2004 cia ig report

8/10/2019 2004 CIA IG report

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8/10/2019 2004 CIA IG report


8/10/2019 2004 CIA IG report


t he f ou r d ay s the individual wa s detained.un Agency independentcontractor, who was a paramilitary officer, is alleged to have severelybeaten the detainee with a large metal flashlight and kicked himduring interrogationsessions. Th e detainee died in custody on21 june his body was turned over to a local cleric and returned to hisfamily on th following date without an autopsy being performed.Neither the contractor nor his Agency staff supervisor ha d beentrained or authorized to conduct interrogations. The Agency did notreflew the independent contractor s contract, which w s up forrenewal soon after the incident. OIG is investigating this incident in .concert with DOJ

The objective was to determine if anyone ate school ad information about the detonation of a remote-

controlled improvised explosive device that had killed eight borderguards several days earlier.

196. A teacher being interviewedre ortedl smiled and lau he d inappropriately,

whereupon used the butt stock of his rifleto strike or buttstroke the teacher at least twice in his torso,followed y several knee kicks to his. torso. This incident waswitnessed y 200 students. The teacher wa s reportedly not seriouslyinjured. n response to his actions, Agency management returned the

to Headquarters. e was counseled andgiven a domestic assignment.

I

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N LYTI L SUPP T T Ii\TERl {OGATIO,\:. ,

2 4 [ i r C t ~r:ltl of nteJli:se ce t 1 n l h · ~ t s

assigned e provide L l n J l > · h G l ] ~ u F F J u r tto iJlterrogZl[iCJrt c un::; in

the field Analvsts ar e respon ible fur (L:: \ clcpiJ\g requirenlenb forthe queshonin of detainees i v:ell as conductu lg debrieiings insome cases

Arlalvsts, however do no t

participate in the application of Lnterrogation tedlJliques

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205. According to a number of thoseinterviewed for this Review the Agency s intelligence on Al-Qa ida

was limited prior to the initiation of the eT Interrogation Program.The Agency lacked adequate linguists or subject matter experts an dhad very little hard knowledge of what particular Al-Qa idaleaders who later became detainees knew This lack of knowledgeled analysts to speculate about what a detainee should know, viceinformation the anal st could obiectivel demonstrate the detaineedid know.

a detainee did not respond to a question posed- to him, theassumption at Headquarters was that the detahtee wa s holding backand knew more; consequently, Headquarters recommendedresumption of EITs

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evidenced in th e final aterboarci se.s: :ion of A bu ZubJ\ dah.

ccording to a senior eT C offict r the interrogatiun t e a n l

o n s i d e r e d Abu Z u b J ~ · d c ht l ~ e\. C 111FdiclIlt an d ~ \ ? t J l t e jtctermin te EITs believed ~ uZubcn dah continued to

withhold information

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generated substantial pressure from Headquarters tocontinue use ofthe BITs According to t s senior officer the decision to resume uS e

of the waterboard on bu Zuba dah was made b senior officers ofth e D O

to assess bu Zubaydah s compliance and witnessed thefinal waterboard session after-which they reported back toHeadquarters that the EITs were no longer needed on Abu

Zubaydah

fF TIV N SS

211.

The detention of terrorists has preventedthem from engaging further terrorist activity n theirinterrogation has provided intelligence that has enabled theidentification and apprehension of other terrorists warned ofterrorists plots planned for the United States an d around the worldand supported articles frequently used the finished intelligencepublications for senior policymakersand war fighters. In this regardthere is no doubt that the Program has been effective. Measuringtheeffectiveness of EITs however is a more subjective process and no twithout some concern.

212. When the Agency began capturingterrorists ~ n g m n tiud ed the success of the effort to be ettinthem off the streets

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i t e capture terronsts W a access to muc more

significant actionable information the measure of success of theProgram increasingly became the intelligence obtained from thedetainees.

214. Cl C frequently uses the.information from on e detainee as well as other sources to vet theinformation of another detainee. Although lower-level detaineesprovide less information than the high value detainees informationfrom these detainees has on many occasions supplied the .information needed to robe the h value detainees further.

the triangulation-of

intelligence provides a fuller knowledge of Al-Qa ida activities thanwould be possible from a single detainee. For example MustafaAhmad Adam al-Hawsawi the Al-Qa ida financier who wascaptured with Khalid Shaykh Muhammad rovided the Agency sfirst intelligence pertaining to anotherparticipant in the 9 terrorist plot. Hawsawi sinformation to obtain additional details about role fromKhalid Sha kh Muhammad

213.

Quantitatively the DO has significantlyincreased the number of counterterrorism intelligence reports withthe inclusion of information from detainees n its custody. Between9 and the end of April 2 3 the Agency produced over 3 000intelligence reports from detainees. Most of the reports came from .intelli ence provided by the high value detainees at

215. Detainees have providedinformation on Al-Qa ida and other terrorist r ~.note includes: the modus operandi of A l - Q a i d a _

errorists who are capable of mounting attacks n the

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216.

Detainee information ha s assisted theidentification of terrorists. For example information from AbuZubaydah helped lead to the identification of Jose Padilla andBinyam Muhammed-s-operatives who had plans to detonate auranium-topped ~ ybomb in either Washington p.C. or NewYork City. Riduan Hambalf Isomuddin provided information-thatled t o the arrest of previously unknown members of an Al-Qa ida cell Karachi. They were designated as pilots for an aircraft attack .inside the United States. Many other detainees including lower-leveldetainees such as Zubayr an d Majid Khan have provided leads toother terrorists but probably the most prolific has been Khalid .Shaykh Muhammad. He provided information that helped lead tothe arrests of terrorists including Sayfullah Paracha and is son UzairParacha, businessmen whom Khalid Shaykh Muhammad planned touse t o smuggle explosives into th e United States: Saleh Almari a

sleeper operative New York; and Majid Khan an operative whocould enter th e United States easil and wa s tasked to researchattacks Khalid Shaykh Muhammad si n f ~ r m t i o nalso l ~ to the i n v e ~ t i g t i o h n d p r o s ~ c u ~Fans, the truck driver arrested early 2003 m Ohio. _

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blow up severalU.S. gas stations to create panic and havoc; hijack and y an airplaneinto th e tallest building n California n a west coast version of thWorld Trade Center attack; cut the lines of suspension bridges n

N ew York in an effort to make them colla se;

This Review did not uncover any evidence that these plotswere imminent. Agency senior managers believe that lives have beensaved as a result of the capture and interrogation of terrorists who

. were planning attacks in particular Khalid Shaykh Muhammad, AbuZubaydah, Hambali and Al-Nashiri

218.detainees as one of the most

intelligence. viewed

analysts knowledge of the terrorist target as having much moredepth as a result of information from detainees and estimated that

detainee reporting is used in all counterterrorism articles roducedfor th e most senior olie makers.

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s id he believes the use of EITs h s proven to be extremely valuable obtaining enormous amounts of critical threat information fromdetainees who h d otherwise believed they were safe from y h rm

the h nds of Americans.

220.

Inasmuch as EITs have been used only.since August 2002, nd they have not ll been used with every highv lue detainee, there is limited d t on which to assess their

. individu l effectiveness. This Review identified concerns bout theus e of th e waterboard, specifically whether the risks of its use werejustified by the results, whether it h s been unnecessarily used

some instances, nd whether the fact that it is being pplied in am nner different from its us e i n SERE training brings into questionth e continued applicability of the Do} opinion to itsuse Althoughth e w terbo rd is the mos t intrusive of theEl Is, the fact th tprecautions have. been taken to provide on-site medical oversight inth e use of all EITs is evidence that their use poses risks.

221.

Determining the effectiveness of eachEIT is import nt facilitating Agency management s decision as to

which techniques should be used nd for ho w long. Measuring theoverall effectiveness of EITs is challenging for a number of reasonsincluding: 1) th e Agency cannot determine with any certainty th etotality of th e intelligence the detainee.actually possesses: 2) eachdet ineeh s different fears of nd tolerance for BITs; 3) theapplication of the s me EITs by different interrogators m y have

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222. The waterboard has been ~ on threedetainees: Ab u Zuba dahl Al-Nashiri, and Khalid Sha k hMuhammad

223. Prior to the u s ~of EITs, Abu Zubaydahprovided information fo intelligence reports. Interrogatorsapplied the waterboard to Abu Zubaydah at least 83 times duringAugust 2002. During the period between the en d of the use of th ewaterboard and 30 Apri12003, he provided information forapproximate l_addi t ional reports. It is not possible to saydefinitively that the waterboard s the reason for Abu Zubaydah sincreased production, or i another factor, such as the length ofdetention wa s the catalyst. Since the use of the waterboard

however Abu Zubaydah has appeared to be cooperative.

•

4

it h respect to l N ~ s h i r i _reported two waterboard sessions in November 2002, after

W ic e psychologist/interrogators determined that Al-Nashiriwas com liant. However, after bein move

Al-Nashiri was thought to be withholdinginformation. Al-Nashiri subsequently received additional EITs,

. but not the waterboard. The Agency then. deterinined Al-Nashiri to be compliant. Because of the litany of

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teclmiques used by different interrogatorsover a relatively shortperiod of time it is difficult to identify exactly why Al-Nashiribecame more willing to provide information. However following

th e use of EITs hep r o v i ~

information about hi s most currentoperational planning and as opposed tothe historical information he provided before th e use of EITs.

. 225.

n the other hand Khalid ShaykhMuhammad an accomplished resistor provided only afewintelligence reports prior t the use of the waterboard and analysis ofthat information revealed that much of it s outdated inaccurate orincomplete. As a means. of less active resistance at file beginning oftheir interrogation detainees routinely provide information that theyknow is already known. Khalid Shaykh Muhammad received 183a lica tions of the waterboard in March 2003

POLI Y CONSIDERATIONS AND ON ERNS REG RDING THE DETENTION

p INTERROG TION PROGR M

226.

The ~ sused by the Agency under thee Program are inconsistent with the public policy positions that theUnited States has taken regarding human rights. This divergence has

been a cause of concern to some Agency persormel involved with· theProgram ..

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Policy Considerations

227. (U/ I OVO Throughout its history, the United States hasbeen an international proponent of human rights and has voiced .opposition to torture and mistreatment of prisoners y foreigncountries. TIus position is based upon fundamental principles that aredeeply embedded n the American legal structure an d jurisprudence.The Fifth and Fourteenth Amendments to the U.S. Constitution, forexample, require due process of law, while the Eighth Amendmentbars cruel and unusual punishments.

228. (U/ /FOUO) The President advised the Senate when

submitting the Torture Convention for ratification that the UnitedStates would construe the requirement of Article 16 of the Convention.to undertake to prevent n any territory under its jurisdiction otheracts of cruel, inhuman or degrading treatment or punishment whichdo not amount to torture as roughly equivalent to and coextensivewith the Constitutional guarantees against cruel, Unusual, andinhumane treatment. 8t To this end, the United States submitted areservation to the Torture Convention stating that the United Statesconsiders itself bound by Article 16 only insofar as the term cruel,inhuman or degrading treatment or punishment means the cruel,unusual and inhumane treatment or punishment prohibited y th e5th 8th and or 14th Amendments to the Constitution of the UnitedStates. Although the Torture Convention expressly provides that noexceptional circumstances whatsoever, including war or any otherpublic emergency, an d no order from a superior officer, justifiestorture, no similar provision was included regarding acts of cruel,inhuman or degrading treatment or punishment.

