OLC Memo: Application of 18 U.S.C. §§ 2340-2340A to Certain Techniques That May Be Used in the Interrogation of a High Value al Qaeda Detainee

<p>An OLC memo concluding that the CIA&rsquo;s interrogation techniques do not violate the torture statute if used individually.</p>

Doc_type: 
Legal Memo
Doc_date: 
Tuesday, May 10, 2005
Doc_rel_date: 
Wednesday, April 15, 2009
Doc_text: 

CTUE}MAY o 2035 1746/ST. 1 7 45/NO. 67 30439716 P 3 000.0013 U.S. Department of Justice Office of Legal Counsel Office orthe Frirreipai Deputy .A5istantAttocney Creuertil glashingtm,D.C. 2020' May 10, 2005 MEMORANDUM FOR JO/IN A. RIZZO -SENIOR DEPUTY GENERAL COUNSEL, CENTRAL INTELLIGENCE AGENCY Re: Application of 18 U.S.C. if 2340-2340A to arattiaettittgrpicx That May Be Used in the Interrogation of a High Value al Qaeda Detainee You have asked us to address whether certain specified interrogation techriiques designed to be used on a high value at Qaeda detainee in the War on Terror comply with the federal prohibition on torture, codified at 18 US.C. §§ 2340-2340A. Our analysis of this question is controlled by this Office's recently published opinion interpreting the anti-torture statute, Sue Memorandum for Junes 13, Conley, Deputy Attorney General, from Daniel Levin, Acting Assistant Attorney General, Office of Legal Counsel, U.S.C. if 2340-23404 (Dec, 30, 2004) Re Legal Standards Applicable Under 18 www.usdoj.gov: ("2004 Legal Standardv Opinion"), aPailabk at (We provided a copy of that opinion to you at the time it was issued.) Much of the analysis from our 2004 Legal Standards Opinion is reproduced below; all of it is incorporated by reference herein. Because you have asked us to address the application of sections 2 340-2340A to specifie interrogation techniques, the present memorandum necessarily includes additional discussion of the applicable legal standards and their application to particular facts. We stress, however, that the legal standards we apply in this memorandum are fullyconsistent with the interpretation of the statute set forth in our 2004 Legal Standards Opinion and -evrtstitMe our authoritative view of the legal standards applicable under sections 2340- 25 40A. Our task is to explicate those standards in order to assist you in complying with the law. A paramount recognition emphasized in our 2004 Legal Standards Opinion merits re­ emphasis at the outset and guides our andysis: Torture is abhorrent both to American law and values andto international norms. The universal repudiation of torture is reflected not only in our criminal law, see, e.g., T8 us.c. § 2340-2340A, but also in international agreements, in See, e.g., United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984S. Treaty Doc, No; 100-20, 1465 U.14,T.S. 85 (mitred into force for U.S. Nov. 19, FROM St TE 15 00,1 Cr115)MAY 10 2005 17 :40/ST. 7:45/1 ,10. 5150420715 P RN centuries'of Anglo-American law, seere.g, Tohn H. Langbein, Torture and the Law of Proof Europe and&gland in the Ancien Regime (1271) ("Torture and the Law of Proof), and in the longstanding pokey of the United States, repeatedly and recently reaffirmed by the President.' Consistent with theseliorms, the President has directed unegnivocally that the United States is not to engage in torture.' The task of interpreting and applying sections 2340-2340A. is complicated by the lack of precision inthe statutory terms and the lade of relevant case law. In defining the federal crime of torture, Congress required that a defendant "spetifically fractal] to inflict severe physical or mental pain or suffering," and Congress narrowly defined "severe mental pain or suffering" to mean "the prolonged mental harm caused by" enumerated predicate acts, including "the threat of imminent death" and "procedtires calculatedto disrupt profoundly asenses or personality." 18 § 2340 (emphases added). These statutory requirements are consistent with 'U.S. obligations under the United Nations Convention Against Torture, the treaty that obligates the United States to ensure that torture.is a crime under US. law and that is implemented by sections2340-2340A. The requirements in sections 2340-2340A closely track the understandings and reservations required by the Senate when it gave its advice and consent to ratification of the Convention Against Torture. They reflect a clear intent by Congress to limit the scope of the prohibition on torture under U.S. law. However, Many of the key terms used in the statute (for example, "severe," "prolonged," "suffering") are imprecise and necessarily bring a degee of uncertainty to addressing the reach of sections 2340-2340A. Moreover, relevant judicial decisions in this area provide only li inited guidance' This imprecision and lack of judicial guidance, coupled with the President's clear directive that the United States dOes not condone or engage in torture, counsel great care in applying the statute to specific eonduct. We have ,attempted to exercise such oare throughout this Memorandum. With these considerations in mind, we turn to the particular question before us: whether certain specified interrogation techniques may be used by the Central Intelligence Agency ("CIA.") on a-high value. al Qaeda detainee consistent with the federal statutory prohibition on 1994) reonvention Against Torture" or "CAT'); International Covenant on Civil and Political 'Rights, Dec. 16, 1966, art, 7, 999 UN.T,S. 171. See, e.g., Statement on 'OMNI Nations International Day in Support. of Victims•of Tortum, 40 WeeklyCOmpalleesleoc. J167 (July 5, 2004) ("Freedom. from torture is an inalienable liturian i ...."); Statement on United Nations International Day in Support of Victims of Torture, 39 Weekly Corry. PrtS-Dec, 824 (lone 30, 2003) ("Torture anywhere is an affront to human dignity everywhere."); see also Letter of 7'ransmlitalfromPresident Ronald Reagan to the &nate (May 20, 1988),-in Message from the President ofthe United States ruminating the Convention Against Torture and Other Cruel, Inhuman or Degradtng Treatment or Pittrishn —reil ;S:— '11 -caty Doc, No 100-20, at ii (1988) ("Ratification of the Convention by the United States will clearly expressUnited States .oppositionto torture, an -abhorrent-psorice-still prevaIent-in the world today."). 3 See, e.g., 40 Weekly Comp, Pres. Doc. at 1167-68 ("America stands against and wilt not toleratetorture, , Torture is wrong no matter where it occurs, and the United States -will continue to lead the fight toeliminate it everywhere."). 4 What judicial guidance there is conies from decisions that apply a related but separate statute (the TortureVictims Protection Act (`TVPA"), 28 U.S.C. § 1350 note (2000)). These judicial. Opinions generally contain Liftle if any analysis of specific conduct or of the relevant statutory standards, TOP FROM SITE IS 00..0 cruni MAY 19 2005 17:46/ST. 1 :4S/NO: 616042.971S p torture, 18' LTS.C. §§2340-2340A.s For the reasons discussed below, and based on the representations we have received from you (or officials of your Agency) about the particular techniques in question, the circumstances in which they are authorized for use, and the physical and psychological assessments made of the detainee to be interrogated, we conclude that the separate authorized use of ea.ch of the specific teohniques at issue, subject to the limitations and safeguards described herein, would not violate sections 2340-2340A_' Our conclusion is straightforward with respect to all but two of the techniques discussed herein. As discussed below, use of sleep deprivation as an enhanced technique and use of the waterboard involve more substantial questions, with the waterboard presenting the most substantial question. We base our conclusions on the statutory language enacted by Congress in sections 2340- 2340k We do not rely on any consideration of the President's authority as Commander in Chief under the Constitution, any application of the principle of constitutional avoidance (or any conclusion about constitutional issues), or any argumente based on possible defenses of 'necessity' or self-deferise.' 5 We have previously advised you that the use by the CIA of the techniques or interrogation discussed herein is consistent vela the Constitution and applicable statutes and treaties, In the present memorandum, you have asked us to address only the requirements of 18 U.S.C. §§ 2340-2340A.. Nothing in this:memorandum or in our prior advice to the CIA should Ire read to suggest that the use of these techniques would conform to the requirements of the Uniform Code of Military Justice that governs members of the Armed BUMS or to United Stales obligatiOns under the Geneva Conventions in circumstances where those ConventionS would apply. We do not address the possible application of article 16 of the CAT, nor do we address any question relating to -conditions of confinementor detention, as distinct from the intennegation of detainees. We stress that our advice on the application of sections 2340.2340A does not represent the policy views of the Department of Justice concerning• interrogation practices, Finally, we note that section 6057(a) of H.R. 1268 (109th Cong. 1St Sess.), if it becomes law, would forbid expending or obligating fonds made available by that bill 'to subject any person in the custody or under the physical control of the United States to torture," but because the bill would define "torture" to have "the meaning given that teem in section 2340(1) of title 18, United States Code," § 60570)(l), the provision (to the extent it Might apply here at all) would merely reaffirm the preexisting prohibitions on torture in sections 2340-2340A. The present memorandum addresses only the separate use of each individual technique, not the combined usei part °tan integrated teginten ofinterrogation. You have informed us that most of the CIA's authorized techniqnes are designed to be used withparticular detainees in an interrelated or combined manner as part of an overall interrogation program, and you have provided us with a description of a typical scenario for the iCIA'si combined-use-of-teehniquesekgreeeted-P-eiper-oenliinzeteferse-eptieenregatione,Teekniquee i (Dec. 30, 2004) ("Background Paper). A full assessment of whether the use of interrogation techniques is consistent with sections 2340-2340A should take into account the potential combined effects of using multiple techniques on a given detainee, either simultaneously or sequentially within weoort time. We will addreis in a separate memorandum ialtether the combined use of certain techniques, as reflected in the Background Paper, is consistent with the legal requirements of sections .2340.2340A. In preparing the present memorandum, we have reviewed and carefully considered the report prepared by the CIA rrispector General, Counterterrorism Detentioa • Activities (teptember 2001-October 200,7),Na, 2003-7123-1G (May 7, 2004) CYO Report') a addressed below.i Various aspects of the 1G Report are TOI!„,SIREDIMMIliP4N PRON. SI T E 15 004 (T 1JC)MA1( 10 2005 17:47/ST, 17:457110. 6160420716 1' 6 A. In asking us to consider certain specific techniques to be used in the interrogation of a. particular al Qaeda operative, you have provided background information common to the use of all of the techniques. You have adviSed that these techniques would be used only on an individual who is determined to be a "High Value Detainee," defined as: a detainee who, until time of capture, we have reason to believe: (1) is .a senior 'member of al-Qai' da or an al-Qai'da associated terrorist group (Jernaah Islarnlyyah, Egyptian Islamic Jihad, al-Zargawi Group, etc.); (2) has knowledge of imminent terrorist threats against the USA, its military forces, its citizens andorganizations, orits allies; or that has/had direct involvement in planning and , preparing terrorist actions against the USA or its allies, or assisting the al-Qai'da leadership in planning and preparing such terrorist actions; and (3) if released, constitutes a dear and continuing threat to the USA. or its allies, Fax fi Acting Assistant Attorney General, Office of Legal Counsel, from 11 sistant General Counsel, CIA, at 3 (Ian. 4, 2005) (`Januirry 4or convenience, below we will generally refer to such individuals simply as detainees. You have also explained that prior to interrogation., each detainee is evaluated by medical and psychological professionals from the CIA's Office Medical Services COMS") to ensure that he is not likely to suffer any severs physical or mental pain or suffering as a result of interrogation. Mechnique-specific advanced approval is required for all "enhanced" measures and is conditional on on-site medical and psychological personnel confirming from direct detainee examination that the enhanced technique(s) is not expected to produce "severe physical or mental pain or suffering." As a practical matter, the detainee's physical condition must be such that these interventions will not have Ding effect, and his psychological state strong eriOugh that no severepsychological harm will result. OMS Guidelines on Medical . caul Psychological Support toDetainee Rendition, Interrogationand Detention at 9 (Dec. 2004) ("OMS Guideline) (footnote omitted). New detainees are also i subject-to-a-gal-intake-examinatiourvAich-inoludes-;-thereugh-initiel-medical-aswsmora i .. with a complete, documented history and physical addressing in depth any chronic or previous medical problems. This assessment should especially attend to cardio-vascular, pulmonary, neurological and musculoskeletal findings. . Vital signs and weight should berecorded;and blood work drawn...." a at 6. In addition, "subsequent medical rechecksduring the interrogation perioci'should be performed on a regular basis." a As an additional precaution, and to ensure the objectivity of their medical and psychological assessments, OMS personnel do not participate in administering interrogation techniques; their function is to monitor interrogations and the health of the detainee. T9,P.SE(CIETI 9,F0' „ritori $ 3 TE ISi004i ITVE110,1' 10 2005 17347/5T. 17:45/1,10. 0150420715 P 7 TOP RETIi0,411 The detainee is then interviewed by trained and'certified interrogators to determine whether he is actively attempting to withhold or distort information. If so, the on-scene interrogation team develops an interrogation plan, which may include only those techniques for which there is no medical or psychological Contraindication. You have informed us that the initial OMS assessments have ruled out the use of some---or ail—of the interrogation techniques as to certain detainees. If the plan calls for the use of any of the interrogation techniques discussed herein, it is submitted to CIA Headquarters, which must review the plan and approve the use of any of these interrogation techniques before they may be applied. See George 7. Tene Director of Centralinee Guidelinaer o aao s onducted Pursuant to the Jan. 28, 2003) n errogoanor written approve ont t ihector, Da Counterterrorist Center, with the concurrence of the Chid CTC Legal Group,” is required for the use of any enhanced interrogation techniquee. Id. We understand that, as to the detainee -here, this written approval has been given for each of the techniques we discuss, except the waterboard. We understand that, when approved, interrogation techniques are generally used in an escalating fashion, with milder techniqUes used first. Use of the techniques is not continuous. Pallier, one or more techniques may beap plied—during or between interrogation sessions­besed on the judgment of the interrogators and other team members and subject alWays to the monitoring of the on-scene medical and psychological personnel. Use of the techniques may be Continued if the detainee is still believed to haVe and to be withholding actionable intelligenee. The use of these techniques may not be continued for more than 30 days without additional -approval frOm CIA. Headquarters. See generally Interrogation Guidelines at 1-2 (descrileing approval procedures required for use of enhanced interrogation techniques). Moreover, even within that 30-day period, any further use of these interrogation techniques is discontinued if the detainee is judged to be consistently providing accurate intelligenee or if he is no longer believed to have actionable intelligence. This memorandum addresses the use of these techniques during no more than one 30-day period. We do not address whether the use of these techniques beyond the initial 30-day period would violate the statute. Medical and psyehological personnel are on-scene throughout (and, as detailed below, physically present or otherwise observing during the application of many techniques, including all techniques involving physical contact with detainees), and "Melly physical and psychological evaluations are continued throughout the period of [enhanced interrogation techlilltreTilse:" IG Report at 30 ri.3 5, see also George J, Tenet, Director of Central Intelligence, Guidelines on Confinement Conditionsfor CIA Detainees, at 1 (Jan. 28, 2003) ("Confinement GuidelinesaLMedical and as appropriate, psychological personnel shall be physically present at, or reasonably available to, each Detention Facility. Medical personnel shall check tne physical condition of each detainee at intervals :appropriate to the circumstances and shall keep appropriate records."); IC Report at 28-29.° In addition, u[i]ri each interrogation session la which an Enhanced Technique is employed, a contemporaneous record shall be created setting forth the nature and duration of each such teehnique employed." Interrogation Guidelines at 3. In addition to monitoring the application and effects of enhanced interrogation techniques, OMS personnel axe instructed more generally to ensure that "[Adequate medical care shall be provided to detainees, even those undergoing enhanced interrogation." OMS Guidelines at 10. •PROM 41 -TE 1 5 Do.) CTUE)MM' 10 2005 17:47/St 17:45/N0. 015042g7f5 p 8 TOP RETi RN At any time, any on-scene personnel (including the medical or psychological personnel, the chief of base, substantiVe experts, security officers, and other interrogators) can intervene to stop the use of any technique if it appears that the technique is being used improperly, arid okscene medical personnel can intervene if the detainee has developed a condition making the use of the technique unsafe. More generally, medical personnel watch for signs of physical distress or mental harm so significant as possibly to amount to the 'severe physical -or .mental pain or suffering" that is prohibited by sections 2340 -2340k As the OW Guidelines explain, "fm)edical officers must remain cognizant at all times of their obligation to prevent 'severe physical or mental pain or suffering."' OlviS Guidelines at 10. A.dditional restrictions on certain techniques are described below. These techniques have all been imported from military Survival, Evasion, Resistance, Escape ("SERE") training, where they ibeen en used for years on U.S. Jnilitary personnel, although with some significant differences described below. See to Report at 13-14. Althoughwe refer to the SERE experience below, we note at the outset an important limitation on reliance on that experience, Individuals undergoing SERE training are obviously in a very different situation fi-orn detainees undergoing interrogation; SERE trainees know it is part of a training program, not a real-life interrogation regime, they presumably know it will last only a short time, and they presumably have-assurances that they will not be significantly harmed by the training.. 13. You have described the specific techniques at issue as, follows: 9 9 The descriptions of these techniques are.set out in a number of documents including: AIL defines; Interrogations Guidelines: Confinement Guidelines; Background Paper,Letter fro Associate General Counsel, CT icling Assistant Attorney GenCrill, Office of g • alit l' rOLC") (July 30, 2004) ("July 30a; Letter front John A Rizzo, Acting Genscal Counsel, CIA, to 'scant Attorney eiteral, OLC (Aug. 2,2004) ("Aug-itst 2 Aim Letter"); Letter-from AssoCiatoial Counsel, CIA, toi Attorney General, OLC ugust IaNee); Letter froi .....;t:ieral Counsel, CIA, °rimy General, OLC (Aug a tier"); Letter from C.(7urisel, CIA, to D istain Attorney General, OLC . eraiter"); Letter froi Associate General Counsel, CIA, to Dan Levin, Acting Assistan t orney General, OLC (Oct. , II • ie era • eritter"). Several of the techniques are described and discussed in an earlier memorandum to you. See Memo= • urn for John 'Rizzo, AtAing Crgierai CottnseL Ccrl . 