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

<p>An OLC memo addressing whether the combined use of &quot;enhanced interrogation techniques&quot; (including waterboarding) violates the prohibition on torture. &nbsp;The memo concludes that it would not.</p>

Legal Memo
Tuesday, May 10, 2005
Wednesday, April 15, 2009

FROM SITE 15 DOJ (TUE)MAY 10 2005'17:50ZST, 17:45"0. 13042S715 P so 00000.12 T TI U.S. Department of Justice Office of Legal Counsel Office of the Prin. cipc1 Deputy Assistant Attonxy Gsacrcl Wathingsari, O .70530 May 10, 2005 KEMOR.A.NDUM FOR JOHN A. RIZZO SENIOR DEPUTY GENERAL COUNSEL, CENTRAL INTELLIGENCE AGENCY Re: Application of 18 U.S.C. § 2340-2340A to the Ogi5filed Use of Certain Techniquesin the Interrogation of High Value al Qaeda Detainees In our Memorandum for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, from Steven G. •Bradbury, Principal Deputy Assistant Attorneyrxeneral,Office of Legal Counsel, Re.- Application of 18 U.S.C, § 23402.3404•to Certain Techniques That May Be Used in the Interrogdtion of a High Value al Qaeda Detainee (May 10, 2005)("Techniques"), we addressed the application of the anti-torture statute, is U.S.C_ §.§.2340-2340A, to,dertain interrogation techniques that the CIA might use in the questioning of aspecific al Qaeda operative. There,. we considered each technique individually: We.now consider the application of the statute to the use of these same techniques in combination. Subject to the conditions and limitations set out here and in Techniques, we conclude that the authorized combined use of these specific techniques by adequately trained interrogators would not violate sections 2340-2340A. Techniques, which set. our general interpret_ ation of the statutory elements, guides here.' While referring to the analysis provided in that opinion, we do not repeat it, but instead -us As noted in Technique; the Criminal Division of the Department of Justice is satisfied that our general ittlaPKtatioixvf the legal standards *under sections 23-40-2340A,-found in Technigas,is consistent with itsconcurrence in-our Memorandum for James B. Comet', Deputy Attorney General, from Daniel Levin, ActingAssistant Attorney General, Office of Legal Counsel, Re: Legal SranclardsApplicable Under 18 U.S,C, §§ 2340­ 23404 (Dec. 30, 2004). In the present memorandum, we address only the application of la U.S.C. g§ 2340::23406.to combinations of interrogation techniques. Nothing in thiintemoranclum or in our prior advice to the CIA should be mad 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 Farces or to United States obligations under the Geneva Conventions in circumstances where those Conventions would apply. We do not address the possible application of article 16 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. IQ, 1984, S.. Treaty Doc. No. 100-20,1465 U.N.T.S. 85 (entered into force for U.S. Nov. 20, FROM .01TE 15 DO4 Min MAY 10 2005 17 : 50/ST.17:45/N0. 6160429715 S' 51 presume a familiarity with it. Furthermore, in referring to the individual interrogation techniques whose combined use is our present subject, we mean those techniques as we described them in Techniques, including all of the limitations, presumptions, and safeguards described there. One overarching point from Techniques bears repeating: Torture is abhorrent and universally repudiated, see Techniques at I, and the President has stated that the United States will not tolerate it, Id at 1-2 & n,2 (citing Statement on United Nations International Day in Support of Victims of Torture, 40 Weekly Comp, Pres. Doc. 1167-68 (July 5, 2004)), In Techniques, we accordingly exercised great care in applying sections 2340-2340A to the individual techniques at issue; we apply the same degree of care in considering the combined use of these techniques. I. Under 18 U. S.C. § 2340A, it is a crime to commit, attempt to commit, or conspire to . commit torture outside the United States. "Torture" is defined as ‘.'art 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." 18 U.S.C. § 2340(1). "Severe mental pain or suffering" is defined as "the prolonged mental harm caused by or resulting fi..om" any of four predicate acts. /c4, § 2340(2). These acts are (1) "the intentional-infliction or threatened infliction of severe physical pain or suffering"; (2)."tbe administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to,disrupt profoundly the senses orthe personality"; (3) "the threat of imminent death"; and (4) "the, threat thatanother person will imminently be subjected to death, severe physical pain or stiffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality." In Techniques, we concluded that the individual a.uthodzed" use of several specific interrogation techniques, subject to a variety of limitations and safeguards, would not violate the statute when employed in the interrogation of a specific member of al Qaeda, though we concluded that at least in certain respects two of the techniques presented substantial questions under sections 2340-2340A. The techniques that we analyzed were dietary manipulation, nudity, the attention grasp, walling, the facial , hold, the facial slap or insult slap, the abdominal slap, cranirerC-o —nfirrement, *all standing, 'Stress Asitions,-water dousine6ftencled sleep deprivation, and the "waterboard." Techniques at 7-15, 1994), nor do we address any question relating to conditions of confinement or detniion, as.distinct thin. the • interrogation of detainees. We stress that our advice on the application of sections 2340-2340A. does not representthe policy views of the Department of Justice concerning interrogation practices. Finally, we note that section 6057(a) ofH.R. 1268 (109th Cong. 1st Sess.), if it becomes Jaw, would forbid -expending or obligating funds madeavailable by that bill "to subject any person in the custody or under the physical controt of the United States totorture," but because- the bill would define "torture" to have "the meaning given that term in section 2340(1) of title18, United States Code," §• 607(b)(1), the provision (to the e.Xtgitr it might apply here at all) would merely reaffirmthe preexisting prohibitions on torture in sections 2340-2340A. TOP ECRETI BORN F1,i01,1 S I TE 15 . 0.1 (TIJE)MAY 10 2005 17 :50/ST. i T14EVNO-e 16 042971.5 P 52 TOP i CRET RN Techniques analyzed only the use of these techniques individually. As we have previously advised, however, '.`courts tend to take a totality-of-the-circurnstanceS approach and consider an entire course of conduct to determine whether torture has occurred." .Memoranda for John Rizzo, Acting General Counsel, Central Intelligence Agency, from fromJay S. Bybee, m Assistant Attorney General,-Office of Legal Counsel, Re: Interragation. of al Qaeda Operative at 9 (Aug. 1, 2002) ("Interrogation 1erriam/4W) (TS). A - complete analysis under sections 2340-2340A thus entails an examination of the combined effects ofany techniques that Might be used. In conducting this analysis, there are two additional areas of general concern. First, it possible that the applicationof certain techniques might 1 is -ender the detaineeunusually susceptible to physical or Mental pain or suffering If that were the case, me of a second technique that would not ordinarily be expected to—and could not reasonably be considered specifically intended to—cause severe physteal or mental pain or suffering by itself might in fact cause severe physical or mental pain or suffering because of the enhanced Susceptibility created by the first technique. Depending on the circumstances, and the knowledge and mental state of the interrogator, one might conclude that severe pain or suffering was specifically intended by the application of the second technique to a detainee who was particularly vulnerable because of the application of the first technique_ Because the tine of these techniques in combination ietended to, and in fact can be expected to, 'physically is difficult to assess as to a -wear down a detainee, because it is particular individual whether the application of multiple techniques renders that individtial more susceptible to physical pain or suffering, and bedause sleep deprivation, In particular, has .a number of documented physiological effects that, in.sorne circumstances, could be problematic it is important that all participating CIA personnel, particularly interrogators and personnel of the CIA Office ofMedical Services ("OMS"), be aware of the potential for enhanj susceptibility to pain and suffering from each interrogation technique. We also assume that there will be active arid ongoing monitoring by medical and psychological personnel of each detainee who is undergoinga regimen of interrogation, and active intervention by a member of the team or medical staff as necessary, so as to avoid the possibility of severe physical