81 U/ /FOUO See Message from the President of the United States Transmitting th eConvention Against Torture an d Other Cruel/ Inhuman or DegradingTreatment or Punishment,Sen. Treaty Doc. 100-20, looth Cong., 2d Sess., at 15/ May 23/1988; Senate Committee ForeignRelations/ Executive Report 101-30/ August 30/1990/ at25 29 quoting summary and analysissubmitted by President Ronald Reagan, as revised by President George H.W. Bush.

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229. UI/FOUO Annual U.S. State Department CountryReports on Human Rights Practices have. repeatedly condemnedharshinterrogation techniques utilized y foreign governments. For

example, th e 2002Report, issued inMarch 2003,stated:

[The United States] have been given greater opportunity to makegood o n o ur commitment to uphold standards of human dignityan d liberty. . . . [N]o country is exempt from scrutiny, and allcountries benefit from constant striving to identify theirweaknesses an d improve their performance . . . . [T]he Reportsse rve as a gauge for ou r international human rights efforts,pointing to areas of progress and drawing ou r attention to new an dcontinuing challenges.

n a world .marching toward democracy and respect for humanrights, the United States is a leader, a partner an d a contributor.We have taken this responsibility with a deep an d abiding beliefthat human rights are universal. They are not groundedexclusively in American or western values. But their protectionworldwide serves a core U.S. national interest.

Th e State Department Report identified objectionable practices in avariety of countries including, for example; patterns of abuse ofprisoners in Saudi Arabia y such means as suspension from bars

handcuffs, and threats against family members, [being] forcedconstantly to lie on hard floors [and] deprived of sleep Otherreports have criticized hooding and stripping prisoners naked.

230. U/ /FO.UO) n June 2003, President Bush issued astatement in observance of United Nations International D ay i nSupport of Victims of Torture. The statement said in part:

The United States declares its strong solidarity with torture victimsacross the world. Torture anywhere is an affront to human dignityeverywhere. We are committed to building a world where humanrights are respected an d protected by th e rule of law.

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• • • • •

Freedom from torture is an inalienable human r ight . . Yettorture continues to be practiced around the world by rogueregimes whose cruel methods match their determination to crushthe human spirit

Notorious human rights abusers have sought to shield theirabuses from the eyes of the world by staging elaborate deceptionsan d denying ess to international human rights monitors

The United States is cormnitted to the worldwide elimination oftorture an d we are leading this fight by example. I calIon allgovernments to join with the United States and the community oflaw-abiding nations in prohibiting, investigating, andprosecutingall acts of torture and in undertaking to prevent other cruel an d

unusual punishment

Concerns Over Participation in the ere Program

, 3 ~ During the course of this Review, a number ofAgency officers expressed Unsolicited concern about the possibility of,recrimination or legal action resulting from their participation in thee Program. A number of officers expressed concern that a human

ue them for activitiesAdditionally, they feared that the Agency

would not stand behind them i f this occurred.

232. ~ n eofficer expressed c o n ~ e r nt h ~ tone day,Agen.c y officers will wind on some ~ w n t e dlist

• t ~ ~ ~ beforeth e World Court for war crimes stemming from activIties

Another said, Ten years from now we re going to be sorrywe re doing this [but] it has to be done. He expressed concernthat the e Program will be exposed in the news media and citedparticular concern about the possibility of being named in a leak.

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EN G JvfE

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237 The number of detainees n CIA custody s relatively small y corup.uison \\litJ those in U.S. military custody

Nevertheless the Agency l ke th e mili tarv has an interest n thedisposition of detainees .uu.l po r ticula r interest n those who. if notk pt isolation would likely divulge information about thecircumstances of the ir de ten tion

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ON LUS ONS

250. The Agency s detention an d

interrogation of terrorists has provided intelligence that has enabledth e identification and apprehension of other terrorists and warned ofterrorist plots planned for the United States and around the world.Th e e Detention and Interrogation Program has resulted in theissuance of thousands of individual intelligence reports an d analyticproducts supporting the counterterrorism efforts of U.S.policymakers and military commanders. The effectiveness ofparticular interrogation techniques in eliciting information that mightnot otherwise have been obtained cannot be so easily measured,however

251. After 11 September 2001, numerousAgency components and individuals invested immense time an deffort to implement th e eTC Program quickly, effectively, and withinthe law The work of the Directorate of Operations, CounterterroristCenter eTC), Office of General Counsel (GGC), Office of MedicalServices (OMS), Office of Technical Service (OTS)

h s been especially. notable. In effect, they began withalmost no foundation, as the Agency had discontinued virtually all

involvement in interrogations after encountering difficult issues withearlier interrogation p r r ~ sin Central America and the Near East.Inevitably, there also have been some problems with current .activities.

. 5 ~ OGC worked closely with Do] to determine thelegality of the measures thatcame to be known as enhancedinterrogation techniques (EITs). 9GC also consulted with WhiteHouse and National Securi ty Council officials regarding theproposedtechniques Those efforts an d the resulting Do} legalopinion of 1 August 2002 are well documented. That legal opinionwas based, in substantial part on OTS analysis and the experienceand expertise of non-Agency personnel and academics concerningwhether long-term psychological effects would result from use of theproposed techniques.

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.

253. The Dol legal opinion upon which the Agency

relies is based upon technical definitions of t1severell treatment andthe intent of the interrogators and consists of finely detailedanalysis to buttress th e conclusion that Agency officers properlycarrying ou t Errs would not violate the Torture Convention sprohibition of torture, nor would they be subject to criminalprosecution under the u s torture statute. The opinion does notaddress the separate question of whether th e application of standardor enhanced techniques by Agency officers is consistent with th eundertaking accepted conditionally by the United States regarclingArticle 16 of th e Torture Convention, to prevent cruel, inhuman ordegrading treatment or punishment.

254. Periodic efforts by the Agency to elicitreaffirmation of Administration policy and Do} legal backing for th e

. . Agency s use of EITs-as they have actually been employed-havebeen well advised and successful. However in this process, Agencyofficials have neither sought nor been provided a written statementof policy or a formal signed update of the Do} legal opinion,including such important determinations as the meaning and

applicability of Article 16 of th e Torture Convention. n July 2003, theDCI and the General Counsel briefed senior Administration officialson th e Agency s expanded us e of EITs. t that time, the AttorneyGeneral affirmed that the Agency s conduct remained well within thescope of th e 1 August 2002 DoJ legal opinion.

255.

A number of Agency officers of variousgrade levels who are involved with detention and interrogationactivities are concerned that they may at some future date be

vulnerable to legal action in the United States or abroad and that theU.S. Government will not s tand behind them. Although the currentdetention and interrogation Program has been subject to Do}legalreview and Administration political approval it diverges sharplyfrom previous Agencypolicy and practice, rules that governinterrogations by U.S. military and law enforcement officers,s tatements of U.S. policy by th e e p r t m e ~ tof State, and public

1 1

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• . t

-

statements by very senior U.S. officials, including the President, aswell as the policies expressed by Members of Congress, other

Western governments, international organizations, an d human rights

groups. In addition, some Agency officers are aware of interrogationactivities that were outs ide or beyond the scope of the written DoJopinion. Officers ar e concerned that future public revelation of theeT Program is inevitable an d will seriously damage Agencyofficers personal reputations as wel l as the reputation andeffectiveness of th e Agency itself.

. 256. The Agency has generally provided-good guidance and support to its officers who have been detaininand interro atin hi h value terrorists usin EITs ursuant to

n particular, eT did a commendable lob in directin theinterrogations of high value detainees atAt these foreign locations, Agency personnel with one notableexception described in this Review followed guidance andprocedures an d documented their activities well. .

257. y distinction, the Agency especiallyin the-early months of the Program failed to provide adequate

staffing, guidance and support to those involved with th e detentionand interro ation of detainees in

258. Unauthorized, improvised, inhumaneand undocumented detention. and interro ation techni ue s wereused

rosecution.incident will be the

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its advice was based upon certain facts that the Agency hadsubmitted to ol observing, for example, that II you (the Agency)have also orally informed us that although some of these techniquesmay be used with more than once sic] that repetition will not besubstantial because the techniques generally lose their effectivenessafter several repetitions. One key Al- a ida terrorist was subiectedto the waterboard at least 183 times

d was denied sleep for a period of 180 hours. n this an d another instance, the technique of application and volume

of water used differed from the Do} opinion. .

OMS did not issue formal medical guidelines.until April 2003.. er the advice of eTC/Legal, the OMS Guidelineswere thert issued as draft and remain so even after being re-issued n September 2 3

264.

Agency officers report that reliance on

analytical assessments that were unsupported y credible intelligencemay have resulted in the application of Ts without justification, .Some participants in the Program, particularly field interrogators,judge that ere assessments to the effect that detainees arewithholding information are not always supported y an objective

104 .

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evaluation of available information nd the evaluation of theinterrogators but are too heavily based instead on presumptions ofwh t the individual might or should know

266 The Agency faces potentially seriouslong term political nd legal challenges as a result of the

e t e ~ t i o n · a n d I n t e r r o g a t i o n P r o g r a mparticularly its use ofEITs andthe inability of the U S Government to decide wh t t will ultimatelydo with terrorists detained y the Agency

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IZE i\l \l l\l 0 \ 1 1 N 5

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ppendix

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PROCEDURES·AND RESOURCES

1 ~ team le d by the Deputy InspectorGeneral and comprising th e Assistant Inspector General forInvestigations the Counsel to the Inspector General a senior

Investigations Staff Manager three Investigators two Inspectors anAuditor a Research Assistant and a Secretary participated in thisReview

2 OIG tasked relevant components for allinformation regarding the treatment and interrogation of allindividuals detained y or on behalf of CIA after 9/11. Agencycomponents provided ~ with over ~ O O Op a g e ~of documentsOIG conducted over 100 interviews with individuals who possessedpotentially relevant information We interviewed senior Agencymanagement officials including th e DeI .the Deputy Director ofCentral Intelligence the Executive Director the General Counsel andthe Deputy Director for Operations. As ne w information developedO le re interviewed several individuals

OIG personnel made site visits to the

interrogation facilities Ole personnel alsoto review 92 videotapes of interrogations

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ppendix

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effiu of the A3siSblil AUomcyGencnl

T ~ ~ t e p a r b n e n t Justice

Officeof Legal Counsel

August 1002

Memorandum for J ohn RizzoActing General Counsel ofthe Central Intelligence Agenc.y

lnt rrog iton iii aada perative

You have askedfor this Office s views on whethe:rcertain proposed conductwouldviolatethe prohibition against torture found at Section 2340A of title 18of the UnitedStatesCode. You have asked. for this advice in the course of conducting interrogations of AbuZubaydah. As we understandit, baydah is one of the highest ranking members of the al Qaedaterrorist organization, with which the United States is currentlyengaged in an international armed.Conflict following the attacks on the WorldTrade Centerand the Pentagon on September 2001. This letter memorializes our previousoral advice, .given on July 24,2002 and July 26,2002: that the proposed conduct wouldnot violate thisprohibition.

Our advice is based U p J ~the f ¢ 1 ~ w i I i g f a ¢ t s · 1whish you have provided.to us, W e alsounderstand that you do not have any facts in yeut possession contrary to the facts outliqed..here)and this opinion is limited to these facts. these factswere to change this advice- would notnecessarilyapply. Zubaydah is currentlybeingheldbytheUnitedStates. The interrogation teamis certain that he has additional informetionthat he refuses to divulge. Specifieally, he iswithholding information regardingterroristnetworks in the United Statesor in Saudi Arabia andinformation regarding plans to conductattacks withinthe United Statesor against OU f interestsoverseas. Zubaydah has becomeaccustomed to a certainlevel oftreatment and displays.no signsof willingaess to disclose further information, Moreover, your intelligence Indicatesthat there iscurrently a level of chatter equal to that which preceded the September I1 -attacks. n light ofthe information you believe Zubaydah has.and the high levelof threat you believe now exists.youwish to move the interrogations into what youbavedescribedasan increased pressurephase. .