1 ' • • _Ageng,front.1Legal Counsel, Re: fhterrosation of al Qaeda Operative (Aug. 1, 2002) ("Interrogation Memorandum") (TS) . We have separately reanalyzed all techniques iii the present mernurandum, and we will note below where aspects of particular techniques differ from tliae addressed in the Interrogation Memorandum, hi Orderay avolifany Confusion in this extremely sensitive and important area, the discussions of the statute in the 2004 Legal Standards Opinion and this memorandum supersede that in the Interrogation Memorandum; however, this memorandum confirms the conclusion ofInterrogation Memorandum that the use of these techniques on a particular high value al Qacda detainee, subject to the limitations imposed herein, would not violate sections 2340-2340A. In some cases additional facts set forth below have been provided to us in communications with CIA personnel. The CIA has reviewed this ruemomadam and confirmed the accuracy of the descriptions and limitItions. Oar analysis assumes adherence to these descriptions and limitations. •Protyl SITS is DOJ (T06)14AY 10 2006 17:47/5T. 1714E/NO. 61'60429715 P g I. Dietary'fficznipillation. This technique involves the substitution of commercial liquid meal replacements for normal food, presenting detainees with a bland, unappetizing, but nutritionally complete diet. You have informed us,that the CIA believes dietary mata n. tlation makei other techniques, such as sleep deprivatipn, more effective: 340 August 25 -Letter at 4. Detainees on dietary Manipulation are permitted as much water as they want In general, minimum daily fluid and nutritional requirements are estimated using the following formula: • Fluid requirement: 35 mlikg/dity, This may be increased depending on aenbient temperature, body temperature, and level of activity. Medical officers must monitor fluid intake, and although detainees are allowed as much water as they want, monitoring of urine output may be necessary in the unlikely event that the officers suspect that the detainee is becoming dehYdrated. • Calorie requirement: The'IA generally follows as a. guideline a calorie requirement of 900 kcalfday + 1.0 kcal/kg/day. 'This quantity is multiplied by 12 fora sedentary activity level or 1.4 for: a moderate activity level. Regardless of this formula., the recommended minimum calorie intake is 1500 kcal/day, and in no event is the detainee allowed to receive less than 1000 kcaliday, 16 Calories are provided using commercial liquid diets (such as Ensure Plus), which also supply other essential nutrients and make for nutritionally complete meals:" .iMedical officers are required to ensure adequate fluid and nutritional intake, and frequent medical monitoring takes place while any detainee is undergoing dietary manipulation. All detainees are weighed weekly, and in the unlikely event that a detainee were to lose more than 10 percent of his body weight, the restricted diet Would be discontinued.- 2 NucliO.F. This technique is used to cause psychological diScomfort, particularly if a detainee, for cultural.or other reasons, is especially Modest When the technique is employed, clothing can be provided as an instant reward for' cooperation During and between interrogation ,sessions, a detainee may be kept nude, provided that ambient temperatures and the'health of the detainee permit. For this technique to be employed, ambient temperature must be at least 68.E!' No sexual abuse or threats ofsexuatabtise are permitted. Although each detention cell has full­ *flaw closeekiecitit video monitoring, the detainee is not intentionally exposed to other detainees or UMexposed toto te detention ficility Staff, We understandthat' interrogators 'are trained to I.WI It.ir-1 ifait Iv: malaTT.1 •a 111111 '.' 11511 El While detainees subject to dietary manipulation arc obviously situated differently from individuals whovoluntarily engage in ebinniercig iprOgraltis, we note that' Widely available ceettraereial Weight-loss programs in the United States employ diets of 1000 kcal/day for sustained periods of weeks or longer without requiring medical supervision. While we do not equate eanunercial weighUoss programs and this interrogation technique, the fact that these calorie levels are used in the weight-lnss progr -arns, in our view; is instructive in evaluating the medical safety of the intetrogation technique. 12 You have infoiit is very unlikely that nudity would be employed at ambient temperatures below 75°F, See October 1 Ifer at-1. For Adiposes -of otir analysis, however, we will assume that ambiemteraperatunes maybe as low es 68T, v- num SI TE 16 00J STUE)mAY 10 2005 17:42/ST. t7:4511410. 5151;4129fts P TOP/CRET/1111111111111WRN al irtreaendo or any acts of implicit or explicit sexual degradation," October 12 tier at 2. Nevertheless, interrogators can exploit the detainee's fear of being seen addition, female officers involved in the interrogation process may see the detainees naked; and for purposes of our analysis, we will assume that detainees subjected to nudity as au interrogation teohnique are aware that they may be seen naked by females. 3. Attention grasp. This technique consists of grasping the individual with both hands, one hand on each side of the collar opening, in a controlled and quick motion. In the same motion as the grasp, the individual is drawn toward the interrogator. 4. Walling. This technique involves the use ofa flexible, false walla The individual is placed with his heels touching the flexible Wall. The interrogator pullfthe individual forward and than quickly and firmly pushes the individual into the wall.: Itis the individual's shoulder blades that hit the wall. During this motion, the head and neck isupported with a rolled hoodor towel that provides a Cacollar effect to help prevent whiplash. To reducefurther the risk ofinjury, the individual is allowed to rebound from the flexible wall. Y©u have informed us that the false wall is also constructed to create a loud noise when the individual hits it in order to increase-the shock or surprise of tie technique. We understand that walling may be used whenthe detainee is uncooperative or unrezponsive to questions from interrogators.. Depending on theextent of the detainee's lack of cooperation, he may be walled one time during an interrogation. session .(one impact with the wall) or many times (perhaps 20 er 30 times) consecutively. .Weunderstand that this technique is not designed to, and does not, cause severe pain, even whenused repeatedly as you have described: Rather ; it is designed to wear down the detainee and toshock or surprise the detainee and alter his expectations about the treatment ho believes he will receive. In partieular, we specifically understand that-the repetitive use of the walling technique is intended to contribute to the shock and drama of theaexperienee, to dispel a detainee's expectations that interrogators will not use increasing levels offorce, and to wear down his resistance. It is not intended to—and based on ext3erieric,e you have informed us that it does nota--inflict any injury or cause severe pain ; Medical and psychological personnel are physicallypresent or otherwise observing whenever this technique is applied (as they are With any ­interrogation technique involving physical contact with the de.tainee). 5. Facial hold. This technique is used to hold the head immobile during interrogation. One open palm is placed on either side of the individual's face. The fingertips are kept well away from the individual's eyes. Facial slap'Lr insult slap. With (his technique, the interrogator slaps the individual's face with fingers slightly spread. The hand makes contact with the area directly between the tip iof-theindividull-ehin-an4-the-b,etiefa-oilthe.eeffespendinginfiebe---nteffegathus i "invades" the individual's "personal space." We understand that the goal of the faeial slap is not to inflict physical pain that is severe or lasting. Instead, the purpose of the facial slap"into induce shook, surprise, or humiliation. Medical and psychological personnel are .physically present orotherwise observing whenever this technique is applied. 7. Abdominal slap. In this technique, the interrogator strikes the abdomen of the detainee with the back of his open hand. The interrogator must have no rings or other jewelry on TOP S T/MILIO FROM SITE 15 00Ji (T1JE)MAy 10 2005 17:47/51% 17:45/N0, 0150420715 P TOP CMT/111=1/1\19redRN hit hand. The interrogator is positioned directly in front of the detainee, generally no more than 18 inches from the detainee. With his fingers held tightly together and fay extended, and his palm toward'the interrogator's own body, using his elbow as a fixed pivot point, the interrogator slaps the detainee in the detainee's abdomen. The interrogator may not use a fist, and the slap must be delivered above the navel and below the sternum. This technique is used to condition a detainee to pay attention to the interrogator's questions and to dislodge expectations that the detainee wilt not be touched, It is not intended to iand based on experience you have informed us that it does not—inflict any injury or cause any significant pain. Medical and psychological personnel are physically present or otherwise observing whenever this technique is applied. 8 • Cramped confinement. This technique involves placing the individual in a confined space, the dimensions of which restrict the individual's movement. The confined space is usually dark. The duration of confinement varies based upon the size of the container. For thelarger confined space, the individual can stand up or sit down; the smaller spaee is large enough for the subject to sit down. Confinement in the larger space may last no more than 8 hours at a time for no more than 18 hours a day; for the smaller space, confinement may last no more thantwo hours. Limits on the duration of cramped confinement are based on considerations of thedetainee's size and weight, how he responds to the technique, and continuing consultation between the interrogators and OMS officers? 9, Wall standing. This technique is used only to induce temporary muscle fatigue. The individual stands about four to five feet from a wail, with his feet spread approximately to shoulder width. Ms arms are stretched out in front of him, with his fingers resting on the wall and supporting his body weight. The individual is not permitted to move or reposition his hands or feet, 10. Stress positions. The are three stress positions that may be used. You haveinformed us that these positions are not designed to produce the pain associated with contortions or twisting of the body. Rather, like wall standing, they are designed to produce the physical discomfort associated with temporary muscle fatigue. The three stress positions are (I) sitting on the floor with legs extended straight out in front and arms raised above the head, (2) kneeling onthe floor while leaning back at a 45 degree angle, and (3) leaning against a wall generally about three feet away from the detainee's feet, with only the detainees -head touching the wall, while - his sav? s "ifeliandcufftd in front of tarn or &hind hts back, and while an interrogator stands next to him to prevent injury if he loses his balance. As with wall standing, we understand thatthesei'Rio are uio i to .• al a.muscle fatigue, ' 11. Water dousing. Cold water is pOered on the detainee either from a container or from a hOse without a nozzle'. This technique is intended to weaken the detainee's resistance and persuade him to cooperate with interrogators, The water poured on the detainee must be potable, In Interrogation memorandum, we also addressed the use Of harmless insects placed in a confinement box and concluded that it did not violate the statute.. We undersiand that—for reasons 'unrelated to any concern thatit might violate the statute--the CIA never used that technique and has removed it from the List of authorizedinterrogation techniques; accordingly, we do not addrm it again here. TOP CRET .1.0011 MAY 10 2005 17:47/37. 17:45/80-01e134-29715 P 12 TOP and the interrogators must ensure that water does not enter the detainee's nose, mouth, or eyes. A medical officer roust observe and monitor the detainee throughout application of this technique, including for signs of hypothermia. Antbient temperatures must remain above 64°F. If the detainee is lying on the floor, his head is to remain vertical, and a poncho, mat, or other material must be placed between him and the floor to minimize the loss of body heat. At the conolusion of the water dousing session, the detainee must be moved to a heated room if , necessary to permit his body temperature to return to normal in a safe manner. To ensure an adequate margin ofsa.fety, the maximum period of time that a detainee may be permitted to remain wet has been set at two-thirds-the time at which, based on extensive medical literature and experience, hypothermia could be expected to develop in healthy individuals who are submerged in water of the same temperature. For example, in employing this technique: For water temperature of 41°F, total duration of exposure may not exceed 20 minutes without drying and rewarming,. • For water temperature of 50°F, total duration of exposure may not exceed 4Q minutes without drying and rewarming. • For water temperature of 59°F, total duration of exposure may not exceed 60 minutes without drying and, rewarming. The minimunrpermissible temperature of the water used in. water dousing is 41°F,though you have informed us that in practice the water teMperature is -generally not below 50°F, 'since tap water rather than refrigerated water is generally used We understand that a version of water dousing routinely used in. SERE training is much more extreme in that itinvolves completeimmersion of the individual in cold water (where water temperatures may be below 40°F) and is usually performed outdoors where ambient air temperatures May be as low as l0°F. Thus, the SERE training version involves a far greater impact on body temperature; SERE training also involves a situation where the water may enter the trainee's nose and mouth." "You, have also described a variation of water dousing involving much smaller quantitiesof water; this Variation is known as "flicking." Flicking of Water is achieved by the interrogator 'wetting his fingers and then flicking them at the detainee, propelling droplets at the detainee. Flicking of water is done "man effort to create a distracting effect, to a itartle, to irritate, to instill humiliation, or,to cause temporary insult." October 22 (terat 2, Thowfttemed in the %flicking" variation ofWater dousing also must.be pota e and within the water and ambient au temperature ranges fOr water dousing described above, Although water may be flicked into the detainee's face with this variation, the flicking of water at all times is 'done in slid) a Manner as to avoid the inhalation or ingestion of water by the detainee. See rci. 11 See October 12Ritae'ter at 2-3.. Comparison of the time limits for water dousing with those used in SERE training is somew t ' cult as we understand that SERE training time limits are based on the ambientAir temperature"rather than water temperature. 19 P1,101+1 3-11E 15 00.1i CTUE'MAY IC 2005 17:47/3T. 17:45/NO, 613642'3715 1' 13 TOP S RETIIIMEMO RN 12. Sleep deprivation (more than 48 holm). This technique subjects a detainee to ani' extended period without sleep. You have informed us that the primary purpose of this technique is to weaken the subject and wear down his resistance. The primary method of sleep deprivation involves the use of shackling to keep the detainee awake. In this method, the detainee is standing and is handcuffed, and the handcuffs are attached by a length of chain to the ceiling. The detainee's hands are shackled is front of his • body, so that the detainee has approldmately a two to three-foot diameterof movement. The detainee's feet are shackled to a bolt in the floor. Due :care is taken to ensure that the shickles - are neither too lOose nor too tight for physical safety. We understand from discussions with OMS that the shackling does not result in arty significant physical pain'far the subject. The detainee's hands are generally between the level of his heart and his chin. In some cases, the detainee's hands may be raised 'above the level of his- head, but only fora period of up to two hours. All of the detainee's weight is borne by his legs and feet during standing sleep, deprivation. You have informed us that the-detainee is not allowed to hang fromPr support his body weight with the shackles. Rather, we understand that the shackles are only Used as a passiye means tPkeep. the detainee standing and thus to prevent him from'falling asleep; should the detainee begin to fall asleep, he will lose his balance and awaken, either because of the sensation of losing his balance or because of the restraining tension of the shackles, The use of this pasSive means for keeping the detainee awake avoids the need for using means that would require interaction with the detainee and might pose a danger of physical harm. We understand from you that no detainee subjected to this technique by the CIA has suffered any harm or injury, either by falling down and forcing the handcuffs to bear his weight or in any other way. You have assured us that detainees are , continuously monitored by closed­circuit television, so that if a detainee were unable to stand, he would immediately be removed from the standing position and would not be permitted to dangle by his Wrists.. We understand that standing sleep deprivation may cause edema, or swelling, in the lower extremities because it forces detainees to stand for an extended period of time, OMS has advised us that this condition is not painful, and that the condition disappears quickly once the detainee is permitted to he down, Medical pereonnel carefully monitor any detainee being subjected to standing sleep deprivation for indications of edema or other physical or psychological conditions, The OMS Guidelines include extensive discussion on medical monitoring of detainees being subjected to shackling and sleep deprivation, and they include specific instructions for medical personnel to req9401tematiye, non-standing positions or to take other actions, including ordering the cessation of steep deprIvation, in order to relieve or avoid serious edema or other 'significant medical conditions. So OMS Guidelines at 14-16. In lieu of standing sleep depriyation, a detainee may instead be seated on and shackled to -a-srnail-stool., The-stoorsupports-th• detainee-1s weight; but-is-too-small-topermittlie.subjectno balance himself sufficiently to`be able to go to sleep. On rare occasions, a detainee may also be restrained in a horizontal position when necessary to enable recovery from edema without interrupting the course of sleep deprivation," We understand that these alternative restraints, 16 Specifically, yoa have informed us that on three. occasions early in the program, the interrogation team and the attendant medical cfEcers identified the potemiallor unacceptable edema in the Jewer limbs of detainees TOP S TiMEMENe0 FROM SI TE t 5 003 (TtlE)MAY 10 20 1135 17:47/ST. 7:45/140. 6150429115 P 14 TOP RETMIEMN although uncomfortable, are not significantly painful, according to the experience and profesSional judgment of OMS and other personnel. We understand that a detainee undergoing sleep deprivation is generally fed by hand by 'CIA. personnel so that he need not be unshackled; however, "ifilprog;ress is made during interrogation, the interro ators may unshackle the detainee and let him feed himself as a positive ineentive." October 12atier at 4. lithe detainee is clothed, he wears an adult diaper under his pants. Detainees su ject to sleep deprivation who are also subject to nudity as a separate interrogation technique will at times be nude and wearing a diaper. If the detainee is wearing a diaper, it is checked regularly and changed as necessary. The use of the diaper is for sanitary and health purposes of the detainee; it is not used for the purpose of humiliating the detainee, and it is not considered to be an interrogation technigne. The detainee's skin eondition is monitored, and diapers are changed as needed so that the detainee does not remain in a soiled diaper. You have informed us that to date no detainee has experienced any skin problems resulting from' rom use of diapers. The Maximum allowable duration for sleep deprivation authorized by•the CIA is 180 hours, after which the detainee must be permitted to sleep without interruption for at least eight hours. You haVe inforined us that to date, more than a dozen detainees have been subjected to sleep deprivation of more than 48 hours, and three detainees have been subjected to sleep deprivation of more than 96 hours; the longest period of time for which any detainee has been deprived of sleep by the CIA is 180 hours, Under the CIA's guidelines, sleep deprivation could ' ' be returned after a period of eight hours of uninterrupted sleep, but only if OMS personnel specifically determined that there are no medical or psychological contraindications based on the detainee's condition at that time. As discussed below, however, in this memorandum we will evaluate only one application of up to 180 hours of sleep deprivation.' .