ECHR European Court of Human Rights

EDVA United States Attorney's Office for the Eastern District of

Virginia

EIT Enhanced Interrogation Technique

FBI Federal Bureau of Investigation

ICC International Criminal Court

JPRA Department of Defense Joint Personnel Recovery Agency

JTF Army Intelligence Joint Task Force

NCIS Naval Criminal Investigative Service

NSA National Security Agency

NSC National Security Council

OGC Office of General Counsel

OIG Office of the Inspector General

OLC Office of Legal Counsel

OPR Office of Professional Responsibility

PREAL Pre-Academic Laboratory

SERE Program Survival, Evasion, Resistance, Escape Program

TVPA Torture Victim Protection Act

USSG United States Sentencing Guidelines

Addington, David

Ashcroft, John

Bellinger, John, III

Bradbury, Steven G.

Brant, David

Bybee, Jay S.

Chertoff, Michael

Ciongoli, Adam

Clement, Paul

Comey, James

Fisher, Alice

Flanigan, Timothy

Fleisher. Ari

Goldsmith, Jack, III

Gonzales, Alberto

Hadley, Stephen

Attachment C

Glossary of Names

Counsel to Vice President 2001-2005; Chief of Staff to the

Vice President 2005-2009

Attorney General 2001-2005

Counsel, Office of Intelligence and Policy Review

Legal Adviser to the JTF

Legal Adviser to the NSC 2001-2005; Legal Adviser to the

Secretary of State 2005-2009

Principal Deputy AAG OLC May 2005-June 2005, April

2007 - January 2009; Acting AAG OLC June 2005- April

2007

Director Naval Criminal Investigative Services

OLC AAG 2001-2003

AAG, Criminal Division 2001-2003

Counselor to the Attorney General 2001-2003

Solicitor General 2005-2008

FBI Supervisory Special Agent

Attorney in DOD OGC

Deputy Attorney General 2003-2005

NSC Attorney

DOD Associate General Counsel

CIA attorney

CIA Associate General Counsel

Assistant U.S. Attorney, EDVA

OLC paralegal

Deputy AAG, Criminal Division 2001-2003; AAG 2005-

2008

Deputy White House Counsel 2001-2002

White House spokesperson

CIA Counter Terrorism Center attorney

NCIS psychologist based in Guantanamo

Assistant U.S. Attorney, EDVA

OLC AAG October 2003 - June 2004

White House Counsel 2001-2005; Attorney General

2005-2007

Deputy National Security Advisor 2001-2005; National

Security Advisor 2005-2009

Haynes, William J., II DOD General Counsel 2001-2008

Helgerson, John CIA Inspector General

Leahy, Patrick

Levin, Daniel

McCain, John

McLaughlin, John

McNulty, Paul

Miers, Harriet

Mora, Alberto

Morello, Steven

Muller, Scott

Mueller, Robert S., III

Philbin, Patrick

Powell, Colin

Rice, Condoleeza

Rizzo, John A.

Rosenberg, Chuck

Rotunda, Ronald

Rumsfeld, Donald

Tenet, George

Thom son

Wolf, Frank

Yoo, John

Jarrett, H. Marshall

CIA attorney

Counsel, OPR 1998 - 2009

OLC Attorney Advisor 2002-2003; Special Assistant

General Counsel DOD 2003-2004; Assistant General

Counsel, Department of Homeland Security 2005-2006

United States Senator from Vermont

Deputy White House Counsel 2002-2005

OLC Acting AAG July 2004-February 2005

United States Senator from Arizona

Acting Director of Central Intelligence

U.S. Attorney, EDVA

11111Assistant U.S. Attorney, EDVA

White House Counsel 2005-2007

Navy General Counsel 2001-2006

Army General Counsel 2001-2004

Chief of Staff to the Director of Central Intelligence

CIA General Counsel 2002-2004

FBI Director 2001-present

OLC Deputy AAG 2001-2003; Associate Deputy Attorney

General 2003-2005

Secretary of State 2001-2005

National Security Adviser 2001-2005; Secretary of State

2005-2009

Acting General Counsel CIA 2001-2002; 2004-present

Army JAG Major General

Office of the Deputy Attorney General, Chief of Staff

Professor, Chapman University School of Law

Secretary of Defense 2001-2006

DOJ CounterTerrorism Section Chief

Assistant U.S. Attorney, EDVA

DOJ CounterTerrorism Section attorney

Legal Adviser, Department of State 2001-2005

Director of Central Intelligence 1997-2004

Deputy Attorney General 2001-2003

CIA attorney

Chief of Staff for Attorney General Gonzales

CIA atttorney

NSC attorney

U.S. Congressman from Virginia

De"u I/1iii.,iC m2001-2003

Attachment D

Chronological List of Office of Legal Counsel Memoranda

on the Issue of Enhanced Interrogation

August 1, 2002: Memorandum for Alberto R. Gonzales, Counsel to the

President, from Jay S. Bybee, Assistant Attorney General,

Office of Legal Counsel, Re: Standards of Conduct for

Interrogation under 18 U.S.C. §§ 2340-2340A (August 1, 2002)

(An unclassified overview of the Anti-Torture Statute and

Convention Against Torture which concluded that "acts must

be of an extreme nature to rise to the level of torture within the

meaning" of both; an analysis of whether the Anti-Torture

Statute may be unconstitutional if applied to interrogations

undertaken of enemy combatants pursuant to the President's

Commander-in-Chief powers; and an analysis of possible

defenses to an allegation that an interrogation method violated

the statute, concluding that necessity or self-defense "may

justify interrogation methods that might violation Section

2340A").