or mental pain or suffering within the meaning of 18 U.S.C. §§ 2340-2340A as a result of such combined.effects. Second, it is postible that certain techniques that do not themselves cause severe or mental .pain or suffering might do so in contbinatio physical interaticapericid n, particularly when used over th 3 which we deal here. Again, depen mental state of the interrogator, their ding on the cireunistances, e andd the- use such severe pain or suffering. might be considered to be specifically intended to cause This concern calls for ankrquiry intothetotAlityeetth.e._._ RibEcfg-ii w cli fee piquesC-.. . . ,oained and how they are combined. Your,ollice has outlined the mariner in which many of the individual techniques we previously considered could be combined in Background Paper on CIA "s Combined Use ofInterrogation Techniques Pacfcground Paper, (undated, but transmitted Dec. 30, 2004) C.i3ackgroundPaper"). The of interrogation into which provides theprincipal basis for our analysis; first diVides the process three phases: "Thitiareontlitions," "Transition to Interrogaiian" and "Interrogation." Id at 1. After describing these three phases, Paper "provides a look at a prototypieti see id at 1-9, the Background interrogation with art eMphasis on Abe application of • TOP,,evErtG.Te FROM SITE 15 004 IT1.16) MAY 10 2005 17:50/ST. 17:45/NO. 6166429716 P -93 TOPEGRETI /RN interrogation techniques, in combination and separately," id at 9-Is. The Background Paper does not include any discussion of the waterboard; however, you have separately provided to us a description of how the waterboard may be used in combination with other techniques, particularly dietary manipulation and sleep deprivation. See Fax for Steven G. Bradbu Principal Deputy Assistant Attorney General, Office ofLegal Coun4 om , Assistant General Counsel, CIA, at 3-4 (Apr. 22, 2005) ("April 22.ax' Phases of the Interrogation Process The first phase of the interrogation process, "Initial Conditions," does not involve interrogation techniques, and you have not asked us to consider any legal question regarding the CIA's practices during this phase. The "Initial Conditions" nonetheless set the stage for use of the interrogation techniques, which come later, 2 According to The Background Paper, before being flown to the site of interrogation, a detainee is given a medical examination. He then is "securely shackled and is deprived of sight and sound through the use of blindfolds, earmuffs, and hoods" during the flight. Id at 2. An on­board Medical officer monitors his condition. Security personnel also monitor the detainee forsigns of distress. Upon arrival at the site, the detainee "finds himself in complete control of Americans" and is subjected to "precise; quiet, and almost clinical" procedures designed to underscore "the enormity and suddenness of the change in environment, the uncertainty about what will happen next, and the potential dread (a detainee) may have of US custody." Id His head and Pace are shaved; his physical condition is documented through photographs taken while he is nude; and he is given medical and psychological interviews to assess his condition and to make sure there are no contraindications to the use of any particular interrogation techniques. See id. at 2-3. The detainee then enters the next phase, the "'transition to Interrogation:" The interrogators conduct an initial interview, "in a relatively benign environment," to ascertainwhether the detainee is willing to cooperate. The detainee is "normally clothed but seated andshackled for security purposes," Id at 3. The interrogators take "an open, non-threateningapproach," but the detainee "would have to -provide information on actionable threats andlocation information on High-Value Targets at large—not lower-level information—for interrogators to continue with [this] neutral approach." Id. If the detainee does not meet this"-ve 'r­ Mgfi"-standard, the interrogators subrifit a detailed interrogaiia: plan to CIA headquarters 2 Although the OMS Guidelines on -Medical and Porholostcal Support to Detainee Rendition,. :-r.....tow tives •. if(Lite20114)`fM'arMiterMtiOW ins ri on o tralLSP°ItlineO°SSalif to protect the detainee or the rendition teams, id at 4-5, the OM Guidennes do not provide forthe use of sedatives for interrogation, The Background Paperdoes not mention the admittistration Of any drugs during the detainee's transportation to. the site of the`interrogation. or at any other time, and we do -not address' any such administration. OMS, we understand, is uniwareLefany,tise of sedation during the transport do. detainee in the Last two years and states that the interrogation program does not,use sedation or medication for the purpose of interrogation. We caution that any use of sedatives should be carefully evaluated, including -under IS U.S.C.§ 2340(2)0). For purposes of our analysis, we assume that no drugs are adrainistatd during the releyart t period or that there are no ongoing effects from any administration .of any drugs; if that assumption does not hold, our analysisand conclusions amid change. TOP.43(C'RET/ 0.11K1Thr FROM SI TE 15 DO.) (T11E)MAY 10 2005 17:,50,21, 17:461NO. 6160429715 p 54 • TOP S 9,1. 76/RN for approval. If the medical and psychological assessments find no contraindications to the proposed plan, and if senior CIA officers at headquarters approve some or all of the plan through a cable transmitted to the site of the interrogation, the interrogation moves to thenext phase. Id' Three interrogation techniques are-typically used to bring the detainee to "a baseline, dependent state," "demonstrat[ing] to the [detainee] that he has no control over basic human needs" and helping to make him "perceive and value his personal welfare, comfort, and immediate needs more than tote information he is protecting." Id. at 4. The three techniques used to establish this "baseline" are nudity, sleep deprivation (with shackling and, at least at times, with use of a diaper), and dietary manipulation. These techniques, which Techniques described in some detail, "require little to no physical interaction between the detainee and interrogator," Background Paper at 5. Other techniques, which ''require physical interaction between the interrogator and detainee," are characterized as "corrective" and "are used principally to correct, startle, or ... achieve another enabling objective with the detainee," Id These techniques "are not used simultaneously but are often used interchangeably 'during an individual interrogation session." Id. The insult slap is used "periodically throughout the interrogation process when the interrogator needs tci immediately correct the detainee or provide a consequence to a detainee's response or non-response." Id at 5-6. The insult slap "can be used in combination with water dousing or kneeling stress positions"—tecbniciues that are not characterized as "corrective:, la at 6. Another corrective technique, the abdominal slap,. "is similar to the insult slap in application and desired result" and "provides the variation necessary to keep a highlevel ofunpredictability in the interrogation process." Id The abdominal slap may be simultaneously, combined with water dousing, stress positions, and wall standing. A third corrective technique, the facial hold, "is used sparingly throughout interrogation." Id It is not painful; but "demonstrates the interrogator's control over the teletaineel." Id It too may be simultaneously combined with water dousing, stress positions, and wall standing. la Finally, the attention grasp "may be used several times in the same interrogation" and may be simultaneously combined with water dousing or kneeling stress positions. Id Some' techniques are characterized as "coercive." These techniques "place the detainee - in more physical and psychological stress." Id at 7. Coercive techniques "are typically not used 3 The CIA maintains certain "detention conditions" at all of its detention facilities. (Fhese conditions "are not interrogation techniques," id. at 4, and yoU have not asked us to assess their lawfulness under the statute.) The Iy1yIy1, -4d=141.4an4onstant.4ightaurn&Ftogios. .