‘ undergoing standing sleep dePdvalion, and in ordered penult the limbs to recover,withoutirnpairing interrogation requirements, the subjeasi Fax for Steven C:. Bradbury, Principal DeputyAssistantiGenetal, OLC, foo i ssistant General Counsel,. CIA, at 2 (Apr. 22, 2005)rAprit 22 •oam), In horizontal sleep epnvabort,itaince is placed prone on the floor on top ofa thicki. — towel or biet (a precaution designed to prevent reduction of body temperature through direct contact With the cell floor). The detainee's hands are manacled together and the arms placed ill an outstretched position,either extended beyordifteMiler extended to eithe. side orthe body—and anchored to a far point oa the floor in such a manner that the arms cannot be bent or used for balance or comfort. At the same time, the ankles are shackled together and the legs arc extended in a straight line with the body and also anchored to a far point on the floor in such a mannerlitatthe-tegmmnot-betent-or-usedfoi-balanc—orcomfort'-ou-hnve-speeifteally-infounad-us that-the-manactes-------and shackles are anchored without additional stress on any of the ann or leg joints that might force the limbs beyond nanuld_extension.oLosatekosion on anyjeikt.c/LThepositi on is sufficierkly uncomfortable to detainees to deprive them of unbroken sleep, white allowing their lower limbs to reamer from the effects•of standing sleepdeprivation,. We understand that all standard precautions and procedures for shackling are observed for both handsand feet While in this position. Id, You have informed us that horizontal steep deprivation has been used until the detainee's affected limbs have demonstrated sufficient recovery to return to sitting or standing steep deprivationmode; as warranted by the requirernr4S of the interrogation team, and subject to a detemtination by the medical officer that there is no contraindication to resuming other steep deprivation modes. Id 14 We express no view on whether any further use of sleep deprivation following a 180-hour application of the teciuiique and 8 hours of sleep would violate sections 234043404. Ten) s RETSMMit\loyaRN DOJ OLC 000809 (TEIE)MAT 1O. 2005 17 :47/ST. 17:45/NO. 5159429715 P 15 PROM SITE 15 O. O.i You have informed us that detainees are closely monitored by the interrogation team at all times (either directly orty closed-circuit video camera) while being subjected to sleep deprivation, and that these personnel will intervene and the technique will be discontinued if - Furthemore, as with all interrogation •there are medical or psychologieal contraindications. techniquei used by the CIA, sleep deprivation will not be used on any detainee if the prior medical and psychological assessment reveals any contraindications. 13. The 'tivaterboarrl" In this techniqtle, the detainee is lying on a gurney that is inclined at an angle of 10 to 15 degrees to the horizontal, with the detainee on his back and his head toward the lower end of the st,trney. A cloth is placed over the detainee's face, and cold water is poured on the cloth from a height of approximately 6 to 18 inches. The wet cloth creates a barrier through which it is difficult—or in some cases not possible to breathe. A single "application" of water may not last for more than 40 seconds, with the duration of an "application" measured from the moment when water---of whatever quantity—is first poured • • cloth until the moment the cloth is removed from the subject's face. See August 19 tier at 1. When the time limit is reached, the pouring of water is immediately discontinued and the cloth is removed. We understand that if the detainee makes an effort to ' defeat the technique (e.g., by twisting his head to the side and breathing out of the corner of his mouth); the interrogator may cup his bands around the detainee's nose and mouth to dam the runoff, in which case it would not be possible for the detainee to breathe during the appliettion of the water. in addition, you have informed us that the technique may be applied in a manner to defeat efforts by the detainee to hold his breath by for example, beginning an application of water as the detainee is exhaling. Either in the normal application, or where countermeasures are detainee's mouth and used, we understand that water may enter—and may accumulate in—the nasal cavity, preventing him from breathing." In addition, you have indicated that the detainee as a countermeasure may swallow water, possibly in significant qtlantities. For that reason, based on advice of medical personnel, the CIA requires that saline solution be used instead of plain water to reduce the possibility of hyponatretnia (i.e., reduced concentration of sodium iut the blood) if the detainee drinks the water. We understand that the effect oldie•waterboard is to induce a sensation of drovming. This sensation is based on a deeply rooted physiological response, Thus, the detainee experiences this sensationeven if he is aware that he is not actually drowning. We are informed thatriosen-extensixe experichee,the process is not physieally painful, but that it usually does cause fear and panic. The waterboard has been used many thousands of times in SERE training provided to American military personnel, though in that context it is usually limited to one or app Ica tortsi4 #.4 i wet r,S edt, 1' In most applications of this technique, including as it is used in SERE training, it appears that the individual undergoing the technique?is not in fact completely prevented from breathing, but his airflow is restricted_ by the wet cloth, creating a sensation of drowning. See IG Report at 15 (Willow is restricted ... and the tccluilcitte produces the sensation of drowning and suffocation."). For purposes of our analysis, however, we will 'assume. that the individual is unable to breathe during the entire period of any application of water during the watetboard technique, 111 The Inspector General was critical'of the reliance Oft the SERE:exiKriettOe with the waterboard in light of these and other differences in the appliCation oldie technique. We discuss the Inspector General•s criticisms TOP RETIMMIIIIWRN DOJ OLC 000810 0 2005 17:47/37.17:45/N0, 61613429715 P 11 FROM SI Te 15 Do.) tTUOMAY 1- TOP CRET/MIIIIIIN01,(RN You have explained that the waterboard technique is used only (1) the CIA has credible intelligence that a terrorist attack is imminent; (2) there are "substantial and credible indicators the subject has actionable intelligence that can prevent, disrupt or delay this attack"; and (3) other interrogation methods have'failed or are unlikely to yield actionable intelligence in time to prevent the attack. See Attachment to August 2 Rizzo . Letter. You have also informed us that the waterboard may be approved for use with a given detainee only during, at most, one single 30•day period, and that during that period, the waterboard technique may be used on no more than five days. We further understand that in any 24-hour period, interrogators may use no more than two "sessions" of the waterboard on a subject—with a "session" defined to mean the time that the detainee is strapped to the waterboard—and that no session may last more than two hours. Moreover, during any session, the number of individual applications of water lasting 10 seconds or longer may not exceed six. As noted above, the -maximum length of any application of water is 40 seconds (you have informed us that this maximum has rarely been readied). Finally, the total cumulative time of at i'ens of whatever length in a 24-hour period may not exceed 12 minutes. See August 19 aiterat 1-2. We understand that these limitations have been established with extensive input from OMS, based on experience to date with this technique and. OMS's professional judgment that use of the waterboard on a healthy individual subject to these limitations would be "medically acceptable:" See OMS Guidelines at 18-19. During the use of the waterboard, a physician and a psychologist are present at all times. The detainee is monitored to ensure that he does not develop respirator) , distress. If the detainee is not breathing freely after the cloth is removed from his face, he is immediately moved to a 'vertical position in order to clear the water from his mouth, nose, and nasopharynx. The gurney used for administering this technique is specially designed so that tins can be accomplished very quickly if necessary: Your medical personnel have explained that the use of the waterboard does are pose a small risk of certain poteetially significant medical problems and that certain measures taken to avoid or address such problems. First, a detainee might vomit and then aspirate the emesis. To reduce this risk, arty detainee on whom this technique will be used is first placed on a liquid diet. Second, the detainee Might aspirate some of the water, arid the resulting water in the lungs might lead .to pneumonia. To mitigate this risk, a potable saline solution is used in thethat a procedure Third, it is conceivable (thriugh, we understand from OMS, highly unlikely) detainee could suffer spasms of the larynx that would prevent him, from breathing even when the appAgatiorttofwater is stopped and the detainee is returned to an upright position. In the event of such spasms, a qualified physician would immediately intervene tOaadress the problem, and, if necessary, the intervening physician would perform a tracheotomy. Althotigh the risk of such ----spa-sinsis-cnsidered-remete-(-it-appartritly-has-rieverioCeursed-in-thoutands-ofinstances of SPRF training), we are informed that the necessary emergency medical equipment is always present- the waterboard: -See.genercilly. .. _ _i-although mot 'visible -to the-detaincci-du ri rig -any-application-dab at 17-20." farther below. Moreover, as noted above, the very different situations of detainees undergoing interrogation and military personnel undergoing. training eounsels against undue reliance on the experience in SERE training. That experiestco is nevertheless of some wine in evaluating the technique, 19 OMS identified other potential risks: atEraininall We understand that in many years of use on thousands of participants in SERE training, the waterboard technique (although used in a substantially more limited way) has not resulted in any cases of serious physical pain or prolonged 'mental harm. In addition, we understand that the waterboard has been used by the CIA on three ''gh level al Qaeda detainees, two of whom were subjected to the technique numerous times, and according to ONES, none of these three individuals has shown any evidence of physical pain or suffering or mental harm in the more than 25 months since the„technique was used o then As noted, we understand that OMS has been involved in imposing strict limits on the u e of the waterboard, limits that, when eombined with careful monitoring, in their professional ju gment should prevent physical pain or suffering or mental harm to a detainee. In addition, we u derstand that any detainee is closely monitored by medical and psychological personnel whene or the waterboard is applied, and that there are additional reporting requirements beyond the n rural reporting requirements in place when other interrogation techniques are used. See OMS Cure/dines at 20. As noted, all of the interrogation techniques described above are subject to numerous restrictions, many based on input Elm OMS, Our advice in this memorandum is based on our understanding that there will be careful adheren to all of these guidelines, restrictions, and safeguards, and that there will be ongoing monii.ring and reporting by the team, including OMS medical and psychological personnel, as well as prompt intervention by a team member, as necessary, to prevent physical distress or mental harm so significant as possibly to amount to the ".severe physical or mental pain or suffering" t is prohibited by sections 2340-2340A. Our _advice is also based on our understanding that interrogators who will use these techniques are adequately trained to understand that the authori d use of the techniques is not designed or intended to cause severe physical or mental pain or suffering, and also to understand and respect the medical judgment of OMS and the importan role that OMS personnel play in the program, You asked fOr cur adviceconcerning there interro ques in connection with their use on a specific high value.al tlaefda, detal ec tarn lirou.inforined us.that the In our limited experience, ottensivo sustairlid of the waterboard can introduce new risks. Most seriously, for reasons of physical fatigue ° psychological' resignation, the subject may situply give up, allowing excessive frtWtg of the ys and loss of consciousness. An un re-Sporisive subj8ct should be righted framedia ly, and the interrogatorshould deliver a sub­xyphoid thrust to expel the water. If this fails to estore normal breathing, aggressive medical intervention is required. Any, subject who has re elle,d this de• of compromise is not considered an appropriate candidate or the -w-ate aid, and the p. ysictan on the scene can not concur in the further use of the waterboard witho t specific [Chief, WS] consultation.and approval: , i• OMS eriddel Ines' at IS. OMS has also stated that "ibly da. s 3-5 of an aggressive program, cumulative effects become a potential concern. Without any hard data to q ieither tins risk or the advantages of this technique, we believe that beyond.this point continued intense Ovate rd applications may not be medically appropriate," Id at 19. As noted above, based on OMS input, the CIA has dopted and imposed a number of strict limitations on the frequency and duration of use of the waterboard. TOP RE AVM SITE 15 00.1 (TI/E)MAY 10 2005 17:4s/to. ei 60429718 P 18 TOP,ECCIET/11111111.111N0y(RN eda's plans to launch an attack within the United • States. According ti d extensive connections to various al Qaeda leaders, members of the Talliawi network, and had arranged meetinsii between an associate and o discuss such an attack. ylost-25 i Letter at 2.3, you advised us that medical and psychological assessments iere completed by a CIA ph sician and psychologist, and that based on this examination, the physician concludediedically stable and has no medical contraindications to interrogation, including the use of interro::.. • ! ,,A I ques" addressed in this memorandum." Medical and hydrological Assemm aached to August 2 .Rizzo Letter at I." The psychological assessment found iwas alert and oriented icentration and attention were appropriate." Id at 2. The psychologist further fours' ithought procesies were clear and logieal; there was no evidence of a thought disorder, delusions, or hallucinations[, and there were not significanalf depression, anxiety or other mental disturbance," Id. The psychologist evaluatedi'psychologically stable, reserved and defensive," and "opinedthat there was no evidenee that the use of the ap proved interrogation methods would cause any severe or prolonged psychological &turban iId. at 2. Our conclusions depend on these assessments, Before using the techniques on other detainees, the CIA would, need to ensure, in each case, that all medical and psychological assessments indicate that the detainee is fit to undergo the use of the interrogation techniques. tL Section 2340A provides that "{w)hoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life." 12 Section 2340(1) defines "torture" as "an 20 You have advised us that the watetboard has not been ie undersiand that there may have been medical reasons against using that teohnique in his ease. Of COWS; our advice assumes that the waterboard could be used only in tli4 absence of medical contraindications. examination-reportedMas obese ; and that he repotted a "$6 year history, of non-exertional chest pressures, which. are intermittent, a ....Wmpanied by nausea and depression an i[mess of jzig.ht 1, attached to August 2 Rizzo Letter, ..." Medical and Psychological Assessment a • 111111ht-hantevetamtodttal-a-iihysicia`nforthisproblem;"-andwas-uurtablettunwilling-to-bo-more-spee c-a the frequency or intensity of the aforementioned symptoms." fd }Ie also reported suffering "Iong.tenm medical and mental_probleme firma/11MMiac_cident !many yeusigq,",.4ndstateci that he took medication as a result of that accident until ten years ago. Id. He stated that he was not currently taking any medication, He also reported seeing a physician for kidayutolenis that caused Win to urinate frequently and complained of a toothache. Id. The medical onntirtatiostiowed a rash on his chest and shoulders and that inose and est were clear, (and) his.iheart sounds were normal with no imum= of gallops." Id The physician opo'likely has some reflux esophagitis and mild check follicutitis, bat doubttedj that he has any coronary pathology." Id 2/ Section 23404 provides in full: (a) Offense.--Whoever outside the United States commits or attempts to COlnalit torture shall be tined under this title or imprisoned not more than 20 years, or both, and if death results to any TOP RETIMIMIMIN9ye64- DOJ OLC 000813 FROM s T£ 15 004i MU MAY 10 2005 17 : A 7/5T. 17 : 4,511,10. 0100423715 P TOP RET/MMIIN0y0RN act committed by a person acting under color of law specifically intended to inflict severe physical or mental pain. or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control."" ' Congress enacted sections 2340-2340A to carry out the obligations of the United States under the CAT, See RR Cott Rep. No. 103-482, at 229 (1994). The CAT, among other things, requires the United States, as a state party, to ensure that acts of torture, along with attempts and complicity to commit such acts, are crimes under U.S. Jaw. See CAT arts. 2, 4-5. Sections 2340-2340A satisfy that requirement with respect to acts committed outside the United States,14 Conduct constituting "torture within the United States already wasand remains— — prohibited by various other federal and state criminal stattites. person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life. (b)Jurisdiction.--There is jtulscliction over the activity prohibited in subsection (a) if— (1) the alleged offender is a national of the United States; or (2)1Lie alleged offender ft preient In the United States, irrespective of the nationality of the victim or alleged offender. (c)Cortspiracy.—A. person who COnspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy. 18 U.S.C. § 2340A. 23 Section 2340 provides in full; As used in this chapter— (1)"torture" means an act Willraitted by a person acting under color of law specifically intended to inflict severe physical or mental pain or suffering (othec than pain or suffering incidental to lavAtl sarictions) upon'another person within his custody or physical control; (2)"severe Mental pain or offering° means the prolonged mental harm caused by or resulting from— (A) the intentional infliction or threatened infliction of severe physical pain or suffering; -(B) the administratiOn or application, or threatened administration or application, of naind-alieting substances or other procedures calculated.to disrupt profoundly the senses or the personality; ----(e)-the-threatofirnininent-death,-o i (D) the threat that another person will imminently be subjected to death, severe physical Pairt or suffering, Prihe...cin*.s11'44.9l19r13-143441P14111i54-altering substances or other procedures calculated to disrupt profoundly the senses or personality, and . (3)"United State means the several States of the United States, the District of Columbia, and the commonwealths, territories, and posseSsions of the United States. 18 U.S.C. § 2340 (as amended by Pub. L. No. 108 -375;118 Stat. 1811 (2004)). " Congress limited the territorial reach of the federal torture statute by providing that the prohibition applies only to conduct occurring "outside the United States,'i§ 2340A(a), which is currently defined in the . statute to mean outside "the several States of the United States, the District of Columbia, and the conunonWealths, territories, and possessions of the United States." 14 § 2340(3) (as amended by Pub. L No. 108.375, 118 Stat. 1811 TOPS CRETtininak RN a FTION S TE 15 DOJ (TUE)MAY 10 2005 17:47/ST. 17:45/NO. 6150420715 P 20 TOP RET/M111111N5C61- The CAT defines "torture" so as to require the intentional inflittion of "severe pain or 'suffering, whether physical or mental," Article 1(1) of the CAT provides: For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a 'confession, punishing him for an act he;or a third person has committed or is suspected of having comtnitted, or intimidating or coercing him or a third person, or fonany reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescenceof a, public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. The Senate included the following understanding in its resolution of advice and consent to ratification of the CAT: The United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the .administration or application, or threatened administration or 'application, of mind altering substances or other procedures calculated to disruptprbfoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another.person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profeundly the senses or personality, S. Exec. Rep. No, 101-30, at 36 (1990). This understanding was deposited with the U.S. instrument of ratification, see 1 830 U.N,T.S. 320 (Oct. 21, 1994), and thus defines the scope of . United States obligations under the treaty, See Relevance of Senate Ratification History to Treaty Interpretation, 11 Op. 0.L.C. 28, 32-33 (1987). The criminal prohibition against torture thatCogeescodifted in 18 U.S.C. §§ 2340-2340A generally tracks the CAT's definition of torture, subject to the U.S. undersfanding. Under tbelanguageadeptedby-Congress in sections:2340.