As part of this increased pressure phase Zubaydah will have contact onlywith a new

interrogation specialist, whoil he has not met previously, and the Survival Evasion, Resistance,Escape C SERE ) training psychologistwhohas been involved with the interrogations since theybegan. This phase will likelylast nomore than several days but could last up to thirty days. nthis phase, you would like to employ ten techniques that you believe will dislocate his

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T d ~ R Texpectations regardingthe treatment he believes he will receive and encourage him to disclosethe crucial information mentioned above. These ten techniques are: 1) attention grasp, 2)walling, 3) facialhold, 4) facialslap insult slap). 5) cramped confinement, 6) wall standing7) stress positions. 8) sleep deprivation, 9) insects placed ill a confinement box, and 10) the

waterboard. You have informed us that the use of thesetechniques would be on an as-needed basis and that not all of these techniqueswill necessarily be used. [11e interrogation team woulduse these techniques in SOIne combination to convince Zubaydah that the only way.he caninfluence his surrounding. environment is throughcooperarion. You have: however, informedusthat you expect these techniques beused in some sortof escalatlng fashion culminating withthe waterboard, though not necessarily ending with.ilijstechnique. Moreover you-have-alsoorally informed us that although some of these techniques may be used ,vithmore than once, thatrepeti tion will notbe substantial becausethe techniqu.es generally lose their effectiveness after

several repetitions. Youhavealscinformed us that Zabaydah sustained a wound ·dtJ.ringhiscapture, which is being treated.

Based on the f-acts you have given us, weunderstand each of these techniques to be asfollows, The attention graspconsists grasping the individual with. both hands. one hand oneachside the. collar opening, ina controiled and. quick motion. In thesame motion asthegrasp, the individual is drawn toward theinterrogator.

For walling, a flexible false wall will be constructed. The individualIs placed with hisheels lWcmn g1ne·wttll: · h tnterttrgator pulls.the Individual forward-and-then~ u i e l c l y-andrirmly pushes the ind ividualinto the wall. It is the indi vi-dual s shoulderblades that hit the wall.During this motion, the headandneck are supported with a rolled hoodor towel that providesac-collar effect to help preventwhiplash. To further reduce the probabilityof injury, theindividual is allowed to rebound from the flexible wall. Youhave orallyinformed us that thefalse wall is in part constructed to create a loud sound when the individual hits it) whichwillfurther shock or surprise in the individual. _ n part,the ideais 10 createasound that will make theimpactseem far worse than it is andthat w befar worse than any injury. that l i ~ tresult fromthe action.

The facial hold is used to hold: the.head immobile. One open ~ f u lis placed on.eitherside of .the individual s face. The fingertips arekept well awayfrom the indivldual s eyes.

With the facial slap or insultslap]the interrogatorslaps the individual s face with fingersslightly spread. The band makescontact with the areadirectlybetweenthe tip the individual schin and the bottom of the corresponding earlobe. The interrogator invades the individual s

personal space. The goal of the facial slap is not to inflict physicalpainthat is severe or lasting.Instead, the purpose of the facial slap is to induce shock surprise, and/or humiliation.

Cramped confinement involves the placement of the individual in a confined space, thedimensions which restrict the individual s movement. The eoofined space is usually dark

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~The duration of confinementvaries based upon the sizeof the container, For the Iargercenfinedspace, the. i·ndividualcan stand up or sit down; the smaller space.is farge enough. for lltesubjed to·sit dowo, Confinementin the larger space can last· p to e a ~ t e e ~hours;for t h ~smaller space,confinement lasts for no more than two hours,

\VaU standing is used to induce muscle fatigue. The individual stands about fourto .fivefeet from a wall.with his feet spread approximately to shoulder width. Hisanus are stretchedout in front of him, with his fingers restingonthe wall, Hisfingers support all of his bodyweight. h e individual is not permittedto move or repositionhis hands or f tet.

A variety of stress positions. may be used. You have informed us that these positions.arenot designed toproduce the pain associated with contortions or twisting of thebedy Rather,somewhat like walling: they are designed to produce the physic l discomfort associated withmuscle fatigue. Two particular stress positions are likelyto be usedon Zubaydah: (l) sittingonthe floor With legs extended straight out infrom ofbim with his arms raisedabove his head; and

.(2) kneeling on the floor 'While leaning back at a 45 degreeangle. You have also orally informedus that through observing Zubaydah in captivity, you have noted that heappears to be quiteflexible despite bis wound.

Sleep deprivation may he used. You. have.indicated th t your purpose in using thistechnique is to reduce the individual s ability to thitik an hisfeet and, through the discemfcrtassoctated with i ck ·of-steep;' t o - m o t i v a t e - b i m 1 O O O o p ~ t e : fhe-efreef-bf Sliclt-sleep·:deprivatiou· . -

.will generallyremit after one or two nights'of uninterruptedsteep. You h a v e i n f Q t i n ~us thatyour research has revealed tbat, in rare instances, sollie individuals whoare-alreadypredisposedto psychological problems may experience abnonnal reactionsto sleep deprivaticn. Even inthose cases, however, reactionsabate aftertheIadlvldual is permitted to sleep. Moreover,

personnel with. medical training.. are available to and wIlt intervene in the-unlikely event of anabnormal reaction, You , h a v ~orallv informedus ~ ~you would not deprive Zuba..y.dah of sleepfor more than eleven days-at a time and that }'OU havepreviously kent-him awake for 72 hours,trom· whichno mental or physical h ~ resulted:

You would like to place Zubaydah in a cramped confinementbox with an insect, Youhave informed us that he appears to have a fear of insects. In particular, you would like to tellZubaydah tli.at you intend to placea stinginginsectinto thebox with him. You would. however,place a harmless insect in the box. Youhave orally informed us that YOU would in fact lace a

. s ct. uo as a ca -. marin. the box with bim;

finally, youwould like to use a techniquecalled the waterboard. In this pracedure.thcindividual. is boundsecurely to .an inclined bench, which is approximately four feet by seven feet.The individual s feet are generally elevated. A cloth isplaced over the forehead and eyes, \Vater

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T ~ Tis then applied tothe doth in a controlled manner. Asthis is done, thecloth is lowered until ilcoversboth the nose and mouth. Oncethe cloth is saturated andcompletely covers the mouthand nose. air flow is slightlyrestrictedfor20 to 40 seconds due to the presence o f the cloth. Thiscausesan increase in carbondioxide level in theindividual s blood. This increase in the carbondioxide level stimulatesincreased effort to breathe. This-effort plus the cloth produces mperceptionofusuffocation and incipient panic, i ~ ~ t hperception of dtowrJ1)g. l)e-lndividualdoes not breathe any water into his lungs. Durili.g l1iose20 to 40 seconds, wateris conttnuouslyapplied from a height o f twelve to twenty-four Inches, Afterthis-period, the doth S Hfte4, andthe individual is allowed,to breatheunimpeded for three or foutfun breaths. The sensation of

drowningis immediatelyrelieved by the removal of the cloth.. The procedure may then be ,repeated. The water is usually appliedfrom a canteen cup or small wateringcan With a spout,You have orallyinformedus that this procedure triggers an automaticphysiological sensation of

drowningthat the individual cannot control even though hemaybe aware that he is in fact notdrowning. You have also orally informedus thath is likely that thisprocedure would not last1110re than 20 minutes in anyone application.

We also understand that a medical expert with SERE experience will be presentthroughout this phase and that me procedureswill be stopped if deemedmedicallynecessary toprevent severe mentalor physical harm to Zubaydah. Asmentioned above: Zuhaydahsufferedan injury duringhis capture. You have informedus that steps winbe taken to ensure that thisiniuryis not in anyway exacerbatedby the useof these methods and that adequatemedicalattention will be givento eosure that it will ·heal properly

II.

In this part, we reviewthe context within which these procedures will be applied. Youhave informed us that youhave taken varioussteps to ascertain what effect, if any, thesetechniques would have on Zubaydah s mentalhealth. Thesesame techniquesI with the-exceptionof the insect in the crampedconfinedspace, have beenusedandcontinueto be used. on somemembers of our militarypersonnel during their SERE training. Because.of the use of theseprocedures in training Our own military personnel to resist interrogations, YQ Jhave consultedwith various individualswhohave extensive experience inthe use of these techniques. You havedone so in order to ensure that no prolonged mental harm would resultfrom th e use of theseproposed procedures.

Through yourconsultation with various individuals responsible for such training, youhave learned that thesetechniques have be. conduct without any

e f rolon ed mental harm f the SERE school,as report U\t during the seven-

year period that he spent in those positions, w tworequests from Congress forinformation concerning alleged injuriesresulting from thetraining. Oneof these inquiries wasprompted by the temporary physical injury a trainee sustained as resultof being placed in a

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T ~ R E Tconfinementbox. The other inquiryinvolved claims thatthe SERE training caused twoindividuals to engage in criminal behavior, namely, felony shopliftingand dowIljOaglii1 childpornography onto a n i i l i t a r y . c o ~ r ) U t e r .A c c o ~ d i h gto this-official, these claims : e r ~ _ · ~

~ o r e t v e rhehas indicated that during the three anda half years.he spent the SERE program, he trained I 0,000 students. Ofthose students only twodropped out of-the training following the use of these techniques. Although on rareoccasions.some students temporari.ly postponed the remainder o f their training and received psychologicalcounseling, those students were able to finish theprogram without any indicatlon of subsequentmental health effects,

~ ~ ~ ...[t; unng - oseten-years, insofar as heis i M n O i 1 e · o t f u e : i n : d i v m u a J . S : : W h o ~c j j i n p l e t e d t h . e - p r { ) t a m : - s u ~ e . ranyadverse mental health effects. He irifotJi\ed· yo.u fhat therewasoneperson wli ~ dtiQt completetue. training. That person experiencedan adverse mentalhealth reaction that lasted.onl y twohours. - After those two hours,the individual1 s symptoms spontaneously.dissipated withoutrequiring treatment Qr counseling and no other symptoms wereeverreported by this individuaLAccording to the informationyou have provided to us,this assessment of the use of theseprocedures includes the Use of the waterboard,

-omtbe:\>IDcf-YQusnpplitfito us.:

has experience with the use a a 0 ese prcc uresma course ofconduct, wi tb.e ~ e p t i o n

of the insect in the confinementbox and the warerboard, This memorandum confirms that theuse of these procedures has no resulted i.n any reported:instancesof prolongedmental harm, and

cesof immediate and temporary adverse psychological responses to the training.eported thata small minority of students havehad temporary dverse

psychologicalreactions during training. Of the26,829 students trainedfrom 1992 through2001in the Ai r Force SEREtraining, 4.3 percentof those students h d contact with psychologyservices, Of-those4.3 percent, 0 tilY3.2 percent werepull ec lfrom ~ el ~ r o g r a m · . f o rpsycho togicalreasons. Thus, out of the students trainedoverall, oliIy 0 . 1 4 .i. . : , v ~ : :utlea fro_JIL:theprogram for psychological reasons. Furthermore -A1th oug \ - , ~ c a t e dfbat·surveysof students having completed t l i i s ~ n garebot done,be:expj;esse:ocOn id.encethat-thetrainingdid not causeanylong-term psychological impact. He based:hisconclusion on the debriefing of

students that is done after the training. More Importantly, he based thisassessmenton the fact

that although trainingis required to be extremely stressful in order to be effective,very fewcomplaintshave been made regarding the training. Duringhis tenure, in which -l{ OOOstudentswere trained nocongressional complaints havebeen made, While there was one InspectorGeneral complaint, was notdue to psychological concerns, Moreover,he was aware of onlyone letter inquiring about the long-term impactof these techniques from au individual trained

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o:,er l v ~ o t y~ u u that ii ,va: impossible to attribute this i n d l v i d ~ a l ssymptoms lohis trammg. ~ n l u ethat there are any long-term psychological effects of theUnited StatesAir Forcetraining using the procedures outlined above they tare certainlyminimal.

