OLC Memo: Interrogations of Detainees (undated draft)

N: ol Uetnunces kthaftk,a1013.- OW issued three opinions in. Auguat D.)02 and another in March 2003 that discussed the legal standards fir intemgations of letainees. One. other opinion, issued in Mardi 2002, considered a related topic. t 0 In a letter opinion dated. August I, 2002, OLE advised ji.dge Ciora* that the use of an interrogation technique in the. war against terrorism., if it did not violate. the United States -would. neither violate the criminal statute foibidding torture, 11,11.3.S.C.•§.§ 2340-2340A, intematiorial Con*ention Against Tortum ("CA•') nor create a basis for prosecution under the Rome Statute establishing the International Criininal Court. (P) 0 In a lengthier ‹.).pinion of the same date- OLC expanded on the -explanation of the sf.:ope to c..o•stittitt.-‘ torture, an act must inflict pain equivalent of the criminal atatute, it concluded 'to that ofsLPO US physizal injury, such as organ failure impairment of bodily film:Ilan : or death. InmitA, pain could amount to torture only if it resulted tsrom one of the predicate acts .nanied ia tiw statite threats of death or torture : . infliction of physical pain amounting to torture, use -of druu that alter personality, or -threats to d any of these things to a third navy - and only if it lasted for a significant dUratiOn (Months Or years). The opinion found that the criminal stavatc would be lineonstitutional if applied in a manner that interfered with the President's authority as Commander-in-Chief to conduct a military campaign. (5)- 0 In an opinion ahio igaued sktigut , 2002, (RE advised the CIA. that specific interrogation techniques, if uzed agziot Abu lo.13.iyclah, would not vioiate the critninal statute against torture. The specific techniquez wen: a faCial ...31.ap or it slap not designed to inflict pain, fonts of cramped coi fi mdat (including confinement in a space with an. insect, of which Abu lubaydah k particularly afraid) ; wall standing that induces muscle fatigue, a. variety of stress positions inducing discomfort similar to muscle fatigue, sleep deprivation, "walling" (in which the subject is pushed against a wall in a manner that causes a loud noise but. no injury), and the "waterliciarr (in which water is dripped onto a cloth over the object's mouth and nose, creating the perception of dmwnin0. 0 Oia March 14, 2003, OLC issued an opinion to the Department of Defense about military interrogation of alien unlawful combatants held. outside the United States. The opinion specifically addessed at Qaeda and Taliban detainees, It considered. a wider range of legal authorities than the opinions...111r Judge Gonzales and the CIA. b did not assess tile legality of partieular techniqum, except by way of examples divi•n:eed from the specific factg of arty particular interrogati. ,:'.rt 'addititin n repeathag much 4 of.the analyais froin enlier opinion% this opinion concluded that the Fifth Am minim t does not apply to the interrogation of enemy combatants outside the United States, and El Mi Amendment does not apply outside the context. of. paniAnnent: that the torture staate Wouki ­ .11.0i apply to interrogations within the territorial 'United States r on permanent military bases -outside the tenitorr of the United States; and that the obligations of the Unite'd States under the CAT, with regard to the prohibition against. cruel, Inhuman, or degrading treatment, eX.101(1 ady to preventing conduct that would be "ertiei and1-111.1.under the Eighth Amendment oT Waiiid "shod: ti conscience" mom- the Due Process 16P.1.1 Clause of the Fifth Amendment. N 0 In addition, on March 13, 2002, OLC issued an opinion to the Department of Deknse, concludin that the President has -plenary authority, as Commander in Chief, to trans&r to other conntri es any members of the Taliban militia, at Qaeda, or other terrorist organizations that the United statez forces have captured and are holding outside the United States, (1:1) • The lengthy opinion of August 1, 2002, about the scope of the criminal statitte is now postedou the gin­ hington Post a web site,. A. draft memorandum that a Department of DelZtuse working group prepared in March 2003 and that, we b(dieve, reflects f.:Imiliarity with a draft of the OLC opinion of March 2003 is available on the web site of National Public Radio, In addition, a draft memorandum of OLC from January 2002, dealing with the application of the Geneva Conventions to fhiled states, appears to have been provided to Aramveck, as has a December 2S,. 2001 opinion about the availability of habeas corpus to detainees at Guantanamo. (U) 0 The inspector General of the CIA. has written a report about the CIA's program using enhanced interrogation techniques." We have two basic disagreements with the report. First, we disagree with the 10 — and with the CLA,'s Office of General Co unse,,1 (" OGC") about whether OLC endorsed a set of bullet points that OGC produced in the spring of 200$, sultan:nixing legal principles that were said to apply to interrogations of detained terrorists outside the United States. MC attorneys reviewed and commented upon drafts of these bullet points, The General Counsel believes that this procedure amounted to 01,.s colic:an -ewe As WaS Made, Clear to OGC at a' On on June 17, 2003, ("A .0 does taot view these unsigned., undated bullet points as a. opinion of OLC or a statement of its views. 