-2340A to eergtitntn.inqnre; t conduct must be "specifically intended to inflict severe physical or mental pain or suffering." In the discussion that follows, we will separately consider each of the principal components of this key phrase: (1) the meaning of "severe"; (2) the meaning of "severe physical pain or suffering"; (2004)), You have advised us that the CIA's use of the ttelinirene addressed in this marigold= Would occur ".outside the United. States" as de led in sections 2340.2340A: (7VE)MhY 10 2005 17:48/57.17:46/1,1 0. 616042E1'716 P 21 FROM SITE 16 tra.1 TOPT/IIIIMINN9FRN (3) the meaning of "severe mental pain or suffering"; and (4) the meaning of "specifical ly intended." (1) The meaning of "severe." Because the statute does not define "severe," "we construe [the) term in accordance with FDIC v Meyer, 510 U.S. 471, 476 (1994). The common its ordinary or natural meaning." understanding of the term "torture" and the context in which the statute was enacted also inform -extremely our analysis. Dictionaries define "seVere (often conjoined with "pain") to mean " violent or intense: severe pairs." American Heritage Dictionary of the English Language 1653 (3d ed. 1992); see also XV Oxford English Dictionary 101 (2d ed. 1989) ("Of pain, suffering, loss, or the like: Grievous, extreme" and "Of circumstances . Hard to sustain or endure."). The common understanding of "torture" further supports the statutory concept that the pain or suffering must be severe. See Black's Law Dictionary 1528 (8th ed. 2004) (defining 'torture" as "rtjhe infliction of intense pain to the body or mind to punish, to extract a confession or infomation, or to obtain sadistic pleasure") (emphasis added); Webster 's Third New International Dictionary of the English Language Unabridged 2414 (2002) (defining "torture" as the infliction of intense pain (as from burning, crushing, wounding) to punish Or coerce someone") (emphasis added); C)'4ord American Dictionary and Language Guide 1064 (1999) (defining "torture" as "the infliction of severe bodily pain, esp. as a punishment or a means of persuasion") (emphasis added). Thus, the use of the word "severe' in the statutory prohibition on torture clearly denotes a sensation or condition that is extreme in intensity and difficult to endure. This interpretation is also consistent with the historical understanding of torture, which has generally involved the use of procedures and devices designed to inflict intense or extreme pain. The devices and procedures historically used were generally intended to cause extreme pain while not killing the person being questioned (or at least not doing so quickly) so that questioning could continue. Descriptions in Lord Hope's lecture, "Torture," University of Essex/Clifford Chance Leetute at 7-8 (Jan. 28, 2004) (deseribing the "boot;" which involved crushing of the victim's legs and feet; repeated pricking with long needles; and thumbscrews), and in. Professor 1.;artgbeire shook, Torture and the Law of Proof, cited supra p. /, make this clear. As Professor Langbein summarized: . The commonest torture deVices—stiappadoi 'Facts thumbscrews, legserews­ worked upon the extremities of the body, either by distending or compressing them.. we mayisuppose thatthe-t-e-m-o-dwattorturrwempreferred-beeause-they----- --- were somewhat less likely to maim or kill than coercion directed to the trunk of -quicidy adjusted -to take account of-the the tiodY, arid-because. -hey-Would tre victim's responses during the examination. TOP TO!, ,g3TillIMMILIC,14 Torture and the Law of Proof at 15 (footnote omitted). 75 The statute, moreover, was intended to implement United States obligations under the CA.T, which, as quoted above, defines "torture" as acts that intentionally. inflict "severe pain or suffering." CAT art. 1(1). As the Senate Foreign Relations Committee explained in its report recommending that the Senate consent to ratification of CAT: The [CAT) seeks to define "torture" in a relatively limited fashion, corresponding to the common understanding of torture as an extreme practice which is universally condemned... ... The term "torture,". in United States and international usage, is usually reserved, for extreme, deliberate and unusually cruel practices, for example, sustained systematic beating, application of electric currents to sensitive parts of the body; and tying up or hanging in positions that cause extreme pain. .i, S. Exec. Rep. No 101-30 at 13-14: See also David. P, Stewart, The Torture Convention and the Reception of International Criminal Law Within the United States, 15 Nova L, Rev, 449, 455 (1991) ('Sy stressing the extreme nature of torture, . [the) definition (of torture in the CAT) describes a relatiyely limited set of circumstances likely to .be illegal under most, if not all, domestic legal systems."). Drawing distinctions among gradations of pain is obviously not an easy task, especially given the lack of any precise, objective scientific criteria for measuring pain." We are given one aid in this task by judicial interpretations of the Torture Victims Protection Act ("TWA"), § 1350 note (2000). The TWA, also enacted to implement the CAT, provides a civil -remedy to victims of torture. The TWA defines "torture" to include: any act, directed against an individUal in the offender's custody or physical control, by which severe pain or suffering (other than pain or suffering atising l$ We emphatically art not saying that only such historical teclutiques—or similar ones—can constitute "torture" under sections 2340-2340k Knit the historical understanding of torture 4 relevant in interpreting Congreses intent in prohibithigthe-Crirrie of 7tortme." Cf; MarissetteR United State-s, 342 'U.S. 246, 263 (1952). ,T.-klea2,1-Ropite exiensiye efforts to develop objeptive criteria for measuring Rip, there is no clear, objective, consistent measurement. As one publication explains: iPain is a complex, subjective, perecptual phenomenon with a number of dimensions---intensity, , quality, tune course, Impact, and personal mearung—thaL are uniTatreltpertermed iby eachindiNideal--- Pain is a subjective experience and there is no way to and, thus, can only be assessed indirectly, abjectiveVoittantifif it: Consequently,. assessment of.a patient!s idepends.ontkpatigte4,..OvcIt communications, both venial and behavioral. Given pain's complexity, one must assess not only its somatic (sensory) component but also patients' moods, attitudes, coping efforts, resources, responses of family members, and the impact of pain on their lives. Dennis C. Turk, Assess the Person, Not Just the Pain, Pain: Clinical Updates, Sept. 1993 (emphasis added), This lack of clarity further complicates the effort to define "severe" pain or suffering. TOP RETIMMINOXRN 20 - • , 23 raphiicieJi (TUE)MAY 10 2005 17:48/51.17:45/110.'0160 4 22 7 15 P T011-SeeRETIIIMOSiN only from or inherent in, Or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as Obtaining from that individual or a third person information or a confession, punishing that individual far an act that individual or a third person has committed or is. ­suspected of having committed, intimidating or coercing that individual or a third person, or for any reason.based on discrimination of any kind . . 28 U.S,C. § 1350 note, § 3(bX1) (emphases added). The emphasized language is similar to section 2340's phrase "severe physical or mental pain or suffering."' As the Court of Appeals for the District of Columbia Circuit has explained: The severity requirement is crucial to ensuring that the conduct proscribed by the [CAT] and the TVPA is sufficiently extreme and outrageous ,to warrant the universal eondemnation that the term "torture"'both connotes and invokes. The drafters of the [CAT), as well as the Reagan Administration that signed • it, the Bush Administration that submitted it to Congress, and the Senate that ultimately ratified it therefore all sought to ensure that "only aets•of a certain gravity shall be considered to constitute torture." The critieal issue is the degree of pain and suffering that the alleged torturer intended to, and actually did, inflict upon the victim. The more intense, lasting, or heinous the agony, the more Likely it is to be torture. Price v. Socialist People's Libyan Arab Jamahiriya; 294 F.3d 82, 92-93 (D; C, Cir. 2002) (citations omitted), The 1) C. Circuit in Price concluded that a complaint that alleged beatings at the hands of police but that did not provide details concerning "the severity of plaintiffs' alleged beatings, including their frequency, duration, the parts of the body at which they were aimed, and the weapons used to carry them-out," did not suffice "to ensure that (it) satisfied) the TVPA's rigorous definition of torture." aat 93. - In Simpson v. Socialist People's Libyan Arab Jamahiriya, 326 F.3d 230 (D C. Cir. 2003), the D.C. Circuit again considered the types of acts that constitute torture under the TVPA definition. The plaintiff alleged, among other things, that Libyan authorities had held her See id at 232, 234. The court incommunicado and threatened to kill her if she tried to leave. acirifefflalied that "these alleged acts certainly reflect a bent toward cruelty on the part of their perpetrators," but reversing the district court, went on to hold that "they are not in themselves so celr sufficiently extrfrp, nre.nutra.geous-u-tazo stitule torture within thefikeaning of the [TWA)." Id at 234. Cases in which courts have found torture illustrate the extreme nature of conduct that falls withitt.the statutory definition, See, e.g., Hilao. estate oilviarcos, 103 F.3d 789, 790-91, 795 (9th Cir. 1996) (concluding that a course of conduct that included, among other things, severe beatings of plaintiff, repeated threats of death and electric shock, sleep deprivation, extended shackling to a cot (at times with a towel over his nose and mouth and water poured down his nostrils), seven months of onllnernent in a "suffocatingly hot" and 27 Section 3(b)(2) of the TVPA defines "mental pain or suffering" using substantially identical language to sectlea 2340(Z)'s defutitinn of "severe mental pain or suffering." TOP RETr Ort t3RN TOP CRET/11111•11MijORN - cramped cell, and eight years of solitary or near-solitary confinement ; constituted torture); Mehinovic v. Vuckovic, 198 F. Supp, 2d 1322, 1132-40, 1345-46 (ND, Ga. 2002) (concluding that a course of concitict that included-; anteing other things, severe beatings to the genitals, head, and.other parts ofthe body with metal pipes, brass knuckles, batons, a baseball bat, and various other items; removal of teeth with pliers; kicking in the face and ribs; breaking of bones and ribs and dislocation of fingers; cutting a figure into the victim's forehead; hanging the victim and beating him; extreme limitations of food and water, and subjection to games of "Russian roulette," constituted torture); Daliberti v. Republic of Iraq, 146 E Supp. 2d 19, 22-23 (D.D.C. 2001) (entering default judgment against Iraq where plaintiffs alleged, among other things, threats of"physical torture, such as cutting off... fingers, pulling out . • fingernails," and electric, shocks to the testicles); Cicippio v. Islamic Republic of Iran, 18 F. Supp. 2d 62; 64-66 (13.13.C. •998) (concluding that a course of conduct that included frequent beatings, pistol whipping, threats of imminent death, elecuic shocks, and attempts to force confessions by playing Russian roulette and pulling the trigger at each denial, constituted torture). (2) The meaning of "severe physical pain or suffering." -The statute provides a. specifie .definition of "severeettental pain or suffering," see 18 U.S.C. § 2340(2), but does not define-the terresevere physical pain or suffering." The meaning of "severe physical pain" is relatively straightforward; it denotes physical pain that is extreme in intensity and difficult to endure. In our 2004 Legal Standards Opinion, we concluded that under some circumstances, conduct intended to inflict "severe physical suffering" may constitute torture•ven itis not intended to inflict "severe physical pain." Id at. 10, That conclusion follows from the plain language of sections 2340-2340A. The inclusion of the words "or suffering" in the phrase "severe physical pain or suffering" suggests that the statutory category of physical torture is not limited to "severe physical pain." See, e.g., Duncan v. Walker, 533 U.S. 167, 174 (2001) (explaining presumption against surphiectge). "Severe physical suffering," however, is difficult to define with precision. As we have previously noted, the text of the statute and the CAT, and their history, provide little concrete guidance as to what Congress intended by the concept of "severe physical suffering:" See 2004 Legal Standards Opinion at 11. We interpret the phrase in a statutory context Where Congress expressly distinguished "severe physical pain or suffering" from "severe mental pain or suffering." Consexpently, we believe it a reasonable inference that "physical suffering" was intended by Congress to mean something distinct from "mental pain or suffering," We presume that where Congress uses different words in a statute, those words are intended to have differtenteneartings. See, e.gr.,Barnesv. United States, 199 F.1(13a6e1s9 (7th Cir. 1999) ccPifferent language in separate clauses in a statute indicates Congress intended distinct measiin s.' Moreover, even that Congress precisely defined "mental pain or suffering" in sections 2340-2340A, it is unlikely to have intender to undermine that carat!! definition ibyi Common dictionary definitions of "physical" support reading "physical suffering" to mean something different from mental pain or suffering. See, cg., American Heritage Dictionary of he English Language at 1366 ("Of or relating to the body as distinguished from the mind or spirit"); Oxford American Dictionary and Language Guide at 748 ("of or concerning the body (physical exercise; physical education}"). TOP RETRE=MiN9yokN. 22 DOJ OLC 000819 FROM 91TE 15 Dos (TUE)MAY 10 200$ t7:4/3/9T, 17:45(NO. 6 60429715 P 25 TOP CRET/EIMMEN9FORN including essentially mental distress within the separat; category of "physical suffering,"' In our 2004 Legal Standards Opinion, we concluded, based on the understanding that "suffering" denotes a "state". or "condition" that must be "endured" over time, that there is "an extended temporal element, or at least an element of persistence" to the concept of physical suffering in sections 2340-2340k Id at 12 8c n22. Consistent with this analysis in our 2004 Legal Standards Opinion, and in light of standard dictionary definitions, we read the word "suffering," when used in reference to physical or bodily sensations, to mean a state or condition of physical distress, misery, affliction, or torment (usually associated with physical pain) that persists for a significant petiod of time. See; e.g., Webster's Third New International Dictionaty at 2284 (defining "suffering" as "the.state or experience of one who suffers: the endurance of or submission to affliption, pain, loss"; 'a pain endured or a distress, loss, or injury incurred"); R071e1001 House Dictionaty of the English Language 572, 1229, 1998 (2d ed. unabridged 1987) (giving "distress," "misery," and "torment" as synonyms of "suffering"). Physical distress or discomfort that is merely transitory and that does not persist over time does not constitute "physical suffering" within the meaning of the statute, Furthermore, in our 2004 Legal Standards Opinion, we coneluded that "severe physical suffering" for purposes of sections 2340­2340A requires "a. condition of some extended duration or persistence as well as intensity" and Is reserved for physical distress that is 'severe' considering its intensity and duration or 'persistence, rather than merely mild or transitory." Id. at 12. We therefore believe that "severe physical suffering" under the statute means a state or condition of physical distress,' misery, affliction, or torment, usually invOlving physical pain, that is bOth extreme in intensity and significantly protracted in duration or persistent over time Accordingly, judging whether a particular state or condition may amount to "severe physical suffering" requires a weighing of both its intensity and its duration. The more painful or intense is the physical distress involved-4.e, , the closer it approaches the level of severe physical pain separately proscribed by the statute—the less significant would be the element of duration or persistence over time. On the other hand; depending on the circubstarices, a level of physical • n This conclusion is reinforced by the expressions of concern at the time the Senate gave its advice and consent to the CAT about the potential for vagueness irrincluding the -concept -of mental pain or suffering as adefinAxaLelement in any iriminal prohibition on torture, See, e.g., Convention AAainst Torture: Hearing .13efare the. Senate Comm. On Foreign Relation; tout Cont.. 8 to (I '90) (prepared starintent of Abraham Maar, Legal Adviser, Department of State: 'Me Convention's wording is not in.all respects as precise as we believe _...–necessari--(131ecause [thersinventionisequircustablishnientfif eriminsl penaltiev under our domestic taw we must pay particular attention to ihe meaning and Wain -elation of its provisions, especially concerning the standards by which the Convention will be applied as a matter of U.S, law, . • iprepared a codified proposal which , elarif"iesrite tldfiiiitibrilgiantaTil'ainlgriftMat.‘%14. itlI=ltliretrAftd ttatatfertrottWidtktarrh -livbaSic problem with the Torture Convention—one that permeates all our cencems--is its imprecise definition. of torture, especially as that term is applied to actions which result solely in mental anguish. This definitional vagueness Makt5it very doubtful that the United Stateican, consistent with Constitutional due process constraints, fulfill its obligation under the Convention to adequately engraft the definition of torture into the domestic criminal taw of the United States."), td at 17 (prepared statementof Mark. Richard: "Accordingly, the Torture Convention's vague definition concerning the mental suffering aspect of torturecannot be resolved by reference to established principles of international law. in an effort to overcome this unacceptable elementof vagueness in Article . I of the Convention, we have proposed an understanding which defines severe mental pain constituting torture with sufficient specificity meet Constitutional titre process requirements."). distress or discomfort that is lacking in extreme intensity may not. constitute "severe physical suffering" regardless of its duration—i.e., even if it lasts for a. very long period of time In defining conduct proscribed by sections 2340-2340A, Congress established 2, high bar, The Ultimate question is whether the conduct "is sufficiently extreme and outrageous to warrant the universal condemnation that the term 'torture' both Connotes and invokes!' See Price v. Socialist People'.5. Libyan Arab Jamahiriya, 294 F3 d at 92 (interpreting the TVPA); ef Iviehinovic v. Yuckovic, 198 F. Supp. 2d at 1332-40, 1345-46 (standard met under the TYPA by a course of conduct that included severe beatings to the genitals, head, and other parts of the body with metal pipes•nd various other items; removal of teeth with pliers; kicking in the face and ribs; breaking of bones and ribs and dislocation of fingers; cutting a figure into the victim's forehead; hanging 'the victim and beating him; extreme limitations of food and water; and subjection to games of "Russian roulette"). (3) The meaning of "severe mental pain or suffering." Section 2340 defines "severe mental pain or suffering" to mean: the prolonged mental harm caused by or resulting from— (A) the intentional indiction or threatened infliction of se ere physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt prOfoundly the senses or the personality; (C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or pe,rsonality[,] U.S.C. § 2340(2). Torture is defined under the statute to include an. act specifically intended to inflict severe mental pain or suffering. See id, § 2340(1), An important preliminary question with respect to this definition is whether the statutory list of the four "predicate acts" in section 2340(2XA)-(D) is exclusive. We have concluded that Corwiras_44erided the ,list of predicate acts tp be exclusive—that is, ,to satisfy the definition of "severe mental pain or suffering" under thestatute, the prolonged mental harm must be caused by acts failing within one of the four statutory categories of predicate acts. 2004 Legal -"Srandards-Opiltiutratil .a* ' Itrsiontased-on-the-clezr-languageofthe-itatute; --which provides a detailed definition that includes four categories of predicate acts joined by the disjunctive and' does' not Ontdn a catchall provisinri or any other language suggesting that additional acts might qualify (for example, language such as "including" or "such acts a.s")• Id' *` These four eategorieS of predicate acts "are members of ati `associated group or series,' justifying the inference that-items not mentioned were exclu4e4 by &liberate choice, not inadvertence." Barnhart v. Peabody coal ca., 537 U.S. -149, 168 (2003) (quorinE Untied States v. Vann, 535 U.S. 55, 65 (2002)y See atso, TO1306:RETAMMEIN ORN 24 F11101,1 SITE 15 604 (T1/E)HAY 10 2005 .17 :481ST- 17:45/N0. 