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

 

INVESTIGATION: THE OFFICE OF LEGAL COUNSEL'S MEMORANDA ON

ISSUES RELATING TO THE CENTRAL INTELLIGENCE AGENCY'S USE OF

"ENHANCED INTERROGATION TECHNIQUES" ON SUSPECTED TERRORISTS

DRAFT

(U) INTRODUCTION AND SUMMARY

(U) On June 7, 2004, in the wake of media reports of detainee abuse by

United States soldiers at the Abu Ghraib prison in Iraq, the Wall Street Journal

reported that the Department of Justice had advised the Department of Defense

(DOD) that the. President's Commander-in-Chief power allowed him to authorize

interrogations amounting to torture, notwithstanding the prohibitions of 18 U.S.C.

§ 2340-2340A (the torture statute) and the United Nations Convention Against

Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment, Apr.

18, 1988, 1465 U.N.T.S. 113 (the CAT). Jess Bravin, Pentagon Report Set

Framework For Use of Torture, Wall Street Journal, June 7, 2004. The day the

article appeared, the paper posted on its web site a copy of a MarCh 6, 2003 draft

of a classified report on military interrogation methods (the draft Working Group

Report), and alleged that the document reflected the advice of Department of

Justice lawyers.

(U) On June 8, 2004, the Washington Post reported:

In August 2002, the Justice Department advised the

White House that torturing al Qaeda terrorists in

captivity abroad 'may be justified,' and that international

laws against torture 'may be unconstitutional if applied

to interrogations' conducted in President . Bush's war on

terrorism.

Dana Priest and R. Jeffrey Smith, Memo Offered Justification for Use of Torture,

Washington Post, June 8, 2004 at Al.

(U) The article quoted extensively from "a newly obtained" Department of

Justice memorandum. Id. On June 13, 2004, the Washington Post posted a

copy of that memorandum on its web site, identifying it as an August 1, 2002

memorandum from then Assistant Attorney General (AAG) Jay S. Bybee of the

Office of Legal Counsel (OLC) to Alberto R. Gonzales, then Counsel to the

President, captioned "Standards of Conduct for Interrogation under 18 U.S.C. §

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2340-2340A" (the Bybee Memo).'

(U) Commentators, law professors and other members of the legal

community were highly critical of the Bybee Memo. The Dean of Yale Law School

characterized its authors as "blatantly wrong" and added that "Nt's just erroneous

legal analysis." Edward Alden, US Interrogation Debate, Financial Times, June 10,

2004 (2004 WLNR 9744181). A past chairman of the international human rights

committee of the New York Bar Association stated that "the government lawyers

involved in preparing the documents could and should face professional

sanctions." Id. A law professor at the University of Chicago said: "It's egregiously

bad. It's very low level, it's very weak, embarrassingly weak, just short of

reckless." Adam Liptak, Legal Scholars Criticize Memos on Torture, New York

Times, June 25, 2004 at A14. In the same article, an expert in international

human rights law at Fordham University commented, "The scholarship is very

clever and original but also extreme, one-sided and poorly supported by the legal

authority relied on." Id.

(U) Other commentators observed that the Bybee Memo did not address

important Supreme Court precedent and that it ignored portions of the CAT that

contradicted its thesis. Id. One article suggested that the author of the Bybee

Memo deliberately ignored adverse authority and commented that "a lawyer who

is writing an opinion letter is ethically bound to be frank." Kathleen Clark and

Julie Mertus, Torturing Law; The Justice Department's Legal Contortions on

Interrogation, Washington Post, June 20, 2004 at B3; See also, R. Jeffrey Smith,

Slim Legal Grounds for Torture Memos, Washington Post, July 4,. 2004 at Al2.

Other critics suggested that the Bybee Memo was drafted to support a preordained

result. Mike Allen and Dana Priest, Memo on Torture Draws Focus to

Bush, Washington Post, June 9, 2004 at A3. Similar criticism was raised by a

group 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 were prepared. Frail Davies, Probe Urged Over Torture Memos, Miami

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

(U) As discussed more fully below, substantial portions of the Bybee Memo appeared

verbatim in the draft Working Group Report.

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on Torture, Washington Post, August 5, 2004 at A4. 2

(U) On June 22, 2004, Executive Branch officials responded to public

criticism of the Bybee Memo. Then White House Counsel Gonzales told reporters:

[T]o the extent that [the Bybee Memo] in the context of

interrogations, explored broad legal theories, including

legal theories about the scope of the President's power as

Commander in Chief, • some of their discussion, quite

frankly, is irrelevant and unnecessary to support any

action taken by the President... .

Unnecessary, over-broad discussions ... that address

abstract legal theories, or discussions subject to

misinterpretation, but not relied upon by decisionmakers

are under review, and may be replaced, if

appropriate, with more concrete guidance addressing

only those issues necessary for the legal analysis of

actual practices.

White House Daily Press Briefing, June 22, 2004 (2004 WLNR 2608695).

(U) The same day, Deputy Attorney General (DAG) James Comey, cited in

news reports as a "senior Justice official" or a "top Justice official" told reporters

during a not for attribution briefing session that the analysis in the Bybee Memo

was "over broad," "abstract academic theory," and "legally unnecessary." Toni

2 (U) 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.

(U) In addition, former OLC Deputy Assistant Attorney General John Yoo, the principal

author of the Bybee Memo, has vigorously defended his work since leaving the Department. See

e.g., John 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 B11; John Yoo,

Commentary: Behind the Torture Memos, UC Berkeley News, January 4, 2005 (available at

http: / / www.berkeley.edu / news/ media/ releases / 2005/ 01/ 05 johnyoo.shtml )

DRAFT

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.

(U) On June 21, 2004, the Office of Professional Responsibility (OPR)

received a letter from Congressman Frank Wolf. In his letter, Congressman Wolf

expressed concern that the Bybee Memo provided legal justification for the

infliction of cruel, inhumane and degrading acts, including torture, on prisoners

in United States custody, and asked OPR to investigate the circumstances

surrounding its drafting.

(U) On July 15, 2004, OPR asked then OLC AAG Jack Goldsmith, III, to

provide certain information and documents relevant to the Bybee Memo. Principal

Deputy Assistant Attorney General Steven G. Bradbury met with OPR Counsel H.

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

provided OPR with a copy of the Bybee Memo, but asked us not to pursue our

request for additional material. After considering the issues raised by Bradbury,

we repeated our request for additional documents on August 9, 2004. On August

31, 2004, Bradbury gave OPR copies of unclassified documents relating to the

Bybee 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 AAG John Yoo; former Deputy AAG Patrick Philbin; and former OLC

Attorne

(U) We reviewed the Bybee Memo and the draft Working Group Report, along

with email, correspondence, file material, drafts, and other unclassified

documents provided by OLC. On October 25, 2004, OPR formally initiated an

investigation. 3

3 (U) OLC initially provided us with a relatively small number of emails, files, and draft

documents. After it became apparent, during the course of our review, that relevant documents

w re missing, we requested and were given direct access to the email and computer records of

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

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

through August 5, 2002, had also been deleted and were reportedly not recoverable. Although we

were initially advised that Goldsmith's records had been deleted, we were later told that they had

been recovered and we were given access to them.

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

unclassified Memorandum Opinion for the Deputy Attorney General captioned

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

That opinion, which was posted on OLC's web site the same day, superseded the

Bybee Memo and eliminated or corrected much of its analysis.

(U) During the course of our investigation, we learned that the Bybee Memo

was accompanied by a second, classified memorandum (addressed to then Acting

General Counsel of the Central Intelligence Agency (CIA) John Rizzo and dated

August 1, 2002), which discussed the legality of specific interrogation techniques

(the Classified Bybee Memo). We also learned that the OLC attorneys who drafted

the Bybee Memo and the Classified Bybee Memo subsequently prepared a

classified March 14, 2003 Memorandum to the Department of Defense:

"Memorandum for William J. Haynes, II, from John C. Yoo, Deputy Assistant

Attorney General, Office of Legal Counsel, Re: Military Interrogation of Unlawful

Combatants Held Outside the United States (March 14, 2003)" (the Yoo Memo).

(U) We conducted interviews of Patrick Philbin and Jack

Goldsmith, all of whom told us that they cou not u y discuss their involvement

without referring to Secure Compartmented Information (SCI). We obtained the

necessary clearances and requested and reviewed additional documents from OLC

and from the CIA.' We then re-interviewer Philbin and Goldsmith, and

interviewed Yoo and Bybee.

(U) In addition, we interviewed former DAG James Carney, former OLC

Acting AAG Dan Levin, former Criminal Division AAG Michael Chertoff, former

Criminal Division Deputy AAG Alice Fisher, OLC Principal Deputy AAG Steven

Bradbury, CIA Acting General Counsel John Rizzo, 5 former White House Counsel

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

Adam Ciongoli, and John Bellinger, III, former National Security Council (NSC)

Legal Adviser.

4 (U) For background purposes, we also reviewed newspaper articles, law review

commentaries and historical accounts.

5 (U) Mr. Rizzo would not agree to meet with us until after his Senate confirmation hearing

for the position of CIA General Counsel. That hearing was canceled and rescheduled, and finally

held on June 19, 2007. We interviewed Mr. Rizzo on July 7, 2007.

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(U) A number of witnesses declined to be interviewed. CIA Counter

Terrorism Center (CTC) attorneys both 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 titled

"Counterterrorism Detention and Interrogation Activities Se tember 2001 -

October 2003)" (the CIA OIG Report). CTC attorney so refused

our request for an interview, as did former CTC attorney

although spoke briefly with us by telephone. Former Attorney

General Ashcroft did not respond to several interview requests but ultimately

informed us, through his attorney, that he had declined our request. Finally,

former Counsel to the Vice President David Addington and former Deputy White

House Counsel Timothy Flanigan did not respond- to our requests for interviews.

(U) Sometime in May 2005, then Principal Deputy AAG Bradbury informed

us that he had signed two classified memoranda that replaced the Classified

Bybee Memo. We were allowed 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 at Qaeda Detainee (May 10,

2005)" (the 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 at Qaeda

Detainees (May 10, 2005)" (the Combined Techniques Memo). The Bradbury

Memo discussed a number of individual interrogation techniques and concluded

that their use by CIA interrogators would not violate the torture statute. The

Combined Techniques Memo concluded that the combined effects of those EITs

would not render a prisoner unusually susceptible to physical or mental pain or

suffering and would not violate the torture statute.

(U) On July 20, 2007, the New York Times reported that President Bush had

signed an executive order allowing the CIA to use interrogation techniques not

authorized for use by the military, and that the Department had determined that

those techniques did not violate the Geneva Conventions. Shortly thereafter,

reporter Jane Mayer wrote in the August 13, 2007 issue of the New Yorker

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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.

(U) 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 accompanying 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). 6 We reviewed those documents and conducted additional interviews.

(U) On October 4, 2007, the New York Times reported the existence of the

Bradbury Memo and the Combined Techniques Memo, and stated that they set

forth "an expansive endorsement of the harshest interrogation techniques ever

used by the Central Intelligence Agency." On November 6, 2007, the American

Civil Liberties Union (ACLU) announced that the Department had confirmed, in

papers filed in response to the ACLU's pending Freedom of Information Act

lawsuit, that three interrogation memoranda - two dated May 10, 2005 and one

dated .May 30, 2005 - had been issued by the Department.

(U) After he became Attorney General in late 2007, Michael Mukasey

6 (U) According to Bradbury, OLC did not bring the Article 16 Memorandum 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 Bradbury Memo, the

Combined Techniques Memo, the Article 16 Memo, and the 2007 Bradbury Memo are hereinafter

referred to collectively as the Bradbury Memos.

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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' analysis was "correct and

sound."

(U) 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.

(U) Although we have attempted to provide as complete an account as

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

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. Moreover, we cannot say with certainty that the

documents provided to us by the CIA included all relevant material.

(U) During the course of our investigation. significant pieces of information

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

investigations. While we believe our findings regarding the legal advice contained

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

certain that additional information will eventually surface regarding the CIA

program and the military's interrogation programs in Guantanamo, Afghanistan

and Iraq.

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

base our legal 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

are not offered as support for our conclusions.

(U) Similarly, although we report the views of some former Department

officials regarding the merits of the Bybee and Yoo Memos' conclusions, we did not

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base our findings on their comments. Nor did we solicit or consider any witnesses'

opinions on the ultimate question of misconduct. Our misconduct 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

competence, thoroughness and objectivity from the lawyers involved. Accordingly,

similar facts in a more routine matter would not necessarily result in the same

findings.

(U) Based on the results of our investigation, we concluded that former AAG

Jay S. Bybee and former Deputy AAG John Yoo failed to meet their

responsibilities under D.C. Rule of Professional Conduct 1.1 to provide competent

representation to their client, the United States, and failed to fulfill their duty to

exercise independent legal judgment and to render candid legal advice, pursuant

to D.C. Rule of Professional Conduct 2.1. In violating D.C. Rules 1.1 and 2.1,

Bybee and Yoo committed professional misconduct. Pursuant to Department

policy, we will notify their respective state bars of our findings.

(U) We concluded that Patrick Philbin did not commit

misconduc

rofessional

Finally, we concluded at

because of her relative inexperience and subordinate position, did not commit

misconduct.

(U) We did not find that the other Department officials involved committed

professional misconduct. We found Michael Chertoff, as AAG of the Criminal

Division, and Adam Ciongoli, as Counselor to the AG, should have recognized

many of the Bybee Memo's shortcomings and should have taken a more active role

in evaluating the CIA program. John Ashcroft, as Attorney General, was

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 OW memoranda and attempted to

verify that the analysis, assumptions, and conclusions of those documents were

sound. However, we cannot conclude that, as a matter of professional

responsibility, it was unreasonable for senior Department officials to rely on advice

from OLC. We note that Ashcroft was at least consistent in his deference to OLC.

When Goldsmith and Comey recommended that the Yoo Memo be withdrawn,

Ashcroft did not hesitate to support them.

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(U) 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 01G.

(U) Finally, although we had substantial concerns about the reasonableness

and objectivity of certain aspects of the Bradbury Memos, we did not find that the

shortcomings we identified rose to the level of professional misconduct. In any

event, President Obama's January 22, 2009 Executive Order rendered the

Bradbury Memos inoperative. Accordingly, we do not believe further review of

these memoranda by the Department is necessary.

(U) I. BACKGROUND

(U) A. The Office of Legal Counsel.'

(U) The Assistant Attorney General in charge of the Office of Legal Counsel

assists the Attorney General in his function as legal advisor to .the President and

all the executive branch agencies. The office is responsible for providing legal

advice to the executive branch on all constitutional questions. The first AAG for

OLC under the Bush administration was Jay Bybee, who was not sworn in until

November 2001. Prior to that time, Daniel L. Koffsky, followed by M. Edward

Whelan, III, served as Acting AAG.

(U) John Yoo joined the office as a Deputy AAG in the summer of 2001. He

had graduated from Yale Law School in 1992 and joined the faculty of the

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

absence from Berkeley to clerk for United States Supreme Court Justice Clarence

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

the resident expert in the OLC on foreign policy issues. Yoo wrote in his book,

War By Other Means:

Among scholars, I was probably best known for my work

(U) Chart 1 is a timeline of OLC leadership and significant events relevant to this report.

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on the historical understanding of the Commander'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. 8

(U) After September 11, John Yoo authored a number of OLC opinions

dealing with terrorism and presidential power. One of the first was dated

September 25, 2001, and was entitled "The President's Constitutional Authority

to Conduct Military Operations Against Terrorists and Nations Supporting Them."

In the opinion, signed by Yoo, he asserted that no law "can place any limits on the

President's determinations as to any terrorist threat, the amount of military force

to be used in response, or the method, timing, and nature of the response. These

decisions, under our Constitution, are for the President alone to make." In that

same time period, Yoo authored a memorandum on the legality of a program of

warrantless electronic surveillance by the National Security Agency 9 and a

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

Taliban detainees.'

(U) Bybee was nominated by President Bush for a position as federal judge

on the United States Court of Appeals for the Ninth Circuit on May 22, 2002, but

was not confirmed until March 13, 2003, and-he left the Department on March 28,

2003. Shortly thereafter, in late. May 2003, John Yoo left the Department. Bybee

was replaced by Jack Goldsmith, III, who became AAG in October 2003.

Goldsmith resigned in June 2004 and left the Department in July. Daniel Levin

(U) John C. Yoo, War By Other Means (2006), at 20.

9

(U) That memorandum was later withdrawn by the Department.

10 (U) That memorandum was signed by. OLC AAG Jay Bybee. The memorandum's position

that Common Article Three of the Geneva Convention 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 United States Supreme Court in 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).

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served as the Acting AAG until he left the Department in February 2005. Steven

Bradbury, the Principal Deputy AAG under Goldsmith, then became the Acting

AAG and was nominated by the White House for the position of AAG on June 23,

2005. After his nomination 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

never confirmed.

(U) B. The Bybee Memo and the Classified Bybee Memo

(August 1, 2002)

(U) 1. The CIA Interrogation Program

(U) CIA Acting General Counsel Rizzo told us that the term "interrogation"

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

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 Se tember 11, 2001 terrorist

attacks, CIA personnel debriefed source

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but the agency was not authorized to

detain or interrogate individuals and therefore had no institutional experience or

expertise in that area."

(U) The CIA also gave us a copy of an undated, unsigned, ten-page

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

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

(U) Cf. Alfred W. McCoy, A Question of Torture: CIA Interrogation, from the Cold War to the

War on Terror (2006). McCoy described the CIA's role in sponsoring and conducting research into

coercive interrogation techniques in the decades following World War II, and its propagation of

such techniques overseas during the Cold War era.

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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: 2

(U) The interrogation of suspected terrorists overseas was initially conducted

jointly by CIA operational personnel and FBI agents. The FBI used traditional

"rapport building" interrogation techniques that were consistent with United

States criminal investigations. The CIA operatives soon became convinced,

however, that conventional interrogation methods and prison conditions were

inadequate to deal with hardened terrorists and that more aggressive techniques

would have to be developed and applied. CIA leadership agreed, and began

exploring the possibility of developing 'Enhanced Interrogation Techniques," or

EITs.

(U) The issue of how to approach interrogations reportedly came to a head

after the capture of a senior al Qaeda leader, Abu Zubaydah, during a raid in

Faisalabad, Pakistan in late March 2002. Zuba dah was transported to a "black

site," a secret CIA prison facili where

he was treated for gunshot woun s he su ereduring is capture.

U) 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 they were there to provide

assistance. i3 Because the CIA interrogators were not yet at the site when the FBI

l3 (U) The DOJ Inspector General's report, titled 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.

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agents arrived, however, two experienced FBI interrogators began using

"relationship building" or "rapport building" techniques on Abu Zubaydah. During

this initial period, the FBI was able to learn his true identity, and got him to

identify a photograph of another important al Qaeda leader, Khalid Sheikh

Muhammad, as "Muktar," the planner of the September 11 attacks.

(U) 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 that they needed to use more aggressive

techniques. The FBI believed that its traditional interrogation techniques were

achieving good results and should be continued. However, the CIA interrogators

were convinced that Zubaydah was withholding information and that harsh

techniques were the only way to elicit further information. According to 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."

(U) According to the DOJ OIG Report, the FBI interrogators reported these

developments to headquarters and were instructed not to participate in the CIA

interrogations and to return to the United States. One of them left the black site

in late May 2002, and the other left shortly thereafter, in early June 2002. 14

(U) The CIA's perception that a more aggressive approach to interrogation

was needed accelerated the ongoing development by the CIA of a formal set of EITs

by CIA contractor/psychologists, some of whom had been involved in the United

States military's Survival, Evasion, Resistance, and Escape (SERE) training

program for Air Force, Navy and Marine personnel.

(U) SERE training was developed after the Korean War in order to train

pilots to withstand the type of treatment they could expect to receive at the hands

of the enemy during wartime. The SERE program placed trainees in a mock

14 (U) Although CIA and DOJ witnesses told us that the CIA was waiting for DOJ approval

before initiating the use ofElTs, 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.

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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.

(U) However, according to a May 7, 2002 SERE training manual, "Pre-

Academic Laboratory (PREAL) Operating Instructions,"(PREAL Manual) the SERE

training program differed in one significant respect from real world conditions.

The PREAL Manual noted that:

Maximum effort will be made to ensure that students do

. not develop a sense of "learned helplessness" during the

pre-academic laboratory.

*

The goal is not to push the student beyond his means to

resist or to learn (to prevent "Learned Helplessness"). The

interrogator must recognize when a student is overly

frustrated and doing a poor job resisting. At this point

the interrogator must temporarily back off, and will

coordinate with and ensure that the student is

monitored by a controller or coordinator.

PREAL Manual, II 1.6 and 5.3.1. 15

;frgl The CIA psychologists eventually proposed the following

twelve EITs to be used in the interrogation of Abu Zubaydah:

15 (U) OLC's files included a copy of the PREAL Manual, but no indication of how or when it

was obtained.

--T-CLeerrr-K-CaCkFtit-

- 16-

DRAFT

(1) Attention grasp: The interrogator grasps the subject with both

hands, with one hand on each side of the collar opening, in a

controlled and quick motion, and draws the subject toward the

interrogator;

(2) Walling: The subject is pulled forward and then quickly and firmly

pushed into a flexible false wall so that his shoulder blades hit the

wall. His head and neck are supported with a rolled towel to prevent

whiplash;

(3) Facial hold: The interrogator holds the subject's head immobile by

placing an open palm on either side of the subject's face, keeping

fingertips well away from the eyes;

(4) Facial or insult slap: With fingers slightly spread apart, the

interrogator's hand makes contact with the, area between the tip of

the subject's chin and the bottom of the corresponding earlobe;

(5) Cramped confinement: The subject is placed in a confined space,

typically a small or large box, which is usually dark. Confinement in

the smaller space lasts no more than two hours and in the larger

space it can last up to 18 hours;

(6) Insects: A harmless insect is placed in the confinement box with the

detainee;

(7) Wall standing: The subject may stand about 4 to 5 feet from a wall

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;

-ZGP-BEheFrer tWell

DRAFT

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

exceed 11 days at a time; ' 6

(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 in a controlled manner. Airflow is restricted for 20 to 40

seconds; the technique produces the sensation of drowning and

suffocation;

16 s 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.

17 (U) Rizzo told us that although he thought use of the EITs would not violate the torture

statute, he recognized that some of the techniques were aggressive, and could be "close to the line

at a minimum." At the time, he therefore considered the legality of EITs an open question.

10B-seestr acw6efur

- 18 -

DRAFT

According to John Yoo, Bellinger told him during their

initial conversation that access to information about the program was extremel

restricted and that the State Department should not be informed.' 8

18

Bybee stated that he had r ollection of bein told that t e r. t was not to •e

distributed to the State Department.

T RN

-19-

ism-secTZE ILarkerfr

DRAFT

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 said that

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

justify [the program]" 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.

(U) Shortly after the initial meeting, 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,

it was decided that access would be limited to Ashcroft, Ciongoli, DAG Larry

19

Bellinger added that, by the spring of 2002, he had had a number of confrontations with John Yoo

over the OLC's failure to include him, as the NSC Legal Advisor, in OLC opinions that affected

national security.

--1013-efritEMnkogetzfr-

- 20 -

DRAFT

Thompson, AAG Bybee, Yoo, and OLC Deputy AAG Patrick Philbin. 2°

(U) Yoo told us that shortly after his conversation with Ashcroft, he met with

AAG Bybee and Deputy AAG Philbin to tell them about the assignment and to

determine which OLC line attorne should work on the project with him. 2 '

According to Yoo, they agreed tha as the best choice, probably

because she had recently joined OLC and therefore had some time available.

Philbin was the "second Deputy" on the project. 22

(U) Email records indicate that the matter was recorded on an OLC log sheet

on April 11, 2002, with and Yoo designated as the assigned attorneys.

The log .sheet listed "John Rizzo Central Intelligence Agency" as the client. Yoo

provided with the . research he had already done and made a few

suggestions about where she should start. He instructed her to determine

whether anyone had ever been prosecuted under the torture statute, to check the

applicable statute of limitations, and to determine what types of conduct had been

held to constitute torture under the Torture Victim Protection Act (TVPA) 23 and the

Alien Tort Claims Act (ACTA). He also asked her to look at two foreign cases that

discussed interrogation techniques and torture. 24 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.

20 (U) Ciongoli's recollection of this meeting is generally consistent with that of Yoo, although

Ciongoli did not recall any discussion with Yoo or the Attorney General about who would be

granted access to information about the project.

21 (U) 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.

22 (U) As a matter of OLC practice, a second Deputy AAG reviews every OLC opinion before

it is finalized. This is referred to as the "second deputy review."

23 (U) As discussed more fully below, the TVPA's definition of torture is similar to that of the

torture statute.

24 (U) Those cases were Ireland v. the United Kingdom, 25 Eur. Ct. H.R. (sec. A) (1978) (Ireland

v. U.K.) and a decision of the Supreme Court of Israel, Public Committee Against Torture in Israel

v. Israel, 38 I.L.M. 1471 (1999) (PCATI v. Israel).

ise,sr.GReil lysIgentr

-21 -

25

(U) Most of the witnesses we asked about meetings on interrogation issues had only general

recollections of the dates and attendees. To our knowledge, the DOJ participants did not take

notes or prepare written summaries relating to any of the meetings. Our factual summary is

therefore based on the witnesses' recollections, occasionally substantiated by contemporaneous

email messages or calendar entries, and in some instances by a post-meeting Memorandum for the

Record (MFR) prepared by the CIA attendees. Although we have summarized the CIA MFRs to

describe what may have occurred, we recognize that those reports reflect the agency's view of the

proceedings and are not necessarily accurate accounts.

26 (U) The MFR did not name or cite those cases, but the reference was clearly to the two cases

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

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

.Israeli military and intelligence services.

DRAFT

27 (U) 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 al Qaeda and Taliban Detainees (January 22, 2002). As

noted earlier, that view of the law was subsequently rejected by the United States Supreme Court

in Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

Ica-saeftrI etkir

- 23 -

-T-QP-RECKE DPeTnr

DRAFT

(U) 2. Drafting the Bybee Memo

(U) After the meeting and Yoo began drafting what would eventually

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

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

for to prepare a draft that incorporated whatever comments or direction

Yoo had provided. Yoo would then revie work and provide additional

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

discuss the project.'

28 (U) On April 24, 2002, complained to a friend by email about the long hours she

was working, and stated, "I have a number of large pro -ects with different people. I would have

said no but it didn't seem like that was an option here. old her friend that she liked the

work she was doing but wanted "enough time to do a good job on it" and complained that she was

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

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

29 (U) The first draft, dated April 30, 2002, was followed by drafts dated May 17, 2002, June

26, 2002, and July 8, 2002. The July 8, 2002 draft appears to be the first draft that was

distributed outside OLC for comments. -

acia-&BeRE

-24-

'Ing-SEerEIMMILIC1Nettir--

DRAFT

(U) 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 was

made "late in the game."

(U) From the outset, the drafts argued .the position that the statute's

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

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

level of torture. Yoo an' supported this position through analysis of the

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

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

Rights cases mentioned above. As the drafts progressed, they emphasized this

point more strongly.

(U) For example, in the first draft,Mnoted 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:

(U) In his comments of May 23, 2002, Yoo asked to see if "severe"

appeared elsewhere in the United States Code, and suggested other changes "to

demonstrate how high the bar is to meet the definition of torture." In the next

draft, dated June 26, 2002 cited several essentially identical health care

benefits statutes, which listed symptoms that would lead a reasonable person to

conclude that someone was suffering an "emergency medical condition." The term

"severe pain" was not defined in the health care statutes, but was listed as a

possible indicator that a person was experiencing an emergency medical condition.

(U) That draft included the statement that these health care benefits statutes

"suggest that 'severe pain,' as used in [the torture statute] must rise to . . . the level

that indicates that death, organ failure, or serious impairment of body functions

..7.29..r-seenrgt-MMI,NaPenir

-25-

DRAFT

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 tc

on this draft, Yoo told her to "cite and quote S.Ct. case for this proposition." Id.

at 2.

(U) On July 8, 2002,Yoo and had produced a draft that they were

ready to iiv‘ the White House. Counsel, the CIA and NSC for review. On July 11,

2002 provided a copy to OLC paralega r cite checking, and

two meetings were scheduled — with White House Counsel on Friday, July 12,

2002, and with AAG Chertoff, the FBI, CIA and NSC on Saturday, July 13, 2002.

and Yoo appear to have had a briefing session with Chertoff on July 11,

2002. A few minor changes and cite-checking corrections were made to the

memorandum prior to the meeting at the White House, and a new draft dated July

12, 2002 was produced by Yoo and_

(U) 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

that (a) for physical pain to amount to torture, it "must be of such intensity

that it is likely to be accompanied by serious physical injury, such as organ

failure, impairment of bodily function, or even death" and (b) for mental pain

or suffering to constitute torture, "it must result in psychological harm of

significant duration, e.g., lasting for months or even years";

(2) an examination of the text, ratification history and negotiating history of

the CAT, which concluded that the treaty "prohibits only the most extreme

acts by reserving criminal penalties solely for torture and declining to require

such penalties for cruel, inhuman, or degrading treatment";

(3) analysis of case law under the TVPA, concluding that "these cases

demonstrate that most often torture involves cruel and extreme physical

pain, such as the forcible extraction of teeth or tying upside down and

beating"; and

-113.1wrEertt

-26-

-T-QP-RmIZEI NCIFergtr

DRAFT

(4) examination of the Israeli Supreme Court and ECHR decisions mentioned

above, concluding that the cases "make clear that while many of these

techniques [such as sensory deprivation, hooding and continuous loud

- noises] may amount to cruel, inhuman and degrading treatment, they simply

lack the requisite intensity and cruelty to be called torture Thus, [the

two cases] appear to permit, under international law, an aggressive

interpretation as to what amounts to torture, leaving that label to be applied

only where extreme circumstances exist. "

(U) On Friday afternoon, July 12, 2002, Yoo anc met Gonzales at the

White House Counsel's Office. It is likely that Deputy White House Counsel Tim

Flanigan and/or Counsel to the Vice President David Addington were also present,

bui and Yoo were not certain if either attended this meeting. arally

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

two copies of the memorandum for review. According to Yoo, none of the attendees

provided any feedback or comments at this meeting.