With respect to th e waterboard, you have also orally informed us-that the Na Y continuesto us it in training, You have.informed us that your on-site psychologists, who have extensiveexperience with the use of the waterbcard in Navy training, have not encountered any significantlong-term mental health consequences from its use, Your on-site-psychologists have alsoindicated that JPRA has likewisenot reperredanyslgnifieant long-term mental healthconsequences from the use ofthe waterboard, You have informed us that.otherservices ceaseduse of th waterboard because it was so successful as an interrogation technique, but not becauseof any concerns over anyharm, physical or mentalcaused by it. It wasalsalmost 100 percent effective in producing cooperation among the trainees. lsoindicated that he had observed the use of the waterboerdin Navy trainiag.s retimes. Each time it resultedin cooperation but it did not result in anyphysical harmto th

student.

You have also reviewedthe relevant literature and found noempirical data on the effectof these techniques) with the exception of sleep deprivation. With respect to sleep deprivation:you have informed us that is not uncommonfor someoneto be deprived of sleep for 72 hours andstill perform excellently en visual-spatial motor -tasks and short-termmeracry tests. Althoughsom individuals mayexperiencehallucinations, according to the literature you surveyed thosewho experience such psychotic symptoms have almost alwayshad such episodes prior to fhesleep deprivation, You have indicated the studies of length} sleepdeprivation showed nopsychosis, loosening of thoughts,flattening of emotions, delusions, or paranoid tdeas, In on

case, even after eleven daY of deprivation, .no ,psy cl.wsis or-permanentbrain ~ a g e doccurred,In fact the individual reported feeling almosfback to normal after openight s sleep. Further,based on th experiences with its use in military training (where it is induced-for Up to 48 hours),you found that rarely, i f ever, villi the individual sufferharmafterthe sleep deprivationIsdiscontinued. Instead, the effects remit after a few good nights of sleep.

o u have taken the additional step of consultingwith U.S. interrogationsexperts, andother individuals with oversight over the SERE,training process. Noneof these individuals wasaware o f any prolonged psychological effectcaused by the use of any of the above techniqueseither separately or as a courseof conduct. Moreover, you.consulted. wi th outside psycbologi SIS

who reported that they were unaware of any caseswhere long-term problemshave occurred as aresult of these techniques

Moreover) in consultingwith a number of mental health experts, you have (earned thatthe effect of any oftbese procedures will be dependant on the individual s personal history)cultural history and psychologlcai tendenoles. To that end, )10\1 haveinformed us that you have

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T O ~ Tcompleted a psychological assessment of Zubadyah, This assessment is basedon interviews withZubaydah., observations of him,and information collected from other sourcessuch as intelligenceand press reports. Our understandingof Zubaydah s psychologlcal profile; which we set forthbelow, is based onthat assessment.

According to this assessment. Zubaydah, thoughonly 31, rosequickly from ver;y lowlevel mujahedin to third or fourthman in al Qaeda, He: hag served as Usama BiD Laden s seniorlieutenant. In that capacity: he has managed anetwork of training camps. .He has beeninstrumental inthe training of operativesfor al Qaeda, the Egyptian. IslamicJihad) artd ·otherterrorist elements. insidePakistan and Afghanistan. He acted as the Deputy Camp Commanderfor Qaeda training camp in Afghanistan, personally approving entry and graduation of alltrainees during 1999-2000. From 1996 until 1999, he approved .all individualsgoing in and out

of Afghanistan to the training camps. Further, no onewent in and out.of Peshawar, Pakistanwithout his knowledge-and approval, He also actedas al Qaeda s coordinator of externalcontacts and foreigncommunications. Additionally, lie has acted as:al Qaeda s COunterintelligence officer and has been trusted to firld spies within the organization.

Zubaydah has been involvedin even major terroris t.operation carried out by ai Qaeda,H.e was a planner for the Millennium plotto attackU.S. and Israeli targetsduringthe Millenniumcelebrations in Jordan. Two of the central figures inthis plot who were arrested have identtfiedZubaydah as the supporterof their celland theplot. He also served asa planner fortheParisEmbassy plot in 2001. Moreover, be was one of the planners ofthe September 11 attacks, PriQTto his capture, he was engaged in planningfutureterrorist attacks against U.S. interests.

Your psychological assessment indicatesthatit is believed Zubaydahwrote al Qaeda s

. manual on resistance techniques. Youalso believe that his experiences in al Qaedamake himwell -acquainted with, and well-versed in such techniques, As partofhis .role in al Qacda, .Zubaydah. v s ited individuals-in prisonand helped them upontheir release, Through tlUs contactand activities wlth other at Qaeda m ujahedm youbelieve that heknows many stories ofcapture,interrogation, and resistance to such interrogation: Additicnalty, be has spoken With Aym.art al-Za wahiri and you bel ieve it is likely. that the two discussedZawahiri s experiences as. a prisonerof the Russians and the Egyptians.

Zubaydah stated duringinterviews that he thinks of any activity outside of jihad as silly. He has indicatedthathis heart and mindaredevotedto serving Allah.and Islam throughjihad and he has stated that. hehas no doubtsor regrets about committinghimself tojihad.Zubaydah believes that the global victory ofIslam II inevitable, You heve informed us that hecontinues to express his unabated desire to kill Americans and Jews.

Your psychological assessmentdescribes hispersonalityas follows. He is a highly selfdirected individual who prizes his independence. He has narcissistic features, which areevidenced in theattention he pays to his personal appearance and his obvious efforts to

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~ Tdemonstratethathe is really a rather.lhumbIe. n regular guy.? He is somewhat.compulsivein how he organizeshis environmentand business. He is confident, self-assured aridpossessesan air of authority. While he admitsto at times Wrestling with how to determine who is an innocent, he has acknowledged celebrating thedestruction of theWorldTrade Center. He isintelligent and intellectually curious. He displays excellent self-discipline. The assessmentdescribes him as a perfectionist,persistent, private, andhighly capable in his social interactions.He is very guarded about opening up to others and your assessment repeatedly emphasizes thathe tends not to trust others easily. He is also quickto recognize and assess the moods andmotivations of others. Furthermore, he is proud of his ability to lie and deceive-otherssuccessfully. Throu,gh. his deception he has, amongotherthings. prevented the location oralQaeda safehouses and even acquired a United Nations refugeeideiit(fiea\ion card.

_ According to yourreports, Zubaydah doesnothaveanypre-existing mental conditious orproblems that would make him likely to-sUffer prolonged J J e I : I ~ \harm frotn yourproposedinterrogation methods. Through readinghis diaries and interviewing him, youhave found nohistory of mood disturbance or otherpsychiatric pathologyl.] thought disorderj.]. enduringmood or mentalhealth problems. He is in fact remarkably resilient and confident. thai he ca n

QVerCOUle adversity. he n he encounters stress or low mood) this appears to last only for ashort t ime. He deals with stress by assessingits source, evaluating the copingresources availableto him, and then taking action. Your assessment notes that he is generallyself-sufficient andrelies n his understanding and application of religious and psychological principlesI intelligenceand discipline to avoid and evercemeproblems. Mereever,you have-found-that he has a reliable and durable support system In his j ~ h j the blessings of religtous leaders, andcamaraderie oflike-miuded mujahedin brothers. During detention, Zubaydah has managed hi s

mood, remainingat most points circumspect, calm, controlled. and deliberate. He hasmaintained this demeanor during aggressive interrogations and reductions in sleep. You describethat in an initial confrontational incident, baydah showedsigns of sympathetic nervous systemarousal, which youthink was possibly fear. Although this incident led him to discloseintelligence inforruation, he wasable to quicklyregain his composure,his air of confidence, andhis strong resolve not to reveal any information,

Overall,you summarize his primarystrengths as the following: ability to focus, goaldirected discipline, lntelllgence, emotional resilience; sheet savvy, ability to organize andmanage people) keen observation skills, fluidadaptability (can anticipateand adapt under duresslind with minimal resources), capacity to assess and exploit the needs of others, and ability toadjust goals to emerging opportunities.

You anticipate that he will draw upon his vastknowledgeof interrogation techniques to cape with the interrogation, Your assessment indicates that Zubaydah may be willing to die to

protect th e most important information that he holds. Nonetheless, you are of the view that hisbelief that Islam will ultimately dominate the world and that this victoryis inevltable.mayprovide the chance that. Zubaydah will give inferrnation and rationalize it solely as a temporary

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~setback. Additionally,you believehe may be willing to disclosesome inforrnation,particularlyinformationhe deems to not be critical,but which may ultimately be useful to us when piecedtogether with other intelligenceinformationyou have gained.

m.

. Section 2340A makes it a crimi nal. offense fur a qy person outside of-the Unlted :Sta te S[10] cornmi or attempt[) to commit torture, Section2340(1) definestorture as:

all actcommitted by a personacting under thecolor of lawspeclficallyintended toinflict severe physicalor mentalpain or sufferlng (otherthan pain or sufferingincidental to Lawful sanctions upon anotherpersonwithinhis custody of physical

control,

1 U.S.C. § 2340(1). As we outlinedin our opinion on standards of conduct under Section2340A: a violation of234 A requires a showing that: (1) thetorture occurred outside-theUnitedS ares; (2) tli defendant actedunder th e col-or of law (3) the vi cum. was within the defendant'scustody or control; (4) the defendant specifically intended inflict severe paln or suffering; and(5) that the acted inflicted severe pain or suffering. See Memorandum for John Rizzo, ActingGeneral Counsel for the Central Intelligence Agency, from Jay S.Bybee, Assistant AttorneyGeneral, Office of Legal Counsel Re:Standards of onduct for Interrogation under 8 U S C.§§ 2 3 4 ~ 2 3 4 f Aat 3 (August I 2002) ( Section 2340AMemorandum ). You have asked us toassume that Zubayadah is beingheld outside the UnitedStales,Zubayadahis withinU.S.custody. and the interrogators are actingunder the colorof law. At issue is whether the last twoelements would be met by the use of the proposedprocedures, namely, whether those using these

procedures wouldhave the requisite-mental stateand.whether theseprocedures would inflict·severe pain or suffering withinthemeaning o f the statute.

Severe Pain .or Sutfe.One:. Inorder for pain or suffering10 rise tothe level o torture, thestatute requires that ~ tbe severe. As w.e have, previouslyexplained,this reaches only extremeacts. See iii. at 13. Nonetheless,drawing upon. casesunder the Torture Viotim l ~ r o t e c t i nAc t(TVPA), which has a definition of torture that issimilar to Section 2Sc4 } s definition, we foundthat a single event of sufficientlyintensepain mayfall within this prohibition. See i at 26 Asa result, We have analyzed each of these techniques separately. In further drawing upon thosecases, we also have found that courts tend to take a totality-of-the-circumstances approach an dconsider au entire course of conductto determinewhether torture has o C C U I T e d ~See id at 27.Therefore, in addition to considering each technique separately, we consider them together as acourseof conduct.