6150420715 P 27 TOP FEDINIIIMN9176IN Congress plainly considered very specific predicate acts, arid this definition tracks the Senate's understanding concerning mental pain or suffering on which its advice and consent to ratification of the CAT was conditioned. The conclusion that the list of predicate acts is exclusive is consistent with both the text of the Senate's understanding, and with the fact that the •understanding was required out of concern that the CAT's defirtiticia of torture would not otherwise meet the constitutional requirement for olarity in defining crimes. See 2004 Legal Standards Opinlan at 13. Adopting an interpretation of the statute that expands the list of predicate acts for "severe mental pain or suffering". would constitute an impermissible rewriting of the statute and would introduce the very imprecision that prompted the Senate to require this understanding as a condition of its advice and consent to ratification of the CAT! Another question is whether the requirement of "prolonged mental harm" caused by or resulting from one of the enumerated predicate acts is a separate requirement, or whether such "prolonged mental harm" is to'be presumed any tithe one of the predicate acts Occurs. Although it is possible to read the statute's reference to "the prolonged mental harm caused by or resulting from" the predicate acts as creating a.statutorypresumption that each of the predicate acts will always cause prolonged mental harm, we concluded in our 2004 Legal Standards Opinion that that was not Congress's intent, since the statutory definition ornsevere mental Pain or suffering" was meant to track the understanding that the Senate required as a, condition to its advice and consent to ratification of the CAT; in order to'constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffeeing refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pairtor suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality. Exec. RIp, No, 101-30 at 36., As we previously stated, "[vale do not believe that simply by addirieWid 'the' before 'whinged harin,' Congress intended Material change in the definition of mental pain or suffering as articulated in the Senate's understanding to the CAT." 2004-Legal-Standards-Opini6n-at431d. "The-definitie rnof-to ft-tire-emanates -d i _ . article 1 of the [CAT]. Tice definition for 'severe mental pain arid suffering' incorporates the [above mentioned] undeastandine -S-. R=ep; No: 1.03 -107-, -ata58-59-(1993) (emphasis ,added). This Understanding, embodied in the statute; defines the obligation undertaken by the United States, Given this understanding, the legislative history, and the fact that section 2340(2) defines "severe mental pain or suffering" carefully in language very similar to the understanding, we believe that Congress did not intend to create a presumption that any time one of the'predicate Leathe .nan v. Tarrant County Waraotics Intelligence & Coordination Unit, 507 U.S, 163, 168 (1993); 2A Norman. 7. Singer, Statutes and Statutory Construction § 47.23 (6th ed. 2000). Nor do we see any "contrary indications" that. Would rebut this inference. Vona, 535 U.S, at 65. 'Tao OJ OLC 000822 TOP REAMEIrioydRN acts occurs, prolonged mental harm is automatically deemed to result. See 2004 Legal Standards Opinion at 13-14. At the same time,. it is conceivable that the occurrence of one of the prediCate acts alone 001.114i-depending on the circumstances of a particular case; give rise to an inference of intent to cause prolonged mental harm, as required-by the statute. Turning to the question of what constitutes "prolonged mental harm paused by or resulting from" a. predicate act, we have concluded that Congress intended this phrase to require mental "harm" that has some lasting duration, Id at 14. There is little guidance to draw upon in 'interpreting the phrase "prolonged mental harm," which does not appear in the relevant medical. literature. Nevertheless, our interpretation. is consistent with the ordinary meaning of the statutory terms. First, the use of the word "harm"—as opposed to simply repeating "pain or suffering"—suggests some mental damage or injury. Ordinary dictionary definitions of"harm," such as "physical or mental damage: injury:' Webster's Third New International Dictionary at 1034 (emphasis added), or Ipiltysical or psychologioal injury or damage," American Heritage Dictionary of the English.Language at 825 (emphasis added), support this interpretation, Second, to 'prolong" means to "lengthen in time," "extend in duration," or "draw out," Webster s Third New International Dictionary at 1815, further suggesting that to be "prolonged," .the mental damage must extend for some period of time. This damage need not be permanent, but it must be intended to continue for a "prolonged" period of time! 1 Moreover, under section 2340(2), the "prolonged mental harm" mustle "caused by" or "resulting from" one of the enumerated predicate acts. As we pointed out in 2004 Legal Standards Opinion, this conclusion is not meant to suggest that, if the predicate act or acts continue for an extended period, "prolonged mental harm" cannot occur until after they are completed. Id at 14-15 n.26. Earlyoccurrences of the predicate aot could cause mental harm that could continue—and become prolonged—during the extended period the predicate acts continued to occur, Seer e.g;, Sackie v. A.slicrof,t, 270 F, Supp. 2d 596, 601-02 (ED, Pa. 2003) (finding that predicate acts had continued over a three-to-four-year period and concluding that "prolonged mental harm" had occurred .during that time). Although there are few judicial opinions discussing the question of "prolonged mental harm,' those cases that have addresSed the issue are consistent with our view. For example, in-the TVPA case ofildeliinovic v. Vuckavic, the district court explained that: - Although we do not suggest that the statute is limited to such eases, development of a mental disorder--such as post-tratimatic stress -disorder or perhaps chronic depression--could constitute "prolonged mental ham."See tric Association, Diagnostic andStatistical Manual ofklental Disorders 169-76, 463-68 (4thed. 200% ("13811:1-1V-Trt,"), See also e.g., Report 6f the SpecialRapporteuron nrture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Doc, A/59/374, at 14 (1004) (-The niost common diagnosis of _pV.shitiri..Mgptoms among torture furyivols is. sail:1,ln be pat:traumatic stress disorder."j,i also Metin Basogiuet al, Torture and Mental Health: A Research Overview; in Ellen Gellity et al eds.„ The Mental Health Consequences of Torture 48-49 (2001.) (referring to findings of higher rates of post-traumatic stress disorder in riteiroft);MiffS1 -11-iiirft at-nye/OW[6W Effeett etr-Turraee kr&Virtotdltudy ofTortured and Non-Tortured Non-Political Prisoners, in Matin BasOglu ed., Torture and lts Consequences: Cur:rentTrearmentApprouches 77 (1992) (rerming to findings of post-traumatic stress disorder in torture survivors). OMS has advised that--aithough the ability to predict is imperfect—they ueuid object to the initial. or continued use of any technique if their psychologcal assessment of the detalnce Suggested that the use of the technique might result in PTO, chronic depression; or other oondition that could constitute prolonged mental harm. TOP OCIETIIIIMIWIOpiN 26 6160420715 P 29 (TQE)MAY 10 2005 17 :48/ST. 7 :45/NO. FROM S T5 15 00J . TOP TANIMENINVOM. [The defendant] also caused or participated in the plaintiffs' mental torture. Mental torture consists of "prolonged mental harm caused by or resulting from: the intentional infliction or threatened infliction of severe physical pain or As set out above, plaintiffs suffering; . . . the threat of imminent death . inoted in their testimony that they feared that they would be killed by [the defendant] during the beatings he inflicted or during games of "Russian roulette," Each plaintiff continues to seer long-term psyehologital harm as a result of the ordeals they suffered at the hands of efendant and others, 346 (emphasis added; first ellipsis in original). In reaching its conclusion,198 F. Supp. Mat 1­ the court noted that each of the plaintiffs were continuing to suffer serious mental harm even ten See id at 1334-40. In each case, these mental effects were years after the events in question. See also SacIde v. AshcrOft, 270 continuing years after the infliction of the predicate acts. P. Supp. 2d •at 59798, 601-02 (victim was kidnapped and "forcibly recruited" its a child soldier -the age of 14, and, over a period of three to four years, was repeatedly forced to take narcotics at and threatened with imminent death, all of which produced "prolonged mental harin" during that time). Conversely, In Villeda Aldana v. Fresh Del Monte Noduce, Inc., 305 PaSupp. 2d 1285 (S.D. Fla. 2003), the court rejected a claim under the TWA brought by individuala who had been held at gunpoint overnight and repeatedly threatened with death. While recognizing that the plaintiffs had experienced an "ordeal," the court concluded that they had failed to show that their experience caused lasting damage, noting that "there is simply no allegation that Plaintiffs have suffered any prolonged mental harm or physical injury as a result of their alleged intimidation," Id at 1294-95. (4) The meaning of "specifically intended " It is welt recognized that the term "specific intent" has no clear, settled definition, and See 1 Wayne R. LaFave, Substantive Criminal Law that the courts do not use it consistently, § 5.2(e), at 355 & n.79 (2d ed. 2003). "Specific intent" is most commonly understood, however, "to designate a. special mental element which is required above and beyond any 'mental state required with respect to the actus reus of the crime," Id. at 354; see also Carter v. United States, • 530 U.S. 255, 268 (2000) (explaining that general intent, as opposed to specific intent, requires actus reus of the crime"). "that the defendant possessed knowledge [only] with respect to the result constitutes Sonaeanaasta. auggest OW only a conscious qaire to produce the proscribed United States specific intent; others suggest that even reisbaable foreseeability ray suffice. In v. Bailey, 444 U.S. 394 (1980), for exarriple; the Court suggested that, at least "WTI a general "aFaifitititeriel-rarquires that-one-conseieusiy-desire-the-mull,-Jd-_at403.A35__.__ Wif§677d, iat 405,i The Court compared the common law's mens rea concepts of specific intent and general intent to trielbilUPkiarCtide ftTENS reazoinepts ofactingpurposefulty , and-actingtnowingly. _See id at 404-05, "[A] person who causes a particular result is said to act purposefully," wrote the ourt, "if 'he consciously desires that result, whatever the likelihood of that result happening from his conduct"' Id at 404 (internal quotation marks omitted). A person "is said to actfrom his knowingly," in contrast, "if he is aware 'that that result is practically; certain to follow conduct, whatever.his desire may be as to that result.' Id (internal quotation'marks omitted). The Court then stated: "In a general sense, 'purpose' corresponds loosely with the Common-law concept of speCific intent, while 'knowledge', cvesponds loosely with the concept of genera[ TAP q. . RTIIIMIKUNOFAN intent." Id at 405. In contrast, cases such as United States v. Netswender, 590 F.2d 1269 (4th Cir. 1979), suggest that to prove specific intent it is enough that the defendant simply have "knowledge or notice" that his act "would have likely resulted in" the proscribed outcome. .1­ d, at 1273. "Notice," the court held, "is provided by the reasonable foreseeability of the natural and probable consequences of one's acts." Id As in 2004 Legal Standards Opinion, we will not attempt to ascertain the precise meaning of "specific intent" in sections 2340-2340A. See rd: at 16-17. It is clear ; however, that the necessary specific intent would be present if an individual perfbrmed an act and "consciously desirefdr that act to inflict severe physical or mental pain or ;offering. 1 LaFave, Substantive Criminal Law § 5.2(a), at 341. Conversely, if an individual acted in good faith, andonly afterreasonable investigation establishing that his conduct would not be expected to inflict severe physical or mental pain or suffering, he would 1710t have the specific intent necessary to violate .sections 2340-2340A Such an individual could be said neither consciously to -desire the proscribed result, see, e,g., Bailey, 444 U.S_ at 405, nor to have "knowledge or notice" that his act "would likely have resulted in" the proscribed outcome, Neiswender, 590 F.2d at 1273. As we did in 2004 Legal &radar* Opinion, we stress two additional points regarding specific intent; First, specific intent is distinguished from motive. , A good motive, such as to protect national security, does not: excuse conduct that is specifically intended to inflict severe physical or mental pain or suffering, as proscribed.by the statute. Second, specific intent to take a given action can be found even if the actor would take the action only upon certain conditionS.Cf. e.g., Holloway v. United States, 526 U,S. 1," 1.1 (1999) ("IA] :defendant may not negate a proscribed intent by requiring the victinrto comply with a condition the defendant has no right toimpose."). See also id at 10-11 & rm. 9-12; Model Penal Code § 2.02(6). Thus, for example, the fact that a victim might have avoided being tortured by cooperating with the perpetrator would not render permissible the resort to conduct that would otherwise constitute torture underthe statute. 2004 Legal Standards Opinion at 17'Z In the discussion that follows, we will address each of the specific interrogation i' techniques you have described. Subject to the understandings, limitations, and safeguards disdussed herein, including ongoing medical and psychological monitoring and team intervention as necessary, we conclude that the authorized use of each of these techniques, cOnsidered individually, would not violate the. prohibition that Congress has adopted in sections 2340-234460a4s.conclusiv is straightforward:with respect to alt but twii, of the techniques. Use of sleep deprivation as an enhanced technique and use of the waterboard, however, involve more subStantial questions, with the waterboard presenting the most substantial question. Although we ofthesc-tmlatiqueseTtudta.stmditittirlifttSiAtot yoti have'described—would not•violate the statute, the issues raised by these two techniquescounsel great caution' in their tis;.ittolading-bbtEi anitil .gifefEat t"O thelimitatitnivand 31 The Criminal Division of the Department of Justice has reviewed this memorandum and is satisfied that our general interpretation of the legal standards under sections 2340-2340A is consistent with its concurrence in the 2004 Legal Standards Opinion, TOP"SE&Ti OXRN 2/3 1, $1 CTUE)MAY 10 2005 17:45/5T. 17:45/N0- 5160429715 FROM SITE 15 004 TOP CRETIMMEU0iF6N restrictions you have described and also close and continuing medical and psychological monitoring. Before addressing the application of sections 2340-2340A. to the specific techniques in titiestion, we note certain overall features of the CIA's approach that are significant to our conclusions. Interrogators are trained and certified in 'a course that you have informed us currently lasts approximately four weeks. Interrogators (and Other personnel deployed as part of this program) are required to review and acknowledge the applicable interrogation guidelines. See Confinement Guidelines at 2; Interrogation Cruidelinesat / {"Tire Director, •LICI me..iinterro ation ofCounterterrorist Center shall ensure that all personnel i persons detained pursuant to the authorities set forth in have been appropriately , screened (from the medical, psyc o ogres an.+ security sten points have reviewed these Guidelines, have received appropriate training in their:implementation, and have completed the attached Areknowledgernent."). We assume that all interrogators are adequately trained, that they understand the design and purpose of the interrogation techniques, and that they will apply the techniques in accordance with their authorized and intended use. In addition, the involvement of medical and psychologic-al personnel in the adaptatich and application of the established' SERE techniques is particulaely noteworthy for purposes of our analysis." Medical personnel have been involved in imposing limitations on—and requiring changes to certainprocedures, particularly the use of the -waterboare We have had extensive " As.noted above, each of these techniques has been adapted (although in some cases with significant 'modifications) from SERE training. Through your consultation with various individuals responsible for such training, you have learned facts relating to -experience with them, which you have reported to us. Again, fully recognizing the limitations of reliance on this.experience, you have advised us thatthese techniques have been used as elementa ofa course of training without any reported:incidents of prolong i - •f the physical pain, injury, or suffering. With respect to the psychological imps i SERE school advised that during his three and a half years in that position,hetrained 10,000 students, on y tho of -Whom dropped out following use of the techniques, Although on rare occasions students temporarily postponed the udY is were able toremainder of the training and received psychological counseling,'we tinders ito has-had over finish the progrant without any indication of subsequent.mental health effects. i ten years experience with SERE training, told you that he was not aware of any individuals who.completed the program suffering any adverse mental health effects (though he advised. of one person. who did not complete the iiwithout training who bad an adverse mental health reaction that lasted two hours and i.14t1.1114I 'cm and with no further syn*torns repotted). ith Ito has had experience with all of the techniques discussed herein, has advised that the use of these procedures has not resulted in any reported instances of prolonged mental harm and very few instances of immediate --Of-26;825:studentairrikir-Force-SUs training-Erom airdiempbraryrdiMTplythOingtatreSpOrtsennhvtraining.were pulled from the program for psychological reasons (specifically, although I 99i through 2001, only 0.14% nte-oorttactwith-psyzhology se es onl .3% ofthoseintlividaals_wilksjia=111.411A91 16-01.w 'Tressed confidence—based on from the program). We understand that th•i idid not cause any long-term psychological harm and debriefing of students and other information—that the that if there arc any long-term psychological effects of the training at an, arty "are certainly mirtirnal,' 34 We note that this involvement of medical personnel in designing Safeguards for and in monitoring ' cant difference from earlier uses of the techniques catalogued in the implementation ot the procedures is a signifi Inspector General's Repott. See IG Report at 21 n.26 ("CMS was neither Consulted nor involved in the initial in analysis of the risk and benefits of [enhanced interrogation techniques), nor provided with the OTS report cited the CIC opinion [the Interrogation Menforandumr). Since that time, based on comments front OMS, additional constraints have been imposed on use of the techniques. 