DRAFT

iinnfflliicctt severe physical pain or mental pain or -suffering.

is OPR interview, erto

that he told the 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.

je?SVIIIIIIAccording to several sources, Levin stated thatthe FBI would

not conduct or participate in any interrogations employing EITs, whether or not

they were found to be legal, and that the FBI would not artici ate in an further

discussions on the subject.

•

AgrAfter the meeting, Yoo drafted a two-page letter to Rizzo setting forth the

elements of the torture statute and discussing the specific intent required to

establish infliction of severe mental pain or suffering. The specific intent

discussion read as follows: .

Specific intent can be negated by. a showing of good faith.

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. If, 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.

-28-

DRAFT

(U) Shortly thereafter, Chertoff asked Yoo to draft a letter to the CIA stating

that the Department does not issue pre-activity declination letters. On July 16,

2002, Yoo told o prepare a draft, and on July 17, 2002, after consulting

with Chertoff, Deputy AAG Alice Fisher, and other OLC attorneys sent Yoo

a one-page draft of a letter from Yoo to Rizzo, which included the following

statement:

You have inquired as to whether the Department of

Justice issues letters declining to prosecute future

activity that might violate federal law. . . It is our

understanding, ... after consultation with the Criminal

Division, that the Department does not issue letters of

declination for future conduct that might violate federal

law. We have found no authority for issuing a letter for

such conduct.

The letter was reviewed and approved by OLC and the Criminal Division on July

17, 2002, but does not appear to have ever been sent to the CIA. The witnesses

could not recall why the letter was never sent.

(U) Yoo told us that he provided regular briefings about the memorandum

to John Ashcroft and Adam Ciongoli, and remembered mentioning to Ashcroft that

the CIA had requested some sort of advance assurance that they would not be

prosecuted for using EITs. 31 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

31 (U) Bybee told us that he remembered attending one meeting with Ashcroft and Yoo about

the interrogation memorandum, but did not recall if anyone from the Attorney General's staff was

present. Bybee and Yoo told Ashcroft that OLC was preparing a sensitive memorandum for the

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 and acknowledging that it was necessary to do so.

:rsk,r-seesrr sLruaRlr'

-29-

_zau-sEettET ravaRs-----

DR FT

Memo was being finalized, but stated that Ashcroft was not present at that time.

(U) On July 15, 2002, Yoo sent the following email message

One other thing to include in the op: a footnote saying

that we do not address, because not asked, about

defenses, such as necessity or self defense, or the

separation of powers argument that the law would not

apply to the exercise of the commander in chief power.

(U) The next day, Tuesday, July 16, 2002, Yoo andl=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 rture

and

i- e eltlem ents of the torture

statute and specific intent. Gonzales, Yoo

11 told OPR that they had

no specific recollection of what was discussed at this meeting.

(U) 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,Mndrafted a document she captioned

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

possible justification defenses to violations of the torture statute.

(U old us that Yoo had asked her to begin working on a section on

possible de enses, and that the notes reflect her preliminary research- 32 She added

that to her knowledge, the new section was not added in response to any request

from the White House, NSC or CIA, or to address any concerns raised by them. At

about the same time, Yoo told her they were adding a section on the im act of the

Commander-in-Chief power on the enforceability of the statute. stated

that she believed both sections were added to "give the full scope of advice" to the

client..Malso told us that she thinks she ended up writing the Commander-

32 (U aised 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 told us that she ultimately resolved all of

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

statute.

-1aP-443eICEIT

-30-

sop-siaerrr ilrueomr"

DRAFT

in-Chief section, with "a lot of input" from Yoo and Philbin, and that Yoo wrote the

section on defenses.'

(U) Yoo told OPR that he was "pretty sure" that the two sections were added

because he, Bybee and Philbin "thought there was a missing element to the

opinion." He stated that he remembered the three of them talking about the

sections and whether to include them in the memorandum, and he believes that

Bybee went back and forth on that question before the memorandum was finalized.

Yasokoi nagc khniomw wlehdagte dw tohualtd t hhea pCpIAen m ina yth hea vcae sien wdihreecrtel ya nsu igngtmeersrtoegd atlthoe r nweewn ts e"cotvioenr st hbey

line" and inadvertently violated the statute. Although may have done a

draft of the sections, Yoo told us that he remembers writing a lot of them himself.

(U) Philbin told us that he did not know why the two sections were added.

As second deputy, he did not review any drafts until late in the process, and when

he did, he told Yoo that he thought the sections were superfluous and should be

removed. According to Philbin, Yoo responded, "They want it in there." Philbin did

not know who "they" referred to and did not inquire; rather, he assumed that it

was whoever had requested the opinion.

(U) 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.

(U) Rizzo stated that the CIA did not request the addition of the two sections.

Although he thought the Bybee Memo presented a very aggressive interpretation

of the torture statute, he did not offer any specific objections to the analysis. From

the agency's point of view, a broad, expansive view of permissible conduct was

considered a positive thing.

(U) Gonzales told us that he did not recall ever discussing the two sections,

33 (U) According to Bradbury and Philbin, the Commander-in-Chief section of the report was

similar to discussions in other OLC 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]."

...1.:sp—srtersil losixerrtr

-31-

IEW-SECIZET INCW60411--

DRAFT

or how they came to be added to the Bybee Memo. He speculated that because

David Addington had strong views on the Commander-in-Chief power, he may have

played a role in developing that argument.

(U) Addington appeared before the House Judiciary Committee on June 17,

2008, and testified that at some point, Yoo met with him and Gonzales in Gonzales'

office and outlined the subjects he planned to discuss in the Bybee Memo. Those

subjects included the constitutional authority of the President relative to the

torture statute and possible defenses to the torture statute. Addington testified

that he told Yoo, "Good, I'm glad you're addressing these issues."

(U) With regard to why the two new sections were added to the draft Bybee

Memo, we found it unlikely that Philbin and Bybee played a part in the decision,

notwithstandingoo's recollection to the contrary. We noted that on July 15,

2002, Yoo told y email that he did not intend to address possible defenses

or the powers of the Commander in Chief in the memorandum, and that the day

after their July 16, 2002 meeting with Gonzales (and possibly Addington and

Flanigan), he and began working on the two new sections. 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 lw,ause some number

of attendees at that meeting requested the additionscperhaos because the Criminal

Division had refused to issue any advance declinations -.---

(U) On Jul 22 2002, Yoo sent an email to University law

professo asking him to explain how common law defenses were

-113"LPC21-9 9ttl

- 32 -

DRAFT

incorporated into federal criminal law. 34 responded that he was "just

headed out" but explained in a short email message, without citing any specific

statutory or case law authority, that federal courts generally accept and recognize

common law defenses.

(U) On July 23, 2002 asked paralegal for 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.' The memorandum was no longer addressed to John Rizzo.

According to Rizzo, he would not have wanted an unclassified memorandum on

interrogation techniques to be addressed to the CIA, because it would have

confirmed the existence of the classified interrogation program.

..44:6 10n 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.

as for more controversial techniques

twaterboarding Yoo had told him that DOJ was waiting for more

data from the CIA.

34 (U} 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 mentions them?

35 XThat 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 "[d]ue 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.

TSLE.Seerri ltiaro-eltr

- 33 -

aciP-gaeRET NIPerit5 DRAFT

..‘T.E3 At some point thereafter, according to Rizzo

OLC told the CIA that approval for the remaining techniques would take longer if

were part of the EIT program. Rizzo remembered Yoo asking how

important the technique was to them, because it would take longer to complete the

memorandum if it were included.

-35-

DRAFT

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.

(U) On July 26, 2002, sent three memoranda the CIA had

obtained from the Department of Defense Joint Personnel Recovery Agency (JPRA)

IDP---Scterrr==111DPefilr

DRAFT

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-term psychological effects of its use were

minimal.

(U) Later that afternoon sent Yoo the following email message:

I got a message from She said the agency wants

written approval rather than just oral approval. She said

that this did not need to be in the form of a written

opinion, but could be some sort of short letter that tells

them that they have the go ahead.

(U) Yoo and then began working on a second, classified

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

seniMMthe following email message:

I talked to the white house. They would like the memos

done as soon as possible. I think that means you should

spend the time over the weekend completing

memorandum no 2 [the classified memorandum on

specific techniques], because memorandum 1 is pretty

close and I could finish I on Monday.

(U) In a July 26, 2002 email, Yoo asked to "stop by and pick up

[Philbin's] comments and input them . . . You also have Mike Chertoff's

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DRAFT

comments, to input." Two days later, on July 28, 2002, Yoo sentla new

draft that he stated included "the Philbin, Gonzales and Chertoff comments."

(U) We did not find a record of Philbin's, Gonzales' or Chertoff's comments

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

the draft and then discussed them either with Yoo or He did not

remember any of his specific comments, but recalled telling Yoo that he thought

the discussion of the Commander-in-Chief power should be taken out of the

memorandum because it was not necessary to the analysis. Philbin told us he had

concerns about the section because the argument was aggressive and went beyond

what OLC had previously said about executive power, but he told us that it was not

"plainly wrong" or indefensible. He also said that he told Yoo the memorandum's

discussion of possible defenses to the statute was unnecessary. As noted above,

Philbin recalled Yoo's response to his comments was, "they want it in there," which

he took as a reference to "whoever had requested" the opinion.

(U) Gonzales told us that when he reviewed drafts from John Yoo, he would

typically write his comments on the draft and either give them directly to Yoo, or

pass them along to other lawyers, such as Addington or Flanigan, who would

forward them to Yoo along with their own comments. Gonzales stated that he has

no recollection of reviewing a draft of the Bybee Memo, and that he does not recall

if he had any comments.

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

Memo, and recalls sitting in Chertoff's office and "walking him through" the

memorandum. According to Yoo, Chertoff read the memorandum carefully and

they discussed it together. Yoo recalled that Chertoff was concerned that the

memorandum could be interpreted as providing a "blanket immunity."

(U) Chertoff acknowledged that Yoo gave him a draft of the Bybee Memo at

some point, and he read it and returned it to Yoo that same day. He remembered

discussing the memorandum with Yoo, but said it was not a long or detailed

discussion. Chertoff denied that Yoo "walked him through" the document.

(U) Chertoff remembered making two comments about the Bybee Memo's

discussion of specific intent. He prefaced those comments by telling Yoo that he

had not checked the memorandum's legal research and that he assumed it was

ICIE-GrEieTZET INCLEafefe"

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correct. He then told Yoo that while 'the discussion of specific intent might be

correct "in law school," he would not want to defend a case in front of a jury on

that basis. He also reportedly emphasized the importance of conducting additional

due diligence into the effect of the interrogation techniques. According to Chertoff,

he told Yoo that the more investigation into the physical and mental consequences

of the techniques they did, the more likely it would be that an interrogator could

successfully assert that he acted in good faith and did not intend to inflict severe

physical or mental pain or suffering.'

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

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

memorandum withlby July 26, 2002, and Yoo's files included a draft dated au2002, titled "2340 pss Revisions)."37 On the morning of July 31, 2002,

told Bybee by email that she had "a couple of questions" about his edits,

and later that afternoon, she told Philbin and Bybee that she had left revised drafts

in their offices. Bybee had a very poor memory of the drafting process and

provided little information about his role. According to Rizzo, he never met Bybee

or discussed the Bybee Memo with him, and "couldn't pick him out in a lineup."

(U) Yoo told us that sometime around the end of July, he briefed Ashcroft

and Ciongoli on the Bybee Memo. 38 According to Yoo, he provided Ciongoli and

Ashcroft copies of the draft, but the Attorney General did not read it or provide any

comments. Ciongoli told us, however, that he recalled a briefing at which Yoo

provided a copy of the shorter, classified memorandum that discussed specific

interrogation techniques. According to Ciongoli, Ashcroft read the memorandum

and engaged Yoo in a vigorous discussion of the memorandum's legal reasoning.

Ciongoli did not remember any specific questions or comments, but recalled that

the Attorney General was ultimately satisfied with the opinion's reasoning and

analysis. With respect to waterboarding, Ciongoli recalled that he and Ashcroft

36 (U) The draft that apparently incorporated Chertoffs comments (as well as those of Philbin

and Gonzales) reflected some minor changes in the discussion of specific intent, but no major

revisions.

37 (U) Based on the revisions indicated by the document's "track changes" feature, we

concluded that Bybee's changes were not extensive.

38 (U) According to Yoo, he also briefed then DAG Larry Thompson about the memorandum

at some point.

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concluded that Yoo's position was aggressive, but defensible.

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

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

were all minor and did not materially change the substance of the final opinion.

Apart from the revisions displayed in the "track change" feature of the July 31,

2002 draft, we found no record of Bybee's comments on the unclassified Bybee

Memo.

39 (U) 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.

40

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DRAFT

(U) The Bybee Memo and the Classified Bybee Memo were finalized and

signed on August 1, 2002. 42 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. 43 According to Ciongoli, Yoo and Bybee described the analysis

and conclusions of the Bybee Memo, but he did not recall reading the opinion or

giving any comments. Yoo confirmed that Ciongoli was in the room when Bybee

signed the opinions, and stated that Cion oli reviewed the last draft and continued

to make edits until the last minute. told us she remembers Ciongoli being

in the room as they finalized the documents, and stated that he asked them to add

language to the Classified Bybee Memo to make it clear that DOJ's approval was

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

would have to seek DOJ approval if they changed or added EITs. The meeting

ended with Bybee signing the opinion, sometime after 10:00 p.m. According to CIA

records, the Classified Bybee Memo was faxed to them at 10:30 p.m. on August 1,

2002.

(U) Philbin told us that, at the end of the review process when the opinions

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

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

that he nevertheless told Bybee that he could sign the opinion. During his OPR

42 (U) In a July 31, 2002 email to PhilbinMMwrote: "John wanted me to let you know

that the White House wants both memos signed and out by COB tomorrow."

43 (U) This was the first time Ciongoli had ever spoken to Bybee about the interrogation issue.

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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, 1 .0 o'clock at

night on the day it was signed — my conclusion is that's

dicta. That's not what's supporting this conclusion. I

wouldn't put it in there. But I think it is permissible, it's

okay for you to sign it.

(U) Philbin said he did not believe that defenses should have been included

in the memorandum, but rather that the analysis should have been limited to what

the CIA could do within the law.. He said the defenses section "suggests that

maybe there is something wrong. You're going to have to use the defenses." He

added: "I don't think it is good lawyering to present that to your client."

(U) Philbin said he told Yoo that he had concerns about the Commander-in-

Chief discussion. He stated: "It was very aggressive. But we had been looking a

lot at a Commander-in-Chief authority since the beginning of the war, and I had

concerns about it because it was a step beyond things we had said." He told us he

advised Yoo to delete the section.

(U) On the morning of August 2, 2002 informed Yoe, by email that

the original memoranda were in the DOJ Command Center. Shortly before noon,

Yoo emailed instructions for delivering copies of the memoranda to the

White House, CIA, AG's office and the DAG's office." According to CIA records, the

agency received a copy of the Bybee Memo by fax at approximately 4 p.m. that day.

44 (U) In his email, Yoo stated that he would deliver co ies of the memoranda to the White

House and to "DoD." In another email, Yoo directed o send "both memos" to DOD. In his

OPR interview, however, Yoo stated that the Defense Department did not receive a copy of the

Bybee Memo.

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(U) 3. Key Conclusions of the Bybee Memo

(U) The final version of the Bybee Memo made the following key conclusions

regarding the torture statute:

(U) 1. In order to constitute a violation of the torture statute, the infliction

of physical pain "must be equivalent in intensity to the pain accompanying serious

physical injury, such as organ failure, impairment of bodily function, or even

death." Based .on the context of the language and dictionary definitions of "pain"

and "suffering," severe physical suffering is not distinguishable from severe

physical pain.

(U) 2. The infliction of severe physical pain or severe mental pain or suffering

must be "the defendant's precise objective." Even if a defendant knows that severe

pain will result from his actions, he may lack specific intent if "causing such harm

is not his objective, even though he does not act in good faith." However, a jury

might conclude that the defendant acted with specific intent. A good faith belief

that conduct would not violate the law negates specific intent. A good faith belief

need not be reaSonable, but the more unreasonable the belief, the less likely it

would be that a jury would conclude that a defendant acted in goOd faith.

45 (U) Four days later told Yoo in an email that she had spoken tc and that

"a cable was sent out last week, following the issuance of the opinions."

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(U) 3. The infliction of mental pain or suffering does not violate the torture

statute unless it results in "significant psychological harm" that lasts "for months

or even years . .. such as seen in mental disorders like posttraumatic stress

disorder." A defendant could negate a showing of specific intent to cause severe

mental pain or suffering by showing that he had read professional literature,

consulted experts, and relied on past experience to arrive at a good faith belief that

his conduct would not result in prolonged mental harm. Such a good faith belief

would constitute a complete defense to such a charge.

(U) 4. Almost all of the United States court decisions applying the TVPA have

involved instances of physical torture, of an especially cruel and even sadistic

nature. Thus, "the term 'torture' is reserved for acts of the most extreme nature."

(U) 5. "[B]oth the European Court on Human Rights and the Israeli Supreme

Court have recognized a wide array of acts that constitute cruel, inhuman, or

degrading treatment or punishment, but do not amount to torture. Thus, they

appear to permit, under international law, an aggressive interpretation as to what

amounts to torture, leaving that label to be applied only where extreme

circumstances exist."

(U) 6. Prosecution of government interrogators under the torture statute

"may be barred because enforcement of the statute would represent an

unconstitutional infringement of the President's authority to conduct war."

(U) 7. The common law defenses of necessity and self-defense "could provide

justifications that would eliminate any criminal liability" for violations of the

torture statute.

(U) 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.

.feeT-#3 .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.

DRAFT

...4AMM3. None of the EITs involve 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."

;11=M4. None of the EITs involve 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."

p6 Based on the information provided by the CIA, DOJ

believes "that those carrying out these procedures would not have the specific

intent to inflict severe physical pain or suffering" because (1) medical personnel will

be present who can stop the interrogation if medically necessary, (2) the CIA is

taking steps to ensure that the subject's wound is not worsened by the EITs, and

(3) the EITs will contain precautions to prevent serious physical harm.

6. The interrogators do not appear to have specific intent to

cause severe 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."'

46 The Classified Bybee Memo briefly restated the Bybee Memo's discussion

of the specific intent requirement, but like the July 13, 2002 letter from Yoo to Rizzo, it did not

include any of the caveats and qualifications briefly mentioned in the Bybee Memo.

47 40761=. Yoo told OPR that most of the techniques "did not even come close to the

standard," but that "waterboarding did." He told us during his interview: "I had actually thought

that we prohibited waterboarding. I didn't recollect that we had actually said that you could do

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(U) 5. The Yoo Letter (August 1, 2002)

(U) In addition to the Bybee Memo and the Classified Bybee Memo, on

August 1, 2002, Yoo signed a six-page unclassified letter, addressed to Gonzales,

that discussed whether interrogation methods that did not violate the torture

statute would: (1) violate United States obligations under the CAT; or (2) provide

a basis for prosecution in the International Criminal Court (ICC) (the Yoo Letter).

Yoo concluded that the United States' treaty obligations did not go beyond the

requirements of the torture statute and that, accordingly, conduct that did not

violate the torture statute could not be prosecuted in the ICC.

(U) a. Violation of the Convention Against Torture

(U) Yoo advised Gonzales that "international law clearly could not hold the

United States to an obligation different than that expressed in (the torture

statute]." Yoo Letter at 3. Yoo explained that the United States' instrument of

ratification to the CAT included a statement of understanding that defined torture

in terms identical to the language of the torture statute. Citing "core principles of

international law," Yoo concluded that "so long as the interrogation methods do not

violate 1the torture statute], they also do not violate our international obligations

under the Torture Convention." Id. at 4.

(U) In arriving at that conclusion, Yoo noted that the United States had

submitted an "understanding" with its instrument of ratification as to the meaning

of torture. He then discussed, in the next five paragraphs, the legal effect of a

party's "reservation" to a treaty. Finally, Yoo concluded that the "understanding"

was in fact a "reservation" that limited the United States' obligations under the

CAT.48

(U) Yoo did not elaborate on the well-established meanings of "reservation"

48 (U) Yoo explained, in a footnote, that the understanding might in fact be a reservation,

because although "the Bush administration's definition of torture was categorized as an

`understanding,' . . . we consider it to be a reservation if it indeed modifies the Torture Convention."

Yoo Letter 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 "the. understanding attached by

the Bush Administration is less a modification of the Convention's obligations and more of an

explanation of how.the Untied States would implement its somewhat ambiguous terms." Yoo Letter

at 4, n. 6.

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and "understanding" in United States and international law:

• Reservations change U.S. obligations without necessarily changing the

text [of a treaty], and they require the acceptance of the other party.

• Understandings are interpretive statements that clarify or elaborate

provisions but do not alter them.

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)).

(U) Thus, a reservation to a duly ratified treaty "is part of the treaty and is

law of the United States." Restatement (Third) of Foreign . Relations Law of the

United States at § 314 cmt. b. A treaty subject to an understanding "becomes

effective in domestic law . . . subject to that understanding" Id. at cmt. d.

(U) b. Prosecution Under the Rome Statute

(U) In response to Gonzales's second question, the Yoo Letter stated that the

United States is not a signatory to the ICC Treaty, and that the treaty therefore

cannot bind the United States as a matter of international law, and that even if the

treaty did apply, "the interrogation of an al Qaeda operative could not constitute

.a crime under the Rome Statute." Yoo Letter at 5. According to the letter, this is

because article 7 of the Rome Statute only applies to "a widespread and systematic

attack directed against any civilian population," not interrogation of individual

terrorists, and because article 8 is limited to acts that violate the provisions of the

Geneva Conventions.

(U) The Yoo letter went on to explain that article 8 would not apply because

President Bush declared on February 27, 2002, that Taliban and al Qaeda fighters

were not entitled to protection under the Geneva Conventions, consistent with

OLC's January 22, 2002 opinion to that effect. Thus, "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.

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47

DRAFT

(U) C. Military Interrogation, the March 14, 2003 Yoo Memo to DOD,

and the DOD Working Group Report

(U) 1. Guantanamo and the Military's Interrogation of Detainees

(U) In January 2002, Taliban and al Qaeda prisoners captured in the war in

Afghanistan began arriving at the United States Naval Base at Guantanamo Cuba.

By the end of the year, more than 600 men were reportedly held at the base.

According to press accounts and declassified Defense Department documents, the

questioning of these prisoners was conducted by two groups with differing goals

and approaches to interrogation: the military interrogators of the Army intelligence

Joint Task Force 170 (JTF); and members of the military's Criminal Investigative

Task Force (CITF), which was composed of criminal investigators and attorneys

from the military services, assisted by FBI agents and interrogation experts

detailed to the base.

(U) JTF was primarily interested in obtaining intelligence relating to future

terrorist or military actions, and promoted the use of aggressive, "battlefield"

interrogation techniques adapted from the SERE training program by the Defense

Intelligence Agency's Defense Humint Services (DHS). CITF was more focused on

criminal prosecution, and argued that conventional, rapport-building interrogation

methods advocated by the FBI were the most effective way to obtain information.

According to FBI observers, the JTF interrogators were inexperienced and poorly

trained, and as a result were able to obtain little useful intelligence.

(U) On October 11, 2002, JTF's military commander submitted a request for

authorization to use non-standard interrogation techniques on three detainees

believed to be high-level members of al Qaeda. The techniques were classified into

three categories, and were described as follows:

(U) Category I:

1. Yelling at the detainee;

2. Deceiving the detainee by:

(a) Using multiple interrogators; or

(b) Posing as interrogators from a country that

tortures detainees;

(U) Category II:

1. Placing the detainee in stress positions;

2. Using falsified documents or reports to deceive the

detainee;

3. Placing detainee in isolation;

4. Interrogating detainee in non-standard interrogation

environments or booths;

5. Depriving detainee of light and auditory stimuli;

6. Hooding detainee during interrogation;

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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;

(U) 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. 49

(U) JTF's request was forwarded through channels to Defense Secretary

Rumsfeld, who approved the use of all of the JTF techniques except the first three

in, Category III on December 2, 2002.

(U) Members of the CITF at Guantanamo, including FBI and military

personnel, objected to the techniques and reported apparent instances of abusive

treatment to their superiors. As more fully discussed in the report of the

Department's Office of the Inspector General, FBI personnel were ordered not to

49 (U) This description is taken from an October 11, 2002 memorandum from Lieutenant

Colonel Jerald Phifer to the Commander of JTF, Major General Michael Dunlavey. That and other

documents were declassified and released by the Defense Department in June 2004.

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DRAFT

participate or remain present when aggressive techniques were used. 5°

(U) On December 17, 2002, David Brant, the director of the Naval Criminal

Investigative Service (NCIS), a component of the CITF, told the Navy's General

Counsel Alberto Mora that detainees at Guantanamo were being subjected to

abusive and degrading interrogation techniques. The following day, Mora met

again with Brant and with Guantanamo-based NCIS psychologist Michael Gelles,

who told 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.

(U) Mora asked the General Counsel of the Army, Steven Morello, if he were

aware of any interrogation abuse at Guantanamo. Morello reportedly showed Mora

the official military documents authorizing the techniques, including an October

15, 2002 legal opinion by Lieutenant Colonel Diane Beaver, the legal adviser to

JTF, which concluded that the techniques were lawful (the Beaver Memo). Morella

reportedly added that he had argued against approval, without success.

(U) Mora reviewed the Beaver Memo and concluded that its legal

justifications for the techniques were seriously flawed and that the use of some of

the JTF techniques would be illegal. After noting his concerns with the Secretary

of the Navy, Mora met with DOD General Counsel William Haynes on December

20, 2002. According to Mora, Haynes listened to his objections and told him that

he would carefully consider what he had said.

(U) On January 6, 2003, Mora learned from Brant that the abusive

so (I.J) 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).

Department opining)1- e legality of the techniques that had been used in Khatani's

According t sometime in 2003, John Yoo told her to draft a letter to the Defense

ir -roiation. In a May 30, 2003 email, written to Yoo shortly before he left the Department,

said that she "did not get a chance to draft a letter to DOD re: techniques. My thought is

I can draft it when I get back and have Pat [Philbin) sign it." old us that she never drafted

the letter because she did not receive sufficient information a out the interrogation from the

Defense Department.

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interrogations were continuing at Guantanamo. After making his objections

known to several other high-ranking Pentagon officials, Mora met again with

Haynes on January 8, 2003. According to Mora, he further explained his legal,

practical, and policy objections to the program. Haynes reportedly responded that

United States officials believed the techniques were necessary to obtain information

about future al Qaeda operations.

(U) Sensing that his objections were being ignored, Mora drafted a

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.

(U) In withdrawing the December 2, 2002 memorandum, Rumsfeld ordered

Haynes to establish a working group to consider the legal, policy and operational

issues involved in the interrogation of detainees. Pursuant to the Secretary's

directive, Haynes assembled a working group consisting of military and civilian

Defense Department personnel. Working Group members included Mora, the

general counsels of the other military branches, representatives of the Pentagon's

policy and intelligence components, and representatives of the Joint Chiefs of Staff.

(U) 2. Drafting the Yoo Memo

.(U) Shortly after the Working Group was formed, Haynes asked John Yoo to

provide legal advice about interrogation to the Working Group. Yoo notified Bybee

of the request and consulted with the White House. In drafting the memorandum,

Yoo's main concern was to. ensure that the DOD legal positions were consistent

with the Bybee Memo, without revealing any information about the CIA program.

According to Yoo, Defense Department personnel were not authorized to know

anything about the CIA interrogation program, and the existence of the Bybee

52

DRAFT

Memo had to be kept secret from them. 51

(U) Yoo assigned1==.to serve as OLC's liaison to the Working

Group, and both of them subsequently attended meetings to explain OLC's view

of the applicable laws to the Working Group. According to Yoo, they did not

discuss or provide copies of the Bybee Memo or the Classified Bybee Memo, but the

legal advice they provided was identical to what was set forth in the Bybee Memo.

At about this time started working on a draft of what would become the

Yoo Memo. Although the Yoo Memo was the only formal advice OLC provided on

military interrogation, Yoo and onsulted with the Working Group as they

formulated Defense Department policy.

(U) The Yoo Memo incorporated the Bybee Memo virtually in its entirety, but

was organized differently and contained some new material. The memorandum

was divided into four parts: (I) the United States Constitution; (H) federal criminal

law; (III) international law; and (IV) the necessity defense and self defense.

(U) In Part I, the Yoo Memo discussed the relevance of the United States

Constitution to military interrogation, first observing that "Congress has never

attempted to restrict or interfere with the President's [Commander-in-Chief]

authority . . . ." Yoo Memo at 6. The memorandum concluded that neither the

si (U) Evidence suggests that the CIA and the DOD General Counsel's Office had in fact

discussed the agency's use of EITs before Yoo was asked to draft the 2003 memorandum. As noted

above, on July 26, 2002, the CIA provided OLC copies of two memoranda about the effects of SERE

training. 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 re sort, that Haynes and Rumsfeld

TO am on Janu. 16 2003.

(U) In a June 10, 2004 memorandum to the files, then AAG Goldsmith reported talking to

John Yoo about oral advice that Yoo may have provided to DOD General Counsel Haynes in

November and December 2002. Yoo told Goldsmith that he dimly recalled discussions with Haynes

about specific interrogation techniques to be used on a military detainee at that time, but that any

advice he gave was "extremely tentative" and that he never gave Mr. Haynes any advice that went

beyond what was contained" in the August 2002 opinions.

1 ...:9E.S.EielZETEM=1111:1Perag--

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Fifth Amendment Due Process Clause nor the Eighth Amendment prohibition

against cruel and unusual punishment applied to the conduct of military

interrogations of alien enemy combatants held outside the United States. Id. At 10.

(U) 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

properly-authorized interrogation of enemy combatants" by the military. Id. at 11.

(U) In Part III, the Yoo Memo discussed international law. The Bybee Memo's

analyses of the CAT and two foreign court decisions - Ireland v. U.K. and PCATI v.

Israel- were incorporated almost verbatim, and the memorandum included a new

discussion of customary international law. The memorandum concluded that

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. Yoo Memo

at 62.

(U) 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

justification for any criminal liability." Id. at 81.

(U) 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.

