Letter from Scott Muller, CIA, to Jack Goldsmith, OLC, re: legal principles applicable to the CIA interrogation program

<p>A letter from the CIA to OLC requesting that the OLC reaffirm its analyses in several previously issued memos relating to interrogation. &nbsp;The letter states that &quot;we rely on the applicable law and OLC guidance to assess the lawfulness of detention and interrogation techniques.&quot; &nbsp;The letter also sets forth the CIA's views on &quot;three additional interrogation techniques, and two uses of water not involving the waterboard.&quot; &nbsp;The two uses of water are water &quot;pouring, flicking, or tossing&quot; (PFT) and water dousing. &nbsp;The &quot;three additional interrogation techniques&quot; appear to be redacted.&nbsp;&nbsp;[OLC Vaughn Index #22]</p>

Legal Memo
Tuesday, March 2, 2004
Sunday, August 23, 2009

W .I NM MAR 02 '04 03;3 TOeRETAOt/COD R. 1 Central Intelligence Agency Office of General Counsel Washington, D.C. 20505 Date: 03/02/04 To: Jack Goldsmith Orgam ation: DOJ/OLC one: Fax: rom: Scott W. Muller Organiz tion: Office of General Couinsel P one: ax: Numbe of Pages (Including Cover) 13 Comme ts: TOORETZO1/COD ORD MI I I P.2 • TO. CRET//. I/NO. //x1 CENTRAL INTELLIGENCE AGENCY Washington, D.C. 20505 General Cpunsef 2 march 2004 The Honorable iaok L. Goldsmith III Assistant Atto ney General Office of Lega Counsel Department of ustice Washington, D.. 20530 Dear Mr. Golds ith: 4;6 . As you know, the Central Intelligence Agency's (CIA) Counterterrorism Detention and Interrogation program has ex• ended considerable effort to ensure that it operates in ac• ordance with applicable law and guidance provided by the Departm I t of Justice's Office of Legal Counsel (OLC) and the Attorney G eral. In light of the ongoing nature of this program, I am questing that OLC reaffirm its analyses set forth in the fo lowing documents: • The unc assified letter from John C. Yoo, Deputy Assista t Attorney General, to the Counsel to the Preside t, dated I August 2002, concerning interrogation methods that may be used during the war on terrorism. ' The unc ssified memorandum by - Jay S. Bybee, Assistant Attorne General, for the Counsel to the President, dated 1 Augus 2002, concerning the standards of conduct for interro• tion under 18 U.S.C. 2340-2340A. • The clan ifjed memorandum from Jay S. Bybee, Assistant Attorney General, to the Acting General Counsel of the CIA, dat d 1 August 2002, concerning the interrogation of an al Qa da operative. ¦ I P.3 TOP TI/ //xl ,//NOF The Honorable ack L. Goldsmith III AIAO MAR 02 '04 03:35PV • The cia Applica Al-Qaii was re concurs t is e coverin guidance to ass techniques. FD on OLC's guidan previously disc summary points) Similarly, in a positions discu its list of app stress position eified memorandum entitled "Legal principles le to CIA Detention and Interrogation of Captured a Personnel" (hereafter "summary points"), which axed with OLC's assistance and received theme of your office in June 2003. (Enclosed with ter Is a copy ore summary points along with a memorandum.) We rely on the applicable law and OLC • ss the lawfulness of detention and interrogation example, using the applicable law and.'relying e, we concluded that the abdominal slap ssed with OLC (and mentioned in the June 2003 is a permissible interrogation technique. . . dition to the sitting and kneeling stress sed earlier with OLC, the Agency. has added to coved interrogation techniques two standing involving the detainee leaning against a wall., (eg// We also would like to share with you our views on three 1 dditional interrogation techniques, and u es of water not involving the waterboard. grasp, walling ­ a reviewed by your techniques, Evasion, Resist milicary person (JS// to be a very eff Uses of water ( pouring, flickin small amount of water from a buc describe both to PFT and water do provided to US clearly fall such as the attention nd the facial slap, all of which have been office. Like other approved interrogation is used as part of the Survival, ce, Escape (SERE) training provided to US el. The use of water with detainees has proven active part of some detainee interrogations, Cher than with the waterboard) range from , or tossing (i.e., water PFT) a relatively ater on detainees, to dousing detainees with - et or garden hose (i.e., water dousing). (We hniques in greater detail below.) Both water sing are used as part of the SERE training ilitary personnel. We believe these techniques 2 Hi TOP The Honorable within the leg