Section 1340 defines tortureas the infliction of severephysical or mental pain or, suffering. We will consider physical pain and-mental pain separately.' 18U.S.C. § 2340(1).

With respect to physi l pain, we previouslyconcluded that severe pain within th.e meaning of

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Section 2340 is pain that is difficuit for meindividual to endureand is of an intensityskin to thepain accompanying serious physical injury. ee Section 1340A Memorandum at6. Drawingupon the, TV A precedent, we have noted that examples of acts inflicting severepain that typifytorture are, amongother things, severe beatings with weapons such as clubs andthe burning ofprisoners. ee id at 24. \l/e concludebelowthat noneof the proposed techniques inflictssuchpain.

The facial hold and the attention grasp involvenophysical pain. In [he absence of suchpain it is obvious that they cannot be said, to inflict seve-re physical pain or suffering. The stresspositionsand wall standing both mayresultin muscle fatigue. Each involves t sustainedholding of a position. n wall standing, It will be holding, a position ill which all of the·individual s body weight is placed onhis fingertips. The stresspositions WiU Likely .include sittingon the floor with legs extendedstraightout in front andarms raised above the head, andkneeling on the floor and leaning back at-a45 degree angle. Anypain associated withmusclefatigue is not of the intensity sufficient to amountto severe physicalpain or s Q f f ¢ n n g ~under thestatute. nor, despite its discomfort, can it besaid to be difficult toendure. Moreover, youhaveorallyinformed us that no stressposition wiU·be usedthatcouldinterfere with t healing OfZubaydah s wound. Therefore, we concludethatthesetechniques involve discomfort that rallsfar below th e threshold of severe physicalpain.

Similarly, although the confinement boxes (both small and large) re physicallyUiid} mfortablebeeaose the-it sizerestricts movement,theyare notso small as to require the.individual contort his body to· sit (smallbox) or stand(largebox). You- have also orallyinformed us that despite his wound, Zubaydah remains quite flexible, which wouldsubstantiallyreduce any p in associatedwith being placed inthe box. \Ve have no information from themedical experts you have consulted. that the limited duration for which the individualis kept illthe boxes causes anysubstantial physical pain. Asa result, wedo not think the use of theseb o x e ~can be said to c usep in that is of the intensity associated with serious physical injury.

The use. of one of these boxes with the introductionof insect does no t alt-er thisassessment. As we understand it, no actually harmfuiinsectwill be placed in the box. Thus,though the introduction of an insect produce trepidation in Zubaydah \yhich we discussbelow), it certainly does nul cause physicalpain.

As for sleep deprivation, it is clear that depriving someone of s p does not involvesevere physical pain within the meaning of the statute. While sleep deprivation may involvesome physical discomfort, such as the fatigue or the discomfort experienced in,the difficulty ofkeepingone s eyes open, these effects remitafter the individual is permitted to sleep. Based onthefacts you have provided U S ~we-arenotawareof any evidencethat sleep deprivation results inseverephysical pain or suffering. As a result. its use doesnot violate Section 234QA.

Even those techniques {halinvolvephysical contactbetween tIlt: interrogator and the

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individual donot result in severe pain. The facial slap and walling containprecautions to ensurethat no pain even approaching this level results. Theslap is delivered with fingers slightlyspread:which you have explained to us is designed to be less painful than a closed-hand slap. _TIleslap is also delivered to the fleshy partof the face, further reducingany risk of physicaldamage or serious pain. The facial slap does not produce pain that is difficult to endure.Likewise, walling invol-ves quickly pulling lhe person forwardand then thrusting him against aflexible false wall. You have informedus that the sound ofhitting the-walt win a:c.tq:aHy be farworse than any possible injury to tbe lndivldual, the useof the rolled towel around the neck also

, reduces any risk of injury. \Vhile it may hurt te be pushedagainst t walt ny pain- experiencedis not of the i-ntensity associated with serious physical injury.

As we understandit, when the waterboard is used,the subject s body responds as if thesubject were drewning-s-even though the subject may be well. aware that he is infact not

drowning. Youhave informedus that this procedure does not inflictactual physicalha rm; Thus,although the subject may experience th e feat or panic associated with the feeling of drowning,the waterboard does not inflict physical pain. As we explained in the Section 2340AMemorandum, pain and suffering as used in Section ~ 4 isbest understood a singleconcept, not distinct conceptsof upa in as distinguished from suffering, Section 2340AMemorandum at 6 n.3. The waterboard, which inflicts no pain oractual harm-whatsoever, doesnot: in our view inflict severepain suffering, Even ifone were to parse the statute motefinely to attempt to treat suffering as a distinct concept, the waterboard could not be said toinflict severe suffering. The waterboard issimply a controlled acute episode, lacking theconnotation of a protractedperiodof time generally given to suffering.

Finally, as we discussed above) you have informed us that in determining which

procedures to use and ho w you will use them; you have selected techniques that will no t harm

Zubaydah's wound. Yo u have also indicated thai numerous steps will be taken to ensure thatnone of theseprocedures in any way interferes with the proper heating of Zubaydah 5 wound.You have also indicated. that, should it appear at any time ihat.Zuba)-rd.e.his experiencing.severepain { sufferittg, the medical personnel,on b nd will stop rhe use df any technique.

Even. when all of these methods are considered combined in an overall course .of conduct,they still wouldnot inflict severephysical pain or suffering. Asdiscussed above, a number ofthese ace; result in no pnYEiC3 pain: ethers prorluee only physical discomfort. You haveindicated that these acts will not be used with substantial repetition, so thai there is no possibilitythat severe physical pain. could arise from such repetition. Accordingly: we conclude that theseacts neither separately nor part of a course ofconduct would inflict severe physical pain orsuffering within the meaning of tile statute.

We next consider whether the use of these techniques would inflictsevere m ni l painorsuffering within the meaning of Section 2340. Section 2340defines severe mental pain orsuffering as the prolonged mental harm caused by or resulting from one of several predicate

. TOP R£T

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T ~ R Tacts. 18 U.S.C. § 2340 2). 1110se predicateacts are: 1) the intentional infliction or threatenedinfliction of severe physical painor suffering; 2) U e administrationor application, or threatenedadministration or application of mind-altering substances or other procedures,calculatedtodisrupt profoundly thesenses or the personality; 3) the threat of imminent death; or 4) the threatthat allY of the preceding acts will be-done to another person. ee I I U:S.C. § 2340 2) A)-: D).

s we-haveexplained this list of predicate.acts S exclusive. ee Section 2340A Memorandum:at 8. No other acts can supporta charge under Section 2340A based on the infliction of severemental pain or suffericg. ee id 1bus: i f the methods that you havedescribeddo uo 1 either inand of themselves constituteone o f these acts or as a course of conduct fulfill the predicate ac t

requirement, the prohibitionhas no t been violated. ee i Beforeaddressing these techniques,we note that. it is plain that none o f these procedures.involves a threat to any third party, the useo f any kind of drugs, or for the reasons described above, the infliction of severe physical pain.

TIIUS, the question is whether any Qf these acis, separatelyor as a courseof conduct, constitutes 2.

threat of severe physical pain or suffering, a procedure designed to disruptprofoundly tl e senses,or a threat of imminent death. As we. previously explained, whether an action constitutes a threatmust be assessed from the standpoint of a reascneble person in the-subject s position. e« id at

No argument can be made tbat the attention graspor the f i l hold constitute threats o f

imminent death or are procedures designed to disruptprofoundly the sensesor personality. Ingeneral the grasp and the facial hold win startle the subject, produce fear,or even insult him Asyou have informed us, the useof these technlquesis.not accompanied by a-specific verbal.threatof severe physical pain orsuffering, To theextentthat these techniques could be considered athreat o f severe physical pain or suffering, such a threat would have to be inferred from the actsthemselves

Becausethese actions tbemselves involveno pain: neither could be interpreted by areasonable person in Zubaydah s position to constitute a threatof severepain or suffering.Accordingly these two techniques are not predicate acts withinthemeaning o f Section 2340.

The facial slap likewise falls outside the set of predicate aC1S. It plainly is not a threat of

imminent death under Section. 2340 2) C), or a procedure designed to disruptprofoundly th e

senses or-personality, underSection 2340 2) B). Though it may hurt, as discussed above; theeffect is one of smarting or stinging and surpriseor humiliation; but not severepain. Nor does italone constitute a threat o f severe pain or suffering, under Section 2340 2) A). Like the facialhold a nd t he attention g F S P ~the use o f this slap is not accompanied by a specific verbal threat o

further escalating violence. Additionally,you have informedus that in one use this technique- will typically involveat most two slaps. Certainly the useof this slapmay dislodge any

expectation that Zubaydah bad that he would not be touched in aphysically aggressive manner.Nonetheless, this alteration in his expectations could hardly be construed by a reasonable personin h i s s i tua tion to be tantamount to a threat o f severephysical pain or sulfering, t most. this

technique suggests that the circumstanc-esof his confinement and interrogation havechanged.Therefore , the f ~ c i a l s l a p is not within the statute s exclusive list of predicate acts.

i2

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T O ~ R E T

Walling plainlyis nota procedure calculated to disrupt profoundly the senses orpersonality. While wallinginvolves what might becharacterized as rough handling. it does notinvolve the threat o f imminentdeath or. as discussed above. the infliction of severephysical pain.Moreover, once again we understand that use of this technique will norbe accompanied by anyspecificverbal threatthat violence will ensue ubsenrcooperation. Thus, like the facial slap,wallingcan only constitute a threat of severe.phY icalpain if a reasonable person would. infersuch a threat from the use of the technique itsel f \Va lling does not in and of-itself1n£1ict .severepain or suffering. Like the facialslap, walling may alter the s U b j e e t : e A ~ t ~ o nas-to thetreatment he believes he will receive. Nonetheless,the character of the action faJ1s so fur short: of

inflicting severe pain or suffering within the meaning of the statute that even he inferred thatgreater aggressiveness was to tollow, the typeof actions that could be reasonably be anticipatedwould stilt fall below anything sufficient to inflict severe physicalpain suffering under the

statute, Thus, we conclude that this technique falls outside the proscribed. predicate acts.

Like walling, stress positions and wall-standing are not procedures calculated to disruptprofoundly the senses, nor are the threats of imminent death. These procedures, as discussed bove involve the use of muscle fatigue to encour ge cooperation nd do not themselves.constitute the inflictionof severe physical painor suffering, Moreover; there is no aspect of

violence to either technique that .remotely suggests future sever-e pain o r suffering from whichsuch a threat of future nann coUld be inferred. Theysimply involve forcing the-subject to remainIn uncomfortable positions. While these acts may indicate to the subject that he may be placed inthese positions again if he does not disclose information, the use of these techniques woul d notsuggest to a reasonable person in th e subject s position that he is being threatened with severepain or suffering. Accord-ingly we conclude [hat these two procedures do not constitute any o f

the predicate acts set forthin Section 2340 2).