(U) With respect to the Eighth Amendment, the memorandum noted that

case law generally involved situations where force was used against prisoners or

where harsh conditions of confinement had been imposed. In both situations, the

memorandum concluded, as long as officials acted in good faith and not

maliciously or sadistically, and as long as there was a government interest for the

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conduct — such as obtaining intelligence to prevent terrorist attacks the Eighth

Amendment prohibitions would not apply to the interrogation of enemy

combatants. Yoo Memo at 62, 65.

(U) The Yoo Memo's analysis of the Fifth and Fourteenth Amendments

reached a similar result. The memorandum explained that substantive due

process protects individuals from "the exercise of power without any reasonable

justification in the service of a legitimate governmental objective," and that

"conduct must shock the conscience" in order to violate the Constitution. Id. at 65

(citations omitted). The "judgment of what shocks the conscience . 'necessarily

reflects an understanding of traditional executive behavior, of contemporary

practice, and of the standards of blame generally applied to them." Id. At 66

• (citations omitted). After reviewing some of the case law, the memorandum

summarized four principles that it believed determined whether .government

conduct would shock the conscience: (1) whether the conduct was without any

justification; (2) the government official must have acted with "more than mere

negligence"; (3) some physical contact is permitted; and (4) "the detainee must

sustain some sort of injury as a result of the conduct, e.g., physical injury or

severe mental distress." Id. at 68.

(U) Several members of the Working Group were highly critical of the advice

provided by Yoo and On or about January 28, 2003, met with

several members of the Working Group and summarized some of the conclusions

in the draft Yoo Memo. She reported back to Yoo by email that some members o_ f

the Working Group expressed concern that :

(1) the commander-in-chief section sweeps too

broadly;

(2) necessity defense sweeps too broadly and doesn't make clear

enough that it would not apply in all factual scenarios,

(3) the c-in-c argument (as with the other defenses) is a violation of

our international obligations.

(U) added that she was "not worried about the first two concerns but

with respect to the third I pointed them to national right of self-defense but I

sensed serious skepticism." Yoo responded that she should keep "plugging away"

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aanndd that they would address the concerns in the editing process.

(U) 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.

(U) On March 3, 2003, Yoo instructed to send a draft of the Yoo

Memo to CIA General Counsel Scott Muller. According to Yoo, Muller wanted to

make sure nothing in the new memorandum detracted from the assurances OLC

had provided to the CIA in the Bybee Memo.

Muller reviewed the draft and wrote tc on March 7, 2003:

(U) Bybee apparently began reviewingdrafts of the Yoo Memo sometime

around March 4, 2003, when he aske and Yoo by email for a draft.'

Email traffic indicates that he and Yoo exchanged several drafts of the Yoo

Memo over the next few days.

,feirr 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

52 (U) 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.

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the "sanctioning of detainee interrogation techniques that may appear to violate

international law, domestic law, or both." Romig added that the OLC opinion,

which controlled the DOD report's legal analysis, set forth an extremely broad view

of the necessity defense that would be unlikely to prevail in United States or foreign

courts. Romig also criticized OLC's view that customary international law cannot

bind the United States executive and asserted that the adoption of aggressive EITs

would ultimately subject United States military personnel to greater risk.

(U) On March 11, 2003, Yoo received comments on the draft memorandum

from Deputy White House Counsel David Leitch. Leitch's comments, which were

copied to Gonzales and Addington, were limited and did not address any of the

substance of Yoo's legal analysis.

(U) Bybee was confirmed for the jud 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 Memd.

(U) 3. Key Conclusions of the Yoo Memo

(U) The Yoo Memo incorporated virtually all of the Bybee Memo more or less

verbatim, and advanced the following additional conclusions of law.

(U) 1. The Fifth Amendment Due Process Clause does not apply to military

interrogations outside the United States because that amendment was not

"designed to restrict the unique war powers of the President as Commander in

Chief" and because it does not apply extraterritorially to aliens who have no

connection to the United States. Yoo Memo at 6.

(U) 2. The Eighth Amendment does not apply to military interrogations

because it only applies to persons upon whom Criminal sanctions have been

imposed. Id. at 10.

(U) 3. Various canons of statutory construction "indicate that ordinary

federal criminal statutes" such as assault, maiming, and interstate stalking "do not

apply to the properly-authorized interrogation of enemy combatants by the United

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States Armed Forces during an armed conflict." Id. at 11, 23.

(U) 4. The War Crimes Act does not apply to military interrogation of al

Qaeda and Taliban prisoners because "they do not qualify for the legal protections

under the Geneva or Hague Conventions . . . ." Id. at 32.

(U) 5. The torture statute does not apply to interrogations conducted at a

United States military base in a foreign state, such as Guantanamo. Id. at 35.

(U) 6. CAT Article 16 does not require nation parties to criminalize acts of

cruel, inhuman or degrading treatment or punishment, and does not prohibit such

acts "so long as their use is justified by self-defense or necessity." Id. at 59.

(U) 7. Eighth Amendment jurisprudence does not forbid interrogation

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 60-61, 65.

(U) 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.

(U) 4. The Working Group Report

(U) The April 4, 2003 Working Group Report incorporated substantial

portions of the Yoo Memo, in addition to new material from the military lawyers in

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the Working Group. 53 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, 54 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.

(U) D. Implementation of the CIA Interrogation Program .

Other agency personnel separately told CIA CMG that they were concerned about

human 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 a report titled "Counterterrorism Detention and Interrogation Activities"

(the CIA OIG Report). The facts in the following discussion are based primarily

upon that document.

feT. 1. Abu Zubaydah

CIA detention facili egan using EITs in the

53 (U) 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.

54 (U) The report omitted the Bybee Memo's and the Yoo Memo's argument that "severe pain"

must rise to the level of the pain of "death, organ failure or serious impairment of body functions."

LISIF-Sgertr alri-ORN'

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interrogation of Abu Zubaydah. 55 According to the CIA OIG Report,

independent contractor psychologists were assi ned to lead the interrogation team

consisting of CIA security, medical personnel. $6

The two psychologist/interrogators administered all of the

interrogation sessions involving EITs, which were closely followed by headquarters

ersonnel.

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j.T4S 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 OIG examined a total of 92 videotapes,

twelve of which recorded the use of EITs. Those twelve tapes included a total of 83

- a.. • _ • • the ma

. on of which lasted less than ten seconds

1,TAS On one of the interrogation videotapes, CIA OIG investigators

nstoatteindg t, h"aIft oa npes cyhcihldo ldoigeiss itn/i nAtmererroigcaa,t oarn dv eI rnfbinadll yoi uthtoyroeua tkenneewd Asobmue Zthuinbga yadbaohu tb iyt,

I will personally cut your mother's throat." commented, in its review of

the CIA OIG report, that the threat was permissi e because of its conditional

nature.

,(.703MMApart from the use of the waterboard, the CIA OIG report did

...(eTrf The C o identif s ecific clandestine facilities, which

also refers to as "black sites."

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not describe the manner or frequency of the EITs that were administered to Abu

Zubaydah. The volume of intelligence obtained from Abu Zubaydah reportedly

increased after the waterboard sessions, but CIA OIG concluded that it was not

possible to determine whether the waterboard or other factors, such as the length

of his detention, were responsible.

After the on-site interrogation team determined that Abu

Zubaydah had ceased resisting interrogation, they recommended that EITs be

discontinued. However, CTC head uarters officials believed the sub'ect was still

withholding information

enior CIA officials reportedly ma e t e ecision to resume e use o the

waterboard

to assess the subject's

compliance. After that session greed with the on-site interrogators that the

subject was bein truthful and no further waterboard applications were

administered.

According to CIA 01G, 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."

DRAFT

pg 2. Abd Al-Rahim Al-Nashiri

.4.T...S" On November 15, 2002, a second prisoner, Abd Al-Rahim Al-

Nashiri, was brought to facility. psychologist/interrogators

immediately began using EITs, an A -Nashiri reportedly provided lead information

about other terrorists during the first day of interrogation. On the twelfth day, the

psychologist/interrogators applied the waterboard on two occasions, without

achieving any results. Other EITs continued to be used, and the subject eventually

become compliant. 2002, both Al-Nashiri and Abu Zubaydah

were moved to another CIA black site,

DRAFT

While EITs were being administered, several unauthorized

• ebriefer 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.

On another occasion in December 2002

debriefe told Al-

Nashiri that if he did not talk, his mother and family would be roug t to the

facility. Accordin to the CIA OIG report, there is a widespread perception in the

Middle East that intelligence services torture prisoners by sexually

DRAFT

abusing female family members in their presence.

J,,TelMEMOn other occasions, the CIA debriefer blew cigar smoke in Al-

Nashiri's face, manhandled him while he was tied in stress positions, and stood on

Nashiri At some point

nterrogators determine e was coopera ing an e use of EITs was

discontinued:

4.1AMMEIn January 2003, the CIA's Deputy Director of Operations

notified the CIA OIG that CIA personnel had used the above unauthorized

interrogation techniques on Al-Nashiri and asked CIA OIG to investigate. As

discussed below, DOJ was notified on January 24, 2003.

3. Khalid Sheik Muhammed

(U) EITs were also used on Khalid Sheik Muhammed (KSM), a high-ranking

al Qaeda official who, accordin to media reports, was ca tured in Islamabad,

Pakistan on March 1, 2003 o a CIA black site CIA officers

have been quoted in the media as saying that KSM was defiant to his captors and

was extremely resistant to EITs, including the waterboard.

JAM. The CIA OIG report stated that KSM was taken to

facility for interrogation and that he was accomplished at resisting EITs. He

reportedly underwent wat- involving

ons

4.VSIMMEThe 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.'

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(U) 5. CIA Referrals to the Department

Jettl According to a CIA MFR drafted by John Rizzo, on January 24, 2003,

Scott Muller (then CIA General Counsel Rizzo and met with Michael

Chertoff, Alice Fisher, John Yoo, and to discuss the incidents at .

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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

a nd 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.

48'' 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 ex ressed no interest or intention to pursue the matter of the

jsor On January 28, 2003, CIA Inspector General John Hel erson called John

Yoo and told him that the CIA OIG was looking into th 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:

"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."

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Accordin 1 , we recommend that the declination decision

with respect to be reexamined. Primarily because of the

changed legal landscape, we further recommend that the lli ther declination

decisioOrnade by CTS and the EDVA be reexamined as well.

63 (U) 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 erroneous determination that the War Crimes Act 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.

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(U) 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 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 ¶ 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 same EITs by different interrogators

may have different results . an

Id. at ¶ 221.

Id. at 11 233-235.

(U) E. Reaffirmation of the CIA Program

(U) I. The Question of "Humane Treatment"

par in a February 7, 2002 order, the President determined that armed forces

were re uired to treat detainees humanel

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(U) 2. The "Bullet Points"

..(...Teg 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 CTCMor use by the CIA OIG in connection with

its review of the CIA detention and interrogation program. 6/14/04 Muller letter

to Goldsmith.

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 interrog ation program.MMunderstood that the CIA OIG

had indicated to CTC that it might evaluate the legality of the program in

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connection with its investigation, and that the Bullet Points were intended to

demonstrate that OLC had already weighed in on the subject.

i•T'S irhe Bullet Points stated that the CAT definition of torture "is

_identical in all material respects to the definition of torture" in the torture statute,

that customary international law imposes no obligations on the United States

beyond the CAT, and that the War Crimes Act does not apply to CIA interrogations

of al Qaeda members. One bullet point summarized the Bybee Memo's conclusions

regarding specific intent as follows:

The interrogation of al-Qa'ida detainees does not

constitute torture within the meaning of [the torture

statute] where the interrogators do not have the specific

64 1 ft the De artment on May 30 2003 and

1 22.1/P_SEGRet litiaPOTS".

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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.

.4...T. 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 water board.

.J.T.Er On June 16, 2003, repared a MFR

referencing the Bullet Points, statin that the document "was fully coordinated with

John Yoo ... as well as with who re orted to Mr. Yoo at OLC. It

was drafted in substantial part by Mr. Yoo and and was approved

verbatim. It reflects the joint conclusion of the CIA Office of General Counsel and

the DoJ Office of Legal Counsel."

„AX-Er provided a copy of the Bullet Points to the CIA OIG,

which discussed them and incorporated them into their draft report. As discussed

below, OLC subsequently disavowed the Bullet Points.

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(U) 3. The Leahy Letter

(U) On June 20, 2003, Muller an met with Gonzales at his office

to discuss how the administration should respond to a June 2, 2003 letter from

Senator Patrick Leahy to Condoleezza Rice, requesting confirmation that the United

States was treating detainees humanely. Also attending the meeting were Deputy

White House Counsel David Leitch John Bellinger, Whit Cobb (from DOD OGC),

Patrick Philbin and Prior to the meeting, Muller prepared a draft

response to Leahy's letter, which was redrafted by Philbin and circulated at the

meeting for comments.

hilbin reportedly confirmed, in response to

a direct question rom Be Inger, at the EITs authorized by the Department

"could be used consistent with CAT and the Constitution."

(U) The response was subsequently redrafted by Bellinger and went out

under Haynes' signature.

JeT43"" The letter advised Senator Leahy that the United 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:

The letter does not highlight the fact that other nations

might define the terms "cruel, inhuman or degrading

treatment or punishment" differently than does the

United States.

JeT4S After the meeting, Muller and Bellinger reportedly

remained behind to discuss questions raised about the implementation of the CIA

program that had been raised by the CIA OIG review. Gonzales had previously

questioned whether the use of the waterboard during the interrogation of KSM

"could be viewed as excessive." The group noted that the Classified Bybee Memo

had stated, on page two, that the technique would not be repeated substantially

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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 with which

to assess the lawfulness of any future activities that did not fall s uarely within the

specific facts reflected in the memorandum ." All of them

also reportedly agreed that simply because conduct went beyond the 'safe harbor'

did not necessarily mean that the conduct violated the statute or convention.

.11.8 11uller and described for Gonzales the numbers of

times the waterboard had been used on KSM and Abu Zubaydah, and "discussed

the provisions of the [Classified Bybee Memo] as applied to the actual use of the

water board with respect to AZ and KSM. We agreed that the use .of the water

board in those instances was well within the law, even if it could be viewed as

outside the 'safe harbor."'

(U) 4. The CIA Request for Reaffirmation

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(U) E. AAG Goldsmith - Withdrawal of OLC's Advice on Interrogation

(U) After Bybee left the Department in March 2003, OLC's AAG position

remained unfilled for several months, reportedly because of disagreement between

the White House and the Attorney General's Office over a replacement.' 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.

(U) I. The NSA Matter

66 (U) 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.

(U) 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 he read sometime in December 2003.

(U) 2. The Withdrawal of the Yoo Memo

(U) Goldsmith's reaction to the Yoo Memo was that it was "deeply flawed," 68

and his imediate concern was thathe Defense Department might improperly rely

on the opinion in determining the legality of new interrogation techniques.' 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."

68 (U told us that after Goldsmith read the Yoo Memo, he told her it was

'riddled with error.

69 (U) Goldsmith told us that he approached his review of the Yoo Memo with great caution,

because he was reluctant to reverse or withdraw a prior OLC opinion. In reviewing the

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."

70 (U) Philbin responded to that email as follows:

John's March memorandum was not a blank check at least as of the time

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(U) Accordingly, Goldsmith telephoned Haynes in late December 2003 and

told him that the Pentagon could no longer rely on the Yoo Memo, that no new

interrogation techniques should be adopted without consulting OLC, and that the

military could continue to use the noncontroversial techniques set forth in the

Working Group Report, but that they should not use any of the techniques

requiring Secretary of Defense approval without first consulting OLC. Having

allayed his immediate concerns, Goldsmith temporarily set the Yoo Memo aside

and continued to deal with the more urgent matter of the NSA program.

(U) In early March 2004, the Defense Department told Goldsmith that they

wanted to 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.

(U) On Saturday, March 13, 2004, Goldsmith telephoned DAG Carney at

home and asked to meet with him that day. Philbin and Goldsmith went to

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

overbgbroadefinition of the term "severe pain." Goldsmith added that generally

speaking, the memorandum's legal analysis was loosely done and was subject to

misinterpretation.

(U) Comey remembered that Philbin seemed in accord with Goldsmith's

comments, and that Philbin claimed that he had advised Yoo to remove the

questionable sections from the memorandum. Both Goldsmith and Philbin were

friendly with Yoo at the time, and Comey got the impression that they were both

embarrassed and disappointed by the sloppy legal work they had uncovered.

started work at DoD OGC (summer 2003) because I told her to make sure

that they did not go beyond the Rumsfeld approved procedures and did not rely on

the memo. This was only an oral caution but please do not sell us short by ignoring

it.

(U) Goldsmith answered as follows: "I'm not selling anyone short - It's just that Haynes

said he heard nothing about that advice."

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(U) Shortly after this meeting, Comey told AG Ashcroft that Goldsmith had

found problems with the legal analysis in the Yoo Memo and that it would have

to be replaced. According to Comey, Ashcroft agreed without hesitation that any

problems with the analysis should be corrected. Sometime in April 2004,

Goldsmith began working on a replacement draft for the Yoo Memo, assisted by

Principal Deputy AAG Steve Bradbury and several OLC line attorneys.

(U) 3. The CIA OIG Report and the Bullet Points Controversy

j„TAR On March 2, 2004, Goldsmith received a letter from Muller,

asking OLC to reaffirm the legal advice they had given the CIA regarding the

interrogation program. Muller specifically asked for reaffirmation of the Yoo Letter,

the Bybee Memo, the Classified Bybee Memo, and the Bullet Points. 7I

(U) Goldsmith told us that he was unaware of the Bullet Points until he

received Muller's letter, which attached a copy and which asserted that they had

been "prepared with OLC's assistance and . . . concurrence . . . in June 2003.' 72

Goldsmith was concerned because the Bulet Points apeared to be a CIA

document, with no legal analysis and no indication that OLC had ever reviewed its

72 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.

(U) Goldsmith told us that he did not know what motivated Muller to ask for reaffirmation

of the OLC advice at this time. We note, however, that CIA OGC had submitted its comments on

the draft CIA GIG report the previous week, on February 24, 2004.

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content. He made inquiries, and learned that and Yoo had in fact worked

on the document.

Sometime in late May 2004, the CIA OGC gave OLC a copy

of the final May 7, 2004 CIA OIG Report, which included descriptions of the legal

advice provided to the CIA by OLC, and which included copies of the, Classified

Bybee Memo and the Bullet Points as appendices. 73 On May 25, 2004, Goldsmith

wrote to CIA IG 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.

...03. 4fter 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 that the

advice in the Classified Bybee Memo depended upon a number of factual

assumptions and limitations, and that the report suggested that the actual

interrogation practices may have been inconsistent with those assumptions and

limitations. The waterboard, in particular, .was of concern, in that the CIA OIG

Report stated that "the SERE waterboard experience is so different from the

subsequent Agency usage as to make it almost irrelevant."

.4.1103 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

73 (U) OLC's files also include a copy of a January 2004 draft of the CIA OIG Report, with CIA

OGC's comments. There is no indication of how or when OLC received this document.

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CIA OIG Report. OLC and CIA OGC initially contemplated submitting a joint letter

to Helgerson, and early drafts of the letter included signature blocks for both

Muller and Goldsmith.

pf„Tkr On June 9, 2004, Goldsmith talked to Yoo by telephone

about the Bullet Points. 74 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 Attorney

who could never have signed off on such broad conclusions app yang law to fact,

especially in such a cursory and conclusory fashion."

..t.T.8* 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 their report,

and that they "served as a basis for the 'Legal Authorities' briefing slide used at a

29 July 2003 meeting attended by the Vice President, the National Security

Advisor, the Attorney General, who was accompanied by Patrick Philbin, the

Director of Central Intelligence, and others?

JeT.6 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 Helgerson.

..(X.8" 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

74 (U) Goldsmith also asked Yoo about some oral advice he had provided to Haynes in

connection with DOD's December 2, 2002 decision to use EITs on a detainee at the Guantanamo

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 Hayes was

"extremely informal," and was clearly "extremely tentative." According to Yoo, he "never gave Mr.

Haynes any advice that went beyond what was contained" in the August 2002 opinions.

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comments on the "expanded use" of EITs at the July 29, 2003 NSC Principals

meeting. Goldsmith explained that the statement was intended to refer to the use

of approved techniques on other detainees in addition to Abu Zubaydah, not the

use of new techniques, 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.

(U) 4. Goldsmith's Draft Revisions to the Yoo Memo

(U) 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:

(U) 1. The Yoo Memo "is flawed in so many important respects that it must

be withdrawn." June 15, 2004 draft at 1, n. I.

(U) 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

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matters in question, and the case law concerning the balance of

authority between Congress and the President, see, e.g., Youngstown.

Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38, 641-46 (1952)

(Jackson, J., concurring)." Id. at 1, n. 1. 75

(U) 3. Yoo's "sweeping use of the canon against application of statutes to the

sovereign outlined in Nardone v. United States, 302 U.S. 379 (1937),

is too simplistic and potentially erroneous, particularly as applied to

the federal torture statute . . . and possibly other criminal statutes."

Id. at 1-2 , n. 1.

(U) 4. "The memorandum incorrectly concludes, contrary to an earlier

opinion of this Office, that the torture statute does not apply to the

conduct of the military during wartime." Id. at 2, n. 1.

"This conclusion contradicted an earlier opinion of this Office, which

had concluded that the torture statute 'applies to official conduct

engaged in by United States military personnel.' Memorandum for

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

Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re:

The President's Power as Commander in Chief to Transfer Captured

Terrorists to the Control and Custody of Foreign Nations at 25-26 (Mar.

13, 2002). We agree with the March 2002 opinion that Congress's

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, 2004draft

at 29-30 n. 28.

(U) 5. "[T]he memorandum makes overly broad and unnecessary claims

about possible defenses to various federal crimes, including torture,

75 (U) In a June 30, 2004 email to DOJ attorneys working on a draft reply to a June 15, 2004

letter from the Senate Judiciary Committee, Goldsmith wrote:

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

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without considering, as we must, the specific circumstances of

particular cases." June 15, 2004 draft at 2, n. 1.

The Yoo Memo "makes overly broad, unnecessary, and in some

respects erroneous claims about possible defenses to various federal

crimes that we need not consider here." July 1, 2004 draft at 25, n.

27.

(U) 6. The Yoo Memo "described the 'severe pain or suffering' contemplated

by the torture statute by referring to the level of physical pain 'that

would ordinarily be associated with a physical condition or injury

sufficiently serious that it would result in death, organ failure, or

serious impairment of body functions.' [Yoo Memo] at 38-39. . . [T]he

effort to tie the severity of physical pain to particular physical or

medical conditions is misleading and unhelpful, because it is possible

that some forms of maltreatment may inflict severe physical pain or

suffering on a victim without also threatening to cause death, organ

failure or serious impairment of bodily functions. We have no need to

define that line or indeed to say anything more about the meaning of

the torture statute, in reviewing the particular interrogation

techniques at issue here." June 24, 2004 draft at 28, n. 26.

(U) 7. The Yoo Memo "asserts that Congress lacks authority to regulate

wartime interrogation and, relatedly, that the [Executive Branch]

could not enforce any statute that purported to do so. [Yoo Memo] at

4-6, 11-13, 18-19. These assertions, in addition to being unnecessary

to support the legality of the techniques . . . , are plainly wrong.

Congress clearly has some authority to enact legislation related to the

interrogation of enemy combatants during wartime, see, e.g., U.S.

Const. art. I, § 8, 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

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combatants, we would need to analyze closely a variety of factors,

including the nature and scope of any potential statutory interference

with the Commander in Chief power, the countervailing congressional

authority to regulate the matters in question, the case law concerning

the balance of authority between Congress and the President, see, e.g.,

Public Citizen v. U.S. Department of Justice, 491 U.S. 440, 482-89,

(1989) (Kennedy, J., concurring), and the historical practices of the

political branches, cf. Dames & Moore v. Regan, 453 U.S. 654, 675-83

(1981) - factors that [the Yoo Memo] did not consider and that we view

as unnecessary to consider here." Id. at 36-37 n. 38.

(U) 8. "With respect to treaties, [the Yoo Memo] maintains that a presidential

order of an interrogation method in violation of the CAT would amount

to a suspension or termination of the treaty and thus would not

violate the treaty. [Yoo Memo] at 47. It is true that the President has

authority, under both domestic constitutional law, see Memorandum

for Alan J. Kreczko, Special Assistant to the President, and Legal

Adviser to the National Security Council, from Christopher Schroeder,

Acting Assistant Attorney General, Office of Legal Counsel, Re: Validity

of Congressional-Executive Agreements That Substantially Modify the

United States' Obligations Under an Existing Treaty at 8 n. 14 (Nov. 25,

1996), and international law, Vienna Convention on the Law of

Treaties . . . to suspend treaties in some circumstances. But it is error

-to say that every presidential action pursuant to the Commander-in-

Chief authority that is inconsistent with a treaty operates to suspend

or terminate that treaty and therefore does not violate it. It is also

unnecessary to consider this issue, because [the techniques] are fully

consistent with all treaty obligations of the United States, including

the Geneva Conventions and the CAT." Id. at 37 n.38.

(U) 9. "[The Yoo Memo] states that the Fifth Amendment to the United States

Constitution is 'inapplicab[le]' during wartime, particularly with

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

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the Fifth Amendment is inapplicable in wartime or that it 'does not

apply to the President's conduct of a war.' Cf. Hamdi, supra, slip op.

at 21-32 (plurality opinion of O'Connor, J.)." July 1, 2004 draft at 27,

n. 30.

(U) Goldsmith left the Justice Department on July 17, 2004, before he was

able to finalize a replacement for the Yoo Memo. 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 Department. Sometime thereafter, the Defense

Department reportedly informed OLC that it no longer needed a replacement for

the Yoo Memo.

(U) 5. The Withdrawal of the Bybee Memo

(U) On June 8, 2004, the Washington Post reported that Thin August 2002,

the Justice . Department advised the White House that torturing al.Qaeda terrorists •

in captivity abroad 'may be justified,' and that international laws against torture

`may be unconstitutional if applied to interrogations' conducted in President Bush's

war on terrorism, according to a newly obtained memo." On June 13, the Post

made a copy of the Bybee Memo available on its web site

(U) Up until this time, Goldsmith's focus had been on the Yoo Memo, rather

than the Bybee Memo. Shortly after the Bybee Memo was leaked, Goldsmith was

asked by the White House if he could reaffirm the legal advice contained in the

Bybee Memo. Since the analysis in that document was essentially the same as the

Yoo Memo, which he had already withdrawn, Goldsmith concluded that he could

not affirm the Bybee Memo. He consulted with Carney and Philbin, who agreed

with his decision, and on June 15, 2004, Goldsmith informed 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.

(U) Later that week, Goldsmith notified the White House Counsel's Office that

he was planning to withdraw the Bybee Memo. According to Goldsmith, this

caused "enormous consternation in the Executive Branch because basically they

thought the whole program was in jeopardy," but the White House did not resist

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his decision.

(U) Goldsmith said he found it "deeply strange" that both the Classified

Bybee Memo and the unclassified memoranda were issued on the same day. He

commented:

One is hyper narrow and cautious and splitting hairs and

not going one millimeter more than you needed to to

answer the question. And the other issued the same day

is the opposite. It wasn't addressing particular. problems.

It was extremely broad. It went into all sorts of issues

that weren't directly implicated, and issued the same day

by the same office.

(U) Bradbury told OPR that he believed it was appropriate to withdraw the

unclassified Bybee Memo. He stated that Yoo's view of the Commander-in-Chief

powers was "not a mainstream view" and that the memorandum did not adequately

consider counter arguments.

(U) Bradbury said part of the problem with Yoo's work on the Commanderin-

Chief section was his entrenched scholarly view of the issue. He commented:

He had a deeply ingrained view of the operative

principles. And to the extent there were sources that

reflect that view, he may bring them in and cite them and

use them. But it's almost as if he could have written that

opinion without citation to any sources. And if a court

here or a court there or a commentator here or a

commentator there takes a different view, that's almost of

secondary importance because he had such a firmly held

view of what the principles are.

In my view, there's something to be said for not being a

scholar or professor in this job [in the OLC]. . . . And

taking a more practical approach, and one where you

don't think you know the answers already, because you

haven't got a body of scholarly work, you know, you've

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already developed on these questions. And I just think

that for practical reasons that's healthy.

(U) In the days that followed, there was a great deal of discussion between

Department officials, the CIA and the White House about how to proceed. On June

22, 2004, Comey, Goldsmith and Philbin met with reporters in a not for attribution

briefing session to explain that the Bybee Memo had been withdrawn. On the same

day, Gonzales announced at a press conference that the Bybee Memo had been

meant to "explore the limits of the legal landscape," and to his knowledge had

"never made it to the hands of soldiers in the field, nor to the president." He

acknowledged that some of the conclusions were "controversial" and "subject to

interpretation."

(U) Goldsmith was determined to complete his replacement for the Yoo Memo

before he left the Department, and he also assigned an OLC line attorney to

prepare a replacement for the Bybee Memo. 76 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.

76 (U) Several replacement drafts for the Bybee Memo were prepared under Goldsmith's

direction, the last of which was dated July 16, 2004.

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(U) F. Case by Case Approvals and The Levin Memo

(U) When Goldsmith left the Department, Dan Levin, who was Counselor to

the Attorney General at the time, was asked to serve as Acting AAG of OLC. Among

other duties, Levin inherited the task of drafting replacements for the Bybee Memo

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.'

(U) Levin stated that when he first read the Bybee Memo, he remembered

"having the same reaction I think everybody who reads it has — 'this is insane, who

wrote this?"' He thought the tone was generally inappropriate and the

Commander-in-Chief and defenses sections were completely unnecessary. Levin

thought an OLC opinion should be a carefully crafted analysis that did not engage

in hypothetical and unnecessary analysis, but the Bybee Memo fell far short of that

ideal, in his view.

78 (U) Prior to the Bullet Points controversy, the CIA did not seek OLC approval to use EITs

on new prisoners brought into the interrogation program, but simply relied on the analysis

provided in the Classified Bybee Memo. After Goldsmith disavowed the Bullet Points, however, the

agency sought written approval every time it intended to use EITs.

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(U) At that time, the Department had advised the CIA that the CAT Article

16 standard of cruel, inhuman and degrading treatment did not apply to the CIA

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

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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 a United States citizen in New York.'

feXer Levin and other OLC attorneys met with CTC officers on

August 4, 2004, and re. uested additional information about the waterboarding.

procedure. CTC responded by fax the

next day, noting some of the time limitations that the CIA had placed on the use

of the waterboard.

