U.S. GOVERNMENT PUBLISHING OFFICE

30–769 PDF WASHINGTON : 2018

S. HRG. 115–281 

NOMINATION TO THE 

U.S. DEPARTMENT OF TRANSPORTATION 

AND THE U.S. DEPARTMENT OF COMMERCE 

HEARING 

BEFORE THE

COMMITTEE ON COMMERCE, 

SCIENCE, AND TRANSPORTATION 

UNITED STATES SENATE 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

JUNE 28, 2017 

Printed for the use of the Committee on Commerce, Science, and Transportation 

( 

Available online: http://www.govinfo.gov 

(II) 

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

JOHN THUNE, South Dakota, Chairman 

ROGER F. WICKER, Mississippi 

ROY BLUNT, Missouri 

TED CRUZ, Texas 

DEB FISCHER, Nebraska 

JERRY MORAN, Kansas 

DAN SULLIVAN, Alaska 

DEAN HELLER, Nevada 

JAMES INHOFE, Oklahoma 

MIKE LEE, Utah 

RON JOHNSON, Wisconsin 

SHELLEY MOORE CAPITO, West Virginia 

CORY GARDNER, Colorado 

TODD YOUNG, Indiana 

BILL NELSON, Florida, Ranking 

MARIA CANTWELL, Washington 

AMY KLOBUCHAR, Minnesota 

RICHARD BLUMENTHAL, Connecticut 

BRIAN SCHATZ, Hawaii 

EDWARD MARKEY, Massachusetts 

CORY BOOKER, New Jersey 

TOM UDALL, New Mexico 

GARY PETERS, Michigan 

TAMMY BALDWIN, Wisconsin 

TAMMY DUCKWORTH, Illinois 

MAGGIE HASSAN, New Hampshire 

CATHERINE CORTEZ MASTO, Nevada 

NICK ROSSI, Staff Director 

ADRIAN ARNAKIS, Deputy Staff Director 

JASON VAN BEEK, General Counsel 

KIM LIPSKY, Democratic Staff Director 

CHRIS DAY, Democratic Deputy Staff Director 

RENAE BLACK, Senior Counsel 

(III) 

C O N T E N T S 

Page 

Hearing held on June 28, 2017 ............................................................................... 1 

Statement of Senator Thune ................................................................................... 1 

Support letter dated June 22, 2017 to Hon. John Thune and Hon. Bill 

Nelson ............................................................................................................ 35 

Support letter dated June 22, 2017 to Hon. John Thune and Hon. Bill 

Nelson ............................................................................................................ 37 

Support letter dated June 27, 2017 to Hon. John Thune and Hon. Bill 

Nelson ............................................................................................................ 38 

Support letter dated June 27, 2017 to Hon. John Thune and Hon. Bill 

Nelson ............................................................................................................ 39 

Opposition letter dated June 28, 2017 to Hon. Mitch McConnell from 

John McCain, United States Senator .......................................................... 40 

Opposition letter dated July 31, 2017 from nonpartisan group of former 

national security, law enforcement, intelligence, and interrogation professionals ....................................................................................................... 40 

Opposition letter dated August 1, 2017 to Hon. John Thune and Hon. 

Bill Nelson from Sheldon Whitehouse, United States Senator ................. 41 

Opposition letter dated August 1, 2017 from Robert Weissman, President, 

Public Citizen ................................................................................................ 42 

Statement of Senator Nelson .................................................................................. 29 

Letter dated June 22, 2017 to Steven G. Bradbury, Esquire from Hon. 

Bill Nelson ..................................................................................................... 31 

Response letter dated June 23, 2017 to Hon. Bill Nelson from Steven 

G. Bradbury ................................................................................................... 32 

Statement of Senator Cantwell .............................................................................. 44 

Statement of Senator Cortez Masto ....................................................................... 47 

Statement of Senator Sullivan ............................................................................... 49 

Statement of Senator Hassan ................................................................................. 51 

Statement of Senator Klobuchar ............................................................................ 53 

Statement of Senator Duckworth ........................................................................... 55 

Letter dated July 14, 2006 to Hon. Arlen Specter and Hon. Patrick 

J. Leahy from Steven G. Bradbury, Acting Assistant Attorney General, 

U.S. Department of Justice .......................................................................... 58 

Senate Select Committee on Intelligence Committee, Study of the Central 

Intelligence Agency’s Detention and Interrogation Program .................... 59 

Memorandum dated May 10, 2005 for John A. Rizzo, Senior Deputy 

General Counsel, Central Intelligence Agency ........................................... 60 

Memorandum dated July 20, 2007 for John A. Rizzo, Senior Deputy 

General Counsel, Central Intelligence Agency ........................................... 106 

Memorandum dated October 6, 2008 from Steven G. Bradbury, Principal 

Deputy Assistant Attorney General, U.S. Department of Justice ............ 195 

Memorandum dated January 15, 2009 from Steven G. Bradbury, Principal Deputy Assistant Attorney General, U.S. Department of Justice ... 196 

Department of Justice’s Office of Professional Responsibility Report on 

the Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of 

‘‘Enhanced Interrogation Techniques’’ on Suspected Terrorists ............... 203 

Letter dated June 26, 2017 to Hon. John Thune and Hon. Bill Nelson 

from Charles C. Krulak, General, United States Marine Corps (Ret.) .... 203 

Opposition letter dated June 22, 2017 to Chairman John Thune from 

14 leading human rights groups .................................................................. 204 

Page

IV 

Statement of Senator Blumenthal .......................................................................... 206 

Article dated May 18, 2009 from The New York Times entitled, ‘‘Advocacy 

Groups Seek Disbarment of Ex-Bush Administration Lawyers’’ by Scott 

Shane ............................................................................................................. 208 

Statement of Senator Young ................................................................................... 210 

WITNESSES

Steven Gill Bradbury, Nominee to be General Counsel, U.S. Department 

of Transportation ................................................................................................. 3 

Prepared statement .......................................................................................... 4 

Biographical information ................................................................................. 5 

Elizabeth Erin Walsh, Nominee to be Assistant Secretary of Commerce and 

Director General of the United States and Foreign Commercial Service, 

U.S. Department of Commerce ........................................................................... 21 

Prepared statement .......................................................................................... 22 

Biographical information ................................................................................. 23 

APPENDIX

Response to written questions submitted to Steven Gill Bradbury by: 

Hon. John Thune .............................................................................................. 215 

Hon. Bill Nelson ............................................................................................... 215 

Hon. Amy Klobuchar ........................................................................................ 217 

Hon. Richard Blumenthal ................................................................................ 219 

Hon. Maggie Hassan ........................................................................................ 222 

Response to written questions submitted to Elizabeth Erin Walsh by: 

Hon. Dan Sullivan ............................................................................................ 223 

Hon. Bill Nelson ............................................................................................... 224 

(1) 

NOMINATION TO THE 

U.S. DEPARTMENT OF TRANSPORTATION 

AND THE U.S. DEPARTMENT OF COMMERCE 

WEDNESDAY, JUNE 28, 2017 

U.S. SENATE, 

COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION, 

Washington, DC. 

The Committee met, pursuant to notice, at 10 a.m., in room SR– 

253, Russell Senate Office Building, Hon. John Thune, Chairman 

of the Committee, presiding. 

Present: Senators Thune [presiding], Nelson, Sullivan, Young, 

Cantwell, Klobuchar, Blumenthal, Duckworth, Hassan, Cortez 

Masto, Fischer, and Heller. 

OPENING STATEMENT OF HON. JOHN THUNE, 

U.S. SENATOR FROM SOUTH DAKOTA 

The CHAIRMAN. Good morning. Thank you, Mr. Bradbury and 

Ms. Walsh, for being here. We have two well-qualified nominees before our Committee today. 

Steven Bradbury has been nominated to serve as the General 

Counsel at the Department of Transportation. Mr. Bradbury is currently a litigation partner at Dechert here in Washington, D.C., 

and his practice focuses on regulatory enforcement and investigations, rulemakings, and judicial review of agency actions, as well 

as appellate cases and antitrust matters. 

From 2005 to 2009, Mr. Bradbury headed the Office of Legal 

Counsel at the Department of Justice, the office that provides essential legal advice to the President and the heads of executive departments and agencies. In that role, he received the Edmund J. 

Randolph Award and the Secretary of Defense Medal for Outstanding Public Service, among other awards. 

Before serving in the Justice Department, Mr. Bradbury was a 

partner at Kirkland & Ellis for 10 years. He clerked for Justice 

Clarence Thomas on the Supreme Court and for Judge James L. 

Buckley on the D.C. Circuit. Mr. Bradbury graduated magna cum 

laude from Michigan Law School and received his B.A. from Stanford University. 

If confirmed, Mr. Bradbury will serve as the Chief Legal Officer 

at the Department of Transportation, with final authority on questions of law. The General Counsel is the legal advisor to the Secretary and is responsible for the supervision, coordination, and review of the legal work of the almost 500 lawyers throughout the 

Department. The General Counsel is also responsible for the Office 

2 

of Aviation Consumer Protection and Enforcement, and coordinates 

the Department’s legislative efforts, regulatory program, and involvement in legal proceedings before other agencies as well as various operational and international legal matters. 

Elizabeth Walsh has been nominated to serve as Assistant Secretary and Director General of the United States and Foreign Commercial Service, within the Department of Commerce. She currently serves as a Senior Advisor to Secretary Wilbur Ross. Before 

that, she served as a Special Assistant to the President and Associate Director for Presidential Personnel. She has had an extensive 

career in the international arena in both the private and public 

sectors. 

Ms. Walsh has served more than 12 years in the Federal Government, including at the Department of State, the U.S. Mission to the 

United Nations, and the Department of Energy. She also worked 

at the United Nations, serving 18 months in Bosnia, during the 

war. At the Department of State, Ms. Walsh was a senior advisor 

in the Bureau of Near Eastern Affairs. She holds a Bachelor of 

Arts degree in Government and International Relations from 

Georgetown University and a Master of Science degree from the 

London School of Economics and Political Science. 

If confirmed, Ms. Walsh will lead the trade promotion arm of the 

U.S. Department of Commerce’s International Trade Administration. U.S. Commercial Service trade professionals in over 100 U.S. 

cities and in more than 75 countries help U.S. companies get started in exporting or increasing their sales to new global markets. 

As part of the Commerce Department’s International Trade Administration, the Commercial Service helps American firms and 

workers navigate the often complicated and unpredictable waters of 

foreign trade, so that U.S. firms’ sales abroad help to support jobs 

here in the United States. 

Both nominees have consistently proven their willingness to address the challenges facing our Nation. 

I would like to thank you both for testifying today and for your 

willingness to continue your service to our country. 

And Senator Nelson, our Ranking Member, is at the DOD NDAA 

markup right now. The Senate Armed Services Committee is marking up the defense bill, so he is going to be joining us a little bit 

late. 

Senator Cantwell, anything you would like to add? 

Senator CANTWELL. [Off microphone.] 

The CHAIRMAN. OK. We will then proceed to our panel, starting 

with Steven Gill Bradbury, of Virginia. He was nominated to be 

General Counsel, Department of Transportation. 

As I mentioned Elizabeth Erin Walsh, of the District of Columbia, to be Director General of the United States and Foreign Commercial Service and Assistant Secretary for Global Markets at the 

Department of Commerce. 

So if you would proceed with your opening remarks, and then 

we’ll get a chance to ask some questions. 

Mr. Bradbury. 

3 

STATEMENT OF STEVEN GILL BRADBURY, NOMINEE TO BE 

GENERAL COUNSEL, U.S. DEPARTMENT OF TRANSPORTATION 

Mr. BRADBURY. Well, thank you, Chairman Thune and Senator 

Cantwell. Before I begin, I would just like to introduce my family. 

My wife, Hilde Kahn, is here, and my daughter, Susanna 

Bradbury, who just graduated from TJ, Thomas Jefferson High 

School, in Fairfax. I’m very proud of her. And also here are my 

wife’s parents, Barbara and Walter Kahn, of Bethesda. And I 

would also just like to introduce my partner and colleague Paul 

Dennis, who is here supporting me from our firm. 

So thank you again, and to the distinguished members of the 

Committee. I am humbled and honored to come before you today 

as the nominee to serve as General Counsel of the Department of 

Transportation. I am deeply grateful to the President and Secretary Chao for the trust and confidence they have placed in me. 

And again I would like to thank my family and supporters who are 

here. And I especially want to thank my wife, Hilde, among other 

things for putting up with me for 29 years. 

Someone who could not be here today, but who I know would be 

the proudest person in this hearing room if she were still alive is 

my mother, Cora Gill Bradbury. She raised me in Portland, Oregon, as a single mom after my father died before my first birthday. She took in ironing for 75 cents an hour and worked nights 

in a bakery to support me and my grandmother and to supplement 

our Social Security income. She encouraged me in every endeavor 

and always pointed me toward college and a better future. Because 

of her, I was the first in our family to attend a 4-year university, 

graduating from Stanford and later from Michigan Law School. 

After serving judicial clerkships with Judge James Buckley on 

the D.C. Circuit and with Justice Clarence Thomas on the Supreme 

Court, my legal career has focused on administrative litigation and 

antitrust, agency rulemakings and enforcement actions, appellate 

cases, and constitutional issues. I have handled a number of substantial regulatory matters in private practice, including before the 

Department of Transportation. 

As the Chairman said, I’ve also had the great good fortune to 

serve previously in the Executive Branch of our government. From 

2005 to 2009, I headed the Office of Legal Counsel at the Justice 

Department, where I advised the President, the Attorney General, 

and the heads of executive departments and agencies on a wide 

range of complex legal questions arising under the Constitution 

and the laws and treaties of the United States. 

OLC is the office in the Executive Branch where the buck stops 

on contentious legal issues. OLC does not make policy decisions or 

authorize any policies for the Executive Branch; rather, its essential function is to provide unvarnished legal advice, not distorted 

by policy objectives or political considerations to help ensure that 

the programs approved by senior policymakers are consistent with 

the rule of law. 

Every opinion I gave for OLC represented my best judgment of 

what the laws in effect at that time required. I certainly recognize 

and respect that some of the questions we addressed during my 

tenure in the Office raised difficult issues about which reasonable 

people could disagree. Indeed, our opinions acknowledged as much. 

4 

My previous experiences in government and private practice 

have given me a working base of knowledge in administrative law 

and a healthy appreciation for the limits of government authority. 

They’ve also instilled in me an abiding reverence for the rule of law 

and a dedication to preserving the constitutional structures and 

traditions on which—— 

[Audience interruption.] 

The CHAIRMAN. Order. Order in the hearing room. 

Mr. Bradbury, please proceed. 

Mr. BRADBURY. Thank you, Mr. Chairman. 

These experiences really have instilled in me an abiding reference for the rule of law and a dedication to preserving the constitutional structures and traditions on which our freedom depends, 

not least of which is the proper relationship between the Federal 

Government and the States. I pledge to this Committee that if confirmed, I will bring these same values to work with me every day 

at the Department of Transportation. 

DOT’s mission is exceptionally important. The liberty and prosperity of the American people depend in no small part on the safe, 

efficient operation of the Nation’s transportation systems and infrastructure. If privileged to be confirmed by the Senate, I will work 

alongside the many dedicated career lawyers of DOT to ensure to 

the best of our abilities that the Department’s decisions are well 

founded and consistent with the statutory authorities provided by 

Congress. We will devote ourselves to giving the Secretary and the 

administrators of the Department the legal support they need to 

maximize public safety in accordance with the law, to strengthen 

our nation’s infrastructure through efficient implementation of authorized funding programs, and to preserve, as Congress intended, 

competitive markets for private investment and innovation in 

transportation technology. 

Thank you. 

[The prepared statement and biographical information of Mr. 

Bradbury follow:] 

PREPARED STATEMENT OF STEVEN GILL BRADBURY, NOMINEE TO BE GENERAL

COUNSEL, U.S. DEPARTMENT OF TRANSPORTATION

Thank you, Chairman Thune, Ranking Member Nelson, and distinguished Members of the Committee. I am humbled and honored to come before you today as the 

nominee to serve as General Counsel of the Department of Transportation. 

I am deeply grateful to the President and Secretary Chao for the trust and confidence they have placed in me. 

I want to thank my family for their love and support. I am especially thankful 

to my wife Hilde Kahn—among other things, for putting up with me for 29 years. 

Hilde is here today, along with our daughter Susanna, who is 18 and just graduated 

from Thomas Jefferson High School for Science and Technology in Fairfax County, 

Virginia, and my wife’s parents, Barbara and Walter Kahn of Bethesda, Maryland. 

Our two sons, James and Will, are busy working in Silicon Valley and could not 

be with us. 

Someone else who could not be here today, but who would be the proudest person 

in this hearing room if she were still alive, is my mother Cora Gill Bradbury. She 

raised me in Portland, Oregon, as a single mom after my father died before my first 

birthday. She took in ironing for 75 cents an hour and worked nights in a bakery 

to support me and my grandmother and to supplement our Social Security income. 

She encouraged me in every endeavor and always pointed me toward college and 

a better future. 

5 

Because of her, I was the first in our family to attend a four-year university, graduating from Stanford University and later from the University of Michigan Law 

School. 

After serving judicial clerkships with Judge James L. Buckley on the U.S. Court 

of Appeals for the D.C. Circuit and for Justice Clarence Thomas on the Supreme 

Court of the United States, my legal career has focused on administrative litigation 

and antitrust law, agency rulemakings and enforcement actions, appellate cases, 

and constitutional issues. I have handled a number of substantial regulatory matters in private practice, including before the Department of Transportation. 

I have also had the great fortune to serve previously in the Executive Branch of 

our government. From 2005 to 2009, I headed the Office of Legal Counsel (‘‘OLC’’) 

at the U.S. Department of Justice, where I was called upon to advise the President, 

the Attorney General, and the executive departments and agencies on a broad range 

of the most complex legal questions arising under the Constitution and the statutes 

and treaties of the United States. 

As you may know, OLC is the office in the Executive Branch where the buck often 

stops on contentious legal issues. OLC does not make policy decisions or authorize 

any policies for the Executive Branch; rather OLC’s essential function is to provide 

unvarnished legal advice, not distorted by policy objectives or political considerations, to help ensure that the programs approved by senior policy makers are consistent with the rule of law. 

In performing that duty, every opinion I gave for OLC represented my best judgment of what the law required. I certainly recognize and respect that some of the 

questions we addressed raised difficult issues about which reasonable people could 

disagree. Indeed, my opinions recognized as much at the time. 

My previous experiences both in government and in private practice have given 

me a working base of knowledge in administrative law and a healthy appreciation 

for the limits of government authority. More broadly, they have instilled in me an 

abiding reverence for the rule of law and a dedication to the preservation of our Nation’s constitutional structures and traditions on which our freedom depends—not 

least of which is the proper relationship between the Federal Government and the 

states. 

I pledge to this Committee that, if confirmed, I will bring those same values to 

work with me every day at the Department of Transportation. 

DOT’s mission is exceptionally important. The liberty and prosperity of the American people depend in no small part on the safe, efficient operation of the Nation’s 

transportation systems and infrastructure. 

If privileged to be confirmed by the Senate, I will work alongside the many dedicated career lawyers of DOT to ensure, to the best of our abilities, that the Department’s decisions are well-founded and consistent with the statutory authorities provided by Congress. 

We will devote ourselves to giving the Secretary and the administrators of the Department the legal support they need to maximize public safety in accordance with 

the law, to strengthen our Nation’s infrastructure through efficient implementation 

of authorized funding programs, and to preserve, as Congress intended, competitive 

markets for private investment and innovation in transportation technology. 

Thank you, Mr. Chairman. That concludes my statement, and I would be happy 

to answer the Committee’s questions. 

A. BIOGRAPHICAL INFORMATION

1. Name (include any former names or nicknames used): Steven Gill (‘‘Steve’’) 

Bradbury. Former name used: Steven Dean Bradbury, 1958–1986 (judicial name 

change, July 15, 1986). 

2. Position to which nominated: General Counsel, Department of Transportation. 

3. Date of nomination: June 6, 2017. 

4. Address (list current place of residence and office addresses): 

Residence: Information not released to the public. 

Office: 1900 K Street, N.W. Washington, D.C. 20006 

5. Date and place of birth: September 12, 1958; Portland, Oregon. 

6. Provide the name, position, and place of employment for your spouse (if married) and the names and ages of your children (including stepchildren and children 

by a previous marriage). 

Spouse: Hilde Elisabeth Kahn. Occupation: Homemaker; registered real estate 

agent, affiliated with Long & Foster, McLean, VA; owner and developer of inVerDate Nov 24 2008 06:50 Jul 25, 2018 Jkt 075679 PO 00000 Frm 00009 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\30769.TXT JACKIE
6 

vestment property (single family home) through a limited liability company, 

Chesterbrook Homes LLC, of which she is the sole member. 

Three children: James, age 23; Will, age 21; Susanna, age l8. 

7. List all college and graduate degrees. Provide year and school attended. 

Stanford University (Sept. 1976 to June 1980), BA English, June 1980. 

University of Michigan Law School (Aug. 1985 to May 1988), JD magna cum 

laude, May 1988. 

8. List all post-undergraduate employment, and highlight all management-level 

jobs held and any non-managerial jobs that relate to the position for which you are 

nominated. 

July 2009–Present: 

Partner 

Dechert LLP (law firm) 

1900 K Street, N.W. 

Washington, D.C. 20006 

My practice with Dechert LLP has included representing clients in administrative proceedings and government investigations and enforcement actions, including matters before the Department of Transportation and matters involving 

public safety and competition issues. I have also represented clients in court 

cases at all levels raising constitutional issues and questions involving the interpretation of Federal statutes and judicial review of agency actions. In many 

of these matters, I have interacted extensively with officials of the Federal Government, including at the Department of Transportation. I have also managed 

complex projects and supervised teams of attorneys and support staff. Finally, 

during my years at Dechert, I have appeared in public, in court, and in Congress to address issues of public importance and significant legal questions. I 

believe these experiences are relevant and useful in approaching the duties of 

the position to which r have been nominated. 

April 2004–January 2009: 

Acting Assistant Attorney General (Feb. 2005; June 2005–Apr. 2007) 

Principal Deputy Assistant Attorney General (Apr. 2004–Jan. 2009) 

Office of Legal Counsel 

U.S. Department of Justice 

950 Pennsylvania Avenue, N.W. 

Washington, D.C. 20530 

As head of the Office of Legal Counsel, I managed an office of numerous attorneys, including some of the most experienced and accomplished senior career 

lawyers in the executive branch. OLC is the office in the Justice Department 

that exercises the Attorney General’s authority to provide legal advice to the 

President and the heads of executive departments and agencies on complex, difficult, and novel questions of constitutional law, statutory interpretation, and 

treaty matters. During my tenure in OLC, I interacted directly with the Attorney General, the President, the Vice President, the White House Counsel, Cabinet officers, and the general counsels of departments and agencies to address 

and resolve significant legal issues, including issues on which there was a division of views within the executive branch. I also interfaced extensively with the 

Committees and Members of Congress and their staffs to explain the legal positions of the Executive Branch and to assist in crafting legislative solutions for 

complex problems. These experiences in OLC are relevant preparation for potential service as General Counsel of the Department of Transportation. 

September 1993–April 2004: 

Partner (Oct. 1994–April 2004) 

Associate (Sept. 1993–Oct. 1994) 

Kirkland & Ellis LLP 

655 Fifteenth Street, N.W. 

Washington, D.C. 20005 

As a partner at Kirkland & Ellis, I supervised teams of lawyers in several large 

cases of significance, including a proposed merger of major airlines, several high 

profile telecom mergers, large antitrust and securities litigation matters in 

court, and numerous other appellate matters, constitutional cases, and administrative law matters, several of which involved court challenges to agency 

rulemakings. I also served on the firm’s Finance Committee and the Associate 

Review Committee for the firm’s Washington office. These matters and assignVerDate Nov 24 2008 06:50 Jul 25, 2018 Jkt 075679 PO 00000 Frm 00010 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\30769.TXT JACKIE
7 

ments provide relevant experience for potential service supervising the legal 

staff of a major department of government with responsibilities in a wide range 

of administrative law areas. 

July 1992–July 1993: 

Law Clerk to Justice Clarence Thomas 

Supreme Court of the United States 

1 First Street, N.E. 

Washington, D.C. 20543 

July 1991–July 1992: 

Attorney-Adviser 

Office of Legal Counsel 

U.S. Department of Justice 

950 Pennsylvania Avenue, N.W. 

Washington, D.C. 20530 

July 1990–July 1991: 

Law Clerk to Judge James L. Buckley 

U.S. Court of Appeals for the D.C. Circuit 

333 Constitution Avenue, N.W. 

Washington, D.C. 20001 

September 1988–July 1990: 

Associate 

Covington & Burling 

1201 Pennsylvania Avenue, N.W. 

Washington, D.C. 20044 

May 1987–July 1987: 

Summer Associate 

Covington & Burling 

1201 Pennsylvania Avenue, N.W. 

Washington. D.C. 20044 

May 1986–August 1986: 

Summer Associate 

Miller, Nash, Wiener, Hager & Carlsen 

111 SW Fifth Avenue 

Portland, OR 97204 

September 1983–August 1985: 

Legal Assistant 

Davis Polk & Wardwell 

1 Chase Manhattan Plaza 

New York, NY 10001 

(Now located 47th Street & Park Avenue) 

November 1981–September 1983: 

Assistant Editor (Feb. 1983–Sept. 1983) 

Editorial Assistant (Nov. 1981–Feb. 1983) 

Avon Books (then a Division of the Hearst Corporation) 

1790 Broadway 

New York, NY 10019 

August 1981–October 1981: 

Waiter & Bus Boy 

Off Broadway Company (restaurant) 

West 69th Street & Broadway 

New York, NY 

(No longer in business) 

April 1981–June 1981: 

Waiter 

Le Cafe ́ Meursault (restaurant) 

Palo Alto, CA 

(No longer in business) 

September 1980–October 1980: 

Food Service (sandwich maker) 

Stanford Coffee House 

Tresidder Student Union 

Stanford University 

Stanford, CA 94305 

8 

June 1980–September 1980: 

Installer of insulation blankets for water heaters in university housing 

Stanford Conservation Center 

Stanford University 

Stanford, CA 94305 

9. Attach a copy of your resume. 

Please see Attachment A. 

10. List any advisory, consultative, honorary, or other part-time service or positions with Federal, State, or local governments, other than those listed above, within the last ten years. None. 

11. List all positions held as an officer, director, trustee, partner, proprietor, 

agent, representative, or consultant of any corporation, company, firm, partnership, 

or other business, enterprise, educational, or other institution within the last ten 

years. 

Partner, Dechert LLP, 7/2009 to present. 

Chair (9/2015 to present) and Member (9/2012 to present), Editorial Board for 

Annual Review of Antitrust Law Developments, ABA Section of Antitrust Law. 

Member, 5/2012 to present, Capital Markets Litigation Advisory Committee, 

U.S. Chamber of Commerce Litigation Center. 

Chair, 5/2015 to present, International Law Working Group. John Hay Initiative. 

Member, 2/2012 to present, National Security Law Working Group, Heritage 

Foundation. 