. As with the other techniques discussed so far, cramped confinement is not a threat of

-imminentdeath, It may be argued that, focusing in part onthe fact that the boxes will be without

light, placement in these boxes would constitute a procedure designed to disrupt profoundly thesenses. As we explained in our.recent opinion.however, to «disrupt profoundly thesenses atechnique must producean extremeeffect in the subject. ee Section -2340A Memorandum at10-t·2. We have previously concluded that this requires that the procedure causesubstantialinterference with the. indivi du l s co gnitive abi lities or fundarnentally alter his personality.

id at 11. Moreover, the statute requires that such procedures must be calculated to produce thiseffect. d at 10; 18 U.S.C. § 2340 2) 8).

With respectto the small. confinement box, y011 haveinformed us thai he would spend atmost two hours in this twx. You have informed us tha; your purposein using these. boxes is notto interfere with his senses or his personality, but to cause him physical discomfort that willencourage him to disclose critical information. Moreover, your imposition of time limitations on·the use of either of the boxes also indicates that the use of these boxes is not designed orcalculated 1,0 disrupt profoundly the senses or personality. For the larger-box in.which he can

T ~ R E T 13

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T ~ R T

both stand and sit, he may be placed iri this box fo.r:up to eighteen hoursat a time, while you haveinformed us that he will never spend more than an hour at time in thesmaller box. These tim

limits further ensure thatno profound disruption eftlte· senses or personality. were iteven

possible, would result. As such the use ofthe confinementboxes does not constitute aprocedure calculated todisrupt profoundly the senses or personality.

Nor .docs the use of the boxes threatenZubaydah with severe physical pain or suffering.While additional time spent inthe boxes may be threatened, theiruse is not accompanied by anyexpress threats of severe physical pain Of suffering. Like the stress positions and walling,placement in the boxes is physically uncomfortable but any suchdiscomfortdoes not rise to thelevel of severe physical pain or suffering. Accordingly, a reasonable person in the .subject sposition would no t infer from. the u of thls technique that severe physicalpain Is the-next step

in his interrogator a treatment of him. Therefore, vie conclude that the use the Confinementboxes doesnot faU within th e statute s required predicate acts.

In addition to using theconfinement boxes alone you also would liketo introduce aninsect into one of the boxes with Zubaydah. As we understand it, you planto inform Zubaydahthat yo u ar e going to place a stinging insect-into the box, but youwill actually place a harmlessinsect in th e box: such as a caterpillar. you do SOt to ensure that-you are outside thepredicateac t requirement, you must inform him that the insects will not have a sting that would producedeathor severe pain If I however, you were to place the insect in the box without informinghimthat:yeu · re·ciei fig· i thea, in Grea-:tQ.uot~ m m i ta predicate ect, you sbould.ncr affirmativ.ely_lead. him to believe tllat any insee .; . i fwbioh has a .\ :

0· ong.asysu . e ~ ro

th e approaches we have descri . t ie insect s placementin the bo x would not constitute a threat

of severe physical pain or sufferingto a reasonableperson in his position. An individual placedin a box, even an individual with a fear of insects would not reasonably feel.threatened withsevere physical pain or suffering if a caterpillar was placed inthe box. Further, you haveinformed us that you are noLaware that Zubaydah has any allergies to insects, and you have o t

informed us of any other factors that would cause a reasonable person in that same situation tobelieve that ~ n unknown insectwouldcause him severe physical pain or death. Thus. weconclude that th e placement or Ute insect in the confinement box with Zubaydah would no tconstitute a predicate act.

Sleep deprivation also clearly does not involve it threatof imminentdeath. Although itproduces physical discomfort i1 cannot be said to constitute a threat of severephysioal pain orsuffering from the perspective o f a reasonable person in Zubaydah s position. No r GOuld sleep

deprivation constitute a procedurecalculated-to disrupt profoundly the senses, so long as sleep

deprivation (as you have. informed us is yourintent) is used forlimitedperiods, beforehallucinations or Other profounddisruptions of the senseswouldoccur. To be sure, sleepdeprivation ma y reduce th e subject s ability to think on his feet Indeed, yo u indicate that this is

T ~ T 14

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~the intended result. His mere reduced abilityto evadeyourquestions and resist h werj.ng apesnot, however,rise to the level of disruption r.eq\lired.by the· statute, s we explained above, adisruption within the meaningof the statute is an e-xtremeone,substantiallyinterferingwithanindividual s cognitive abilities, for example inducing hallucinations, or driving him 0 engage inuncharacteristic self-destructive behavior. Seeinfra 13; Section1340A Memorandum al II.Therefore, the limited use of sleep deprivation does notconstituteone of the required predicate3CLS

\Ve find that the use of the waterboa-rdconstitutes a tlueat of imminent death. As youhave explained the waterboard procedure to us, itcreates in thesubject the uncontrollablephysiological sensation that thesubject is drowning, Although the procedurewill be monitoredby personnel with medical trainingand extensive SERE schoolexperience with this procedure

who vM:ll ensure the subject s mental and physicalsafety, the subject is not aware of ahY of theseprecautions. From th.e vantagepoint ofany reasonablepersonundergoing this procedurein suchcircumstances, he would feel as i f he is drowningat very moment of the proceduredue to theuncontrollable physiological sensationhe is experiencing. Thus, this procedure cannot beviewed as too uncertain to satisfy th e imminence requirement. Accordingly, it constitutes athreat o f imminent death and fulfills Ute predicate ac t requirement under the statute.

Alth.ough the waterboard constitutes a threat.of imminent dearh, prolonged mental harmmust nonetheless result to violate the statutory prohibitionall infliction of severemental pain orsuffering, See Seetion 2340A Memorandumat 7: Wehave previously concluded that-prolongedmental harm is mental harm of some lasting duration,e g. 1mentalharmlasting monthsor years,See td Prolonged mental harmis not sirnpiy the stress experienced in. forexample, aninterrogation by state-police. See id Basedonyourresearch .imo tile use of these methods at theSERE.school and consultation with others with expertise in the field-of psychology antiinterrogarion, you do not anticipate that any prolongedmentalharmwould result from theuse ofthe waterboard. Indeed, you have advised usthat the reliefis almostimmediate When the cloth isremoved from the noseand mouth. Inthe absenceof prolongedmental harm, no severe mental f :tin Of suffering wouldhave been inflicted, andthe useof these procedures would riot constirmetorture within the meaning of the statute.

When these acts are considered as a course of conduct, we arc unsure whether these actsmay constitute a threat of severe physical painor suffering. Youhave indicated to us that youhave not determined either the order or the precisetiming for implementingthese procedures. Itis conceivable that these procedures could beused in a courseof escalating conduct, movingincrementally and rapidly from least physically intrusive, e.g., facial hold, to the most physical

contact, e.g., walling or the waicrboard. As we understand it, based on his treatment far,Zubaydah has come to expect that no physical harm will be doneto him. By using thesetechniques in increasing intensity and in rapid succession, the goal would be to dislodge thisexpectation. Based th e facts you have provided to us, we cannot say definitively ~ tth e

entire course of condu?t would cause a reasonablepersontobelieve that he-is being threatened

~ 15

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with severe pain or suffering withinthe meaning of section 2340. On. the other hand, however,under certaincircumstances-for example, rapid escalation in the use of these techniquesculminating in the waterboard (which we acknowledge constitutes a threat of imminent death)accompanied by verbal.or other suggestions that physical violence will follow-might cause areasonable person'to believe that they arc faced withsuchathreat. Without more information;we are uncertain whether the course of conduct would constitutea predicate act under Section2340(2).

Even if the courseof conduct were thought to posea threat r physical' pain or suffering,it would nevertheless-s-on the factsbefore us not constitute a violation of Section 2340A. Noto y must the course of conduct be a predicate act,but also those who use the proceduremustactually cause prolonged mental harm. Based on the information that you have provided to us,

indicating that no evidence existsthat.this course of conduct produces ny prolonged mentalharm)we conclude thata courseof conduct usingthese procedures and culminating in thewaterboard would not violate Section 2340A.

Snecific fnteri1. To violate the statute) ·an individual musthave the specific intent toinflict Severe pain or suffering. Becausespecific intent isan.element of the offense).the absence'or specific intent negates the charge of torture. As W ~previously opined, to have the requiredspecific intent, an individual must expresslyintendto cause such severe pain r suffering. SeeSection 2340A Memorandum at 3 citing Carter v. United Suues 530 U.S. ~ 267 (2000). \Vehave further found that i a defendantactswith the good faith belief that his actions will notcausesuch suffering, he has not actedwith specific intent. See id at 4 citingSouth il LmtdPtrshp Tenn v Reise 218 F.3d 518: 531 {4th Cir, 2002). / defendant acts in good faithwhen he has an honest belief that his actions will not resulr in severe pain or suffering. See idciting Cheek v United States 498 U.S. 192,202 1991). Although an bonest belief need not bereasonable, such a belief is easier-to establish wherethereis a reasonable basis tor i t j J. at

Good faith maybe established byr amongotherthings, the: relianeeon the adviceof experts. Seeid at 8.

Based on the information you have provided us, we believe that those carrying ou t theseprocedures would nothave the specificintentto inflict severe physical pain or suffering. Theobjective of these techniques is not to cause Severe physical pain. First, the constant presen e ofpersonnel with medical training who have the authority to stop the interrogation should it appearit is medically necessary inriic rcs t lmli is no your intent to causesevere physical pain. Thepersonnel site have extensive experience with these specific techniques as they are used inSERE school training: Second, youhave informed us that you are taking steps to ensure that

Zu baydali' s injury is.not worsenedor his recoveryimpeded by the use of these techniques.

Third, as you have described them to us, the proposed techniques involving physicalcontact between the interrogator andZubaydah actually containprecautions to prevent anyserious physical harm to Zubaydah. n walling, a rolled hood or towel will be us to prevent

. ~ . 16

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.

T O ~ R E Twhipl sh and he will be permitted to reboundfrom the flexible wall to reduce the likelihood ofinjury'. Similarly, in the facial held, the fingertips will be kept well av- ray from the hi s eyes toensure th t there is no 'injury to them. 111e purpose of that facialhold is not.injure him ut tohold th e head immobile. Additionally, whilethe stress-positions and wall standing winundou tedly result in physical discomfort by tiring the muscles, it is obvious that these positionsare l intended to produce the kind of extreme pain required by the statute.

Furthermore, no specific intent to causesevere mental painor suffering appears to bep re sen t. As we explained in our recent opinion.an individual must have the specific intent toc use prolonged mental harm. in order to have the specific intent to inflict severe mental pain orsuffering. Section2340A Memorandum at 8. Prolongedmentalharm is substantial mentalharm of a sustainedduration, e.g., harm lastingmonths or even years after the acts were inflictedupon theprisoner, ~ we indicated above a good faithbelief'can negate this element.Accordingly, if individual conductingthe lnterrogarionbasa good' faith belief that tlteprocedures he will apply, separate y or together, would not result in prolonged mental harm, thatindividu l lacks me requisite specific intent This conclusion concerning.speeific intent is furtherbo Istered by the due diligence that has been conducted concerning the.effects'of theseinterrogation procedures; .

TIle mental health experts thai youhave consulted have indicated that the psychologicalimpact of a courseof conduct must be assessedwith reference to the subject's psychologicalhistory n d current.meutal health status. The healthier the individual: the less likely that the useof nyone procedureor set of proceduresas ·a course of conduct will result in prolonged mentalharm. A comprehensive psychologicalprofile of Zubaydah has beencreated. In creating this .profile) your personneldrew all direct interviews, Zubaydah s 'diaries, observation of Zu baydahsince his C8 tqr t} and . e i e and ress reports..