(J Levin also asked the CIA for information about how the sleep

deprivation tec nique 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. In some

79 That question was eventually addressed by Bradbury in the Article 16

Memo, which concluded that thirteen CIA EITs, then 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.

80 Similarly, none of the OLC lawyers who worked on the Classified Bybee

Memo appear to have asked the CIA how prisoners were induced to maintain stress positions such

as "wall standing."

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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.

pi5/ 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 States

Constitution or any treaty obligation of the United States." 81 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." 82

(U) At the time, Levin planned to issue a replacement for the Classified Bybee

Memo, and OLC's files show that he prepared several drafts in August and

September 2004, which were circulated to four other OLC attorneys, including

Bradbury, who was read into the interrogation program around that time. 83

81 Althou h Levin concluded that use of the waterboard was lawful=

82 1,T4S he conditions of Levin's approval were: (1) the use of the technique would

conform tote escription 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 twenty minutes each day.

83 (.10‹ 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.

DRAFT

..1„.T.Ft Levin continued to work on a replacement for the Classified

Bybee Memo, and in late September 2004, he asked CIA attome or more

information about the administration of the following EITs: nudity, water dousing,

sleep deprivation, and the waterboard. responded on October 12, 2004.

j„Tog On October 18, 2004, sent Levin a 28-page

document, titled "OMS [CIA Office of Medical Services] Guidelines on Medical and

Psychological Support to Detainee Rendition, Interrogation, and Detention," dated

May 17, 2004 (OMS Guidelines). That document included the following

observations about the waterboard:

This is by far the most traumatic of the enhanced

interrogation techniques . . . SERE trainees usually have

only a single exposure to this technique, and never more

than two .

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OMS Guidelines

(U) At some point that fall, Carney 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, however, Goldsmith's draft was 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.

(U) The Levin Memo deleted the Bybee Memo's discussion of the

Commander-in-Chief power because 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 was unnecessary and some of which he considered to be clearly

wrong.

85 (U) Levin told us that he got two rounds of very detailed excellent comments" from the.

State Department on his classified draft.

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(U) 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 its

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."

(U) Levin also changed the discussion of "severe mental or physical pain or

suffering" by withdrawing and criticizing the Bybee Memo's conclusion that "severe

pain" under the torture statute must be the equivalent of pain resulting from organ

failure or death. As he recalled, only Patrick Philbin defended the previous

analysis, and he told us that the two of them had "spirited discussions" on the

subject.. Levin disagreed with Philbin in the end, and criticized that argument in

the final draft. 86

(U) The Levin Memo was signed on December 30, 2004, and was posted on

the OLC website; Levin continued working on a replacement for the Classified

Bybee Memo.

4(.1, 0n December 30, 2004, provided Levin a copy of a

twenty-page document titled "Back•round Pa er on CIA's Combined Use of

Interro ation Techni • ues."

On January 15, 2005 ent Levin an updated copy

(December 1 #4 o e OMS Guidelines and provided comments on portions of

Levin's January 8, 2005 replacement draft of the Classified Bybee Memo.'

(U) Levin told us that when Gonzales was named as Ashcroft's replacement,

he knew he would not be nominated for the permanent AAG position. According

to Levin, he and Gonzales never got along very well, and although he would have

86 AU) 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

"lay person's understanding of what kind of pain would be associated with" death, organ failure

or loss of bodily function.

87 All of Levin's drafts that we saw in OLC's files concluded that the use of

EITs as descn e e CIA was lawful.

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loved to stay on as AAG, he knew it was not a realistic possibility. 88 At that point,

Bellinger and Rice had moved to the State Department, and Gonzales asked him

to take over Bellinger's position as legal adviser to the NSC. Levin was not

interested in the job, but Gonzales, the new National Security Adviser Stephen

Hadley, and Harriet Miers all urged him to take the position. As a further

incentive, Gonzales knew that Levin was interested in serving as United States

Attorney in the Central District of California, and he told Levin that if the position

became vacant, he would be nominated.

(U) Levin did not take Gonzales' promise seriously; he told us that he

cynically suspected that the White House was worried that if he left government

right after completing the Levin Memo, it would look like he had been forced to

'resign because of the memorandum. He accepted the position at NSC, but once

he got there, found he had "nothing to do." After about a month, he asked for

permission to leave, and returned to private practice.

(U) In describing his work on the issue of EITs, Levin said the. CIA never

pressured him. Rather, he said it only "made clear that they thought it was

important," but that "their view was you guys tell us what's legal or not." He

stated, however, that the "White House pressed" him on these issues. He

commented: "I mean, a part of their job is to push, you know, and push as far as

you can. Hopefully, not push in a ridiculous way, but they want to make sure

you're not leaving any executive power on the table."

(U) Levin told us that Gonzales' opinion of him may have been shaped by an incident that

occurred when Levin was at the FBI. Levin recalled being summoned to the White House, where

Gonzales told him that the President was very upset because Levin was allowing too many people

at the FBI to be read into the NSA surveillance program. According to Levin, because access to the

NSA program was so restricted, people at the FBI had become suspicious that the NSA was doing

something illegal. Levin got permission to show Yoo's OLC opinions to a few senior FBI officials,

who were then able to "calm down" the other FBI personnel.

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(U) H. The Bradbury Memos

(U) When Levin left the Department in early February 2005, Bradbury

became OLC's Acting AAG. 89 He continued to work on a replacement for the

Classified Bybee Memo, as well as a second classified memorandum that

considered the legality of the combined use of EITs. 9°

Bradbury's point of contact at the CIA for these memoranda

was CTC attorney

Correspondence from ra ury in. icates tat e CIA provided its

comments on the Combined Techniques Memo to OLC on March 1, 2005.

89 (U) Bradbury was Acting AAG from February 5 to February 14, 2005. 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.

90 vin started working on the combined techniques memorandum before he

left the Depar ent, ut was unable to complete it before his departure.

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(U) 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 National

Security Division and the Criminal Division. John Bellinger at the State

Department and Dan Levin, then at the NSC, were also included in the process.

As discussed below, DAG Comey voiced no objections to the Bradbury Memo, but

requested changes in the Combined Techniques Memo, which were not made.

Former AAG Levin told us that he passed along comments on the Article 16 Memo

to Bradbury, but that he does not remember seeing a final draft of the document.'

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

The Bradbury Memo was one of two May 10, 2005

memoranda written to replace the Classified Bybee Memo." The Bradbury Memo

considered whether the use of thirteen specific EITs by the CIA would be

"consistent with the federal statutory prohibition on torture" and concluded that

"although extended sleep deprivation and use of the waterboard present more

substantial questions . . . none of these ]EITs], considered individually, would

violate" the torture statute.

je.T.E The 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

waterboard. Each technique was described in the memorandum, along with the

restrictions and safeguards the CIA had represented would be implemented with

their use.

,I,TEI The memorandum noted at the outset that the CIA had

93 (U) 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.

92 he Bradbury Memo noted that it superseded the Classified Bybee Memo,

but added that con =s the conclusion of [the Classified Bybee Memo] that the use of these

techniques on a particular high value al Qaeda detainee, subject to the limitations imposed herein,

would not violate [the torture statute]." Bradbury Memo at 6, n.9.

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DRAFT`

represented that EITs would only be used on "High Value Detainees." Those

individuals were defined by the CIA as ( I) senior members of al Qaeda or an

associated group, (2) who have knowledge of imminent terrorist threats against the

United States or who have had direct involvement in planning such terrorist

actions, and who (3) would constitute a clear and continuing threat to the United

States or its allies if released.

Following a general discussion of the torture statute, the

Bradbury emo considered whether each individual technique would cause "severe

physical or mental pain or suffering." As a preliminary matter, the memorandum

noted that the EITs were developed from SERE training, and recited some of the

same statistics regarding the effect of EITs on trainees that had appeared in the

Classified Bybee Memo to support the conclusion that SERE EITs did not result in

prolonged mental harm. Bradbury Memo at 29, n. 33; Classified Bybee Memo at

5. Although the Bradbury Memo prefaced its discussion with the qualifying

s men "f 11 re the limi a 1. n - - in hi -xierience

In evaluating the legality of the first eleven techniques, the

memorandum concluded without extensive discussion that those EITs clearly did

not rise to the level of "severe mental pain or suffering." The memorandum then

turned to the two remaining techniques - sleep deprivation and waterboarding.

jeTel l'he discussion of sleep deprivation noted that the Classified

Bybee Memo had failed to "consider the potential for physical pain or suffering

resulting from the shackling used to keep detainees awake or any impact from the

diapering of the detainee" or the possibility of severe physical suffering

unaccompanied by severe physical pain. The Bradbury Memo pointed to

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information provided by CIA OMS that "shackling of detainees is not designed to

and does not result in significant physical pain," reviewed the OMS monitoring

procedures, and concluded that "shackling cannot be expected to result in severe

physical pain" and that "its authorized use by adequately trained interrogators

could not reasonably be considered specifically intended to do so." Bradbury

Memo at 37. The memorandum also cited OMS data and three books on the

physiology of sleep and concluded that sleep deprivation did not result in any

physical pain. Id. at 36.

.4..TAF On the question of whether sleep deprivation caused severe

physical suffering, the Bradbury Memo noted that "[a]lthough 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 Bradbury Memo found that sleep deprivation "would not be expected

to and could not reasonably be considered specifically intended to cause severe

physical suffering in violation of the torture statute. Id. at 39. Relying on similar

assurances from CIA OMS, and on one medical text, the Bradbury Memo also

concluded that sleep deprivation would not cause "severe mental pain or suffering"

within the meaning of the torture statute. Id. at 39-40.

With respect to the waterboard, the Bradbury Memo noted

that the "panic associated with the feeling of drowning could undoubtedly be

significant" and that "[t]here may be few more frightening experiences than feeling

that one is unable to breathe." Id. at 42. However, the memorandum noted that,

according to OMS, the technique was not physically painful, and that it had been

administered to thousands of trainees in the SERE program.' 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 . . . ."

93 he Bradbury Memo acknowledged that most SERE trainees experienced

the technique on y once, or twice at most, whereas the CIA program involved multiple applications,

and that "SERE trainees know it 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. Bradbury Memo at 6.

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DRAFT

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.

..(1. The Bradbury Memo also concluded that the waterboard did

not cause "severe physical suffering" because any unpleasant sensations caused

by the technique would cease once it was discontinued. Since each application

would be limited to forty seconds, the memorandum reasoned, any resulting

physical distress "would not be expected to have the duration required to amount

to severe physical suffering.' Id.

jeT.S The Bradbury Memo commented that the "most substantial

question" raised by the waterboard related to the statutory definition of "severe

mental pain or suffering." Noting that an act must produce "prolonged mental

harm" to violate the statute, the memorandum again cited the experience of the

SERE program and the CIA's experience in waterboarding three detainees to

conclude that "the authorized use of the waterboard by adequately trained

interrogators could not reasonably be considered specifically intended to cause

`prolonged mental harm."' Bradbury Memo at 44.

piS The Bradbury Memo referred, in a footnote, to the CIA OIG

Report's findings regarding the CIA's previous use of the waterboard, where the

OIG had highlighted the lack of training, improper administration,

misrepresentation of expertise, and divergence from the SERE model in the CIA

interrogation program. The 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.

golg" The 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 [and not] merely mild or transitory." Levin Memo at 12.

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95 he Combined Techniques Memo noted that the waterboard must be used

in combination widietary manipulation, "because a fluid diet reduces the risks of the technique."

o il . s - • es • 'tie l.•. Accordin to!_ the CIA OMS Guidelines a lie uid diet is im •osed

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Bradbury Memo at 41, n. 51.

..TeSe Thus, "assuming adherence to the strict limitations" and

"careful medical monitoring," the Bradbury Memo concluded that "the authorized

use of the waterboard by adequately trained interrogators and other team members

could not reasonably be considered specifically intended to cause severe physical

or mental pain or suffering and thus would not violate" the torture statute. Id. at

45.

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

.f.T.8• The Combined Techniques Memo began by briefly recapping

the Bradbury Memo's conclusions, and stated that it would analyze whether the

combined effects of the authorized EITs could render a prisoner unusually

susceptible to physical or mental pain or suffering and whether the combined,

cumulative effect of the EITs could result in an increased level of pain or suffering.

The memorandum outlined the phases, conditions and progression of a

"prototypical" CIA interrogation, based upon the "Background Paper on CIA's

Combined Use of Interrogation Techniques" that the CIA had sent to Levin on

December 30, 2004 (CIA Background Paper). The Combined Techniques Memo

noted that the waterboard would be used only in certain limited circumstances,

and that it would be used in combination with only two EITs: dietary manipulation

and sleep deprivation:95

1,T,EThe memorandum classified EITs into three categories based

on 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 4). The EITs included in this category

are forced nudity, sleep deprivation, and dietary manipulation. Id.

.(..TA Techniques in the second category, classified as "corrective

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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.

,feT-16 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. (quoting

CIA Background Paper at 7). 96

jeTe rhe 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 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 . . ." The memorandum noted that such procedures were "essential to our

advice." Id. at 13-14. Thus, the memorandum concluded that .the combined use

of EITs, as described by the CIA, "would not reasonably be expected by the

interrogators to result in severe physical pain." Id. at 14.

04..?6" 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.

96 jellerhe 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).

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However, it noted that its combined use with other EITs did not cause "severe

physical pain," but only increased, "over a short time, the discomfort that a

detainee subjected to sleep deprivation experiences." After citing two TVPA cases

that described extremely brutal conduct as torture, the memorandum opined that

"we believe that the combination of techniques in question here would not be

`extreme and outrageous"' and therefore "would not reach the high bar established

by Congress", in the torture statute. Id. at15.

jeT•fr Noting that sleep deprivation could reduce a subject's

tolerance for pain, and that it might therefore increase physical suffering, the

memorandum observed that "you have informed us that the interrogation

techniques at issue would not be used during a course of extended sleep

deprivation with such frequency and intensity as to induce in the detainee a

persistent condition of extreme physical distress such as may constitute 'severe

physical suffering' within the meaning of the torture statute. In light of the CIA's

monitoring procedure, the memorandum asserted that the use of sleep deprivation

would be discontinued if OMS personnel saw indications that it was inducing

severe physical suffering. Id. at 16.

„LeTae With respect to the waterboard, the memorandum pointed

to the Bradbury Memo, which concluded that the technique resulted in relatively

short periods of physical distress. Because "nothing in the literature or

experience" suggested that sleep deprivation would "exacerbate any harmful effects

of the 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. Combined Techniques Memo at 17.

.4.T.ii The memorandum then considered, in a brief, two-page

discussion, 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

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mental pain or suffering. Combined Techniques Memo 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.

Former DAG James Comey told us that he reviewed and

approved the 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 it should not be issued as written. His main concern was that the

memorandum was theoretical and not tied to a request for the use of specific

techniques on a specific detainee. Comey believed it was irresponsible to give legal

advice about the combined effects of techniques in the abstract.

(U) In an email to Chuck Rosenberg dated April 27, 2005, Comey recounted

a meeting on April 22, 2005 with Philbin, Bradbury, and Gonzales in which he

expressed his concerns about the memorandum. Comey wrote: .

The AG 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

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pressure .) 97

(U) After receiving a new draft of the memorandum, Comey met with

Gonzales on April 26, 2005, and urged him to delay issuance of the memorandum.

Carney believed that the AG had agreed with him and Comey instructed Philbin to

stop OLC from issuing it. In the April 27 email, Comey stated that Philbin reported

back that he had spoken to Bradbury, who "seemed 'relieved' that tD0J] would not

be sending out" the memorandum. 98

(U) However, Comey 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."

(U) In an email dated April 28, 2005 to Rosenberg, Comey recounted a

telephone call he had with Ted Ullyot, Gonzales' Chief of Staff, about the imminent

issuance of the memorandum. Ullyot had informed Comey that the memorandum

97

(U) Bradbury told us that Comey's assertion 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.

(U) In the email, Comey 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 he 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.

98 (U) 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 Comey alone and that Comey

believed the Combined Techniques Memo should not be issued, he did not consider that to be an

acceptable option.

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was likely to be issued the next day and that he was aware of Comey's concerns

about the prospective nature of the opinion. Carney wrote in the email:

I responded by telling him that was a small slice of my

concerns, which I then laid out in detail, just as I had for

the AG. I told him that this opinion would come back to

haunt the AG and DOJ and urged him not to allow it. . .

I told him that the people who were applying pressure

now would not be here when the shit hit the fan. Rather,

they would simply say they had only asked for an

opinion. It would be Alberto Gonzales in the bullseye. I

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.

(U) Carney 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.

(U) We asked Bradbury about Comey's objections. He told us - that he felt

OLC would have been giving. incomplete legal advice if they addressed the use of

individual techniques without also considering their combined use. He understood

Comey's concerns to be over the "optics" of the memorandum, and recalled that

Comey asked rhetorically how it would look if the memorandum were made public.

Bradbury concluded that Comey's disagreement was a "policy" one and argued that

the memorandum should be issued to avoid an incomplete analysis of the issues.

Bradbury said he believed that Gonzales considered both arguments and made a

decision to go forward.

(U) 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

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CIA, or the AG's Office as to the outcome 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 is not at all unusual for OLC to

experience, 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 interrogation 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.

(U) 3. The Article 16 Memo

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. 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.

Je.T.8 The memorandum began with an overview of the CIA

interrogation program and the guidelines, safeguards and limitations attached to

the use of EITs by the agency. The interrogations of Abu Zubaydah, KSM

and Al--Nashiri were briefly described and 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 CI

Counterterrorist Center,

The Article 16 Memo concluded, based primarily on the

Effectiveness emo, that 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 t e it een 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)

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coercive techniques (walling, water dousing, stress positions, wall standing,

cramped confinement, and the waterboard).

The Article 16 Menlo revisited and reaffirmed .OLC's

conclusion that Article 16 does not apply outside United States territory. It went

on to note that a United States reservation to CAT stated that the United States

obligation to prevent "cruel, inhuman or degrading treatment or punishment" was

limited to "the cruel, unusual and inhumane treatment or punishment prohibited

by the Fifth, Eighth, and/or Fourteenth Amendments" to the United States

Constitution. The Eighth Amendment, the memorandum concluded, did not apply

to CIA prisoners because it has been interpreted as applying only to persons

convicted of crimes. Thus, the only restraint imposed on CIA interrogators by

Article, 16, according to the memorandum, was the substantive due process ban

on "executive conduct that 'shocks the conscience."' Article 16 Memo at 2.

jeTIM

A LIThe memorandum acknowledged that there was no "precise

test" for con uct t at. 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).

..1„To9 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 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

...1.:CaSireyerrE'r actECLEIN----

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from John Rizzo, Acting General Counsel, Central Intelligence Agency, to Daniel

Levin, Acting AAG, OLC at 5 (August 2, 2004)).

JeTe As to whether the use of EITs was constitutionally arbitrary,

the memorandum cited the government's legitimate objective of preventing future

terrorist attacks by al Qaeda and concluded, based on the Effectiveness Memo,

that the use of EITs furthered that governmental interest. Article 16. Memo at 29.

Again summarizing the limitations and safeguards attached to the use of EITs, the

memorandum concluded that the program was "clearly not intended 'to injure [the

detainees] in some way unjustifiable by any government interest.'" Article 16 Memo

at 31 (quoting Lewis, 523 U.S. at 849).

je,Tkr Finally, the Article 16 Memo considered whether, in light of

"traditional executive behavior," the use of EITs constituted conduct that "is so

egregious, so outrageous, that it may fairly be said to shock the contemporary

conscience." Conceding that "this aspect of the analysis poses a more difficult

question," the memorandum looked at jurisprudence relating to traditional United

States criminal investigations, the military's tradition of not using coercive

techniques, and "the fact that the United States regularly condemns conduct

undertaken by other countries that bears at least some resemblance to the

techniques at issue." Article 16 Memo at 32.

j,„Tkr The memorandum 'baked briefly at several cases in which

the United States Supreme Court found that the conduct of police in domestic

criminal investigations "shocked the conscience" - Rochin v. California, 342 U.S.

165 (1952) (police pumped defendant's stomach to 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).

...,‘T AIthough 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." 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

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• believe that the tradition that emerges from the police interrogation context

provides controlling evidence of a relevant executive tradition prohibiting use of

these techniques in the quite different context of interrogations undertaken to

prevent foreign terrorist attacks against the United States and its interests."

Article 16 Memo at 35.

..I.T.05" 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 . . . ." Article 16 . Memo at 36.

..feeTki Similarly, the State Department's practice of publicly

condemning the use of coercive interrogation tactics by other countries was found

to be of little, if any importance. The reports in question, in which the United

States executive strongly criticized countries such as Indonesia, Egypt, and Algeria

for using EITs such as "food and sleep deprivation," "stripping and blindfolding

victims," "dousing victims with water," and "beating victims," were found by the

Article 16 Memo to be "part of a course of conduct that [often] bear[s] no

resemblance to the CIA interrogation program." The memorandum also noted that

the 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." Article 16 Memo 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 once again 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

in the security of the Nation," whereas the SERE program furthered a less

important government interest, that of preparing United States military personnel

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to resist interrogation. -Thus, the memorandum concluded that when considered

in light of traditional executive practice, the CIA program did not "shock the

conscience!' Article 16 Memo at 37-38.

.1.7.8 In its final pages, the Article 16 Memo cautioned that

because of "the relative paucity of Supreme Court precedent" and the "contextspecific,

fact-dependent, and somewhat subjective nature of the inquiry," it was

possible that a court might not agree with its analysis. The memorandum's

concluding paragraph reads as follows:

Based on CIA assurances, we understand that the CIA

interrogation program is not conducted in the United

States or "territory under [United States] jurisdiction,"

and that it is not authorized for use against United States

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 inquiry,

however, we cannot predict with confidence whether a

court would agree with this conclusion, though, for the

reasons explained, the question is unlikely to be subject

to judicial inquiry.

(U) 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 White House Counsel's Office. Comey told us that while he

reviewed the 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

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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.

(U) 4. The 2007 Bradbury Memo

(U) a. Background

(U) In late Fall 2005, congressional efforts to legislate against the type of

abuse that had taken place at Iraq's Abu Ghraib prison intensified. By that time,

NSC attorneys Brad Wiegman and Stephen Hadley were negotiating with the

Senate over the terms of what would eventually become the Detainee Treatment Act

of 2005 (DTA). 99 Bradbury did not participate directly in those negotiations, but

advised Wiegman on proposed statutory language.

(U) According to Bradbury, the NSC was worried that the legislation would

prevent the CIA from continuing its interrogation program. The CIA was also

concerned that the legislation would subject its interrogators to civil or criminal

liability.

(U) Bradbury told us that he believed the CIA was also involved in the

negotiations with Congress, and that the agency 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

99 (U) According to Bradbury and to later press. accounts, Vice President Cheney and his

counsel, David Addington, were involved in earlier discussions with the Senate, After they were

unable to block the legislation, the NSC attorneys reportedly took over the negotiations.

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discussions. 10°

(U) Bradbury told us that during the negotiations, the NSC unsuccessfully

asked the Senate to include an exception for national security emergencies.

Despite the threat of a presidential veto, the legislation's sponsors would not agree

to that request, and when the law was finally passed on December 30, 2005, few

of the concessions sought by the Bush administration had been granted. The

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.

(U) As enacted, the DTA stated that it applied to all detainees in the custody

of the United States government anywhere in the world, whether held by military

or civilian authorities. Among other things, the DTA barred the imposition of

"cruel, unusual, [or] inhumane treatment or punishment prohibited by the Fifth,

Eighth, and Fourteenth Amendments to the United States Constitution."

Those seven EITs were forced nudity, dietary manipu ation, exten• es

sleep deprivation, the facial hold, the attention grasp, the abdominal slap, and the

insult slap.

(U) On June 29, 2006, while Bradbury was drafting an opinion on the use

of the seven EITs, the United States Supreme Court handed down its decision in

Hamdan v. 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 directly contradicted OLC's January 22, 2002 opinion

to the White House and the Department of Defense, which had concluded 'that

100 (U) Bradbury acknowledged that he was not entirely certain when contacts between McCain

and the CIA took place, and stated that they may have occurred in 2006. According to news

accounts, McCain met with NSC legal adviser Stephen Hadley in late 2006, during negotiations

over the Military Commissions Act of 2006 (MCA).

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Common Article 3 did not apply to captured members of al Qaeda. 1°1 Thereafter,

it was clear that the prohibitions of Common Article 3, including certain specific

acts of mistreatment and "tojutrages 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.

(U) 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 program.

(U) 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.

(U) John Rizzo told us that the CIA had input into the drafting of the MCA

as well. As noted above, the DTA had raised significant questions about the

legality of the CIA interrogation program, and Harndan raised additional concerns

about "the shifting legal ground" for the program. The CIA reviewed OLC's drafts

of the proposed legislation and provided extensive comments during the drafting

process.

(U) The MCA was signed into law on October 17, 2006. It included a number

of provisions designed to remove the legal barriers to the CIA program that had

been created by the DTA and Hamdan.

(U) The MCA amended the War Crimes Act by limiting the type of abusive

treatment 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,

(U) In addition, the Court held that the military commissions established by the President

to try captured al Qaeda terrorists were unlawful.

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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. 1°2 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.

(U) 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, inhuman or degrading

treatment, had the effect of defining violations of Common Article 3 in terms of

violations of the DTA. Thus, the language of the DTA and the MCA was identical

to the United States reservation to Article 16 of the CAT, which .OLC had already

determined, in the Article 16 Memo, did not prohibit the use of EITs in the CIA

interrogation program.

(U) b. The 2007 Memo

(U) After the MCA was enacted, Bradbury continued working on his

memorandum on the legality of the revised interrogation program the CIA had

proposed following enactment of the DTA. According to Bradbury, the AG's Office,

the DAG's Office, the Criminal Division and the National Security Division were

included in the drafting process, as were the State Department, the NSC and the

CIA.

102 (U) 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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0n February 9, 2007, John Bellinger, then Legal Adviser to

Secretary of State Condoleezza Rice, sent Bradbury an eleven-page letter (the

Bellinger Letter) that outlined the State Department's objections to Bradbury's

draft opinion. The letter focused on the draft's analysis of Common Article 3, and

offered the following comments:

• The draft relied too heavily on U.S. law to interpret the terms of

Common Article 3, ignoring "well-accepted norms of treaty

interpretation" and substituting "novel theories concerning the

relevance of domestic law to support controversial conclusions . . . ,

The draft's conclusion that two EITs - forced nudity and

extended sleep deprivation - did not violate Common Article 3

was'inconsistent with traditional treaty interpretation rules and

was inappropriately based on the "shock-the-conscience"

standard;

• The legislative history of the MCA included statements that

suggested a bipartisan consensus that nudity and sleep

deprivation constituted grave breaches of Common Article 3;

• The remaining EITs may not be consistent with the

requirements of Common Article 3, depending upon what

restrictions and safeguards have been instituted by the CIA;

• The practice of treaty partners and decisions of international

tribunals indicate that "the world would disagree with the

[draft's] interpretations of Common Article 3 . . . .";

The opinion should "assess risks of civil or criminal liability in

foreign tribunals" because "foreign courts likely would view

some of these EITs as violating Common Article 3 and as war

crimes . . . .";

".E3 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

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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.

.4.4:05Bradbury responded on February 19, 2007, with a nineteenpage

letter challenging Bellinger's criticism (the Bradbury Letter). He reproached

Bellinger for taking positions that were inconsistent with his previous support of

the CIA program when he was NSC Legal Adviser, and observed that the NSC

Principals had previously approved the same EITs that Bellinger now described as

humiliating and degrading within the meaning of Common Article 3. Bradbury

addressed Bellinger's comments in detail, but rejected almost all of them, including

his criticism of forced nudity and extended sleep deprivation.

,(;PS Bradbury's memorandum was issued on July 20, 2007,

contemporaneously with President Bush's executive order. The memorandum was

divided into four parts: (I) a brief history of the CIA program, including the six

proposed EITs and the safeguards and restrictions attached to their use by the

CIA; (II) the legality of the use of EITs under the War Crimes Act; (III) the legality

103 Bradbury also told us that as a result of the policy review the CIA had

commenced in December 2005, and pursuant to the agency's subsequent understanding with

Senator McCain, the Director made the decision, on policy grounds, to drop the use of the

waterboard from the program.

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of the use of EITs under the DTA; and (IV) the status of EITs under Common

Article 3. After 79 pages of densely-reasoned analysis, relying in part on the

reasoning and conclusions of the Bradbury Memo, the Combined Techniques

Memo, and the Article 16 Memo, the 2007 Bradbury Memo concluded that the use

of the EITs in question did not violate the DTA, the War Crimes Act, or Common

Article 3.

j..T.Er In concluding that the EITs did not violate the DTA, the

memorandum incorporated much of the Article 16 Memo's "shock the conscience"

analysis, including the balancing of government interests, examination of

"traditional executive behavior," and consideration of whether the conduct was

"arbitrary in the constitutional sense." 104 2007 Memorandum at 30-31.

On April 12, 2007 and again on August 2, 2007, Bradbury

testified before the Senate Select Committee on Intelligence in classified and

unclassified hearings on the CIA's interrogation program. He presented the OLC's

interpretation of the three new legal requirements discussed above: the DTA; the

War 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 2007 SSCI Testimony at 2-3.

.1.T. Bradbury stated that the War Crimes Act differed from the

torture statute because, while the torture statute required "prolonged mental

harm," the War Crimes Act required only "serious and non-transitory mental harm

(which need not be prolonged.)" Id. at 4. He commented that, therefore, under the

new standard "we're looking for some combination of duration and intensity" rather

than for "duration under the "prolonged" mental harm standard of the torture

statute. Id.

g,8* Finally, Bradbury explained that, consistent with the views

104 The 2007 Bradbury Memo again cited the CIA Effectiveness Memo to

support its cone usion that the use of EITs was not arbitrary. 2007 Memo at 31.

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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.

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.