12. Please list each membership you have had during the past ten years or currently hold with any civic, social, charitable, educational, political, professional, fraternal, benevolent or religious organization, private club, or other membership organization. Include dates of membership and any positions you have held with any organization. Please note whether any such club or organization restricts membership 

on the basis of sex, race, color, religion, national origin, age, or handicap. 

D.C. Bar; member since 12/1988. 

American Bar Association; member, 1988–1992 and 2009 to present. 

ABA Section of Antitrust Law, Editorial Board for Annual Review of Antitrust 

Law Developments; chair, 9/2015 to present, and member, 9/2012 to present. 

U.S. Chamber of Commerce Litigation Center, Capital Markets Litigation Advisory Committee; member since 5/2012. 

Federalist Society; member off and on beginning in 1993 and currently; was not 

a member while serving in government. 

Heritage Foundation, National Security Law Working Group: participating 

member since 2/2012. 

John Hay Initiative, International Law Working Group; chair, since 5/2015. 

Alexander Hamilton Society; member 2012–2014. 

Supreme Court Historical Society; member 2013. 

Stanford University Alumni Association; member since 1980. 

Michigan Law School Alumni Association; member since 1988. 

Chesterbrook Swim and Tennis Club (community pool and tennis courts 

inMcLean, VA); member from 06/2008 until 03/2013. 

River Falls Community Center Association. Inc. (community pool and tennis 

courts in Potomac, MD); member from 08/1996 until 09/2007. 

Civic Association of River Falls; member from 08/1996 until 09/2007. 

Registered member of the Republican Party. 

Maryland Republican Party; was a member while living in MD (until 2007). 

Virginia Republican Party; currently a member. 

To my knowledge, no organization of which I have been a member has ever had 

a policy of restricting membership on the basis of sex, race, color, religion, national origin, age, or handicap. 

13. Have you ever been a candidate for and/or held a public office (elected, non 

elected, or appointed)? If so, indicate whether any campaign has any out standing 

debt, the amount, and whether you are personally liable for that debt. 

9 

As listed above, I have held appointed office in the U.S. Department of Justice 

and have served as law clerk to two Federal judges. I have not campaigned for public office and do not have any campaign debt. 

14. Itemize all political contributions to any individual, campaign organization, 

political party, political action committee, or similar entity of $500 or more for the 

past ten years. Also list all offices you have held with, and services rendered to, a 

state or national political party or election committee during the same period. 

I have made the following political contributions of $500 or more in the last ten 

years: 

09/26/2016 $1,000 National Republican Senatorial Committee 

02/21/2016 $2,700 Marco Rubio for President 

06/18/2015 $2,700 JEB2016, Inc. 

09/19/2012 $2,500 Romney Victory, Inc. 

05/08/2012 $500 Ted Cruz for Senate 

09/14/2011 $1,500 Romney for President 

07/26/2011 $1,000 Romney for President 

02/24/2010 $1,000 National Republican Senatorial Committee 

I have held no offices with any political party or election committee. I did serve 

as an unpaid legal adviser to presidential candidate Mitt Romney in 2012 and as 

an informal legal adviser to candidate Jeb Bush in 2015–2016. 

15. List all scholarships, fellowships, honorary degrees, honorary society memberships, military medals, and any other special recognition for outstanding service or 

achievements. 

—Edmund J, Randolph Award for outstanding service to the Department of 

Justice, 2007. 

—Secretary of Defense Medal for Outstanding Public Service, Nov. 2006. 

—National Security Agency’s Intelligence Under Law Award, May 2008. 

—Director of National Intelligence’s 2007 Intelligence Community Legal Award 

(Team of the Year, FISA Modernization). 

—Criminal Division’s Award for Outstanding Law Enforcement Partnerships, 

Nov. 2006. 

—Included in list of Washington’s top 40 lawyers under age 40, Washingtonian 

Magazine, Aug. 1998. 

—J.D., magna cum laude, University of Michigan Law School, May 1988. 

—Order of the Coif, University of Michigan Law School, 1988. 

—Article Editor, Michigan Law Review, 1987–1988. 

—Dean’s 1987–1988 Law Review Award for outstanding contribution to the 

Michigan Law Review. 

—Book Awards for top grade in law school classes: Administrative Law, Civil 

Procedure II; and Legal Process. 

—Supreme Court clerkship, Justice Thomas, October Term 1992. 

—D.C. Circuit clerkship, Judge Buckley, 1990–1991. 

—Student Body President, Washington High School, Portland, OR, 1976. 

—Officer, Honor Society, Washington High School, Portland, OR, 1975–1976. 

—National Merit Scholarship Letter of Commendation, Washington High 

School, Portland, OR, 1976. 

16. Please list each book, article, column, or publication you have authored, individually or with others. Also list any speeches that you have given on topics relevant to the position for which you have been nominated. Do not attach copies of 

these publications unless otherwise instructed. 

Publications: 

—Steven G. Bradbury, ‘‘National Security and the New Yellow Press,’’ published as chapter 11 in Journalism After Snowden: The Future of the Free Press 

in the Surveillance State, p. 172 (Emily Bell, Taylor Owen, et al., eds., Columbia 

Journalism Review Books, Columbia Univ. Press 2017). 

—Steven G. Bradbury, Justice Thomas and the Second Amendment: Protecting 

Liberty and Promoting Equal Justice, published online at JusticeThomas.com 

(Oct. 24, 2016). 

—Steven Gill Bradbury, ‘‘Celebrating Justice Thomas’s 25 Years of Service on 

the Supreme Court,’’ Letter of Tribute Addressed to Sen. Orrin G. Hatch, SenVerDate Nov 24 2008 06:50 Jul 25, 2018 Jkt 075679 PO 00000 Frm 00013 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\30769.TXT JACKIE
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ate Committee on the Judiciary (Sept. 16, 2016) (published in the Congressional 

Record). 

—Steven G. Bradbury, Opinion Piece, ‘‘Clarence Thomas’s 25 years on 

theSupreme Court are a triumph of perseverance,’’ FoxNews.com (online) 

(June 27, 2016). 

—John Hay Initiative International Law Working Group, Chaired by Steven G. 

Bradbury. ‘‘Update on China’s Expansion in the South China Sea’’ (May 6, 

2016) (published online). 

—John Hay Initiative International Law Working Group, Chaired by Steven G. 

Bradbury, ‘‘JHI Backgrounder: China’s Maritime Expansion in the South and 

East China Seas’’ (Sept. 21, 2015) (published online). 

—Steven G. Bradbury, Balancing Privacy and Security, Harv. J. L. & Pub. Pol’y 

(Federalist Ed.), Vol. 2, No. 1, p.5 (Winter 2015). 

—Steven G. Bradbury, Op-Ed, ‘‘Opposing view: Preserve this critical tool [NSA 

telephone metadata program],’’ USA Today, p. 10A (Mar. 28, 2014). 

—Steven G. Bradbury, Op-Ed, ‘‘Don’t limit the NSA’s effectiveness,’’ Wash. Post, 

p.Al3 (Jan. 5, 2014). 

—Michael B. Mukasey, Steven G. Bradbury, & David B. Rivkin Jr., Op-Ed, ‘‘An 

ill-founded ruling against the NSA,’’ Wash. Post, p.A27 (Dec. 20, 2013). 

—Steven G. Bradbury, Understanding the NSA Programs: Bulk Acquisition of 

Telephone Metadata Under Section 215 and Foreign-Targeted Collection Under 

Section 702, Lawfare Research Paper Series 1, No. 3 (Aug. 30, 2013), available 

at https://www.lawfareblog.com/topic/lawfare-research-paper-series. 

—Steven G. Bradbury, Op-Ed, ‘‘The use of phone data: Constraining the NSA 

would make Americans less safe,’’ Wash. Post, p.A15 (July 23, 2013). 

—Steven G. Bradbury, Op-Ed, ‘‘Opposing view: ‘The system works well as it is’: 

FISA court judges serve the rule of law,’’ USA Today, p.8A (July 19, 2013). 

—Thomas P. Vartanian & Steven G. Bradbury, How to Fight Back Against Bad 

Agency Decisions, American Banker BankThink (online) (Jan. 16, 2013). 

—Steven G. Bradbury, Anticipating How the U.S. Supreme Court May Rethink 

Fraud-on-the-Market Standards for Securities Class Actions, Bloomberg BNA 

(online) (Aug. 24, 2012). 

—George G. Gordon & Steven G. Bradbury, K-Dur: The Rejection of ‘‘Scope of 

the Patent’’ Test, Law360 (online) (July 24, 2012). 

—FTC Recommends Improvements to Patent System, Intellectual Prop. & Tech’y 

L.J. (June 2011). 

—Timothy C. Blank, Steven G. Bradbury, & Christopher R. Boisvert, The Dawn 

of Internet Privacy?, Law360 (online) (Apr. 22, 2011). 

—Steven G. Bradbury, Keynote Address, The Developing Legal Framework for 

Defensive and Offensive Cyber Operations, 2 Harv. Nat’l Sec. J. 629 (Mar. 2011). 

—Steven G. Bradbury & John P. Elwood, Op-Ed, ‘‘Recess is canceled: President 

Obama should call the Senate’s bluff,’’ Wash. Post, p.Al9 (Oct. 15, 2010). 

—Steven G. Bradbury, Dechert LLP, After further review, NFL’s ‘‘Hail Mary’’ 

pass ruled incomplete: Supreme Court holds NFL’s joint trademark licensing 

subject to Section 1 of the Sherman Act, Lexology (online) (May 28, 2010). 

—Steven G. Bradbury, Gearing up for American Needle v. NFL, Law360 (online) 

(Jan. 11, 2010). 

—Steven G. Bradbury & Grant M. Dixton, Court Ruling Wrongly Creates New 

Right to Sue Telecom Companies, Washington Legal Foundation Legal Opinion 

Letter, Vol. 12, No. 22 (Aug. 30, 2002) (discussing Law Offices of Curtis V. 

Trinko, LLP v. Bell Atlantic Corp., 294 F.3d 307 (2d Cir. 2002), a case later reversed by the Supreme Court). 

—Steven Bradbury & Kelion Kasler, Kirkland & Ellis, ‘‘Verizon Communications: The Merger of Bell Atlantic and GTE,’’ published in Corporate Finance, 

Global M&A Yearbook 2000: New Strategies in M&A at 47 (Nov. 2000). 

—Steven G. Bradbury, Paul T. Cappuccio & Patrick F. Philbin, Kirkland & 

Ellis, ‘‘Telecommunications,’’ published in International Financial Law Review, 

United States: A Legal Guide at 33 (June 1998). 

—Steven G. Bradbury, Paul T. Cappuccio & Patrick F. Philbin, Kirkland & 

Ellis, ‘‘United States,’’ published in International Financial Law Review, Telecommunications: An International Legal Guide at 69 (Aug. 1997). 

11 

—Steven G. Bradbury, The Unconstitutionality of Qui Tam Suits, Federalist Society Federalism & Separation of Powers News, Vol. 1 No. 1 (Fall 1996) (discussing pending cert. petition in Hughes Aircraft Co. v. United States ex rel. 

Schumer). 

—Steven G. Bradbury, Original Intent, Revisionism, and the Meaning of the 

CGL Comprehensive General Liability Insurance] Policies, 1 Environmental 

Claims J. 279 (Spring 1989). 

—Note, Corporate Auctions and Directors’ Fiduciary Duties: A Third-Generation 

Business Judgment Rule, 87 Mich. L. Rev. 276 (1988). 

—Book Note, 85 Mich. L. Rev. 941 (1987). 

—A Cattleman’s Calling (short story), published in The Hoboken Terminal, Vol. 

1 No. 1 (Spring 1982). 

In addition to the publications listed above, I have assisted in preparing client 

alerts issued online by Dechert LLP regarding a wide variety of legal topics. Those 

client alerts are available at https://www.dechert.com/steven_bradbury/ (click on 

‘‘Related Publications’’). I also authored or supervised the preparation of legal opinions for the Office of Legal Counsel (‘‘OLC’’) of the U.S. Department of Justice from 

2004 to 2009. Many of those opinions are posted on the OLC Website and can be 

found at www.usdoj.gov/olc/opinions-main and https://www.usdoj.gov/olc/olc-foiaelectronic-reading-room. 

Speeches and Other Public Remarks: 

I have given numerous speeches, panel presentations, and other public remarks, 

mostly addressed to issues of national security law, cybersecurity, antitrust, securities law, and administrative law and regulation. Very few of my public remarks 

have been relevant to the position to which I have been nominated. The following 

is the most complete list I have been able to compile of my speeches and public remarks. 

Panel Presentation, ‘‘How to Shut It Down: Creative Strategies that Ended Government Antitrust Investigations,’’ Dechert LLP’s 2017 Annual Antitrust Spring 

Seminar, Philadelphia, PA {Apr. 4, 2017). 

Panel Presentation, ‘‘Financial Services Breakfast Briefing: Current Developments Affecting the Fund Industry—Washington Update,’’ Investment Company 

Institute Annual Legal Conference, Palm Desert, CA (Mar. 14, 2017). 

Panel Presentation, ‘‘A Term in Review: An Overview of Key Supreme Court 

Decisions from the 2015 Term & Thoughts About the Upcoming Term,’’ Dechert 

LLP CLE Seminar, Washington, D.C. (Nov. 29, 2016). 

Panel Presentations, ‘‘A Bitter Pill?: Recent Developments in Pharma’’; and 

‘‘Antitrust in the Next U.S. Administration,’’ Dechert LLP’s 2016 Annual Antitrust Spring Seminar, Philadelphia, PA (Apr. 13, 2016). 

Panel Presentation, ‘‘What Every Lawyer Needs to Know About Recent Supreme Court Cases,’’ Dechert LLP CLE Seminar, Washington, D.C. (Sept. 16, 

2015). 

Guest Appearance, Discussion and Debate on Reauthorizing the PATRIOT Act, 

C–SPAN Washington Journal, Washington, D.C. (May 16, 2015) (appeared with 

Neema Singh Guliani of ACLU). 

Panel Presentation, Dechert LLP’s 2015 Annual Antitrust Spring Seminar, 

Philadelphia, PA (Apr. 28, 2015). 

Participant in Panel Debate, Legality of Section 215 Telephone Metadata Acquisition, Heritage Foundation, Washington, D.C. (Mar. 17, 2015). 

Remarks, ‘‘The Legal Framework for Cybersecurity,’’ Presented to the Legal Department of Raytheon Company, Waltham, MA (Nov. 4, 2014). 

Featured Speaker (with John B. Bellinger, II), Discussing the President’s Use 

of the 2001 AUMF to Combat ISIS, Event Organized by Alexander Hamilton 

Society and Federalist Society, Mayflower Hotel, Washington, D.C. (Oct. 22, 

2014). 

Moderator, Discussion between Two Former SEC Commissioners Regarding 

‘‘Corporate Disclosure Effectiveness: Ensuring a Balanced System [of SEC Disclosure] that Informs and Protects Investors and Facilitates Capital Formation,’’ 

U.S. Chamber of Commerce, Washington, D.C. (July 29, 2014). 

Panel Speaker, Discussion Regarding Supreme Court’s Decision in Utility Air 

Regulatory Group v. EPA Striking Down EPA Rule on Greenhouse Gas EmisVerDate Nov 24 2008 06:50 Jul 25, 2018 Jkt 075679 PO 00000 Frm 00015 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\30769.TXT JACKIE
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sions from Stationary Sources, ABA Administrative Law Section Forum, Washington, D.C. (July 24, 2014). 

Panel Presentation, Dechert LLP, ‘‘So the Government Thinks Your Deal Is 

Anticompetitive: Restructuring Your Deal to Overcome Antitrust Hurdles,’’ 

Lawline CLE Webinar, New York, NY (June 24, 2014). 

Video-Recorded Remarks Discussing Supreme Court’s Decision in Halliburton 

Case (Addressing Securities Law Class Action Standards), Federalist Society 

YouTube Video Series, Washington, D.C. (June 23, 2014). 

Panel Speaker, ‘‘Executive Branch Action in a Time of Political Dysfunction,’’ 

American Constitution Society, Annual Convention, Washington, D.C. (June 20, 

2014). 

Panel Speaker) ‘‘Debrief on Supreme Court’s UARG v. EPA Opinion Regarding 

Greenhouse Gas Rules,’’ Environmental Law Institute, Associates Seminar, 

Washington, D.C. (June 19, 2014). 

Panel Speaker, ‘‘Foreign Intelligence Surveillance in an Era of ‘Big Data’—Is 

There a Need to Recalibrate Boundaries?,’’ ABA Standing Committee on Law 

and National Security, Washington, D.C. (May 2, 2014). 

Panel Presentation, ‘‘What Every Lawyer Needs to Know About Recent Supreme Court Cases,’’ Dechert LLP CLE Seminar, New York, NY (Apr. 30, 2014). 

Panel Presentation, Dechert LLP’s 2014 Annual Antitrust Spring Seminar, 

Philadelphia, PA (Apr. 29, 2014). 

Panel Speaker, Forum on Data Privacy and Balancing National Security and 

Civil Liberties, Clements Center for History, Strategy, & Statecraft, University 

of Texas Law School, Austin, TX (Apr. 3, 2014). 

Panel Speaker, Panel Discussing Data Privacy and Constitutionality of National 

Security Surveillance Activities, Georgetown Journal of Law & Public Policy 

Spring Symposium, Washington, D.C. (Mar. 27, 2014). 

Panel Speaker, Panel Discussing Constitutionality of Border Searches of Electronic Media by TSA Officials, National Press Club, Washington, D.C. (Mar. 20, 

2014). 

Featured Speaker, ‘‘National Security versus Data Privacy,’’ Ferrum College Annual Forum, Roanoke, VA (Mar. 19. 2014). 

Panel Speaker, ‘‘Balancing Privacy and Security,’’ Federalist Society’s 33rd Annual National Student Symposium, Univ. of Florida Levin College of Law, 

Gainesville, FL (Mar. 8, 2014). 

Panel Speaker, Addressing the Halliburton case and the Supreme Court’s Reconsideration of the Basic v. Levinson Presumption of Reliance in Securities 

Fraud Litigation, D.C. Bar Luncheon, Washington, D.C. (Mar. 5, 2014). 

Panel Speaker, Addressing Individual Privacy and National Security, Chicago 

Bar Association Forum, Union League Club, Chicago, IL (Mar. 3, 2014). 

Panel Speaker, ‘‘Erica P. John Fund & Beyond: The Past, Present, and Future 

of Securities Class Actions,’’ U.S. Chamber of Commerce, Washington, D.C. 

(Feb. 28, 2014). 

Panel Speaker, ‘‘Debrief of the Supreme Court’s Oral Argument on EPA’s 

Greenhouse Gas Rulemakings,’’ D.C. Bar Association, Washington, D.C. 

(Feb. 25, 2014). 

Panel Speaker, Constitutionality of NSA Programs, Organized by the National 

Security Law Committee of the Federalist Society, Held at the Offices of Jones 

Day, Washington, D.C. (Feb. 24, 2014). 

Panel Speaker, Addressing Fallout from the NSA Revelations for Foreign Relations and the Legal Regime Governing Surveillance in the U.S. and Among Our 

Allies, Breakfast Panel Debate, Council on Foreign Relations, Washington, D.C. 

(Feb. 20, 2014). 

Panel Speaker, Conference on Privacy and Security, Chicago Council on Global 

Affairs and Notre Dame Law School’s International Security Program, Chicago, 

IL (Feb. 14, 2014). 

Panel Speaker, ‘‘Reforming the NSA Surveillance System: Assessing the Options,’’ at the State of the Net Conference, organized by the Internet Education 

Foundation and the National Cable and Telecommunications Association, The 

Newseum, Washington, D.C. (Jan. 28, 2014). 

Featured Speaker, Address on the Constitutional Underpinnings of the NSA 

Programs, Stanford Law School Constitutional Law Center, Stanford, CA 

(Jan. 23, 2014). 

13 

Guest on radio program discussing FISA Court process and NSA programs, 

NPR Philadelphia affiliate (Jan. 21, 2014). 

Audio Teleconference and Podcast, Discussing District Court Decision Enjoining 

NSA Metadata Program, Federalist Society Teleforum, Washington, D.C. 

(Dec. 19, 2013). 

Webinar Presentation, ‘‘Supreme Court Takes on the Clean Air Act: EME 

Homer and Utility Air Regulatory Group v. EPA,’’ Bloomberg BNA Webinar 

(Dec. 17, 2013). 

Panel Speaker, Addressing Cybersecurity and the NSA Disclosures, Federalist 

Society Annual Convention, Washington, D.C. (Nov. 15, 2013). 

Debate, ‘‘NSA Surveillance: A Necessary Evil?,’’ Paul H. Nitze School of Advanced International Studies (SAIS), Johns Hopkins University, Washington, 

D.C. (Oct. 28, 2013) (debating Prof. David Cole of Georgetown Law School; moderated by SAIS Prof John McLaughlin, former Deputy Director of the CIA). 

Participant, Debate on National Security versus Privacy Interests, St. Thomas 

Law School, St Paul, MN (Oct 3, 2013). 

Panel Presentation, CLE Seminar on Antitrust Law Developments, presented to 

Time Warner Inc. Legal Department, New York, NY (Sept. 24, 2013). 

Participant, Debate on Legality of NSA Programs, Milbank Tweed Forum, NYU 

Law School, New York, NY (Sept 18, 2013) (debating Liza Goitein of the Brennan Center for Justice, among others). 

Participant in nationally televised debate addressing the propriety and legality 

of the NSA programs disclosed by Edward Snowden, PBS News Hour, 

Shirlington, VA (July 31, 2013) (debating author and NSA critic Jim Bamford). 

Participant in radio debate addressing the legality of the NSA programs disclosed by Edward Snowden, Minnesota Public Radio’s Daily Circuit program 

(July 30, 2013) (debating Marc Rotenberg of EPIC), 

Debate on constitutionality of NSA programs disclosed by Edward Snowden, 

Federalist Society Teleforum, Washington, D.C. (July 23, 2013) (debating Prof. 

Randy Barnett of Georgetown Law School). 

Webinar Presentation, ‘‘FTC v. Actavis, Inc.: The Unsettling of Hatch-Waxman 

Settlements,’’ BNA Bloomberg Webinar (July 16, 2013). 

Guest on Public Radio Program To The Point With Warren Olney Discussing the 

FISA Court and NSA Programs (July 10, 2013). 

Prepared Remarks and Q&A Addressing Legal Bases for NSA Programs, Delivered before the Privacy and Civil Liberties Oversight Board, Washington, D,C. 

(July 9, 2013). 

Live Analysis, SCOTUS Decision in FTC v. Actavis, Inc., Dechert LLP, Washington, D,C. (June 19, 2013). 

Panel Speaker, Addressing Cost-Benefit Analysis and OMB Review of Administrative Rulemaking, Federalist Society Luncheon Event, National Press Club, 

Washington, D.C. (June 11, 2013). 

Panel Speaker in Live Conference and Pod cast, ‘‘The Pentagon, the National 

Security Agency, and Domestic Cybersecurity,’’ Federalist Society International 

& National Security Law Practice Group, Washington, D.C. (May 3, 2013). 

Panel Presentation, Dechert LLP’s 2013 Annual Antitrust Spring Seminar, 

Philadelphia, PA (April 17, 2013). 

Webinar Participant, Briefing on Supreme Court case FTC v. Actavis, Inc. regarding intersection of patent law and antitrust, American Intellectual Property 

Law Association Webinar, Washington, D.C. (Apr. 2, 2013). 

Panel Speaker, ‘‘The Importance of Cost-Benefit Analysis in Agency Rulemaking,’’ U.S. Chamber of Commerce Center for Capital Markets Competitiveness, Washington, D.C. (Mar. 12, 2013). 

Featured Speaker, ‘‘Agency v. Agency (and other problems of overlapping jurisdiction),’’ Federalist Society event, Duke Law School, Durham, NC (Jan. 31, 

2013). 

Debate Presentation, ‘‘Debating the USA PATRIOT Act: 10 Years Later,’’ Appellate Judges Education Institute, 2012 Annual Summit, New Orleans, LA 

(Nov. 18, 2012) (debating Susan Herman, National President of the ACLU). 

Webinar Participant, ‘‘The Legal Challenge to the CFTC’s New Registration Regime for Mutual Funds)’’ Mutual Fund Directors Forum Webinar, Washington, 

D.C. (Oct 9, 2012). 

14 

Web Video, Addressing Federal Trade Commission’s Policy Change in Seeking 

Restitution in Enforcement Proceedings, Washington Legal Foundation Web 

Video, Washington, D.C. (Aug. 30, 2012). 

Debate on the Constitutionality of the Individual Mandate in the Affordable 

Care Act Following Oral Argument in the Supreme Court, American Constitution Society, Annual Convention, Washington, D.C. (June 16, 2012) (debating 

Walter Dellinger; moderated by Adam Liptak). 

Mock Oral Argument on the Constitutionality of the Individual Mandate in the 

Affordable Care Act, Georgetown Law School Supreme Court Institute, Washington, D.C. (Feb. 1, 2012) (arguing opposite Walter Dellinger before a distinguished panel of Supreme Court practitioners sitting as mock justices). 

Panel Speaker, Addressing Developments in Cybersecurity Law, Steptoe & 

Johnson Forum, Washington, D.C. (June 28, 2011). 

Featured Speaker, Roundtable Discussion on the Developing Legal Framework 

for Defensive and Offensive Cybersecurity, Council on Foreign Relations, Washington, D.C. (Apr. 18, 2011). 

Keynote Address, ‘‘The Developing Legal Framework for Defensive and Offensive Cyber Operations,’’ Harvard National Security Journal Forum on 

Cybersecurity, Harvard Law School, Cambridge, MA (Mar. 4, 2011). 

Remarks Addressing Matrix Initiatives Supreme Court Case, Federalist Society 

Press Call, Washington, D.C. (Jan. 6, 2011). 

Moderator, ‘‘Merck & Co. v. Reynolds,’’ Law Seminars International TeleBriefing 

(May 18, 2010) (panel presentation included Richard Cordray, then Attorney 

General of Ohio). 

Panel Presentation, Dechert LLP, Spring Antitrust CLE Seminar, Philadelphia, 

PA (Apr. 28, 2010). 

Remarks on Receiving the Intelligence Under Law Award, NSA’s Law Day, National Security Agency, Fort Meade, MD (May 1, 2008). 

Remarks on the Departure of Attorney General Alberto R. Gonzales, Great Hall 

of the U.S. Department of Justice, Washington, D.C. (Sept. 17, 2007). 

Remarks delivered to attorneys of my former law firm, Kirkland & Ellis LLP, 

concerning the functions of the Office of Legal Counsel and my experiences as 

Acting AAG, Washington, D.C. (Jan. 22, 2007). 

Guest on NPR’s Morning Edition radio program, Explaining the Legal Basis for 

the Special NSA Surveillance Program Authorized by the President, Washington, D.C. (Feb. 14, 2006). 

Guest Appearance, Explaining the Legal Basis for the Special NSA Surveillance 

Program Authorized by the President, C–SPAN Washington Journal, Washington, D.C. (Feb. 8, 2006). 