Aswe indicated above: you have inf-ormed us that your proposed interrogation methodsh ve been used and continue to be used-in SERE training. It is our understanding that thesetechniques are n01 used on e by one in isolation,but as a full course of conduct tb resemble a realinterrogation. Thus, the informationderived from SEREtrainingbears both upon the impact ofthe use o f the individual techniques and upon their use as a course of conduct You have foundth t the use of these methods together or separately, including the use of the waterboard, lias notresulted in any negative long-term mental health consequences. The continued use of thesemethods without mental health consequences to the trainees indicates that it is highly impro le

T O ~ C R E T

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T ~ R E Tthatsuch consequences would result here. Because you lVe conducted thedue diligence todetermine that these procedures; either alone or in combination, do not produce prolonged mental

. harm, we believethat you de not meet the specific intent requirement necessary to violateSection2340A.

Youhave'also informedus that you havereviewed the relevant literature on the subject,and consulted with outside psychologists. Your review of the literature uncovered' no empiricaldata on the use of these procedures: with the exception ofsl:eep deprivation for whichno long-term health consequences resulted. The outside psychologists wit whom yO consultedindicated were unaware of any cases where long term: problems haveoccurred as a result of thesetechniques.

As described above. it appearsyouhave conducted an extensive inquiry to ascertainwhatimpact, if any 1 these procedures individually and as a course of conduct would have onZubaydah. You have consulted with interrogation experts: includingthose vvith substantialSERE schoolexperience, consulted with outside psychologists completeda psychologicalassessmentand reviewed the. relevant literature on this topic. Based on this inquiry, you believethat the use of the procedures: including the waterboard, and as a course of conduct would.notresult in prolongedmentalharm. Relianceon this information abou; Zubaydah and about theeffect of the use of thesetechniques mote generally demonstrates the presence of a good faithbelief that no prolonged mentalharm will result from usingthese methods in the interrogation ofZubaydah. Moreover: we think that this representsnot only a honest belief bu t also areasonable belief based 011 the information-that you have supplied to us. Thus, we believe th tthe specific intent to inflict prolonged mental is notpresent, n consequently, there is nospecific intent to inflict severe mentalpain or suffering. Accordingly we conclude (hat on thefacts in this case the use of thesemethods separately or a course r conduct would not violateSection 2340A.

Based alithe foregoing, and based on the facts t t you have provided, we concludeth tthe interrogationproceduresthat you propose would not violateSection 2 ~ 4 : A · ewlsh toemphasize that this is ourbest reading of the law; however: you shouldbe aware that there te nocases construing this statute; just as there havebeen prosecutions brought under it.

Please let us know we can be of further assistance.

lt

. Ja S. Bvssist t Attorney eral

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ppendix

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.

Guidel ipes on Confinement Condi t ions For CIA Detainees

These Gu ide l ine s govern t he c ond i t i ons o f confinement fo rCI A ~ t a i n e e swho are person io nf c i l i t i e s t h t a re under the con t r o l o f

c i l i e·s

These G u id e li n es r ec og ni ze t ha te n vi ro n me n. ta l a nd o th e r condd t.Lons , . s well . as p r t i c u l r i z e dc o n s i d e r a t i o n s a ffec t ing any g iv en D e te n ti o n Fac i l i ty w i l lv r y from· case to case and-Locat.Lcn t o loca t ion . .

1.. Miniinums

2 . m p l ~ n t i nP r o c e d ~ r e s

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Guidel ines on Confinement Condit ions fo r CIA Detainees

with arsuantand has

, ow edgment at tached there to SUbject to opera t ional and secur i ty cons idera t ions , , theResponsible CIA Off i ce r s h a l l be presen t a t or v i s i t eachD e t e p t i o n F a c i l i t y a t . i n t e rva l s appropr ia te to thec i rcumstances .

3. . ~ e s p o n s i b eCl:A O f f i c e r

The D i rec t o r, .DC o u n t e r t e r r o r i s t Cente r s h a l l~ s \ l r eta t h a t a t a l l t r n ~ s a spec i f i c Agency s t a f femployee the ~ e s p o n s i b l eCIA O ff i c e r N

i s des igna t ed a sr es po ns ib le f or each s p e c i f i c D e t e n t i o n F a c i l i t y, , b) t h a teach Responsible e rA O f f i c e r h as b ee n p ro vi de d w i th a copy o ft he se Guidel ines and h as re vie wed and signed the t t c h e ~

.Ac.knowledgment l and t c ) t h a t each Responsible , CIA 0 1= fi ce r a ndeach CIA off ice r par. t i c ipa t ing ii nd iv idua l s d e t a ined ursuan t to

.

APPROVED:

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Guidelines on Confinement Condit ions f o r ~ I Detainees

, am the .Reapona i b Le CIA Off icer fo r theDetention c i l i t y known s . By my s ignature ,below I acknowledge t h a t I have read an d understand and w i l lcomply. with the ~ u i d e l i n e son Confinement Condit ions fo r CIADeta inees · of . 2003.

CKNOWLEDGED

I .

I

r,

a me nate

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ppendix

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c

Cj ~ . ~ = . . ~ - . ~ t • • • • t ~

,These Guidelines addres . th e. co n du ct o f in terrogat ions of

persons who are detained ursuant to the authori t ies se tfor th · - i

These Guidelines complement i n t e r n l D i re ct or at e o fOper.ations guidance r e l t i n g to . th e c on du ce o f · i n t e r roga t ions In th e event o ~ a n y inconsistency betweene x i s t i ~ gDO guidance and t hese G u i d e l i ~ e sthe p r o v i s i ~ n so ft hese Guidel ines s ~ a l c o n t r o ~

: e r m i ~s ~ l ~J n t e r r o ~ a t i ~ ~Te c h n i q u e s

Unl·ess o t h e r w i s e a p p r o ~ e db y Headquar te rs , CI Ao f f i c e r s and o the r personnel c t i n g on beha l f of CrA may useo n ly P e rm is si bl e In te r roga t ion ~ e c h n i q u e s .PermissibleIn t e r roga t ion ·Techn iques c o n s i s t of bo th (a ) StandardTechniques and b Enhanced Techni·ques.

Standard TeChniqueS a re t e c ~ i q u e st h t n o t i ncorpora te physical o r s u s t n t i l psychologica l pressure .These techniques inc lude , b u t r e n o t l imi ted to , l l lawfulforms o f ques t i on ing . employed l;>y US law enfo·rcem en t a ndmil i t a rY i n t e r r o g t i o n personnel . Ani9ng Standard .Techniques. a re the use of i s o l t i o n j s leep d ep riva tio n n ot to exceed72 hours ; reduced c lo ri c i n t k e (so long ·as · the amount i sca lcu la ted to m ain ta in t he g en era l· hea l th of the de ta inee ) ,deprivat ion o f reading mate r i a l , · use of. loud music· o r whitenoise (a t a dec ibe l l e v e l c a l c u l ~ t e dto avoid damage to · thed e t a i n e e ~ shear ing) , and t h e use o f i p ~

er iods e no to exceed 7 2 hours

.ALL THIS DOCT

~ - - . : : - :u .

CLASSIFIED TOP moR m

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Enhanced TechniqUes a re techpiques t h a t doi ncorpora te physical '9r p s y c h ~ l o g i c a l p r e s s u r e b ~ y o n d

Standard Techniques. The: use of each s p e c i f ~ cEnhancedT ~ c h n . i q u e muat; be approved ~ y Headquarters i n advance, andmay b ~ employed only b y a pp ro ve d in te r roga to rs fo r use w iththe spec i f i c deta inee , with appropr ia te medical an dpsycho log i ca l p a rt ic ip a ti on i n the p ~ o c e s s .These techniquesare , the a t ten t ion g rasp , -w alling , the f a c i a l hold, the ~ a c i a l

s l a p ( insu l t slap) ' , t; he abdominal s l ap , crampedcorrf i nemenc w a l l s tanding; s cxeas pO' i t ions, s l eepdepr iva t ion beyond 72 h o u ~ s t h e u s e o f d iape r s f o r p r o l o n g ~ d

per iods , th e use of. harm1ess i n s e c t ~ the water board, andsuch other t(; chniques as may .b e spec i f i c ' a l ly ' approved

' pu r suan t . to paragraph 4 b ~ l q w . -Th e U ~ eof each EnhancedTechnique i s sub jec t t o s p e c i f i c temPoral, phys ica l , andr e ~ a t e dcondi t ions , i r icluding a competent e va lu ati on o f themedical and psycho log ica l ' ~ s t a t eo f the ¢ l e t ~ i n e e

'2 . Med ca:J and psychoiogicaJ P e r s o m i e ~

ro r i a t e 'medical and psychologica l personnel s h a 1 ~

be e a d i l y . a v ~ i l a b l ef o r consu l t a t ion andt r a v e l to ' the ~ n t e r r o g a t i o ns i t e d ~ i r i g . a l ldeta inee

. interrogatiCi>ns employing Standard Tec hn iq ue s, a nd a p p r o p r i a t emedica l and.psYGhblogical personnel must-be on s i t e dur ing~ l l d e t a i n e ~in ter rogat ions .employing 'Enhanced Techniques.In each case, th e ,medical an d p s y c h o l o g i ~ a lpe r sonne l s h a l lsuspend th e i n t e r roga t ion i f t h e y · d e t ~ r m i n et h a t s i g n i f i ~ a n t

and pro longed .phys ica l o ~ menta l inj 'ury, ·pa in , o r suffe r ingi s l i k e l y to r e s u l t i f · the i n t ~ r r o g a t ~ o ni s no t suspended.In a n y , such in stan ce , th e i n t e r roga t ion team s h a l l .immediately r e p o r t the f a c t s to Hea9quarters fo r ~ a g e m e n tand l e g a l r e vi ew t o. de te rm d n e whether the i n t e r roga t ion may resumed.

3 : :cnterroga t i o n Per sonne l

Th e Direc to r, DeI 'Coun te r t e r ro r i s t Center s h a l lensure t h a t a l l personnel d i r e c t l y e n g g e d ~i n t e r r o at1 n o f · er so ps ·d e ta in e d pursuant

have been a p p r o p r i a t e l y ~ c r e e n e ro mme c a psyc 0 o g i c a l an d s e c u r i t y s t andpo in t s ) , have

reviewed ~ h e s eGuide l ines , have r ec e iv e d a p p ro p r ia t e t r a in ingi n . the i r implementation, and h a v e completed th e a ~ t a c h e dAcknowledgment.

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. Guidel ine on Il1:1:errogations Conducted r s u ~ t. to th e

4 ~ p p r o v a i ~ R e q u i ~ e d

Whenever f eas ib le , .advance approval . i s . required fo rth e useof Standai:d T e c h n i q u ~ sby an i n t e r roga t ion team. In

a l l ins tances , the i r use s h a l l b e documented in cable .t r a f f . Pt: ior ~ p p r o v a li n w ri ti1?-g .( e .. 9 by, wri t t e n

memorandum or in cable t r a f f i c ) from the Director, . DCICoUnter ter ror is t Center, wiCh the concurrence of th e C hie f,

eTC Legal Group, is~ e q U i r e d

for. the use o f any.EnhancedTe c h n i q u e s ) ; a n d m 4 y ~ b ep r o v i d ~ g · o n l ywhere D/CTC h a sd e t e r m i n e d tha t - (a ) th e s p e c i f i c de ta inee i s bel ieved top o s s e s s information ~ b o u tr i s k s to t he c i t i z e n s o f the U n i t e d.S t a t e s or o the r na t ions , (b) t .use of th e EnhancedT e ~ h n i c i u e s ) L s app rop r i a t e i n o rde r .t 9 obta in t h a t i n f o r m a t i o n , ( c) . ap pr op ri at e· medd.ce.l, and p s y c h o l o g i c a l

.personne l have-conc luded t h a t th e u se of, th e ·EnhancedTecbnique(s ) i s n o t expected t o p r o d u ~ ef t s e v ~ ~ ephys i ca l or men ta l .pa i :a ox suff ering, and (d) the .personnel autihor i z e d. t o .e,mp10Y t h e Enhanced. Teclutique,(s) . have comple ted th e .

a t t a c h e d Acknowl,edgment. Nothing i n these ~ i d e l i n e sa l t e r sth e r ~ g h tto a c t · in s e l f - d e f e n ~ e .