(U) IL ANALYSIS

(U) A. Legal Standards

(U) 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 case

is pending."5 In this case, the legal advice in question was rendered in the District

of Columbia. Therefore, the District of Columbia Rules of Professional Conduct

(D.C. Rules) are applicable. m5

(U) 1. The Duty of Competence

(U) Rule 1.1(a) of the D.C. Rules provides that: "A lawyer shall provide

105 (U) 28 C.F.R. § 77.3. These regulations implement Title 28, section 530B of the U.S. Code,

which provides that an "attorney for the Government is subject to the state laws and rules, and

local Federal court rules governing attorneys in each State where such attorney engages in that

attorney's duties . . ." The term "attorney for the Government" includes "any attorney employed

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

106 (U) In addition, we note that Judge Bybee, Patrick Philbin and are all

members of the District of Columbia Bar. Philbin is also a member of the Massachusetts bar.

John Yoo is a member of the Pennsylvania bar. Those jurisdictions have all adopted the American

Bar Association's (ABA) Model Rules of Professional Conduct, with no significant changes, and the

rules applicable to this matter are identical in substance.

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competent representation to a client. Competent representation requires the legal

knowledge, skill, thoroughness, and preparation reasonably necessary for the

representation." Rule 1.1 (b) states that: "A lawyer shall serve a client with skill

and care commensurate with that generally afforded to clients by other lawyers in

similar matters."

(U) Comment 2 to the rule identifies the following legal skills as essential:

"the analysis of precedent, the evaluation of evidence, and legal drafting."

Comment 5 adds that "[clompetent handling of a particular matter includes inquiry

into and analysis of the factual and legal elements of the problem, and use of

methods and procedures meeting the standards of competent practitioners. . . .

The required attention and preparation are determined in part by what is at stake;

major litigation and complex transactions ordinarily require more elaborate

treatment than matters of lesser consequence."

(U) We reviewed specific examples of "methods and procedures meeting the

standards of competent practitioners" in cases cited in the ABA's Annotated Model

Rules of Professional Conduct (5 th ed. 2003) and in other reported decisions in

which courts have judged the competence of attorneys' written work. 1°7 We also

consulted some of the textbooks and treatises used to teach basic legal method,

analysis and drafting to law students and other legal professionals. Finally, we

reviewed a May 16, 2005 Memorandum by OLC's Principal Deputy AAG Steven

Bradbury, captioned "Best Practices for OLC Opinions" (OLC Best Practices

Memo). 1°8 Based on our review of those materials, we concluded that the following

minimum standards of competence apply to Department attorneys who provide

written legal advice to executive branch clients.

(U) As specifically noted in Comment 2 to Rule 1 . 1 , the analysis of precedent

is an essential element of competent legal advice. On a very basic level, this

requires the ability to research the law and to identify controlling legal authority.

107 (U) Such cases generally arise in the context of bar disciplinary proceedings, legal

malpractice actions, the Consideration of sanctions under Fed.. R. Civ. P. 11, or judicial criticism

that stops short of sanctions. See Judith P. Fischer, Bareheaded and Barefaced Counsel: Courts

React to Unprofessionalism in Lawyers' Papers, 31 Suffolk Univ. L. R. 1 (1997).

108 (U) Bradbury told us that the OLC Best Practices Memo was written to "set forth some basic

principles that we should all keep in mind as we prepare opinions" and to "reaffirm traditional

practices in order to address some of the shortcomings of the past."

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See, e.g., Massey v. Prince George's County, 907 F. Supp. 138, 142 (D. Md. 1995)

("to provide competent representation [under Rule 1.1], a lawyer must be able to

research the law") (quoting Jacobstein and Mersky, Fundamentals of Legal

Research 13 (5th ed.)); William P. Statsky and R. John Wernet, Jr., Case Analysis

and Fundamentals of Legal Writing 161-165 (1995) (Statsky 8v Wernet); Charles R.

Calleros, Legal Method and Writing 77-81 (5 th ed. 2006) (Calleros). An attorney

must be able to distinguish controlling authority from persuasive authority or nonauthority,

and to determine whether the facts and law of a case are analogous to

the matter under consideration. David J. Smith, Legal Research and Writing 203-

210 (1996) (Smith); Stasky at 161-172; Calleros at 77-81.

(U) Conclusions of law should be supported by relevant authority. See, e.g.,

In re Shepperson, 164 Vt. 636 (1996) (court found, in bar disciplinary proceeding,

that attorney's briefs fell below minimum standards because they failed to cite legal

authority, contained numerous citation errors, and inaccurately represented cited

cases); Smith v. Town of Eaton, Indiana, 910 F.2d 1469, 1471 (7th Cir. 1990) (court

criticized counsel, citing Rule 1.1 and noting that a court "cannot be called upon

to supply the legal research and organization to flesh out a party's arguments");

Borowski v. DePuy, Inc., 850 F.2d 297, 304 (7 th Cir. 1988) (legal claims with no

support in existing law merit Rule 11 sanctions). See also, Michael D. Murray and

Christy Hallam DeSanctis, Objective Legal Writing and Analysis 175-176 (2006)

(Murray and DeSanctis); OLC Best Practices Memo at 2-3 ("Decisions of the

Supreme Court and courts of appeals directly on point often provide guiding

authority and should be thoroughly addressed, particularly where the issue is one

that is likely to become the subject of litigation.").

(U) Legal research must be sufficiently thorough to identify all current,

relevant primary authority. Christina L. Kunz et al., The Process of Legal Research

2-3 (1989) (Kunz). See United States u. Russell, 221 F.3d 615, 620 (4th Cir. 2000)

(in evaluating allegations of ineffective assistance of counsel, the court noted that

pursuant to Rule 1.1, "an attorney has a duty to adequately examine the law and

facts relevant to the representation of his client"); OLC Best Practices Memo at 1

("it is imperative that our opinions be clear, accurate, thoroughly researched, and

soundly reasoned").

(U) Adequate steps must be taken to identify any subsequent authority that

affirms, overrules, modifies or questions a cited authority. E.g., Continental Air

Lines, Inc., v. Group Systems International Far East, Ltd., 109 F.R.D. 594, 596 (C.D.

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Cal. 1986) (in considering the imposition of Rule 11 sanctions, the court noted that

failure to cite important United States Supreme Court case decided four months

earlier "fell below the required standard of reasonable inquiry"); Cimino v. Yale, 638

F. Supp. 952, 959 n. 7 (D. Conn. 1986) (admonishing counsel that "diligent

research, which includes Shepardizing cases, is a professional responsibility");

Taylor v. Belger Cartage Service, Inc., 102 F.R.D. 172, 180 (W. D. Mo. 1984) (award

for attorney's fees justified in part by fact that opposing counsel "never

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

limited the cited authority to its facts); Calleros at 177-178.

(U) Secondary authority should be relied upon only when relevant primary

authority is not available. 1°9 Murray and DeSanctis at 82-83. See Randall v. The

Salvation Army, 100 Nev. 466, 470-471 (1984) (court declined to consider

arguments supported solely by citation to secondary authority).

(U) Legal authorities must be described and cited accurately. Wallace

Computers Services, Inc. v. David Noyes & Co., 1994 WL 75201 at *1 (N.D. Ill.)

(court noted that the defendant's citation of three cases "in an inappropriate, out

of context manner" was sufficiently misleading to justify sanctions); Jones v.

Hamelman, 869 F.2d 1023 (7th Cir. 1989) ("We do not feel it is unreasonable to

expect carefully drafted briefs clearly articulating the issues and the precise

citation of relevant authority for the points in issue from professionals trained and

educated in the law"); Kunz at 3; Smith at 172. See OLC Best Practices Memo at

3 (opinions "must undergo a thorough cite check by our paralegal staff to ensure

the accuracy of all citations").

(U) Selective quotations that omit relevant information are at worst,

misrepresentations, and at best, reflect sloppy research and writing. See

Northwestern National Insurance Co., v. Guthrie, 1990 WL 205945 (N.D. Ill. 1990)

(court assumed counsel's "glaring omission" of sentence explaining exception to a

quoted rule was "the result of sloppy research and writing, and not an intentional

effort to mislead or misdirect").

(U) 'Primary authority includes constitutions, treaties, statutes and local ordinances,

administrative rules and regulations, and judicial opinions. . . . Secondary authorities, such as

treatises, restatements of the law, and law review articles, do not directly supply the rule of law

in a legal dispute [and havel no mandatory or binding effect." Calleros at 78.

DRAFT

(U) In legal memoranda or opinion letters that seek to predict a legal

outcome, a thorough discussion of the law should include the strengths and

weaknesses of the client's position and should identify any counter arguments.

Calleros at 88; Statsky at 179. The OLC Best Practices Memo specifically states:

"In general, we strive in our opinions for . . . a balanced presentation of arguments

on each side of an issue . . . , taking into account all reasonable counter

arguments." OLC Best Practices Memo at 3. 110

(U) In order to determine whether the attorneys who drafted the Bybee

Memo, the Classified Bybee Memo, and the Yoo Memo met the minimum standards

of competence and objectivity that apply to Department attorneys, we reviewed the

memoranda in question and identified the legal arguments and conclusions the

authors presented. We examined the logic, methodology and legal authority

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 complete, accurate and current view of

the law at the time the memoranda were written.

(U) The commentary to Rule 1.1 explains that the degree of thoroughness

and attention an attorney is required to devote to a matter is determined by the

importance and significance of that matter. See D.C. Rule 1.1, comment 5. Thus,

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

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

importance.

(U) It is universally recognized 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." Siderman de Blake v. Republic of

Argentina, 965 F.2d 699, 717 (9 th Cir. 1992), cert. denied, 507 U.S. 1017 (1992).

See also, e.g., Filartiga v. Pena-Orala, 630 F.2d at 884. 111 It therefore seems self-

110 (U) While identifying and analyzing reasonable counterarguments is an important element

of competent legal writing, it is also mandated by D.C. Rule 2.1 ("Advisor"), discussed below.

(U) "Jus cogens" refers to principles of international law 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).

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evident that Department attorneys considering the possible abrogation or

derogation of a jus cogens norm such as the prohibition against torture must be

held to the highest standards of thoroughness and attention.

(U) 2. The Duty to Exercise Independent Professional Judgment

and to Render Candid Advice

(U) The Bybee Memo was written to advise the CIA on whether certain

conduct would violate federal law. Thus, the OLC attorneys were not acting as

advocates, but advisors, and had the duty, under D.C. Rule 2.1 ("Advisor"), to

provide candid, realistic advice. The OLC Best Practices Memo observed that the

office "has earned a reputation for giving candid, independent, and principled

advice — even when that advice may be inconsistent with the desires of

policymakers." OLC Best Practices Memo at 1.

(U) Rule 2.1 requires an attorney to "exercise independent professional

judgment and render candid advice." 112 This requirement is further explained in

the commentary as follows:

A client is entitled to straightforward advice expressing

the lawyer's honest assessment. Legal advice often

involves unpleasant facts and alternatives that a client

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.

(U) The ABA Committee on Ethics and Professional Responsibility wrote, in

112 (U) Rule 2.1 also states that "[iin rendering advice, a lawyer may refer not only to law but

to other considerations such as moral, economic, social and political factors, .that may be relevant

to the client's situation." The relevant commentary adds that "moral and ethical considerations

impinge upon most legal questions and may decisively influence how the law will be applied."

Because the rule's language regarding extra-legal considerations is permissive, however, a lawyer's

decision not to provide such advice should not be subject to disciplinary review. ABA, Annotated

Rules of Professional Conduct, Preamble and Scope at 1 14 (6` 11 ed. 2007); D.C. Rules, Scope at

1.

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Formal Op. 85-352 (1985), that

[i]n the role of advisor, the lawyer should counsel the

client as to whether the position is likely to be sustained

by a court if challenged . . . Competent representation

of the client would require the lawyer to advise the client

fully as to whether there is or was substantial authority

for the position taken ...

[The] position to be asserted must be one which the

lawyer in good faith believes is warranted in existing law

or can be supported by a good faith argument for an

extension, modification or reversal of existing law. This

requires that there is some realistic possibility of success

if the matter is litigated.

(U) Although a number of 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. We therefore approached our Rule 2.1

analysis by considering, as a threshold matter, whether there was evidence that

the client desired a particular result or outcome, and whether the attorney was

aware of the desired result. If so, we looked for the following acts or omissions by

the attorney, all of which we considered evidence that the attorney failed to meet

the obligations of Rule 2.1:

1. Exaggerating or misstating the significance of authority that

supported the desired result;

2. Ignoring adverse authority or failing to discuss it accurately and fairly;

3 Using convoluted and counterintuitive arguments to support the

desired result, while ignoring more straightforward and reasonable

arguments contrary to the desired result;

4. Adopting inconsistent reasoning or arguments to favor the desired

result;

5. Advancing frivolous or erroneous arguments to support the desired

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result.

(U) We then considered whether the evidence, taken as a whole, established

by a preponderance of the evidence that the attorney violated his duty to provide

a straightforward, candid and realistic assessment of the law, without regard to the

outcome desired by the client.

(U) As discussed below, our review of the Bybee Memo and the Yoo Memo

revealed numerous failures of scholarship and analysis resulting in violations of

Rules 1.1 and 2.1. While it may be that no single one of those failures, considered

in isolation, would compel a finding of less than competent representation, we

concluded that the many instances of unsupported arguments, incomplete

analysis, failure to discuss adverse authority, and mischaracterization of precedent

compelled the conclusion that the authors of the Bybee Memo and the Yoo Memo

failed to meet their obligations under Rule 1.1 and thus committed misconduct.

(U) We also found evidence that the authors of the Bybee Memo and the Yoo

Memo tailored their analysis to reach the result desired by the client. In many

instances, the authors exaggerated or misstated the significance of cited legal

authority, failed to acknowledge or fairly present adverse authority, took

inconsistent approaches to favor the desired result, and advanced convoluted or

frivolous arguments. Accordingly, we concluded that they also violated their duty

under Rule 2.1 to provide a straightforward, candid and realistic assessment of the

law.

(U) B. Analysis of the Bybee Memo and the Yoo Memo

(U) As noted, the withdrawal of two OLC opinions - the Bybee and Yoo

Memos - by the same administration within such a short time was unprecedented.

Therefore, we initially focused on those memoranda, and particularly the sections

that were set aside or modified by the Department in 2004. We found the

withdrawal of certain arguments and conclusions of law to be significant, but we

did not limit our review to those areas. Rather, we examined the memoranda in

their entirety in light of the drafter& professional obligations set out above.

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(U) 1. The Bybee Memo Did Not Constitute Competent Legal

Advice Within the Meaning of Rule 1.1 113

(U) As discussed in detail in the following sections, we found errors,

omissions, misstatements, and illogical conclusions in the Bybee Memo. We found

that these problems resulted in incompetent legal advice from the OLC on this

issue. As discussed above, "the required attention and preparation (to a legal

matter] are determined in part by what is at stake." 1 " In this matter, we concluded

that the legal advice was of critical importance to the CIA and the White House and

demanded the highest degree of care.

(U) The failure to provide competent legal advice to the CIA and White House

on this issue constituted a violation of Rule 1.1. In the paragraphs that follow, we

discuss several areas of the Bybee Memo which we found, taken together,

constituted incompetent legal advice."'

(U) a. Severe Pain

(U) The Bybee Memo's definition of "severe pain" as necessarily "equivalent

in intensity to the pain accompanying serious physical injury, such as organ

failure, impairment of bodily function, or even death" was widely criticized, both

within and outside the Department. Goldsmith and Levin explicitly rejected that

formulation and characterized the reasoning behind it as illogical or irrelevant.

113 (U) 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.

114 (U) D.C. Rule 1.1, Comment 5.

is (U) Our view that the memoranda did not constitute, competent legal advice was shared by

others we interviewed. Levin stated that when he first read the Bybee Memo, he remembered

"having the same reaction I think everybody who reads it has - this is insane, who wrote this?"

Jack Goldsmith found that key portions of the memoranda were "plainly wrong." Bradbury told

us that Yoo did not adequately consider counter arguments in writing the memoranda.

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Various commentators described the definition as "absurd,"' 16 "strained logic,"' 17

118 After reviewing the analysis and the authority cited in the Bybee or "bizare."

Memo, we concluded that the reasoning underlying this legal conclusion was

illogical and unsupported by conventional legal analysis.

(U) After reviewing the dictionary definition of "severe" and concluding that

it was not helpful, the Bybee Memo asserted that "Congress's use of the phrase

`severe pain' elsewhere in the United States Code can shed more light on its

meaning." Bybee Memo at 5. In support of that proposition, the memorandum

quoted the following language from West Virginia University Hospitals, Inc. v. Casey,

499 U.S, 83, 100 (1991): “[W]e construe [a statutory term] to contain that

permissible meaning which fits most logically and comfortably into the body of

both previously and subsequently enacted law." Bybee Memo at 5 (quoting West

Virginia University Hospitals, Inc. v. Casey). 119

116 (U) David Luban, Liberalism, Torture, and the Ticking Bomb, in The Torture Debate in

America 58, (Karen J. Greenberg ed., 2006).

117 (U) George C. Harris, The Rule of Law and the War on Terror: The Professional

Responsibilities of Executive Branch Lawyers in the Wake of 9/ 11, 1 J. Nat'l Security L. & Policy

409, 434 (2005).

118 (U) Kathleen Clark, Ethical Issues Raised by the OLC Torture Memo, I J. Nat'l Security L.

& Policy 455, 459 (2005) ("This claimed standard is bizarre for a number of reasons. In the first

place, organ failure is not necessarily associated with pain at all. In addition, this legal standard

is lifted from a statute wholly unrelated to torture." ).

119 (U) The quoted excerpt omitted a qualifying introductory phrase: "Where a statutory term

presented to us for the first time is ambiguous, we construe . . ." Casey at 100. Thus, under

Casey, the Bybee Memo should have demonstrated that the term "severe pain" was ambiguous

before turning to other statutory sources. One way of doing so would have been to cite

inconsistent definitions. See MCI v. ATT, 512 U.S. 218, 227 (1994) ("Most cases of verbal ambiguity

in statutes involve ... a selection between accepted alternative meanings shown as such by many

dictionaries.").

(U) However, any difficulty in interpreting "severe pain" is more properly attributable to the

subjective nature of physical pain, rather than ambiguous language. See Levin Memo at 8, n. 18

(citing and quoting Dennis C. Turk, Assess the Person, Not Just the Pain, Pain: Clinical Updates,

Sept. 1993). The Bybee Memo's attempt to clarify the term by associating it with "organ failure or

death" was, if anything, more confusing than the plain language of the statute. There are many

forms of death and organ failure, but there is no level of physical pain that can logically be

associated with either event.

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(U) The Bybee Memo went on to state that "[s]ignificantly, the phrase 'severe

pain' appears in statutes defining an emergency medical condition for the purpose

of providing health benefits," and cited several nearly identical statutes that

defined the term "emergency medical condition" as

[A medical condition] manifesting itself by acute

symptoms of sufficient severity (including severe pain)

such that a prudent lay person, who possesses an

average knowledge of health and medicine, could

reasonably expect the absence of immediate medical

attention to result in— (I) placing the health of the

individual . . . in serious jeopardy, (ii) serious impairment

to bodily functions, or (iii) serious dysfunction of any

bodily organ or part .. .

Bybee Memo at 5-6 (citing and quoting 42 U.S.C. § 1395w-22(d)(3)(B)).

(U) 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. 120

120

(U) This conclusion is restated several times in the Bybee Memo:

(1) 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,

impairment of bodily function, or even death");

(2) In the summary of Part I at page 13 ("The victim must experience intense pain or

suffering of the kind that is equivalent to the pain that would be associated with serious

physical injury so severe that death, organ failure, or permanent damage resulting in a loss

of significant body function will likely result");

(3) In the introduction to Part IV at page 27 (torture is "extreme conduct, resulting in pain

that is of an intensity often accompanying serious physical injury"); and

(4) In the conclusion at page 46 ("Severe pain ... must be of an intensity akin to that

which accompanies serious physical injury such as death or organ failure").

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RAFT

(U) The excerpt from West Virginia University Hospitals, Inc. v. Casey quoted

in the Bybee Memo did not include the authority cited by the Court in that case -

2 J. Sutherland, Statutory Construction § 5201 (3d F. Horack ed. 1943) - which

discusses the "in pari materia" canon of statutory construction. That doctrine is

described as follows: "The intent of the legislature when a statute is found to be

ambiguous may be gathered from statutes relating to the same subject matter -

statutes in pari materia." Id. "Statutes are considered to be in pari materia . .

when they relate to the same person or thing, or to the same class of persons or

things, or have the same purpose or object." 121 Id. at § 5202. Accord, e.g., 82 CJS

Statutes 352 (2006); 73 Am. Jur. 2d Statutes 103 (2006); Black's Law Dictionary

(7w ed. 1990).

(U) The current edition of Sutherland also notes that

where the same subject is treated in several acts having

different objects the statutes are not in pari materia.

"The adventitious occurrence of like or similar phrases, or

even of similar subject matter, in laws enacted for wholly

different ends will normally not justify applying the rule."

Sutherland at § 51.03 (quoting Sylvestre v. United States, 771 F. Supp. 515 (D.

Conn. 1990)). Accord, 82 CJS Statutes § 352 ("another dissimilar statute generally

is not persuasive in construing a statute") (footnote omitted); 73 Am. Jur. 2d

Statutes 103 ("statutes which have no common aim or purpose, and which do not

relate to the same subject, thing, or person are not in pari materia") (footnote

omitted).

(U) Many United States Supreme Court opinions have discussed the in pari

materia doctrine in greater detail than the one case cited in the Bybee Memo. See,

e.g., Viterbo v. Friedlander, 120 U.S. 707 (1887) ("laws in pari materia, or upon the

same subject-matter, must be construed with a reference to each other") (emphasis

added); Ehrlenburg, et al. v. United States, 409 U.S. 239 (1972) (statutes are in pari

materia only if they "were intended to serve the same function") (citations omitted);

121 (U) The current edition of Sutherland's treatise, N. Singer, Sutherland on Statutes and

Statutory Construction (6 th ed. 2000) (Sutherland), was available in the main Dal library when

the Bybee Memo was written. In fact, that treatise was cited elsewhere in the Bybee Memo to

define the doctrine "expression unius , est exclusio alterius." Bybee Memo at 8.

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United States v. Cleveland Indians Baseball Co., 532 U.S. 200, 213 (2001)

("Although we generally presume that identical words used in different parts of the

same act are intended to have the same meaning, the presumption is not rigid, and

the meaning of the same words well may vary to meet the purposes of the law")

(citation and internal quote marks omitted) (emphasis added).

(U) We know of no authority, and the Bybee Memo cited none, in support of

the proposition that identical words or phrases in two unrelated statutes are

relevant in interpreting an ambiguous term. Because the medical benefits statutes

relied upon in the Bybee Memo were unrelated to the torture statute, we concluded

that it was unreasonable to use the language of those statutes to define terms used

in the torture statute. 122

(U) In his OPR interview, Bybee explained his use of the medical statutes:

I think that we ought to look to any tools we can to try to

understand by analogy what the term "severe pain"

means, and by looking to the medical emergency

provisions, these are not statutes, we haven't made an in

pan materia argument here, we aren't arguing that

Congress knew what it said in 42 U.S.C., and that it

incorporated that deliberately here, it's taken that phrase

out of . . . the CAT statute, but both the Levin

memorandum and our memorandum reflect, there was a

great deal of concern on the part of the United States at

the drafting of CAT that these terms were not specific,

that they didn't have any meaning in American law, and

there was even some concern that the statute might be

void for vagueness. We're struggling here to try and give

some meaning that we can work with because we had an

application that we were also required to make at this

time, and we couldn't discuss this just simply as a

philosophical nicety; we had real questions before us.

122 (U) The Bybee Memo acknowledged that the benefits statutes "address a substantially

different subject from" the torture statute, but asserted, without citing any authority, that "they

are nonetheless helpful for understanding what constitutes severe physical pain." Bybee Memo

at 6.

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(U) Although Bybee stated that he did not rely upon the in pari materia

doctrine, he pointed to no other authority for his use of the medical benefits

statutes. Moreover, as noted, the sole authority cited in the Bybee Memo - the

Casey case - for turning to the medical benefits statutes was premised upon the

in pari materia doctrine. As such, we found that the section on severe pain in the

Bybee Memo was not supported by relevant legal authority.

(U) As noted by a number of critics, the Bybee Memo's definition of severe

pain could be interpreted as advising interrogators that they may legally inflict pain

up to the point of organ failure, death, or serious physical injury.'" Indeed,

several early drafts of the Bybee Memo explicitly stated that the torture statute

only outlaws the intentional infliction of pain that "is likely to be accompanied by

serious physical injury, such as damage to one's organs or broken bones."

Although, in the final drafts, the authors removed the reference to "broken bones"

and modified the language by stating that severe pain must be "equivalent to" pain

"so severe that death, organ failure, or permanent damage" is likely to result, the

difference between the two formulations is minor. Whether severe pain is

described as pain that is likely to result in injury, or as "equivalent" or "akin" to

pain that is likely to result in injury, an interrogator could still draw the erroneous

conclusion that pain could be inflicted as long as no injury resulted.

(U) b. Specific Intent

(U) The torture statute states that in order to constitute torture, an act must

be "specifically intended to inflict severe physical or mental pain or suffering." 18

U.S.C. § 2340(1). In examining this element of the statute, the Bybee Memo

engaged in a lengthy discussion of the common law concepts of general and

specific intent, drawing on language from a handful of Supreme Court cases and

secondary authorities to suggest that under certain circumstances, it would be

difficult for the government to prove that a government interrogator acted with the

requisite intent to violate the torture statute.

(U) In making such a broad finding, the Bybee Memo failed to adequately

(U) See, e.g., Andrew C. McCarthy, A Manufactured Scandal, National Review Online, June

25, 2004, http: //www.nationalreview.com/mccarthv/mccarthv200406250856.asn (to "equate

'severe physical pain' with pain 'like that accompanying death . .' would suggest that any pain

which is not life-threatening cannot be torture.").

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analyze the legal complexities of the issue of specific intent, and thus failed to

adequately advise the client on the availability of the defense. As the Levin Memo

later observed, “[i]t is well recognized that the term 'specific intent' is ambiguous

and that the courts do not use it consistently." Levin Memo at 16 (citing 1. Wayne

R. LaFave, Substantive Criminal Law § 5.2(e), at 355 n. 79 (2d ed. 2003)).

(U) The United States Supreme Court has commented more than once on the

imprecision of the terms "specific intent" and "general intent." In United States v.

Bailey, 444 U.S. 394 (1980), for example, the Court noted that "Mew areas of

criminal law pose more difficulty than the proper definition of the mens rea

required for any particular crime" and that the distinction between specific and

general intent "has been the source of a good deal of confusion" Id. at 403. 124

(U) In. United States v. United States Gypsum Co., 438 U.S. 422 (1978), the

Court commented on "the variety, disparity and confusion' of judicial definitions

of the 'requisite but elusive mental element' of criminal offenses." Id. at 444

(quoting Morissette v. United States, 342 U.S. 246, 252 (1952)). In another case,

the Court noted that jury instructions on the meaning of specific intent have "been

criticized as too general and potentially misleading" and that a "more useful

instruction might relate specifically to the mental state required under [the statute

in question] 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).

(U) The Bailey Court observed that "[i]n a general sense, 'purpose'

corresponds loosely with the common-law concept of specific intent, while

`knowledge' corresponds loosely with the concept of general intent." Bailey at 405.

124 (U) The Court quoted the following passage from LaFave & Scott's treatise on criminal law:

Sometimes "general intent" is used in the same way as "criminal intent" to mean

the general notion of mans 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 at 403 (quoting W. LaFave & A. Scott, Handbook on Criminal Law § 28, 201-202 (1972)).

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However, "filn the case of most crimes, the limited distinction between knowledge

and purpose has not been considered important since there is good reason for

imposing liability whether the defendant desired or merely knew of the practical

certainty of the resultis]." Id. at 404 (quoting United States Gypsum at 445)

(internal quotation marks omitted).

(U) The meaning of specific intent may vary from statute to statute. For

example, in evaluating the mental state required to prove a violation of 18 U.S.C.

.§ 664 (theft or embezzlement from employee benefit plan) one appellate court found

that "R]he specific intent required ... includes reckless disregard for the interests

of the plan." United. States v. Krimsky, 230 F.3d 855 860-861 (6 th Cir. 2000)

(emphasis added). See also, United States v. Woods, 877 F.2d 477, 480 (6th

Cir.1989) (specific intent in cases involving willful misapplication of bank funds in

violation of 18 U.S.C. § 656 "exists whenever the officer acts knowingly or with

reckless disregard of the bank's interests and the result of his conduct injures or

defrauds the bank"); United States v. Hoffman, 918 F.2d 44, 46 (6th Cir.1991)

(district court correctly instructed the jury that reckless disregard is equivalent to

intent to injure or defraud).

(U) In an obstruction of justice case, the specific intent issue was addressed

as follows:

We see no need to undertake an extended excursion into

the subtleties of specific intent. In our view, the

defendant need only have had knowledge or notice that

success in his fraud would have likely resulted in an

obstruction of justice. Notice is provided by the

reasonable foreseeability of the natural and probable

consequences of one's acts.

United States v. Neiswender, 590 F.2d 1269, 1273 (4th Cir. 1979) (emphasis added).

(U) The current trend, as noted by the Supreme Court in Bailey, is

exemplified by the Model Penal Code. Thus, "the ambiguous and elastic term

`intent' [has been replaced] with a hierarchy of culpable states of mind . . ,

commonly identified, in descending order of culpability, as purpose, knowledge,

recklessness, and negligence." Bailey at 403-404 (citing W. LaFave & A. Scott,

Handbook on Criminal Law 194 (1972) and American Law Institute, Model Penal

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Code § 2.02 (Prop. Off. Draft 1962)).

(U) This trend is also reflected in the current model jury instructions for

federal criminal cases. 1A Kevin F. O'Malley, Jay E. Grenig & Hon. William C. Lee,

Federal Jury Practice and Instructions § 17.03 (5 th ed. 2000 & 2006 Supp.)

(Federal Jury Instructions). That treatise's circuit by circuit survey on the subject

includes the following observation:

No jury instruction is provided or should be given for the

term "specific intent" because the law has grown and now

developed away from charging the jury on this

concept. . . . Each of the jury instruction committees of

the circuit courts of appeals have followed suit and

discouraged the use of jury instructions on specific

intent. Where a precise mental state is an element of the

offense charged, that mental state should be clearly set

out in the "elements of the offense charged" instruction to

the jury.

