(ruermay 10 2008 rzs4erst. 17460. er80sz0718 © 0000013 To sect ED roast U.S. Department of Justice Office of Legal Counsel (Oi of the Pinspat DeptyAsiiantAtomey General Washington, DC. 20830 May 10, 2005 MEMORANDUM FOR JOBN A, RIZZO SENIOR DEPUTY GENERAL COUNSEL, CENTRAL, INTELLIGENCE AGENCY Re: Application of 18 U.S.C. §§ 2340-23404 10: ‘That May Be Used inthe Interrogation ofa High Value af Qaeda Detainee ‘You havo ated us to address whether cerain specified interrogation techiniques designed to be used ona high value a! Qaeda detainee ia the Wer en Terao comply with the federal Prohibition on torture, codified at 18 US. 'y Attomey General, rom Daniel Levin, Acting Legal Standards Applicable Under 18 2004) (2004 Legal Standards Opinion”), available at A paramount recognition emphasized in our 2004 Legal Standards Opinion merits e- Gaps tthe outset and guides our analysis: Torture is abhor Dotti to American lew and Salnes and to interatonal norms. The universal repudiation otters Js reflected not only in Our ctiminel law, see, ex., BBUS.C. §§ 2340-03404 but alse in international agreements" in ¥ S64, Unive Nations Convention Agpns. Testue and Other Crue, Inhuman of Degrading Treatmeat ‘or Punishment, Dec. 10, 1885, 8, Treaty Doe, No- 100-20, M65 UNCTS. 85 (eieced into fore for US, Nov. 20.PRON SrTe 18 00s (TURD MAY 10 2008 1745/94 FHA yO erEoesaTES 1° 52 os centuries of Anglo-American law, see, e.g., John H. Langbein, Torture and the Law of Proof: Europe and England in the Ancien Regime (1977) (“Torture and the Law of Proof’), and in the Tongstanding poticy-of the United States, repeatedly and recently reaffirmed by the President? Consistent with these norms, the President has directed unequivocally that the United States is otto engage in torture? The task of interpreting und applying sections 2340-23404 is complicated by the lack of precision in the statutory terms and the lnc of relovant case law. Th defining the federal cme of torture, Congress required thet 3 defendant “specifically intend{] to inflict severe Physical or | mental pain or suffering,” and ‘Congress narrowly defined “severe mental pain or suffering” to. | mean “the prolonged mental harm caused by” enumerated predicate acts, including "the threat of fimninent death” and “procedures calculated to disrupt profoundly the senses or personality.” 13 | USC, § 2340 (emphases added). These statutory requirements are consistent with U.S | Obligations under the United Nations Convention Against Torture, the treaty that obligates the ‘United States to ensure that ‘torture is a crime under U.S. lew end that is implemented by sections 2340-23404. The requirements in. Sections 2340-23404 closely track the understandings and ‘Teservations required by the Senate when it gave its advice aad consent to ratification of the ‘Convention Against Torture. ‘They reflect 4 clear intent by ‘Congress to limit the scope of the Prohibition on torture under U.S. law. However, many of the key terms used in the statute (for cxample, “severe,” prolonged,” “sufering”) are imprecise and necessarily bring a degree of Uncertainty to addressing the reech of sections 2340-2340A, Moreover, relevant judicial decisions in this area provide only limited guidance* This ‘imprecision and lack of judicial Guidance, coupled with the President's clear directive that the United States does not condone or | ‘engage in torture, counsel great care in applying the statute to specific conduct. We have attempted to exercise suck oare throughout this tnemorandum, With these considerations in mind, we tur tothe pertiular question before us: whether certain specified intecrogation ‘techniques may be used by the Central Intelligence Agency (CCIA") on a high value al Qaeda detainee consistent with the foderat Statutory prohibition on 1220 (“Convection Against Torus” or “CAT; niemalonal Covenant oa Civil and Poltcal Rights Dex 16 1986, a.7, 99UNTS, 171 J Se Statement on United Nations lteationsl ay in Support of Veins of ere, 40 Wesky CarpabbssDoc. 