In addition to the speaking engagements listed above, in private practice with 

Kirkland & Ellis LLP between 1993 and 2004, I participated in several pm1el discussions for industry or bar associations concerning matters or issues on which I 

was working; these included: a Washington Legal Foundation panel discussing an 

upcoming Supreme Court term; a panel discussing antitrust litigation in the securities industry at the Securities Industry Association Annual Law and Compliance 

Seminar; and a panel discussing airline industry mergers at the ABA’s Air and 

Space Law Section annual conference. I also appeared as a guest on a cable television program discussing Justice Thomas. 

17. Please identify each instance in which you have testified orally or in writing 

before Congress in a governmental or non-governmental capacity and specify the 

date and subject matter of each testimony. 

Hearing before the House Committee on the Judiciary, ‘‘Examining Recommendations to Reform FISA Authorities’’ (Feb. 4, 2014). 

Hearing before the House Permanent Select Committee on Intelligence, ‘‘Legislative Proposals for Modifying NSA Programs and Amending FISA Authorities’’ 

(Oct. 29, 2013). 

Hearing before the House Committee on the Judiciary, ‘‘Oversight Hearing into 

the Administration’s Use of FISA Authorities’’ (July 17, 2013). 

Hearing before the House Ways and Means Committee, ‘‘The Ramifications of 

the Supreme Court’s Ruling on the Affordable Care Act’’ (July 10, 2012). 

Hearing before the House Ways and Means Committee, ‘‘The Constitutionality 

of the Individual Mandate in the Affordable Care Act’’ (Mar. 29, 2012). 

15 

Hearing before the Senate Committee on the Judiciary, ‘‘The Due Process Guarantee Act: Banning Indefinite Detention of Americans’’ (Feb. 29, 2012). 

Hearing before the House Committee on the Judiciary, Subcommittee on the 

Constitution, Civil Rights, and Civil Liberties, ‘‘Oversight of the Justice Department’s Office of Legal Counsel’’ (Feb. 14, 2008). 

Classified Hearing before the Senate Select Committee on Intelligence Concerning Legal and Policy Review of CIA Program (Apr. 12, 2007). 

Hearing before the House Committee on Armed Services, ‘‘Standards of Military 

Commissions and Tribunals Following the Supreme Court’s Decision in 

Hamdan v. Rumsfeld’’ (Sept. 7, 2006). 

Hearing before the House Committee on the Judiciary, Subcommittee on Crime, 

Terrorism, and Homeland Security, ‘‘Legislative Proposals to Update the Foreign Intelligence Surveillance Act’’ (Sept. 6, 2006). 

Hearing before the Senate Committee on the Judiciary, ‘‘The Authority to Prosecute Terrorists under the War Crimes Provisions of Title 18’’ (Aug. 2, 2006). 

Hearing before the Senate Committee on the Judiciary, ‘‘FISA for the 21st Century’’ (July 26, 2006). 

Hearing before the House Committee on Armed Services, ‘‘Standards of Military 

Commissions and Tribunals Following the Supreme Court’s Decision in 

Hamdan v. Rumsfeld’’ (July 12, 2006). 

Hearing before the Senate Committee on the Judiciary, ‘‘Hamdan v. Rumsfeld: 

Establishing a Constitutional Process for Military Commissions’’ (July 11, 2006). 

Confirmation Hearing before the Senate Committee on the Judiciary, Nominations of several nominees, including Steven G. Bradbury, to be Assistant Attorney General for the Office of Legal Counsel, Department of Justice (Oct. 6, 

2605). 

18. Given the current mission, major programs, and major operational objectives 

of the department/agency to which you have been nominated, what in your background or employment experience do you believe affirmatively qualifies you for appointment to the position for which you have been nominated, and why do you wish 

to serve in that position? 

Through my work in private practice and in the Justice Department’s Office of 

Legal Counsel (‘‘OLC’’), I am familiar with the statutory and administrative authorities of Federal departments and agencies, specifically including the Department of 

Transportation. Every major mission and program administered by the Department 

depends on accurate and reliable legal advice for policymakers on the application 

and limits of such authorities, and I have extensive experience supervising teams 

of attorneys in providing such legal advice. 

19. What do you believe are your responsibilities, if confirmed, to ensure that the 

department/agency has proper management and accounting controls, and what experience do you have in managing a large organization? 

Proper management and accounting controls are critical to the Department’s appropriate and effective administration of its statutory authorities. My responsibilities in OLC included providing legal advice to deparh11cnt heads and the White 

House on compliance with Federal budget and accounting controls, including under 

the Anti-Deficiency Act. I have managed teams of lawyers in carrying out this legal 

role, and I have advised senior appointed officials at various departments and agencies in the proper supervision of their statutory mandates. In private practice, I 

have advised general counsels and other senior legal offices to ensure compliance 

with applicable laws and regulations. 

20. What do you believe to be the top three challenges facing the department/ 

agency, and why? 

I see the top three challenges facing the Department of Transportation to be (a) 

promoting public safety through reasonable and effective application of the legal authorities provided by Congress; (b) achieving rational rulemaking consistent with 

law and with the preservation of competitive markets and incentives for private investment in innovation; and (c) advancing critical transportation infrastructure improvements through cooperation with Congress in the budget process and through 

the efficient administration of grants and other funding programs authorized by 

Congress. If confirmed as General Counsel, my role will be to ensure that the Secretary and the Department have the legal advice and support needed in exercising 

their authorities to address these and other challenges. 

16 

B. POTENTIAL CONFLICTS OF INTEREST

1. Describe all financial arrangements, deferred compensation agreements, and 

other continuing dealings with business associates, clients, or customers. Please include information related to retirement accounts. 

I currently am employed as a partner at Dechert LLP. If confirmed, I will resign 

from that position. Pursuant to Dechert’s partnership agreement, following my withdrawal from the firm, I will receive a pro rata partnership share based on the value 

of my partnership interests for services performed in 2017 through the date of my 

withdrawal. The firm will calculate the value of that share based on the firm’s 2016 

earnings. Consistent with the partnership agreement, I will receive the partnership 

share no later than April 2018. Also pursuant to the partnership agreement, following my withdrawal from the firm, I will receive a lump-sum payment of my capital account, calculated as of the date of my withdrawal. This payment will be made 

on or before 60 days from the date of my withdrawal. Dechert may withhold a portion of my capital account as a reserve for account reconciliations and tax payments, 

pursuant to the partnership agreement. 

I also currently participate in Dechert’s defined contribution savings and pension 

plans, which I will continue to participate in if confirmed; the firm as plan sponsor 

docs not contribute to these plans and will not contribute to them after my separation. I also currently hold residual interests in certain contingent-fee cases from my 

previous law firm, Kirkland & Ellis LLP, and I will forfeit these interests upon confirmation. 

In addition, I currently hold uncompensated positions with the American Bar Association Section of Antitrust Law, the Capital Markets Litigation Advisory Committee of the U.S. Chamber of Commerce Litigation Center, the National Security 

Law Working Group of the Heritage Foundation, and the John Hay Initiative. If 

confirmed, I will resign from those positions. 

I have a Thrift Savings Plan (‘‘TSP’’) account from my previous government service; if confirmed, I will retain my TSP account. 

2. Do you have any commitments or agreements, formal or informal, to maintain 

employment, affiliation, or practice with any business, association or other organization during your appointment? If so, please explain: No. 

3. Indicate any investments, obligations, liabilities, or other relationships which 

could involve potential conflicts of interest in the position to which you have been 

nominated. 

In connection with the nomination process, I have consulted with the Office of 

Government Ethics and the Department of Transportation (‘‘DOT’’) Designated 

Agency Ethics Official to identify potential conflicts of interest. Any potential conflicts of interest will be resolved consistent with the terms of an ethics agreement 

I have entered into with the DOT Designated Agency Ethics Official, which has 

been provided to this Committee. I am not aware of any other potential conflicts 

of interest. 

4. Describe any business relationship, dealing, or financial transaction which you 

have had during the last ten years, whether for yourself, on behalf of a client, or 

acting as an agent, that could in any way constitute or result in a possible conflict 

of interest in the position to which you have been nominated. 

In connection with the nomination process, I have consulted with the Office of 

Government Ethics and the DOT Designated Agency Ethics Official to identify potential conflicts of interest. Any potential conflicts of interest will be resolved consistent with the terms of an ethics agreement I have entered into with the DOT 

Designated Agency Ethics Official, which has been provided to this Committee. I am 

not aware of any other potential conflicts of interest. 

5. Describe any activity during the past ten years in which you have been engaged 

for the purpose of directly or indirectly influencing the passage, defeat, or modification of any legislation or affecting the administration and execution of law or public 

policy. 

I have not been engaged by a client in private practice during the past ten years 

to influence legislation. In 2013–2014, based on my prior experiences as a senior official in the Department of Justice and acting in my personal capacity, not for any 

client, I provided testimony and authored letters and other writings urging Congress 

not to enact certain legislative proposals concerning important national security programs. I also signed a letter on behalf of former government officials urging Congress to reduce the number of committees with responsibility for oversight of the 

Department of Homeland Security. I have represented clients involved in agency investigations and enforcement actions and similar matters in which I presented good 

faith arguments relating to the interpretation and application of relevant laws. 

17 

Earlier, during my tenure as head of the Office of Legal Counsel of the Department of Justice, I represented the President and the Executive Branch in working 

with Congress on legislative reforms of the Foreign Intelligence Surveillance Act, 

the procedures for military commissions of enemy combatants, and the War Crimes 

Act. 

6. Explain how you will resolve any potential conflict of interest, including any 

that may be disclosed by your responses to the above items. 

In connection with the nomination process, I have consulted with the Office of 

Government Ethics and the DOT Designated Agency Ethics Official to identify potential conflicts of interest. Any potential conflicts of interest will be resolved consistent with the terms of an ethics agreement I have entered into with the DOT 

Designated Agency Ethics Official, which has been provided to this Committee. I am 

not aware of any other potential conflicts of interest. 

C. LEGAL MATTERS

1. Have you ever been disciplined or cited for a breach of ethics, professional misconduct, or retaliation by, or been the subject of a complaint to, any court, administrative agency, the Office of Special Counsel, professional association, disciplinary 

committee, or other professional group? If yes: 

(a) Provide the name of agency, association, committee, or group; 

(b) Provide the date the citation, disciplinary action, complaint, or personnel action was issued or initiated; 

(c) Describe the citation, disciplinary action, complaint, or personnel action; and 

(d) Provide the results of the citation. disciplinary action, complaint, or personnel 

action. 

No. 

2, Have you ever been investigated, arrested, charged, or held by any Federal, 

State, or other law enforcement authority of any Federal, State, county, or municipal entity other than for a minor traffic offense? If so, please explain. No. 

3. Have you or any business or nonprofit of which you are or were an officer ever 

been involved as a party in an administrative agency proceeding, criminal proceeding or civil litigation? If so, please explain. 

I have not been a party to civil litigation, administrative agency proceedings, or 

criminal proceedings, except as described in response to Question 4 below. The law 

firms of which I have been a partner have on occasion been parties to litigation, 

but none of those litigation matters has concerned activities involving me personally, and I am not personally familiar with the details of any such litigation matters. Certain legal opinions issued by the Office of Legal Counsel in 2002 and 2003 

(before my time as Principal Deputy in OLC) were the subject of an investigation 

by the Office of Professional Responsibility (‘‘OPR’’) of the Department of Justice, 

and in the course of that investigation, OPR also considered certain later OLC opinions that I authored. OPR did not make any finding that my opinions failed to satisfy standards of professional responsibility. The final OPR report made recommendations concerning the earlier OLC opinions, hut that report was overruled 

and its recommendations were rejected by the senior career official of the Department of Justice (the Associate Deputy Attorney General), and the OPR report does 

not have continuing official force or validity. 

4. Have you ever been convicted (including pleas of guilty or nolo contendere) of 

any criminal violation other than a minor traffic offense? If so, please explain. 

Yes, as follows: 

(a) Moving violation: Failure to yield right of way on a left turn (in connection 

with a traffic accident on Bradley Blvd. in Montgomery County, MD on 06/ 

05/2002). On 10/01/2002, I pleaded guilty in Circuit Court of Montgomery 

County, MD, and paid a $37 fine plus $23 in court costs. The court reduced 

the points for this violation from 3 to 1. 

(b) I received a citation on 10/02/1981 and paid a $10 fine on 11/02/1981 for entering the New York City subway system without paying the fare. 

5. Have you ever been accused, formally or informally, of sexual harassment or 

discrimination on the basis of sex, race, religion, or any other basis? If so, please 

explain. No. 

6. Please advise the Committee of any additional information, favorable or unfavorable, which you feel should be disclosed in connection with your nomination. 

None. 

18 

D. RELATIONSHIP WITH THE COMMITTEE

1. Will you ensure that your department/agency complies with deadlines for information set by congressional committees? 

Yes, to the extent reasonable and feasible. 

2. Will you ensure that your department/agency does whatever it can to protect 

congressional witnesses and whistleblowers from reprisal for their testimony and 

disclosures? Yes. 

3. Will you cooperate in providing the Committee with requested witnesses, including technical experts and career employees, with firsthand knowledge of matters 

of interest to the Committee? 

Yes, to the extent consistent with legal and customary requirements. 

4. Arc you willing to appear and testify before any duly constituted committee of 

the Congress on such occasions as you may be reasonably requested to do so? Yes. 

ATTACHMENT A 

RESUME ́ OF STEVEN GILL BRADBURY

Work Experience 

Dechert LLP, Washington, D.C., 2009–Present 

Law Partner, Litigation & Regulatory Enforcement 

Practice includes regulatory enforcement matters; administrative law and judicial review of agency actions; congressional investigations; all aspects of antitrust, including government enforcement, merger reviews, and private litigation; other Supreme Court cases and appellate litigation; constitutional issues; 

general commercial litigation; data privacy and national security law. 

See separate sheets for significant representations. 

U.S. Department of Justice, Washington, D.C., 2004–2009 

Acting Assistant Attorney General and Principal Deputy, Office of Legal Counsel 

Served as senior appointed official in charge of the Office of Legal Counsel 

(‘‘OLC’’). Nominated by President to be Assistant Attorney General. As head of 

OLC, advised the President, the Attorney General, and the heads of executive 

departments and agencies of the Federal Government on significant questions 

of constitutional, statutory, and administrative law and treaty interpretation; 

represented the Justice Department and Executive Branch before Congress. 

Awards received during government service: 

Edmund J. Randolph Award for outstanding service to the Department of Justice 

Secretary of Defense Medal for Outstanding Public Service 

National Security Agency’s Intelligence Under Law Award 

Director of National Intelligence’s 2007 Intelligence Community Legal Award 

(Team of the Year, FISA Modernization) 

Criminal Division’s Award for Outstanding Law Enforcement Partnerships 

Kirkland & Ellis LLP, Washington, D.C., 1993–2004 

Litigation Partner (1994–2004); Associate (1993–1994) 

Practice included all aspects of antitrust, including government enforcement, 

merger reviews, and private litigation; other regulatory enforcement matters; 

administrative law and judicial review of agency actions; Supreme Court cases 

and appellate litigation; constitutional issues; and general commercial litigation. 

See separate sheets for significant representations. 

Honorable Clarence Thomas, Supreme Court of the United States, 1992–1993 

Law Clerk 

U.S. Department of Justice, Washington, D.C., 1991–1992 

Attorney-Adviser, Office of Legal Counsel 

Honorable James L. Buckley, U.S. Court of Appeals for the D.C. Circuit, 1990–1991 

Law Clerk 

Covington & Burling, Washington, D.C., 1988–1990 

Associate 

Gained substantial Federal trial and appellate court experience. Represented 

Missouri and Washington State in defending suits brought by hospitals and 

nursing homes seeking additional Medicaid reimbursements. Represented polVerDate Nov 24 2008 06:50 Jul 25, 2018 Jkt 075679 PO 00000 Frm 00022 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\30769.TXT JACKIE
19 

icyholders and amici in suits seeking insurance coverage for environmental liabilities. 

Davis Poll & Wardwell, New York, N.Y., 1983–1985 

Legal Assistant 

Avon Books, a Division of Hearst Corporation, New York, N.Y., 1981–1983 

Assistant Editor (1982–1983); Editorial Assistant (1981–1982) 

Education 

University of Michigan Law School, Ann Arbor, Michigan 

J.D., magna cum laude, May 1988. Order of the Coif 

Article Editor, Michigan Law Review. 

Dean’s 1987–1988 Law Review Award for outstanding contribution to the Review. 

Note, Corporate Auctions and Directors’ Fiduciary Duties: A Third Generation 

Business Judgment Rule, 87 Mich. L. Rev. 276 (1988). 

Book Awards: Administrative Law, Civil Procedure 11, Legal Process. 

Stanford University, Stanford, California 

B.A., June 1980. Major in English. 

Additional course work in history, politics, languages. and philosophy, including 

tutorial study in theory of knowledge at Lincoln College, Oxford University. 

Bar and Court Memberships 

District of Columbia Bar 

Supreme Court of the United States 

U.S. District Court for the District of Columbia 

U.S. Courts of Appeals for D.C., First, Second, Fourth, Fifth, Sixth, and Seventh 

Circuits 

Personal 

Born and raised, Portland, Oregon. Spouse: Hilde E. Kahn. 

Children: James (B.A., Stanford, 2016); Will (Stanford, Class of 2018); Susanna 

(Thomas Jefferson High School for Science & Technology, Class of 2017) 

Significant Representations 

• Represent provider of cloud-based software solutions before the National Highway Traffic Safety Administration (‘‘NHTSA’’) in connection with a recall involving potential safety risks from lithium ion batteries. 

• Represent Internet registry company in connection with antitrust issues raised 

by ICANN award of top-level domain rights. 

• Represented the Independent Community Bankers of America in Federal court 

action challenging a final rule of the National Credit Union Administration relating to commercial lending by insured credit unions (E.D.Va.). 

• Represented TK Holdings Inc. (Takata Corporation) in connection with investigations of airbag inflator ruptures by NHTSA, Congress, and other entities, 

and in related civil litigation. 

• Represent Verizon in connection with wireless data roaming rate cases before 

the Federal Communications Commission. 

• Represent American Airlines, Inc., in Department of Transportation rulemaking 

proceedings on competition and consumer protection issues and in international 

route authorization proceedings. 

• Represented major media company in connection with Department of Justice 

and FCC antitrust review of the proposed merger of Comcast Corporation and 

Time Warner Cable, Inc., and the merger of Charter Communications and Time 

Warner Cable. 

• Represented U.S. Airways Group in defending merger with AMR Corp. (American Airlines) against antitrust challenge by the U.S. Department of Justice and 

several States—United States v. U.S. Airways Group & AMR Corp. (D.D.C.). 

• Represented Polypore International, Inc., in appeal from FTC antitrust order requiring divestiture of assets acquired from Microporous Products LP—Polypore 

International, Inc. v. FTC (11th Cir. and U.S. Sup. Ct.). 

• Represented Turing Pharmaceuticals in connection with congressional investigation of drug pricing practices. 

• Represented leading claims administrator in connection with congressional 

hearing concerning administration of historic settlement of Indian trust fund 

claims. 

20 

• Represent various financial industry associations and companies, including as 

amici, in judicial challenges to agency rulemakings under the Dodd-Frank Act. 

• Represent U.S. Chamber of Commerce and Investment Company Institute as 

amici in support of MetLife, Inc.’s challenge to its designation as ‘‘too big to fail’’ 

by the Financial Stability Oversight Council under the Dodd-Frank Act. 

• Represent U.S. Chamber of Commerce and National Association of Manufacturers as amici in various appellate cases before the Supreme Court and U.S. 

courts of appeals. 

• Represented the American Intellectual Property Law Association as amicus before the Supreme Court in FTC v. Actavis, Inc. (U.S.Sup. Ct. 2013), concerning 

antitrust analysis of ‘‘reverse payment’’ patent settlements. 

• Represented 215 economists as amici in appellate challenge to the Federal 

health care reform law (11th Cir. and U.S. Sup. Ct.). 

• Represented Dean Foods Company in defending litigation brought by the Antitrust Division of the U.S. Department of Justice and the States of Wisconsin, 

Illinois, and Michigan challenging Dean Foods’ acquisition of milk processing 

plants—United States v. Dean Foods Co. (E.D. Wis.). 

• Represented third party before DOJ and FCC in connection with antitrust 

issues raised by AT&T’s proposed acquisition of T-Mobile. 

• Represented industry stakeholders in antitrust challenge to restrictive trademark licensing practices by NCAA colleges and their exclusive licensing agent. 

• Lead counsel to Morgan Stanley in defending dozens of consolidated securities 

class action suits involving the allocation of shares in high-tech IPOs—In re IPO 

Securities Litigation (S.D.N.Y.)—and related litigation in various other courts. 

• Lead counsel to Morgan Stanley in SEC and NASD investigations of IPO allocation practices. 

• Lead counsel to Verizon Communications in successfully obtaining dismissal of 

antitrust class action against Bell companies relating to competition for local 

telephone service—Twombly v. Bell Atlantic Corp. (S.D.N.Y.). 

• Lead counsel to Morgan Stanley in successfully obtaining dismissal of antitrust 

class action relating to the allocation of shares in IPOs—In re IPO Antitrust 

Litigation (S.D.N.Y .). 

• Represented Bell Atlantic and DSC Communications Corp. in $3.5 billion monopolization suit against AT&T and Lucent Technologies (E.D. Texas). 

• Represented Bell Atlantic and NYNEX in challenge to AT&T’s $19 billion acquisition of McCaw Communications (E.D.N.Y.). 

• Lead antitrust counsel to United Air Lines in obtaining DOJ approval of codeshare agreement with U.S. Airways. 

• Lead antitrust counsel to United Air Lines in proposed acquisition of U.S. Airways (abandoned). 

• Lead antitrust and regulatory counsel to GTE Corporation in its $56 billion 

merger with Bell Atlantic to create Verizon. 

• Represented AOL in defending AOL-Time Warner merger before the Competition Directorate of the European Commission (‘‘EC’’). 

• Lead counsel to GTE before DOJ, FCC, EC, and D.D.C. in successfully challenging Internet aspects of MCI-WorldCom merger. 

• Represented Bell Atlantic in antitrust defense of $23 billion acquisition of 

NYNEX. 

• Lead counsel to Verizon Directories Corp. in Lanham Act action against Yellow 

Book USA, Inc. for false advertising and sales claims (E.D.N.Y.). 

• Handled jury trial and argued appeal in magazine trademark suit between Petersen Publishing Co. and Time, Inc. (S.D.N.Y. & 2d Cir.). 

• Represented NFL football players in Supreme Court case addressing the nonstatutory labor exemption to the antitrust laws—Brown v. Pro Football, Inc., 

518 U.S. 231 (1996). 

The CHAIRMAN. Thank you, Mr. Bradbury. 

[Audience interruption.] 

The CHAIRMAN. Order. 

[Audience interruption.] 

The CHAIRMAN. This hearing will come to order. 

21 

[Audience interruption.] 

The CHAIRMAN. The hearing will come to order. 

Ms. Walsh, please proceed. 

STATEMENT OF ELIZABETH ERIN WALSH, NOMINEE TO BE 

ASSISTANT SECRETARY OF COMMERCE AND DIRECTOR 

GENERAL OF THE UNITED STATES AND FOREIGN 

COMMERCIAL SERVICE, U.S. DEPARTMENT OF COMMERCE 

Ms. WALSH. Senator Cantwell and distinguished members of the 

Committee, I am grateful for the opportunity to appear before you 

today. I am very honored to be nominated by President Trump for 

the position of Assistant Secretary for Global Markets and Director 

General of the U.S. and Foreign Commercial Services. 

If you don’t mind, I would like to take a moment to introduce you 

to the people that are here to support me and my guests: my sister 

Molly Walsh, who works at the Pentagon; my sister Anne Walsh; 

and my best friend from home, Mary Glass. We all grew up in Portland together. And my friend here, Rick Ardell. 

I bring to this nomination over 30 years of public and private 

sector experience. Through my work, I have had the opportunity to 

gain extensive knowledge of foreign and economic affairs in Asia, 

the Middle East, and Africa, and I have traveled to or worked in 

100 countries at this time. 

After graduating from Georgetown University, I worked at the 

White House, the Department of Energy, and the Department of 

State at Blair House. In 1989, I moved to New York to serve as 

Chief of Protocol to the U.S. Mission to the United Nations. I left 

and joined UNICEF as head of emergency operations in Tuzla, Bosnia. Following that, I went to the London School of Economics and 

Political Science and then returned back to Sarajevo to serve in the 

Office of Political Affairs and Economic Affairs. 

Returning home from Bosnia, I went to work at Cisco, and there 

I built a strong partnership organization to bring the Cisco Networking Academy Program to 90 countries, including 41 of the 

least developed countries in the world. 

After several years in the private sector, I went back in the State 

Department in 2005, a Senior Advisor in the Bureau of Near Eastern Affairs. There, I formulated and executed a strategic plan to 

advance U.S. policy interests, strengthen alliances, and establish 

programs focused on women across 16 countries in the Middle East 

and North Africa. 

I also served on the U.S.-Saudi Strategic Dialogue in the Human 

Development Working Group. 

At Goldman Sachs, I was based in China and led the firm’s philanthropic activities across Asia Pacific. I developed a long-term 

strategic platform in Asia, seeking to foster economic growth and 

opportunity through investment in the community, public engagement, and partnership building. 

Through this experience, I have seen firsthand the role that the 

private sector can play in facilitating and enhancing America’s 

prominence abroad and in advancing U.S. values. Furthermore, I 

know the critical role the U.S. Government plays in leveling the 

playing field to ensure U.S. companies can compete around the 

world and to ensure that our foreign competitors abide by their 

22 

commitments and play by the same rules. At the same time, I’ve 

also seen what happens when U.S. policy is not carried out or implemented in a way that facilitates businesses. 

I am passionate about the mission of the Department of Commerce, and I can think of nothing more meaningful and impactful 

than working with a team that is highly skilled and dedicated professionals in the U.S. and Foreign Commercial Services to create 

jobs through promoting U.S. exports and attracting foreign direct 

investment into the United States. 

Trade, exports, and FDI are a powerful engine for growth in the 

United States. With 95 percent of the world’s population outside of 

the U.S. and more than 1 in 5 American jobs supported by trade, 

the Office of Global Markets has a critical role to play particularly 

with its focus on small- and medium-sized enterprises, the engine 

for growth in America. 

In addition, I believe the direction that Secretary Ross is taking 

to ensure we have fair and reciprocal trade with our partners will 

promote America’s continued growth and vitality. I am deeply 

grateful to the Secretary for his leadership and confidence in me. 

If confirmed, I look forward to having the opportunity to lead 

this organization and will bring to it my global experience and 

business background as well as my knowledge of how to leverage 

government resources and assure efficiency and effectiveness. 

Thank you for your time today and for your consideration of my 

nomination. 

[The prepared statement and biographical information of Ms. 

Walsh follow:] 

PREPARED STATEMENT OF ELIZABETH ERIN WALSH, NOMINEE TO BE ASSISTANT

SECRETARY OF COMMERCE AND DIRECTOR GENERAL OF THE UNITED STATES AND

FOREIGN COMMERCIAL SERVICE, U.S. DEPARTMENT OF COMMERCE

Thank you Chairman Thune, Ranking member Senator Nelson, members of the 

Commerce Committee. I am grateful for the opportunity to appear before you today. 