=.65... — Interrogation process." Id. ' These conditions enhance security. The noise prevents the detainee from overhearing conversations of staff members, precludes him from picking up "auditory clues" about his Surroundings, and disrupts any efforts to communicate with other detainees. Id. The light provides better conditions for security and­for monitoring by the medical and psychological staff and the intetrogators. Although we do not address the lawfulness of using white noise (not to exceed 79 decibels) and constant tight, we note that according to materials you have furnished to us, (I) the Occupational Safety and -Health Administration has determined that there is nil risk of permanent hearing toss from continuous, 24-hour per day exposure to noise of up to 82 decibel's, and (2) detainees, typically adapt fairly quickly to the constant light and it does not interfere unduly with for Dan Levin, Acting Assistant Attorney General, Office of Legal Counsel, fire eep. See Fax 'slantGeneral Counsel, Central Intelligence Agency si 3 (Jan, 4, 2005) Marl: Tr In op.,4-nn,/JIMINEMENSIL - TOP S 0FiRN in combination, although some combined use is possible." Id. Wailing "is one of the most effective interrogation techniques because it wears down the [detainee] physically, heightens uncertainty in the detainee about what the interrogator may do to him, and creates a sense of dread when the [detainee] knows he is about to be walled again." Id.' A detainee "may be walled one time (one impact with the wall) to make a point or twenty to thirty times consecutively when the interrogator requires a more significant response to a question," and "will be walled multiple times" during a session designed to be intense. Id Walling cannotpractically be used at the same time as other interrogation techniques. Water temperature and other considerations of safety established by OMS limit the use of another coercive technique, water dousing. See id, at 7-8. The technique "may be used frequently within those guidelines." Id at 8. As suggested above, interrogators may combine water dousing with other techniques, such as stress positions, wall standing, the insult slap, or the abdoMinal slap. See id. at 8. The use of stress positions is "usually self.limiting in that temporary muscle fatigue usually leads to the [detainee's] being unable to maintain the stress position after a period of time." Id Depending on the particular position, stress positions may be combined with water dousing, the insult slap, the facial hold, and the attention grasp. See id Another coercive technique, wall standing, is "usually self-limiting" in the same way as stress positions. Id. It may be combined with water dousing and the abdominal slap, See id OMS guidelines limit thetechnique of cramped confinement to no more than eight hours at a time and la hours a day, andconfinement in the "small box" is limited to two hours. Id, Cramped confinement cannot beused in simultaneous combination with obrrective or other coercive techniques. We understand that the CIA's use of all these interrogation techniques is subject to ongoing monitoring by interrogation team members.who will direct . that techniques bediscontinued if there is a. deviation from prescribed procedures and by medical and psychological personnel from OMS who will direct that any or allaechniques be `discontinued if in their professional judgment the detainee may otherwise suffer severe physical or mental pain or suffering. See Techniques at 6-7. A Prototypical Interrogation 'Tite"pratotypicAl interrogations," the etaineebegillS his.firstinterrogation session stripped of his clothes, shackled, and hooded, with the wailing collar over his head and around Although walling "wears down the {detainee! physically," Background Paper at 7, and undoubtedly maystartle him, we 'understand that it is not sigrtiBearitly, painful. The detainee hits "a. flexible false wall," designed "to create a lotid sound when the individual hits it" and thus to cause "shock and surprise." Interrogation Memorandum at 2. But the detainee's "head and neck are supported with &rolled hood or towel that provides a c-collar effect tohelp prevent whiplash"; it is the detainee's shoulder blades-that hit (bewail; and the detainee is allowed to rebound from the flexible wall in order to reduce the chances of any injury. See id You have informed us that a detainee is expected to feel "dread." at the prospect of walling because of the shock and surprise caused by the technique and because of the sense of powerlessness that comes from being roughly handled by the imerrogators,.not because thetechnique causes significant pain. TOPRETf 11.14KRN TOVCRET/ his neck. Background Paper at 9-10. The interrogators remove the hood and explain that the detainee can improve his situation by cooperating and may say that the interrogators "will do what it takes toget important information? Ido As soon as the detainee does anything inconsistent with the interrogatore'instructions, the interrogators use aninsu1t slap or abdominal slap. They employ walling if it becomes clear that the detainee is not cooperating in the interrogation. This sequence "may continue for several more iterations as the interrogators continue to measure the [detainee's" resistance gesture and apply a negative consequence to [his]resistance efforts!' Id The interrogators and security officers then put the detainee into position for standing sleep deprivation, begin dietary manipulation through a liquid diet, and keep the detainee nude (except for a diaper). See id at 1041. The first interrogation session, which could have tasted from 30 minutes to several hours, would then be at an end. See id. at 11. lithe interrogation team determines there is a need te•continue, and if the mediest and psychologj'eal personnel advise that there are no contraindications, a second session may begin. See id, at 12. The interval hetween sessions mild be as short as an hour or as long as 24 hours. See id at 11. At the start, of the second session, the detainee is released from the position forstanding sleep deprivation, is hooded, and is positioned against *walling wall, with the walling collar over his head and around his neck. See id tvenbefore removing the [mod, theinterrogators use the attention grasp to startle the detainee. The interrogators take off the hood and begin questioning. Ifthe detainee does not give appropriate answers to the first questions, the interrogators use an insult slap or abdominal slap. See id. They employ walling if they determine that the detainee "is intent on maintaining his resistance posture." Id. at 13. This sequence "may continue for multiple iterations as the interrogators continue to measure the [detainee's] resistance posture!' Id The interrogators then increase the pressure on the detainee by using a hose to douse the detainee with water for Several minutes. They stop and start the dousing as they continue the interrogation. See id They then end the session by placing thedetainee into the same circurnstanees as -at the end of the first session: the detainee is in the standing position for sleep deprivation, is nude (except for a diaper), and is subjected to dietary manipulation. Once again, the session could !lave lasted frond 30 minutes to several hours. id. See Again, if the interrogation team determines there is a need to continue, and if the medical and psychological personnel find no contraindications, a third session may follow. The session beginueithethe detained positioned as, at the beginning of the second , .id, at 14. If the detainee continues to resist, the interrogatori tontine to use walling and water dousing, The corrective techniques—the insult slap, the abdominal slap, the facial hold, the attention grasp,— "may be used several times during this session based on the responses and actions of the [detainee. Tice stress positions and wail standing into the session. Furthermore, "[ijatense questioning and walling would be repeated multiple timet." Id Interrogators "use one technique to support another." Id For example, they threaten the use of walling unless the detainee holds a stress position, thus inducing the detainee to remain in the position longer than he otherwise would. At the end of the session, the interrogators and security 5 We address the effects gilds statement below atpp. 1849, TOP TOP ECRET 0.,F6R11 personnel place the detainee into the same circumstances as'at the end of the first two sessions, with the detainee subject to sleep deprivation, nudity, and dietary manipulation. -Id In later sessions, the interrogators use those techniques that are proving most effectiveand drop the others. Sleep deprivation . "may Continue to the 70 to 120 hour range, or possibly beyond for the hardest -resisters, but in -no ease exceed the 180-hour time limit." Id at 15.5 If the medical or psychological personnel find contraindications, sleep deprivation will end earlier. Seeid at 15-16. While bontinuing the use of sleep deprivation, nudity, and dietary manipulation, the . interrogators may add cramped confinement. As the detainee begins , to cooperate, theinterrogators "begin gradually to decrease the use of interrogation techniques. Id at 16. Theymay perinit the detainee to sit, supply clothes, and provide more appetizing food. See id The entire process in this "prototypical interrogation" may last 30 days. If additionaltime is required and a new approVal is obtained from headquarters, interrogation may go longer than 30 days. /¦levertheless, average;the actual use of interrogation techniques covers aperiod of three to seven days, but can vary upwards to fifteen days based on the resilience of the [detainee]." Id. As in Techniques, our adVice here is limited to an interrogation process lasting no more than 30 days. See Techniques at 5. Use of the Waterboard in Combination with Other Techniques We understand that for a small number of detainees in very liMited circumstances, the CIA May wish to use the waterboard technique. You have previously explained that thewaterboard technique would be used only if (1) the CIA has credible intelligence that a terroristattack 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 methodshave failed or are unlikely to yield actionable intelligence in time to prevent the Attack, See Attachment to Letter from John A Rizzo, Acting General Counsel, CIA, to Daniel Levin, Acting Assistant Attorney General, Office of Legal Counsel (Aug. 2, 2004). 