Id.

(U) None of the uncertainty or ambiguity of federal case law was reflected in

the Bybee Memo's analysis. 125 As such, the memorandum failed to adequately

advise the client of the state of the law. Instead, the memorandum made broad

assertions about the torture statute's specific intent requirement and based those

conclusions on brief excerpts from a limited number of cases or, more commonly,

on secondary sources.

(U) An example of the Bybee Memo's failure to accurately present relevant

authority lies in the memorandum's analysis of Ratzlaf v. United States, 510 U.S.

135 (1994). The first paragraph of the Bybee Memo's discussion of specific intent

125

(U) The omission is surprising in light of the fact that Bailey, which commented on the

complexity and ambiguity of the issue, was cited in the memorandum's specific intent discussion

and elsewhere in the memorandum. The Levin Memo noted the complexity and ambiguity of this

area of the law, concluded that it would not be 'useful to try to define the precise meaning of

`specific intent"' in the torture statute, and disavowed the Bybee Memo's conclusions, adding that

"it would not be appropriate to rely on parsing the specific intent element of the statute to approve

as lawful conduct that might otherwise amount to torture." Levin Memo at 16 and 16 n. 27.

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included a citation to Ratzlaf, and summarized that case as follows:

[I]n 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 at 141). The summary clearly implied

that the Court had considered the meaning of specific intent and had concluded

that it required an express purpose to disobey the law on the part of the defendant.

(U) However, the Ratzlaf decision did not address the meaning of specific

intent. The statute under review in that case penalized "willful violations" of the

Treasury Department's cash transaction reporting regulations, and the only

question before the Court was the meaning of the term "willful." Ratzlaf at 136-

137 and 141-149. In that context, the Court ruled that the term "consistently has

been read by the Courts of Appeals to require both 'knowledge of the reporting

requirement' and a 'specific intent to commit the crime,' i.e., 'a purpose to disobey

the law.' Id. at 141 (italics in original).

(U) In addition, the Bybee Memo has been criticized for implying that an

interrogator who knowingly inflicted severe pain with some other objective, or goal,

in mind (such as obtaining information) would not violate the torture statute. See,

e.g., Andrew C. McCarthy, supra, ("the 'specific objective' qualification [in the Bybee

Memo] seems especially unworthy, conflating the separate legal (and common

sense) issues of intent and motive"). The memorandum suggested as much in

several instances, in statements such as "the infliction of . . . pain must be the

defendant's precise objective" or "a defendant is guilty of torture only if he acts with

the express purpose of inflicting severe pain or suffering." Bybee Memo at 3-4.

(U) In response, the Levin Memo explicitly stated that "there is no exception

under the statute permitting torture to be used for a 'good reason'" and "a

defendant's motive (to protect national security, for example) is not relevant to the

question whether he has acted with the requisite specific intent under the

statute." Levin Memo at 17 (citing Cheek v. United States, 498 U.S. 192, 200-201

(1991)).

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(-U) Finally, the Bybee Memo's discussion of a potential good faith defense to

violation of the torture statute is overly simplistic. The memorandum characterized

the good faith defense as: "a showing that an individual acted with a good faith

belief that his conduct would not produce the result that the law prohibits negates

specific intent." Bybee Memo at 4. The memorandum added that even an

unreasonable belief could constitute good faith, 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.

(U) The Bybee Memo cited three cases in support of its conclusion that the

good faith defense would apply to prosecutions under the torture statute, but did

not point out that the good faith defense is generally applied only in fraud or tax

prosecutions. See Federal Jury Instructions § 19.06 at 857 ("The defense of good

faith is discussed in the context of mail, wire, and bank fraud, and in tax

prosecutions, infra."). 126

(U) The Bybee Memo failed to acknowledge the possibility that a court might

refuse to extend the good faith defense to a crime of violence such as torture.. For

example, in United States v. Wilson, 721 F.2d 967 (4th Cir. 1983), the defendant

argued that he was entitled to a good faith instruction relating to the charge that

he willfully and specifically intended to export firearms. Id. at 974. The court of

appeals disagreed, noting that the defendant had failed to demonstrate that he was

entitled to the defense and that Is]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.

(U) The Bybee Memo also failed to advise the client that under some

circumstances, a prosecutor can challenge a good faith defense by alleging willful

blindness, or conscious or deliberate ignorance or avoidance of knowledge that

would negate a claim of good faith. See, e.g., United States. v. Goings, 313 F.3d 423,

427 (8th Cir. 2002) (court properly gave_ willful blindness instruction where

defendants claimed they acted in good faith but evidence supported inference that

126 (U) Bybee Memo at 4-5. The cases cited in the Bybee Memo included two mail fraud cases

and one prosecution for failure to file tax returns.

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• they "consciously chose to remain ignorant about the extent of their criminal

behavior"); United States v. Duncan, 850 F.2d 1104, 1118 (6 th 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"). See also S. Exec. Rep. No. 101-30 at 36

(App. A) (1990) (changes to U.S. CAT understanding regarding "acquiescence"of

public officials to torture intended "to make it clearer that both actual knowledge

and willful blindness fall within the meaning of acquiescence."). Thus, a CIA

interrogator who argued that he lacked the specific intent to torture, based on

information provided to him by the CIA and the Bybee Memo, could be accused of

deliberately ignoring contradictory information from outside sources.

(U) c. Ratification History of the United Nations Convention

Against Torture

(U) The Bybee Memo's analysis of this issue was incomplete and misleading.

The Bybee Memo cited the ratification history of the CAT in support of its

conclusion that the torture statute prohibited "only the most extreme forms of

mental and physical harm." Bybee Memo at 16. Drawing on conditions that were

submitted to the Senate Foreign Relations Committee by the Reagan

administration during the CAT ratification process, the Bybee Memo concluded

that "severe pain" under CAT is "in substance not different from" pain that is

"excruciating and agonizing."'

(U) The memorandum failed to disclose that those conditions were never

ratified by the Senate, in part because, "in number and substance, [they] created

the impression that the United States was not serious in its commitment to end

torture worldwide." S. Exec. Rep. No. 101-30 at 4. In reaction to criticism from

human rights groups, the American Bar Association, and members of the Senate

Foreign Relations Committee, the Bush administration acknowledged that the

Reagan administration understanding regarding the definition of torture, which

included the phrase "excruciating and agonizing physical or mental pain or

suffering," could be seen as establishing "too high a threshold of pain for an act to

constitute torture," and deleted that language from the proposed conditions. Id.

(U) Id. at 19. The Levin Memo rejected that conclusion, noting that the Reagan

administration proposal was °"criticized for setting too high a threshold of pain,' and was not

adopted." Levin Memo at 2 (citation and footnote omitted).

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at 9; Convention Against Torture: Hearing Before the Senate Comm. On Foreign

Relations, 101' Cong. 8-10 (1990) (Senate Hearing) (testimony of Hon. Abraham D.

Sofaer, Legal Adviser, Department of State).

(U) The Bybee Memo minimized the importance of the revision, stating that

"it might be thought significant that the Bush administration 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 'excruciating and agonizing' mental pain." Id. at 19.

(U) It is inaccurate and misleading to state that the Reagan administration

language was changed solely to clarify the definition of mental pain. While that

was one reason for the revisions, it was addressed by inserting a detailed definition

of mental pain or suffering. However, it is clear from the ratification history that

the first Bush administration's proposed definition, which deleted the phrase

"excruciating and agonizing," was included in response to criticism that the United

States had adopted "a higher, more difficult evidentiary standard than the

Convention required" and to ensure that the United States proposal did "not raise

the high threshold of pain already required under international law . . . ." Senate

Hearing at 9-10 (Sofaer testimony).

(U) Finally, the Bybee Memo's almost exclusive reliance on the Reagan

administration's proposed conditions is difficult to understand, since those

conditions were never ratified by the Senate, and should therefore have no effect

on the United States' obligations under the CAT. See Restatement (Third) of

Foreign Relations Law of the United States § 314, cmt. a and b. (1987)

(reservations are effective only if ratified or acceded to by the United States with

the advice and consent of the Senate).

(U) d. United States Judicial Interpretation

(U) Part III of the Bybee Memo accurately stated that "[t]here are no reported

prosecutions under [the torture statute,]" and went on to discuss federal court

decisions under the Torture Victim Protection Act (TVPA). Bybee Memo at 22.

However, the memorandum ignored a relevant body of federal case law that has

applied the CAT definition of torture in the context of removal proceedings against

aliens.

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(U) (1) Implementation of Article 3 of the Convention

Against Torture

(U) When Congress implemented Article 3 of the CAT, which prohibits the

expulsion of persons "to another State where . . . [they] would be in danger of being

subjected to torture," it directed the responsible agencies to prescribe regulations

incorporating the CAT definition of torture. 8 U.S.C. § 1231 note (2000). Those

regulations are at 8 C.F.R. § 208.18(a) (Department of Homeland Security), and 22

C . F. R. § 95 . 1 (b) (S tate Scpartment) . Like the CAT, the regulations distinguish

between torture and ra-itiel, 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.")

(U) At the time the Bybee Memo was being drafted, a number of courts had

already interpreted the regulation's definition, providing additional examples of

how courts have distinguished between torture and less severe conduct. See, e..g.,

Al -Saher v. I.N.S., 268 F.3d 1143 (9th Cir. 2001); ; United States v. Cornejo-Barreto,

218 F.3d 1004, 1016 (9th 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); Ithanuja v. I.N.S.,

11 Fed. Appx. 824 (9th Cir. 2001)(unpublished decision). While the case law and

the regulations are generally consistent with the Bybee Memo's conclusion that

torture is an aggravated form of cruel, inhuman, and degrading treatment, a

thorough and competent discussion of the issue would have identified and

discussed the regulations and the reported decisions.

(U) (2) The Torture Victim Protection Act

(U) In its discussion of cases decided under the TVPA, the Bybee Memo

pointed out that the TVPA's definition of torture, which closely follows the CAT

definition, 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 and 23,

n.13. The memorandum also asserted that courts in TVPA cases have not engaged

in lengthy analyses of what constitutes torture because lallmost all of the cases

involve physical torture, some of which is of an especially cruel and even sadistic

nature." Id. at 24. As support, the memorandum cited one district court case,

Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322 (N.D. Ga. 2002), and described, in a

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two-and-a-half page discussion, the brutal physical treatment that the court found

to constitute torture in that case. Bybee Memo at 24-27. Thirteen additional TVPA

cases were summarized in an appendix to the memorandum.

(U) Acknowledging that the courts have not engaged "in a careful parsing of

the statute," but have simply recited the 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, "there are no cases that

analyze what the lowest boundary of what constitutes torture." [sic] Id.

(U) That assertion was misleading. In fact, conduct far less extreme than

that described in Mehinovic v. Vuckovic was held to constitute torture in one of the

TVPA cases cited in the appendix to the Bybee Memo. That case, Dalbierti v.

Republic of Iraq, 146 F. Supp. 2d 146 (D.D.C. 2001), held that imprisonment for

five days under extremely bad conditions, while being threatened with bodily harm,

interrogated, and held at gunpoint, constituted torture with respect to one

claimant. Id. Other plaintiffs in that case, imprisoned for much longer periods

under similar or worse conditions, were also found to have stated claims for torture

under the TVPA. Id. The court made no findings regarding severe pain and only

general findings of psychological harm in concluding that the claimants were

entitled "to compensation for their mental and physical suffering during their

incarceration, since their release, and in the future" Id.

(U) e. International Decisions

(U) 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. (sec. A) (1978) (Ireland v. U.K.); and the

Supreme Court of Israel, in Public Committee Against Torture in Israel v. Israel, 38

I.L.M. 1471 (1999) (PCATI v. Israel). That discussion began with the reminder that

"[a]lthough decisions by foreign or international bodies are in no way binding

authority 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

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concerning torture "provide a useful barometer of the international view of what

actions amount to torture." Id. at 28.

(U) 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 extreme

interrogation techniques may amount to cruel, inhuman or degrading treatment,

they do not produce pain or suffering of the necessary intensity to meet the

definition of torture" and that the 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). 128

We therefore concluded that the memorandum's discussion of the two foreign cases

was intended to add support to its "aggressive" definition of torture. 129

(U) (1) Ireland v. the United Kingdom

(U) The Bybee Memo's discussion of Ireland v. U.K. consisted of a detailed

description of five interrogation techniques that the European Court found did not

rise to the level of torture: wallstanding (a stress position); hooding; subjection to

noise; sleep deprivation; and deprivation of food and drink. Bybee Memo at 27-29.

The memorandum also noted that the court found other abusive techniques, such

as beating prisoners, not to constitute torture. Id. at 29.

128 (U) The suggestion that the two cases supported an aggressive interpretation of what

constituted torture "under international law" was inaccurate. A competent examination of what

is permissible unde•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 States. See

Restatement (Third) of Foreign Relations Law of the United States at § 102 (summarizing the

sources of international law).

129 (U) In his OPR interview, Yoo acknowledged that his purpose in discussing, the two foreign •

cases was not to gauge possible international reaction, but to show how other common law

jurisdictions had addressed the issue of torture. Because of then prevailing disputes between the

State Department and DOJ over the effect of international law "on the way American law was to

be interpreted," he prefaced his discussion by stating that it was intended to show "how other

nations will likely react" to OLC's interpretation. Yoo told us that he personally believes that

international law "has no formal binding effect . . . but, you know, one part of common law is

looking at how other reasonable people interpret similar phrases."

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(U) Based on our review of Ireland v. U.K., we concluded that the Bybee

Memo overlooked or ignored the following significant aspects of the European

Court's opinion:

• The opinion reviewed and reversed portions of the report and

findings of the European Commission of Human Rights (the

Commission), which initially investigated the Irish government's

complaint, held evidentiary hearings and interviewed witnesses.

In its report, the Commission unanimously found that the

combined use of the five interrogation techniques in question

violated the European Convention's ban on torture. Ireland v.

U.K. at ¶ 147(iv).

• The respondent government, the United Kingdom, did not

contest the Commission's findings that the interrogation

techniques constituted torture. Id. at ¶ 8(b).

• Prior to the Commission's investigation, the government of the

United Kingdom formed a committee to review the interrogation

techniques in question. The committee's majority report

concluded that the techniques "need not be ruled out on moral

grounds." A minority report took the opposite view. However,

both the majority and minority reports concluded that the

methods were illegal under domestic law. Id. at ¶ 100.

• Following publication of the committee's report and prior to the

European Commission's investigation, the United Kingdom

renounced further use of the techniques in question. Id. at 11

101, 102, 135.

The case was decided by a seventeen judge panel of the

European Court. Four of those judges dissented from the

court's opinion, writing separately that they believed the

techniques in question constituted torture. Id., Separate

Opinions of Judges Zekia, ODonoghue, Evrigenis and Matscher.

• Although the majority of the European Court found that the

techniques did not constitute torture, it nevertheless found that their

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uussee violated the European Convention. Id. at ¶ 168.

(U) A thorough and objective discussion of Ireland v. U.K. would have

mentioned some or all of the above facts.' 3° 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. 131

E.g., Selmouni v. France, (25803/94) [1999] ECHR 66 (28 July 1999); Aydin v.

Turkey, 23178/94 [1997] ECHR 75 (25 September 1997); Aksoy v. Turkey,

(21987/93) [1996] ECHR 68 (18 December 1996). The failure to discuss Selmouni

is significant, since that case cited the definitions of torture and cruel, inhuman,

and degrading treatment of the CAT. Selmouni at ¶ 100. Selmouni also included

the following statement:

[C]ertain acts which were classified in the past as

"inhuman and degrading treatment" as opposed to

"torture" could be classified differently in the future. . . .

[T]he increasingly high standard being required in the

area of the protection of human rights and fundamental

liberties correspondingly and inevitably requires greater

firmness in assessing breaches of the fundamental values

of democratic societies.

Selmouni at 11101. Thus, Selmouni raised questions about the continuing validity

of the European Court's findings in Ireland v. U.K. A thorough, candid assessment

of the law would have included a discussion of that case.

(U) (2) Public Committee Against Torture in

Israel v. Israel

(U) The Bybee Memo cited PCATI v. Israel as further support for the

proposition that there is "a wide array of acts that constitute cruel, inhuman, or

degrading treatment or punishment, but do not amount to torture." Bybee Memo

130 (U) The Bybee Memo's use of Ireland v. U.K is discussed in Jeremy Waldron, Torture and

Positive Law: Jurisprudence for the White House, 105 Colum. L. Rev. 1681, 1705-1706 (2005).

131 (U) Much of that case law in fact supports the Bybee Memo's conclusion that the term

"torture" should be applied to more severe forms of cruel, inhuman and degrading treatment. See,

e.g., Aksoy v. Turkey at ¶ 63.

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at 31. In that case, the Israeli court examined five extreme 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 111 24-31. 132

(U) 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."

• The court "concluded that in certain circumstances

[interrogators] could assert a necessity defense. CAT, however,

expressly provides that c[n]o exceptional circumstance

whatsoever, ... or any other public emergency may be invoked

as a justification of torture.' 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.

ias (U) The techniques were: (1) shaking; (2) "the Shabach" (a combination of hooding, exposure

to loud music, and stress positions); (3) the "Frog Crouch" (a stress position); (4) excessive

tightening of handcuffs; and (5) sleep deprivation. Bybee Memo at 30.

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(U) 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.

(U) 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.

(U) The first principle was that "a reasonable investigation is necessarily one

free of torture, free of cruel, inhuman treatment of the subject and free of any

degrading handling whatsoever." Id. The court added that Israeli case law

prohibits "the use of brutal or inhuman means," and values human dignity,

including "the dignity of the suspect being interrogated." Id. (citations and internal

quotation marks omitted). The court noted that its conclusion was consistent with

international treaties that "prohibit the use of torture, cruel, inhuman treatment

and degrading treatment." Id. ` 33 Accordingly, "violence directed at a suspect's body

or spirit does not constitute a reasonable investigation practice? Id. The court

cited as a second principle, that some discomfort, falling short of violence, is an

inevitable consequence of interrogation. Id.

(U) After stating these general principles, the court considered the legality of

each of the five techniques. In describing the GSS's use of the interrogation

methods, the court observed that some of the techniques caused "pain," "serious

pain," "real pain," or "particular pain and suffering;" that they were "harmful" or

"harmed the suspect's body;" that they "impinge[d] upon the suspect's dignity" or

"degraded" the suspect; or that they harmed the suspect's "health-and potentially

his dignity." Id. at 111124-30. However, the court did not attempt to categorize any

of the techniques as "torture" or "cruel, inhuman and degrading" treatment and did

133 (U) The court added: "These prohibitions are 'absolute.' There are no exceptions to them

and there is no room for balancing." Id.

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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.

(U) Turning to the final issue, the court noted that although the question of

whether the necessity defense could be asserted by an interrogator accused of

using improper techniques was open to debate, the court was "prepared to accept

that in the appropriate circumstances, GSS investigators may avail themselves of

the necessity defence, if criminally indicted." Id. at ¶134,35. 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.

(U) The Bybee Memo's assertion that the court's opinion in PCATI v. Israel is

"best read" as saying that EITs do not constitute torture was not based on the

language of the opinion. The Israeli court never considered whether the techniques

constituted torture or cruel, inhuman and degrading treatment. There was

therefore no basis for the Bybee Memo's statement that "the court carefully avoided

describing any of these acts as having the severity of pain or suffering indicative

of torture" or that the court's "descriptions of and conclusions about each method

indicate that the court viewed them as merely cruel, inhuman or degrading but not

of the sufficient severity to reach the threshold of torture." Bybee Memo at 30.' 34

We concluded thathe Bybe Memo's argument on this isue was based the

authors' speculation as to what the court may have intended to say, not the actual

language and reasoning of the court's opinion, and that it therefore violated basic

principles of legal reasoning and analysis.

134 (U) 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 IIM "isn't there some language in the opinion that we can characterize as

showing that e court did not think the conduct amounted to torture?" responded,

"Unfortunately, no."

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(U) f. The Commander-in-Chief Power and Possible

Defenses to Torture

(U) 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. Earlier

sections were generally responsive to the CIA's request for advice concerning the

limits on interrogation created by the torture statute. The last two sections went

beyond that request and outlined circumstances under which acts of outright

torture would not be prosecutable under the statute. Because of OLC's recognized

role as the definitive interpreter of the law within the Executive Branch, these

sections in effect constituted an advance declination of prosecution for future

violations of the torture statute, notwithstanding Criminal Division AAG Chertoffs

refusal to provide a formal declination.

(U) In 2004, these parts of the Bybee Memo were criticized by the

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. 335

When the Levin Memo appeared in late 2004, it referred briefly to Parts V and VI

of the Bybee Memo, noted that those sections had been superseded, and concluded

that further discussion was therefore unnecessary. Levin Memo at 2.

(U) We asked the OLC attorneys who worked on the Bybee Memo whythe

two sections were added to the memorandum shortly before it was signed

told us that she believed the sections were added to give the client "'the full scope

of advice." Yoo stated that he was "pretty sure" they were added because he, Bybee

and Philbin "thought there was a missing element to the opinion." 136 However,

Philbin recalled that he told Yoo the sections should be removed, and that Yoo

responded, "they want it in there." Bybee had no recollection of how the two

sections came to be added, did not remember discussing their inclusion with Yoo

135 (U) Although Goldsmith initially reviewed and withdrew the Yoo Memo, that document

incorporated the arguments and reasoning of the Bybee Memo.

136 (U) Yoo conceded, however, that the CIA may have indirectly given him the idea to add the

two sections by asking him what would happen if an interrogator "went over the line?

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DRAFT

or Philbin, and did not remember seeing a draft that did not contain them.

(U) John Rizzo told us that the CIA did not ask OLC to include those sections

and that he did not remember if he saw them before the final draft appeared.

Alberto Gonzales did not recall how the sections came to be added to the Bybee

Memo, but mentioned that David Addington had a general interest in the powers

of the Commander in Chief and may have had some input into that section. David

Addington testified before the. House Judiciary Committee that Yoo met with him

and Gonzales at the White House Counsel's Office and outlined for them the

subjects he planned to address in the Bybee Memo, including the constitutional

• authority of the President apart from the statute and possible defenses to the

statute. Addington testified that he told Yoo, "Good, I'm glad you're addressing

these issues."

(U) 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 on July 13, 2002. On July 15, 2002, Yoo told

ff.hat he did not plan to address the Commander-in-Chief power or defenses

in the memorandum. On July 16, 2002, Yoo and met at the White House

with Gonzales, and possibly Addington and Flanigan, to discuss the memorandum.

The next day and Yoo began working on the new sections, and although

drafted a letter dated July 17, 2002, from Yoo to the CIA, at Chertoff's

direction, stating that DOJ would not provide advance declination, it appears that

Yoo never signed or sent the letter. Based on this sequence of events, it appears

likely that the sections were added, following a discussion among the OLC and

White House lawyers, to achieve indirectly the result desired by the client —

immunity for those who engaged in the application of EITs.

(U) Yoo denied to OPR that the Commander-in-Chief sections provided

blanket imm • CIA agents who crossed the lines laid out by the torture

statute. He at 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." Yoo admitted, however, that the

section was probably not as explicit as it could have been.

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(U) (1) The President's Commander-in-Chief Power

(U) In Part V, the Bybee Memo in effect advised the client that the

Department of Justice would not prosecute CIA interrogators for violating the

torture statute during the questioning of al Qaeda suspects, because such a

prosecution would be an unconstitutional interference with the President's

Commander-in-Chief power. Critics both inside and outside the Department

characterized this argument as Calin_orityvie3 one that did not acknowledge or

address more widely-held, mainstream views as to the scope of executive power.'

We agreed with the criticisms of the opinion, and concluded that in light of the

importance of the subject matter, the analysis in Part V was not adequately

supported by authority.

(U) The legal conclusion of Part V is stated conditionally in several places (the

torture statute "may be" or "would be" unconstitutional under the circumstances),

but is expressed without qualification elsewhere (the statute "must be construed"

not to apply; the factors discussed "preclude an application" of the statute; and the

Department "could not enforce" the statute). In light of the overall tone of Part V,

the fact that the purpose of the memorandum was to assess the lawfulness of EITs,

and the fact that the Commander-in-Chief discussion was added to the

memorandum within days of a request for a prospective declination of prosecution,

we concluded that Part V was, in effect, a declaration that the Department of

Justice would not prosecute. CIA interrogators.

(U) The memorandum's reasoning can be summarized as follows:

• The United States is at war with al Qaeda. Part V. A.

• The President's Commander-in-Chief power gives him sole and

complete authority over the conduct of war. Part V. B.

• Statutes should be interpreted to avoid constitutional problems, and

137 (U) 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 contained errors.

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a criminal statute cannot be interpreted in such a way as to infringe

upon the President's Commander-in-Chief power. Part V. B.

• Accordingly, OLC must construe the torture statute as "not applying

to interrogations undertaken pursuant to [the President's]

Commander-in-Chief authority." Part V. B.

• In addition, the detention and interrogation of enemy prisoners is one

of the core functions of the Commander in Chief. Part V. C.

"Any effort by Congress to regulate the interrogation of battlefield

combatants would violate the Constitution's sole vesting of the

Comniander-in-Chief authority in the President." Part V. C.

• Therefore, prosecution under the torture statute "would represent an

unconstitutional infringement of the President's authority to conduct

war." Part V. C.; Introduction; Conclusion.

(U) The argument assumed, without explanation or reference to supporting

authority, that enforcing the statutory prohibition against torture would somehow

regulate or interfere with the interrogation of prisoners during wartime. This

proposition is not stated directly, and in fact, the word "torture" does not appear

in Part V. Instead, the discussion is framed in terms of the President's "discretion

in the interrogation of enemy combatants," or interrogation methods that

"arguably" violate the statute. i38 Notwithstanding the authors' careful choice of

words, interrogation methods that violate the torture statute are acts of torture.

(U) Torture has not been deemed available or acceptable as an interrogation

tool in 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 111 11 and 12 (H.L.) (discussing the English

common law's rejection of interrogation by torture and Parliament's abolition in

138 (U) 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 one of an unspecified number of

"unconstitutional laws that seek to prevent the President from gaining the intelligence he believes

necessary to prevent attacks upon the United States." Bybee Memo at 39.

DRAFT

1640 of the royal prerogative to interrogate by torture); 139 Waldron, Torture and

Positive Law, supra, at 1719-1720 (2005) (discussing the Anglo-American legal

system's "long tradition of rejecting torture and of regarding it as alien to our

jurisprudence"); Celia Rumann, Tortured History: Finding Our Way Back to the Lost

Origins of the Eighth Amendment, 31 Pepp. L. Rev. 661, 673-679 (2004) (discussing

the views of the framers of the Constitution on interrogation by torture).

(U) The Bybee Memo cited no authority to suggest that the drafters of the

Constitution (or anyone else) believed or intended that the President's Commanderin-

Chief powers would include the power to torture prisoners during times of war

to obtain information. In the absence of any reason to believe that the legal

restrictions imposed by the torture statute are in conflict with the President's

ability to conduct war, we concluded that Part V of the Bybee Memo was based

upon an argument without legal support.

(U) The .Bybee Memo also asserted that the President alone has the

constitutional authority to interrogate enemy combatants and that any attempt by

Congress to regulate military interrogation thus "would violate the Constitution's

sole vesting of the Commander-in-Chief authority in the President." Bybee Memo

at 39. 1 " Whatever the merits of this conclusion, it was not based on a thorough

discussion of all relevant provisions of the Constitution. Among the enumerated

powers of Congress are the following:

139 (U) The House of Lords opinion is available online at

www.publications.parliament.ukpai1d200506/1djudgmt/jd051208/aand-1.htm.

tao (U) The Bybee Memo asserted that "the Supreme Court has unanimously stated that it is

'the President alone 0 who is constitutionally invested with the entire charge of hostile operations.'"

Bybee Memo at 33-34 (emphasis added in Bybee Mema) (citing and quoting Hamilton v. Di22in, 88

U.S. (21 Wall.) 73, 87 (1874)). The excerpted language overstated the significance of the Court's

comment in Hamilton. The complete sentence is as follows:

Whether, in the absence of Congressional action, the power of permitting partial

intercourse with a public enemy may or may not be exercised by the President alone, who

is constitutionally invested with the entire charge of hostile operations, it is not now

necessary to decide, although it would seem that little doubt could be raised on the subject.

Hamilton at 87. In fact, the Hamilton decision can be read to support the view that Congress and

the President have concurrent powers in this area. See Hamilton at 87-88.

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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 of the land and naval

Forces . . . .

To provide for organizing, arming, and disciplining, the Militia, . . . .

U.S. Const., art. I, § 8 (emphasis added).

(U) Congress has exercised the above powers to regulate the conduct of the

military and the treatment of detainees in a number of ways, including enactment

of the Articles of War, the Uniform Code of Military Justice, the War Crimes Act,

and, more recently, the Detainee Treatment Act of 2005 and the Military

Commissions Act of 2006. The Bybee Memo should have addressed the

significance of the enumerated powers of Congress before concluding that the

President's powers were exclusive.'

141 (U) In Part V, the Bybee Memo cited another OLC memorandum that discussed two of the

relevant enumerated powers of Congress: the Captures Clause and the power to regulate the armed -

forces. Bybee Memo at 38 (citing Memorandum for William J. Haynes, II, General Counsel,

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 Transfer Memo) at 5-7). The Transfer Memo's

discussion of the Captures Clause concluded that the word "captures" was limited to the capture

of pro.perty,.not persons, and that Congress therefore had no authority to make rules concerning

captures of persons. Transfer Memo at 5. This conclusion was based on quotations from two

historical sources that used the word "captures" in connection with the seizure of property, but

did not mention persons. Id.

(U) The Transfer Memo also cited language in the Articles of Confederation that granted

Congress power to establish "rules for deciding, in all cases, what captures on land or water shall

be legal, and in what manner prizes taken by land or naval forces in the service of the United

States shall be divided or appropriated." Id. (quoting Articles of Confederation, art. IX, reprinted

in Encyclopedia of the American Constitution app. 2, at 2094 (Leonard W. Levy ed., 1986)). The

Transfer Memo asserted that because persons cannot be divided or appropriated, the word

"captures" as used in the Articles of Confederation must exclude persons. However, the language

in question referred to "prizes," not "captures." A prize is a vessel or cargo captured by a nation

at war and subject to condemnation or appropriation as enemy property. Black's Law Dictionary

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(U) Commentators and legal scholars have also criticized the Bybee Memo

for failing to discuss Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952),

the leading Supreme Court case on the distribution of governmental powers

between the executive and the legislative branches. See, e.g., Luban, supra n. 116,

at 68; Kathleen Clark, Ethical Issues Raised by the OLC Torture Memorandum , 1

J. Nat'l Sec. L. 85 Policy 455, 461 (2005). As noted above, AAG Goldsmith and

other OLC attorneys also criticized the omission in their review of the Yoo Memo.