I am very honored to be here as the President Trump’s nominee for Assistant Secretary for Global Markets and D.G. for the U.S. and Foreign Commercial Service. 

And I am so honored to have my family with me on this special day. If you don’t 

mind, I would like to take a moment to introduce them. My mother, June and my 

father Michael a retired attorney—they both served in the Reagan and Bush Administrations. My sister Molly, currently serving at the Department of Defense and my 

beloved sister Anne. While my parents met in Washington, we grew up in Portland 

Oregon. 

I bring to this nomination over 30 years of public and private sector experience. 

During this time, I have built a strong track record in four key areas: Strategy 

and Program Development for market entry/expansion, political and/or policy advancement; Design-Build Scalable Models to promote products or programs regionally or globally; Complex Negotiations; and Public-Private Partnership Creation at 

local, national and international levels. I have extensive knowledge of foreign affairs 

in Asia, Middle East, and Africa and have traveled or worked in 100 countries. 

I earned my undergraduate work at Georgetown University and started as an intern for three years at the White House before landing a full-time position in the 

Office of Political Affairs. I also worked at the Department of Energy, and from 

there had the opportunity to join the U.S. Department of State and serve as the 

Deputy Manager and then acting Manager of Blair House, the President’s guest 

house. During my tenure there, we hosted over 60 heads of State and Governments. 

I was then asked by Ambassador Thomas Pickering to come to the U.S. Mission to 

the UN and serve as Chief of Protocol. It was an incredible five 

years in the world’s largest diplomatic community. But starting in 1992 I started 

to see cables come across my desk that seemed unimaginable. Particularly after witnessing the revolutionary Fall of the Berlin wall in 1989 and the euphoria that 

came with it. These cables referred to the conflict in Bosnia. As I continued to read 

23 

the news and the cables I felt I had to go to see for myself. I resigned my position 

at USUN to join UNICEF as head of emergency operations in Tuzla during in 1994. 

I later left Bosnia to attend graduate school at the London School of Economics and 

then returned to Sarajevo to work with the UN as an Economic and Political Affairs 

Officer. In preparing for post war conflict operations, there was an enormous gap 

in the lack of focus on economic development and investment. Over 20 years later, 

we can see the outcome and results today. No economic development, high unemployment and the presence of ISIS in Europe. 

After returning from Bosnia, I came home and wrote a proposal focused on Education, Technology and job creation and got an offer from Cisco. The firm provided 

a platform allowing me to build a strong partnership organization to bring the Cisco 

Networking Academy Program to 90 countries, in Africa, Asia Pacific, central America and included 41 of the Least Developed Countries in the world. In the late 1990s 

we began to strong Chinese investment in these areas. Times were changing and 

so was the playing field. 

After several years in the private sector, I returned to the State Department in 

2005 to serve as Senior Advisor in the Bureau of Near Eastern Affairs. I was Recruited to formulate and execute a strategic plan to advance U.S. policy interests, 

strengthen alliances and establish and/or expand programs focused on women across 

16 countries in the Middle East and North Africa. I also served on the U.S.-Saudi 

Arabia Strategic Dialogue, Human Development Working Group. 

I was then hired by Goldman Sachs to lead the firm’s philanthropic activities in 

Asia Pacific. I developed a long-term strategic platform in Asia, seeking to foster 

economic growth and opportunity, through investment in the community, public engagement and partnership building. I incorporated global Goldman Sachs Foundation programs and Goldman Sachs Gives, and created a portfolio of multi-year, regional and country specific programs aligned with the firms focus and the economic/ 

development goals of 11 countries where investments had been made. Major programs included: Goldman Sachs 10,000 Women Initiative (40 percent of women from 

Asia); China Breast Cancer Initiative. 

From I have seen first-hand the role that the private sector can play in facilitating and enhancing America’s prominence abroad and in advancing U.S. values. 

I know the critical role the U.S. Government plays in leveling the playing field 

to ensure U.S. companies can compete abroad, and to ensure that our foreign competitors abide by their commitments and play by the same rules. 

I have also seen what happens when U.S. policy is not carried out or implement 

in a way that facilitates business. 

I am passionate about the mission of the Department of Commerce. And can think 

of nothing more meaningful or impactful then creating jobs through promoting U.S. 

exports or attracting foreign direct investment into the United States. In addition, 

I believe the direction that Secretary Ross is taking to ensure we have fair and reciprocal trade with our partners will ensure American’s continued growth and vitality. 

I am deeply grateful to President Trump, and Secretary Ross for their leadership. 

I am honored to be nominated by the President and am grateful to the Secretary 

for his confidence and support. 

In the past couple of weeks, I have had the opportunity to meet with a number 

of the dedicated civil servants and foreign commercial officers who constitute the 

leadership of the International Trade Administration’s Global Markets, and the U.S. 

Foreign Commercial Service, and I find in them a kindred spirit, one that is driven 

to help American companies succeed. Because they share my belief that there is 

nothing more meaningful or powerful than helping to create jobs that put people 

to work. Trade, exports and FDI are a powerful engine for economic growth. With 

95 percent of the world’ population outside of the U.S. and more than 1 in 5 American jobs supported by trade, the Office of Global Markets has a critical role to play. 

If confirmed I look forward to having the opportunity to lead this organization, 

and will bring to it my global experience and business background as well as my 

knowledge of how to leverage government resources to ensure its efficiency and effectiveness. 

Thank you for your time today and for your consideration of my nomination. 

A. BIOGRAPHICAL INFORMATION

1. Name (Include any former names or nicknames used): Elizabeth Erin Walsh. 

2. Position to which nominated: Assistant Secretary for Global Markets and Director General for the U.S. and Foreign Commercial Services. 

3. Date of Nomination: June 6. 2017. 

24 

4. Address (List current place of residence and office addresses): 

Residence: Information not released to the public. 

Office: Department of Commerce, 1401 Constitution Avenue, NW, Washington, 

D.C. 20230 

5. Date and Place of Birth: Portland, Oregon, USA; 12/18/1961. 

6. Provide the name, position, and place of employment for your spouse (if married) and the names and ages of your children (including stepchildren and children 

by a previous marriage). 

Single 

7. List all college and graduate degrees. Provide year and school attended. 

Masters of Science, London School of Economics and Political Science, 1995 

Bachelor of Arts, Georgetown University, 1983 

8. List all post-undergraduate employment, and highlight all management-level 

jobs held and any non-managerial jobs that relate to the position for which you are 

nominated. 

U.S. Department of Commerce, Washington, D.C. (6/17 to present) 

Senior Advisor, Office of the Secretary 

The White House, Washington, D.C. (1/20–6/17) 

Special Assistant to the President and Associate Director for Presidential Personnel, Foreign Affairs 

Presidential Transition, Washington, D.C. 

Co-lead of the State Department transition and landing team (11/16–11/17) 

Donald J. Trump for President, Inc. Washington, D.C. 

Lead for the State Department (8/16–11/16) 

Goldman Sachs, Washington, Beijing, Hong Kong, China 

Executive Director, Head of the Office of Corporate Engagement, Asia Pacific (5/ 

10–4/15) 

Led the firm’s philanthropic activities in Asia Pacific. Developed a long-term 

strategic platform in Asia, seeking to foster economic growth and opportunity, 

through investment in the community, public engagement and partnership 

building. 

U.S. Department of State, Washington, D.C. 

Senior Advisor, Bureau of Near Eastern Affairs (5/05–5/08) 

Recruited to formulate and execute a strategic plan to advance U.S. policy interests, strengthen alliances and establish and/or expand programs focused on 

women across 16 countries in the Middle East and North Africa. 

Cisco Systems, Inc., Washington, D.C. and San Jose, CA 

Senior Manager, International Strategies and Partnerships, Corporate Affairs (8/ 

98–4/05) 

Built a multi-million dollar public-private partnership organization at Cisco. 

Brought together strategic partners to deliver the Cisco Networking Academy 

Program to 90 developing and emerging market countries around the globe. 

Produced a program that successfully fused multi-stakeholder interests, integrated sound business practices and promoted pro-competitive policies and regulatory reform. 

United Nations Mission, Sarajevo, Bosnia-Herzegovina 

Economic and Political Affairs Officer (11/95–10/96) 

Economic advisor to Chief of UN Civil Affairs. 

UNICEF, Tuzla, Bosnia-Herzegovina 

Head of Office (4/94–9/94) 

Directed UNICEF’s emergency operations in the Tuzla region. 

United States Mission to the United Nations, New York, NY 

Chief Protocol (4/89–4/94) 

Directed and managed an effective Protocol Affairs program based on U.S. Foreign policy objectives. Organized a program which fostered positive relations 

with the other 184 member states of the UN. 

U.S. Department of State, Washington, D.C. 

Deputy to the Assistant Chief of Protocol for Ceremonials (6/88–4/89) 

Blair House. the President’s Guest House, Washington, D.C. 

Assistant Manager and Acting Manager (9/85–6/88) 

U.S. Department of Energy, Washington, D.C. 

Legislative Affairs Specialist (2/85–8/85) 

25 

Presidential Inaugural Committee, Washington, D.C. 

Assistant to the Director of Events and Inaugural balls (12/84–2/85) 

Reagan-Bush ’84, Washington, D.C. 

Administrative Assistant to the Campaign Director (10/83–11184) 

The White House, Washington, D.C. 

Staff Assistant—Office of Political Affairs (4/83–10/83) 

9. Attach a copy of your resume ́. A copy is attached. 

10. List any advisory, consultative, honorary, or other part-time service or positions with Federal, State, or local governments, other than those listed above, within the last ten years. None 

11. List all positions held as an officer, director, trustee, partner, proprietor, 

agent, representative, or consultant of any corporation, company, firm, partnership, 

or other business, enterprise, educational, or other institution within the last ten 

years. 

Managing Member of Chinoiserie Style, LLC (4/16–3/17) 

12. Please list each membership you have had during the past ten years or currently hold with any civic, social, charitable, educational, political, professional, fraternal, benevolent or religious organization, private club, or other membership organization. Include dates of membership and any positions you have held with any organization. Please note whether any such club or organization restricts membership 

on the basis of sex, race, color, religion, national origin, age, or handicap. 

A. Council on Foreign Relations 

B. The Sulgrave Club, Washington (no restrictions) 

13. Have you ever been a candidate for and/or held a public office (elected, non 

elected, or appointed)? If so, indicate whether any campaign has any outstanding 

debt, the amount, and whether you are personally liable for that debt. No 

14. Itemize all political contributions to any individual, campaign organization, 

political party, political action committee, or similar entity of $500 or more for the 

past ten years. Also list all offices you have held with, and services rendered to, a 

state or national political party or election committee during the same period. 

$500 2008 John McCain 

$1,000 2012 Romney Victory, Inc. 

$1,000 2012 Romney/Ryan 

$1,000 2015 Right to Rise PAC 

Full time Volunteer Trump for President—8/4/2016–12/1/2016 

15. List all scholarships, fellowships, honorary degrees, honorary society memberships, military medals, and any other special recognition for outstanding service or 

achievements. None. 

16. Please list each book, article, column, or publication you have authored, individually or with others. Also list any speeches that you have given on topics relevant to the position for which you have been nominated. Do not attach copies of 

these publications unless otherwise instructed. None. 

17. Please identify each instance in which you have testified orally or in writing 

before Congress in a governmental or non-governmental capacity and specify the 

date and subject matter of each testimony. None. 

18. Given the current mission, major programs, and major operational objectives 

of the department/agency to which you have been nominated, what in your background or employment experience do you believe affirmatively qualifies you for appointment to the position for which you have been nominated, and why do you wish 

to serve in that position? 

I have extensive professional experience running operations of large international 

firms, having worked for five years as Vice President and Head of the Office of Corporate Engagement for Asia Pacific for Goldman Sachs and seven years at Cisco as 

Senior Manager of International Strategies and Partnerships. I have also served 

more than twelve years in the U.S. Government at the White House, State Department and Department of Energy as well as at the United Nations. I have put major 

programs in more than one hundred countries across the globe, managed budgets 

of over $80m and, managed globally dispersed, culturally diverse teams. Working 

and living overseas has given me insight into the challenges that American companies face in exporting their products to global markets. I understand the requirement that the United States maintain a strong diplomatic presence in the markets 

in which American businesses operate. 

19. What do you believe are your responsibilities, if confirmed, to ensure that the 

department/agency has proper management and accounting controls, and what experience do you have in managing a large organization? 

26 

Any government leader needs to be a good steward of the American taxpayer. I 

have been a senior manager in the private sector at large companies and have managed a dispersed global organization similar to the one that I will oversee at the 

Department of Commerce. My experience in financial management and accountability, and in implementing digital strategies to improve productivity of the corporate enterprise, should benefit the Department of Commerce’s Global Markets division, which I will lead. 

20. What do you believe to be the top three challenges facing the department/ 

agency, and why? 

1. Addressing the trade deficit: Growing exports and displacing imports with more 

U.S. production will lead to increased growth of GDP and job creation. 

2. Battling unfair trade as it impacts U.S. companies and particularly small business: American companies need the U.S. Government to battle surges of unfairly 

priced imports and competitors that are subsidized by foreign governments. 

3. Getting more companies to export to help grow the U.S. economy and American 

jobs: Companies that export pay their workers more than companies that don’t. 

Most of the world’s consumers live outside the United States. The United States will 

not prosper unless American companies and their workers are successfully competing in global markets. 

B. POTENTIAL CONFLICTS OF INTEREST

1. Describe all financial arrangements, deferred compensation agreements, and 

other continuing dealings with business associates, clients, or customers. Please include information related to retirement accounts. 

None with respect to business associates, clients or customers. However, information about my retirement accounts is included on the public financial disclosure 

repm1 I filed and to which I understand you have access. 

2. Do you have any commitments or agreements, formal or informal, to maintain 

employment, affiliation, or practice with any business, association or other organization during your appointment? If so, please explain. 

In connection with the nomination process, I have consulted with the Office of 

Government and Department of Commerce agency ethics officials to identify any potential conflicts of interest. Any potential conflicts of interest will be resolved in accordance with the terms of my ethics agreement. I understand that my ethics agreement has been provided to the Committee. I am not aware of any potential conflict 

of interest other than those that are the subject of my ethics agreement. 

3. Indicate any investments, obligations, liabilities, or other relationships which 

could involve potential conflicts of interest in the position to which you have been 

nominated. None. 

4. Describe any business relationship, dealing, or financial transaction which you 

have had during the last ten years, whether for yourself, on behalf of a client, or 

acting as an agent, that could in any way constitute or result in a possible conflict 

of interest in the position to which you have been nominated. None. 

5. Describe any activity during the past ten years in which you have been engaged 

for the purpose of directly or indirectly influencing the passage, defeat, or modification of any legislation or affecting the administration and execution of law or public 

policy. None. 

6. Explain how you will resolve any potential conflict of interest, including any 

that may be disclosed by your responses to the above items. 

Any potential conflicts of interest will be resolved in accordance with the terms 

of my ethics agreement. I understand that my ethics agreement has been provided 

to the Committee. I am not aware of any potential conflict of interest other than 

those that are the subject of my ethics agreement. 

C. LEGAL MATTERS

1. Have you ever been disciplined or cited for a breach of ethics, professional misconduct, or retaliation by, or been the subject of a complaint to, any court, administrative agency, the Office of Special Counsel, professional association, disciplinary 

committee, or other professional group? If yes: 

a. Provide the name of agency, association, committee, or group; 

b. Provide the date the citation, disciplinary action, complaint, or personnel action 

was issued or initiated; 

c. Describe the citation, disciplinary action, complaint, or personnel action; 

d. Provide the results of the citation, disciplinary action, complaint, or personnel 

action. 

No. 

27 

2. Have you ever been investigated, arrested, charged, or held by any Federal, 

State, or other law enforcement authority of any Federal, State, county, or municipal entity, other than for a minor traffic offense? If so, please explain. No. 

3. Have you or any business or nonprofit of which you are or were an officer ever 

been involved as a party in an administrative agency proceeding, criminal proceeding, or civil litigation? If so, please explain. No. 

4. Have you ever been convicted (including pleas of guilty or nolo contendere) of 

any criminal violation other than a minor traffic offense? If so, please explain. No. 

5. Have you ever been accused, formally or informally, of sexual harassment or 

discrimination on the basis of sex, race, religion, or any other basis? If so, please 

explain. No. 

6. Please advise the Committee of any additional information, favorable or unfavorable, which you feel should be disclosed in connection with your nomination. 

None. 

D. RELATIONSHIP WITH COMMITTEE

1. Will you ensure that your department/agency complies with deadlines for information set by congressional committees? Yes. 

2. Will you ensure that your department/agency does whatever it can to protect 

congressional witnesses and whistle blowers from reprisal for their testimony and 

disclosures? Yes. 

3. Will you cooperate in providing the Committee with requested witnesses, including technical experts and career employees, with firsthand knowledge of matters 

of interest to the Committee? Yes. 

4. Are you willing to appear and testify before any duly constituted committee of 

the Congress on such occasions as you may be reasonably requested to do so? Yes. 

RESUME ́ OF E. ERIN WALSH

Highly motivated leader and innovator with 25 years of progressively responsible 

management experience in government, the private sector and international organizations. Exceptional track record in four key areas: Strategy and Program Development for market entry/expansion, political and/or policy advancement; Design-Build 

Scalable Models to promote products or programs regionally or globally; Complex 

Negotiations; Public-Private Partnership Creation at local, national and international levels. Extensive knowledge of foreign affairs in Asia, Middle East, and Africa. Traveled or worked in 100 countries. 

Professional Experience 

U.S. Department of Commerce, Washington, D.C. (6/17–present) 

Senior Advisor, Office of the Secretary 

The White House, Washington, D.C. (1/16–6/17) 

Special Assistant to the President and Associate Director for Presidential Personnel, 

Foreign Affairs 

Presidential Transition, Washington, D.C. 

Co-lead of the State Department transition and landing team (11/9/16–1/19/17) 

Trump for America, Washington, D.C. 

Full-time unpaid volunteer, lead for the State Department (8/16–11/8/16) 

Goldman Sachs, Washington, Beijing, Hong Kong, China 

Executive Director, Head of the Office of Corporate Engagement, Asia Pacific 

(5/10–4/15) 

Lead the firm’s philanthropic activities in Asia Pacific. Developed a long-term strategic platform in Asia, seeking to foster economic growth and opportunity, through 

investment in the community, public engagement and partnership building. 

• Incorporated global Goldman Sachs Foundation programs and Goldman Sachs 

Gives, and created a portfolio of multi-year, regional and country specific programs aligned with the firms focus and the economic/development goals of 11 

countries where investments had been made. Major programs include: Goldman 

Sachs 10,000 Women Initiative (40 percent of women from Asia); China Breast 

Cancer Initiative in partnership with the All China Women’s Federation 

launched under the umbrella of the U.S.-China People to People Exchange; Asia 

Breast Cancer Initiative in Korea and Hong Kong; ‘‘Women’s Economic Empowerment through Entrepreneurship’’ program in partnership with the UN 

Economic and Social Commission of Asia Pacific. 

28 

• Establish and manage relationships with governments, non-profit organizations, 

international organizations and private sector clients. 

• Advised the Vice Chairman and leadership on philanthropy in Asia Pacific, 

trends, and opportunities for investment and partnerships. 

U.S. Department of State, Washington, D.C. 

Senior Advisor, Bureau of Near Eastern Affairs (5/05–5/08) 

Recruited to formulate and execute a strategic plan to advance U.S. policy interests, 

strengthen alliances and establish and/or expand programs focused on women across 

16 countries in the Middle East and North Africa. 

• Created 16 major demand-driven programs in four thematic areas: economy, 

law, democracy building and women’s rights. 

• Advised senior department officials, ambassadors and members of congress on 

regional progress, trends, risks and opportunities as they developed in these 

areas. 

• Negotiated and managed a $50 million budget (Middle East Partnership Initiative and NEA/Iraq) over three fiscal year cycles to support the implementation 

of programs. 

• Designed, led and implemented the first women’s programs sponsored by the 

U.S. Government in the Gulf region. 

• Architect of several sustainable public-private partnership programs that have 

had demonstrable positive impact on U.S. foreign relations, societies at large 

and thousands of individuals in the Middle East. These programs include: U.S.- 

Middle East Partnership for Breast Cancer Awareness and Research, MENA 

Businesswomen’s Network, Women in Technology, and Women in Politics. 

• Served on the U.S.-Saudi Arabia Strategic Dialogue, Human Development 

Working Group. 

Cisco Systems, Inc., Washington, D.C. and San Jose, CA 

Senior Manager, International Strategies and Partnerships, Corporate Affairs 

(8/98–4/05) 

Built a multi-million dollar public-private partnership organization at Cisco. 

Brought together, for the first time, strategic partners that included: foreign governments, NGOs, U.S. Agency for International Development, and UN Agencies to deliver the Cisco Networking Academy Program (CNAP, the world’s largest e-learning 

program), to 90 developing and emerging market countries around the globe. Produced a program that successfully fused multi-stakeholder interests, integrated 

sound business practices and promoted pro-competitive policies and regulatory reform. Founded and directed Cisco’s Corporate Social Responsibility strategic initiatives including: 

• Cisco’s Least Developed Countries Initiative, launched at the G–8 Summit in 

2000, which led the way in bridging the digital divide by rolling out CNAP in 

39 Least Developed Countries. This resulted in training more than 25,000 students (as of ’05) in industry standard IT skills, reaching 33 percent female enrollment and 78 percent employment for graduates in countries where 80 percent of the population live on less than $2 per day. 

• Cisco/CLI Gender Initiative. First major corporate initiative designed to level 

the playing field for women in IT. By mainstreaming gender in CNAP, investing 

in women and girls and institutionalizing policies and processes to ensure access and opportunities to women, the program had substantial impact on instructors, students, institutions and governments in more than 150 countries. 

Eudy Nelson & Associates, Washington, D.C. (8/97–12/97) 

Consulted on events for the National Republican Senatorial Committee 

United Nations Mission, Sarajevo, Bosnia-Herzegovina 

Economic and Political Affairs Officer (11/95–10/96) 

Economic advisor to Chief of UN Civil Affairs. Responsible for analysis of economic 

situation in post-war Bosnia including: political and economic ramifications of 

delays in reconstruction, progress on financial institution building, bi-lateral economic aid, unemployment, downside risks and investment climate. 

UNICEF, Tuzla, Bosnia-Herzegovina 

Head of Office (4/94–9/94) 

Directed UNICEF’s emergency operations in the Tuzla region. Led training programs in the sectors of education, health, nutrition and psycho-social rehabilitation 

for children. Managed the joint UN supplementary feeding program, coordinating 

the efforts of three UN agencies and four NGOs. Supervised humanitarian missions 

29 

across confrontation lines, bringing doctors, medical and education supplies to children in conflict zones. Worked with government ministries to develop post-war education and health policies and systems. Served as regional spokesperson for 

UNICEF. 

United States Mission to the United Nations, New York, NY 

Chief of Protocol (4/89–4/94) 

Directed and managed an effective Protocol Affairs program based on U.S. Foreign 

policy objectives. Organized a program which fostered positive relations with the 

other 184 member states of the UN. Planned and executed over 100 events annually. Managed budget and staff of four. 

U.S. Department of State, Washington, D.C. 

Deputy to the Assistant Chief of Protocol for Ceremonials (6/88–4/89) 

Planned and organized all official social functions for the Secretary of State for 

Chiefs of State and other foreign guests. Acted as liaison between the diplomatic 

corps and the Department of State. Served as an authority on ceremonial protocol 

matters in the U.S. Government. 

Blair House, the President’s Guest House, Washington, D.C. 

Assistant Manager and Acting Manager (9/85–6/88) 

Responsible for Chiefs of State, their families and delegations from over 60 countries 

during official visits to Washington. Coordinated accommodations for all official visitors of the President and worked with the Chief of Protocol and visits staff to organize their schedules and activities. Assisted the general manager with oversight of 

the $13 million renovation project, and all operations of the house, including the supervision of staff and budget. 

U.S. Department of Energy, Washington, D.C. 

Legislative Affairs Specialist (2/85–8/85) 

Presidential Inaugural Committee, Washington, D.C. 

Assistant to the Director of Events and Inaugural balls (12/84–2/85) 

Reagan-Bush ’84, Washington, D.C. 

Administrative Assistant to the Campaign Director (10/83–11/84) 

The White House, Washington, D.C. 

Staff Assistant—Office of Political Affairs (4/83–10/83) 

Research Assistant—Library and Research Center (4/82–4/83) 

Intern—Office of Correspondence (10/81–4/82) 

Education 

The London School of Economics and Political Science, London, England 

Masters of Science, Economics, Social Policy in Developing Countries. September, 

1995 

Georgetown University, Washington, D.C. 

Bachelor of Arts, (Majors: International Relations and American Government). May, 

1983 

Other Activities 

Member of the Council on Foreign Relations 

Board Member, USA, King Hussein Cancer Center 

Advisor, Antiquities Coalition 

The CHAIRMAN. Thank you, Ms. Walsh. 

Senator Nelson has arrived. And I’ll turn to him for an opening 

statement. 

STATEMENT OF HON. BILL NELSON, 

U.S. SENATOR FROM FLORIDA 

Senator NELSON. And, Mr. Chairman, I’ve been in markup of the 

Senate Armed Services Committee, and we have successfully 

marked up the bill. I might say to Ms. Walsh, indeed I know Wilbur Ross is from Florida, and he is quite interested in trade. So if 

you will work with him—and hopefully this Committee will consider a Deputy Secretary for International Trade as well—I think 

we can have a good approach there. 

30 

Mr. Chairman, thank you for calling this hearing. The Department of Transportation’s most important job is the regulation and 

oversight of safety, and that job never stops. Just last night, an 

Amtrak train fatally struck two CSX employees who were working 

on a nearby track. This is tragic. These kinds of accidents happen 

far too often, and we need to do more to prevent them. 

I just rode Amtrak, the Acela, and when I got off in the Washington station, I looked up on the platform at those steel beams 

that cover the tracks, They are all up and down the tracks for the 

passengers to walk without getting into the elements. Lo and behold, all of the steel beams are rusting. We’ve got an infrastructure 

problem, and we’ve got to address it. 

The Department also has a critical safety role in an issue that 

is important to so many of our constituents, especially in Florida, 

and that is the continuing Takata airbag mess. Back in 2014, this 

Senator chaired the first congressional hearing on the defective airbag failures, and at that time, we heard from a victim, Air Force 

Lieutenant Stephanie Erdman, who was seriously injured and almost lost an eye when a Takata airbag exploded after a minor accident in the Florida Panhandle, a minor accident. And we also 

heard from a senior Takata executive who stonewalled and failed 

to acknowledge the severity of the problem. 

And in a series of reports, we uncovered evidence that the company routinely manipulated data about the safety of its airbags. 

Takata’s actions were shameful and showed a lack of regard for 

human safety. And as a result, the Department of Justice charged 

Takata with criminal violations for wire fraud and conspiracy concerning the defective airbag inflators. 