8m:rod, the IG's reportstates dna at a meeting ofthe :MSC prim ipis 00 Tidy 29, 2003 the .Attone y General approved "expanded use of the technique" The Attorney General did approve the use of approved techniques on detainees other than Abu Zatbaydah, bat the techniques were not otherwise "expanded" in any way. t,1•3 *We expecl demands for the release of the OLC opinions that have not be,',',ot Departm.ent believes that these opinions 8bould remain confidential. (U) The 'Inspector General of the CIA has written a report about theCIAs program -using "enhanced interrogation techniques," We have two basic disagreements with the report. First, we disagtee with the IS and with the CIA's Office of General Counsel (uOCC") about. whether OLC, endorsed aset of bullet points that. OGC produced in. the spring of 2003, summarizing legal principles that were said to apply to interrogations of:detained terrorists 0-Mid0 the United States. OW attorneys reviewed and COMM el-ted upon drafis of these ballet points. The General. Counsel. believes that this -pmeedure amounted to OLC's concurrence. As was .rnade dear to GOC at a :meeting on ;lune 17, 2003, O .LC does not view these unsigned, undated bullet points as a opinion of OLC. or a statement ails views. Second, the Ki's report states that, at a meeting of the: NSC principals. on Snly 2.9, 2.003, the Attorney General apo.{.. '11 "expanded use of the techniques." The Attorney General did appove the use of approved teehnignes on detainees other than Abu Zubaydah, but the techniques were not Oherwise "expanded" in any way. (IS 0 We expect. demands for the release of the 01..-C opinions that have not become nubtie. The Department believes that these opinions should remain eonfidential. ' Top SECRET/OW/6ST S Addendum: SUMniary Of Advice Advice Igthe Cognsel tkz:th=12tfEidgil In a letter opinion dated August 1, 200.2, OLE advised judge Golizales that the use of an interro?ation technique in the war. against terrorism, if it did not violate the United States criminal statute forbidding torture, IS USE. §§ 2340-2340A, wooki Deli:heir violate the international Convention .Against Torture nor create a basis ibr prosecution under the Rome Statute establishing the international Criminal Court. The opinion set out the elements of the criminal statute a follows: "(1.) the torture oecurred. outside the United States; (2) the defendant acted under color of law; (3) the vim wa ­ s within the defendant's custody co physical contml; (4) the defendant specifically intended to cause severe physical or mental pain or sufkring; and (5) . „he act inflicted severe physic4.11 or rtierafil '‹.)r. glaffering. The cvinion then concluded that, in view of the undemtandings about the CO -kwention. that attended its ratification by the United :States, the international law obligations under the Convention could not exceed tbk)se under the criminal statute.. It farther concluded that the United States is not bound by the ICC Treaty,. ,whieh it has not ratified,,tind that, in .any event, the interrogation of al Qaeda operatives and Taliban soldiets could not be a crime that would come within the jurisdiction, because the int'ould not be part of a systeinatio iltit a.cf.k against a civilian population and because. l'either at Qaeds. operatives nor Taliban soldiers are prisoners of war under the Geneva Convention. The opinion did not examine specific interrogation techniques. In a lengthier opinion of the same date,. 01..C. expanded. on the explanation of tht geope of the criminal statute. it concluded that, to constitute torture:, an act must inflict pain equivalent to that of serious physioal iqiuty, such as organ failure, impairinexn abodily Ln, odeath, Purely mental . 5-min could =malt to torture only if it resulted from one of the predicate acts named in the statute t of death Or torture, infliction of physical pain amounting to torture, me of fkags that alter personality, or threats to do .piy of these things .to it third party &onl-,Y if it lasted for a significant dttration (months or years). A defendant would violate the statute only if he specifically intended to inflict such sultbring. The Convention on Torture, the opinion stated, similarly designates as torture only moh extreme measures, The Opinion did not review and approve specific. techniques. Instead, it observed that, in other contexts, courts have tended to examine the totality of the circumstances and. to -5 d torture whore the acts ingnestion are Shocking, The opinion fbttfld. that the efitain.al statute would be ; -tneotpltilution, i apr,lied in a ma mer that interfered with the Preitident'a mithority as Connuander-in-Chief to conduct military campaign, h' utd, finally, that an halm-regal:on:night be able to asseil ileftmse6 of ntecusity snd self-defense if chargml with violating the torture statutf!. TOP s:' ' 4 Advice to CIA In an opinion also issued August 1, 2002, OLC advised the CIA that. spific imerrosation . techniques, if used against Abu .Znbaydah, would not violate the criminal statute against torture, The speci& techniques were.. a facial slap or insult slap not designed to inflict pain„ -Toms of cramped confinement (including col-that-anent in a space with an insect, of which Aim Zubaydah is particularly ali:aid.), wall standing that induces muscle fatigue, a. variety of sttess positions discomibrt simihtr to muscle tkligue, sleep d..!priv-ation„ "walline (M which th ,!.t subject is mished against a wall M a manner that causes a INA DOiSel-mt 110 iniur.'A, and tile "wwerboard” (in which water is dripped onto a cloth over the subject's mouth and nose, creating the perception of drowning). These techniques (except for the use of the insect) have been employed on United. States milituy personnel as part of training and have been found not to cause. prolonged mental or physical harm. Furthermore, an assessment of Abu Zuhaydab by the CIA showed that he had no conditions that would .make it likely fur him to gaffer prolongtxl mental harm as a nrsuli of the interrogation. With this background, the opinion concluded, that none of the techniques would cause him the severe physical pain that would amount to torture under the statute, paJticularly because medical personnel would be monitoring the interrogation. Nor would the techniques cause the severe mental helm that might amount to torture a prolonged mental harm resulting from one of the predicate acts in the statute. The only technique that might involve such an act was the use of the wmthoa.M, which could convey a. threat of severe pain or sutTedng, hut reseanh indicated that the technique would not cause prolonged .mental harm and so would not come within the statute. In any event, the statute would be. violated only if the defendant had a specific intent to cause Severe pain or suffering, No such intent, could be fOund hem, in part. because of the careful restrictions under which the interrogation would take place. Adyice to Department of Defense On March 14, 2003, °LC issued an opinion to the Department orDefense about military intwogation of alien unlawful combatants held outside the United States. The opinion specifically addressed al Qaeda and Tallban detainees, It considered a widff range of legal authorities than the opinions for judge Gonzales and the CIA but did not assess the legality of particular techniques., except by way of examples divorced from the specific liras of any particular interrogation. The opinion concluded that the. Fifth Amendment does do not apply to the interroption of enemy combatants outside the United States, and Eighth Amendment does not apply outside the. context of punishment. It then turned to several criminal laws. it determined that interrogation methods not involving physical contact would not constitute assault, and techniques involving InitriMal physical contact (poking, shipping:, Or 5u\ "L.') m. Unlikely tep,rodu.ce the injury necessary to establish mault, '§ 113. Jr also found it unlikely dud statutes Olr maiming, I8 ILS.C..". § 114, or interstate stalking, I '§ 2.2f1 A, could apply, it found that the War Crimes .Act, I U.S.C. 4 MI, could not reach the interrogation of al Qaeda and Taliban detainees because, as illegal beiliPrents, they do not qualify for protection under the. Geneva or Hague Conventions. The torture statute., the op ion concluded, would not apply to interrogations within the territorial United States or on permanent military bases outside the territoty of the United States, It nonetheless repeated the analysis of the statutory elements as laid out in the earlier opinions, as well as the analysis of the Convention Against Torture. The opinion went beyond the earlier ones, however, by discussing the. C.'..onvention's prohibition against cruel, inhuman, or degrading treatment it flyund that the United States' obligations in this regard extended only to preventing conduct that would be "mei and unusual" under the Eidth An me; or would "shock the conscience" under the Due Process Clause of the Fifth Amendment. As to the Eighth Amendment, it bsaved that the analysis ttuns on 'whether'ofkicid acts in good faith r 'maliciously or Skldiai.caHy. Whether any pain inflicted during an interrogatin is proportional to the necessity for its use, for example, would inFortn that analysis. Cases on conditions of confinement also provide analogues. Them a violation oar., be shown only if there is deprivation of a basic human need, combined with a deliberate indifThrenee to the prisoner's health and safety. The opinkm specifically stated that a brief stay in solitary confinement wonid not amount to a violation, nor would insults or ridicule. The "shock the conscience" test, the opinion stated, is an evolving one, but it noted that rape s& beating during an interrogation could constitute behavior so disproportionate to a. legitimate need so inspired by malice or sadism as to meet the stand=1. Nfetbods chosen solely to produce mental suffering might also shock the conscience. alt some physical contact a shove or slap would not be sufficient. The detainee would have to suffkr some physical n illy or severe mental diStMiS resulting from the- interrogator's conscious disregard of a known risk to the detainee. Finally, the opinion discussed the defenses of necessity and self-defense that an interrogator might assert if charged with a crime and found that these defenses might be available under some circumstances,