While arguments can be made for or against the applicability of Youngstown to the

question of the President's power to order the torture of prisoners during war, we

believe a competent attorney providing objective advice to his client would have

acknowledged its relevance to the debate. 142

.(8 th ed. 2004). Thus, a "prize" can readily be "divided or appropriated."

(U) In fact, other historical sources refer to the capture of both persons and property. See,

e.g., Joseph Story, Commentaries on the Constitution of the United States, § 573 at 412 (reprinted

1987)(1833) (congressionally granted letters of marque and reprisal "contain an authority to seize

the bodies or goods of the subjects of the offending state"); 3 The Papers of Alexander Hamilton

(Harold C. Syrett et al., eds.) (reprinted1979)(1801) (available at

http: / / press-pub s.uchicago .edu / founders/documents/ al._8_11s11.html), (discussing the power

"to capture and detain . . . cruisers with their crews" and the right of warring parties "to capture

the persons and property of each other") (emphasis added).

(U) In addition, the Transfer Memo inaccurately claimed that Congress has never enacted

a statute addressing the treatment of enemy combatants. Transfer Memo at 6. In fact, the

Transfer Memo itself mentioned three such statutes, id. at 9-12, but dismissed their relevance with

the conclusory statement that "Congress may have acted outside the scope of its constitutionally

granted powers in passing at least some of these statutes." Id. at 9, n. 15. A fourth statute

addressing the treatment of enemy combatants, the Act of July 6, 1812, ch. 128, 2 Stat. 777 ("An

Act for the safe keeping and accommodation of prisoners of war"), was perfunctorily dismissed as

"at best . . . a recognition by Congress of powers that President Madison already enjoyed." Transfer

Memo at 12-13. A Supreme Court case that took the contrary view of that statute, and which

noted that Congress, not the President, has the power to regulate enemy persons and property,

was cited in the Transfer Memo, but summarily dismissed as having been wrongly decided.

Transfer Memo at 12 (citing Brown v. United States, 12 U.S. (8 Cranch) 110 (1814)).

142 (U) Bybee told us that the Bybee Memo was "quite consistent" with Youngstown, and stated

that:

(vi)e recognized that we're in Category 3, Congress has enacted a statute that might

interfere with the Commander in Chief's authority and Justice Jackson's analysis

sharpens the issues; it doesn'tanswer 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

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(U) Finally, in its discussion of presidential powers, the Bybee Memo

neglected to acknowledge the executive's duty to "take Care that the Laws be

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. 143

(U) Bybee defended the Commander-in-Chief section of the report, but stated

that "at the time [he] had the impression that the section was not as fulsome as it

might be? Bybee said he did not want the opinion to be overly long because he

was "afraid that would overblow the question because this is more in the sense of

sort of directing their attention to the issue."

(U) (2) Criminal Defenses to Torture

(U) The last section of the Bybee Memo discussed possible defenses to

violations of the torture statute and concluded that "even if an interrogation

method might violate [the torture statute], necessity or self-defense could provide

justifications that would eliminate any criminal liability." Bybee Memo at 46.

Although the memorandum suggested that its analysis was based upon "[s]tandard

criminal law defenses," id. at 39, we found that not to be the case. At various

points, the memorandum advanced novel legal theories, ignored relevant authority,

President.

143 (U) 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.").

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failed to adequately support its conclusions, and misinterpreted case law.'

(U) (A) The Necessity Defense

(U) The Bybee Memo based its definition of the necessity defense on two

treatises, the Model Penal Code and LaFave & Scott's treatise on criminal law. One

United States Supreme Court decision, United States v. Bailey, 444 U.S. 394

(1980), was cited for the proposition that "the Supreme Court has recognized the

defense," but was not discussed further. Bybee Memo at 40. No other case law

was cited or discussed.

(U) Of course, any prosecution for violations of the torture statute would take

place in federal district court, and the relevant controlling judicial authority would

be the opinions of the United States Supreme Court or the United States Circuit

Courts of Appea1. 145 At the time the Bybee Memo was drafted, the Supreme Court

had discussed the necessity defense in two opinions: United States v. Bailey supra,

and United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483 (2001).

(U) In Bailey, the Court was asked to consider whether the common law

defenses of necessity or duress were available to a defendant charged with

escaping from a federal prison. The Court briefly discussed the nature of the

defense at common law, but concluded that it was not necessary to consider the

availability or the elements of a possible necessity or duress defenses because

"fujnder any definition of these defenses one principle remains constant: if there

was a reasonable, legal alternative to violating the law, 'a chance both to refuse to

do the criminal act and also to avoid the threatened harm,' the defenses will fail."

Bailey at 410 (quoting LaFave & Scott). The Court held that because the crime of

escape was a continuing offense, the defendant would have to prove that he had

made an effort "to surrender or return to custody as soon as the claimed duress

or necessity had lost its coercive force." Id. at 415. Based on the record before it,

144 (U) See Luban, supra n. 116, at 62-67, for a critique of the Bybee Memo's analysis of selfdefense

and necessity. That article was expanded upon in a subsequent book by the same author,

Legal Ethics and Human Dignity (2007), at pp.162-205, which raised several of the issues discussed

in this report.

145 (U) Venue for violations of the torture statute could lie in any judicial district. 18 U.S.C. §

3238 (venue for offenses committed out of the jurisdiction of any state or district shall be in the

district where the defendant is first brought, in the district of the defendant's last known residence,

or in the District of Columbia).

DRAFT

the Court concluded that the defense could not meet its burden and that .the

necessity defense was therefore unavailable. Id.

(U) In United States v. Oakland Cannabis Buyers' Cooperative, the respondent

contended that "because necessity was a defense at common law, medical

necessity should be read into the Controlled Substances Act," and suggested that

Bailey had established that the necessity defense was available in federal court.

Oakland at 490. The Court disagreed, noting that although Bailey had "discussed

the possibility of a necessity defense without altogether rejecting it," the

respondent, was "incorrect to suggest that Bailey has settled the question whether

federal courts have authority to recognize a necessity defense not provided by

statute. . . . It was not argued [in Bailey], and so there was no occasion to

consider, whether the statute might be unable to bear any necessity defense at

aii . ”146

(U) The Bybee Memo did not cite or discuss Oakland, and apart from stating

that the Bailey Court had "recognized" the necessity defense, no federal judicial

opinions were cited or discussed."' While the Oakland Court's comments about

Bailey were arguably dictum, they nevertheless explicitly rejected the very

proposition for which the Bybee Memo cited Bailey. 148

146 (U) Id.. at 490 and 490 n. 3. The Court revisited this issue in Dixon u. United States, 126

S.Ct. 2437 (2006), which discussed both Bailey and Oakland. In Dixon, the Court assumed that

a defense of duress would be available to a defendant charged with a firearms violation. Id. at

2442. The Court ruled that the defense would be an affirmative one, which the defendant must

prove by a preponderance of the evidence, and concluded that there was no indication that

Congress intended the government to bear the burden of disproving the defense beyond a

reasonable doubt. Id.

147 (U) A simple cite check of Bailey would have revealed the existence of Oakland and dozens

of relevant federal appellate decisions.

148 (U) During his interview with OPR, John Yoo acknowledged that he was not familiar with

the Court's decision in Oakland. He also told us that "what we did is looked at the standard

criminal law authorities and, you know, didn't, you know, Shepardize all the authorities that we

used."

(U) Judge Bybee was unaware of the Oakland 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 memorandum. He did not know whether Yoo anc were

aware of Oakland, or simply overlooked it. efused to discuss the legal research

and analysis that went into the Bybee Memo saying, t e ocument speaks for itself."

TO

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(U) In addition, a large body of relevant federal case law on the necessity

defense existed at the time the Bybee Memo was being drafted. Opinions

discussing and setting forth the elements and limitations of the necessity defense

were available from every federal judicial circuit except the Federal Circuit (which

does not hear criminal cases). E.g., United States v. Maxwell, 254 F.3d 21 (1st 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 (5th Cir. 1982); United States v. Singleton, 902

F.2d 471, 472 (6th Cir.1990); United States v. Mauchlin, 670 F.2d 746 (7 th Cir.

1982); United States v. Griffin, 909 F.2d 1222 (8 th Cir.1990); United States v.

Schoon, 955 F.2d 1238, 1239-1240 (9th Cir.1991); United States v. Turner, 44 F.3d

900 (10th Cir. 1995); United States v. Bell, 214 F.3d 1299 (11 th Cir. 2000); United

States v. Bailey, 585 F.2d 1087 (D.C. Cir. 1978), rev'd, United States v. Bailey, 444

U.S. 394 (1980). 149 See also Federal Jury Instructions, supra, at § 19.02 (surveying

federal jury instructions and case law for coercion and duress defenses, including

the necessity and justification defenses).'

(U) A review of these and other judicial opinions reveals that the elements of

the necessity defense in federal court differ from the elements set forth in the

149 (U) A Westlaw search in the "ALLFEDS" data base for "necessity / I 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

"justification defense"). Several federal cases were also cited in the treatises relied upon by the

Bybee Memo.

150 (U) During his OPR interview, Judge Bybee stated that a discussion of existing federal case

law on the necessity defense was not needed in the Bybee Memo because the reported cases were

"far afield" from a "ticking time bomb" situation.

(U) John Yoo told us:

[Me 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 selfdefense.

DRAFT

Bybee Memo. While the defense varies slightly among the circuits, most courts

have endorsed the following elements:

(1) the defendant was under an unlawful and present, imminent, and

impending threat of such a nature as to induce a well-grounded

apprehension of death or serious bodily injury; 151

(2) the defendant did not recklessly or negligently place himself in a situation

in which it was probable that he would be forced to choose the criminal

conduct;

(3) the defendant had no reasonable, legal alternative to violating the law, a

chance both to refuse to do the criminal act and also to avoid the threatened

harm; and

(4) a direct causal relationship may be reasonably anticipated between the

criminal action taken and the avoidance of the threatened harm.

See, e.g., United States v. Singleton; 902 F.2d at 472 -473. 152

(U) A thorough and competent discussion of the necessity defense would

have included an element by element analysis of how the defense would be applied

to a government interrogator accused of violating the torture statute. Such an

analysis would have identified the following issues.

(U) The first element of the defense, as noted above, 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 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

151 (U) 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., U.S. v. Turner, 44 F.3d at

902.

152 (U) In some cases involving escape from prison or unlawful possession of a firearm, the

courts have added a fifth element — that the defendant did not maintain the illegal conduct any

longer than necessary. E.g., United States v. Singleton, 902 F.2d at 473 (citing Bailey at 399).

...1.S22,-Srbeitri ctruettir.

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sister circuits have found defendants to be in the type of imminent danger that

would warrant the application of a justification defense1. 153

(U) Another element of the federal defense that merited discussion was the

requirement that a defendant prove that he had no reasonable, legal alternative to

violating the law. As one court noted:

The defen a necessity does not arise from a 'choice of

several a of action; it is instead based on a real

emergency. It may be asserted only by a defendant who

153 (U) 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 abasis for asserting

the necessity defense . . . Under those circumstances, the court agreed that the necessity

defense's requirement of imminence . . . would be satisfied"). In their OPR interviews, Bybee and

Yoo both referred to the ticking time bomb hypothetical as support for their analysis of the

necessity defense.

(U) 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 Vermeule, Terrorism

in the Balance 196-197 (2007); Alan M. Dershowitz, Why Terrorism Works 132-163 (2002).

However, other scholars have argued that the scenario is based on a number of unrealistic

assumptions and has little, if any, relevance to intelligence gathering in the real world. See, e.g.,

Luban, supra n. 116, at 44-47; Kim Lane Sheppele, Hypothetical Torture in the 'War on Terrorism,"

1 J. Nat'l Security L. & Policy 285, 293-295, 337-340 (2005); Henry Shue, Torture, 7 Phil. & Pub.

Aff. 124, 141-43 (1978). Reliance upon the scenario has been criticized becaule it assumes, among

other things, that the interrogators know with absolute certainty: (1) that a bomb has been

planted, (2) that it will explode within hours or minutes and kill many people, (3) that the subject

has information that will permit authorities to locate and defuse the bomb, and (4) that torture will

produce immediate, truthful information. Thus, for the hypothetical to be persuasive, the

interrogators must know almost everything about the bomb plot except the location of the bomb.

To our knowledge, none of the information presented to OLC about Abu

Zubaydah, KSM, Al-Nashiri, or the other subjects of the CIA interrogation program approached the

level of imminence associated with the 'ticking time bomb" scenario. While the OLC attorneys had

good reasons to conclude that the detainees possessed valuable intelligence about terrorist

operations, we are unaware of any basis to believe the CIA had any specific information about

terrorist operations that were underway, or that posed immediate threats.

(U) Moreover, any reliance upon the "ticking time bomb" scenario to satisfy the imminence

prong of the necessity defense would be unwarranted in this instance, since none of the EITS under

consideration were designed or intended to produce immediate results. Rather, the goal of the CIA

program was to gradually condition the detainee in order to break down his resistance to

interrogation.

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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. 1980), cert. denied, 450 U.S.

924 (1980).' 54

(U) 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 at 410.' 55 Thus, a government official charged with torture would have the

burden of proving that no other method of persuasion or interrogation would have

prevented the harm in question. The Bybee Memo did not address this issue.

(U) A similar issue is raised by the fourth element of the defense - that there

be a direct causal relationship reasonably anticipated between the criminal action

taken and avoidance of the threatened harm. Thus, a defendant would have to

prove, by a preponderance of the evidence, that he reasonably anticipated that

torture would produce information directly responsible for preventing an

immediate, impending attack. Again, it is difficult to imagine a real-world situation

where this would be likely.

(U) The only other aspect of the necessity defense that was discussed in

154 (U) While the Bybee Memo did cite LaFaye & 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 84 Scott at 638).

155 (U) See also, United States v. The Diana, 7 Wall. (74 U.S.) 354, 361 (1869) ( for the necessity

defense to be available, the case must be one of "absolute and uncontrollable necessity; and this

must be established beyond a reasonable doubt . . . . Any rule less stringent than this would open

the door to all sorts of fraud").

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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). 1 ' As LaFave & Scott's treatise explains, in a passage not cited in the

Bybee Memo, when a criminal statute expressly provides that a necessity defense

is prohibited, or conversely, that it is available, the statute's determination is

controlling. LaFave & Scott at 629.

(U) The Bybee Memo advanced two arguments in favor of the proposition that

Congress intended the necessity defense to be available to persons charged with

violating the torture statute. First, the memorandum stated that "Congress has

not explicitiv_macle—a determination of values vis-a-vis torture. In fact, Congress

...explicitIrrimoved edbrts 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 Convention Against

Torture only applied when severe pain is inflicted for the purpose of obtaining

information or a confession. Id. at n. 23. "One could argue that-such a definition

represented an attempt to to [sic] indicate that the good of of [sic] obtaining

information ... could not justify an act of torture. In other words, necessity would

not be a defense." Id. The memorandum went on to reason that when Congress

defined torture under the torture statute and did not include the CAT requirement

that pain be inflicted for the purpose of obtaining information or a confession, it

intended "to remove any fixing of values by statute." Id. Therefore, according to

the Bybee Memo, Congress intended to allow defendants charged with torture to

raise the necessity defense. Id.

(U) That argument depends on the following series of assumptions, none of

which is supported by the ratification history of CAT or the legislative history of the

torture statute: (1) the CAT definition's reference to the purpose of torture was

156 (U) 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 U.S. v. Bailey at 415, n.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). See, however, Oakland at 490 n.3 (pointing out that the Bailey Court refused to

balance the harms of the proposed necessity defense and that "we are construing an Act of

Congress, not drafting it.").

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intended to signal that the necessity defense was unavailable, (2) Congress

interpreted the definition as such a signal, and (3) Congress adopted a broader

definition of torture than the CAT definition in order to indicate that the necessity

defense should remain available under United States law.

(U) Of course, it would be far simpler and much more logical to conclude that

if Congress had intended to allow the necessity defense to apply to the torture

statute, it would have made an explicit statement to that effect, rather than relying

on attorneys and judges in future criminal prosecutions to discern a hidden reason

for its decision to broaden the scope of the definition of torture. Moreover, the

Bybee Memo's premise - that the wording of the CAT definition was "an attempt to

indicate" that necessity should not be a defense to torture - is unreasonable, since

the treaty explicitly provided elsewhere that necessity was not a defense to torture.

CAT Art. 2(2). We concluded that the Bybee Memo's argument on this point was

plainly frivolous.

(U) In support of its second argument for concluding that Congress intended

to allow the necessity defense to apply to the torture statute, the Bybee Memo cited

CAT article 2(2). The memorandum reasoned that Congress was aware of article

2(2), "and of the [Model Penal Code] definition of the necessity defense that allows

the legislature to provide for an exception to the defense, [but] Congress did not

incorporate CAT article 2.2 into [the torture statute]." Bybee Memo at 41, n. 23.

Congress's failure to explicitly prohibit the defense, the memorandum concluded,

should be read as a decision by Congress to permit the defense. Id.

(U) The Bybee Memo failed to point out, however, that the fact that Congress

has not specifically prohibited a necessity defense does not mean that it is

available. U.S. v. Oakland Marijuana Buyers' Cooperative, 532 U.S. at 491, n.4 ("We

reject the Cooperative's intimation that elimination of the defense requires an

explicit statement.") (citation and internal quotation marks omitted).

(U) Moreover, the Bybee Memo's argument depends on the assumption that

Congress intended to enact implementing legislation for one section of CAT that

was inconsistent with the 'clear terms of another section. The memorandum did

not address the possibility that a court might conclude that the torture statute

should be interpreted in a manner that is consistent with article 2(2)'s prohibition

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of the necessity defense. 157 See, e.g., Filartiga v. Penalrala, 630 F.2d 876, 887 n.20

(2d Cir. 1980) (referring to "the long-standing rule of construction first enunciated

by Chief Justice Marshall: 'an act of congress ought never to be construed to

violate the law of nations, if any other possible construction remains . . (citing

and quoting Murray v. Schooner Charming Betsy, 6 U.S. 64, 67 (1804)). See also

Restatement (Third) of Foreign Relations Law of the United States at § 114 ("Where

fairly possible, a United States statute is to be construed so as not to conflict with

international law or with an international agreement of the United States.")

(U) More importantly, the Bybee Memo's convoluted arguments regarding

congressional intent ignored directly relevant material in the ratification history of

the CAT that undermined or negated its arguments. As the drafters of the Bybee

Memo apparently knew, but did not discuss in the memorandum, the Reagan

administration's proposed conditions for ratification of, the CAT included the

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 selfdefense

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

157 (U) The authors of the Bybee Memo were able to recognize the logic of such an argument

when it supported a permissive view of the torture statute. In Part IV of the Bybee Memo

(International Decisions), in arguing that harsh Israeli interrogation methods did not constitute

torture, the authors concluded that the court must have interpreted Israeli law in a manner

consistent with the prohibition of CAT article 2(2). Bybee Memo at 31.

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can justify torture.

The Reagan administration, without in any way

narrowing the prohibition on torture, had thought it

desirable to clarify that the Convention does not preclude

the availability of relevant common law defenses,

including self-defense and defense of others. That is, the

Convention does not prevent a person from acting in selfdefense,

as long as he does not torture. While there was

no opposition to this concept, substantial concern was

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 intenrlo torture. We would not object to your

including ties 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)).'

(U) Moreover, in considering whether Congress had made a "determination

of values" as to the applicability of the necessity defense to the torture statute, the

Bybee Memo failed to consider the following provision of the United States

Sentencing Guidelines:

Sometimes, a defendant may commit a crime in order to

avoid a perceived greater harm. In such instances, a

158 (U) On the copy of the Senate report we found i files, sections of the

Reagan administration's proposed understanding regarding common aw e enses and the Bush

administration's explanation for its deletion were underlined or marked in the margins.

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reduced sentence may be appropriate, provided that the

circumstances significantly diminish society's interest in

punishing the conduct . .

U.S.S.G. § 5K2.11 (Policy Statement). As one state court has held, when a

legislature has addressed the factors that would give rise to the common law

necessity defense in the sentencing provisions of a statute, it has in effect made a

"determination of values" that the defense should not be available. Long v.

Commonwealth of Virginia, 23 Va. App. 537, 544 (1966).

(U) While it can be argued that the guidelines do not constitute a legislative

determination with respect to the entire body of federal criminal law, much of

which predates Congress's creation of the United States Sentencing Commission

in 1984 or the implementation of the Sentencing Guidelines in 1987, a thorough

discussion of the necessity defense would have considered the relevance of

U.S.S.G. § 5K2.11. If, as the Bybee Memo contended, Congress was aware of the

Model Penal Code's definition of the necessity defense when it enacted the torture

statute, thereby making a "determination of values" that the defense was available,

Bybee Memo at 41, n. 23, it is equally reasonable to conclude that lawmakers were

aware of the Sentencing Guidelines and intended that the defense's factors should

be addressed at sentencing, rather than as a defense to criminal liability.

(U) The Bybee Memo also failed to consider the possibility that a court might

consult additional relevant statements from the executive branch, such as the

State Department's initial report to the United Nations Committee Against Torture,

documenting United States implementation of the CAT (prepared "with extensive

assistance from the Department of Justice"). That report included the following

statement:

No exceptional circumstances may be invoked as a

justification of torture. United States law contains no

provision permitting otherwise prohibited acts of torture

or other cruel, inhuman or degrading treatment or

punishment to be employed on grounds of exigent

circumstances (for example, during a "state of public

emergency") or on orders from a superior officer or public

authority, and the protective mechanisms of an

independent judiciary are not subject to suspension.

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United States Department of State, Initial Periodic Report of the United States of

America to the UN Committee Against Torture at ¶ 6 (October 15, 1999).' 59

(U) 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.

United States v. Cornejo-Barreto, 218 F.3d 1004, 1016 (9 th Cir. 2000). Accord, e.g.,

Filartiga v. Pena-Orala, 630 F. 2d at 884.

(U) We also concluded that a thorough discussion of the relevant case law

would have noted that although the necessity defense has been considered by the

federal courts on many occasions, it has rarely been allowed to be presented to a

jury and, to our knowledge, has never resulted in an acquittal. See Oakland at

491, n.4 ("we have never held necessity to be a viable justification for violating a

federal statute") (citation to Bailey omitted). In most reported cases, courts have

found, as in Bailey, that the defendant would be unable to prove the elements of

the defense. See., e.g., United States v. Singleton, 902 F.2d at 472 (noting that a

defense of justification is infrequently appropriate).

(U) We also found it significant that the memorandum failed to mention that

the necessity defense is an affirmative defense, and that even if a court were to

allow it, a defendant would bear the burden of proving each element of the defense

by a preponderance of the evidence. E.g., Bailey at 415. Accord, MPC § 1.12(3)0;

LaFave & Scott at § 3.01.

159 (U) In its most recent report to the Committee Against Torture, the United States reaffirmed

its position that 'fnjo circumstance whatsoever . . . may be invoked as a justification for or defense

to committing torture." United States Department of State, Second Periodic Report of the United

States of America to the UN Committee Against Torture at y 6 (June 29, 2005).

NOF

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(U) (B) Self Defense

(U) The Bybee Memo's discussion of self-defense suffers from some of the

same shortcomings as its treatment of the necessity defense. The description of

the doctrines of self-defense and defense of others was based on secondary

authorities - LaFave & Scott and the Model Penal Code. There was no analysis or

discussion of how the defense has been applied in federal court, and no review of

federal jury instructions for the defense.' In addition, significant aspects of the

CAT ratification history relating to the availability of the defense were ignored.

(U) The memorandum presented a two-page summary of the common law

doctrines of self-defense and the defense of others, and acknowledged that those

defenses would not ordinarily be available to an interrogator accused of torturing

a prisoner who posed no personal threat to the interrogator. Bybee Memo at 44.

However, the memorandum asserted that "leading scholarly commentators believe

that interrogation of such individuals using methods that might violate [the torture

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.

(U) The only authority cited for the Bybee Memo's extension of the doctrine

of self-defense was a law review article: Michael S. Moore, Torture and the Balance

of Evils, 23 Israel L. Rev. 280 (1989) (Moore Article). The author of that article was

one person, not "leading scholarly commentators, or "some commentators," as he

was described in the Bybee Memo.'

160 (U) The memorandum did mention one federal case, United States v. Peterson, 483 F.2d

1222, 1228-1229 (D.C. Cir. 1973), but only to quote its summary of what Blackstone wrote about

self-defense in the mid-eighteenth century.

161 (U) The "track changes" feature of a February 2003 draft of the Yoo Memo (which

incorporated .the Bybee Memo's discussion of self-defense nearly verbatim) indicates that AAG

Bybee questioned at that time whether the reference to "commentators" should be plural. In

response, either or Yoo changed "leading scholarly commentators" to "some leading

scholarly commentators" and added another cite from the same issue of the Israel Law Review

Is It Necessary to Apply "Physical Pressure" to Terrorists -Alan M. Dershowitz, - and to Lie About It?

23 Israel L. Rev. 192, 199-200 (1989) (the Dershowitz article). Yoo Memo at 79. The Yoo Memo

cited the Dershowitz article with the signal, "see also," indicating that the Iclited authority

constitutes additional source material that supports the proposition." The Bluebook: A Uniform

System of Citation R.1.2(a) at 23 (Columbia Law Review Ass'n et al. eds., 17 th ed. 2000). However,

the Dershowitz article does not address the doctrine of self-defense - it disdusses the possible

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(U) Moreover, Professor Moore's article was a theoretical exploration of the

morality of torturing terrorists to obtain information. The article cited more

scholarly and philosophical works than legal authorities, and made no attempt to

summarize or analyze United States law. The arguments adopted by the Bybee

Memo were based on hypothetical situations proposed by Moore or other legal

theorists, and clearly represented Moore's personal views, which he did not claim

were supported by legal authority. See id. at 322-323. 162 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. I63

(U) The- Bybee Memo presented another unprecedented interpretation of the

doctrine of self-defense, based on the principle that a nation has the right to defend

application of the necessity defense to interrogators charged with using illegal methods and

systematically committing perjury to conceal the practice. The passage apparently cited by the Yoo

Memo offers the following comment:

I lack the information necessary to reach any definitive assessment of whether the

GSS [Israeli General Security Service] should be allowed to employ physical

pressure in the interrogation of some suspected terrorists under some

circumstances. . (I am personally convinced that there are some circumstances - at

least iri 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 entire Dershowitz article and

concluded that it offers no support for the statement that "leading scholarly commentators believe"

violations of the torture statute "would be justified under the doctrine of self-defense."

162 • (U) The author's conclusions were introduced with the phrases "to my mind," and "[m]y own

answer to this question is . . . ." Id. at 323.

163 (U) The first Bush administration's proposal of CAT reservations, understandings and

declarations to the Senate Foreign Relations Committee reveals that the administration did not

view self-defense to acts of torture as a possible defense. As the State Department explained in

correspondence to Senator Pressler, "[b]ecause the (CAT] applies only to custodial situations, i.e.,

when the person is actually under the control of a public official, the legitimate right of self-defense

is not affected by the Convention." S. Exec. Rep. No. 101-30 at 40 (App. B).

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itself in time of war, and "the teaching of the Supreme Court in In re Neagle, 135

United States 1 (1890)." Id. at 44. According to the memorandum, Neagle held

that "a federal officer not only could raise self-defense or defense of another, but

also could defend his actions on the ground that he was implementing the

Executive Branch's authority to protect the United States government." Id. at 45.

The Bybee Memo asserted that Neagle "suggests" that "the right to defend the

national government can be raised as a defense in an individual prosecution." Id.

(U) We found the Bybee Memo's characterization of Neagle to be misleading.

The question before the Court in Neagle was whether a Deputy Marshal assigned

to protect Supreme Court Justice Stephen Field during his travels as Circuit

Justice for the Ninth Circuit was acting "in pursuance of the laws of the United

States" when he shot and killed a man who attacked Field. Id. at 41. The issue

arose because Deputy Marshal Neagle was arrested and jailed on state murder

charges after the incident. Id. at 7. The United States Court of Appeals for the

Ninth Circuit ordered his release pursuant to a writ of habeas corpus, and the

county sheriff, represented by the California Attorney General, appealed to the

United States Supreme Court. Id. at 7.

(U) At the time, the habeas corpus statute applied to prisoners held in

custody for, among other things, "an act done in pursuance of the laws of the

United States." Id. at 40-41. The sole question before the Court was whether

Neagle was acting "in pursuance of the laws of the-United States" when he shot the

attacker, and whether the Ninth Circuit had correctly ordered Neagle's release from

the county jail where he was being held. Id.

(U) The Court reasoned that because a federal statute granted United States

Marshals the same powers as state law enforcement personnel, and because a

California sheriff would have had the duty to defend Justice Field, Neagle was

authorized by federal law to resist the attack, and "under the circumstances, he

was acting under the authority of the law of the United States, and was justified

in so doing; and that he is not liable to answer in the courts of California on

account of his part in that transaction." Id. at 76.

(U) The Neagle Court did observe that "II* cannot doubt the power of the

president to take measures for the protection of a judge of one of the courts of the

United States who, while in the discharge of the duties of his office, is threatened

with a personal attack which may probably result in his death . . . ." Id. at 67.

However, the Court did not modify or enlarge the common law doctrine of self-

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defense. In fact, California's criminal self-defense statute was cited as the

applicable law. Id. at 68 (citing and quoting section 197 of the Penal Code of

California). 164

(U) The Bybee Memo's assertion that Neagle would allow a government

official accused of torture to "defend his actions on the ground that he was

implementing the Executive Branch's authority to protect the United States

government," Bybee Memo at 45, is an unreasonable and misleading

characterization of the holding of. Neagle.'

