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

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CENTRAL INTELLIGENCE AGENCY
Washington, D.C. 20505
General Counsel
The Honorable Jack L. Goldsmith III
Assistant Attorney General
Office.of Legal Co\insel
Department of Justice
Washington, D.C. 20530 (b)(1)
2 March 2004
Dear Mr. Goldsmith:· (b)(3) NatSecAct
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. ('i'S)I . [ As you know, the Central Intelligence
Agency's \C)'.A) Counte.rterrorism Detention and. Interrogati.on
program has expended considerable effort to ensure that it
op.erates in .accordance with applicable law and· guidance· provided
·by the Department of Justice's· Office of Legal Counsel (OLC) and
the Attorney General. In light of the ongoing nature of this
program, I am requesting that OLC reaffirm its analyses set
forth in the following documents:·
• The unclassified letter from John C. Yoo, Deputy
Assistant Attorney General, to the Counsel to the
President, dated 1 August 2002, concerning interrogation
methods that may be used during the war on terrorism.
• The unclassified memorandum by· Jay S. Bybee, Assistant
Attorney General, for the Counsel to the President, dated
1 August 2002, concerning the standards of conduct for
interrogation under 18 U.S.C. 2340-2340A.
·• The classified memorandum from Jay S. Bybee, Assistant
Attorney General, to the Acting General Counsel of the
CIA, dated 1 Augus.t 2002, concerning the interrogation of
an al Qaeda operative.~
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The Honorable Jack L. Goldsmith III
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• The classified memorandum entitled "Legal Principles
Applicable to CIA Detention and Interrogation of Captured
Al-Qa'ida Personnel" (hereafter "summary points"), which
wa.s prepared with OLC' s assistance and received the
concurrence of your office in June 2003. (Enclosed with
this' letter is a copy of the summary points along with a
covering memorandum.) ·
('PS/ We rely on the applicable law and OLC
guidance to assess t.he lawfulness of detention and interrogation
.techniques. For example, using the applicable law·and.relying.
on OLC's guidance, we concluded that the abdominal slap
previously discussed with OLC (and mentioned in· the June 2003 ·
summary points} .is a permissible interrogation technique.
Similarly, in addition to·the sitting and kneeling stress
positions qiscussed earlier with OLC, the Agency has added to
(b)(1) i~s list o~ ~ppro':'ed in~errogation ~echnique~ two s~anding
(b)(3) NatSecAciess positions involving the detainee leaning against a wall.,
Pl'&/ We also would like to share with you our
views on three additional interrogation techniques, the.· finger
press and two uses of water not involving the waterboard. The
finger press involves the interrogator jabbing the detainee's
chest with his finger in a firm, but no=in..j.uri.o.us_manner..--..The-___ _
finger press is consistent with other approved interrogation
techniques that involve physical touching, such as the .attention
grasp, walling and the facial slap, all of which have been
reviewed by your office. Like other.approved interrogation
techniques, the finger press is used as part of the Survival,
(b)(1) ~':'a~ion, Resistance, Escape (SERE} training provided to US
(b)(3) NatSecActlitary personnel.
("'f'S/ The use of water with detainees has proven
to be a very effective part of some detainee interrogations.
Uses of water (other than with the waterboard} range from
pouring, flicking, or tossing (i.e., water PFT) a relatively
small amount of water on detainees, to dousing detainees with
water from a bucket or garden hose (i.e., water dousing). (We
describe both techniques in greater detail below.) Both water
PFT and water dousing are used as part of the SERE training
provided to US Military personnel. We believe these techniques
clearly fall
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The Honorable Jack L. Goldsmith III
within the legal parameters establish by applicable law and are
(b)(i) c;onsistent.with.O~C's 2002 and 2003 guidance set forth in the
(b)(3) NatSecAcPcuments identified above.
f'J!S/ ~ I> Water PFT is intended to create a
distracting effect, to startle, humiliate, and cause insult.
Water PFT is intended to wear down the detainee physically and
psychologically. Up to one pint of potable water may be used so
long as it is applied in such a manner as to prevent its
inhalation or ingestion. Water PFT may be used as a stand-alone
interrogation technique or in conjunction with other techniques
.in an approved interrogation plan such as sleep deprivation. No
more than one pint of water every 15 to 20 minutes may be
applied. Given the relatively small amount of.water that is
applied and the method of application, there are virtually no
(b)(1) health or safety concerns with water PFT as part of an approved
(b)(3) NatSecAclerrogation plan. .
{4!&11 ~ Water dousing is 'intended to weaken the
detainee's overall resistance posture and persuade him to
cooperate with interrogators by removing his sense of
predictability and control. The detainee, dressed or undressed,
·is restrained by shackles and/or interrogators in a standing,
sitting or supine position on the floor, bench or similar. level
surface.' Potable water is poured on the detainee from a
container or garden hose connected to a water source. Water is
applied so as to not.enter the nose· or mouth. A session can
last from 10 minutes (a single application) to an hour (multiple
applications). The detainee's resilience, level of cooperation,
amount· and temperature of water, temperature of the ambient air,
and·physical and mental state are all factors regulating the
length of the water dousing session. A medical officer is
present to monitor the detainee's physical condition during the
water dousing session(s), including any indications of
hypothermia. Upon completio~ of the water dousing session(s),
the detainee is moved to another room, monitored as needed by a
medical officer.to guard against hypothermia, and steps are
taken to ensure the detainee is capable of generating necessary
body heat and maintain normal body functions.