August 1, 2002: Memorandum for John A. Rizzo, Acting General Counsel,

Central Intelligence Agency, from Jay S. Bybee, Assistant

Attorney General, Office of Legal Counsel, Interrogation of al

Qaeda Operative (August 1, 2002) (A classified analysis of

specific interrogation techniques proposed for use in the

interrogation of Abu Zubaydah; declassified 2009).

March 14, 2003: Memorandum for William J. Haynes, II, from John C. Yoo,

Deputy Assistant General, Office of Legal Counsel, Re: Military

Interrogation of Unlawful Combatants Held Outside the United

States (March 14, 2003) (An examination of the legal standards

governing military interrogations of alien unlawful combatants

held outside the United States, including an analysis of: the

application of the Fifth and Eighth Amendments; federal

criminal law; international law; and defenses to possible

criminal prosecutions; declassified 2008).

December 30, Memorandum for the Attorney General, from Daniel Levin,

2004: Acting Assistant Attorney General, Office of Legal Counsel, Re:

Legal Standards Applicable Under 18 U.S.C. §§ 2340-2340A,

(December 30, 2004) (Unclassified memo replacing the

withdrawn Bybee Memo).

May 10, 2005: Memorandum for John A. Rizzo, Senior Deputy Counsel,

Central Intelligence Agency, from Steven G. Bradbury, Principal

Deputy Assistant Attorney General, Office of Legal Counsel, Re:

Application of 18 U.S.C. §§ 2340-2340A to Certain Techniques

That May Be Used in the Interrogation of a High Value al Qaeda

Detainee (May 10, 2005) (Memo replacing the Classifed Bybee

Memo; declassified 2009).

May 10, 2005: Memorandum for John A. Rizzo, Senior Deputy Counsel,

Central Intelligence Agency, from Steven G. Bradbury, Principal

Deputy Assistant Attorney General, Office of Legal Counsel, Re:

Application of 18 U. S.C. §§ 2340-2340A to Combined Use of

Certain Techniques That May Be Used in the Interrogation of a

High Value al Qaeda Detainee (May 10, 2005) (Memo

addressing question of whether the combined or cumulative

effects of certain techniques could render a prisoner unusually

susceptible to physical or mental pain or suffering;

declassified 2009).

May 30, 2005: Memorandum for John A. Rizzo, Senior Deputy Counsel,

Central Intelligence Agency, from Steven G. Bradbury, Principal

Deputy Assistant Attorney General, Office of Legal Counsel, 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) (Memo asserting that Article 16 did nto apply to

conduct outside the United States, but addressing whether the

EITs would violate Article 16 if geographic limits did not apply;

declassified 2009).

July 20, 2007: Memorandum for John A. Rizzo, Acting General Counsel,

Central Intelligence Agency, from Steven G. Bradbury, Principal

Deputy Assistant Attorney General, Office of Legal Counsel, Re:

Application of War Crimes Act, the Detainee Treatment Act, and

Common Article 3 of the Geneva Convention to Certain

Techniques that May Be Used in the Interrogation of High Value

al Qaeda Detainees (July 20, 2007) (Memo updating earlier

memoranda in light of the Detainee Treatment Act and Military

Commissions Act; classified).

'M1' â111f11H11111111111 '1 11 11E111 n

Attachment E

U.S. Department of Justice

Office of Legal Counsel

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

May 16, 2005

MEMORANDUM FOR ATTORNEYS OF THE OFFICE

Re: Best Practices for OLC Opinions

By delegation, the Office of Legal Counsel exercises the Attorney General's authority

under the Judiciary Act of 1789 to advise the President and executive agencies on questions of

law. OLC is authorized to provide legal advice only to the Executive Branch; we do not advise

Congress, the Judiciary, foreign governments, private parties, or any other person or entity

outside the Executive Branch. OLC's primary function is to provide formal advice through

written opinions signed by the Assistant Attorney General or (with the approval of the AAG) a

Deputy Assistant Attorney General. Our Office is frequently called upon to address issues of

central importance to the functioning of the federal Government, and, subject to the President's

authority under the Constitution, OLC opinions are controlling on questions of law within the

Executive Branch. Accordingly, it is imperative that our opinions be clear, accurate, thoroughly

researched, and soundly reasoned. The value of an OLC opinion depends on the strength of its

analysis. Over the years, OLC has earned a reputation for giving candid, independent, and

principled advice—even when that advice may be inconsistent with the desires of policymakers.

This memorandum reaffirms the longstanding principles that have guided and will continue to

guide OLC attorneys in preparing the formal opinions of the Office.

Evaluating opinion requests. Each opinion request is assigned to a Deputy and an

Attorney-Adviser, who will review the question presented and any relevant statutory materials,

prior OLC opinions, and leading cases to determine preliminarily whether the question is

appropriate for OLC advice and whether it appears to merit a written opinion, as distinct from

informal advice. The legal question presented should be focused and concrete; OLC generally

avoids undertaking a general survey of an area of law or a broad, abstract legal opinion. There

also should be a practical need for the opinion; OLC particularly should avoid giving

unnecessary advice where it appears that policymakers are likely to move in a different direction.