5 • Recordkeep ing

I n each i n t e r r o g a t i o n s es s Lon . i n which an Enha.ncedTechn ique Ls employed, a cont.emPoraneous r e co rd - ~ h a l lbec r e a t e d s e t t i n g - f o r t h t h e n a t u r e and dura t i on o f each sucht .echnique employed, th e . i d e n t i t i e s o f those p r ~ s e n tand ac i t a t i o n to th e requi red HeadqUarters approva l cable . Thisinformation, which may be i n th e form o f a cable , s h a l l b ep r o ~ i d e dt o Headquar te rs .

APPROVED:

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-

acknowl edqe t h a t I have r e ad andunderstand and w i l l comply· w ith the M uideline s on n t e r r o a t ions o r i d ~ t e dP u r s u a n t to

CKNOWLEDGED

ame

t e ·

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ppendix

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DRAFT OMS GUIDELINES ON MEDICALAND PSYCHOLOGICAL SUPPORTTO. DETAINEE INTERROGATIONS

September4,2003

The following guidelines offer general references for medicalofficerssupportingthe detention of terrorists captured n turned over to the Central Intelligence Agency forinterrogation anddebriefing. There are three.differentcontexts in which these guidelines h ~ Y e applied: (1) during theperiod of initial interrogation, 2 durin the moresustained eriod 0 debriefin . at an interrogation s i t ~and.(3

INT RROG TION

SUPPORT.:

Captured terrorista turned over to th e C .LA. for interrogation may be subjectedtoa wide range of legally sanctioned techniques, all of which are also Used on U.S. militarypersonnel in SERE training programs. These are designed to psychologically dislocatethedetainee, maximize ,his feeling of.vulnerability and helplessness, and reduce oreliminate hi s will too resist our efforts to obtain critical intelligence.

, . Sanctioned interrogation techniques must be.specifically approved in advance byt h ~Director t eTC in the case o f each indi v-idual case. They include, in approximately,ascending degree of intensity: .

.

.

Standard measures (i.e., without physical or substantial psychological pressure) h ~ g .StrippingDiapering (generally for periods no t greater than 72 hours)Hooding

solation

White noiseor loud music (at a decibel level that will not damage hearing)Continuous light or darknessUncomfortably eool environment .Restricted diet, including reduced caloric intake (sufficient to maintain

, general health)

Shackling in upright, sitting, or horizontal positionWaterDousingSleep. deprivation (up to 74 hours)

.Enhancedmeasures (with physical or psychological pressure beyondtheabove)AttentiongraspFacial holdInsult (facial) slap

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. -

Abdominal slapProlonged diaperingSleep deprivation (over72 hours)Stress positions

on knees body slantedforward or backward. --leaning with forehead on w ll

Wallin -g . . - .Crampedconfinement (Confinement boxes) Waterboard

. . .

In all instances the general goal of these techniques is a psychological impact, and

notsome physicaleffect, ith a specificgoal of dislocatjing] his expectations regardingthe treatm-ent he believes he.will receive... ~ The more physical techniques aredelivered in amannercarefully limited to avoid serious physical harm. The slaps forexampleare designed to induce shock, surprise,and/or humiliation and not to inflictphysical pain that is severe orlasting. To thisend they must be delivered in aspecifically circumscribedmanner, e.g., withfingers spread. Walling is-only against.aspringboard designedto be.loud and bouncy (and cushion- the blow): All walling andmost attentiongrasps are-delivered onlywith the subject s headsolidly supported with atowel to avoid extension flexion injury.

OMS is responsible for assessing andmonitoring the health of all Agency

detainees subject to enhanced interrogation techniques;and-for determining that theauthorized administration of these techniques would not be expected to cause serious orpermanent harm. I I D I G u i d e l i n e s · h a v ~been issued formalizing these responsibilities,and these should be read directly..

Whenever feasible, advance approval is.required to use anymeasures beyondstandard measures; technique-specific advancedapproval is requiredfor all enhancedmeasures and is conditional on on-site medical and psychologicalpersonnel confirmingfrom direct detaineeexamination that the enhancedtechnique(s) is not expected to .produce severe physicalor mental pain ot suffering. As a practicalmatter. the.detainee s physicalcondition must l?e such that these interventionswill-not have lasting

1 The standard used-by the Justice Department for mental harm is prolonged mentalharm, i.e., mental harm ofsomelasting duration, e.g., mental harm lasting months or years.In the absence of prolonged mental harm, no severe mental pain Orsuffering would have been

inflicted. . Memorandum of August 1,2002, p 5 · .

Unless the waterboard isbeing used, the medical officer canbe a physician or a P A ;use of thewaterboard requires the presence of a physician.

2

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effect, andhis psychological state strong enough that no severepsychological harm will .result. . .

The medicalimplications of theDCI guidelines arediscussed below

General intakeevaluation

• t

Although brief, the data should reflect what was checked ndincludenegative findings.

. Medical treatment

It is importantthat adequate medical rebe provided to detainees, eventhoseundergoing enhancedinterrogation. Those requiring chrome medications should receivethem, acute medical roblems shouldbe treated and ade uate fluids n nutritionprovide< l.

3

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Uncomfortably cool environments

Detainees ca n safely be placed in uncomfolengths of time, ranging from hours d ys

Core body temperature falls after more than 2 hours at an ambient temperature of10°C/50°F. At this temperature increased metabolic rate cannot compensate for hea tloss. The WHO reconunended minimum indoor temperature is 18°C 64°P Th e thermoneutral zone where minimal compensatory activity is required to maintain coretemperature is 20°C/68°P to 30°C/86°P. Within the thermoneutral zone, 26°r;ngoF isconsidered 0 t imall comfortable for lightly clothed individuals and ° C l 8 6 ~ Ffo r naked

individuals.

If there is any possibility thatambient temperatures are below the thermoneutralrange, they should be monitored and the actual temperatures o umentei

4

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White noise or.loud music

As apracticalguide,there is no permanenthearingrisk for continuous, 24-hoursa-day exposures tosound at 82 dB.or lower; at 84 d for up to 18 h OU S a day; dB forup to 8 hours, 95 dB for 4 hours, and 100 dB for 2 houra necessi instruments canbe provided to measurethese ambientsound levels.

Shackling

Shackling ill non-stressful positions requires only monitoring for the developmentith iate tr atm it . d di tm t fth h kl . d.• • • I •

I

i

TO

5

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Assuming no medical contraindications are found extended periods u p LO 7hours in a standing posi t ion can be approved if the hands ure no hisher than head level n w i t is borne full b the lower extremities

6

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.

Sleep deprivation

The standard approval for sleep deprivation, per se without regard to shackling position) s 72 hours. Extension of sleep deprivation beyond 72 continuous hoursis considered anenhanced measure which re uires D/CTC r a roval

. OT Examinations performed during periods o f sleep deprivation shouldinclude thecurrent number of hours without sleep; and only a brief rest preceded thisperiod thespecifics o f the previous deprivation also should be recorded.

Cramped confinement Confmement boxes)

confinement in·thesmall box is allowableup to 2 hours Confinement in the large box is limited to 8·consecutive hours

7

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8

..,

This is by far the most traumatic of the enhancedinterrogation techniques. Thehistoricalcontext here waslimited knowledge of the use of thewaterboard in SEREtraining several hundred trainees experience every yearor two . In theSERE modelthe subject is immobilized on his back, andhis forehead and eyes covered,with a cloth.A streamof water is directedat the upper lip Resistant subjects thenhavethe cloth,lowered to cover the nose and mouth, as the water continues to beapplied, fullysaturating the cloth, and precluding thepassageof air. Relatively littlewater enters themouth. The occlusion which may be partial) lasts no more than 20 seconds. On removalof the cloth, the subject is immediately able to breathe, but continues to have waterdirected at the upperlip to prolong the effect. This process can continue forseveral

minutes) and involveup to 15canteen cups.of water. Ostensibly theprimarydesiredeffect derives from the sense of suffocation resulting from the wet cloth temporarilyoccluding the nose and mouth, and psychological impact of the continued application ofwater after the cloth is removed; SERBtrainees usually have only a singleexposure tothis technique, and never more than two; ~ trainers consider t their most effectivetechnique,and deem it virtually irresistible the training setting.

Waterboard

\

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:

TheSERE training program has applied the waterboard technique singleexposure) to trainees foryears, andreportedly there havebeen thousands of applicationswithoutsignificant or lasting medical complications, The procedure nonetheless carriessomerisks, particularly whenrepeated a largenumber of times or when applied to anindividual less fit than a typical SERE trainee Several medical dimensionsneedto bemonitored to ensure the safety of the subject.

In our limited experience, extensivesustained use of the waterboard can introduce. new risks. Most seriously, for reasons of physical fatigue. or psychological resignation,

the subject may simply giveup, allowing excessive filling of the airways and loss consciousness. Anunresponsive subject shouldbe righted immediately, andtheinterrogatorshould deliver a sub-xyphoid thrust to expel the water. If this fails to restorenormal breathing, aggressive medical intervention.is required. Any subject who hasreached this degree of compromiseis not considered ail appropriate candidate for thewaterboard, and the physicianon the scene can not approve further use of.the waterboardwithout specific C OMS consultation and approval,

.

A rigid guide to medically approved use.ofthe waterboard in essentially healthyindividuals is not possible, as safetywill depend on how the water is applied andthe

. specific responseeach timeiris used. The following.general·guidelines are based onvery limitedknowledge, dI8:WDfrom veryfewsubjects whose experience and responsewasquite varied. These represent onlythemedical guidelines; legal guidelines also areoperativeand may be more restrictive.

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A series (within a session ) of severalrelatively rapid waterboard applications

medically acceptable in allhealth subiects so Ion as thereis no indication of some

_ Several such sessions per 24 hours have been employedwithoutapparent medical complication The exact number of sessions cannotbe prescribed,andwill dependon the response to each. more ·thari 3sessions of ? or more applicationsare envisioned within a 24 hours period, a careful medicalreassessment must madebefore eachlatersession.

By days 3-5 ofall:aggressive program cumulative effects become a potentialconcern. Without any hard data to quantify either this risk or theadvantages.of this-technique, webelieve that beyond this point continued intense-waterboard applicationsmay not be medically appropriate. Continuedaggressive use of thewaterboard beyond.this point shouldbe reviewedb the HVT team in consultation with Head uarters rior toanyfurther aggressive use.

NOT In order to best inform future medical judgments and recommendations, it isimportant that every application of the waterboard be thoroughly documented: ~ wlong

each application and the entire procedure lasted, how much water was usedin theprocess realizingthat much splashes.off), how exactly the waterwas applied, if a sealw ~. achieved, if the naso- or oropharynx was filled, what sort of volume was expelled,ho w long was.the break between applications; an d how the subject looked between eachtreatment.

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2004 cia ig report

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