1167 Guy 82004) Feeder fig true (ean aienable nan righ... ") Saemente ‘alted Notions lwernadocal Day in Support of Vicnsof Tarte, 39 Weeldy Comp, Pres. Dos €24 (une 30 PAD) "Teste anjwheceis an afro 9 han dignity everywhere" Se alse Letter of Tron rom } President Ronald Reagent the Senote (ay 20,1988), in Message fromthe President ofthe Unted See | {Transal Wg Te Cooehton Aganat Tartare and ier Cael, Ibis or Degrading Tainan’ oF PATCH Testy Doc. No. 100.26, ati (198) Catieaonof te Comnntonty te Uted Sets leary sep | | | I ‘United Stes apposition so torte, an ebhorteat practice sil psvslntin the world today > Se, eg, 40 Weakiy Comp, res. Do. a 1167-68 "America stands against aad will act tolerate GIES, Tosti wrong no matter Where i ocours, and the Uned States wll continue to lead the fight eliminate it everywhere."), Wit uit guidance the is comes from decisions that apy a related but separate statue (he Torre Victiras Protein Act "TVPA"), 261.5. § 1350 note 2000), These judicial opinions generally coma Ute it ‘any analysis of specific conductor ofthe relevant statutory standards, or seen NIN or Geos17 se oes torture, 18'U.S.C. §§ 2340-23405 For the reasons discussed below, and based on the ‘representations we have received from you (or oficals of your Agency) about the particufar techniques in question, the circurastances in which they are authorized for use, and the physical and psychological assessments made of the detainee to be interrogated, we conclude that the ‘Separate authorized use of each of the specific Techniques at issue, subject to the limitations and safeguards described herein, would not violate sections 2340-2340A* Our conclusion is straightforward with respect to all but two of the techniques discussed herein. As discussed below, use of sleep deprivation es an enhanced technique and vse of the waterboard involve ‘more substantial questions, with the waterboard presenting the most substantial question, ‘We base our conclusions on the statutory language enacted by Congress in sections 2340: 23404. We do not rely on any consideration ofthe President's authority as Commander in Chie? tunder the Constvaon, any application ofthe principle o constitutional avefdance (or any conclusion about constitutional issues), or any arguments based on possible defenses of | “necessity” or seli-deferse.” eae 1 Wehave previously adised you atthe we bythe CIA of he techniques of interrogation dust SEN consient wih de Coniston and applable hes and eats. In the preset cesioaticn yo hve | Hehe sto aes ony the requirements of 18 US.C, §§ 260-2340A. Nosling i tue memmandes te oe | eras ig ote CA shold be read to suggest thatthe ue of hse ehalgoes would confor othe roqulrenents doer na Cade oF Miliary Isic hat governs members of he Armed Fores oo United States vshgstens Unser the Geneva Conventions ia circumstances were these Couveitions Would apely, We det sade posite sPolicon of arte 160 the CAT, nar do we addres any quoston relating to conltons of enafiartent Peeeagath ts diac fom the inewoguon of deainecs, We sexs that ou avis on te aplication of cans Fiasie HOA does na represent the policy views ofthe Depament of hse concoing istopion pecien Finally, we noe that section G057(a) of E.R. 1268 (LOS Cang Ii Sess), ek becomes am wena ee ‘zesaein o oblnng funds made ayalebc by that dt eaten any person ia the custody or under te psi aah ate Une States to torte," butbecause the bi woald fing ort” to have “lie meaning pen at EE i Seaton 2340(b oie 18, United States Cade,*§60S70X0, the prvisio (othe extent nie spy ‘ere at all) would merely retire he preeesing problions on true i sections 93402510, - Background Rape lervogaton Techages 2a; 20,2004) Cecheroend Pper"), fl asesneat of Weber te ue of introgaton chal e Tener eat Ni Sestions 2540-23404 shoul ake ino accoan ibe pte combined elfcts of slg nliple “in Preparing the ‘Preseat memorandum, we have reviewed and ‘carefully considered the report prepared by ea ela tereetenatn sented np SSA ao se glam ets Serb ee 10255 oro