A formal opinion is more likely to be necessary when the legal question is the subject of a

concrete and ongoing dispute between two or more executive agencies. If we are asked to

provide an opinion to an executive agency whose head does not serve at the pleasure of the

President (i.e., an agency whose head is subject to a "for cause" removal restriction), our practice

is to receive in writing from that agency an agreement to be bound by our opinion. As a

prudential matter, OLC should avoid opining on questions likely to be at issue in pending or

imminent litigation involving the United States as a party (except where there is a need to resolve

a dispute within the Executive Branch over a position to be taken in litigation). Finally, the

opinions of the Office should address legal questions prospectively; OLC avoids opining on the

El ItIlt N El'1117:11. :77111:.!17

legality of past conduct (though from time to time we may issue prospective opinions that

confirm or memorialize past advice or that necessarily bear on past conduct).

Soliciting the views of interested agencies. Before we proceed with an opinion, our

general practice is to ask the requesting agency for a detailed memorandum setting forth the

agency's own analysis of the question—in many cases, there will be preliminary discussions

with the requesting agency before the formal opinion request is submitted to OLC, and the

agency will be able to provide its analysis along with the opinion request. (A detailed analysis is

not required when the request comes from the Counsel to the President, the Attorney General, or

one of the three other Senior Management Offices of the Department of Justice.) In the case of

an interagency dispute, we will ask each side to submit such a memorandum. Ordinarily, we

expect the agencies on each side of a dispute to share their memoranda with the other side, or

permit us to share them, so that we may have the benefit of reply comments, when necessary.

When appropriate and helpful, and consistent with the confidentiality interests of the requesting

agency, we will also solicit the views of other agencies not directly involved in the opinion

request that have subject-matter expertise or a special interest in the question presented. For

example, when the question involves the interpretation of a treaty or a matter of foreign relations,

our practice is to seek the views of the State Department; when it involves the interpretation of a

criminal statute, we will usually seek the views of the Justice Department's Criminal Division.

We will not, however, circulate a copy of an opinion request to third-party agencies without the

prior consent of the requesting agency.

Researching, outlining, and drafting. An OLC opinion is the product of a careful and

deliberate process. After reviewing agency submissions and relevant statutes, OLC opinions and

leading cases, the Deputy and Attorney-Adviser should meet to map out a plan for researching

the issues and preparing an outline and first draft of the opinion. The Deputy and Attorney-

Adviser should set target deadlines for each step in the process and should meet regularly to

review progress on the opinion. A thorough working outline of the opinion will help to focus the

necessary research and the direction of the analysis. An early first draft often will help identify

weaknesses or holes in the analysis requiring greater attention than initially anticipated. As work

on the opinion progresses, it will generally be useful for the Deputy and the Attorney-Adviser to

meet from time to time with the AAG to discuss the status and direction of the opinion project.

An OLC opinion should focus intensively on the central issues raised by a question of

law and should, where possible, avoid addressing issues not squarely presented. On any issue

involving a constitutional question, OLC's analysis should focus principally on the text of the

Constitution and the historical record illuminating the original meaning of the text and should be

faithful to that historical understanding. Where the question relates to the authorities of the

President or other executive officers or the separation of powers between the Branches of the

Government, past precedents and historical practice are often highly relevant. On questions of

statutory and treaty interpretation, OLC's analysis will be guided by the text and will rely on

traditional tools of construction in interpreting the text. OLC opinions should also consider and

apply the past opinions of Attorneys General and this Office, which are ordinarily given great

weight. The Office will not lightly depart from such past decisions, particularly where they

directly address and decide a point in question. Decisions of the Supreme Court and courts of

appeals directly on point often provide guiding authority and should be thoroughly addressed,

2

'uithu' ¢L cdiiu. marommounronstansemenmantrmi,

particularly where the issue is one that is likely to become the subject of litigation. Many times,

however, our Office will be asked to opine on an issue of first impression or one that is unlikely

to be resolved by the courts; in such instances, court decisions in relevant or analogous areas

may serve as persuasive authority, depending on the strength of their analysis.

In general, we strive in our opinions for clarity and conciseness in the analysis and a

balanced presentation of arguments on each side of an issue. If the opinion resolves an issue in

dispute between executive agencies, we should take care to consider fully and address

impartially the points raised on both sides; in doing so, it is best, to the extent practicable, to

avoid ascribing particular points of view to the agencies in a way that might suggest that one side

is the "winner" and one the "loser." OLC's interest is simply to provide the correct answer on

the law, taking into account all reasonable counterarguments, whether provided by an agency or

not. It is therefore often not necessary or desirable to cite or quote agencies' views letters.