And because of all this, you would think that we would finally 

be making some serious progress on Takata recalls, but that’s not 

the case. Earlier this month, this Senator released new statistics 

showing that two-thirds of over 46 million recalled Takata airbag 

inflators nationwide have not been repaired, 2 years later. And 

even more troubling is that 16 people have died and more than 180 

people worldwide have been injured because of the airbags. 

So this is a crisis, and we need leadership to get these recalls 

back on track. This is especially true in light of Takata’s announcement that it will enter into bankruptcy, an announcement just 

made in the last few days, making it almost certain that the company will not be able to pay for all the replacement airbags needed 

to fix this mess or adequately compensate all the victims who have 

been injured or families who have lost their loved ones. 

So this leads me to your nomination, Mr. Bradbury. You obviously know a lot about this issue because you represented Takata 

in regulatory and congressional investigations for more than 2 

years. There’s no problem that you are an advocate as an attorney 

at law representing a client. I understand that. 

But we’ve got a problem of automobile safety. You have been 

generously compensated for being an advocate as an attorney at 

law. And I believe, as the Department’s General Counsel, you must 

be free of any conflicts that could be perceived as affecting your 

ability to do the job of protecting the public. 

31 

As a result, I wrote you last week and I urged you, if confirmed, 

to recuse yourself from all matters involving Takata for your entire 

term as the Department’s General Counsel. 

So, Mr. Chairman, I would like to ask that my letter to Mr. 

Bradbury and his response be entered in the record. 

The CHAIRMAN. Without objection, so ordered. 

[The information referred to follows:] 

UNITED STATES SENATE

Washington, DC, June 22, 2017 

STEVEN G. BRADBURY, Esquire 

McLean, VA 

Dear Mr. Bradbury: 

The U.S. Senate Committee on Commerce, Science, and Transportation is in receipt of your nomination to the position of General Counsel of the U.S. Department 

of Transportation. 

This position plays a critical role in ensuring the safety of our Nation’s transportation systems. As such, I believe that the person occupying this position must be 

free of any arrangements or entanglements that could be seen as impeding that 

duty to serve the American people. 

In your response to the Committee questionnaire, you state that you 

‘‘[r]epresented TK Holdings Inc. (Takata Corporation) in connection with investigations of airbag inflator ruptures by [the National Highway Traffic Safety Administration] NHTSA, Congress, and other entities, and in related civil litigation.’’ As you 

know, defective Takata inflators have been linked to 11 deaths and approximately 

180 injuries nationwide. Recently, Honda confirmed that another Takata airbag inflator ruptured in Las Vegas, Nevada, causing serious injury to the driver. 

Both civil and criminal litigation surrounding the Takata recalls is ongoing, and 

on February 27, 2017, Takata pled guilty to one count of wire fraud related to fabrication of its inflators’ safety record and agreed to pay $1 billion in criminal penalties. Three Takata executives currently face criminal charges for their alleged involvement in the Takata scheme. On May 18, 2017, four automakers involved in 

multi-district civil litigation reached a settlement agreement to pay $553 million to 

compensate vehicle owners affected by the recalls. 

Furthermore, under Takata’s Amended Consent Order and Coordinated Remedy 

Orders with NHTSA, the agency will play an active role in overseeing the recall 

process, including the production of replacement airbag inflators, well into the next 

decade. In light of the low recall completion rates, it is reasonable to expect that 

oversight of the recalls by NHTSA and the Department will only increase in the future. Additionally, by the end of 2019, Takata must demonstrate to NHTSA the 

safety of its desiccated ammonium nitrate-based inflators. NHTSA’s determination 

on this matter could result in expanding the recalls to include millions of additional 

Takata inflators. 

In your agreement with the Department’s Designated Agency Ethics Official, you 

state, ‘‘I will not participate personally and substantially in any particular matter 

involving specific parties in which I know a former client of mine is a party or represents a party for a period of one year after I last provided service to that client, 

unless I am first authorized to participate, pursuant to 5 C.F.R. § 2635.502(d).’’ In 

addition, you state, ‘‘[F]or the duration of my appointment as General Counsel, I 

will not participate personally and substantially in any particular manner in which 

I know I previously appeared before, or directly communicated with, the U.S. Department of Transportation on behalf of Dechert LLP or any former client, unless 

I am first authorized to participate, pursuant to 5 C.F.R. § 2635.502(d).’’ 

Unfortunately, this language does not fully address how you intend to handle 

recusals from matters involving Takata Corporation or TK Holdings Inc. Accordingly, prior to taking further action on your nomination, I ask you to confirm in 

writing that you will: 

(1) Not participate in any NHTSA or Department matter involving Takata Corporation or TK Holdings, Inc, including all subsidiaries and successor entities, 

during your entire term as General Counsel; and 

(2) Not seek or accept an authorization under 5 C.F.R. § 2635.502(d) to participate 

in any matter involving Takata Corporation or TK Holdings Inc., including all 

subsidiaries and successor entities, during your entire term as General Counsel. 

32 

Thank you in advance for your prompt response to this request. 

Sincerely, 

BILL NELSON, 

Ranking Member. 

cc: The Honorable John Thune, Chairman 

June 23, 2017 

Hon. BILL NELSON, 

Ranking Member, 

Committee on Commerce, Science, and Transportation, 

United States Senate, 

Washington, DC. 

Dear Senator Nelson: 

Thank you for your letter of yesterday concerning my nomination to be General 

Counsel of the U.S. Department of Transportation (the ‘‘Department’’). After reviewing my responses to the Committee’s Questionnaire and my Ethics Agreement with 

the Department’s Designated Agency Ethics Official, or ‘‘DAEO,’’ you have asked me 

to make specific commitments regarding recusals from matters involving Takata 

Corporation, including its subsidiaries and successor entities (together, ‘‘Takata’’), in 

the event I am confirmed as the Department’s General Counsel. 

I very much appreciate your interest in these questions, and I know from direct 

experience how much you personally care about addressing and resolving the safety 

issues relating to airbag inflator ruptures. As you know, I represented the U.S. subsidiary of Takata in connection with the airbag inflator rupture issues before the 

Department and elsewhere. Among other things, I participated directly in the discussions with the National Highway Traffic Safety Administration, or ‘‘NHTSA,’’ 

that produced the consent orders governing the recalls of Takata airbag inflators 

and establishing the framework for expansion of those recalls going forward. 

With regard to Takata, as in all matters, you can be assured I take my ethical 

responsibilities extremely seriously, both as an attorney representing clients in private practice and as a prospective officer of the Government whose only client will 

be the United States. I will honor my professional duties as a lawyer and will adhere scrupulously to the requirements of the Federal ethics laws and regulations, 

as well as the additional obligations I will assume under Executive Order 13770 

(‘‘Ethics Commitments by Executive Branch Appointees’’), if confirmed. 

Specifically: For the duration of my tenure with the Department, I will recuse myself from all aspects of the Takata airbag inflator recalls. Furthermore, under Executive Order 13770, for a period of two years following my confirmation as General 

Counsel of the Department, I will not participate in any other particular matter involving specific parties that is directly and substantially related to Takata, including regulations and contracts. I do not plan to seek a waiver under applicable ethics 

regulations to participate in particular matters involving Takata. 

Respectfully submitted, 

STEVEN G. BRADBURY. 

cc: The Honorable John Thune, Chairman 

Senator NELSON. Mr. Bradbury, I want to thank you for your 

prompt response and your written commitment to recuse yourself 

from Takata recall-related matters. I intend to seek clarification 

from you during my questioning on whether you would seek or accept any waivers that would allow you to participate in any 

Takata-related matters. I will be asking you those questions, and 

I expect a direct answer. 

In the meantime, Ms. Walsh and Mr. Bradbury, I look forward 

to continuing this hearing today. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Nelson. 

Mr. Bradbury and Ms. Walsh, I know you both appreciate the 

importance of cooperation between the branches of our government. 

Nevertheless, these hearings give us an opportunity to underscore 

that point. So a question for both of you is, if confirmed, will you 

33 

pledge to work collaboratively with this committee and provide 

thorough and timely responses to our requests for information as 

we work together to address various policies? 

Ms. WALSH. Yes, Chairman, I will. 

Mr. BRADBURY. Yes, absolutely, Mr. Chairman. 

The CHAIRMAN. Thank you. 

Mr. Bradbury, as you know, a major part of the General Counsel’s job is to help oversee the regulatory process at DOT. Though 

I know Deputy Secretary Rosen, who is the Department’s Regulatory Reform Task Force Officer, will also play a large role in that, 

could you speak to the principles that you will use to evaluate regulations that come to your office? 

Mr. BRADBURY. Yes. Thank you, Mr. Chairman. As—— 

[Audience interruption.] 

The CHAIRMAN. Order in the hearing room! 

Mr. Bradbury, again if you could speak to the principles that you 

will use to evaluate regulations that come to your office. 

Mr. BRADBURY. Yes. Thank you. Mr. Chairman, as Senator Nelson stressed, the number one mission of the Department of Transportation is public safety. So the necessity of regulation to address 

safety issues is certainly the primary consideration, as I think the 

Secretary of Transportation has made clear in her testimony. 

But I do look forward to working with the Regulatory Task 

Force, the Regulatory Reform Task Force, to review the regulations 

of the Department and to determine those that are necessary to address safety issues, and then to ensure that the regulations are focused in a way that will preserve incentives to invest in innovation 

because this is a transformational time in transportation and technology, and we need to preserve those investments to invest in new 

innovation. So I think that’s a critical part of the equation. 

Thank you. 

The CHAIRMAN. Is there a way that maybe you could illustrate 

a couple of examples of DOT regulations that in your view do a 

good job of reflecting or incorporating those principles that you just 

alluded to? 

Mr. BRADBURY. Yes. Thank you, Mr. Chairman. In a couple of 

different areas. One is in automotive safety regulation. The regulations I think that NHTSA has promulgated are very clear in terms 

of the disclosure obligations and the procedures that manufacturers 

have to follow, and I think that kind of clear procedural guidance 

is critical. Those types of regulations are I think extremely helpful 

in terms of achieving the safety mandate and leaving the markets 

free to innovate. 

Similarly, on the aviations side, where the Department has very 

important authority to enforce prohibitions on unfair or deceptive 

trade practices, if the Department has a record, a factual record, 

it develops of practices that are unfair to consumers, for example, 

in the aviation industry, then a clear rule based on that record that 

prohibits that specific activity, we have several examples of that, 

I think, are examples of the right kind of regulation. 

The CHAIRMAN. Thank you, Mr. Bradbury. 

Ms. Walsh, if confirmed, your authority as Assistant Secretary 

for Global Markets will include the SelectUSA program, which is 

an initiative of the Department of Commerce to attract more direct 

34 

foreign investment in the United States. What are your thoughts 

about how the SelectUSA program could be used to further your 

goals for the Global Markets Division at the Department of Commerce should you be confirmed? 

Ms. WALSH. Thank you, Mr. Chairman. The SelectUSA has just 

completed a fourth conference that they have done. It was highly 

successful. There were 3,000 participants from around the world, 

and it was really one of the highest rated and only event of its sort 

here in the United States. 

SelectUSA’s purpose is to attract foreign direct investment from 

around the world, something that we welcome, particularly the 

United States at this time. So certainly export promotion and FDI 

attraction into the United States will be critical, if confirmed, in 

this position. 

The CHAIRMAN. Thank you. 

Mr. Bradbury, tomorrow we are going to be marking up the FAA 

Reauthorization Act of 2017. What do you view as the proper role 

for the Office of General Counsel with respect to the protection of 

aviation, consumers, and DOT enforcement of laws enacted for 

their benefit? 

Mr. BRADBURY. Well, I think as you well know, Mr. Chairman, 

the Office of General Counsel has a critical role in terms of enforcing the aviation standards against unfair deceptive practices in 

aviation. And then through its supervisory role with respect to the 

Chief Counsel at the FAA, the Federal Aviation Administration, a 

critical role in assisting the FAA in terms of legal support in ensuring that its regulation and enforcement of safety requirements for 

the air system are enforced and are clear and are effective. So it’s 

certainly an important part, and I would, if confirmed, very much 

look forward to working closely with you and the members of this 

Committee in terms of your policy goals with respect to FAA Reauthorization and the issues that arise with respect to aviation. 

Thank you. 

The CHAIRMAN. Thank you. 

There are a series of letters I want to enter into the record. 

There are four letters signed by a total of over 60 prominent individuals, including the signatures of former DOT Secretary Norm 

Mineta, former DOT Secretary Rod Slater, as well as former Attorney General Michael Mukasey, and former Attorney General Ed 

Meese, and several state attorneys general, including the Attorney 

General of South Dakota, have also signed a letter of support for 

Mr. Bradbury’s nomination. And he has also received some letters 

expressing concerns about Mr. Bradbury’s nomination, and these 

too will be entered into the record for members of this Committee 

to review. So those will be entered into the record without objection. 

[The information referred to follows:] 

35 

June 22, 2017 

Hon. JOHN THUNE, 

Chairman, 

Committee on Commerce, Science, and 

Transportation, 

United States Senate, 

Washington, DC. 

Hon. BILL NELSON, 

Ranking Member, 

Committee on Commerce, Science, and 

Transportation, 

United States Senate, 

Washington, DC. 

Re: Nomination of Steven Gill Bradbury to be General Counsel of the Department 

of Transportation 

Dear Chairman Thune and Ranking Member Nelson: 

We write in strong support of the nomination of Steven Bradbury to be General 

Counsel of the Department of Transportation. Each of us served with Steve in the 

Federal Government, and we believe him to be an excellent choice to serve as General Counsel. 

Steve’s education, prior public service and work in private practice make him exceptionally well-qualified for this important role. For the past eight years, Steve has 

served as a partner at a prominent law firm in Washington, D.C. and New York 

(and from 1994–2004 served as a partner at a different but equally prominent firm). 

He holds degrees from Stanford University and the University of Michigan Law 

School, and clerked for Associate Justice Clarence Thomas of the Supreme Court 

and Judge James L. Buckley of the U.S. Court of Appeals for the D.C. Circuit. From 

2004 to 2009, he served as Acting Assistant Attorney General and Principal Deputy 

Assistant Attorney General at the Office of Legal Counsel, where he advised the 

President, the Attorney General and the heads of executive departments and agencies on significant questions of constitutional, statutory, and administrative law. 

Because of Steve’s extensive experience in both government and private practice, 

we believe he is very well-qualified to serve as General Counsel of the Department 

of Transportation. While at the Justice Department, Steve approached his work 

with extraordinary care, and we believe he will demonstrate the same exceptional 

commitment at the Department of Transportation. We also understand that Steve 

has valuable experience handling significant matters before the Department (including one of the largest automotive safety recalls in history), and has also handled 

issues involving aviation competition and international route authorizations. Most 

important, Steve has the integrity, temperament, judgment, and legal acumen to 

succeed in the role of General Counsel. 

In short, we believe that Steve will serve in this position with distinction and 

honor. We respectfully urge the Committee and the Senate to approve his nomination to be General Counsel of the Department of Transportation. 

Sincerely, 

Alex M. Azar II 

Deputy Secretary, Health and Human Services (2005–2007) 

General Counsel, Health and Human Services (2001–2005) 

Thomas O. Barnett 

Assistant Attorney General, Antitrust Division (2006–2008) 

C. Frederick Beckner III 

Deputy Assistant Attorney General, Civil Division (2006–2009) 

John B. Bellinger III 

Legal Adviser to the Department of State (2005–2009) 

Legal Adviser to the National Security Council (2001–2005) 

Bradford A. Berenson 

Associate Counsel to the President (2001–2003) 

Megan L. Brown 

Counsel to the U.S. Attorney General (2007–2008) 

Reginald Brown 

Associate Counsel to the President (2003–2005) 

Jeffrey S. Bucholtz 

Acting Assistant Attorney General, Civil Division (2007–2008) 

Principal Deputy Assistant Attorney General, Civil Division (2006–2008) 

Lily Fu Claffee 

General Counsel, U.S. Department of Commerce (2008–2009) 

Deputy General Counsel, U.S. Department of the Treasury (2006–2008) 

36 

Deputy Associate Attorney General, U.S. Department of Justice (2005–2006) 

Gus P. Coldebella 

Acting General Counsel, Department of Homeland Security (2007–2009) 

Deputy General Counsel, Department of Homeland Security (2005–2009) 

Jonathan Cohn 

Deputy Assistant Attorney General, Civil Division (2004–2009) 

Daniel J. Dell’Orto 

Acting General Counsel, Department of Defense (2008–2009) 

Principal Deputy General Counsel, Department of Defense (2000–2009) 

Grant M. Dixton 

Associate Counsel to the President (2003–2006) 

Thomas H. Dupree Jr. 

Deputy Assistant Attorney General, Civil Division (2007–2009) 

John P. Elwood 

Deputy Assistant Attorney General, Office of Legal Counsel (2005–2009) 

Alice Fisher 

Assistant Attorney General, Criminal Division (2005–2008) 

Brett Gerry 

Chief of Staff to the Attorney General (2007–2008) 

Deputy Assistant Attorney General, National Security Division (2006–2007) 

Matthew W. Friedrich 

Acting Assistant Attorney General, Criminal Division (2008–2009) 

William J. Haynes 

General Counsel of the Department of Defense (2001–2008) 

Richard Klingler 

Senior Associate Counsel to the President and Legal Adviser, NSC Staff (2006– 

2007) 

Special Assistant and Associate Counsel to the President (2005–2006) 

C. Kevin Marshall 

Deputy Assistant Attorney General, Office of Legal Counsel (2005–2007) 

Counsel to the Assistant Attorney General, Office of Legal Counsel (2004) 

William E. Moschella 

Principal Associate Deputy Attorney General (2006–2008) 

Assistant Attorney General, Office of Legislative Affairs (2003–2006) 

Carl J. Nichols 

Deputy Assistant Attorney General, Civil Division (2005–2008) 

Principal Deputy Associate Attorney General (2008–2009) 

Jake Phillips 

Senior Counsel to the Deputy Attorney General (2008–2009) 

Counsel to the Assistant Attorney General, Office of Legal Counsel (2007–2008) 

Benjamin A. Powell 

General Counsel, Office of the Director of National Intelligence (2006–2009) 

J. Patrick Rowan 

Assistant Attorney General, National Security Division (2008–2009) 

Kate Comerford Todd 

Associate Counsel to the President (2007–2009) 

Ted Ullyot 

White House and Department of Justice (2003–2005) 

37 

June 22, 2017 

Hon. JOHN THUNE, 

Chairman, 

Committee on Commerce, Science, and 

Transportation, 

United States Senate, 

Washington, DC. 

Hon. BILL NELSON, 

Ranking Member, 

Committee on Commerce, Science, and 

Transportation, 

United States Senate, 

Washington, DC. 

Re: Nomination of Steven Gill Bradbury to be General Counsel of the Department 

of Transportation 

Dear Chairman Thune and Ranking Member Nelson: 

We write to express our strong support for the nomination of Steven Bradbury 

to be General Counsel of the Department of Transportation. Each of us has previously served in one or more senior positions at the Department of Justice, the 

White House, or agencies within the Intelligence Community. We believe Mr. 

Bradbury is an excellent choice to serve as General Counsel. 

Mr. Bradbury’s professional experience, both in public service and in the private 

sector, render him exceptionally well-prepared for this position. A graduate of Stanford and the University of Michigan Law School, he clerked for Justice Clarence 

Thomas of the United States Supreme Court and Judge James Buckley of the 

United States Court of Appeals for the District of Columbia Circuit. He served during two Administrations in the Office of Legal Counsel at the Department of Justice, 

first as an Attorney-Adviser and later as the Principal Deputy Assistant Attorney 

General and Acting Assistant Attorney General. In those capacities, he was called 

upon to advise government officials at the highest levels, including many of us, on 

challenging and important issues of law. In private practice he has likewise been 

relied upon to handle matters of great significance and complexity, many of which 

have involved issues affecting the transportation industry. 

The breadth and depth of Mr. Bradbury’s background and experience, his demonstrated capacity for careful and thoughtful legal analysis, his consistent professionalism, and his strong integrity would enable him to provide exemplary service 

to the Department of Transportation—and the country—as General Counsel. We 

strongly urge the Committee to report favorably upon his nomination. 

Sincerely, 

William P. Barr 

Attorney General (1991–1993) 

William A. Burck 

Deputy Counsel to the President (2007– 

2009) 

Paul D. Clement 

Solicitor General (2005–2008) 

Fred. F. Fielding 

Counsel to the President (2007–2009; 

1981–1986) 

Commissioner, 9–11 Commission (2002– 

2004) 

Mark Filip 

Deputy Attorney General (2008–2009) 

Gregory G. Garre 

Solicitor General (2008–2009) 

Principal Deputy Solicitor General 

(2005–2008) 

Alberto R. Gonzales 

Attorney General (2005–2007) 

Counsel to the President (2001–2005) 

Stephen J. Hadley 

National Security Advisor (2005–2009) 

Deputy National Security Advisor (2001– 

2005) 

General Michael V. Hayden, USAF 

(retired) 

Director, Central Intelligence Agency 

(2006–2009) 

Director, National Security Agency 

(1999–2005) 

Peter D. Keisler 

Acting Attorney General (2007) 

Assistant Attorney General, Civil 

Division (2003–2007) 

Edwin Meese III 

Attorney General (1985–1988) 

Michael B. Mukasey 

Attorney General (2007–2009) 

United States District Judge (1988– 

2006) 

Theodore B. Olson 

Solicitor General (2001–2004) 

George J. Terwilliger III 

Deputy Attorney General (1991–1993) 

Kenneth L. Wainstein 

Homeland Security Advisor (2008–09) 

Assistant Attorney General for National 

Security (2006–08) 

38 

June 27, 2017 

Hon. JOHN THUNE, 

Chairman, 

Committee on Commerce, Science, and 

Transportation, 

United States Senate, 

Washington, DC. 

Hon. BILL NELSON, 

Ranking Member, 

Committee on Commerce, Science, and 

Transportation, 

United States Senate, 

Washington, DC. 

Dear Chairman Thune and Ranking Member Nelson: 

We write to endorse the nomination of Steven Gill Bradbury to serve as General 

Counsel of the Department of Transportation. 

We have nothing but the highest respect for his legal skills, his judgment, his 

work ethic, and his professionalism. As a public servant, he undoubtedly will bring 

those same qualities to this important job in service to the country. 

We thus urge you to report his nomination favorably to the full Senate. Thank 

you in advance for considering our views. 

Sincerely, 

Jeremy Bash 

Chief of Staff, U.S. Department of Defense (2011–2013) 

Chief of Staff, Central Intelligence Agency (2009–2011) 

Democratic Counsel, House Permanent Select Committee on Intelligence (2005– 

2009) 

John P. Carlin 

Assistant Attorney General for the National Security Division, U.S. Department of 

Justice (2014–2016) 

Chief of Staff, Federal Bureau of Investigation (2009–2011) 

Daryl Joseffer 

Principal Deputy Solicitor General (2008–2009) 

Assistant to the Solicitor General (2004–2008) 

Deputy General Counsel, Office of Management and Budget (2003–2004) 

The Honorable Norman Y. Mineta 

Secretary, U.S. Department of Transportation (2001–2006) 

Matthew G. Olsen 

Former Director, National Counterterrorism Center (2011–2014) 

Former General Counsel, National Security Agency (2010–2011) 

Virginia A. Seitz 

Former Assistant Attorney General, Office of Legal Counsel (2011–2013) 

The Honorable Rodney E. Slater 

Secretary, U.S. Department of Transportation (1997–2001) 

Jeffrey L. Turner 

Managing Partner, Public Policy Practice Group, Squire Patton Boggs (U.S.) LLP 

39 

June 27, 2017 

Hon. JOHN THUNE, 

Chairman, 

Committee on Commerce, Science, and 

Transportation, 

United States Senate, 

Washington, DC. 

Hon. BILL NELSON, 

Ranking Member, 

Committee on Commerce, Science, and 

Transportation, 

United States Senate, 

Washington, DC. 

Re: Nomination of Steven Gill Bradbury to be General Counsel of the Department 

of Transportation 

Dear Chairman Thune and Ranking Member Nelson: 

We the undersigned Attorneys General for various States are writing in strong 

support of the President’s nomination of Steven Gill Bradbury to serve as General 

Counsel of the U.S. Department of Transportation. 

As Attorneys General responsible for protecting the rights and legal interests of 

the people of our States, we have a keen interest in the Federal Government’s exercise of its broad authorities with respect to the Nation’s interstate transportation 

systems. The public safety of our highways, rail lines, and other modes of transportation is critical to each of our states, and we look to the Department of Transportation for smart and effective enforcement action in cooperation with State and local 

authorities. It is also important that the Federal Government act wisely and efficiently in spending tax dollars in support of needed infrastructure projects. In addition, we expect that the Department of Transportation will pursue reasonable regulatory policies that are consistent with the law and that promote safety while preserving appropriate incentives for technological innovation, private investment, and 

variation in approach among the States. 

In all of these areas, it is vital that the Department of Transportation receive 

sound legal counsel on the proper exercise of its statutory authorities. We believe 

that Mr. Bradbury has exactly the right background and set of experiences to provide that legal guidance. As the head of the Office of Legal Counsel at the U.S. Department of Justice from 2005 to 2009, Mr. Bradbury advised the entire Executive 

Branch on compliance with the laws and the Constitution. And as an attorney in 

private practice, he has gained experience with a range of regulatory and enforcement issues before the Department of Transportation. We applaud the President for 

nominating Mr. Bradbury, and we look forward to working with him and with Secretary Chao on important transportation issues of common interest. 

Accordingly, we respectfully urge the Committee to move Mr. Bradbury’s nomination forward. 

Respectfully submitted, 

ALAN WILSON

Attorney General 

State of South Carolina 

PAM BONDI

Attorney General 

State of Florida 

DEREK SCHMIDT

Attorney General 

State of Kansas 

TIM FOX

Attorney General 

State of Montana 

SEAN REYES

Attorney General 

State of Utah 

BILL SCHUETTE

Attorney General 

State of Michigan 

PATRICK MORRISEY

Attorney General 

State of West Virginia 

CHRIS CARR

Attorney General 

State of Georgia 

JEFF LANDRY

Attorney General 

State of Louisiana 

DOUG PETERSON

Attorney General 

State of Nebraska 

BRAD SCHIMEL

Attorney General 

State of Wisconsin 

KEN PAXTON

Attorney General 

State of Texas 

LESLIE RUTLEDGE

Attorney General 

State of Arkansas 

CURTIS HILL

Attorney General 

State of Indiana 

JOSH HAWLEY

Attorney General 

State of Missouri 

ADAM PAUL LAXALT

Attorney General 

State of Nevada 

STEVE MARSHALL

Attorney General 

State of Alabama 

MARTY JACKLEY

Attorney General 

State of South Dakota 

WAYNE STENEHJEM

Attorney General 

State of North Dakota 

40 

UNITED STATES SENATE

Washington, DC, June 28, 2017 

Hon. MITCH MCCONNELL, 

Majority Leader, 

United States Senate, 

Washington, DC. 

Dear Mitch: 

I am writing to inform you of my strong objection to any consideration of the nomination of Steven G. Bradbury to serve as the general counsel of the Department 

of Transportation. 

It has come to my attention that while serving as the acting head of the Department of Justice’s Office of Legal Counsel from 2005 to 2009, Mr. Bradbury authored 

several legal memoranda that authorized the use of waterboarding and other forms 

of torture and degrading treatment. 