43 TAIIMINEWO 6n4 TOP,SE&Tifilainif,19F6RN meetings with the medical personnel involved in monitoring the use of these techniques. It is clear that they have carefully-worked to ensure that the techniques do not result in severe physical or mental pain or suffering to the detainees." Medica[ and psychological personnel evaluate each detainee before the use of these techniques on the detainee is approved, and they continue to monitor each detainee throughout his interrogation and detention_ Moreover, medical personnel are physically, present throughout application of the waterboard (and present or otherwise observing the use of all techniques that involve physical contact, as discussed more fully above), and they carefully monitor detainees who are undergoing sleep deprivation.or dietary manipulation. In addition, they regularly assess both the medical literature and the experience with detainees OMS has specifically declared-that 44•1m)edieal officers must remain cognizant at all times of their obligation to prevent 'severe physical' or mental pain or suffering."' OMS Guidelines at 10. In fact, we understand that medic-al and psychological personnel have discontinued the use of techniques as to a particular detainee when they believed he might suffer • such pain or suffering, and in certain instances, OMS medical personnel have not cleared certain detainees for some—or any techniques based on the initial medical and psychological assessments. They hive also imposed additional restrictions on the use of techniques (such as the waterboard) in order to protect the safety of detainees, thus reducing further the risk of severe pain or suffering. You have informed us that they will continue to have this rote sad authority. We assume that all interrogators understand the imPortant role and authority of OMS personnel and will cooperate with OMS in the exercise of these duties Finally, in sharp contrast to those praetices universally condemned as torture over the centuries, the techniques we consider here have been carefully evaluated to avoid causing severe pain or suffering to the detainees. As OMS has deseribed those techniques as a group: In all instances the general goal of these techniques is a.psychological impact, and not some physical effect, with a specific goal of "clislocat[ing) [the detainee's] expectations regarding the treatment he believes he will receive. . . ." The more physical techniques are delivered in a manner carefully limited to avoid serious pain. The slaps, for example, are designed "to induce shock, surprise, and/or humiliation" and "not to inflict physical pain that is severe or lasting?' Id. at 8;.;9. '-v­ 430-L-1Va are mindfubthat, historicallyvmedical: personnel have sometimes been used to enhance, not prevent, torture—for example, by keeping a torture victim alive and conscious so as to extend his suffering, it is absolutely clear, as you have informed us and as our own,dealings with OMS perscmnel have conlirmed, that the involvenient iuf-Olais-inteaded -te-reventharertathedetainteaandnettrreirtend-orincrtase-paitrer-sttficrinv-A-s-die-OMS--------Guldelines explain, "OMS is responsible for assessing and monitoring the health of all Agency detaine% subject to !o.tlb-4DCajkggQ.ggbli-lPtittklMgkd ,fArAf.,t.gmgtin_&thitikaaLtoj-xedzsktdarg.cgoallvg.ttc*gPg would not be eXpe4ed to cause serious or permanent hamt." OAR Guidelines at 9 (footnote omitted).9 15 To assist in monitoring experience with the detainees, we imderstand that there is regular reporting on medical and psychological experience with the use of these techniques on detainees and that there are special instructions on documenting experience with sleep deprivation and the waterboard. See OMS Gurdelipes at 6.7, 16, 20. TOP CRETi/N9FeR.N 30 Olin MAY 10 2005 17: 413/51• 17:45/K0. 5160429715 P 33 PROM £ IS 004 TOPiTrinillMiN0,611N With this background, we turn to the application of sections 2340-2340A to each °fate specific interrogation techniques. 1. Dietary manipulation. Based on expetience, it is evident that this technique is not expeeted to cause any physical pain, let alone pain'that is extreme in intensity. The detainee is "carefully monitored to ensure that he does not suffer acute weight toes or any dehydration. Further, there is nothing in the experience of celoric intake at this level that could be expected to cause physical pain.. Although we do not equate a person who voluntarily enters a weight-loss program with a detainee subjected to dietary manipulation as an interrogation technique., we believe that it is relevant that several commercial weight-loss programs available in the United States involve similar or even greater reductions in caloric intake. Nor could thietechnique 'reasonably be thought to induce "severe physical suffering." Although dietary manipulation may cause some degree of hunger, such an experience is far from extreme hunger (let alone starvation) and cannot be expected to amount to "severe physical suffering" under the statute. The caloric levels are set based on the detainee's weight, so as to ensure that the detainee does not experience extreme hunger. As noted, many people participate in weight-loss programs that involve similar or more stringent caloric limitatiens, and, white such participation cannot be equated with the use of dietary manipulation as an interrogation teehnique, we believe that the . existence of such programs is relevant to whether dietary manipulation would cause "severe iphysical suffering" within the meaning of sections 2340-2340A. Because there is no prospect that the technique would cause severe physical pain or suffering, we ceinclude thg the authorited use of this technique by an adequately trained interrogator could not reasonably be considered specifically intended to dose. i- This technique presents no issue of "severe mental pain or suffering" within the meaning of sections 2340.2340A, because the use of this technique would involve no qualifying predicate act. The technique does not, for example, involve "the intentional infliction or threatened infliction of severe physical pain or suffering," 18 U.S.C. § 2340(2)(A), or the "application • • of „ procedures calculated to disrupt profoundly the senses or the personality," id, 2340(2)(B). Moreover, there is no basis to believe that dietary manipulation could cause "prolonged mental harm." Therefore, we conclude.that the authorized use of:this technique by an adequately trained interrogator could not reasonably be cOnsidered specifically intended to cause 6116 harm.31 - 2. Nudity. We understand that nudity is used as a ttehnique to create psychological Yee ehaseinformed us that during the ---discomforti-not-to-inflict-any-pleyeicalepaineonsuffering use of this technique, detainees are kept in locations with ambient temperatures that ensure there. -410111FMAFe. - -is- no-threat-to their-health: Speeifically,thiseechniqueeveouldstoi_kgreatend below 68°F (and is unlikely to be employed below 75°F). Even if this technique involves some physical discomfort, it cannot be said to cause "suffering" (as We have explained the term 31 in Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A) (19'18), the European Court of Human Rights Concluded by a vote of 13-4 that a reduced diet, even in conjunction with a nuMber of other techniques, did not amount to "torture," as defined in the European Convention on Human Rights. The reduced diet there consisted of one "round" of bread and a pint of water every six hours, see ld,, separate opinion of Judge Zelda, Part A. The duration of the reduced diet in that case is not clear, TCA)ptirtlFiTillEMMIEWORN TOP CRETEMMN07j_ ORN above), let alone "severe physical pain or suffering," and we therefore-conclude that its authorized Use by an adequately trained interrogator could not reasonably be considered specifically intended to do so. Although some detainees might be huMiliated by this technique, especially given possible cultural seneitivities•ind the possibility of being seen by female officers, it cannot constitute "severe mental pain or suffering" under the statute because it does not involve any of the predicate acts specified by Congress, 3. Attention grasp. The attention grasp involves no physical pain or suffering for the detainee and does not involve any predicate act for purposes of severe mental pain or suffering under the statute. A.ocorditOy, because this technique cannot be expected to cause severe physical or mental pain-or suffering, we conclude that its authorized use by. an adequately trained interrogator could not reasonably be considered specifically intended to do se. 4, Walling. Although the walling technique involves the use of considerable force to push the detainee against the wall and may involve it large number of repetitions in certain cases, we understand that the false wall that is used is flexible and that this technique is not designed to, be some and does not, cause severe physical pain to the detainee. We understand that there may pain or irritation associated with the collar, which is used to help avoid injury such as whiplash to the detainee, but that any physical pain associated with the use of the collar would not approach the level of intensity needed to constitute severe physical pain, SimilarlY, we do not beliVe that the physical distress caused by this technique or the duration of its use, even with multiple repetitions, could amount to severe physical suffering within the meaning of sections 2340-2340A. We understand that medical and psychological personnel are present or observing during the use of this technique (as with all techniques involving physical contact with a detainee), and that any member of the team or the medical staff may intercede to stop the use of the technique if it is being used improperly or if it appears that it may cause injury to the detainee. We also do not believe that the use of this technique would involve a threat of infliction of severe physical pain or suffering or other predicate act for purposes of severe mental pain or suffering under the statute, Rather, this technique is designed to shock the detainee and disrupt his expectations that he will not be treated forcefully and to wear down hiS resistance to interrogation, Based on these understandings, we conclude that the authorized use of this technique by adequately trained interrogators could not reasonably be considered specifically 2340- intended to cause severe physical or mental pain or suffering in violation of sections 2340A.' 5. Foci& hold. Like the attention grasp, this technique involves no physical pain or suffecift-artti does not involve any predicate ,act for purposes of severe mental, pain or suffering, Accordingly, we conclude that its authorized use by adequately ately trained interrogators could not ". In Interrogation Memorandum, we did not describe the wailing technique as involving the number of "repetition drat understandanarbemppliech-Ourativicewitirrespectlovalling-hrthe-presentquenterendum is­ specifically based on the understanding that the repetitive use of walling is intended only to increase the drama and shock of the technique, to wear down the detainee's TeSigarKt, and to disrupt expectations that he will not be treated with force, and thatuch use is not intended to, and does not in fact, cause severe physical pain to the detainee. Moreover, our advice specifically assumes that the use of walling will be stopped if there is any indication that the use of the technique is or may be causing severe physical pain to a detainee. TOP cutilEMEnioyeni .i32 DOJ OLC 000829 FROM S TE ES DO., CruntdAY 10 2005 17:45/3T. 17:45/H0. S1E042971 5 P 35 TOPflEc6T11111111111111NgitiuNT reasonably be considered specifically intended to cause severe physical or mental pain or suffering. 6. Facial slap or insult slap. Although this technique involves a degree of physical pain, the pain associated with a slap to the face, as you have described it to us, could not be expected to constitute severe physical pain. We understand that the purpose of this technique is to cause shock, surprise, or humiliation, not to inflict physical pain that is severe or lasting; we assume•it will be used accordingly. Similarly, the physical distress that may be caused by an abrupt slap 'to the face, even if repeated several times, would not constitute an extended state or condition of physical suffering and also would not likely involve the level of intensity required for severe physical suffering under the statute. Finally, a facial slap would not involve a predicate act for purposes of severe mental pain or suffering. Therefore: the authorized use of this technique by adequately trained interrogators could not seasonably be considered specifically intended to cause severe physical or mental pain or suffering in violation of sections 2340-2340A." 7, Abdominal slap. AlthOugh the abdominal slap technique might involve some minor physical pain, it cannot, as you have described it to us, be said to involve even moderate, let alone severe, physical pain or suffering. Again, because the technique cannot be expected to cause severe physical pain or suffering, we conclude that its authorized use by an adequately trained interrogator could not reasonably be considered specifically intended to do so. Nor could it be considered specifically intended to cause severe mental pain or suffering within the meaning of seetioras 2540-2340A, as none of the statutory predicate acts would be. present. 8. Cramped confinement This technique does not involve any significant physical pain or suffering. It also does not involve a. predicate act for purposes of severe mental pain or suffering. Specifically, we do not believe that placing a detainee in a dark, cramped space for the limited period of time involved here could reasonably be considered a procedure calculated to disrupt profoundly the senses so as to cause prolonged mental harm. Aeeordingly, we conclude that its authorized use by adequately trained interrogators could not reasonably be considered specifically intended to cause severe physical or mental pain or suffering in violation of sections 2340-2340A, 9. Wall. standing. The wall standing technique, as you have described it, would not invateafiire physicatpain withitrthe meaning of the statute. It also-cannot be expected , to cause severe physical. suffering. Even if the physical discomfort of muscle fatigue associated withiaalLstandinganien heaSobstantisl, waiindersta rut thauhe duration of the technique is self­limited by the individual detainee's ability to sustain the position;, thus, the short duration of the .disr,ondortinems.thaLthis,Ieebitta muddliotbA.expeadigOuL% -giitZilild ilat.Te4-§0Ra!?1Y. be considered specifically intended to cause, severe physical suffering. Our .advice also assumes that the detainee's position is riot designed to produce severe pain that night result from contortions or twisting of the body, but only temporary muscle fatigue. Nor does wall standing 35' Our advice about both the facial slap and the abdominal Slap assumes that the interrogators will apply those techniques as designed and will not strike the detainee with excessive force or repetition in a Manner that might result in severe physical pain. TOP REVIMMESN9F6RN DOJ OLC 000830 y/al- a t:44i/NO. 6t 604tr1715 p 3e TOP CREVEMMIN involve any predicate act for purposes of severe mental pain or suffering. Accordingly, we conclude that the authorized use of this technique by adequately trained interrogators could not reasonably be considered specifically intended to cause severe physical or mental pain or suffering in violation of the statute. 10. Stress positions. For the same reasons that the use of wall standing would not violate the statute, we conclude that the authorized use of stress positions such as those described in Interrogation Memorandum, if employed by adequately trained interrogators, could not reasonably be considered specifically intended to cause severe physical or mental pain or suffering in violation of sections 2340-2340A. As with wall standing, we understand that the duration of the technique is self-limited by the individual detainee's ability to sustain the position; thus, the short duration of the discomfort means that this technique wotild not be expected to cause, and could not reasonably be considered specifically intended to Cause, severe physical suffering: Our advice also assumes thatstress positions are not designed to produce severe pain that might result from contortions or twisting of the body, but only temporary muscle fat igue.lc U. Water dousing, As you have described it to us, water dousing involves dousing the detainee with water from a container or a hose without a nozzle, and is intended to wear him down both physidally and psychologically. YoU have informed us that the water might be as cold as 41°F, though you have further. advised us that the water generally is not refrigerated and therefore is unlikely. to be less than 50°F. (Nevertheless, for purposes of our analysis, we will assume that water as cold as 41°F might be used.) OM has advised that, based on the extensive experience in SERE training, the medical literature, and the experience with detainees to date, water dousing as authorized is not designed or expected to cause significant physical pain, andcertainly not severe physical . pain. Although we understand that prolonged immersion in verycold water may be physically painful, as noted above, this interrogition technique does notinvolve immersion and a substantial margin of safety is built into the time limitation on the use of the CIA's water dousing technique—use of the technique. with water of a given temperature must be limited to no more than two-thirds of the time in which hypothermia could be expectedto occur from rota immersich in water of the same temperatureP While being cold can involvephysical discomfort, OMS also advises that in their .professional judgment any resultingdiscomfort is not expected to be intense, and the durationis limited by speeifte times tied to 4. A stress position that involves moll contortion or twisting, as well as one held for so tong that it could not bel4liftectrnly at producing temper ­ awn:insole fatigue, might-raise more substapial questions under the statute.Cf Army Field Manual 3442: Intelligence Interrogation at 14 (1992) (indicating that "ifjorcing an individual to stand, sit. or kneel in abnormal positions for prolonged periods of time' may COnstitute 'torture" Within the meaning ioftic Third-Genevanventioterrequiretrentiltat ilira Iii si till5ratentai mine, nor ani' otlier6firritcMfabh,may be inflicted on prisoners of war,' but not addressing 18 U.S.C. §§ 2340-2340A); United Nations GeneralAae1011,3_Weil 2.01-10'Ilf_clatmps.r.lenoatZlgr.e,Attel.atlier-Craelanlnrian,orZegracting-TAreattnent,or.Petnishrnent, U.H. Dec. Ai..591150 at 6 (Sept. 1, 2004) (suggesting that 'holding detainees in painful andior stressful positions" might in certain Circumstances be characterized as torture). .q Moreover, even in the extremely unlikely event that hypothermia set in, under the circumstances in which this technique is used—including close medical supervision and if iteeessary, medical attention•we understand that the detainee would be expected to recover fully and rapidly. TOP cRETIOSIMN(ORN 34 PROM S TE 5 DOJ (TtJE)MAY 10. 2005 17:49/ST. 17:45/NO. 61504251715 P 37 To99dor1111111111.1111Noy6m water temperature. Any discomfort caused by this technique, therefore, would not qualify as "severe physical suffering!" within the meaning of sections 2340-2340A. Consequently, given that there is no expectation that the technique will cause severe physical pain or suffering when properly used we Conclude that the authorized use of this technique by an adequately trained interrogator could not reasonably be considered specifically intended to cause these results. With respeCt to mental pain or suffering, as you have described the procedure, we do not believe that any athe four statutory predicate sots necessary for a possible finding of severe mental pain or suffering under the statute would be present. Nothing, for example, leads us to believe that the detainee would understand the procedure to constitute a threat of imminent death, especially given that care is taken to ensure that no waterwill get into the detainee's .mouth or nose. Nor would a detainee•reasonably understand the prospect of being doused with cold water as the threatened infliction of severe pain. 'Furthermore, even were we to conclude :that there could be a qualifying predicate act, nothing suggests that the detainee would be expected to suffer any prolonged mental harm as a result of the procedure. OMS advises that there has been no evidence of such harm in the. SERE training, which utilizes a much more extreme technique involving total immersion. The presenee of psychologists who monitor the :detainee's mental condition makes such harm even more unlikely. Consequently, we conclude that the authorized use of the technique by adequately trained interrogators could not reasonably be considered specifically intended to cause severe mental pain or suffering within the meaning of the statute. The flicking technique, which is subject to the same -temperature limitations as water dousing but Would involve substantially less water, a fortiori would not violate the statute. 12. Sleep deprivation. In the Interrogation Memoranthmt, we concluded that sleep deprivation did not violate sections 2340-2340A. See Id. at 10, 14-15. This question warrants further analysis for two reasons, First; we did, not consider the potential for physical pain or suffering regulting from the shackling used to keep detaineei awake or any impact from the diapering of the detainee. Second, we did not address the possibility of severe phySical suffering that does not involve severe physical pain, Under the limitations adopted by the CIA,'sleep deprivation may not exceed 180 hours, Which we understand is approximately two-thirds of the maximum recorded time that humans haveie-without sleep for purposes of medical study, as diseussed,Jaelow. 41 Furthermore, any 'detainee who has undergone 180 hoUrs of sleep deprivation must then be allaived to sleepWithout interruption for at least eight straight hours. AlthoUgh we understand that the CIA's ----eguidelines-wouldeallow-anotfielesession-eftleepedeprivatioreto-begitraftee-thedetainee-Inesgetten 42 The IG Repast described the Maximum allowable period of sleep .deptivation at that time as 264 hours or11 days. See 10 Report at 15. You have informed us that you have since established a limit of 180 hours, that in fact no detainee has been subjected to more than 180 hours of sleep deprivation, and that steep deprivation will rarely exceed 120 hours. To date, only three detainees have been subjected to sleep deprivation for more than 96hours. TOP CRETi/1\10F6RN. FROM S E TE 15 004 0-1/01,1AY 10 2006'17:491ST, 17: 5 /1,10. 