Secondary review of draft opinions. Before an OLC opinion is finalized it undergoes

rigorous review by the Front Office within OLC and often by others outside the Office. When

the primary Deputy and the Attorney-Adviser responsible for the opinion are satisfied that the

draft opinion is ready for secondary review, the opinion is generally assigned to a second Deputy

for a "second Deputy read." Along with the draft opinion, the Attorney-Adviser should provide

to the second Deputy copies of any key materials, including statutes, regulations, key cases,

relevant prior OLC opinions, and the views memoranda received from interested agencies. Once

the second Deputy read is complete and the second Deputy's comments have been addressed, the

primary Deputy should circulate the draft opinion for final review by the AAG, the remaining

Deputies, and any particular attorneys within the Office with relevant expertise.

Once OLC's internal review is complete, a draft of the opinion may be shared outside the

Office. In some cases, because of time constraints, OLC may circulate a draft opinion before the

internal review is complete. Our general practice is to circulate draft opinions to the Office of

the Attorney General and the Office of the Deputy Attorney General for review and comment.

When and as warranted, we also circulate an informational copy of the draft opinion to the

Office of the Counsel to the President. In addition, in most cases, we will circulate a draft to the

requesting agency (or, in cases where we are resolving a dispute between agencies, to those

agencies that are parties to the dispute) for review, primarily to ensure that the opinion does not

misstate the facts or the legal points of interest to the agencies. On certain occasions, where we

determine it appropriate, we may circulate a draft opinion to one or more other agencies that

have special expertise or interest in the subject matter of the opinion, particularly if they have

offered views on the question.

Finalizing opinions. Once all substantive work on the opinion is complete, it must

undergo a thorough cite check by our paralegal staff to ensure the accuracy of all citations and

consistency with the Office's rules of style. After all cite-checking changes have been approved

and made, the final opinion should be printed on bond paper for signature. Each opinion ready

for signature should include a completed opinion control sheet signed by the primary Deputy, the

Attorney-Adviser, and the Deputy who did the second Deputy read. After it is signed and issued,

if the opinion is unclassified, it will be loaded into our ISYS database and included in the

Office's unclassified Day Books. A separate file containing a copy of the signed opinion, the

3

Piii1;1111111111 1111 MIINGIIIRM11111111111111111N111111'7.1n1111-

opinion control sheet, and copies of key materials not readily available, such as the original

opinion request, the views memoranda of interested agencies, and obscure sources cited in the

opinion, will also be retained in our files for future reference.

Opinion publication. Most OLC opinions consist of confidential legal advice for senior

Executive Branch officials. Maintaining the confidentiality of OLC opinions is often necessary

to preserve the deliberative process of decisionmaking within the Executive Branch and attorneyclient

relationships between OLC and other executive offices; in some cases, the disclosure of

OLC advice also may interfere with federal law enforcement efforts. These confidentiality

interests are especially great for OLC opinions relating to the President's exercise of his

constitutional authorities, including his authority as Commander in Chief. It is critical to the

discharge of the President's constitutional responsibilities that he and the officials under his

supervision are able to receive confidential legal advice from OLC.

At the same time, many OLC opinions address issues of relevance to a broader circle of

Executive Branch lawyers or agencies than just those officials directly involved in the opinion

request. In some cases, the President or an affected agency may have a programmatic interest in

putting other agencies, Congress, or the public on notice of the legal conclusion reached by OLC

and the supporting reasoning. In addition, some OLC opinions will be of significant practical

interest and benefit to lawyers outside the Executive Branch, or of broader interest to the general

public, including historians. In such cases, and when consistent with the legitimate

confidentiality interests of the President and the Executive Branch, it is the policy of our Office

to publish OLC opinions. This publication program is in accordance with a directive from the

Attorney General to OLC to publish selected opinions on an annual basis for the convenience of

the Executive, Legislative, and Judicial Branches of the Government, and of the professional bar

and the general public.

At the time an opinion is signed, the attorneys responsible for the opinion will make a

preliminary recommendation as to whether it may be appropriate for eventual publication.

Thereafter, on a rolling or periodic basis, each opinion issued by the Office is reviewed for

possible publication by the OLC Publication Review Committee. If the Publication Review

Committee decides that the opinion meets the Office's basic criteria for publication, the

Committee will solicit the views of the agency or Justice Department component that requested

the opinion, and any agency or component likely to be affected by its publication, as to whether

the opinion is appropriate for current publication, whether its publication should be deferred, or

whether it should not be published. OLC gives due weight to the publication recommendations

of interested agencies and components, particularly where they raise specific concerns about

programmatic or litigation interests that might be advanced or compromised by publication of

the opinion. OLC also generally solicits the views of the Office of the Attorney General and the

Office of the Counsel to the President on publication questions, particularly with respect to

significant opinions of the Office.

After the final decision is made to publish an opinion, the opinion is rechecked and

reformatted for online publication; a headnote is prepared and added to the opinion; and the

opinion is posted to the Department of Justice Web site at www.usdoj.gov/olc/opinions.htm. All

opinions posted on the Web site are eventually published in OLC's hardcover bound volumes.

4

:11 BM . INAMOONOMMOVNIMMEMEMIUMMOWITIVIN

Please let me know if you have any questions about the principles set forth above or any

suggestions for revising or adding to the guidance provided in this memorandum.