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-hotir period, interrogators may use noMore than two "sessions" of the waterboard on a subjeet--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 houtrtforborVer, during any session, The nuMber of individual appll'evitions of Water lasting-10seconds or longer may not exceed six. The tnaximurn length of any application of water is 40 seconds (you have informed us that this maximum has rarely been reached). Finally, the totaleutnulative-time-ofal awn - tigthin a':44.7ttcrerpaltRi-may-ifdt-6);:bre-d 12 minutes. See Letter fro sociate general Counsel, CIA, to Dan Levin;Acting Assistant Attorney , Office ofLegal Counsel, at 1-2 (Aug. 19, 2004). 6 As in Techniques, our advice here is restricted to one application of no more than 1E0-hours of sleep deprivation. 00./ (TUE311AY 10 2005 17:50/8T. 171 ,15/140. 0'160428715 8 58 TOP)ZRET/ NQRI You have advised us that in those limited cases where the waterboard would be used, it would be used only in direct combination with two other techniques, dietary manipulation and . sleep deprivation. See April 22Wax at 3-4. While an individual is physically on the waterboard, the CIA does not use the attention grasp, walling, the facial hold, the facial or insult slap, the abdominal slap, cramped'eonfinernent, wall standing, Stress positions, or water dousing, though some or all of these techniques may be used with the individual before the CIA needs to resort to the Waterboard, and we understand it is possible that one or more of these techniques, might be used an the same day as a waterboard session, but separately'from that session and not in conjunction with the waterboard. See id at 3. As we discussed in Techniques, you have informed us that an individual undergoing the waterboard is always placed on a fluid diet before he may be subjected to the waterboard in order to avoid aspiration of food matter. The individual is kept on the fluid diet throughout the period the waterboard is used. For this-reason, and in this way, the waterboard is used in combination with dietary manipulation. See April 22 ax at 3. You have also de,sctibed-how sleep deprivation may be used prior to and during the . waterboard session. Id at 4. We understand that the time limitation on use of sleep deprivation, A-s., setforth.b. revbnigtms, coatiiiits,..to be-strictly monitored -and-enforeed*liett sleep deprivation is used in combina c ..th the waterboard (as it is when used in combination with other techniques). See Aprr122 . ax at.4. You have also informed us . that there is no evidence in literature or experience at sleep deprivation exacerbates any harmful effects of the waterboard, though it does reduce the detainee's will to resist and thereby contributes to the effectiveness of the waterboard as an interrogation technique, a As in Techntques, we understand that in the event the detainee irrefe, perceived to be unable to withstand the effects of the waterboard for any reason, any member of the interrogation team has tit'gation to l intervene and, if necessary, to halt the use of the waterboard. See April' 22 .‘ix at 4, The issue of the combined effects of interrogation techniques raises complex and difficult qtiestions- and conies to us in a less precisely defined form than the questions•reated in our earlier opinions. about individual techniques. In evaluating individual techniqUes, we turned to a body of exmrience developed in theuse of analogous techniques in military training by the Units tats, medial literature, and to the judgment of medical P'SCillflel. Because there is less certainty and definition'about-the use of techniques in combination, it is necessary to draw more inferences-in assessing what may be expected... , you have informed us that, although the3-1 pr. .1.1EtErraga a I a air rept-Wriratton o OW Ut -re)b "" - are actually employed," "there is no template or script that states witifeertainty when and howthese techniques will be used in combination during interrogation.' Hocigroufd Paper at 17. Whether any other combination of techniques would, in the relevant senses, be like the ones presented—whether the combination would be no more likely to cause severe physical or mental pain or suffering within the meaning of sections 2340-2340A---would be a question that cannotbe assessed in the context of the present legal opinion. For that reason, our, advice does not exxend to combinations of techniques unlike the ones discussed here_ For the same reason, it is especially important that the CIA use great care in applying these various techniques in' TOP SRETI 0/RN P01.1 S ITE IS DO J CrOVMAY 10 2005 17;50/ST. 1 7:45/NO -61604 29716 P TOP SfCRET 0/ORN .combination in a real-world scenario, and that the members of the interrogation team, and the attendant medical staff, remain watchful for indications that the use of techniques in combination May be having unintended effects, so that the interrogation regimen may be altered or halted, ifnecessary, to ensure that it will not result in severe physical or mental pain or suffering to any • detainee in violation of IS U.S. C. §§ 2340-2340A. Finally, in both of our previous opinions about specific technique; we evaluated the useof those techniques on particular identified individuals. Here, we are asked to address the combinations without reference to any particular detainee. As is relevant here, we know only that an enhanced interrogation technique, such as most of the techniques at issue in Techniques,may be used on a detainee only if medical and psychological persOnnel have determined that he . is not likely, as a result, to experience severe physical or mental pain or suffering. Techniques at 5. Once again,• whether other detainees -would, in the relevant ways, be like themes previously at issue would be &factual question we cannot now decide. Our advice, therefore, does notextend to the use of techniques on detainees unlike those we have -previously considered. Moreover, in this regard, it is also especially important, as we pointed out in Techniques with respect to certain techniques, see, e.g., id at 37 (discussing sleep deprivation), that the CIA will -carefully assess the condition of each individual detainee and that the CIA's use of these .techniques in combination will be sensitive to the individualized physical condition and reactions of each detainee, so that the regimenof interrogation would be altered' or halted, if necessary, inthe event of unanticipated effects on a partieulaidetainee, Subject to these cautions and to the conditions, limitations, and safeguards set out belowarid in Technique; we nonetheless can reach some conclusions about the combined use of these techniques; Although this is a "difficult question that will depend on the particular detainee, we do not believe that.the use of the techniques in combination as.you have described them would be expected to inflict "severe physical or mental pain or suffering" within the meaning of the statute. 18 U.S.C, .§ 2.340(4 Although the combination of interrogation techniques will wear a detainee down physically, we understand that the principal effect, as well as the primary goal, of interrogation using these techniques is psychological—"to create a state of learned helplessness and dependence conducive to the collection of intelligence in a predictable, reliable, andsustainable manner," Background Paper at I—and numerous precautions are designed to avoid inflicting "severe physical or mental pain or suffering." * -- ..1 1cT.r.fireSent purposes, we may dividesevere Physical or mein{ pain or suffering" intothree categories: "severe physical. . . pain," "severe physical . . . suffering," and "severe : .mental pain or suffering" (the last being a defined term under the statute). See Technique—sat 22- . 