consistent wit documents iden ( / distracting eff Water PFT is i psychologically long as it, is. a inhalation or i interrogation t in an -approved More than one p applied. Given applied and the health or .safet interrogation p ( ti detainee's over, cooperate with . predictability is restrained b sitting or-.supi surface, Potab container or ga applied- so aa t last from 10 mi applications). amount and temp and physical an length of the w . present to menu water dousing s hypothermia. U• the detainee-is medical officer taken to ensure body heat and ma ¦ P.4 CRETt/ //NOP7/X1 ack L. Goldsmith ITT parameters establish by applicable law and are OLC's 2002 and 20.03 guidance set forth in the 'fied above, - - Water PFT is intended to create a ct, to -startle, humiliate, and cause insult. . tended to wear down the detainee physically and . Up to one pint of -potable water may be used so plied in such a manner as to prevent its gestion. - Water .PFT, may be used as a stand-alone ehniqup-or-in conjunct-ion with other techniques nterrogatipn plan such as sleep deprivation. No i nt of water every 15 to 20 minutes may be the relatively small amount of water that is method of application,- there are virtually no concerns with water PFT as part of an approved an Water dousing is intended to weaken the 11 resistance posture and persuade him to nterrogators by removing his sense of . nd control.. The detainee, dressed or undressed, shackles and/or interrogators in a standing, e position on the floor, bench or similar level e mater.is-pouredon the detainee from a den. hose .connected to a water source. . Water is not_ enter the nose or mouth. A session ear' utep (a single application) to an hour (multiple Thedetainee's resilience, level of cooperation, rature of water, temperature of the ambient air, mental state are all factors regulating the ter dousing session. A medical officer is or the detainee's physical condition during the ssion(a), including any indications of n completion of the water dousing session(s), oved to. another room, monitored as needed by .a to guard against hypothermia, and steps are he.detainee is capable of generating necessary ntain normal body functions. 2 TOP The Honorable C7g// office and the and Interrogat reaffirmation documents cite you choose to in this letter would be appre you or cleared techniques .use Enclosure NM. I CRET// //NOF //X1 tick L. Goldsmith III ) greatly appreciate the assistance of your Department of Justice with the CIA's Detention on program. If possible, we request f the legal guidance provided by OLC in the above within SO days. Moreover, any guidance ovide on the interrogation techniques described r any other techniques used in this program also ated. Of course, at your request, we will brief k embers of your staff on any of the interrogation by the CIA as vart of this program. Sincerely, Scott W. Muller ¦ P.5 TOP CRET//. '/NOF //Xi Legal Principles Applicable to CIA Detention d Interrogation of Captured Al-Qa'ida Personnel The Conve and Degrad applies co reservatio United Sta of the Con The Co by the ways t §2340- under identi 11 The Co undert treatm to the prevent conduct treatme conscie Additio treatme as a na • Customary regarding t which the C United Stat declaration definitivel inhuman, or purposes of * CIA interro tion Against Torture and Other Cruel, Inhuman, ng Treatment or Punishment "the Convention") the United states only in accordance with the s, understandings, and declarations that the es submitted with its instr:zment of ratification ention, vention's definition of torture, as interpreted U.S. understandings, is identical in all material the definition of torture contained in 18 U.S.C. 340A, The standard for what constitutes torture 2340-2340A and under the Convention is therefore al. ention also provides that state parties are .to e to prevent other cruel, inhuman, or degrading or punishment. Because of U.S. reservations onven7.ion, the U.S. obligation to undertake to such treatment or punishment extends only to that would constitute cruel and inhuman t under the Eiahth Amendment or would "shock the .ce" under the Fifth and Fourteenth Amendments, • ally, the Convention permits the use of such -t or punishment in exigent circumstances, such lona: emergency or war. ternational law imposes no obligations e treament of al...Qa'Ada de:ainees beyond that nvention, as interpreted and understood by the s in its reservations, understandings, and , imposes. The Convention therefore establishes what constitutes torture and