Steven G. Bradbury

Principal Deputy Assistant Attorney General

5

11 ,14: 1111 I

112 VIENIMMINIIIIMOMPAIMMEMIEMMIENNAMMIMINI 11111119

Attachment F

Principles to Guide the Office of Legal Counsel

December 21, 2004

The Office of Legal Counsel (OLC) is the Department of Justice component to which the

Attorney General has delegated the function of providing legal advice to guide the actions of the

President and the agencies of the executive branch. OLC's legal determinations are considered

binding on the executive branch, subject to the supervision of the Attorney General and the

ultimate authority of the President. From the outset of our constitutional system, Presidents have

recognized that compliance with their constitutional obligation to act lawfully requires a reliable

source of legal advice. In 1793, Secretary of State Thomas Jefferson, writing on behalf of

President Washington, requested the Supreme Court's advice regarding the United States' treaty

obligations with regard to the war between Great Britain and France. The Supreme Court

declined the request, in important measure on the grounds that the Constitution vests

responsibility for such legal determinations within the executive branch itself: "[T]he three

departments of government ... being in certain respects checks upon each other, and our being

judges of a court in the last resort, are considerations which afford strong arguments against the

propriety of our extrajudicially deciding the questions alluded to, especially as the power given

by the Constitution to the President, of calling on the heads of departments for opinions seems to

have been purposely as well as expressly united to the executive departments." Letter from John

Jay to George Washington, August 8, 1793, quoted in 4 The Founders' Constitution 258 (Philip

B. Kurland & Ralph Lerner, eds. 1987).

From the Washington Administration through the present, Attorneys General, and in

recent decades the Office of Legal Counsel, have served as the source of legal determinations

regarding the executive's legal obligations and authorities. The resulting body of law, much of

which is published in volumes entitled Opinions of the Attorney General and Opinions of the

Office of Legal Counsel, offers powerful testimony to the importance of the rule-of-law values

that President Washington sought to secure and to the Department of Justice's profound tradition

of respect for the rule of law. Administrations of both political parties have maintained this

tradition, which reflects a dedication to the rule of law that is as significant and as important to

the country as that shown by our courts. As a practical matter, the responsibility for preserving

this tradition cannot rest with OLC alone. It is incumbent upon the Attorney General and the

President to ensure that OLC's advice is sought on important and close legal questions and that

the advice given reflects the best executive branch traditions. The principles set forth in this

document are based in large part on the longstanding practices of the Attorney General and the

Office of Legal Counsel, across time and administrations.

I. When providing legal advice to guide contemplated executive branch action, OLC should

provide an accurate and honest appraisal of applicable law, even if that advice will constrain the

administration's pursuit of desired policies. The advocacy model of lawyering, in which lawyers

craft merely plausible legal arguments to support their clients' desired actions, inadequately

promotes the President's constitutional obligation to ensure the legality of executive action.

OLC's core function is to help the President fulfill his constitutional duty to uphold the

Constitution and "take care that the laws be faithfully executed" in all of the varied work of the

I INof101 IIIBF r.lI I FIL1111111111111111111 111111N1111111111111111111111•EINEMMEEMINemempsyrweirr

executive branch. OLC provides the legal expertise necessary to ensure the lawfulness of

presidential and executive branch action, including contemplated action that raises close and

difficult questions of law. To fulfill this function appropriately, OLC must provide advice based

on its best understanding of what the law requires. OLC should not simply provide an

advocate's best defense of contemplated action that OLC actually believes is best viewed as

unlawful. To do so would deprive the President and other executive branch decisionmakers of

critical information and, worse, mislead them regarding the legality of contemplated action.

OLC's tradition of principled legal analysis and adherence to the rule of law thus is

constitutionally grounded and also best serves the interests of both the public and the presidency,

even though OLC at times will determine that the law precludes an action that a President

strongly desires to take.

2. OLC 's advice should be thorough and forthright, and it should reflect all legal constraints,

including the constitutional authorities of the coordinate branches of the federal government—the

courts and Congress—and constitutional limits on the exercise of governmental power.

The President is constitutionally obligated to "preserve, protect and defend" the

Constitution in its entirety—not only executive power, but also judicial and congressional power

and constitutional limits on governmental power—and to enforce federal statutes enacted in

accordance with the Constitution. OLC's advice should reflect all relevant legal constraints. In

addition, regardless of OLC's ultimate legal conclusions concerning whether proposed executive

branch action lawfully may proceed, OLC's analysis should disclose, and candidly and fairly

address, the relevant range of legal sources and substantial arguments on all sides of the

question.

3. OLC 's obligation to counsel compliance with the law, and the insufficiency of the advocacy

model, pertain with special force in circumstances where OLC 's advice is unlikely to be subject

to review by the courts.

In formulating its best view of what the law requires, OLC always should be mindful that

the President's legal obligations are not limited to those that are judicially enforceable. In some

circumstances, OLC's advice will guide executive branch action that the courts are unlikely to

review (for example, action unlikely to result in a justiciable case or controversy) or that the

courts likely will review only under a standard of extreme deference (for example, some

questions regarding war powers and national security). OLC's advice should reflect its best view

of all applicable legal constraints, and not only legal constraints likely to lead to judicial

invalidation of executive branch action. An OLC approach that instead would equate "lawful"

with "likely to escape judicial condemnation" would ill serve the President's constitutional duty

by failing to describe all legal constraints and by appearing to condone unlawful action as long as

the President could, in a sense, get away with it. Indeed, the absence of a litigation threat signals

special need for vigilance: In circumstances in which judicial oversight of executive branch

action is unlikely, the President—and by extension OLC—has a special obligation to ensure

compliance with the law, including respect for the rights of affected individuals and the

constitutional allocation of powers.