26; -MMidfandiiiii SiTaiffeilraniiiy, rkii-lirti¦kiiiiiiteiZeiieiil,46in-riailiela-siin, AdingAssfstant AttOrney General, Office ofLegal Counsel, Re: Legal Standards Applicable Under 18 . S.C. §,§" 2310-.2340A (Dec. 30, 2004). As explained below, any physical pain resulting from -the use of these techniques, even in combination, canna reasonably be expected to meet the level of "severe physical pain" contemplated by the statute. We conclude, therefore, that the authorized use in combination of these techniu es b adequately trained interrogator; as described in the Background Paper andthe April 22.axi could-not reasonably be considered specifically intended to -do so. TOP 5LeCRET GIORN • 'FR-014 SITE IS 1:10 -) 0-U£1.1.1AY 10 2005 17:50/ST. 17 :15/140', 6150425715 P so TOP CRETt 0/ORN Moreover, although it presents a closer question under sections 2340-2340A, we conclude that the combined use of these:techniques also cannot reasonably be expected to—and their combined use in the authorized 'manner by adequately trained interrogators could not reasonably be considered specifically intended to—cause severe physical suffering: Although two techniques, extended sleep deprivation and. the waterboard, may involve a more substantial risk of physical distresocthing in the other specific techniques discussed in the Background Paperand the April22. ax, or as we understand it, in the CIA's experience to date with the interrogations o more than two dozen detainees (three of whoSe interrogations involved the use of the waterboard), would lead to the expectation that any physical discomfort from thecombination of sleep deprivation or the water -board and other techniques would involve the degree of intensity and duration of physical distress sufficient to constitute severe physical suffering under the statute. Therefore, the use of the technique could not reasonably be viewed as specifically intended to cause severe physical suffering. We stress again, however, that these . questions concerning whether the combined effects of different techniques may rise to the level of physical suffering within the meaning of sections 2340-2340A are difficult ones, and they reinforce the need for close and ongoing monitoring by medical and psychological personnel and by all members of the interrogation team and active intervention if necessary. Analyzing the combined techniques in-terms of severe mental pain or suffering raises two questions under the statute. The first is whether the risk of Hallucinations-from sleep deprivation may become exacerbated when combined with other techniques, such that a. detainee might be expected to experience "prolonged mental harm" from the combination of techniques. Second, the description in the Background Paper that detainees may be specifically told that interrogators will "do what it takes" to elicit information, id at 10, raises the question whether this statement might qualify as a threat of infliction of severe physical pain or suffering or another of the predicate acts required for "severe mental pain or suffering" under the statute. After discussing both of those possibilities belt*, however, we conclude that the authorized use by adequately trained interrogators of the techniques in combination, as you have described them, wouldnot reasonably be expected to cause prolonged mental harm and could not reasonably be considered Specifically intended to cause severe mental pain or sUffering. We stress that these possible questions about the combined use of the techniques under the statutory category bf severe mental pain or suffering are difficult ones and they serve to reinforce the need for close and ongoing monitoring and active intervention if necessary. e ys SeveM-ica7 Pain -''..--.- Our two previous opinions have not identified any techniques that would inflict train that - aTipT---os -ciws-threlref[W'r.T.q-uired the statute. icalmbeFaihe techniques--dietarymanipulation, nudity, sleep deprivation, the facial hold, and the attention grasp—are not expected to cause physical pain at all: See Techniques at 30-36. Others might cause some pain, but the level Of pain would not approach that which would:be considered "severe." These techniques.are the abdominal slap, water dousing, various stress positions, wall standing,cramped confinement, walling, and the facial slap. See id. We also understand that thewaterboard is not physically. painful. Id at 41. In part because none of these techniques wouldindividually cause pain that even approaches the 'severe level required to violate.the stattite, the combined use of the techniques.under the conditions outlined here would not be expected to- TOP SEZRET nr.44.teNT 00.3 Crirt)MAY 10 2005 1 -7150/ST. 17:45/N0. 61604297T5 P TOP. SE .976RN and we conclude­ that their authorizeduse by adequately trained interrogators could not reasonably be-considered specifically intended to—reach that level.' 9/c recognize the theoretical possibility that the use of one or more techniques would make a detainee more susceptible to severe pain or that the techniques, in combination, would • operate_ differently from the way they would individually and thus cause severe pain, But as we understan d experience involving the combination of various techniques, the OMS medical and psychological personnel have not observed any such increase in susceptibility. Otherthan the waterboard, the specific techniques under consideration in this me dum—ineludingsleep deprivation---Lhave been applied to More than 25 'detainees. See.ax at 1-3, No apparent increase in susceptibility to severe Pain has been observed ei er when techniques are used sequentially or when they are used simultaneously—for example, when an insult slap is Simultaneously combined ;with water dousing or a kneeling stress position, or when wall standing is simultaneously combined with an abdominal slap and water dousing. Nor does experience show that, even apart from changes in susceptibility to pain, combinations of these techniques ,cause the techniques to operate differently So as to cause severe pain: OMS doctors and psychologists; moreover, confirm that they expect that the techniques, when combined as described in the BgergrounriPaperand in the April 22Wax, would not operate in a different manner from the way they do individually, so..as to cause-seyer-e Pain, . ' We understand that 'exp.erienee supports these conclusions even though the Badgi. Paper mind does give examples where the distress caused by one techniqUe would be increased by use of another, The"conditioning techniques"—nudity, sleep deprivation, and dietary- maniPulation---appear designed t6 wear down the detainee, physically and pSychologicall to allow .other techniques to be more effective, see Background Paper it 5,12; April 22. at 4; and "these [conditioning] techniques are used in combination in almost all cases,"BackerqundPaper' it 17_ And, in-mother example, the threat of walling is used to cause a detainee to hold a stress position longer than he otherwise Would. See id at 14. The . issue raised by the statute, however, is whether the techniques would be specifically intended to cause the detainee to experience "severe . „ 18 § 2340(1). In the case of the Conditioning 1 • -We are not suggesting that combinations or repetitions of acts that do not individually cause severe physical pain could not result in severe physical pain Other than the repeated use of the "walling" technique, hovmigkri onotbilig in the Backgroundpapersuggests the kind oLrepetition that might raise an issue about severe • physical Pain; and, In the case of walling, wurtdcrstand thatthis techniqUe involves a false, flexible wall and is not sigilintlY Painful, eve with repetition. Our advice with respect to walling in.he present memorandum Is based S the understanding that...the repetitive use of walling is intended only to increase the shock and dtarna of e'i-e'doil=the7eIctaincrd4e.allstapt.expeatatt, „e-ar„.. • ir- • .and that such use is not intended to,.and doti not is fact, cause severe physicapain to the detainee. Along these lines, We understand that therepeated use of the insult slap..and the abdominal slap gradually reduces their effectiveness and that their use is therefore limited to times when the -questioner requires immediate correction, detainee's overt disreSpect for the question or when the detainee displays obvious efforts to rniSdfrect or i gnore tquestion or questioner, 0ot/hen the detainee attempts to provide an obvious lie in responseto a - Our specific question. advice assumes that the interrogators will apply those techniques as digne with excessive force or repetition in a manner that Might result insevere phesysicald- and will not str ee the detail= p4in. A to all t chniques, our advice assumes that the use of the technique will be stopped if there is any indication that t is or may be causing severe physical pain lo the detainee. i PROM SITE 15 00J (TUE) MAY 10 2005 17:60/ST, 17 45/NO. 6160429716 P 62 TOP SLeaRET/ 0/FdttN techniques, the principal effect, as you have described it, is on the detainee's will to resist other techniques, rat than on the pain that the other techniques cause. See Background Paper at 5, 12; April 22. ax at 4. Moreover, the stress positions and wall standing, while inducingmuscle fatigue, o not cause "severe physical . . . pain," and there is no reason to believe that a position, held somewhat longer than otherwise, would create such pain. See Techniques at 33- 34.1 In any particular case, a combination Of techniques might have uneXpected'results, just as vi.