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'±'':l'E' (b)(3) NatSecAct (HOF'6ftt The Honorable Jack L. Goldsmith III
(b)(1)
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f'l'&,' I greatly appreciate the assistance of your
office and the Department of Justice with the CIA's Detention
and Interrogation program. If possible, we request
reaffirmation of the legal guidance provided by OLC in the
documents. cited above within 60 days. Moreover, any guidance
you choose to provide on the interrogation techniques described
in this letter or any other techniques used in this program also
would be appreciated. Of course, at your request, we will brief
you or cleared members of your staff on any of the interrogation
techniques used by the CIA as part of this program.
Sinc.erely,
Scott w. Muller
Enclosure
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The Honorable Jack L'. Goldsmith III
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DCI/OGC/GC/SWMullerJ 1(26 Feb 04)
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Distribution:
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1 - GC Signer
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Legal Principles Applicable to CIA
Detention and Interrogation.of Captured Al-Qa'ida Personnel
• The Convention Against Torture. and Other Cruel, Inhuman,
and Degrading Treatment or Punishment ("the Convention")
applies to the United States only in accordance with the
reservations, understandings, and declarat.ions that the
United States submitted with its instrument of ratification
of the Convention.
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The Convention's definition of torture, as interpreted
by the U.S. understandings, is identical in all material
ways to the definition of torture contained in 18 U.S.C.
§2340-2340A. The standard for what constitutes torture
under §2340-2340A and under the Convention is therefore
identical.
The Convention also provides that state parties are to
undertake to prevent other cruel, inhuman, or degrading
treatment or punishment. Because of U.S. reservations
to the Convention, the U.S. obligation to undertake to
prevent such treatment or punishment extends only to
conduct ·that would constitute cruel and inhuman
treatment under. the, Eighth Amendment or would "shock the
conscience" under the Fifth and Fourteenth Amendments.
Additionally, the Convention permits the use of such
treatment or punishment in exigent circumstances, such
as a national emergency or war.
• Customary international law imposes no obligations
regarding the treatment of al-Qa'ida detainees beyond that
which the Convention, as interpreted and understood by the
United States in its reservations, understandings, and
dec.larations, imposes. The Convention therefore
definitively establishes what constitutes torture and cruel,
inhuman, or degrading treatment or punishment for the
purposes of U.S. international law obligations.
• CIA interrogations of foreign nationals are not within the
"special maritime and territorial jurisdiction" of the
United States where the interrogation occurs on foreign
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territory in buildings that are not owned or leased by or
under the legal jurisdiction of the U.S. government. The
criminal laws.applicable to the special maritime and
territorial jurisdiction therefore do not apply to such
interrogations. The only two federal criminal statutes that
might apply to these interrogations are the War Crimes
Statute, 18 U.S.C. §2441, and the prohibition against
torture, 18 U.S.~. §2340-2340A.
• The federal War Crimes Statute, 18 U.S.C. §2441, does not
apply to al-Qa'ida because the Geneva Conventions and the
Hague Convention IV, the conventions that the conduct must
violate in order to violate section 2441, do not apply to
al-Qa'ida. Al-Qa'ida is a non-governmental international
terrorist organization whose members cannot be considered
POWs within the meaning of the Geneva Conventions or receive
the protections of the Hague Convention IV. Because these
con.ventions do not protect al-Qa'ida members, conduct toward
those members cannot violat~ section 2441.
• The interrogation of al-Qa'ida detainees does not
constitute torture within the meaning of section 2340 where
the interrogators do not have the specific intent to cause
"severe physical or mental pain or suffering." The absence
of specific intent (i.e., good faith) can be established
through, among other things, evidence of efforts to review
relevant professional literature, consulting with experts,
reviewing evidence gained from past experience where
available (including experience gained in the course of U.S.
interrogations of detainees), providing medical and
psychol.ogical 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 tho.se locations). A good faith belief need not be
a reasonable belief; it need only be an honest belief.
• The interrogation of members of al-Qa'ida, who are foreign
nationals, does not violate the Fifth, Eighth, and
Fourteenth Amendments. bec'ause those amendments do not apply.
The Du·e Process Clauses of the Fifth and Fourteenth
Amendments, which would be the only clauses in those
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amendments that could arguably apply to the conduct of
interrogations, do not apply extraterritorially. to aliens.
The Eighth Amendment has no application because it applies.
solely to those persons upon whom criminal sanctions have
been imposed. The detention of enemy combatants is in no
sense the imposition of a criminal sanction and thus the
Eighth Amendment does not apply.
• Taking all of the relevant circumstances into account (such
as the Government's need for information to avert terrorist
activities against the United States and its citizens, the
good faith efforts to avoid producing severe physical or
mental pain or suffering, and the absence of malicious or
sadistic purpose by those conduc.ting the interrogations),
the use of the techniques described below and of comparable,
approved techniques would not constitute conduct of the tYPe
that would be prohibited by the Fifth, Eighth, or F·ourteenth
Amendments even were they to be applicable.
• The use of the following techniques and of comparable,.
approved techniques in the interrogation of al-Qa'ida
detainees by the CIA does not violate any Federal statute or
·other law, where the CIA interrogators do not specifically
· intend to cause the detainees to undergo severe physical or
mental pain or suffering (i.e., they act with the good faith
belief that their conduct will not cause such pain or
suffering): isolation, reduced caloric intake·(so long as
the amount is calculated to maintain the general health of
the detainees), deprivation of reading.material, loud music
or white noise (at a decibel level calculated to avoid
damage to the detainees' hearing), the attention grasp,
walling, the facial hold, the facial slap (insult slap), the
abdominal slap, cramped confinement, wall standing, stress
positions, sleep deprivation, the use. of diapers, the use of
harmless insects, and the water board.
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