2

I,1[111BF111BVd,lllrlillElll=11111 iiissemessmmunimmosisiannotrinitrfill

4. OLC's legal analyses, and its processes for reaching legal determinations, should not simply

mirror those of the federal courts, but also should reflect the institutional traditions and

competencies of the executive branch as well as the views of the President who currently holds

office.

As discussed under principle 3, jurisdictional and prudential limitations do not constrain

OLC as they do courts, and thus in some instances OLC appropriately identifies legal limits on

executive branch action that a court would not require. Beyond this, OLC's work should reflect

the fact that OLC is located in the executive branch and serves both the institution of the

presidency and a particular incumbent, democratically elected President in whom the

Constitution vests the executive power. What follows from this is addressed as well under

principle 5. The most substantial effects include the following: OLC typically adheres to

judicial precedent, but that precedent sometimes leaves room for executive interpretive

influences, because doctrine at times genuinely is open to more than one interpretation and at

times contemplates an executive branch interpretive role. Similarly, OLC routinely, and

appropriately, considers sources and understandings of law and fact that the courts often ignore,

such as previous Attorney General and OLC opinions that themselves reflect the traditions,

knowledge and expertise of the executive branch. Finally, OLC differs from a court in that its

responsibilities include facilitating the work of the executive branch and the objectives of the

President, consistent with the requirements of the law. OLC therefore, where possible and

appropriate, should recommend lawful alternatives to legally impermissible executive branch

proposals. Notwithstanding these and other significant differences between the work of OLC

and the courts, OLC's legal analyses always should be principled, thorough, forthright, and not

merely instrumental to the President's policy preferences.

5. OLC advice should reflect due respect for the constitutional views of the courts and Congress

(as well as the President). On the very rare occasion when the executive branch—usually on the

advice of OLC—declines fully to follow a federal statutory requirement, it typically should

publicly disclose its justification.

OLC's tradition of general adherence to judicial (especially Supreme Court) precedent

and federal statutes reflects appropriate executive branch respect for the coordinate branches of

the federal government. On very rare occasion, however, Presidents, often with the advice of

OLC, appropriately act on their own understanding of constitutional meaning (just as Congress at

times enacts laws based on its own constitutional views). To begin with relatively

uncontroversial examples, Presidents at times veto bills they believe are unconstitutional and

pardon individuals for violating what Presidents believe are unconstitutional statutes, even when

the Court would uphold the statute or the conviction against constitutional challenge. Far more

controversial are rare cases in which Presidents decide to refuse to enforce or otherwise comply

with laws they deem unconstitutional, either on their face or in some applications. The precise

contours of presidential power in such contexts are the subject of some debate and beyond the

scope of this document. The need for transparency regarding interbranch disagreements,

however, should be beyond dispute. At a bare minimum, OLC advice should fully address

3

applicable Supreme Court precedent, and, absent the most compelling need for secrecy, any time

the executive branch disregards a federal statutory requirement on constitutional grounds, it

should publicly release a clear statement explaining its deviation. Absent transparency and

clarity, client agencies might experience difficulty understanding and applying such legal advice,

and the public and Congress would be unable adequately to assess the lawfulness of executive

branch action. Indeed, federal law currently requires the Attorney General to notify Congress if

the Department of Justice determines either that it will not enforce a provision of law on the

grounds that it is unconstitutional or that it will not defend a provision of law against

constitutional challenge.

6. OLC should publicly disclose its written legal opinions in a timely manner, absent strong

reasons for delay or nondisclosure.

OLC should follow a presumption in favor of timely publication of its written legal

opinions. Such disclosure helps to ensure executive branch adherence to the rule of law and

guard against excessive claims of executive authority. Transparency also promotes confidence

in the lawfulness of governmental action. Making executive branch law available to the public

also adds an important voice to the development of constitutional meaning—in the courts as well

as among academics, other commentators, and the public more generally—and a particularly

valuable perspective on legal issues regarding which the executive branch possesses relevant

expertise. There nonetheless will exist some legal advice that properly should remain

confidential, most notably, some advice regarding classified and some other national security

matters. OLC should consider the views regarding disclosure of the client agency that requested

the advice. Ordinarily, OLC should honor a requestor's desire to keep confidential any OLC

advice that the proposed executive action would be unlawful, where the requestor then does not

take the action. For OLC routinely to release the details of all contemplated action of dubious

legality might deter executive branch actors from seeking OLC advice at sufficiently early stages

in policy formation. In all events, OLC should in each administration consider the circumstances

in which advice should be kept confidential, with a presumption in favor of publication, and

publication policy and practice should not vary substantially from administration to

administration. The values of transparency and accountability remain constant, as do any

existing legitimate rationales for secret executive branch law. Finally, as discussed in principle

5, Presidents, and by extension OLC, bear a special responsibility to disclose publicly and

explain any actions that conflict with federal statutory requirements.

7. OLC should maintain internal systems and practices to help ensure that OLC 's legal advice is

of the highest possible quality and represents the best possible view of the law.