* an indi'du echnique could produce surprising effects'. But the Background'Paper and the April 22 ax, as well as Techniques, describe a system of medical and psychologicalmonitoring o the detainee that would very likely identify any such unexpected results as they begin to occur and would require an interrogation to be modified or stopped if a detainee-is in danger of severe physical pain. Medical and psychological personnel assess the detainee before any interrogation starts. See, e.g., Techniques at 5. Physical and psychological evaluations are completed daily during any period in which the interrogators use enhanced techniques, includingthose at issue in Techniques (leaving aside dietary manipulation and sleep deprivation of less than 48 hours). See id at 5-7. Medical and psychological personnel are on scene throughout the interrogation, and are physically present or are otherwise observing during many of the techniques, See id. at 6-.7. These safeguard; which were critically important to our conclusionsabout individual techniques, are even' more significant when techniques are combined. In one specific context, monitoring the effects etainees appears particularly important. The Background Paper and the Apri122. ox illustrate that sleep deprivation is a central part of.the "prototypical interrogation." We noted in Techniques that extended sleepdeprivation may cause a small decline in body -temperature and increased food consumption. SeeTechniques at 33-34. Water dousing and dietary manipulation and perhaps even nudity may thus raise dangers of enhanced susceptibility to hypothermia or other medical conditiOns for a detainee undergoing sleep deprivation. As in Techniques, we assume that medical personnel will be aware of these possible interactions and wilt monitor detainees closely for any.signt that suchinteractions are developing. See id at 33-35. This monitoring, along with quick intervention ifany signs of problematic symptoms develop, can be expected to prevent a detainee from experiencing severe physical pain. \-Ttie,,,itsa understand that some studiemuggest that extended sleep deprivation may be associated yea h a reduced tolerance for some forms of pain? Several of the techniques used by 8 Our advice about !Asti sr,andin azaAd strsgMAQuinagrics thatthet po 'snions_usela in each.technique-are . not-rftypferiCiproctuce severe pain that might result from contortions muscle fatigue. or twisting of the body, but only temporary 7 For example, one study found a statistically significant drop of 8.9% in subjects'. tolerance thresholds for mechanical or pressure pain after 40 hours of total-sleep deprivation. See S. Hakki Chien, et al., The Veers of FatalSleep Deprivation, Selective Sleep Interruption and Steep Recoveryon Pain Toleionce ThreshOlds In Healthy :Subjects, ICJ. Sleep Itesearch 35, 41 (2001); see also Id, at 35-36 (discussing other studies). Another study ofextended total sleep deprivation found a signifitant decrease in the threshold for heat pain and some decrease in the cold painthreshold. See B. Kundertaann, et al., Skep.Deprivalign Affects' Thennal Path Thresholds but not Somatosensory Thresholds in Healthy Volunteer; 66 Psychosomatic IAA: 932 (2004). TOB-,56.1/P.T/ TOP 76RN the CIA may involve a degree of physical pain, as we have previously noted, including facial and abdominal slaps, walling, stress positions, and water dousing. Nevertheless, none of these techniques would cause anything approaching severe physical pain. Because sleep deprivation appears to cause at most only relatively moderate decreases in pain tolerance, the use of these techniques in combination with extended sleep deprivation would not be expected to cause severe physical pain. There ; the combined use of techniqueS, as set'out in the Background Paper and the April 22. ax, would not reasonably be expected by the interrogator; to result in severe physical pain. We conclude that the authorized use of these techniques in combination by adequately trained interrogators, as you have described it, could not reasonably: be considered specifically intended to cause such pain for purposes of sections 2340-2340A. The close monitoring of each detainee for any signs that be is at risk of experiencing severe physical pain reinforces the -conclusion that the combined use of interrogation techsiques is not intended to inflict such pain. OMS has directed that "[m]edicaI officers must remain cognizant at all times of their obligation to prevent 'severe physical or mental pain or Suffering.'" OMS Guidelines at 10. The obligation of interrogation team members-and medical staff to intercede if their Observations indicate a detainee is at risk of experiencing severe•physical pain, and the expectation that all interrogators understand the important role played by OW and will cooperate with them in the exercise of this duty, are her; as in Techniques, essential to our advice. See Techniques at 14. Severe Physical Suffering We noted in Techniques that, although th•statute covers a category of "severe physical . suffering" distinct from "severe physical pain," this category encompasses only "physical distress that is 'severe', considering its intensity and duration or persistence, rather than merelymild or transitory." .Id. at 23 (internal quotation marks omitted). Severe physical suffering for purposes of sections 23404340 . A, we have concluded, means a state or condlOori 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. id Severe physical suffering is distinguished from suffering that is purely mental or psychological in nature, since mental suffering is encompassed by the separately defined statutory category. of "severe mental pain or suffering," discussed below. To amount to torture, conduct must be "sufficiently extreme and t'atitgeOuSlo warrent the universal con&mnatioh that the term Tiitto -re' both connotes andinvokes:" See Price v. Socialist People's Libyan Arab icanahirbia, 294 F.38 82, 92 (D. C. Cir.202) (interpreting the TVPA); cf. Mehinavic v. Vuckovic, 198 F. Supp: 2d 1322, 1332-40 1345- • t.'" y a course a con' uct t at tat u' e+ severe beatings to the genitals, head, and other parts of the body With metal pipes and various otheritems; removal of teeth with pliers; kicking in the face and ribs; brealaitg of bones and ribs and dislocation of fingers; cutting a figure into the victim's forehead; hanging the victim and beatinghim; extreme limitations of food and water; and subjection to games of "Russian roulette). In Techniques, we recognized that, depending on the physical condition and reactions of - a given individual, extended sleep deprivation might cause physical distress in some cases. Id. at 34. Accordingly, we advised that the strict limitations and safeguards adopted by the CIA are TOP O, RN F14014 SITC 15 DOJ (TUE) MA Y 10 2005 7:50/ST. 17 :45,,/,10. 