61 504 2971 5 P TOP CRET/MINIBNON3R.N at least eight hours of uninterrupted sleep following 180 hours of sleet deprivation, _ we will evaluate only one application of up to 180 hours of sleep deprivation." We understand from OMS, and from our review of the literature on the physiOlogy of ' sleep, that even very extended sleep deprivation does not cause physical pain, let alone severe phySical pain.44 "The longest studies of sleep deprivation in humans . . . [involved] volunteers [who] were deprived of sleep for 8 to 11 days. iSurprisingly, little seemed to go wrong with the subjects physically. The main effects lay with sleepiness and impaired brain functioning, but even these were no great cause for concern." lames Home, ffity We Sleep: The Functions of Sleep in Humans and Other kkunntals 2344 (1988) (` Why We Sleep') (footnote omitted).- We note that there are important differences between sleep deprivation as an interrogation technique used by the CIA &ate controlled experiments docuniented in the literature. The subjects of the •experiments were free to move abou• and engage in normal activities and'often led a 'tranquil existence" with "plenty of time for relaXation," see tel. at 24, whereas a detaineein CIA custody would-be shackled and prevented from Moving•freely, Moreover, the subjects in the experiments often increased their food consumption during periods of extended ,sleep loss, see Id. at 38, whereas the detainee undergoing interrogation may be placed'on a reducedecalorie diet, as discussed above. Nevertheless, we understand that experts who have studied sleep deprivation have concluded that "Whe most plausible reason for the uneventful physical findings with these human beings is thit . sleep loss is not particularly harinfuL" Id at 24, We understand that this Conclusion does not depend on the extent of physical movement or exercise by the subject or whether the subject increases his food consumption. OMS medical staff members have also informed us, based on their experience with detainees who have undergone extended steep deprivation arid their review of the relevant Medical literature, that extended sleep deprivation does not cause physical pain. Although edema, or swelling, of the lower legs may sometimes devetop as a result of the long periods of standing associated with sleep deprivation, we understand from OMS that Such edema is not painful and will quickly dissipate once the subject is removed from the standing position. We also understand that if any case of significant edema develops, the team will intercede to ensurethat the detainee is moved ftom the standing position and that he receives ,atty medical, attention necessary to relieve the sWelling and allow the edema to dissipate. For these reasons, we conclude that the authorized use of extended sleep -26;1514L-ATnoted above-p-we art not concluding that additional use of sleep deprivation, subject to close and careful medical supervision, would violate the statute, but at the' present time we express no opinion ort whether additiorial sleep deprivation would be consistent:with sections 2340-2340A. Although e1 ep eprivation is nciits7ifliPairnil, We undeittand that soine StUtheshave noted that extended total sleep uvriNation may have the effect of reducing tolerance to some forms of pain in some wubjects: -Evervg:;13rIktuulermann,-et-al.:,-SicerDeprivationlIffectrigiennat Painnresholdr-buimot------Somat osensory Thresholds in Healthy Volunteers, 66 Psychosernatic Med. 932 (2004) (finding a significant decrease in heat pairs thresholds and sonic decrease in cold pain thresholds after one night withoilt sleep); S.AakkiOnen, et al, The Effects of Total Sleep Deprtvutton, Selective Sleep Interruption and Sleep Recovery on Pain Tolerance Thresholds in Healthy Subjects, l4 J Sleep Research 35, 4 t (5001) (finding a statistically significant drop of 8-9% in tolerance thresholds for mechanical Of presiure pain alter 40 hours); id. at 35-36 (discussing otherstudies),. We will discuss the potential iri(eradians between steep deprivation an other interrogation techniques in the separate memorandum, to which we referred in footnote 6; atIthessing whethei the cornbine..d use of certain techniques is consistent with the legal requirements of sections 2340-2340A. TOP-RETMIZONO,F6N DOJ OLC 000833 (TUE)MAY 10 2005 17-:43/ST. 17;45/N0.'51604297 1 5 P 39 FROM s1 TE 16 00,f .i TO ETIMIIMalg9F6RN deprivation by adequately trained interrogators would not be expected to cause and could not reasonably be considered specifically intended to cause severe physical pain. In addition, OMS personnel have informed us that the cackling of detainees is notpain. A detainee subject to sleep designed to and-does not result in significant physical . deprivationwould not be allowed to hang by his wrists, and we understand that no detainee subjected to sleep deprivation to date has been allowed to hang by his wrists or has otherwise suffered injury,' If necessary, we understand that medical personnel will intercede to prevent any such injury and would require either that interrogators use a different method to keep the -use of sitting or horizontal positions), or that the use of the detainee awake (such as through the technique be stopped altogether. When the sitting position is used, the detainee is seated on a small stool to which he is shackled; the stool supports his weight but is too small to let the detainee balance himself and fall asleep. We also specifically understand that the use of shackling with horizontal sleep deprivation, which has only been used rarely, is done in such a way as to ensure that there is no additional stress on-the detainee's arm or.leg joints that !night foroe the limbs beyond natural extension or create tension on. any joint. Thus, shackling cannot be expected to result in severe physical pain, and we conclude that its authorized use by adequately trained interrogators could not reasonably be considered specifically intended to do so. Finally, we believe that the use Of a diaper cannot be expected to—and could not reasonably be considered intended to—result in any physical pain, let alone severe physical pain. Although it is a more substantial question, particularly given the imprecision lathe statutory standard and the lack of guidance from the courts, we also conclude that extended sleep deprivation, subject to the limitations and conditions described herein, would not be expected to cause "severe physical suffering." We understand that some individuals who undergo extended sleep deprivation would likely at some point experience physical diseomfort and distress. We assume that some individuals would eventually feel weak physically and may experience other unpleasant physical sensations from prolonged fatigue, including such symptoms as impairment to coordinated body movement, difficulty with speech, nausea, and blurred vision. See Why We Bleep at 30, In addition, Ave understand that extendedsleep deprivation will-often cause a small drop in body temperature, see id at 31, and we assume that such a drop in body temperature may also be associated with unpleasant physical sensations. We also assume that any physical at least to .a discomfort that might be associated with sleep deprivation would likely increase, pcifTeirkimitInger the subject goes without sleep. Thus, on these assooptions, it may be the case that at'sorne point, for some individuals, the degree of physical distress experienced in, sleep depriVation might be substantial.`i' understand from OMS, and from the literature we have reviewed On the other hand, we . on the phygiFogy orsieep;Thafincy in Maiffnartblerate -exteaded . sleelyideprivation-well 41 .-11is-includes a total of More than 25 detainees subjected tc, at least some period of sleep deprivation. See January 4Werx at 1-3. see supra note 44 The possibility noted above that sleep deprivation might heighten susceptibility to pain, -44, maggifies this concern TopsECRETMManythq DOJ OLC 000834 (11.1E)MAY 10 BOOS 17:15/ST. 17145(740. 6160425715 P 40 FROM SI TE 15 00J TOP RETEM11111WwiThl and with little apparent distress, and that this has been the CIA's experience.' Furthermore, the principal physical problem associated with standing is edema, and in any instance of significant edema., the interrogation team will remove the detainee from the standing position and will seek medical assistance. The shackling is used only as a passive means of keeping the detainee awake and, in both the tightness of the shackles and the positioning of the hands, is not intended to Cause pain. A detainee, for example, willnot be allowed to hang by his wrists. Shackling in the sitting position involves a stool that is adequate to support the detainees weight. In the rare instances when horizontal sleep deprivation may be used, a thick towel or blanket is placed under the detainee to protect against reduction of body temperature from contact with the floor, and the manacles and shackles are anchored so as not to cause pain or create tension on any joint If the detainee is nude and is using an adult diaper, the diaper is checked regularly to prevent skin irritation, The conditions of sleep deprivatitin are thus aimed at preventing severe physical suffering. Because sleep deprivation does not involve physical pain and would not be expected to cause extreme physical distress to the detainee, the extended duration of sleep deprivation, within the 180-hour limit imposed by the CIA, is not a sufficient factor alone to constitute severe physical suffering within the meaning of sections 2340-2340A, We therefore believe that the use adjs. technique, under the specified limits and conditions, is not. 44extrerrie and outrageous" and does not reach the high bar set by Congress for a violation -of sections 2340-2340A. •See Price v. .&?cialia1People's Libyan Arab Jamahiriya, 294 F.3 d at 92 (to be torture under the TWA., 198 F. Supp. 2d at 1332­ conduct must be "extreme and outrageous"); of Mehillovic v. Vtickovic, 40, 1345-46 (standard stet under the TVPAby a course of conduct that included severe beatings to the genitals, head, and other parts of the body with metal, pipes and various other items; removal of teeth with ikicking in the face and ribs; breaking of bones and ribs and dislocation of fingers; cutting a figure into the victim's foreheade hanging the victim and beating him; extreme,limitations of food and water; and subjection to games of "'Russian roulette"). Nevertheless, because extended sleep deprivation could in some cases result in substantial physical distress, the safeguards adopted by the CIA, including ongoing medical monitoring and intervention by the team if needed, are important to ensure that the CIA's use of extended sleep deprivation will not run afoul of the statute. Different individual detainees may react physically to sleep deprivation in different ways. We asiume, therefore, that the team will separately monitor each individual detainee who is undergoing sleep deprivation, and that the application of this technique will be sensitive to the individualized physical condition and rea.cticese-ofeachtletainee. Moreover, we emphasize—our understanding that OMS will intervene to alter or stop the course of sheep 'deprivation for a detainee if OMS concludes in its medical judgmentahat the detainee is or inay be experiencing extreme physical distress.' The team, we eitelndeedealthough iteaspsonestoptising-tethoseeiotfamitiaresith.the.extensivArnedicalliterdeet... . relating to sleep deprivation, based on that literature and its experience with the technique, in its guidelines, OMS lists sleep deprivationas less intense than water dousing, stress positions, walling, cramped COITIMITNIII, and the waterboard. See OW thridefineq at 8. 41 For example, any physical pain or suffering associated with standing or with shaoldes might become more intense with an extended use of the technique on a partivalar detainee whose condition and strength do not Penrith him to tolerate it, and we understand that pasonnel monitoring the-cletairice wilt take this possibility into account and., if necessary, will ensure that the detainee is placed into a sitting or horizontal position or will direct thatthe sleep deprivation be discontinued altogether. See 04 Guidelines at 14-16. TOF)SECET/MJMNQFdPN ToDsEfivri=111111N9YOIN understand, will intervene not only if the sleep depriyation itself may be having such effects, but -also if the shackling or other conditions attendant to the technique appear to be causing severe physical suffering, With these precautions -in plate, and based on the assumption that they will be followed, we-conclude that the authorized use'of extended sleep deprivation by adequately trained interrogators would not be expected to and could not reasonably be considered specifically intended to cause severe physical suffering in violation of 18 U.S.C. §§ 2340-2340A_ Finally, we also conclude that extended steep deprivation cannot be expeCted to cause "severe trental pain or suffering" as defined in sections 2340.2340A, and that its authorized use by adequately trained interrogators could not reasonably be consideted specifically intended to do so. First, we do not believe that use of the sleep deprivation technique, subject to the conditions in'place, would involve one of the predicate acts necessary for "severe mental pain or suffering" under the statute. There would be no infliction or threatened infliction of severe physical pain or suffering, within the.ineaning of the statute, and there would be no 'threat of ' imminent death. It may be questioned whether sleep deprivation, could be characterized as a "procedure[ Calcidated to disrupt profoundly the senses or the personality" within the meaning ' of section 2340(2)(B), since we understand from OMS and front the scientific literature that extended steep deprivation might induce hallucinations in some cases. Physicians from OMS have informed us, however, that they are of the view that, in general, rio "prof6und" disruption would result from the length of sleep deprivation contemplated by. the CIA, and again the scientific literature we have reviewed appears to support this conclusion. Moreover, we underitand that any team member would direct that the technique be immediately discontinued if there were any sign that the detainee is experiencing hallucinations. Thus, it appears that the authOrized use of sleep deprivation by the CIA would net be expected to result in a profound disruption of the senses, and if it did, it would be, discontinued: Even assuming, however, that the extended use of sleep deprivation may result in hallucinations that could fairly be . characterized as a "profound" -disruption of the subject's'senses, we do not believe it tenable to conclude that in such eircurnStances the use of sleep deprivation could be said to be "calculated" to cause such profound disruption to the senses, as required by the statute. The term "calcillated"denotes something that is planned . or thought out beforehand: "Calculate," as used in the statute, is defined to meaniplan the nature of beforehand: think out"; "to design, prepare, or adapt by forethought or careful plan: fit or prepare by appropriate means." Fehster-',sThird New Internritional Diciionaly at 315, (defining "caleulate"—"used chiefly [as it is in section 2340(2)(B)] as [a] past partticiple3 with complementary infinitive calerflatedto succeed"). Here, it is evident that the potential for any hallucinations, on the part of a detainee undergoing sleep deprivation is not something that would be a "ealculatedl! result of the use of this techrtiltie-Tarticularly given that the team would intervene immediately to stop the teChnique if there were signs the subject was experiencing hallucinations. :T 9 9 Ten.UnteTija • .. —7 • wsitepi deprivation could be said to be a "procedu -re[] calculated to disrupt profoundly the senses or the persoria} ily"—ncelba technique would be expected to—or that its authorized use by adequately trained interrogators could reasonably be considered spedfically intended to—cause "prolonged mental harm" as required by the statute, because, as we understand it, any hallucinatory effects of sleep deprivation would dissipate rapidly, OMS has informed us, based on the scientific. literature and TOPeSETMINIMI4OXR14. 39 KJ. (TUEIMAY 10 7005 t 7:49/ST. 17145/N0. ele0429715 P TOP TiMMICC,OiN on its own experience with detainees who have been sleep deprived, that any such hallucinatory effects would not be prolonged. We understand from OMS that Why We Sleep provides an accurate summary of the scientific literature on this point. As discussed there, the longest documented period of time for which any human has gone without sleep is 264 hours. See id at 29-34. The longest study with more than one subject involved 205 hours of sleep deprivation. See id at 37.4/ We understand that these and other studies constituting a significant body of scientific literature indicate that sleep deprivation temporarily affects the functioning of thebrain but does not otherwise have significant physiological effects. See id at 100. Sleep deprivation's effects on the brain are generally not severe but can include impaired cognitive performance and visual hallucinations; hoWever, these effects dissipate rapidly, often with as little as one night's sleep. See id at 31-32, 34-37, 40, 47-53. Thus, we conclude, any temporary halludinations that might result from extended sleep deprivation could not reasonably be considered "prolonged mental haran'for purposes of sections 2340-2340A:6 In light of these observatioris, although in its extended uses it may present a substantial. question under sections 2340-2340A, we conclude that the authorized use of sleep deprivation byadequately"trained interrogators, subject to the limitations and monitoring in place, could not reasonably be considered specifically intended to cause severe mental pain or suffering. the use of a diaper for sanitary purposes on an individual subjected to sleep deprivation, while potentially humiliating, could not be considered specifically intended to intliet severe mental pain or suffering within the meaning of the statute, because there would be no statutory predicate act and no reason to expect "prolonged mental ha.rtn" to result.' 47 Without determining ait rieirnu.r time for menial hann to be considered "prolonged," we do not believe that "prolonged mental harm" would occur during the sleep deprivation itself. As noted, OMS would order that the technique be discontinued if hallucinations occurred. Moreover, even if OMS personnel were not aware of any such halluvioadons, whatever time would remain between the onset of such hallucinations, which presumably would be well into the period of sleep deprivation, and the 150-houx maximum for sleep degivation would not constitute "prolonged" mental harm within the meaning of the statute. Nevertheless, we note that this aspect of the technique.ealls for great care in monitoring by OMS personnel, including psychologists, especially as the length of the period of sleep deprivation increases. $9 We note that the court of appeals injfilaa v. &tate of)areos, 103 Fid 7 li9.(9th Cu'. 1996), stated that a variety of teehniques taken together, one of which was sleep deprivation, amounted to torture. The court, however, did not specifically discuss sleep depriVation apart:from the other conduce at issue, and it did.not conclude that sleep deprivation alone amounted to torture. In Ireland v, Untte d Kingdom; the Etiropean Com-tor Human Rights concluded by a vote of 134 that sleep:deprivation, even in ­ conjunction with a nuMber of other reekniques,did freNtifon— alb tornite.unIer the European Chute!' The duration of the sleeP &privation at issue was not dear, see separate opinion of Judge Fitzinaufice, y 19, but may have been 96-47.0 hours, see majority opinion at' 104. Finally, we note that the Committee Against Torture of the Office of the High Commissioner for-Human Rights in efFigtig3ct41--4­ 4,41--Itala3=9019-4---concluded that a variety of practiees taken together, including 'sleep deprivation fOr prolonged periods," "constitutetorture as defined in article 1 of the ICATI,":64egkajlettledj.iatippi,t OtieR14,..a„se.palaly.