OLC systems and processes can help maintain high legal standards, avoid errors, and

safeguard against tendencies toward potentially excessive claims of executive authority. At the

outset, OLC should be careful about the form of requests for advice. Whenever possible, agency

requests should be in writing, should include the requesting agency's own best legal views as

well as any relevant materials and information, and should be as specific as circumstances allow.

Where OLC determines that advice of a more generally applicable nature would be helpful and

4

IPII IIINCIEHM11111111111 111111111111111111111MINIIIIINIMIMMEntrwEIVIT'

itisie∎∎ wan,

5

appropriate, it should take special care to consider the implications for its advice in all

foreseeable potential applications. Also, OLC typically should provide legal advice in advance

of executive branch action, and not regarding executive branch action that already has occurred;

legal "advice" after the fact is subject to strong pressures to follow an advocacy model, which is

an appropriate activity for some components of the Department of Justice but not usually for

OLC (though this tension may be unavoidable in some cases involving continuing or potentially

recurring executive branch action). OLC should recruit and retain attorneys of the highest

integrity and abilities. OLC should afford due respect for the precedential value of OLC

opinions from administrations of both parties; although OLC's current best view of the law

sometimes will require repudiation of OLC precedent, OLC should never disregard precedent

without careful consideration and detailed explanation. Ordinarily OLC legal advice should be

subject to multiple layers of scrutiny and approval; one such mechanism used effectively at times

is a "two deputy rule" that requires at least two supervising deputies to review and clear all OLC

advice. Finally, OLC can help promote public confidence and understanding by publicly

announcing its general operating policies and procedures.

8. Whenever time and circumstances permit, OLC should seek the views of all affected agencies

and components of the Department of Justice before rendering final advice.

The involvement of affected entities serves as an additional check against erroneous

reasoning by ensuring that all views and relevant information are considered. Administrative

coordination allows OLC to avail itself of the substantive expertise of the various components of

the executive branch and to avoid overlooking potentially important consequences before

rendering advice. It helps to ensure that legal pronouncements will have no broader effect than

necessary to resolve the question at hand. Finally, it allows OLC to respond to all serious

arguments and thus avoid the need for reconsideration.

9. OLC should strive to maintain good working relationships with its client agencies, and

especially the White House Counsel's Office, to help ensure that OLC is consulted, before the

fact, regarding any and all substantial executive branch action of questionable legality.

Although OLC's legal determinations should not seek simply to legitimate the policy

preferences of the administration of which it is a part, OLC must take account of the

administration's goals and assist their accomplishment within the law. To operate effectively,

OLC must be attentive to the need for prompt, responsive legal advice that is not unnecessarily

obstructionist. Thus, when OLC concludes that an administration proposal is impermissible, it is

appropriate for OLC to go on to suggest modifications that would cure the defect, and OLC

should stand ready to work with the administration to craft lawful alternatives. Executive branch

officials nonetheless may be tempted to avoid bringing to OLC's attention strongly desired

policies of questionable legality. Structures, routines and expectations should ensure that OLC is

consulted on all major executive branch initiatives and activities that raise significant legal

questions. Public attention to when and how OLC generally functions within a particular

administration also can help ensure appropriate OLC involvement.

I I WNW 11111111,41111111111111= I

10. OLC should be clear whenever it intends its advice to fall outside of OLC's typical role as

the source of legal determinations that are binding within the executive branch.

OLC sometimes provides legal advice that is not intended to inform the formulation of

executive branch policy or action, and in some such circumstances an advocacy model may be

appropriate. One common example: OLC sometimes assists the Solicitor General and the

litigating components of the Department of Justice in developing arguments for presentation to a

court, including in the defense of congressional statutes. The Department of Justice typically

follows a practice of defending an act of Congress against constitutional challenge as long as a

reasonable argument can be made in its defense (even if that argument is not the best view of the

law). In this context, OLC appropriately may employ advocacy-based modes of analysis. OLC

should ensure, however, that all involved understand whenever OLC is acting outside of its

typical stance, and that its views in such cases should not be taken as authoritative, binding

advice as to the executive branch's legal obligations. Client agencies expect OLC to provide its

best view of applicable legal constraints and if OLC acts otherwise without adequate warning, it

risks prompting unlawful executive branch action.

The following former Office of Legal Counsel attorneys prepared and endorse this document:

Walter E. Dellinger, Assistant Attorney General 1993-96

Dawn Johnsen, Acting Assistant Attorney General 1997-98; Deputy AAG 1993-97

Randolph Moss, Assistant Attorney General 2000-01, Acting 1998-2000; Deputy AAG 1996-98

Christopher Schroeder, Acting Assistant Attorney General 1997; Deputy AAG 1994-96

Joseph R. Guerra, Deputy Assistant Attorney General 1999-2001

Beth Nolan, Deputy Assistant Attorney General 1996-99; Attorney Advisor 1981-85

Todd Peterson, Deputy Assistant Attorney General 1997-99; Attorney Advisor 1982-85

Cornelia T.L. Pillard, Deputy Assistant Attorney General 1998-2000

H. Jefferson Powell, Deputy Assistant Attorney General and Consultant 1993-2000

Teresa Wynn Roseborough, Deputy Assistant Attorney General 1994-1996

Richard Shiffrin, Deputy Assistant Attorney General, 1993-97

William Michael Treanor, Deputy Assistant Attorney General 1998-2001

David Barron, Attorney Advisor 1996-99

Stuart Benjamin, Attorney Advisor 1992-1995

Lisa Brown, Attorney Advisor 1996-97

Pamela Harris, Attorney Advisor 1993-96

Neil Kinkopf, Attorney Advisor 1993-97

Martin Lederman, Attorney Advisor 1994-2002

Michael Small, Attorney Advisor 1993-96

Attachment G

District of Columbia Rules of Professional Conduct

Rule 2.1 - Advisor

In representing a client, a lawyer shall exercise independent professional judgment

and render candid advice. In 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.