I find his nomination to any position of trust in our government to be personally 

offensive. 

Please know that I will use whatever means I have at my disposal to block consideration of this nominee. 

Sincerely, 

JOHN MCCAIN, 

United States Senator. 

July 31, 2017 

Dear Senator, 

We are a nonpartisan group of former national security, law enforcement, intelligence, and interrogation professionals. Our collective professional experience includes service in the U.S. military, the Federal Bureau of Investigation, the Central 

Intelligence Agency, the Drug Enforcement Administration, the Defense Intelligence 

Agency, the Army Criminal Investigation Command, and the Naval Criminal Investigative Service. 

We write today to express our opposition to the nomination of Mr. Steven 

Bradbury to serve once again in a position of significant responsibility within the 

U.S. Government as general counsel of the Department of Transportation. Our opposition stems from the necessary judgment and personal courage this office requires 

to provide candid and objective legal advice to policymakers that may be seeking 

politically expedient policy solutions. 

We dedicated our professional lives to keeping our Nation safe. That work demanded using every resource at our disposal, including and especially our moral authority. Our enemies act without conscience. We must not. 

Mr. Bradbury spent many years serving in the Department of Justice—including 

as acting head of the Office of Legal Counsel—during the George W. Bush Administration. In this position, he prepared official memoranda that provided legal cover 

for other agencies in the U.S. Government to employ a program of interrogation tactics that amounted to torture or cruel, inhuman, or degrading treatment. These brutal methods—which included waterboarding—fundamentally violated domestic and 

international law governing detainee treatment and caused untold strategic and 

operational harm to our national security. As former interrogators, intelligence, and 

law enforcement professionals with extensive firsthand experience in the field of interrogation, we were shocked by Mr. Bradbury’s attempt to defend the use of the 

waterboard and other torture tactics based on the incorrect assertions that their use 

would not cause severe physical pain or suffering and would produce valuable intelligence. In our professional judgment, torture and other forms of detainee abuse are 

not only immoral and unlawful, they are ineffective and counterproductive in gathering reliable intelligence. They also tarnish America’s global standing, undermine 

critical alliances, and bolster our enemies’ propaganda efforts. If the Senate confirms Mr. Bradbury, it would send a clear message to the American public that authorizing the use of torture is not only acceptable but is not a barrier to advancement into the upper ranks of our government. We understand that Mr. Bradbury 

did not act alone in authorizing torture, but as his nomination is before you, we ask 

you to take this opportunity to reaffirm our commitment to the ideals we strive to 

uphold by rejecting his nomination. 

Torture is not a partisan issue. Our respect for human dignity is timeless, and 

we must never risk our national honor to prevail in any war. Your vote to reject 

41 

1Department of Justice Office of Professional Responsibility, Report on Investigation into the 

Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence 

Agency’s Use of ‘‘Enhanced Interrogation Techniques’’ on Suspected Terrorists, July 29, 2009. 2 Id. 

3 Id. 

4 Coalition Letter Expressing Concern Regarding the Nomination of Steven Bradbury for General Counsel of the Department of Transportation, June 22, 2017, available at https://ccrjus 

tice.orglcoalition-letter-expressing-concern-regarding-nomination-steven-bradbury-general-counseldepartment. 5Senate Judiciary Committee, Hearing on Hamdan v. Rumsfeld: Establishing a Constitutional 

Process, July 11, 2006. 

this nomination would reflect the morally sound leadership that this country needs 

and would not forget. 

Signed, 

Frank Anderson—CIA (Ret.) Marcus Lewis—Former U.S. Army Interrogator 

Glenn Carle—CIA (Ret.) Mike Marks—NCIS (Ret.) 

Barry Eisley—Former CIA Robert McFadden—NCIS (Ret.) 

Mark Fallon—NCIS (Ret.) Joe Navarro—FBI (Ret.) 

Charlton Howard—NCIS (Ret.) William Quinn—Former U.S. Army Interrogator 

Timothy James—NCIS (Ret.) Ken Robinson—U.S. Army (Ret.) 

Colonel Steven Kleinman—U.S. Air Force (Ret.) Patrick Skinner—CIA (Ret.) 

UNITED STATES SENATE

Washington, DC, August 1, 2017 

Hon. JOHN THUNE, 

Chairman, 

Senate Committee on Commerce, 

Science, and Transportation, 

Washington, DC. 

Hon. BILL NELSON, 

Ranking Member, 

Senate Committee on Commerce, 

Science, and Transportation, 

Washington, DC. 

Dear Chairman Thune and Ranking Member Nelson: 

I write to share my deep concerns about Steven G. Bradbury, who has been nominated by President Trump to serve as General Counsel of the Department of Transportation and whose vote before the Senate Commerce Committee is scheduled for 

August 2, 2017. Mr. Bradbury ’s role as an architect of the torture program, along 

with his proven unwillingness to exercise independence and objectivity at moments 

when those qualities were most warranted, in my view disqualify him from any position of public trust. 

Mr. Bradbury was acting Assistant Attorney General from 2005 to 2007 and headed the Office of Legal Counsel at the U.S. Department of Justice from 2005 to 2009. 

During that time, along with John Yoo and Jay Bybee, he served as a principal author of what have come to be known as the ‘‘torture memos.’’ While the torture program had already been developed by the administration prior to Mr. Bradbury’s appointment, he contributed to secret OLC memos that provided the legal justification 

for a range of CIA interrogation tactics including waterboarding, cramped confinement, and dietary manipulation. 

Mr. Bradbury’s work has been sharply criticized inside and outside the Department of Justice. In 2007, State Department Legal Adviser John Bellinger warned 

Mr. Bradbury that his draft opinion analyzing Common Article 3 of the Geneva Convention ‘‘will not be considered the better interpretation of [the law] but rather a 

work of advocacy to achieve a desired outcome.’’ 1 Mr. Bradbury’s legal opinions 

were eventually overturned, and the Department’s Office of Professional Responsibility (OPR) issued a report in 2009 citing ‘‘serious concerns about some of his analysis.’’ 2 OPR’s review ‘‘raised questions about the objectivity and reasonableness of 

some of the Bradbury Memos’ analyses’’ and found that instead of providing objective legal analysis his memos ‘‘were written with a goal of allowing the ongoing CIA 

program to continue.’’ 3 As a coalition of human rights groups noted in their letter 

of June 22 to Chairman Thune and Ranking Member Nelson of the Committee on 

Commerce, Science, and Transportation, Mr. Bradbury’s ‘‘analysis directly contradicted relevant domestic and international law regarding the treatment of prisoners, 

and helped establish an official policy of torture and detainee abuse that has caused 

incalculable damage to both the United States and the prisoners it has held.’’ 4

In testimony before the Senate Judiciary Committee in 2006, Mr. Bradbury justified the administration’s interpretation of the Supreme Court’s decision in Hamdam v. Rumsfeld by stating that the ’’president is always right.’’ 5 The general counsel 

of a Federal agency must not simply be a rubber stamp for the administration and 

its policies. In 2008, the Senate refused to confirm Mr. Bradbury as assistant attorVerDate Nov 24 2008 06:50 Jul 25, 2018 Jkt 075679 PO 00000 Frm 00045 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\30769.TXT JACKIE
42 

ney general for the Office of Legal Counsel in light of his role in crafting the torture 

memos and demonstrated lack of political independence. I urge you to again reject 

his nomination to this position of public trust. 

Sincerely, 

SHELDON WHITEHOUSE, 

United States Senator. 

PUBLIC CITIZEN

Washington, DC, August 1, 2017 

Dear Senator, 

We are writing to urge you to deny confirmation for Steven Bradbury, the nominee to become general counsel for the Department of Transportation. 

Mr. Bradbury has a long record of opposing consumer and environmental interests 

that makes him singularly unfit for the general counsel position at an agency 

charged with developing a safe, affordable and environmentally sustainable transportation system for Americans. 

Most notably, Mr. Bradbury has represented Takata Corporation as it has sought 

to defend itself from civil and criminal liability related to faulty air bags that have 

killed or injured more than 100 people. Recalls of the Takata airbags are proceeding 

at a disturbingly slow rate. As Senator Nelson said at Mr. Bradbury’s confirmation 

hearing, he was ‘‘one of the main advocates for a company that has done dastardly 

things.’’ 

Unfortunately, that representation and advocacy was part of a long history of advocating on behalf of corporate wrongdoers. He has represented: 

• Turing Pharmaceuticals, of Martin Shkreli fame, in connection with congressional investigations of outrageous drug price increases; 

• Southeastern Legal Foundation in a Supreme Court challenge to EPA greenhouse gas emission rules; 

• US Airways during its 2013 merger with AMR Corporation, the company that 

operates American Airlines, a merger that created the country’s largest airline: 

• Verizon, in a lawsuit against the Federal Communications Commission, challenging an early FCC net neutrality rule. 

• The U.S. Chamber of Commerce and Investment Company Institute as amici 

in support of MetLife, Inc.’s challenge to its designation as ‘‘too big to fail’’ by 

the Financial Stability Oversight Council under the Dodd-Frank Act. 

In Mr. Bradbury’s world, corporations would be bigger, freer to pollute, price 

gouge and endanger the public. 

This is not the resume of someone qualified to serve as general counsel at the Department of Transportation. Mr. Bradbury’s record evinces a hostility to the very 

priorities he would be charged with upholding at the department. We urge you to 

reject his nomination. 

Sincerely, 

ROBERT WEISSMAN, 

President. 

The CHAIRMAN. Senator Nelson. 

Senator NELSON. Mr. Chairman, this is an airbag. It goes in this 

device—in this case, this is a Honda—and it’s right in the middle 

of the steering wheel. And it inflates. Even minor fender benders 

cause it to inflate. The actual inflator is inside the steering wheel. 

This is cut in half, and the explosive material is in the inside, and 

that has been the problem. Takata’s ammonium nitrate, when exposed to humidity over time, can explode with great force. You can 

see how heavy that is. That explosive force starts to shred this 

metal, and that’s what has killed 16 people and injured 180. The 

very device that is intended to save lives is killing lives. 

Now, in response to the letter that I sent you last week, you said 

that you would agree to recuse yourself from all aspects of the 

Takata airbag inflator recall and that you, quote, do not plan to 

43 

seek a waiver that would allow you to participate in, quote, particular matters involving Takata since you were their counsel. 

Well, I appreciate your response, but I want to get very specific. 

Will you agree to completely recuse yourself from all Takata matters and agree never to seek or accept a waiver of these restrictions? 

Mr. BRADBURY. Thank you, Senator Nelson. And let me explain 

what the statements in the letter indicate just so it’s clear. There 

would not be a waiver available at all with respect to the Takata 

airbag recall issues. Those I am recused from entirely. So as I’ve 

indicated to you, Senator Nelson, I recognize that I am recused for 

my entire time as General Counsel, if I am confirmed, from all aspects of the Takata airbag recalls. 

With respect to any other unrelated matter that might come up, 

so let’s say, for example, with respect to seatbelts, if the Takata 

successor, and based on what I read in the news, that could be the 

key systems company has an issue with seatbelts completed unrelated to airbags, I am indicating I would be recused under the ethics pledge of the President’s Executive Order for 2 years from the 

commencement of my time at the Department if I am confirmed. 

So I would not involve myself in any other particular matter that 

relates directly to Takata. Those unrelated matters are the ones for 

which at least theoretically a waiver might be available. And what 

I indicated in the letter is I do not plan to seek a waiver to participate in any of those unrelated matters that involve a Takata successor. I can’t, as I sit here today, foresee what those matters 

might be, and if it did involve something completely unrelated and 

there was a strong need for the General Counsel to be involved, 

that’s the kind of situation that I cannot foresee. But I do not plan 

to seek any such waiver for any such unforeseen matter, as I sit 

here. And, of course, if something came up like that, I would certainly be in touch with your office in advance of anything. But I 

think that’s a pretty broad and clear statement. 

Senator NELSON. Mr. Bradbury, I appreciate your good intentions, but the fact is that you were one of the main advocates for 

a company that has done dastardly things and that has, according 

to U.S. attorneys, violated criminal laws. 

Now, we just need the understanding, as a committee, that 

you’re still not going to be an advocate for Takata. And they’ve already said they’re filing for bankruptcy. And this is at a time that 

the American public is still at risk because two-thirds of the recalled vehicles are not repaired. The Department of Transportation 

can in fact affect this, although it’s specifically NHTSA. Why can’t 

you just say that, ‘‘I’m not going to get involved in Takata’’? 

Mr. BRADBURY. Well, certainly, Senator Nelson, I will not in any 

way, shape, or form be an advocate for any private interest. I will 

represent only one client as General Counsel if I am confirmed, and 

that’s the United States. I have no plans, as I indicated, to seek 

any waiver to be involved with respect to Takata on any matter 

that’s unrelated to the airbag recalls. As to the airbag recalls, I 

would be entirely recused my entire time. 

I agree with you completely, these are serious safety issues. One 

of the things I did as attorney for Takata was assist them in coming forward and disclosing these serious issues to NHTSA and to 

44 

the Department of Justice and assisting them in working out the 

consent order, and consent orders, with NHTSA to create the 

framework for these expanded recalls. 

I agree entirely that they’ve got a long way to go, and it’s critically important that they continue and that they be completed as 

promptly as possible. And so the Deputy General Counsel will be 

overseeing that. I know it has Secretary Chao’s personal and direct 

attention. From personal experience, I well know how important it 

is to you and what a high priority it is and how it particularly affects Florida. So I’m not at all going to be an advocate for that company or any private company. Thank you. 

Senator NELSON. OK. Mr. Chairman, I’ve just got to respond. So 

here’s a potential hypothetical. We’re rocking along into bankruptcy, and there is something in the bankruptcy with regard to 

creditors that would be favorable to Takata but would slow down 

the process of recall. That’s something that you shouldn’t get involved in because you had been the advocate, the spokesperson, the 

mouthpiece for Takata. 

Mr. BRADBURY. I agree, and I would not get involved because 

that would have an effect potentially, as you have indicated there, 

on the completion of the recalls. So you have my pledge, I will not 

participate in any aspect of any work of the Department or the Department’s activities with respect to that, that affect the recalls, 

the Takata airbag recalls, because we have to complete those as 

quickly as possible. 

Thank you. 

The CHAIRMAN. Thank you, Senator Nelson. 

Senator Cantwell. 

STATEMENT OF HON. MARIA CANTWELL, 

U.S. SENATOR FROM WASHINGTON 

Senator CANTWELL. Thank you, Mr. Chairman. 

Ms. Walsh, thanks for your willingness to serve. You know, I’m 

sure you understand because you said you traveled to 100 different 

countries, that approximately 96 percent of global consumers are 

and over three-quarters of the world’s purchasing power are overseas. So by some estimates, the middle class is expected to triple 

by 2030, creating booming markets in Asia, Africa, and India. Only 

1 to 3 percent of the U.S. small businesses are currently exporters, 

so obviously we want our exporters to have all the help and support they can to break down those barriers and become champions. 

One of the programs that I have supported and many of my colleagues have supported is the State Export Promotion Program, 

and I wanted to get your thoughts on whether you support that 

program. And, second, do you support the Export-Import Bank as 

a tool to help small business exporters? 

Ms. WALSH. Thank you, Senator, for your interest and support 

in the Commerce Department. I definitely feel that the time is now 

to really be focusing on small and medium-sized enterprises in 

terms of the states. I think everyone has a role to play at the Federal, the state, and the local levels in ensuring that our small-and 

medium-sized enterprises are prepared to export for those that are 

interested in doing so. 

45 

The markets out there are huge, and the growth is exponential 

that we’re seeing particularly in Asia. I would also say that obviously it’s up on the upswing in Africa as well. And to answer your 

question with regard to the Export-Import Bank, I am not in a position to respond to that right now. The Export-Import Bank has 

definitely been part of the cycle of success in terms of our exports 

around the globe, but in terms of—I’m not in a position, but if confirmed, I would definitely look into working with them at the direction of the Secretary and Under Secretary. 

Senator CANTWELL. You are not in a position to say whether you 

support it? Is that what you’re saying? 

Ms. WALSH. Not in a position to say personally? Is that what 

you’re asking, Senator? 

Senator CANTWELL. I mean, you are in such a big position to promote trade for the United States, the Export-Import Bank is one 

of the key tools. 

Ms. WALSH. Right. And I think that it has been outstanding thus 

far from what I know of working with the Export-Import Bank, but 

in this position, I am not prepared to say what role the Department 

will play. But definitely, Senator, if confirmed—— 

Senator CANTWELL. Thank you. 

Mr. Bradbury, I would love to ask you the same related question 

as it relates to DOT and trade because one of the things that will 

be in the purview of DOT is these FASTLANE grants that we were 

able to approve last administration to more quickly move freight, 

and we’re still waiting for the awards for this year. 

But I feel so compelled to ask you about your time in the Bush 

administration obviously regarding on this torture issue. Do you 

stand by your previous decisions now that you’ve seen how the 

Court has ruled on this issue? 

Mr. BRADBURY. I’m sorry, Senator, how the Court has ruled? 

How the Court has ruled on what? 

Senator CANTWELL. Do you think that you were right and do you 

stand by your positions on torture? Or do you now see a change or 

a problem with your philosophy that you were advocating? 

Mr. BRADBURY. Well, first of all, I just really want to make it 

clear, I was not advocating for any policies. I didn’t have a philosophy about these policies. I certainly didn’t ask to be in the position 

to provide legal advice on these questions. You know, the Office of 

Legal Counsel is that office where tough questions come to you 

when senior policymakers need legal advice and clarity, and that’s 

the function of the office. 

I will say there is one point I really want to make about this, 

because certainly I don’t feel the need to defend or discuss the 

analysis of opinions, which I think speak for themselves, and, of 

course, these opinions are not operative anymore. There’s been a 

real, you know, major, major development. 

At that time, when we were addressing these issues, it was recognized that there were two standards. There were the standards 

that applied to the Armed Forces in the military, which use the 

Army Field Manual, and very clear, and they have traditions and 

protocols that they followed. And then there were different standards for intelligence officers, and those standards were much less 

46 

well formulated, much more vague, less clear, very few precedents, 

and that’s what we were really struggling with. 

Now, of course, there has been a big sea change since that time 

because Congress has come—— 

Senator CANTWELL. Do you support that sea change? 

Mr. BRADBURY. I do. I think it’s tremendous for the country historically that Congress and the Executive Branch have come together on this highly contentious issue. And Congress has fully debated it. Senators I really have great affection and respect for led 

the charge, like Senator McCain and Senator Feinstein. And Congress has enacted new laws which essentially said for the United 

States, the standard is going to be the same, it’s going to be one 

and the same—— 

Senator CANTWELL. So you didn’t see a violation of the Geneva 

Convention in what you were recommending? 

Mr. BRADBURY. Well, I wasn’t recommending anything. OK? The 

office that I headed up is pure legal advisory, it doesn’t recommend 

anything. So policymakers—— 

Senator CANTWELL. But you were interpreting the law—— 

Mr. BRADBURY. Correct, and—— 

Senator CANTWELL.—and standards. 

Mr. BRADBURY. Yes. And, of course, what we faced in 2006 was 

a Supreme Court decision which really caught everybody by surprise which said the standard that applies in the war on terror is 

the Common Article III standard. That was something new. The 

President previously said, ‘‘it doesn’t apply.’’ So we needed to work 

on addressing what those standards in that framework would mean 

for the United States. And I actually was privileged at the time to 

work on behalf of the Executive Branch closely with Senator 

McCain and others to resolve those issues through legislation in 

2006, legislation that actually got 67 votes in the Senate. I was 

very—— 

Senator CANTWELL. Well, my time is expired, Mr. Chairman, and 

I don’t want to go on and on, but I think that people are here this 

morning because they don’t think that you showed enough leadership. So now trying to say that—we’ll go over this in more detail 

when I have an opportunity. 

Mr. BRADBURY. OK. 

Senator CANTWELL. But I think what people want to know is 

that, as an attorney, whether it’s Takata airbags or this issue, 

you’re bringing forth complete facts and information like somebody 

we’re going to put in the position to be a government lawyer 

should. 

Mr. BRADBURY. I understand, Senator. 

Senator CANTWELL. Thank you. 

Mr. BRADBURY. And, of course, in the work we did, we tried to 

lay out all of the factors that we considered, and I certainly appreciate the strong feelings on this issue. I appreciate them deeply. 

Thank you. 

The CHAIRMAN. Thank you, Senator Cantwell. 

Senator Cortez Masto. 

47 

STATEMENT OF HON. CATHERINE CORTEZ MASTO, 

U.S. SENATOR FROM NEVADA 

Senator CORTEZ MASTO. Thank you, Mr. Chair. 

Thank you both. And it’s nice to see your family here. Welcome. 

And thank you for your willingness to serve. 

Mr. Bradbury, let me start with you, and I want to follow up on 

just some of the conversation we’re having with respect to Takata 

and your representation. And let me just put this in context. Prior 

to becoming a Senator here for the state of Nevada, I was the Attorney General for 8 years, was general counsel for the state agencies when they were looking to implement the laws that were 

passed for their mission and help them interpret it. That’s similar 

to what I see you are going to be doing. 

And so I do have concerns about how you manage your private 

life and what you did in your private life, particularly when it 

comes to your advocacy for Takata and the recall of the airbags, 

and now how you’re representing the very agency that you were 

fighting against on this public safety issue. 

So let me just say this and ask you a couple of questions surrounding this because there was a young woman in Nevada by the 

name of Karina Dorado who was seriously injured, as you well 

know, from a defective Takata airbag, which exploded in her car 

after a minor accident in Las Vegas, causing severe damage to her 

trachea. 

There are currently no laws or regulations prohibiting the sale 

of cars under recall or used parts that may be under recall. In 

other words, they can be recycled. That troubles me. As General 

Counsel of the Department, would you be supportive of NHTSA, 

should it be decided that such laws or regulations are indeed necessary, to prohibit the recycling of any defective products? 

Mr. BRADBURY. Well, that issue certainly is a significant issue, 

and I would look forward, if confirmed, to working closely with the 

Chief Counsel of NHTSA to address whether there is an appropriate tool to bring to bear there or whether some new authority 

may be required. And I certainly would look forward to meeting 

with you and members of this committee to hear your perspective 

on those issues. 

And just to emphasize again, I’ve been in government previously 

and I clearly know the difference between representing a client in 

private practice and representing the United States as an attorney, 

such as in the position of General Counsel, if I am fortunate 

enough to be confirmed by the Senate. So you certainly have my 

pledge that that difference will be very, very important to me, and 

I will not lose sight of it. 

Senator CORTEZ MASTO. Good. I appreciate that. And so one final 

question on a similar track. So then do you think there are additional steps the Department can take to detect the type of behavior 

that Takata engaged in, which is data manipulation and deception, 

before it gets to the crisis stage we are in today? And it may not 

pertain to Takata, maybe the next company or another company 

there that is engaging in that data manipulation and deception, do 

you think there’s a role that you can continue down that path and 

the Department can take to detect it? 

48 

Mr. BRADBURY. Well, I certainly look forward to exploring that 

issue and whether there are things that can be done differently 

perhaps in terms of new regulation. Certainly when there is a—my 

understanding is—and let me just say, through my experience in 

that matter, I gained a great respect for the career attorneys and 

the engineers in NHTSA, I really did. I think very highly of 

NHTSA and my experience with them. And that actually was a significant factor in my decision to pursue this position. I was—— 

Senator CORTEZ MASTO. I’m glad to hear that. And I’m just going 

to cut you off because I don’t have enough time, and I would like 

to get to Ms. Walsh. But I will tell you I respect them as well, and 

they were great partners of mine as Attorney General representing 

the state in working together in public safety issues across this 

country. So thank you for that. 

Ms. Walsh, welcome as well. In Nevada, actually in 2016, there 

are over $10 billion worth of commodities that were sold to the 

international marketplace. So this space is very important for us 

in Nevada. 

So I have a couple of questions when it comes to the foreign direct investment. A significant proportion in Nevada of previous foreign direct investment has come into the areas of renewable energy, which is an important space for us in Nevada, and I think 

we can continue to lead the country here. Unfortunately, the President recently made the decision to pull the United States out of the 

Paris climate agreement, signaling to other companies that the 

United States is no longer prioritizing the fight against climate 

change. Will you commit to continue efforts to increase foreign direct investment in the renewable energy sectors? 

Ms. WALSH. Thank you, Senator, for that question. The renewable energies and the whole foreign direct investment piece is critically important I believe to the Department, certainly to the Secretary, and if confirmed, I commit to absolutely supporting the foreign direct investment in your state of Nevada. 

Senator CORTEZ MASTO. Thank you. And then the President has 

made several statements throughout his campaign and into the 

start of the administration insinuating that certain foreigners are 

not welcome in the United States. Since then, we have seen a number of reports of companies who have chosen to take their business 

elsewhere. As the Director of SelectUSA, how will you promote future investment despite the President’s divisive rhetoric with respect to foreigners? 

Ms. WALSH. Thank you, Senator. Again, I think, if confirmed, I 

would definitely be one to look at all foreign direct investment. It’s 

critically important to our country. I think that whatever the President’s and the Secretary’s direction is, I do feel that we can attract 

foreign direct investment particularly because of the new tax and 

regulation reforms that they are doing. America has a huge consumer population, and has always been the number one attraction 

for foreign investment. 

Senator CORTEZ MASTO. Thank you very much. 

Thank you. 

The CHAIRMAN. Thank you, Senator Masto. 

Senator Sullivan. 

49 

STATEMENT OF HON. DAN SULLIVAN, 

U.S. SENATOR FROM ALASKA 

Senator SULLIVAN. Thank you, Mr. Chair. 

And welcome to the witnesses. I appreciate your desire to serve. 

Mr. Bradbury, I just wanted to follow up on a couple issues that 

first Senator Nelson talked about Takata. So you’re going to fully 

recuse yourself on those issues, correct? 

Mr. BRADBURY. That’s correct. Yes. 

Senator SULLIVAN. OK. So we appreciate that. That’s the right 

thing to do. I think that’s important for all of us to hear. 

This is less likely, but there was a mention of the issue of turning pharmaceutical if there is any issue that, however remote that 

might be, would you recuse yourself on that as well? 

Mr. BRADBURY. Yes. Any private client that might have business 

before the Department of Transportation that I’ve represented, of 

course, any matter I personally handled for a client, I’m recused for 

the rest of my career basically from representing any other client 

in that. And for 2 years under the Executive Order, I would not 

handle any matter in which that former client has a direct and 

substantial interest. So absolutely, yes, but I don’t anticipate any 

pharmaceutical issues coming before the Department. 

Senator SULLIVAN. No, I know, but I think it’s very good to get 

it out there. It’s pretty much your previous clients, and that’s important for all of us to know. So I’m glad you’re so direct on that. 

You know, Senator Cantwell was talking about the interrogation 

issues, and you might get more questions on it, but the Justice Department career attorneys and the Office of Professional Responsibility took a look at all of this afterwards. Obviously, the context 

was very different. 