61 60423715 P 134 TOPS CRETi p RN important to ensure that the use of extended sleep deprivation would not cause severe physical suffering. Id. at 34-35. We pointed to the close medical monitoring by OMS of each detainee subjected to sleep deprivation, as well as to the power of any member of the interrogation team or detention facility staff to intervene and, in particular, to intervention by OMS if OMS concludes in its medical judgment that the detainee may be experiencing extreme physical distress. With those safeguard s in - place, and based on the assumption that they would be strictly followed, we concluded that the authorized use of sleep.deprivation by adequately trained interrogators could not reasonably be considered specifically intended to cause such severe physical suffering. fd. at 34. We pointed out that "(djifferent _individual detainees may react physically to sleep deprivation in different ways," id, and we assumed that the interrogation team and medical staff "will separatelymonitor each individual detainee who is undergoing sleep deprivation, and that the application of this techniqUe will be sensitive to the individualized physical condition and reactions of each detainet." hi Although it is difficult to calculate the additional effect of combining other techniques with sleep deprivation, we do not believe that the addition of the other techniques as described in the Background Paper would result in "severephysical suffering." The other techniques do not themselves inflict severe physical pain. They are not of the intensity and duration that are • necessary for "severe physical suffring"; instead,. they only increase, over a short tirrie, the discomfort that a detainee subjected to sleep deprivation experiences. They do not extend the time at which sleep deprivation would end, and although it is possible that the other techniques increase the physical diem-don. associated with sleep deprivation itself we cannot say that the effect would be so significant as to cause "physical distress that is 'severe' considering its intensity and duration or persistence." Techniques at 23 (internal quotation marks omitted). We emphasize that the question of "severe physical suffering" in the context of a eombination of techniques is a substantial and difficult one, particularly. in light of the imprecision in the statutory standard and the relative lack of guidaece in the case law. Nevertheless, we helieve that the combination of techniques in question here would not be "extreme and outrageous" and thus would not reach the high bar established,by Congress in sections 2340-2340k which is reserved for connotes.andactions that "warrant the universal condemnation that the term `torture'" both .invokes :" See Price v. Socialist People's Libyan Arab Jamahiriya, 254 F.3d at 92 (interpreting the TVPA) " explained in Techniques, exper:jence withextended step deprivation shows that Isjurprisinily, 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!" Id at 36 ( uotint James Home Mr.' Mammals 23-24 1938 ). The aspects Of sleep deprivation that might result in substantial . physical discomfort, therefore, are limited in scope; and although the degree of distress associated with sleepiness, as noted above, may differ fromperson to person,the CIA has found that many of the at least 25 detainees subjected to sleep deprivation have tolerated it well. The general conditions in which sleep deprivation takes place would not change this conclusion. Shackling is employed as a passive means of keeping a detainee awake and is used in a way designed to prevent causing significant pain. A detainee is not allowed to hang by his wrists. When the detainee is shackled in a sitting position, he is on a stool adequate to bear his weight;and if a horizontal position is used, there is no additional stress on the detainee's arm or leg TOP—ieRVern • FROM Si TE 15 DOJ (TUE)N1AY re 2005 17:St/ST. 17145/140. 6160420715 P 455 TOPS IRETi 01SM joints that might force his limbs beyond their natural extension or create tension on any joint. Furthermore, team members, as well as medical staff; watch for the development of edema and will act to relieve that condition, should significant edema develop. If a detainee subject to sleep deprivation is using an adult diaper, the diaper is checked regularly and changed as needed to prevent skin irritation. Nevertheless, we recognize, as noted above, the possibility that sleep deprivation might lower a detainee's tolerance for pain. See supra p.I3 & n.9. This possibility suggests that use of extended sleep deprivation in combination with other techniques might be more likely than the separate use of the techniques to plate the detainee in a state of severe physical distress and, therefore, that the detainee might be more likely to experience severe physical suffering. However, you have informed us that the interrogation techniques at issue would not be used during .a course of extended sleep deprivation with such frequency and intensity as to induce in the detainee a persistent condition of extreme physical distress such as may constitute 'severe physical suffering" within the meaning of sections 2340-2340A We understand that the combined use of these techniques with extended sleep deprivation is not designed or expected to cause that result. Even assuming there could be such an effect, members of the interrogation team and medical staff from OMS monitor detainees and would intercede if there were indications that the combined use of the teChniques may be having that result, and the use of the techniques would be reduced in frequency or intensity or halted altogether, as necessary. In•his regard, we assume that if a detainee started to slow an atypical, adverse reaction during sleep deprivation, the system for monitoring Would identify this development, These considerations underscore that the combination of other techniques with sleep deprivation magnifies the irnix)rtance of adhering strictly to the limits and safeguards applicableto sleep deprivation as an individual technique, as well as the understanding that team personnel, as well as OMS medical personnel, would intervene to alter or stop the use of an interrogation technique if they conclude that a detainee is or may be experiencing extreme physical distress. The waterboard may be used simultaneously.with two other techniques: it may be used during a course of sleep deprivation, and as explained above, a detainee subjected to the waterboard must be under dietary manipulation, because a fluid diet reduces the risks of the technique. Furthermore, although the insult slap, abdominal slap, attention grasp, facial hold, wall;trater dousing, stress positions, and cramped confinement cannot be employed during the• iaaTiasion whelithe waterboard is being employed, they ma: be.used at a point in time close fo the waterboard, including on the same day. See April 22 .ax at 3. explained Why-neither sleep deprivation nor the waterboard Would impose distress of such intensity and duration as to .amount to "severe physical suffering," and, depending on the circumstances and the individual detainee, we do not believe the combinatidn of the techniques, even if close in time with other techniques, would change that conclusion. The physical distress of the waterboard, as explained in Techniques, lasts only during therelatively short periods during .a session when the technique is actually being used_ Sleep deprivation would not extend that period. Moreover, we understand that there is nothing in the literature or experience to suggest that sleep deprivation would exacerbate any harmful effects ofthe waterboard. See supra p. 9. Similarly, the use of the waterboard would not extend the time TOP2RET/ rve44al\T TOP SECRET OORN of sleep deprivation or increase its distress, except during the relatively brief times that the technique is actually being used. And the use of other techniques that do not involve the` intensity and duration required for "severe physical suffering" would not lengthen the time during which the waterboard would be used or increase, in any apparent way, the intensity of the distress it would cause. Nevertheless, because both the waterboard and sleep deprivation raise substantial questions, the combination of the techniques only heightens the difficulty of the issues. Furthermore, particularly because the waterboard is so different from other techniques in its effects, its use in combination with other techniques is particularly difficult to judge in the abstract and calls for the utmost vigilance and care. Based on.these assumptions, and those describe,d.at length in Techniques, we conel yiri.1 that the combination of tecludques, as described. in-the BackgroundPaper and the April MIN Fox, would not be expected by the interrogators to cause "severe physical . . • suffering," and that the authorized use of these techniques in c.ornhination by adequately trained interrogators could not reasonably be considered specifically intended to cause severe physical suffering within the meaning of sections 2340-2340A. 'Severe Mental Pain or Suffering AS we explained in Techniques, the statutory definition of "severe mental pain or suffering requires that one of four specified predicate acts cause "prolonged mental harm." 18 U.S.C. § 2340(2); see Techniques at 24-25. In Techniques; we concluded that only two of thetechniques at issue here---sleep deprivation and the waterboard.--could even arguably invOlVia predicate act. The statute provides that "the administration or application . . .