Comment - Rule 2.1

Scope of Advice

[1] A client is entitled to straightforward advice expressing the lawyer's honest

assessment. Legal advice often involves unpleasant facts and alternatives that a

client may be disinclined to confront. In presenting advice, a lawyer 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.

[2] Advice couched in narrowly legal terms may be of little value to a client,

especially where practical considerations, such as cost or effects on other people,

are predominant. Purely technical legal advice, therefore, can sometimes be

inadequate. It is proper for a lawyer to refer to relevant moral and ethical

considerations in giving advice. Although a lawyer is not a moral advisor as such,

moral and ethical considerations impinge upon most legal questions and may

decisively influence how the law will be applied.

[3] A client may expressly or impliedly ask the lawyer for purely technical advice.

When such a request is made by a client experienced in legal matters, the lawyer

may accept it at face value. When such a request is made by a client inexperienced

in legal matters, however, the lawyer's responsibility as advisor may include

indicating that more may be involved than strictly legal considerations.

[4] Matters that go beyond strictly legal questions may also be in the domain of

another profession. Family matters can involve problems within the professional

competence of psychiatry, clinical psychology, or social work; business matters can

involve problems within the competence of the accounting profession or of financial

specialists. Where consultation with a professional in another field is itself

something a competent lawyer would recommend, the lawyer should make such

a recommendation. At the same time, a lawyer's advice at its best often consists

of recommending a course of action in the face of conflicting recommendations of

experts.

Offering Advice

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[5] In general, a lawyer is not expected to give advice until asked by the client.

However, when a lawyer knows that a client proposes a course of action that is

likely to result in substantial adverse legal consequences to the client, duty to the

client under Rule 1.4 may require that the lawyer act if the client's course of action

is related to the representation. Similarly, when a matter is likely to involve

litigation, it may be necessary under Rule 1.4 to inform the client of forms of

dispute resolution that might constitute reasonable alternatives to litigation. A

lawyer ordinarily has no duty to initiate investigation of a client's affairs or to give

advice that the client has indicated is unwanted, but a lawyer may initiate advice

to a client when doing so appears to be in the client's interest.

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H

District of Columbia Rules of Professional Conduct

Rule 1.1 - Competence

(a) A lawyer shall provide competent representation to a client. Competent

representation requires the legal knowledge, skill, thoroughness and preparation

reasonably necessary for the representation.

(b) A lawyer shall serve a client with skill and care commensurate with that

generally afforded to clients by other lawyers in similar matters.

Comment - Rule 1.1

Legal Knowledge and Skill

1. [1] In determining whether a lawyer employs the requisite knowledge and skill

in a particular matter, relevant factors include the relative complexity and

specialized nature of the matter, the lawyer's general experience, the lawyer's

training and experience in the field in question, the preparation and study the

lawyer is able to give the matter, and whether it is feasible to refer the matter to,

or associate or consult with, a lawyer of established competence in the field in

question. In many instances, the required proficiency is that of a general

practitioner. Expertise in a particular field of law may be required in some

circumstances. One such circumstance would be where the lawyer, by

representations made to the client, has led the client reasonably to expect a special

level of expertise in the matter undertaken by the lawyer.

[2] A lawyer need not necessarily have special training or prior experience to handle

legal problems of a type with which the lawyer is unfamiliar. A newly admitted

lawyer can be as competent as a practitioner with long experience. Some important

legal skills, such as the analysis of precedent, the evaluation of evidence, and legal

drafting, are required in all legal problems. Perhaps the most fundamental legal

skill consists of determining what kind of legal problems a situation may involve,

a skill that necessarily transcends any particular specialized knowledge. A lawyer

can provide adequate representation in a wholly novel field through necessary

study. Competent representation can also be provided through the association of

a lawyer of established competence in the field in question.

[3] In an emergency a lawyer may give advice or assistance in a matter in which the

lawyer does not have the skill ordinarily required where referral to or consultation

or association with another lawyer would be impractical. Even in an emergency,

however, assistance should be limited to that reasonably necessary in the

circumstances, for ill-considered action under emergency conditions can jeopardize

the client's interest.

[4]A lawyer may accept representation where the requisite level of competence can

be achieved by reasonable preparation. This applies as well to a lawyer who is

appointed as counsel for an unrepresented person. See also Rule 6.2.

Thoroughness and Preparation

[5] 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. It also includes

adequate preparation, and continuing attention to the needs of the representation

to assure that there is no neglect of such needs. 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.

Maintaining Competence

[6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of

changes in the law and its practice, and engage in such continuing study and

education as may be necessary to maintain competence.