„Baitair-fArk,c--9-MiilggAgoing Torture, U.N. Doc. K152/44 at ¶ 56 (Sept. 10, 1997) ("sleep deprivation practised on suspects imay in some cases constitute torture"). The Committee provided no details on the length of the sleep deprivation or bow it was implemented and no analysis to support its conclusion. These precedents provide little or no helpful goidance, in our review of the CIA's-use of sleep deprivation undersections 2344-2340A' While we do not rely on this fact in interpreting sections 2340-2340A, we note that we are aware of no decision of any foreign court or internationalin-bra-tat finding that the techniqUes analyzed here, if subject to the limitations and conditions set out, would amount to torture. TopE6RmilENEMm0y* 40 DOJ OLC 000837 FROM $-1TE IS OOJ .CTUEMAY 10 200S 17:Z9/97.17:45/NO. 01'6042971'5 P 43 TOP 13. Pilaterbaard, We previously concluded that the use of the waterboard did not constitute torture under sections 2340-2340k See Interrogafion Memoraridum at 11, 15. We must reexamine the issue, however, because the technique, as it would be used, could involve more applications in longer sessions (and possibly using different methods) than we earlier considered,' We understand that in the escalating regimen of interrogation techniques, the waterboard is considered to be the Most serious, requires a separate approval that may be sought only after other techniques have not worked (or are considered unlikely to work in the time available), and in fact has been—and is expected to be iused on very few detainees. We accept the assessment of OMS that the waterboard "is by far the most traumatic of the enhanced interrogation . techniques?' OMS Guidelines at '15. This technique could subject a detainee to a high degree of distress. A detainee to whom the technique is applied will experience the physiological sensation of drowning, 'which likely will lead to panic. We understand• that even a detainee who 'knows he is not going to drown is likely to have this response. Indeed, we are informed that even individuals very familiar with the technique experience this sensation when subjected to the waterboard. Nevertheless, although this technique presents the most substantial question under the statute, we conclude for the reasons discussed belOw that the authorized use of the waterboard by ­adequately trained interrogators, subject to the Limitations and conditions adopted by the CiA. and inthe 'absence of any medical contraindications, would not violate sections 2340-2340A. (We understand ticontraindication may have precluded the use of this particular , technique oiIn reaching this conclusion, we do not in any way minimize the 51 "rhe IG Report noted that in some cases the wale:board was used with far greater frequency than initially indicated, ,see Ki Report at 5, 44, 46, 103-04, and also that it •ai used in a different manner. See id at 37 ("Mlle waterboard technique , „ was different from the technique destribedin the Del opinion and used in the SERE trainirig. The difference was in the.manner in which the detainees breathing was obstnicted. At the SERE school and iti4e.Deri.:opinion, thesubjeces aikloiv .is disrupted by the firm application of a damp cloth over the air pamages; the interrogator applies a'sniall amount of water to the cloth in a controlled manner. 1E3y contrast, the Agency interrogator applied large volumes of water to a cloth that covered the detainee's, mouth and nose. One of the psychologiststinterrogators acknowledged that the Agency's use of the technique is different from that used in . irts-morepoigii 'f".-'4;t=1-4d4-:=Eiteinspoot , General further reported that "OMS contends that the expertise of the SERE psychologist/interrogators 'on the .yeatez#a ifrom-the. - subsequent Agency us age as to make it almost irrelevant. Conse,quently; according to OMS, there was no a priori reason to believe that applying the 'waterboard with the frequency and intensity with which it was. used bylhe psychologist/interrogators was either eff=cionS or, medically safe.' Id at 21 n.26. We have carefully considered the la Repori and discussed it withOMS personnel. As noted, OMS input has resulted in a numbtr of changes in the application of the waterboard, including limits an the frequency and cumulative use athe technique. Moreover, OMS personnel are carefully irstructed in monitoring this technique and are personally present whenever it is used_ See OMS Guidelines at 17-20. Indeed, although physician assistants can be present Alen other enhanced techniques are applied, "use of the iivaterboard requires the presence of a physician?' id. at 9 n.2. TOP am' FROM SITE IS 00,1 CTIJE)MAY to 2005 ,I7:49/ST. 17:45 ./t40. 6-16042G7I 5 P 44 experience. The panic associated with the feeling of drowning could undoubtedly be significant. There may be few more frightening experiences than feeling that one is unable to. breathe." However frightening the experience may be, OMS personnel have inforthed us that the waterboard technique is not physically painful: This conclusion, as we understand the facts, accords with the experience in SERE training, where thewaterboard has been administered to _ several thousand members of the United StateS Armed Forces." To be sure, in SERE training, -the technique is confined to at most two applications (and usually only one) of no more than 40 seconds each Here: there inay be two sessions, of up to two hours each, during a 24-hour period, and each session may include multiple applications, ofwhich six may last 10 seconds or longer (but none more than 40 seconds), for a total time of application of as much as 12 Minutes crow in a. 24-hour period. Furthermore, the waterboard ma be used an up to five days during the 30- -day period for which it is approved. See August 19 atter at 1-2.: As you have - informed us, the CIA has preViously used the wat . ar repeatedly, on two detainees, and, as far as can be determined, these detainees did not expOenci physical pain or, in the profeSsionali• judgment of doctors, is there any medical reason to believe they would have done so. Therefore, we conclude that the authorized use of the waterboard by adequately trained interrogatorS could ' not reasonably be considered specifically intended to cause "severe physical pain." We also conclude that the use of the waterboard, under the strict limits and conditions imposed, would not be expected to cause "severe physical suffering" under the statute, As noted above, the difficulty of specifying a category of physical suffering apart from both physicalpain and mental pain or suffering, along with the requirement that any such suffering be "severe,' calls for an interpretation under which "severe physical suffering" is reserved for physical distress that is severe consideting•both its intensity and duration. To the extent that in some applications the use of the waterboard could cause choking or similar physical—as opposed to -mental—sensations, those physical sensations might well have an intensity approaching the degree contemplated by the statute. However, we understand that any such physical--as opposed to meal—sensations caused by the use of the waterboard end when the application As rioted above, in most uses of the. technique, the individual is in fact able to breathe, ritough his breathing is restricted. 13taliSt in some uses breathing would not be possible; for purposes of our analysis we assume that the detainee is un'able to breathe during applications of water. Nye%tinderstaxid,that the watetboard is cogently used only in Navy SERE training. As noted in the 10 RePort,"[a]ccarding Co indi dr Is with authoritad-Ve knowledge of the SERE i[elxcept for Navy SERE training, use of the Watertoard was discontinued because of its dramatic effect on the students who were.subjects." .10 • t at 14 n.14. We understand that use of the waterboard was discontinued by the other , services not becauSe —a any concerns a • • posse , - "."110 mut= technique and, as such, it was not considered to be a useful training technique_ We note that OMS has concluded thaetwjhErSERE-trainers-believe4hat-trzineesiare.unable4o-manitain.psychologicaLresistar=i0kYALWka-A...., „.. our experience was otherwise. Some subjects unquestionably can withstand a large number of applications, with no immediately discernible cumulative impact beyond their strong aversion to the experience" OMS Guldetines at 17. We are aware that at a recent Senate Judiciary Committee hearing, Douglas Johnson, Executive Director of the Center for Victims of Torture, testified that some U.S. military personnel who have undergone waterboard training have apparently stated 'that it's taken them 15 years of therapy Co get over it." You have informed us that, la 2002,. the CIA made inquiries to Department of Defense personnel involved in SERE training and that the Departmerst of Defense was not aware of arty information that would substantiate such statements, nor is the CIA aware of any such information. FROM s t rE 15 Dpj (TUE}MAY 10 2005 17:40;ST. 17 45,,NO. 61604297 -05 P 45 TO1')SECETSIMMlaiNOTAN ends. Given the time limits imposed, and the fact that any physical distress (as opposed to . possible mental suffering, which is discussed below) would occur only during the actual .appliettfion of water, the physical distress caused by the waterboard would not be eqected to have the duration required to amount to severe physical suffering s' Applications are strictly limited to at most 40 seconds, and a total of at most 12 minutes in any 24-hour period, and use of the technique is limited to at most five days during the 30-day peried we consider. Consequently, under these conditions, use of the waterboard cannot be expected to cause "severe physical suffering" within.the meaning of the statute, and we conclude that its authorized use by adequately trained interrogators could not reasonably be considered specifically intended to cause "severe physical suffering." Again, however, we caution that great care should be used in adhering to the limitations imposed and in monitoring any detainee subjected to it to prevent the detainee fit m'experieneing severe physical suffering. The most substantial question raised by the waterbeard relates to the statutory definition of "severe mental pain or suffering." The sensation of drowning that we understand accompanies the use of the waterboard arguably could qualify as a "threat of imminent death" within the meaning of section 2340(2)(C) and thus might constitute 'a predicate act for 'severe mental pain or suffering" under the statute" Although the waterboard is used with safeguards that make actual harm quite unlikely, the detainee may not know about these safeguards, and even if he does learn of them, the tothniqueis still likely to create panic i•rhe form of an acute instinctual fear arising from the physiological sensation of drowning. Nevertheless, the statutory definition of "severe mental pain or suffering" also requires that the predicate act produce "prolonged mental harm," 18 i§ 2340(4 As we understand from OMS personnel familiar With the history orthe waterboard technique, as used both in SERE training (though in a substantially different manner) and in the previous CIA interrogations, there is no medical basis to believe that the technique would produce any mental effect beyond the distress that directly accompanies its use and the prospect that it will be used again, We understand from the CIA. that to date none Of the thousands of persons Who have undergone the more limited use of the technique in SERE training has suffered prolonged mental harm as a result. The CIA's use of the technique could far exceed the one or two applications to which SERE training is limited, and the participant in SERE training presumably understands that the technique is part of a training program that is not intended to hurt him and will end at sarnit.4,cessteabletime,,But the physicians and psychologists at the CIA familiar with the facts , '4 We emphasize that physical suffering differs fromplivsicatoin in. this respect. Physical pain may be "severe even if lasting only seconds; whereas, by Outlast, physical distress may amount to "severe physical suffering" only if it is severe both in intensity and duration, As with sleep deprivation, the particular condition of the individual detainee ruust be monitored so that, with extended or repeated use atilt Wu:.ive, thedetainee's experience does notdepart from these expectations, •i ss It is unclear whether a detainee being subjected to the wateiboard in fact experiences it as a "threat of imminent death" We understand thatthe CIA may inform a detainee on whom this technique is used that he would not be allowed to drown. Moreover, after multiple applications of the waterboard, it may become apparent to the detainee that, howeverfrightening the experience maybe, it will not result in death, •Nevertheless, for purposes of our analysis, we will assume that the physiological sensation of drowning associated With the use of the Watertx;ard may constitute a "threat of imminent death" within the meaning of sections 2340-2340A. TOP TOMILIKON . (TOOMAY 10 2005 17:49/51.17:45/110:01504271 P 45 FROM SITE 16 DOJ TOP CRETii0F6RN have inforrned us that in the case of the two detainees who have been subjected to more no evidence of prolonged Mental harm has appeared extensive use of the waterboard technique, in the period sine the use of the waterboard on those detainees, a period which now spans at least 25 months for each of these. detainees. Moreover, in their professional judgment. based on this experience and the admittedly different SERE experience, Olvf.S officials inform us that they would not expect the waterboard to cause such harm. Nor do we believe that the distress accompanying use of the technique on five days in a 30-day period, in itself, could be the "prolonged mental harm" to which the statute referS. The technique may be designed to create fear at the time it is used on the detainee, so that the detainee will cooperate to avoid future sessions. Furthermore, we acknowledge that the term "prolonged" is imprecise, Nonetheless, without in any way minimizing the distress caused by this technique, we believe that the panic brought on by the waterboard daring the very limited time it is actually administered, combined with any iesidual fear that may be experienced over a somewhat longer period, could not be said to amount to the ''prolonged mental harm" that the statute covers,'" For these reasons, we conclude that the authorized use of the waterboard by adequately trained interrogators could not reasonably be considered specifically intended to cause "prolonged mental harm." Again, however, we caution that the use of this technique calls for the most careful adherence to the limitations. and safeguards imposed, including constant monitoring by both medical and psychological personnel of any detainee who is subjected to the waterboard. $1 inifilact v. Estate OfMarcas-, the Ninth Circuit stated that a coarse of conduct involving a number of techniques, one of which has similarities to the watetboard, constituted torture. The court described the course of conduct as follows: He was then interrogated by members of the military, who blindfolded, and severely beat him while he was handcuffed and fettered; they also threatened lahn with. death. When this round of interrogation ended, he was denied sleep and repeatedly threatened with death. In the next round of interrogation, all of his limbs were shaelded to a cot and a. towel was placed over his'nooe and mouth; his interrogators then poured water down his nostrils so that he felt as though he were drowning. This lasted for approximately six hours, during which time interrogators threatened (him] with electric shock and death At the end of this water torture, Die) was left shackled to the cot for the following three days, during which time he was repeatedly interrogated. 'He was then imprisoned for seven mouths in suffocatingly hot and unlit cell, =MI*2.5 meters square; during this time he was shackled to his cot, atfust by all his limbs and later by one hand and one foot, for all but the briefest periods (in which he was allowed to eat or use the toilet). The into his flesh. During wAlilloardaiffs were often so tight that the otightnt movement .. „ made then:mut this period, he felt 'extreme pain, almost =describable, the boredom' and the feeling that tons of lead , were falling on Nil brain. Mel was never told how long the treatment irulieted upon i seaterbraontits4haeircled,teliscot4heFspentalaort -thRh-oiffirltagrik--,-==- ----- -detention, approdmately five. of them in solitary confinement and the rest in near-solitary confinement. 103 F.3d at 790-91. The court then concluded, It seems clear that all of the abuses to which la plaintiff] testified— including the eight years during which he was held in solitary or ne.anoolitary continerneat—coastituted a single course of conduct of torture." M. at 795, In addition to the obvious differences between the tecludque in Hilao and the CIA's use of the waterboard subject to the careful limits described above (among otherthixigs, in Ffitac the session lasted six hours and followed explicit threats of death and severe physical beatings), the court reached no conclusion that the technique by itself constituted torture. However, the fact that a federal appellate court would even colloquially describe a technique that rnay share some of the characteristics of the waterboard as "outer torture" counsels continued care and careful monitotini in the use of this technique. TOP RETAIMMOJNOplth FROM $1TE 1S DOJ Ci(JE)M ftY 10 2005 17:49/S7. 17:45/NO- 5160429715 P 47 TOP CRET41111111MWTORN Even if the occurrence of one of the predicate acts could, depending on the circumstances of a particular case, give rise to an inference of intent to cause "prolonged mental harm," no such circumstances exist here. On the contrary, experience with the use of the waterboard indicates that prolonged mental harm would not be expected to occur, and CIA's use of the technique is subject to a variety of safeguards; discussed above, desigried to ensure that prolonged mental harm dots not result. Therefore, the circumstaeoes here would negate any'potentialinferenee of specific intent to cerise such harm. Assuming. adherence to the strict limitations discussed herein, including the careful medical monitoring and available intervention by the teernas necessary, we conclude that although the question is substantial and difficult, the authorized use of the waterboard by adequately trained' interrogators and other team members could not reasonably be considered specifreally intended to cause severe physical or mental pain or suffering and thus would not violate sections 2340-2340k' In sum; based on the information you have proVided and the limitations, procedures, and safeguards that would be in place, we conelude that—although extended sleep deprivation and use of the waterboard present More substantial questions in certain respeets under the statute and the use of the waterboard raises the most substantial issue—none of these specific techniques, considered individually, would violate the prohibition in.sections 2340-23404 The universal rejection of torture and the President's unequivocal directive that the United States not engage in torture warrant great care in analyzing whether particular interrogation techniques are consistent with the requirements of sections 2340-2340A, and we have attempted to employ such care throughout our analysis. We emphasize that these are issues about which reasonable persons may disagree, Our task has been made more difficult by the imprecision of the statute and the relative absence of judicial guidapce, but we have applied our best reading of the law to the specific facts that you have provided. As is apparent, our.conclusion is based on.the assumption that close observation, including medical and psychological monitoring ti' the detainees, will continue during the period when these techniques are used that the personnel present are authorized to, and will, stop the use of a technique at any time if they believe it is being used improperly or threatens a detainee's safety or that a detainee maybe at risk of suffering severe phy.mental paittor suffering;;hat ths,medical and psychologikal personnel are continually assessing the available' literature and ongoing experience with detainees, and that, as they have done to date, they will make adjustmeats to techniques to ensure that they do not cause severei1 ,_Ii- • aLpainpresaffe ' • • • • .i• . .ei-!„a team members understand the proper use of the techniques, that the techniques are not designed a As noted, medical personnel are instructed to exercise special care in monitoring and reporting on= of the waterboard-&e OMS Guidelines at 20 ("NOTE: In order to best inform future medical judgments and recommendations, ti is important that every applioetion of the waterboard be thoroughly documented: how long each application (and the entire procedur4 lasted, how much water was used in the'proe,ess (realizing that much splashes olf), how exactly the water was applied, if a seal was achieved, if the naso-or oropharynxwas filled, what sort of volume was expelled, how long was the break between applications, and how the subject looked between each treatment.') (emphasis omitted). 0 CuTallin49FtCRI\T 2o05 17:49/5T. 47:4s/No. 81884z97is p 48 ta (TuE)t4Ar EIP6.1 .FROM sITE 15 TOP,SECiETBIIMINI\19E6RN or intended to cause severe physical or mental pain or suffering, and that they must cooperate with OMS personnel in the exercise of their important duties. Please let us know if we may be of further assistance. Steven G Bradbury Principal Deputy Assista .t Attorney General •=1192a14^^.17 NOB/OiN TOP*REDEMEIBI 44

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6837
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62