cruel, degrading treatment or punishment for the U.S. international law obligations • ations of foreign nationals are not within the "special ma 'time and territorial jurisdiction" of the United Stet where the interrogation occurs on foreign '-I II I TOP' CRET//O '/NOFO//X1 territory under the criminal 1 territoria interrogat might apple Statute, 1 torture, 1 n buildings that are not owned or leased by or egal jurisdiction of the U.S. government. The' ws applicable to the special maritime and • jurisdictiOn therefcre do not apply to such ons. The only two federal criminal statutes that to these interrogations are the War Crimes U.S.C. 5244L and the prohibition against U.S.C. §2340-2340A. • The federa' War Crimes Statute, 18 U.e.c. 52441, does not apply to a 1 -Qa'ida because the Geneva Conventions and the Hague Conv ntion IV, the conventions that the conduct must violate in order to violate section 2441, do not apply toaleQaqda. Al-Qa'ida is a non-governmental international terrorist • ganization whose members cannot be considered POWs withir the meaning of the Geneva Conventions or receive the protect' or=s of the.Hague Convention 1 -v. Because these conventions do not protect al-Qa'ida members, conduct toward those membe s cannot violate section 24d1. • The interr constitute the interro "severe phy of specific through, am relevant pr reviewing e available ( interrogati psychologic ability cf • experiencin providing m the conduct policy revi review of r visits to t a reasonabl The interro nationals, Fourteenth The Due Broc Amendments, gation of al-Qa'ida detainees does not orture within the meaning of section 2340 whereators do not have the specific intent to cause ical or mental pain or suffering." The absence intent (i.e., good faith) can be established ng other things, evidence of efforts to review - fespiena). literature, consulting with experts, idence gained from past experience where ncluding experience gained in the course of U.S. ns of detainees), providing medical and I assessments of a detainee (including the he detainee to withstand interrogation without severe physical or mental rain or suffering), dical and psychological personnel on site during of interrogations, or conducting legal and. ws of the interrogation process Lsuch as the ports from the interrogation facilities and ose locations). A good faie'n belief need not be belief; it need only be an honest belief, ation of members of al-Qa'ida, who are foreign es not violate the Fifth, Eighth, and endments because those amendments do not apply. ss Clauses of the Fifth and Fourteenth hich would be the only clauses in those 2 ,......74­ /- TOP }M. amendments­interrogat , The Eighth solely to been impos sense the i Eighth Ame Taking all as the Gove activities good faith mental pain sadistic pu the use of approved te that would Amendments • The use of approved te detainees b­ other law, ' intend.to c mental pain belief that suffering): the amount. the detaine or white no damage to t walling, th abdominal s positions, harmless I 1O ¦ P.8 RET!! 'NOFORN//X1 that could arguably apply to the conduct of oils-, do not'apply -extraterrtorially to aliens. mendment has no application because it applies ose personS upon whom criminal sanctions have The detention of enemy combatants is in no position. of a criminal sanction and thus the ent does not apply. of the relevant circumstances into account (such. nment's.need for information to avert terrorist gains: the'United States and its citizens, the fforts to avoid producing severe physical or or suffering,' and the absence of malicious or pose by those conducting the interrogations), he techniques described below and of comparable, bniques would not constitute conduct of the type e prohibited by the Fifth, Eighth, or Fourteenth ven were they to be al3plicabLe. the following techniques and of comparable, hniques in the interrogation of al-Qasida the CIA does not violate any Federal statute or here the CIA interrogators do not specifically use the detainees to undergo severe physical or or suffering (i.e., they act with the good faith their conduCt will not cause such pain or isolation, reduced . caloric intake (so long as s calculated to maintain the general health of s), deprivation_ of reading material, loud music se (ac a decibel level calculated to avoid e detainees' hearing), the attention grasp, hold, the facial slap (insult slap), the ap, cramped confinement, wail standing, stress ].eep deprivation, the use of diapers, the use of ects, and the water board. 3