-of . . . procedures calculated to disrupt ­ profoundly the senses or the personality" can be a predicate act, ill U.S.C. § 2340(2)(B) Although sleep deprivation May cause hallucinations, OMS, supported -by the , scientific literature of which we are aware, would not expect a profound-disruption of the senses and would order sleep deprivation discontinued if hallucinations occurred. We nonethelessassumed in Techniques that any hallucinations resulting from sleep deprivation would amount to a profound disruption of the senses. Even on this assumption, we concluded that sleep deprivation should not be deemed "calculated' to have that effect. Techniques at 35-36. Furthermore, even if sleep deprivation could be said to be "calculated" to disrupt the senses profoundly and thus to qualify- as a. predicate act, we expressed the understanding in Techniquesthat, as demonstrated by the scientific literature about which-we knew and by relevant experience in CiAlthr7ogltions, tlie effects of Sleep deprivation, including the greets of any associated hallucinations, would rapidly dissipate. Based on that understanding, sleep deprivation therefore would not cause "prolonged mental harm." and would not meet the statutory definition for "SCS'en t inntn or -surrering" Iii. .at 36: ----- . . - — — .. --- We noted in Techniques that the use of the waterboard might involve a predicate act A detainee subjected to the waterboard experiences a sensation of drowning, which arguably qualifies as a "threat of imminent death," l& U.S.C. § 2340(2)(C), We noted, however, that there is no medical basis for believing that the technique would•produce any prolonged mentalharm As explained in Techniques, there is no evidence for such prolonged mental harm in the CIA's experience with the technique, and we understand that it has been used thousands °filmes TOPACRET/ FROM SITE IS DO4 (TUE)MAY 10 2005 17:51/51. 17 t45/NO. 131150429715 P 57 (albeit in a somewhat different way) during the military training of United States personnel, without producing any evidence of such harm. There is no evidence that combining other techniques with steep deprivation or the waterboard would change these conclusions. We understand that none of the detainees subjected to sleep deprivation has exhibited any lasting mental harm, and that, in all but one case, these detainees have been subjected to at least some other interrogation technique besides the sleep deprivation itself. Nor does this experience give any reason to believe that, should sleep deprivation cause hallucinations, the use of these other techniques iti combination with sleep deprivation would change the expected result that, once a person subjected to sleep deprivation is allowed to sleep, the effects of the sleep deprivation, and of any associated hallucinations, would rapidly dissipate. Once again, our advice assumes continuous, diligent monitoring of the detainee during sleep deprivation. and prompt intervention at the first signs of hillucinatery experiences.. The absence of any atypical, adverse reaction during sleep deprivation would buttress the inference that, like others deprived of steep for long periods, the detainee-would fit within the norm established by experience with sleep deprivation, both the gerteral.experience reflected in the medical literature and the CIA's specific experience with other detaineet. We understand that, based on these experiences, the detainee would be expected to return quickly to his normal Mental state once he has been allowed to sleep and would suffer no "prolonged mental harm" Similarly, the CIA's experience has produced no evidence that combining the waterboard and other techniques causes prolonged mental harry, and the same it true of the military training in which the technique was used. We assume, again, continuous and diligent monitoring during the use of the technique, with a view toward quickly identifying any atypical, adverse reactions and intervening as necessary. The Background Paper raises one other issue about "severe mental pain or suffering." According to the Baciegroune/Paper, the interrogators may tell detainees that they "wilt do what it takes to get important information." Background Paper at 10. (We understand that interrogators may instead use other statements that might-be taken to have a similar import.) Conceivably, a detainee might understand such a statement as a threat that, if necessary, the interLooa will immitlently subject him to "severe physical pain oroffering". or to "the admintstratiOn or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality," or he perhaps even could interpret the statement aa a threat of imminent death (although ; as the detaineeehimselfwearld probably realize, killing a detainee•wOuld end the flow-of infonnation). 1S U.S.C. § 2340(2)(A)-(C). We doubt that this statement is sufficiently specific to qualify as a predioateact under section 2340(2). Nevertheless, we do not have sufficient information to judge whether, in context, detainees understand the statement in any of these ways. If they do, this statement at the beginning of the interrogation arguably requires considering whether it alters the detainee's perception of the interrogation techniques and whether, in light of this perception, prolonged mental harm would be expected to result from the comhinatiOn throughout the interrogation process of all of the techniques used. We do not•have any body of experience, beyond the CIA's • TOP)3kRET own experience with detainees, on which to base an answer to this question. SERE training, for example, or other experience with steep deprivation, does not involve its use with the standing position used here, extended nudity, extended dietary manipulation, and the other techniques which are intended "to create a state of learned helplessness," Background Paper at 1, and SEREtraining does not involve repeated applications of the waterboard. A statement that the interrogators "will do what it takes to get important information" moves the interrogations at issue here even further from this body of experience. Although it may raise a question, we do not believe that under the careful limitations andmonitoring in place, the combined use outlined in the Background Paper, together with a statement of this kind, would violate the statute. We are informed that, in the opinion of OMS, none of the detainees who have heard such a statement in their interrogations has experienced "prolonged mental harm," such as post-traumatic stress disorder, see Techniques at 26 n.31, as aresult of it or the various techniques utilized on them. This body of experience supports the conclusion that the use of the statement does not alter the effects that would be expected tofollow from the combined use of the techniques. Nevertheless, in light of these uncertainties,you may with to evaluate whether such a statement is a necessary part of the interrogationregimen or whether a different statement might be adequate to convey to the detainee the seriousness of his situation. In view of the experience from past interrogations, the judgment of medical and psychological personnel, and the interrogation team's cliligent.mortitoring of the effects of combining interrogation techniques, interrogators would not reasonably expect that the combineduse of the interrogation methods under consideration, 'subject to the conditions and safeguards setforth here and in Techniques, would result in severe physical or mental pain or Suffering within the meaning of sections 2340-2340A, Accordingly, ariitinch ide that the authorized use, asdescribed in the Background Paper and the Apra 22Wcce; of these techniques in combination by adequately trained interrogators could not reasonably be considered specifically intended to cause severe physical or mental pain or suffering, and thus would not vielate sections 2340-2340A. We nonetheless underscore that when these techniques are combined in a real­world scenario, the members of the interrogation team and the attendant medical staff must be vigilant ineWCIling for unintended effepts, so, that the individual chareeterisdcs of each detainee are constantly taken into account and the interrogation 'may be.modified or halted, if necessary, -to avoid causing severe physical or mental pain or suffering to any detainee. Furthermore, as noted above, our advice does not-extend to combinations of techniques unlike the rune discussed— here,, and whether any other comb nation of techniques would be more likely to cause severe physical or mental pain or suffering within the meaning of sections 2340-2340A would be a question that we cannot assess here. Similarly, our advice does•ot extend to the use of techniques on detainees unlike those we have previously considered; and whether other detainees would; in the relevant ways, be like the ones at issue in our previous advice would be a factual question we cannot now decide, - Finally, we emphasize that these are issues about whichreasonable persons may disagree. Our task has been made more difficult by the imprecision of the statute and the relative -absence of judicial guidance, but we have applied our best reading of the law to the specific fads that you have provided. TOP sARET FROM SITE 15 OOJ (TUE)MAY 11:1 2005 17151/ST- 17:45/140. 61 OV42qT15 P es Please let us know if we may be of further assistance. Steven G. Bradbury Principal Deputy Assistant Attorney General