As you mentioned, we have now passed laws, I voted for laws 

that make it very clear about where our nation is with regard to 

torture and not allowing it. Can you just give me a sense on where 

OPR was and everything in terms of any activities you were involved with? I think that’s also important to hear what the career 

Justice Department officials, their judgment was during—— 

Mr. BRADBURY. Yes. 

Senator SULLIVAN.—which was, let’s face it, after 9/11, it was a 

very, very difficult time. A lot of us were involved in different ways 

on responding to the attack on our Nation and so it would be good 

to hear what they had to say. 

Mr. BRADBURY. Well, thank you, Senator Sullivan. It’s very important, I think. You know, it was a challenging time—— 

Senator SULLIVAN. Yes. 

Mr. BRADBURY.—and the issues were very difficult ones, as I’ve 

stressed. 

Senator SULLIVAN. Yes. 

Mr. BRADBURY. I wasn’t in the Administration in the early days, 

you know, after 9/11, and there were opinions given by the Office 

of Legal Counsel in those early days that, you know, have become 

very famous at this point—— 

Senator SULLIVAN. Right. 

Mr. BRADBURY.—that relied on very expansive interpretations of 

executive power of the United States Commander in Chief. 

Senator SULLIVAN. That you weren’t part of. 

50 

Mr. BRADBURY. I was not in the office then, I did not author 

those opinions. 

Senator SULLIVAN. Yes, that’s important to clarify. 

Mr. BRADBURY. From my perspective, one of the significant initiatives that I took during my time in the Office was to go back 

and review all of those opinions, identify where they were flawed, 

where the invocation of executive power was overly expansive and 

we felt not well supported, and we pulled back. So we withdrew 

those opinions. What I actually was working on, including with respect to all the interrogation-related opinions I did, was to replace 

and supersede those earlier very expansive opinions, which were 

much more narrow-focused opinions where I tried to explain very 

clearly all the factors and focus only on the statutory provisions, 

never relied on the Commander in Chief authority, et cetera. 

Senator SULLIVAN. That’s helpful, and obviously you mentioned 

about Senator McCain and other Members voted on amendments 

within the last couple years. It clarified this under U.S. law. And 

you obviously agree with that because that’s the law, correct? 

Mr. BRADBURY. Oh, absolutely. The law has changed. I think it’s 

a welcomed development for the branches to come together, make 

clear standards that apply across the government, and so the proposals and policies that we had to grapple with back then—— 

Senator SULLIVAN. Are clarified now. 

Mr. BRADBURY.—would not be permitted, many of them would 

not be permitted, today, and I would not anticipate that it would 

require a change in the law. That would require Congress to make 

that happen. 

Senator SULLIVAN. Right. 

Mr. BRADBURY. So it’s completely different. 

Senator SULLIVAN. Let me ask another quick question really of 

both of you, Ms. Walsh as well. A lot of us are focused on infrastructure. I think hopefully we’re going to see an infrastructure 

bill. I’ve also been very focused on the importance of permitting reform, right? The President might want to do a trillion dollar infrastructure, but our permitting system is so broken that it takes 8 

years to permit an airport runway or 6 years to permit a bridge, 

20 years to permit a gold mine in Alaska. I mean, it’s a broken system. 

I’ve gotten commitments from both Secretary Ross and Secretary 

Chao to work with this Committee, where I think you’ll see bipartisan support, on looking at ways that we have to, have to, reform 

a Federal permitting system that doesn’t put people to work. A trillion dollars, half of that will be blown by red tape and lawyers fees 

if we don’t reform our permitting system. 

I’ll be introducing a bill here soon. I’m hoping to get some of my 

Democratic colleagues on a Rebuild America Now Act that reforms 

our Federal permitting system. I just want to get your commitment 

in both of your agencies, in both of your positions, where it’s very 

important that you work with us on trying to address the dysfunctional permitting system that undermines our infrastructure and 

keeps so many hardworking Americans and their families from actually working. 

Can I get both your commitments on that? 

Mr. BRADBURY. Absolutely. I’ll speak for myself, yes. 

51 

Senator SULLIVAN. Ms. Walsh? 

Ms. WALSH. Senator, absolutely. It’s a top priority for the Department of Commerce, and I will definitely commit to working with 

your teams and yourself. 

Senator SULLIVAN. Great. Thank you very much. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Sullivan. 

I would agree that if we can get an infrastructure bill going this 

year that one of the key priorities has to be making sure the dollars that are put into infrastructure are actually going into infrastructure and not into legal fees and a long permitting process. 

So next up is Senator Hassan. 

STATEMENT OF HON. MAGGIE HASSAN, 

U.S. SENATOR FROM NEW HAMPSHIRE 

Senator HASSAN. Well, thank you, Mr. Chair and Ranking Member Nelson. 

And good morning to our witnesses. Thank you both for being 

here, and congratulations on your nominations. 

Mr. Bradbury, I also have concerns about your role in developing 

the justification for enhanced interrogation techniques and what 

many people call torture. I just did hear some of the exchange with 

Senator Sullivan, and what I’ll plan to do is have my office follow 

up with you. 

I want to turn now to the Department of Transportation General 

Counsel’s responsibility for agency regulatory reform. We’ve spent 

some time this year in this committee and in the Committee on 

Homeland Security and Government Affairs on regulatory issues. 

And one of the things that’s come up repeatedly is the issue of how 

to incorporate quantitative factors into a cost-benefit analysis. For 

example, the Department of Transportation’s 2014 rule on backup 

cameras in motor vehicles explicitly takes into account, and this is 

a quote, values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts. 

The 2014 rule takes into account the idea that the pain of harming or killing one’s own small child by backing up over them with 

a car cannot, and this is another quote, fully or adequately be captured in the traditional measure of the value of a statistical life. 

So, Mr. Bradbury, do you agree with that qualitative analysis? 

And as General Counsel, would you continue to take these kinds 

of important qualitative values into account when conducting costbenefit analyses of proposed regulatory changes, including actions 

to change or repeal current rules? 

Mr. BRADBURY. Well, thank you, Senator Hassan. I appreciate 

your focus on these issues. In approaching any regulatory question, 

including whether to reform existing regulations, the number one 

priority from the Department of Transportation perspective is safety. So safety and the effect of the rule on safety and the goal of 

promoting safety has to take precedence, and I think Secretary 

Chao has stressed that. 

In tandem with that is it has to be made clear that we have to 

comply with the law, and any statutory requirements that Congress has provided under the laws that the Department of Transportation enforces, those are mandates that we have to comply 

52 

with. So just because we’re going through an exercise of regulatory 

reform and reviewing regulations doesn’t mean that that process 

trumps a clear requirement of the law. 

So safety and complying with all legal requirements, those are 

the top priorities, and then you can get to the question of, how are 

the costs and benefits balanced? How do they weigh and how do 

you measure them? And I think, you know, I can’t speak for the 

administration, I’m not in the administration yet, I haven’t worked 

on these issues for the Department or the administration. Those 

quantifications, those analyses, there’s a long set of protocols and 

traditions that apply to that that have been brought to bear by administrations of different parties. So there’s consistency in that approach. The Office of Management and Budget and OIRA in particular oversees that. 

Senator HASSAN. Right. 

Mr. BRADBURY. So they review how you calculate things. There 

are hundreds of analysts who are career analysts there who perform that function. Similarly, at a big department like the Department of Transportation there are many analysts and career lawyers and economists who are involved in reviewing that. 

So I would not be in a position to simply come in and say, ‘‘Oh, 

you’ve got to do it completely differently.’’ 

Senator HASSAN. Right. 

Mr. BRADBURY. So I would look to those traditions. I would work 

closely with OMB and obviously I would love to hear your perspective and the perspective of others on this Committee on how to approach those issues. 

Regulatory reform, though, is very important, you know, as—— 

Senator HASSAN. Sure. And I thank you. I’m going to cut you off 

here just because I want to get to one question to Ms. Walsh, but 

I thank you for the answer, and I look forward, if you are confirmed, to continuing this discussion. 

Ms. Walsh, in the month of May, the Export-Import Bank fi- nanced almost $750,000 in exports from my home state of New 

Hampshire. I’m sure that many of my colleagues get similar 

monthly reports for the positive ways in which EXIM is helping 

their constituents. However, the lack of quorum on the bank’s 

board of directors is holding it back from fully supporting our Nation’s businesses. 

Members of this administration, in particular, Secretary Ross, 

have spoken about wanting to dramatically reduce the U.S. trade 

deficit in the world, but one of the administration’s nominees to fill 

out the quorum on the bank’s board, and, in fact, to be its president, has been a strong and outspoken opponent of the bank’s very 

existence. 

Can you explain this contradiction? And if your job will be to promote trade investment and increased market access for U.S. exporters, how will this hinder your ability to do your job, and what 

will you do to fix it? And we’re just about out of time, so we can 

follow up. But if you have a short answer, I would ask for the 

Chair’s indulgence for just a second. 

Ms. WALSH. Thank you, Senator, for that question. Indeed, our 

mission is to focus on exports and FDI. The discussion regarding 

EX-IM Bank is not something at this point that I am able to parVerDate Nov 24 2008 06:50 Jul 25, 2018 Jkt 075679 PO 00000 Frm 00056 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\30769.TXT JACKIE
53 

ticipate in, but if confirmed, it’s certainly something that we would 

look at because, as I mentioned before, we’re looking at the whole 

cycle of success and what it takes to help our companies export 

overseas and really begin to gain more market share. 

Senator HASSAN. Thank you very much. 

The CHAIRMAN. Thank you, Senator Hassan. 

Senator Klobuchar. 

STATEMENT OF HON. AMY KLOBUCHAR, 

U.S. SENATOR FROM MINNESOTA 

Senator KLOBUCHAR. Thank you. Thank you to both of you. 

Ms. Walsh, I enjoyed our meeting. I told you how important the 

U.S. Commercial Service is in my state helping tremendously with 

exports. What ideas do you have to increase the number of companies served, and particularly with a focus on rural companies? 

Ms. WALSH. Thank you, Senator, and thank you for the opportunity to meet with you and your staff yesterday. It was very encouraging meeting, to hear all of the wonderful things going on in 

the State. The Department is focused on really again the exports. 

One of the ways, if confirmed, that we would begin to look at 

how do we help companies better is to look at the way that we’re 

using technology. The Department began to really integrate that 

into the program and training at the Commercial Services on the 

ground, and that also impacts rural companies as well. I think 

looking at the rural companies is a hugely important area that, if 

confirmed, that we would take a closer look at. 

Additionally, I think it’s important, if confirmed, to look at what 

we’re doing for small-and medium-sized enterprises that are 

women-owned as well as minority-owned and veteran-owned; and 

the Department is taking a much closer look at that, and that will 

definitely impact rural companies as well. 

Senator KLOBUCHAR. And that was your background. You’ve done 

a lot of work in that area promoting women and assist them. 

Ms. WALSH. That’s right. 

Senator KLOBUCHAR. What role do you believe overseas offices 

play? We talked about this in promoting U.S. products and getting 

more contracts. I’ve seen other embassies from other countries 

more focused on that, and then oftentimes we can lose out if we 

don’t have that as a major focus in our embassies. 

Ms. WALSH. Thank you, Senator, for that question. From what 

I have heard, if confirmed, I would definitely be looking closer into 

that, but Secretary Ross has made it very clear to the potential 

Ambassador nominees that this is one of the top priorities of the 

administration, and the Commercial Service officers are the person 

on point in the country. They’re there to help pick up the businesses from the United States when they’re export-ready and ensure that they get what they need to gain the market share in the 

country. 

Senator KLOBUCHAR. And as we look at the budget coming up, 

we also discussed this, just the concern that if we make any major 

cuts to Foreign Commercial Service and to the people that are stationed overseas, I think it will have the opposite effect despite, I 

believe, the good work that you want to do. So—— 

54 

Ms. WALSH. Yes, Senator, on that, I have not had access to the 

budget discussions. I have not seen any list, but definitely I would 

work, if confirmed, with the Secretary and the Under Secretary to 

take a close look and analyze not only the numbers, but the success 

and what the posts are able to do at this point. 

Senator KLOBUCHAR. Thank you very much for that answer. 

Mr. Bradbury, welcome. We do a lot of work with transportation 

out of my state, and we’ve had, of course, the bridge collapse and 

other things, and many visits from the various Secretaries. I share 

my colleagues’ concern on the torture issue. We’re actually in Minnesota, we’re the home of the Center for Victims of Torture, and 

I carry the Torture Victims Relief Reauthorization Act every year. 

So I think I’m going to focus on those because some of my other 

colleagues did with some questions on the record for you. 

But I did want to ask you about one issue, Open Skies. You 

know, Open Skies agreements are an important part of our transportation policies under both Democrat and Republican administrations. These agreements provide consumers, carriers, and airports 

with more choice. And I’m concerned, of course, with recent actions 

like Norwegian Air and some of the other countries, UAE, Qatar, 

and how their airlines are undermining our U.S. carriers. And it 

just feels like the opposite of what the President has been talking 

about, but this has been going on before this administration came 

in. So I’m just hoping that this administration will work with us 

to take some action. What can the Department do to ensure American airline workers are not harmed by unfair competition where, 

of course, you have subsidized airlines? And I would suggest you 

look at the recent report that came out on the Qatar airline, which 

shows that they’ve been given the license for the alcohol in the 

country and other things, which are subsidies that would never to 

come to weight on American airlines. 

Mr. BRADBURY. Well, thank you, Senator Klobuchar. And I just 

want to say as an aside I very much appreciate the work you’ve 

done on the antitrust issues in the Judiciary Committee, on the 

Subcommittee on Antitrust, where I think you’ve been very effective. 

Senator KLOBUCHAR. You’re welcome. Thank you. 

Mr. BRADBURY. Just two quick points. One, I certainly appreciate 

and understand the critical importance of Open Skies bilateral 

agreements, the freedom they create for U.S. airlines to compete 

and to gain access to new markets, and the economic engine that 

that is for the United States. 

I have to sound a note of caution. This is another area where I 

have represented clients in private practice and will have recusal 

issues with respect to aviation issues that may affect—in particular, my client has been American Airlines. 

Senator KLOBUCHAR. OK. 

Mr. BRADBURY. So I will certainly look—— 

Senator KLOBUCHAR. That’s better than another client, so—— 

Mr. BRADBURY. Yes. I will certainly look to the advice of the ethics officers, the senior ethics officer, career ethics officer, at the Department of Transportation and follow that advice with respect to 

those issues. 

Senator KLOBUCHAR. All right. 

55 

Mr. BRADBURY. But I appreciate your interest in this. And I 

know it’s a big important issue for the Department. 

Senator KLOBUCHAR. Well, and Secretary Chao told me when she 

was last here that she would be looking into it. 

I know I’ve run out of time, but I did want to note there were 

some families out there in red shirts that are with the families of 

people who died in the Colgan Air crash, and they have been working with me and Captain Sullenberger and others to try to pass a 

bill on hours for freight air. And so I hope that you will look at that 

as well. I’ll put a question and submit it later. 

Mr. BRADBURY. Thank you for your interest in that. I definitely 

will and will enjoy hearing from you on that. 

Senator KLOBUCHAR. Thank you. 

Mr. BRADBURY. I look forward to that. 

Senator KLOBUCHAR. Thank you. 

The CHAIRMAN. Thank you, Senator Klobuchar. 

Senator Duckworth. 

STATEMENT OF HON. TAMMY DUCKWORTH, 

U.S. SENATOR FROM ILLINOIS 

Senator DUCKWORTH. Thank you, Mr. Chairman. 

Mr. Bradbury, I want to discuss your experience at the Department of Justice during the Bush administration and why your authorship of the torture memos not only sunk your nomination to be 

Assistant Attorney General during the prior decade, but made you 

so unacceptable that the then Majority Leader offered to confirm 

84 stalled Bush administration nominees, 84, in exchange for the 

withdrawal of just one nominee, you. That is quite the ransom you 

commanded from your work with the torture memos, that you 

could actually get 84 people nominated just to have your one nomination withdrawn. 

I think it’s clear what the Senators objected to then also remains 

the reason I am strongly opposed to your nomination now, your 

role in crafting the torture memos. You were an architect of the 

legal justification for detainee abuse in the form of waterboarding 

and other forms of torture. In my opinion, that alone should disqualify you for future government service. And while you are nominated to serve at DOT and not at Justice, your willingness to aid 

and abet torture demonstrates a failure of moral and professional 

character that makes you dangerous regardless of which agency 

you serve in. 

If confirmed, it’s your sworn duty and obligation to serve the interests of the American public by providing honest and objective 

legal analysis to the Department and the administration. We would 

rely on your counsel to make sure that DOT employees do not subvert the law, the intent of Congress, or the United States Constitution. And unfortunately, as someone who defended the Constitution 

of the United States for 23 years in uniform, I have no confidence 

that you are capable of carrying out that critical role. 

In fact, based on your work on the torture memo, we know that 

you are more than willing to use torture legal maneuvers very 

much to get around the laws and the Constitution of the United 

States. The public should be alarmed by your history of demVerDate Nov 24 2008 06:50 Jul 25, 2018 Jkt 075679 PO 00000 Frm 00059 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\30769.TXT JACKIE
56 

onstrating complete deference to a President’s policy goals and the 

likelihood of continuing this in the Trump administration. 

Mr. Bradbury, let me just make it clear what you justified. In 

one of the programs you justified, detainees were sleep deprived for 

up to 180 hours, that’s 7–1/2 days; forced into stress positions; 

sometimes shackled to the ceiling; subject to rectal hydration and 

feeding; confined in boxes the size of a small dog crate. CIA personnel conducted mock executions. One man was waterboarded to 

the point that he became completely unresponsive with bubbles rising through his open full mouth. Another man was frozen to death. 

Some of these abuses were authorized; others were not. But brutality, once sanctioned by the likes of you, by the likes of you, is 

not easily contained. 

In 2005, the Senate voted 90 to 9 to enact the Detainee Treatment Act to prohibit cruel, inhuman, or degrading treatment or 

punishment after the Supreme Court decided that terrorism detainees in the U.S. custody were protected by the Geneva Conventions that you found legal loopholes to allow torture to continue. 

Even the DOJ Office of Professional Responsibility criticized you, 

in particular, for uncritical acceptance of the CIA’s representations 

about the torture program. 

In testimony before the Senate Judiciary Committee in 2007, you 

defended the President’s questionable interpretation of the 

Hamdan case where the Supreme Court ruled that President Bush 

did not have the authority to set up military tribunals at 

Guanta ́namo by famously, and I quote, your words, ‘‘The President 

is always right,’’ unquote. This rubberstamp mentality is extremely 

dangerous, especially in the Trump administration regardless of 

where you might serve. 

Let me be clear, Mr. Bradbury, you didn’t make America any 

safer, and you certainly didn’t make the men and women who wore 

the uniform of this great nation any safer; quite the opposite. The 

actions you helped justify put our troops in harm’s way, put our 

diplomats deployed overseas in harm’s way, and you compromised 

our Nation’s very values. 

As a soldier, I was taught the laws of armed conflict, how to handle and treat detainees and prisoners, and the importance of acting 

in accordance with American values. Your actions at DOJ undermined that education. And let me tell you, until you have sat bleeding in a helicopter behind enemy lines like I did, hoping and praying there was an American who came for you, and not the enemy, 

what you did put our men and women who are behind enemy lines 

right today in danger. 

And I don’t care that you say that now you think the laws that 

were passed in response to your actions are great and that you support them, the fact is you lacked the judgment to stand up and say 

what is morally right when pressured by the President of the 

United States, and I’m afraid that you would do again. 

Mr. Chairman, I can’t oppose this nomination strongly enough. 

I yield back. 

The CHAIRMAN. Thank you, Senator Duckworth. 

Mr. Bradbury, do you want to respond? 

Mr. BRADBURY. Can I say a few words? 

The CHAIRMAN. Yes. 

57 

Mr. BRADBURY. I would just like to say a couple of words. 

First, Senator Duckworth, I truly do appreciate the strong feelings that you hold. I share the feelings about the military and the 

potential for actions that may happen to our military personnel 

overseas, and that is a critically important set of issues, and that’s 

one of the reasons why I think Congress made the judgment to 

make the standards the same for the military and for intelligence 

officers in the 2015 NDAA, National Defense Authorization Act. 

That’s sensible, I understand that, and it’s a sea change in the laws 

that we had to grapple with. 

I want to stress that many of the practices that you described 

were not ones that I addressed or had to review in terms of legality, and I never approached the project in terms of attempting to 

justify anything or achieve any policy result. I viewed them as very 

hard questions. If I had my druthers, I wouldn’t have been engaged 

in having to address those issues, but when you serve in an office 

where you’re asked to provide legal advice on the very hardest 

questions, that’s the job, and that is what I did. 

I want to say one thing very important because this has been repeated, and it’s repeated in a couple of the letters, and, Senator, 

you referenced it. The testimony I gave was in 2006. It was before 

the Senate Judiciary Committee when I made the statement, ‘‘The 

President is always right,’’ and unfortunately, it was an ill-considered attempt at humor at the time. I realize it doesn’t look that 

way objectively when you look at the record. It was an attempt to 

be ironic. It was unfortunate. 

I can tell you it’s the last time I will ever testify before Congress 

and try to be funny in that kind of inappropriate way. I testified 

the next day before the House Armed Services Committee, and I 

made that very clear, that I’ve never met anybody who’s always 

right, and this was just probably a thoughtless attempt on my part 

to be jocular and to be humorous. 

I also wrote a letter to Chairman Specter and Ranking Member 

Leahy just two days later after that hearing in July, and that’s 

part of the record for that hearing. There is a copy of the letter, 

which I provided to the Chairman, and I would hope it becomes 

part of the record here because I made it clear there that I did not 

ascribe to the sentiment of that unfortunate statement that I made 

attempting to be funny. What I said was, ‘‘I hope this clarification 

is helpful to the Committee, and I am sorry if my ill-considered attempt at humor caused any concern.’’ And then I stressed—this 

was on July 14, 2006, to Senator Leahy and Specter—‘‘Certainly I 

well understand that an actual belief that the President can never 

be wrong would be wholly inconsistent with my responsibilities as 

a legal advisor to the Executive Branch.’’ It was an unfortunate attempt in response to questions to be funny, and that’s why I sent 

that clarification to try to be clear. 

I viewed so much of the work we did on these fraught national 

security issues during my time in OLC as an attempt really to pull 

back and narrow advice that had been given previously by the Office by predecessors before my time. Even with respect to some of 

the most difficult issues that I think you have addressed, we really 

took an effort to do it in a different way. We didn’t rely on the 

President’s authority under the Constitution, we focused on specific 

58 

statutes. There weren’t a lot of precedents. We used what we 

thought was relevant. We explained all the factors. I put everything in there, so there is nothing left out in terms of what I considered. I truly realize and respect that there are differences of 

views, that these are issues that reasonable people will disagree 

about, and I respect your position on these issues, and I understand it. 

Thank you. 

Senator DUCKWORTH. Mr. Chairman, may I ask your indulgence 

to submit a few items in the record since the witness is doing the 

same? 

The CHAIRMAN. Sure. 

And your letter to Senators Leahy and Specter will be included 

without objection. 

[The information referred to follows:] 

U.S. DEPARTMENT OF JUSTICE

Washington, DC, July 14, 2006 

Hon. ARLEN SPECTER, 

Chairman, 

Committee on the Judiciary, 

United States Senate, 

Washington, DC. 

Hon. PATRICK J. LEAHY, 

Ranking Minority Member, 

Committee on the Judiciary, 

United States Senate, 

Washington, DC. 

Dear Chairman Specter and Senator Leahy: 

I write to clarify one aspect of the testimony I gave before the Committee on Tuesday, July 11, in the hearing addressing the implications of the Supreme Court’s decision in Hamdan v. Rumsfeld. 

Lest there be any doubt or confusion, I wish to make clear to the Committee that 

my statement, ‘‘The president is always right,’’ made in response to a question from 

Senator Leahy, was intended only to be humorous. I clarified this point in my testimony the next day before the House Armed Services Committee, in response to a 

question from Congressman Cooper: 

REP. COOPER: Mr. Bradbury, . . . [y]ou were quoted in the newspaper yesterday as saying that the president is always right. And I hope that’s a misquote 

because I’ve never met an infallible human being yet—— 

MR. BRADBURY: Neither have I, Congressman. 

REP. COOPER:—with the possible exception of the Pope. 

MR BRADBURY: Neither have I, Congressman. I’m glad you brought that up. 

I guess that just shows I shouldn’t try to be humorous when I’m testifying. That 

was a tongue-in-cheek comment. Nobody is always right, and I certainly didn’t 

mean to say that, other than as in humor. 

I hope this clarification is helpful to the Committee, and I am sorry if my ill-considered attempt at humor caused any concern. Certainly, I well understand that an 

actual belief that the President can never be wrong would be wholly inconsistent 

with my responsibilities as a legal adviser to the Executive Branch. 

Sincerely, 

STEVEN. G. BRADBURY, 

Acting Assistant Attorney General. 

Mr. BRADBURY. Thank you, Mr. Chairman. 

Senator DUCKWORTH. Thank you, Mr. Chairman. I would like to 

submit the following documents for the record: the Senate Intelligence Committee’s exhaustive report, which outlines and details 

the CIA’s detention and interrogation program; three separate 

memos from May 2005 that Mr. Bradbury wrote, which provide detailed and explicit legal justifications for 13 specific interrogation 

tactics, including waterboarding, sleep deprivation, cramped confinement, as well as providing new justification for combining 

59 

harsh physical and mental interrogation techniques; a July 2007 

memo from Mr. Bradbury providing legal justification for certain 

enhanced interrogation techniques even after Congress passed the 

Detainee Treatment Act; the Department of Justice Office of Professional Responsibility report examining whether Mr. Bradbury 

and others provided poor legal advice and violated professional 

standards; a letter addressed to members of this committee from 

Retired Marine Corps General Charles Krulak expressing his opposition to this nominee; a letter from 14 other leading human rights 

groups opposing this nominee. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Without objection. 