(U) The memorandum 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 United States 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 Qaeda terrorist network. In that case, we

believe that he could argue that his actions were justified

by the executive branch's constitutional authority to

protect the nation from attack. This national and

international version of the right to self-defense could

supplement and bolster the government defendant's

individual right.

164 (U) The Court summarized and quoted the statute as follows:

[H]omicide is justifiable when committed by any person "when resisting any attempt

to murder any person, or to commit a felony, or to do some great bodily injury upon

any person," or "when committed in defense of habitation, property, or person

against one who manifestly intends or endeavors, by violence or surprise, to commit

a felony."

Id. at 68.

165 (U) Neagle's value as precedent is arguably limited by the unusual factual background of

the case. See Neagle at 56 ("The occurrence which we are called upon to consider was of so

extraordinary a character that it is not to be expected that many cases can be found to cite as

authority upon the subject").

TO

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Id. at 46.

(U) However, 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: 66 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.

(U) g. Conclusion

For the reasons cited above, we found that the Bybee Memo did not

constitute competent legal advice within the meaning of Rule 1.1. Accordingly, we

concluded that the authors failed to meet their professional obligations under the

rule. "7

166 (U} One of the cited cases, United States v. Verdugo-Urquidez, 494 United States 259 (1990),

held that the Fourth Amendment to the United States Constitution did not apply to the search of

property in a foreign . country owned by a non-resident alien. Id. at 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 national security. " Id. at 273. The case did not discuss the doctrine of self-defense.

167

(U) We note that none of the attorneys involved in the writing process asserted that they

did not have sufficient time to complete the memoranda or that time pressures affected the quality

of their work. Yoo told u ey had a "fairly lengthy" period of time to complete the

unclassified Bybee Memo. so stated- that she had sufficient time to devote to her

projects. We also note that, a ter t 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.

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(U) 2. The Bybee Memo and the Yoo Memo Did Not Represent

Independent Professional Judgment and Candid Advice

Within the Meaning of Rule 2.1 168

(U) The drafters of the Bybee Memo and the Yoo Memo told us that OLC was

asked to provide an honest assessment of how the torture statute would apply to

the use of EITs, and that no one at the White House or the CIA ever pressured

them to approve the use of EITs or to provide anything other than an objective

analysis of the law. They also maintained that their analysis was a fair and

objective view of the statute's meaning and that they never intended to arrive at a

foreordained result. Despite these assertions, we concluded that the memoranda

did not represent independent professional judgment or candid legal advice, but

were drafted to provide the client with a legal justification to engage in its planned

course of conduct. 169

(U) As an initial matter, we found ample evidence that the CIA was not

looking for just an objective, neutral explanation 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, they

adopted them wholesale from .the SERE program, which incorporated some of the

techniques used by totalitarian regimes to extract intelligence or false confessions

from captured United States airmen. OLC's approval was sought as a final step

before putting the EITs into practice.

(U) We also found evidence that the OLC attorneys were aware of the result

desired by the client and drafted memoranda that supported that result. The

specific techniques the agency proposed were described to the OLC attorneys in

detail, and were presented as essential to the success of the interrogation program.

168 (U') As discussed above,. the analysis which follows applies equally to the March 14, 2003

Yoo Memo.

1" (U) We were unable to determine why the Bybee Memo was issued, in light of the fact that

the Classified Bybee Memo provided specific, detailed advice to the CIA on what was permissible

in the interrogation of a specific individual. Goldsmith commented that it was "deeply strange"

that two opinions were prepared. Rizzo told OPR that he had told Yoo that the unclassified opinion

was not "essential" to what the CIA needed from the OLC.

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DRAFT

The waterboard, in particular was initially portrayed as essential to the success

of the program. 170 A old us, "my personal perspective was there

could be thousands of merican ives lost" if the techniques were not approved.

J,Tog Yoo provided the CIA with an unqualified, permissive

statement regarding specific intent in his July 13, 2002 letter, and prov .

equaly permisive statement in the June 203 bulet points he and

reviewed and approved for use by the CIA. Goldsmith viewed the Yoo Memo itself

as a "blank check" that could be used to justify additional EITs without further

DOJ review. Although Yoo told us that he had concluded that the

technique would violate the torture statute, he nevertheless tol t e c lent,

according to Rizzo, that he would "need more time" if they wanted

it approved.

According to Rizzo, there was never any doubt that

waterboarding would be approved by Yoo, and the client clearly regarded OLC as

willing to find a way to achieve the desired result

Finally, immediately after the Criminal

Division stated that the Department would not provide an advance declination of

prosecution for violations of the torture statute, Yoo added two sections to the

Bybee Memo that had the same practical effect.

(U) As set forth in this report, our review of the Bybee Memo led us to

conclude that the OLC attorneys tailored their research and analysis to achieve the

result desired by the client. This is particularly disturbing because of the role that

OLC plays in the Executive Branch as the final arbiter on a large number of legal

After dropping the waterboard from the program, the CIA told OLC, as stated in the 2007

Bradbury Memo, that sleep deprivation was "crucial" and that the remaining EITs were "the

minimum necessary to maintain an effective program . . . ."

DRAFT

issues. Because of this unique role, the OLC Best Practices Memo specifically

stated: "In general, we strive in our opinions for . . . a balanced presentation of

arguments on each side of an issue . . . , taking into account all reasonable counter

arguments." OLC Best Practices Memo at 3. As demonstrated above, that practice

was not followed in this case.

(U) For example, several of the memoranda's arguments were supported by

authority whose significance was exaggerated or misrepresented. Neither of the

two law review articles cited in the Yoo Memo to support the position that torture

could be justified by the common law doctrine of self-defense in fact supported that

argument. Nor, did the 1890 Supreme Court case, In re Neagle, provide any real

support for the view that "the right to defend the national government can be

raised as a defense in an individual prosecution." In addition, Yoo's conclusions

about the broad scope of the Commander-in-Chief power were based upon a onesided

and idiosyncratic view of the Constitution.

(U) A case citing the "in pari materia" doctrine was unjustifiably relied upon

to support an argument that language taken from an unrelated medical benefits

statute was relevant by analogy to the torture statute. Another case describing the

statutory meaning of "willful" was selectively used to misleadingly 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. The memorandum's authors exaggerated the

significance of two foreign court decisions to support the conclusion that "under

international law, an aggressive interpretation as to what amounts to torture [is

permitted]."

(U) We also found several instances in which adverse authority was not

discussed and its effect on OLC's position was not assessed accurately and fairly.

For example, the Bybee Memo cited United States. v. Bailey for the proposition that

the United States Supreme Court "has recognized the [necessity] defense," but did

not cite a later case, United States v. Oakland Cannabis Buyers' Cooperative, which

explicitly rejected the same proposition.

(U) In discussing the Torture Victim Protection Act, the Bybee Memo focused

almost exclusively on Mehinovic v. Vuckovic, which involved extremely brutal

conduct, to support the argument that TVPA cases were all "well over the line of

jap_sseRrr itLopecrif

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DRAFT

what constitutes torture." 171 However, another case, in which far less serious

conduct was found to constitute torture, was relegated to the appendix and was

not fully discussed.

(U) In. taking the extreme position that acts of torture could not be punished

under certain circumstances or could be justified by common law doctrines, the

memoranda did not refer to or discuss the relevance of the Convention Against

Torture Article 2(2), which explicitly states that no exceptional circumstances can

be invoked to justify torture. The drafters were, however, aware of Article 2(2) and

invoked it to the extent it was useful to them. Thus, they relied on it in two

separate, convoluted arguments to support a permissive view of the torture

statute. 172 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."

(U) The authors of the memos also adopted inconsistent positions to

advance a permissive view of the torture statute. The statute's provision outlawing

"threat[s] of imminent death" resulting in severe mental pain or suffering was

minimized by the assertion that Iclommon law. cases and legislation generally

define imminence as requiring that the threat be almost immediately forthcoming."

Bybee Memo at 12; Yoo Memo at 44 (citing LaFave & Scott § 5.7, at 655.

According to the memoranda, only threats of immediate, certain death would be

covered by the statute. Bybee Memo at 12; Yoo Memo at 44.

(U) However, in the discussion of self-defense that appeared later in the

memoranda, the authors interpreted that authority differently to minimize possible

17 (U) Where the court in Mehinovic v. Vuckovic 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.

172 (U) As discussed above, the memorandum 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.

..1.01:LASECZEB NSLEGier.

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--TztP-sEcIWErr

DRAFT

problems with the defense. The same section of LaFave & Scott, along with the

Model Penal Code's discussion of self-defense, was used to support the conclusion

that "[it would be a mistake.. to equate imminence necessarily with timing - that

an attack is immediately about to occur. . . ." Bybee Memo at 43; Yoo Memo at 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 selfdefense,

but would not constitute a "threat of imminent death" under the torture

statute, even if it caused severe mental pain or suffering.

(U) We also found that some of the arguments advanced in the memoranda

were convoluted, counterintuitive, or frivolous, albeit useful in achieving the

client's desired result. The use of medical benefits statutes to limit the application

of the torture statute to acts involving pain so severe that it is associated with

"death, organ failure, or permanent damage" falls within that category. Another

particularly convoluted argument concerning the necessity defense suggested that

subtle differences between the CAT and the torture statute meant that "Congress

explicitly removed efforts to remove torture from the weighing of values permitted

by the necessity defense."

(U) These and other examples discussed above led us to conclude that the

authors of the Bybee Memo and the Yoo Memo violated their duty under Rule 2.1

to provide a straightforward, candid and realistic assessment of the law.

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

(U) Based on the results of our investigation, we similarly concluded that the

Classified By-bee Memo did not constitute thorough, competent, and candid legal

advice, and thus violated D.C. Rules of Professional Responsibility 1.1 and 2.1.

first, the Classified Bybee Memo did not consider the United

States legal history surrounding the technique of waterboarding. The government

has historically condemned the use of waterboarding and has punished those who

applied it. After World War II, the United States convicted several Japanese

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DRAFT

soldiers for waterboarding American and Allied prisoners of war." American

soldiers also have been court-martialed for administering waterboarding. One

such court-martial occurred for actions taken by United States soldiers during the

American occupation of the Philippines after the 1898 Spanish-American War.'

,t,Tol 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 form of torture."' In addition, its use was punished when it was

applied by law enforcement officers as a means of questioning prisoners. In 1983,

Texas Sheriff James Parker and three of his deputies were charged by the

Department of Justice with civil rights violations stemming from their abuse,

including the use of "water torture," of prisoners to coerce confessions.' All four

men were convicted.

pifr None of these cases involved the interpretation of the specific

elements of the torture statute, and as such are not precedential. However, a

173 igP8 These trials took place before United States military commissions, and in

the International Military Tribunal for the Far East (IMTFE),conirnonly known as the Tokyo War

Crimes Trial. See Evan Wallach, Drop by Drop: Forgetting the History of Water Torture in United

States Courts, 45 Colum. J. Transnat'l L. 468 (2007) (citing United States of America v. Chinsaku

Yuki, Manilla (1946) (citation omitted); United States of America v. Hideji Nakamura, Yukio Asano,

Seitara Hata, and Takeo Kitz, United States Military Commission, Yokohama, 1-28 May, 1947

(citation omitted); United States of America v. Yagoheiji Iwata, Case Docket No. 135 31 March 1947

to 3 April, 1947, Yokohama (citation omitted); Judgement of the IMTFE 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?)

174 OF1 ee Guenael Mettraux, US Courts-Martial and the Armed Conflict in the

Philippines (1899-1902): Their Contributions to National Case Law of War Crimes, ,1 Oxford Journal

of International Criminal Justice 135 (20031 (Major Edwin Glenn and Lieutenant Edwin Hickman

were tried for conduct to the prejudice of good order and military discipline by courts martial in

May 1902 based upon infliction of the "water cure." Glenn was convicted and Hickman acquitted.)

175 (II) In Re Estate of Ferdinand E. Marcos, Human Rights Litigation, 910 F. Supp. 1460, 1463

(D. Hawaii, 1995).

176 (U) United States u. Carl Lee, 744 F.2d 1124 (5 th Cir. 1984).

-1112-sEreRB EDEGRtr---

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DRAFT

thorough and complete examination of the technique of waterboarding surely

would have included a review of the legal history of waterboarding in the United

States.

In addition, in concluding that the CIA's use of ten specific

EITs during the interrogation of Abu Zubaydah would not violate the torture

statute, the Classified Bybee Memo relied almost exclusively on the fact that the

"proposed interrogation methods have been used and continue to be used in SERE

training" without "any negative long-term mental health consequences." Classified

Bybee Memo at 17.

In light of the fact

that the express goal of the CIA interrogation program was to induce a state of

"learned helplessness," we concluded that the Classified Bybee Memo's analysis

failed to provide a basis for concluding that use of the ten specific EITs in the

interrogation of Zubaydah would not violate the torture statute.

..(..Tf3 We also found that there was an insufficient basis for the

Classified Bybee Memo's conclusion that the use of sleep deprivation would not

result in severe physical pain or suffering. As noted in the Bradbury Memo, the

Classified Bybee Memo's analysis "did not consider the potential for physical pain

or suffering resulting from the shackling used to keep detainees awake." Bradbury

Memo at 35. Rather, the OLC attorneys limited their analysis to the physical

effects of lack of sleep, without inquiring about or considering how the subject

would be kept awake. In light of the fact that prisoners were typically shackled in

standing positions with their arms elevated, wearing only a diaper, we concluded

that the Classified Bybee Memo's analysis was insufficient. in

' (U) The use of sleep deprivation as an interrogation technique was condemned as 'torture"

in a report cited by the United States Supreme Court in Ashcroft v. Tennessee, 322 United States

143, 15 in. 6 (1944). In that opinion, the Court quoted the following language from a 1930

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DRAFT

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 wall standing would be "holding a position in which all

of the individual's body weight is placed on his finger tips." In other stress

positions, they would sit on the floor "with legs extended straight out in front and

arms raised above the head" or would be kept "kneeling on the floor and leaning

back at a 45 degree angle." Classified Bybee Memo at 10. However, the authors

did not consider whether subjects would be shackled, or threatened or beaten by

the interrogators, to ensure that they maintained those positions.

(U) Because of the authors' failure to address the issues detailed above, we

concluded that the legal advice provided was not competent or independent and

candid legal advice within the meaning of D.C. Rules of Professional Conduct 1.1

and 2.1.

(U) D. Analysis of Individual Responsibility

(U) Based on the results of our investigation, we concluded that former AAG

Jay S. Bybee failed to meet his responsibility under D.C. Rule of Professional

Conduct 1.1 to provide competent representation to his client, the United States.

We found that Bybee failed to correct a significant number of analytical errors and

inadequately supported arguments in the Bybee Memo, the Yoo Memo, and the

Classified Bybee Memo. Given the importance of the matter in question, we

concluded that Bybee's review of those documents and his attention to the

arguments and analysis fell far short of the standards expected of competent

Department of Justice attorneys. Although Yoo was responsible for drafting the

memoranda, Bybee, as the signator on two of them, was fully responsible for their

content.

(U) We also concluded that Bybee violated his duty to exercise independent

legal judgment and to render candid legal advice, pursuant to D.C. Rule of

Professional Conduct 2.1, because he failed to discuss or acknowledge significant

adverse authority and did not present a candid, realistic assessment of the

American Bar Association report: It has been known since 1500 that deprivation of sleep is the

most effective torture and certain to produce any confession desired."

-ICIP"'"eRET ACIPelt7r---

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likelihood that a court would sustain the positions advocated in the memorandum.

Rather, he provided the client with the legal justification to engage in conduct OLC

knew the client wanted and intended to engage in. We concluded that, in violating

D.C. Rules 1.1 and 2.1, Bybee committed professional misconduct.

(U) We concluded that former Deputy AAG John Yoo failed to meet his

obligations under the D.C. Rule of Professional Conduct 1.1 to provide competent

representation to his client, the United States. We found that Yoo, as the principal

drafter of the Bybee Memo, the Classified Bybee Memo, and the Yoo Memo, was

responsible for the significant number of analytical errors and inadequately

supported arguments in those documents. Given the importance of the matter in

question, and in light of the number of errors and oversights we identified, we

concluded that Yoo's research and analysis fell far short of the standards expected

of competent Department of Justice attorneys.

(U) We also concluded that Yoo violated his duty to exercise independent

legal judgment and to render candid legal advice, pursuant to D.C. Rule of

Professional Conduct 2.1 because he failed to discuss or acknowledge significant

adverse authority and did not present a candid, realistic assessment of the

likelihood that a court would sustain the positions advocated in the memorandum.

Rather, he provided the client with the legal justification to engage in conduct OLC

knew the client wanted and intended to engage in. We concluded that in violating

these rules of professional conduct, Yoo committed professional misconduct.

(U) We emphasize again that we do not believe any one of the shortcomings

we have identified, considered in isolation, would compel a finding of misconduct.

Moreover, the same failures of scholarship, analysis and objectivity in a more

routine, less important, matter would not necessarily rise to the level of

misconduct.

(U) Pursuant to Department policy, we will inform Bybee and Yoo's respective

state bars of our findings.

(U) We concluded that Patrick Philbin did not commit professional

misconduct in this matter because he did not participate in the drafting and did

not sign the memoranda.

isa.soeitsvi smazu---

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SO.

(U) We concluded thati because of. relative inexperience

and subordinate position, did not commit misconduct. Although. appears to

bear initial responsibility for a number of significant errors of scholarship and

judgment work was reviewed by, ancIM was under the direction of, more

experienced attorneys who bear ultimate responsibility for the errors.

(U) We did not find that the other Department officials involved committed

professional misconduct. We found Michael Chertoff, as AAG of the Criminal

Division, and Adam Ciongoli as Counselor to the AG, should have recognized many

of the Bybee Memo's shortcomings and should have taken a more active role in

evaluating the CIA program. John Ashcroft, as Attorney General, was ultimately

responsible for the Bybee and Yoo Memos and for the Department's approval of the

CIA program. Ashcroft, Chertoff, Ciongoli, and others should have looked beyond

the surface complexity of the OLC memoranda and attempted to verify that the

analysis, assumptions, and conclusions of those documents were sound. However,

we cannot conclude that, as a matter of professional responsibility, it was

unreasonable for senior Department officials to rely on advice from OLC. We note

that Ashcroft was at least consistent in his deference to OLC. When Goldsmith

and Comey recommended that the Yoo Memo be withdrawn, Ashcroft did not

hesitate to support them.

(U) E. Analysis of the Bradbury Memos

(U) We did not subject the four Bradbury Memos to the same degree of

scrutiny as we did the Bybee Memo, the Classified Bybee Memo, and the Yoo

Memo."$ The Bradbury Memos were not rescinded by the Department during the

same administration, and were based in large part on the legal analysis of the

Levin Memo, which corrected the most obvious errors of the Bybee and Yoo Memos.

However, our review raised a number of questions about the objectivity and

reasonableness of some of the Bradbury Memos' analysis.

178

(U) 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.

FuORTT--.

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(U) Others within the government expressed similar concerns. As discussed

above, DAG Carney 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, although a draft of the 2007

Bradbury Memo did a "careful job analyzing the precise meaning of relevant words

and phrases," he was "concerned that the opinion's careful parsing of statutory

and treaty terms" would be considered "a work of advocacy to achieve a desired

outcome." February 9, 2007 Bellinger letter at 11.

(U) We found several indicia that the Bradbury Memos were written with the

goal of allowing the ongoing CIA program to continue. First, we found some

evidence that there was pressure on the Department to complete legal opinions

which would allow the CIA interrogation program to go forward, and that Bradbury

was aware of that pressure. Although Bradbury strongly denied that he was

expected to arrive at a desired outcome, in Comey's April 27, 2005 email to

Rosenberg, Carney 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 expressed

that Steve [Bradbury] was getting constant similar pressure from Harriet Miers 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 changes in the law.

,(214e=MWe also found that the Bradbury Memos shared some of the

faults that we criticized in the Bybee and Yoo Memos. Although the Bradbury

Memos, unlike the Classified Bybee Memo, acknowledged the substantial

differences between SERE training and the use of EITs by the CIA, some sections

of the Bradbury Memos nevertheless cited data obtained from the SERE program

to support the conclusion that the EITs under consideration were lawful as

implemented by the CIA. In another argument, the SERE program was cited as

evidence that the CIA interrogation program and its use of EITs was "consistent

with executive tradition and practice." In light of the vast differences, as pointed

out by the CIA itself, between a training program and real world application of

techniques, we found this argument to be strained.

In addition, we question whether it was reasonable for OLC

ii9 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 that were approved because, among other reasons, they were represented

as essential to the facilities' security, 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

-LCIP"'SeC11211 1D'PC71

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to rely on CIA representations as to the effectiVeness of the EITs. The CIA

Effectiveness Memo was essential to the conclusion, in both the Article 16 Memo

and the 2007 Bradbury Memo, that the use of EITs did not "shock the conscience"

and thus violate the Due Process Clause because the CIA interrogations were not

"arbitrary in the constitutional sense," that is, had a governmental purpose that

the EITs achieved. However, as Bradbury acknowledged, he relied entirely on the

CIA's representations as to the effectiveness of EITs, and did not attempt to verify

or question the information he was given. As Bradbury put it, "it's not my role,

really, to do a factual investigation of that."' 8°

iso (U) 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 WH 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.

slau-seertm lapPerrir.

DRAFT

ccordin

ye been sub - ected to EITs.

to CIA documents, a roximately thirty detainees

was Al-Nashiri, the it

detainee to be waterboarded, who, according to the CIA OIG Report, continued to

be subjected to EITs - despite the objections of interrogators - because

a • - • • •fficials believed he must be withholdin: information.

DRAFT

e examined CIA assertions regarding

specific disrupted terrorist plots. 183 The memorandum stated that Abu Zubaydah

"provided significant information" about Jose Padilla and Binyam Mohammed,

"who planned to build and detonate a 'dirty bomb' . . . ." 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.

183 (U) 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."

LQB-srberW

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TOP

DRAFT

PEr In addition, in considering whether the use of EITs is

"arbitrary in t e constitutional sense," we believe the failures as well as the alleged

successes of the program should have been considered.

J„Tog 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 applications of that technique appear to

have exceeded the limitations, conditions and understandings recited in the

Classified Bybee Memo and the Bradbury Memos. 184 As rioted in the 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 SERE training." Bradbury Memo at 41 n. 51 (quoting CIA OIG Report

at 37). In addition, the report found that "the expertise of the [former] 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 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. However, even though the waterboard technique that

allegedly produced valuable intelligence in 2002 and 2003 appears to have been

184 (U) 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.

isa...sF.G.Rer Eavet-

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changed substantially by 2005, the CIA Effectiveness Memo cited intelligence

obtained from the earlier sessions as evidence that the 2005 technique would be

effective. Moreover, the program approved by Bradbury in 2007, which does 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 differed significantly from the

one that produced the intelligence data cited in the CIA Effectiveness Memo.

(U) In our view, a careful, objective attorney would have demanded more

specific information before concluding that the use of EITs was both essential and

effective in disrupting terrorist attacks. For example, the CIA Effectiveness Memo

could have described specific instances in which subjects refused to provide

information when subjected to non-coercive interrogation. The memorandum then

should have set forth: the CIA's 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. 18 '

186 (U) 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 Ibn 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

-1DP—reaerrEW

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IS)E.SSORET NSPeri6

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(U) Based on our review of the CIA Effectiveness Memo, and in light of the

questions that have been publicly raised about the effectiveness and usefulness of

EITs, we question whether OLC's conclusion that the use of EITs does not violate

substantive due process standards was adequately supported.

Our review of the Bradbury Memos raised additional

concerns about the reasonableness and objectivity of OLC's legal analysis. Some

of the memoranda's reasoning could be considered counterintuitive. For example,

the Article 16 Memo concluded that the use of thirteen EITs, including stress

positions, forced nudity, cramped confinement, sleep deprivation, and the

waterboard, did not violate the United States obligation under CAT to prevent "acts

of cruel, inhuman or degrading treatment or punishment which do not amount to

torture." The 2007 Bradbury Memo concluded that Common Article 3 of the

Geneva Conventions, which requires the United States to ensure that detainees

"shall in all circumstances be treated humanely," and which bars, among other

things, "cruel treatment" and lo]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 complex legal analysis,

to [a foreign government. " Id. 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.

187 (U) We also found that, since March 2, 2005, when the CIA Effectiveness Memo was

provided to OLC, a number of reliable sources have questioned whether EITs are in fact useful in

obtaining intelligence. Those sources, which have been extensively reported in the media and in

connection with congressional inquiries, include the Intelligence Science Board, an organization

of intelligence professionals in the public and private sectors whose mission it is to advise "the

Office of the Director of National Intelligence and senior Intelligence Community leaders on

emerging scientific and technical issues of special importance to the Intelligence Community,"

issued a lengthy report titled, "Educing Information - Interrogation: Science and Art" which found,

among other things, that there is no scientific basis to believe that coercive interrogation

techniques are effective and may be "counterproductive to the elicitation of good information."

(U) In addition, on June 10, 2008, former FBI agent John Cloonan testified before the

Senate Judiciary Committee that "based on a 27 year career as a Special Agent and interviews with

hundreds of subjects in custodial settings, including members of al Qaeda, [I believe] that the use

of coercive interrogation techniques is not effective." Cloonan further testified that an alternative,

rapport-based approach is "more effective, efficient and reliable."

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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 in some respects.

On the question of what would "shock the contemporary conscience" in light of

executive tradition and contemporary practice, OLC looked to United States case

law on coercive treatment, discussed the military's tradition of not using abusive

techniques, noted the State Department's regular practice of condemning "conduct

undertaken by other countries that bears at least some resemblance to the

techniques at issue" and discussed the rulings of foreign tribunals. In each

instance, the memoranda attempted to distinguish the CIA program from those

accepted standards of conduct' s' Thus, OLC found that the condemnation of

coercive or abusive interrogation in-those contexts did not apply to the CIA

interrogation plan, and that executive tradition therefore did not prohibit the use

of EITs by the CIA. However, the absence of an exact precedent is not evidence

that conduct 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 was willing to conclude, based

on the absence of any previous, explicit condemnation of a program that was

indistinguishable from 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] does

not constitute government behavior" that shocks the contemporary conscience.

Article 16 Memo at 38.

(U) We also note that Bradbury and others told us that it was not appropriate

for OLC to address moral or policy considerations when considering the legality of

188 For example, criminal law prohibitions on coercive interrogation were

distinguishe ecause OLC found the governmental interest in preventing terrorism to be more

important than conducting "ordinary criminal investigations." Military doctrine was distinguished

because al Qaeda terrorists are "unlawful enemy combatants" and not prisoners of war. Official

United States condemnations of harsh interrogation in other countries "are not meant to be legal

conclusions" and are merely "public diplomatic statements designed to encourage foreign

governments to alter their policies in a manner that would serve United States interests." The

judgments of foreign tribunals were distinguished because courts did not make any findings "as

to any safeguards that accompanied the . . . interrogation techniques," because the foreign courts

did not make inquiries into "whether any governmental interest might have reasonably justified

the conduct," or because the cases involved legal systems where intelligence officials are "subject

to the same rules as 'regular police interrogation[sr

21-1.p...sgettrr isigerrir-

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(U) We

misconduct

concluded that Patrick Philbin did not commit

-WP-Sgeittl ar"eftlig--

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government action. While consideration of moral, social and political factors is not

mandatory as a matter of professional responsibility, and while it may be

appropriate for the OLC to address only the legal questions posed, we believe it is

appropriate and necessary with regard to the Department's interpretation of the

torture statute, the CAT, Common Article 3, the DTA and the MCA, and that any

analysis is incomplete without reference to such factors. It does not appear that

the Department gave appropriate consideration to moral and policy factors.'

(U) Although we had serious concerns about the reasonableness and

objectivity of certain aspects of the Bradbury Memos, as discussed above, we did

not find that the shortcomings we identified rose to the level of professional

misconduct. Because President Obama's January 22, 2009 Executive Order

rendered the Bradbury Memos inoperative, we do not believe further review by the

Department is needed at this time.

(U) CONCLUSION

(U) Based on the results of our investigation, we concluded that former AAG

Jay S. Bybee and former Deputy AAG John Yoo failed to meet their responsibilities

under D.C. Rule of Professional Conduct 1.1 to provide competent representation

to their client, the United States, and failed to fulfill their duty to exercise

independent legal judgment and to render candid legal advice, pursuant to D.C.

Rule of Professional Conduct 2.1. In violating D.C. Rules 1.1 and 2.1, Bybee and

Yoo committed professional misconduct. Pursuant to Department policy, we notify

their respective state bars of our findings.

professional

because of

misconduct.

y, we conc u e at

elative inexperience and subordinate position, did not commit

189 (U) Apart from concerns Comey communicated orally to Gonzales about the Combined

Techniques Memo, we are unaware of whether the Department formally considered or identified

any of the many policy issues that were implicated by the Department's approval of the CIA

interrogation program. However, attorneys from the Criminal Division complained to us that they

were left out of the process and that the effects of the CIA program on international relations in

the criminal and human rights arena have been profound.

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1122srbeitsTIMMIllsoPeltr

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(U) We did not find that the other Department officials involved committed

professional misconduct. We found Michael Chertoff, as AAG of the Criminal

Division, and Adam Ciongoli, as Counselor to the AG, should have recognized

many of the Bybee Memo's shortcomings and should have taken a more active role

in evaluating the CIA program. John Ashcroft, as Attorney General, was ultimately

responsible for the Bybee and Yoo Memos and for the Department's approval of the

CIA program. They and others should have looked beyond the surface complexity

of the OLC memoranda and attempted to verify that the analysis, assumptions,

and conclusions of those documents were sound. However, we cannot conclude

that, as a matter of professional responsibility, it was unreasonable for senior

Department officials to rely on advice from OLC. We note that Ashcroft was at

least consistent in his deference to OLC. When Goldsmith and Comey

recommended that the Yoo Memo be withdrawn, Ashcroft did not hesitate to

support them.

(U) We also recommend, for the reasons outlined in this report, that the

Department review the declination decisions made with respect to potential

criminal prosecutions referred to the Department by the CIA.

(U) Finally, although we had substantial concerns about the

reasonableness and objectivity of certain aspects of the Bradbury Memos, as

discussed above, we did not find that the shortcomings we identified rose to the

level of professional misconduct. Because President Obama's January 22, 2009

Executive Order rendered the Bradbury Memos inoperative, we do not believe