[The information referred to follows:] 

SENATE SELECT COMMITTEE ON INTELLIGENCE COMMITTEE, STUDY OF THE CENTRAL

INTELLIGENCE AGENCY’S DETENTION AND INTERROGATION PROGRAM

The report ‘‘Senate Select Committee on Intelligence Committee, Study of the 

Central Intelligence Agency’s Detention and Interrogation Program’’ is available at 

http://www.humanrightsfirst.org/uploads/pdfs/torture/sscistudy1.pdf#page=461 

60 


628SECRE1.eps

0000013 

• U.S. Dtpartmeot of 1usti~ 

Office ofJ..egll Cou11$cl 

May 10, 200S 

MEMOilANDUM lOR JOliN A. 1UZZ0 SENIOR DEl'ITIY GllHIJlAL COUNS&L, CEN1'1IAL INTELLIGENCE AGU!CY 

11.<: App/l<ld1I<Mcf 181/.S.C lf1Jt/J.1S~OA IO~'?c111111Jv<>· 

TltotMayS.I.Jsu/ln 1M Tnt~ 'I{ a fflglt VG!vt at Qotd4 0.141nu 

You ltovoulcocl us to tddrao wbolhot oenal~ spooifioclln!~ technique< deslar.ocl to be wed""' high valaeal Qaodo d.Wnoo io tho War90 Tcnw OOfllPlywilb thcfedcnl 

prohibition"" 10rture, codiftoclll IS U.S. C. I§ 2l40.2340A. Ollr aoalysis of this quOJtion ~ 

controlled by this Office's rocendy publishe<l opinlonloterprttill& theiAti•torturo lllllltc. S.< 

Memonndum for JaMes B. Corney, Deputy Attorney Oec1er'IJ. from Daniel tovi:n, Acting Msist1nt Attorney Oenual, Offico oC Leaal Counrel Rc: ugal Stand:uds Appllcvble U11du 18 

U.S. C. §§ JUO-?J~OA (D<c.JO, 2004) ("100~ ugol Starrdi>n4 Ophr/01/'), oval/obit or 

www.usdoj.gov. ~· p<ovidoclo eopy oflllll Oj>lnlon to you u tho time it wu is<ucd.) Mud\ of 

the arulysls from ouz 2004 I.Agal St<Jr1dmds Opl>rlon ls reproduced below, all of it is 

lncorporucd by ref.,.... hmin. Becouso Y"" have all<ocl us to address the Oj)piieotloo of 

soctiou 23•0-2340A to specific latcrro,s.u.ioa cdn!quott the prewrt co.cmonndum ncccsurily 

includes additional dise.mioo of the epplie~bto load modar1ls1Ad tMir QP!ic:otioo 10 potlicular 

facts. We strw, - . llw tho lqalot1Adl1111 wt owly in dU ~ 111< !lilly coasin"" .. 'itlt the ic«rpr-of tho JtiiUto set fonh iA our 1004 L<gal Strmdords Opinion and~ • ..,. au!l>oriloti,. view or the 1qa1 mudl1111 eppllcoble~ ~ 234/J. 

2340"- O..ruti> to~ioalellooseJifJidaniJ ilocde< tousi>tyou laoompl)in$wilbthelaw 

A pm""""" rooopilioo ""'''hasiiAd in ouz1~ IAgaJ 3ttmdords OpiJrJon merits r .. 

emphasis &I the"""" ar:d flllij .. our lll&lysia: Torun is abbomnt both 10 M>erican law lAd values U1~ to ictimauooal norms. The univernl repudiltio:l ofton.ure is reftcctcd not only ila 

Ollr orimiao.lllw, set, t.g., Cl U.S. C. U 234o.:1J-40A, but also in interna~iooal-u,' U. 

' St~ «.J., Un.itcd Nat.ic.Conl'tMiol'l A.-In• Tociwt and Ot.be.t Crvd.,l~ ot Oq;tl~~ TfOIUilcal 

otf\anWwutl.Dcc.lO,ISM.S. n·~~ No.. 100•10,l46SU.N T.i.lS(cntt.~ln.1oto.cctor U.S. No\'.lO. 

I 
61 


628SECRE2.eps

TOP~ o,fR.~ 

cet~turies or A116lo-Ame<iC&Oiaw, ,.... ~g., Iobn H.l.aQPcin, Tortwe orod tht Law •! Prf»!: 

&rop< orod Dog/and;, 1M AnciU1 kgifle (1971) ('"T()riiD'< and the lAw of i'roc/'}, and in tbo 

o~~SS!Wing palicy.ofthc Unl1cd Stal.., rcp<alcdly and r....,ily rcafftnncd by 1hoPrc.idcn1.' 

CoJUillcat wiih these-norms, llle Presidentlw direaod unequivoedl y chat the United Sllles is 

nol to engage in torture.' 

Tltc wlc orintetprdl"8 '"d applylngJtOtlons Zl~O-Z340A is compliatcd by tl>.o laci( of 

precision ia_rfla Jtatu(O(y terou ud the lade o( reScvant UK law, l4 defining die (ec:feal crime o£ 

'tonuro, CongJess («!"ired thota ddendU~l"sp<<f/1<4//y liaf<not}lo lnflictseV<t'< pl>ydul « m«~ttl pain or suffering. .. and Coapeu nanowly dc!ined •a.verc menlll plio Of sutrttiA.g'" to 

mWI "ll>eP<OI<lfl$<d menu! hann uuacd by" tiWmmtcd predicate acu. inc!~ ''tho lhttal of llrriOfnml deal!t" and "pto<educes cdc.~ laud 10 dlwpt prc(wndly the ....., or pcnooallty.• II 

u.s.c. § 2340 (~added). n ... OIINIOIJ requit<mcaU otcCOOii3<eot v.ilh U.S. 

obliptioos wada- til< United Nllioos ec.w..rion ApiOJt Tonure.lh• trOlly lhal abliples IH 

Unl1cd Sllleaoo ,_,..lhat ,..,... is •.,;,.. under U.S. law and lhat is implemec!cd by -ioN 

ll40-2340A. The requlraneau in -1l<I0-1l~OA doJely lndclhound<r"and!op ltld 

·~~ roquirod by the Senate-b pvo he 14-t .. aod- 10 ruifie&!ioa of the 

Coovcnlioll Ap!Ml TOI1Un, lbeyrdleciadear lotonl by~ 10 &millheccopeofthe 

Pfobibilioo OD.IOitote wad"' U.S. law. liowev<t, mlfty of the l:ey Ienos Vsed in the s!allliC (for 

example,·-• "prolooted," •-.tre<iol") ore iruprecito lll6 ..,._...nly bring • dqvee of 

unoertalrity lo addrasrns 1116 ruch of 1001ioN 1'~0.1l•OA. MO<eOV<r, relevatlt judici&l dcdoions ill lllls.,.. PrOvide only li.Uocd plcltnce • This impreoicion and lack ofjudi.Ul 

ll"idanco, coupled widllhe Pr<>idl'lll'• dctr d~cctivo thao the Un~cd St>lca does aot coodo110., 

eng~ge in tortur~ counselgrt.at wo in applyins lhe ttatutc co 'Petifie conduct Wo havo 

. attempted to e.xeceitc s:ucl19arc throughout this mc.mol"lftdum. 

Wilb tbesc tonsickntions in mind, we tum to the p~rticular que:stiori. before vs: whe1her 

cenain spe:c;fied interroplion tecMiqyc1 rn.ay bt us«! by the Central lntclligcnc.e Agency 

("Ciil."} on a'bigb value al Qacdt dCUinee eotUIII<nl wbh the federal stUUIO<Y Jlfobibilion on 

1"4l!"Q<-ADiastT-w"CA'I");~O>owllooCMu.!_.~Oa:.l~ 

1966, ul-1, 999U.H.T..S.I71. • 

'$u,~---Uolce4--Doylo~oCViaiaosoCT.._<Ow..., 

"'"'JJJ Do<cJI61~J.200<)rv-a..-baa_.,.* ··:');-• UMt.dlob&.t~n.,ln~otVkdi..CT4Iftllft. ,, Wed:f)to-p. ~Doe.O-'(~W. 

~ 

lOOl)("l'comR~bD_IO_dipllr.....,........,,M Ou-<{7'-JIIM<l4~ .. ,.,.. s.-.(Mq:tt,ltal.,.~• /'t?adoo/f/S..~AoWSJM" 

fliniifd"' lit (:(ICi;lid'"JtijiNI lii'fWi iilttJtN:rOW Pr Dij'iiit.ilij lra&itMii Niillftiili( S: 

n...,. Doc. No. tco.:.o, "u (I nil ("l<ollfacodoooCIIac eo.-.. "'"" UN!<4 Su<es ,.;u <~w~r"""" Vnlic:c4StllCSopposieioa40CMJR;aa•~WII~kftC.e....wcttdt~1 "'). 

1 Su . ..,,<OWeoi:I)'C..I'r,..Deuo 1161-6t(""""""IWidsapiAJI >o4·•111MUeler,. ton~ . . .. Toctuteis Wl'OfiC 110 MaRU ~ iloccwn. and Ole Uftllt4 9:atH'Yrlilt CONimK to I""~ the.~ to 

e.Um.iN.t~ itc~t;re.. 1. 

• W'!~jodiei.-1 (Ui4&nce IJlcrc is coma from 4ccbloo.t 11\*llf!Pb' t rcbt«l bu' s:pmw. at.Mc (lho TOI'Iwc 

Vl<llms Pracetlioo ACI ("TVPA"), ll U.S.C.fll!O •Ole QOCIO)). The!< jll<llclaloplnleu ~ly """"' Ulll&IC 1nJ aOJI)'Sb of $1«ili<<004UC< 0< oCIM o:IMt< .. .,<01\' rt.ltl4...._ 

TOP~···iN·~RN 
62 


628SECRE3.eps

. TO~· . <)P6'RN 

lOrtutt, II U.S.C. §§ n•0.2l-40A.1 Fer Cl:e ,_ dbcwsed below, and twed co the 

~.., hne I«Clved &om you (or ollicbls cf)'OU< A&-1) about tloo palticulu 

toc:hniqueo in qu<Otioo, tbeciRu-in wbidl tii<J ~llllf>orired for ...,and the pbysieal 

and psyeboqicol usessmems ~mde oflhe~ettioee to bo im""'&lled. ""oonclode lhulhe 

•ep.,.to alllhorizod u.oe of ... h of tho spooifio tecltnlqucut ime, subjeci to the limhationund 

sofcs_uards described herein, would not vior.ttse<dons 2J40~40A' Our oonolu>i<ln is 

ltrlightforw>rd with respeotto all but two of the ted!oiqucs di$<us~td h<tein. As disou....S 

below, wc of o!up dcpriYIIloa u 10 cnblnced todln!que tod useo!lk wu"board iavclvt 

mote su~ quatiocl>, with d>t .. -.~crboelis ~ tte most subiWitial question. 

Wo bloc our ooaelusiou on the sttlu1ory llllCI'a,eeoac•cd by CoaarciS in socaiocs 2J.O. 23.0A. Wedonocrely on 11\Y oocuidcr"tlion oflheP...,.dont'sauthorityuConunanderinCIIlef under tbe CoMtiMioJI, any application oflho p~nc:lple ofcoostitutioml avoidanoc (or sny conclt.ulon about oonslitutionallssuea), or aoy argumentS bated on pos.sit>Jo clofons~ ot .. necashy" cr JCtt~cfMn .. ' 
63 


628SECRE4.eps

ro~ ¢'RN 

t 

toIn asking U$ to COIUJdct dcr1aln .pedflc tedlnlqUCf tO be u$Cd in lhc interrogaion Ol I 

pattic:ul&r at Qa«J. op<rl!ive, you b>vt provided ba<ksround lnfo1111oti0<1 eonyr.on to the us• of 

all ofthctedlnlques. You h>ve advised tbat lhuctcd\olquuwould btUS«j only on an 

individual who is detcnnin<d to be a "High Votue 0.11inoe, • defined u: • 

a decline( who, until dme ot apcure. we havo. reuon to believe: (1) is.& sea.ior 

member of al-Qai'do orac ai-Qai'do auocblcd t<n'oris< 8IOUP (Jemuh 

bl&miyyah, ~ lsl>miclihod, al-Zotqowi Group, do.); (2) bu tcno..!edge 

ol'immincottenarUI tlruu opiiUI lhc USA, iu milituy !01«1, iU citi=s and 

«sao~« ils ollica; ocdltt h.uilud dlru< IIM>Iv..,..tio,pi....U.S llld pr.,.m,g taroris< """""'tpln11 tha USA oclu ollia, or amsti"i lhc al-Qai'dt lud<rs!Up io pii>OIIioallld pte90ring ..a tcnocill u6om; and (3) if re:wed, 

oo:utitvtcs a dcas ar.d OC>Oiitluin8 WCOIIO tile USA «its a!liu. 

Fax 

1111.11111111 

rgr P'PW Is;"- Actioa Assi .... t All«ney Genenl, Ollicc of Legal C....r.se!, ~ 

.tSiSiant G<neral C....Osol, CIA, ot) (JIG. 4, 200S} (" JOIIII<OI)'(_.Ox"). 

For oonv<oience, below we will SCll<nlly refer to ou<b individuals cimply u detainees. 

You have &I><> explained that, prior to lntenosatlon, eaoh detainee is evaluated by 

medical ond psy<hotogical profbssionalc ftom the CIA' I Office of Modica! Servi<:<s '("OMS") to 

ensure tbat he i.s not likely to suffer any severo physical or mental pUn or suffering as a rC:S\IIt or inturogttion. · 

(T)ecruiiqu .. spccific advaccod approval iJ requited for all "enhmeod" m<a.MC$ 

and iJwnditlonaJ on On•site mcdi.cal and psyc.bolo&i«l personnel wnfirmiag 

from diteot detainee ex&rni!Ulion that the ..W.oced techniquo(s) is cot c><PCcted to 

produce ._ere physical or montal pain or sulrtrin;. J As a pncti<OI motler, tile 

d<t&W6's physical cooditioc nul be oueb that lhao iot..-tions wiU not have 

~ tlfea, llld hiJ psychctoaieal """ sooaa tliOII8h thai co ....,. psy<bolosialb>tm wiH reault. 

O..;;c;:id;t;,;...,M~....t rttrd I'~C<Jl $wpj,on r•.D<rafl><i ~ ln:urogoJ""' tmd !Htmt""' ot 9 (Dec:.. 7004) \()MS O.kklmd') (f-• omitted). New ddlinccs are ti>O 

-----<!UbjOOitoaeoa~ ior~VIIiRa~ch-l.....,.....~itiol-modica.l-u>IO..,...,m.,oocil----­

•.. withe complete, documented IWtory and physicalad4ressinz in depth any cbtocic or 

previou• medig.l problems. Tbi1 usessment Jhould upce;tlly altencf to catcfio-vurul&r, 

pulmonary, neurological and musculoskeletal Oodinas .• .• Vitolsians and "'eight should be 

rocordcd,·ar.d blood ~ric drawn . . . . " /d. u 6. In tddl1ion, ••JUbs~uent medical rechecb 

durin& the interrogAtion period' ~hoo d ~ perfOrmed on a r•evlar ba•is... TJ. A$ ar~ add.itloa.al 

precaution. an4 to ensure lheobjec.tlvity oftboir mod~ a,nd psyehotogica1 assessments.. OMS 

personnel do not pattielpate in adminbtuing interrogaion technlquC$; their function is to 

monitor inteno~ions aod the health of the detainee. 

T~--IN!)i'6"w 
64 


628SECRE5.eps

TO~/ ¥RN 

The detainee is then intervtcwed by tra.inod aod'oertifie<l interrogators to d~ermine 

whether be is actively attempting lO withhold or distort information. If so,th< on·$Cell• · 

inttlll>gation team deyclops an interrogation plan. whieb may inelude only tho~ techniques foe 

which thet< is no p>edical or psychological eonltilndleallon. You bave·informcd us that the 

initial OMS ututmen~.c h.tw-ruled out th~ us-e ofsomo---<X" all--oftM int.errog_.ation tochnique-s 

as to eertalc dccalnees. ·It the plan .. us for tho we ofany of the interrogation techniques 

disamed herein, it is submitted to CIA Headquarten, which must review the plan and approve the use oftny of these befoce they m~.y 'S.e George!. 

28, 2003) 

DCI Counterterrorist thecoilou~oftheCitie( CTCLega!Oroup," isroquircd ll>rtheuseohny 

enlianccd intem>gotioo techniques. /d. Wt undmtllld that,.., to the detalcee here. tbis wri«eA 

approval h&S been given for e&eb orthe techniques..., discu$$, <JCcept the wele<board. 

we undtt'Sland ch3t. when approved, 1nterrogalk)n tedt.nique$ are generally ustd i.n tn 

escalating fuhion. with milder t~iqu~ uw! fint. Uie ofthG technique& i.s not ool\tinu0<1s. 

Rt.U1er, OM or mor~ cedlniques may be applied-durin& or \lctween inturog.a~ion SCM.ion.sb~sed on the.Judgment oftl<.c interrogaton and other twn member• tnd oubj~ always to tlle 

mon~oriog ofthe ·~·scene rn~icoland psydiologico.l penonnol. Use ofth.c teehoiques 1111y be 

t<mtioued If the detainee is stU! believed to O.vo and fo be withholdillg tetion&blo illtOII_Ig-.. 

Tho we of those techniques may not be condnued for more t~ 30 d•ys witbout additio1141 ~pproval from CIA Headqutrten. S<• g.t~<rollylnloyog<~tiO<J Guldellnu at 1·2 (desoribing 

· · approval pcoetdures required for use of cnhanoocllntrnogation tQCI\niqu~). Moreover, C\'eo 

within that 30-di.y period, any Nrtbec we orUl'OSC interrogation techniques is d.iscontittiJed if the 

det•in« is judged to be consistently providil\g tuur.te in•elligenoe or if,he is no l-onger believed~ 

to have acaionable intelHgeoec. Tbb memorondum eddrenes th~ Uie ofthest. techniques dvrin,g 

no ntore than one 30..day period. \Vedo not Jddress: wllethu the use oftio.esG techniques beyond 

the initial 30·day puiod would violatethes\&tuto. 

Medieolaod ply~hologicol penonnel are on-scene thtollghout (and, u dctailod below, 

physieaU)· prcunt or othetwisc obsecving during the appli~tion of many techniquos1 including 

all techniques involv)og physical oonttet with detainees), ond "(d]•Uy phy~"' and 

psychologic:>levaluations o.re nontiilued thcoogh01.1t tho period of[enhtnccd intetrogttion 

t~S<:" IG Rqxm at 30 n.J~;JU DlS<J Geotge1. Tenet, Direo<or ofCentrol Tntell($enee, 

Gul<klinu 0<1 C011jinem<Jtl Col•dllfons for CIA D<tointu, at 1 (Jan. 28, 2003) \'Confin<mmt 

· · edi •• a ro riate cllol 'cal sonnel s!WI be physicolly P""nt 

at, orreasooably availableto, eech Detention Facility. Medic.. personne 1 c 

physjca_l eonditioo of each detainee at intervaJs.appcopriatc to the ciroumsttnces and shall ~eep 

a.pproprlate records,"'); 10 Rfport tt 28·'2.9.' In additi~ "Pln each interrogatiqn Se$SiOn ln 

which i.n Enhanced Technique is employed, a contemporaneous record shall be c:tetted set~tl@ 

fonh the nature 111<1 duration or each such teebniqu~ e:nployed." ltuwogallon (iuldelinos at l. 

' 111 tddftlooto mooltorlnc lhe apptl~oaud Caws ot eMam:t:d Utturo,a;toa (cdiD!q-Jcs. OMS persoMd art irtslslldod mort 'eootil)' io ~ Nt "(t]~tt medl<&l c:are sh:lll be provided to dctain«:s. cve.'l 

llme undtf~ eaN!K:ed Wmopdocl. .. OMS G~ltf.tlfnn •~ 10. 

TO~--IN~RN 
65 


628SECRE6.eps

AI any time, any on-scene pcnoMd (inclll<liiiS the medical or psyobo!oJPcol personnel, the cbie! 

of bu .. substaruiVe experts, security omcen, ""'ocher iotcrropiOrs)""' intmene to stop lbc 

... or Illy tedlnique if it appwt'that the technique Ia beill6 used improperly, and on-sccne 

medical pei'>Onntl an intOf\'CRe iftht detalnoo has dove lop«! a <011ditioit mtl:fng the use oftl\0 ltehniqu• un.safo. Moro soncro.lly, mocfiotlJtUJOnncl ~ch (or ,;an, ofphy.Ji.olll di~ or 

mental harm so significant as possibly to amount to the •,.v.r• phY.Iical or ,meatil pain or 

suffering" that is prohibited by sec:tioN 23~0.~40A. AI tbe OMS Gflldelinu explain, 

"(m]odical .m ..... must remsin ooaruuntll Ill times oftbelr obtigation to pre""" 'severe physical or mcocal palo or suffering.'" OMS Gflfd<lintl at I 0. Additiollsl resuietlons on cuttin 

tothniqucs are described below. 

lbeA ~ hlYc all beetlimPQ11ed from miJitarySuMnl, &.'Uior, RtsiBscopc(''SERF')trtinin~ ""-tbor ~ .... been used r ... ,..... .. u.s. mt1iwy -·~ altboup wid> so:ite oJgoifiouc dilT'etcoccs described below. S.•IG !Wpcrtot B-14, Altbeup "'"'refer to tho SERB cxpcricoce below, ..-. QO(ell the owet u importlllllimltalion oo rdiu!ce 

Oil mat c:xpcrieoec. lodividuwundersolna SEIU!trllnioaaroobviowlyin a very4ift'erent 

oJI\Iation from d-undqcina lot~ Sll1U! trainees know it is part of • ttaiaioc JI"Ogr&m. not a rul~ifb intorroplon rcpmo, tlloy presumably know it wiU lut only a sbott time, 

and they presumably hne usunnees that they will not be lignifloantly bumt4 by che trairin&-

D. 

You have described the spceifie ce<Miquellt lssu• u fbUow~:' 
66 


628SECRE7.eps

TO~l ·,t!UI I. Di<tmi ~- nr; reclmiqu< ~'<Sihc suhsliMioo of(I()Cr.merdal fictuid 

meal rtplac:eme~~u for nonnal food, presamnc drulnocs ~~~~ • bland, unappt1i%ing. tr.rt 

11111ritiON!Iy 

malcel ocher rcdtnlque#, 

oorrljlletodlcl 

IUeh" 

You 

fle<

h&veinformodus 

p deprivation, mono 

lharlhoC!Abdie•oadiewy 

effective. S.• August15

~ 

- ·L<It<r 114. Decainw on dietary manipulation lie petmlired u qWCh Wlll<r u IIley wan~ In 

gen«1l, minimum dally Ouid &lid n~~lrillo.W roqulrements m C#timared u.sins lhe followins formula: 

• Fluid ~iremotc 1S mlf.qVc!ay. This ,.,.., be inct=od clcpeDdinc on lllll>icot 

temperacuo, body ltmpemure. and lOYd ofiCtMiy Medical offi= must mo.U19r 

fluid intalc., and altbougll decline<~ are allowed u much water ull>ey W>nt, 

monitorins ofurin.o optput may 1» ncctuary fn tbe unlikely event that tho officers 

SU$p<d that the detllncc is l»oomlns dehydtllcd. • 

• Calorie requlrtmeol: The CIA senetaJly lbllows .. I suiddi••. calcrie ""~""-"~ 

of900kuVd&y+ IOicc&l'k&'day. Thiscputiityisa:ulliplledby I.HonsedeaUr( 

.amty level or t.4'for 1 mod...,eiCtivitylevel Reptdlwo!lllis foonula,lhc 

recommended mlni11111m e.alorio int&b Is \SOO k<ol/day, ud in no event is the 

deuinee allowed to recei\'cl .. s lluo 1000 kcaVday,

10 Calori<J ate provided u~ns 

comomelalllquld diel$ (aueb ul!nlu(e Plus), whieb also oupply other e.seotial 

nutrieou 1114 mako for nlllritiooally corrljlfctc mw~" 

Mediw officers are reqvirtd 10 awrc ..S<qlllle ftuid wlnulritioiW iotalce, and fnquent 

medical moai~og lakes pi-w!zilo any deulnec iJ uodersoiog d1eury .,...;pulaticm. All 

de<alnus ~weigllod woelcly, and in tbeunliildy .,....L'w adctalooa-otoloscmorclhln 10 

petC0011 of ltiJ body wcisht, ;be r..vietcd ditl Wollld be disoonti1111cd. • 

2. Nudity. Thls todtnlque b u.scd to cause psychologicol diS<Omtb11, pattic:ulady if• 

detainee, for cultural or ocher r.....,,;, <>pcefally modeol. Wheo tbetocb.•ique is Orrljllpyod, 

clothins ..,.,. providod "an U.sun1 rewa!<! ror coopcn!ioo. DuMa and bet-• ~ion 

&CUions, a deW!~ .. may be kept nude. pnmd..S diu ambleattOII:ji<Rtur• and the bcollh ottbe de<alnce pet'\lliL For this t<Oniqueto be ....,..yod. azlliall ~et&t~.UC 1111111» &!leal( 61'1'" 

No aexual abuse or thruts or ,_al.abus .. ro pcnnittod. Althou&b - dete:~tlon eelf hu!ull· 

tim~f'!'Uil video monhorin.s, ,the deJ1lneels not lotentio<Wiy exposod toot~ dt!alnoes 

or unQiiJy e<Jioied to tWo detention !Ocility starr Wcuodcrslaod ibafintenvgotors "aretroinr4 to 

'

11 i\dshltc:cAuknqJI:tWCiJtilUJti;OitCIXpiStlill}tmQt'b::Q:Idcultiec:s: 

II l'<loh-M,«<IOdi<OII)'~>IiooU<~""""'di(l'ucallJf!ol:oioo:<-wlto 

mllllrityaipc<il>-1ldjlil"""~,.."*lhif~#all.Ue~wdll>lolou _.in lit< \boiled SIMes cq>loy.Scu .c 10031t&i/4.1rf«-p:riocS(ohwbor tooca'""'"" ,.l:ri~ l"nn'Sc:al ~ \\')&we 4o rd cqult C~:~CJUDUdal \ll'cipUns pcopam~III\IS (his illlaNplito todu\.lquc1 0x.hcteh1t tbc.Jcc.a)oric,e.T't-lfUC. ~(A 1M ~¥tl~t.J.oss programs, iJI 0U1 ¥1tflf, ll b,.'iJ'Ortiyre io 

nalu61lna:lllcmodieal ta/¢1)' ofthc·~Alctro&<Jtioa: I«MJ!t*' 

u YouhlveW tti.s'"'el}'l:aUk!J)'Illai.....S C,WGiddk~cdtldkri~ belo.,,,.,, StcQc:'ld.hrl t!u at L foc~orw~~ftt.wc.•i!lii$SI;IIIC.t);lt 

ul>ltftt_..mayboas 116S'F. 
67 


628SECRE8.eps

( . ro7a.zrt ~>.N 

• 

inn~eado or aoy acts of implicit oc ""Plioit =a! degrad!tion." Octob<; 11 

lu .i 2. Nevenheless, interrog!tors can exploit tbed«ainoe's fwofbeing seen • ddition, female officeit involved in the intetrOga~on prOcel! may su l~ detaioees 

naked; and for purposes oi our &nalysis, we will usumelhit detainees !'lbjoctod to oudity es an · 

interrogation technique m aware tliatthey nay be ~o naked by fenales. 

3. Attention grwp. Thi> technique ooruists of ampina the individuo.l wi.th both Jwxi.s, ooe hand on uchsidooftbeooUa.ropening, i.n a cootroBed and quiekmorion. In tJieu.mc 

motion as ihe grasp, the iodividualls dtawn toward the intem>gator. 

4. Walling. Thisttcliolque nv<>lvestheuseof•Oexibl~. fal$ewall. Theiodividualis 

placed with his heels toucbll\8 tho O<Xiblo wall. The interrogator pulls~· individual forw11d 

and thee quiekly aod firmly pushes tlie individual into the wall. ·[tis the Individual'• !boulder 

blades th•t hit the"''"· Durillg this moti011, the bead ~ neek.are supported "ith a roUed hood «towel that provides a C.coUar effet4 tQ b~p prevent whiplash. To reduee!urthor che ri$\; of 

injury. tbe individual is allowed to rebound from the ilelCI'blo waU. You have inf'onned u' that 

ibe false wall is aiSQ constNCCed to auto aloud ~Qi!e.'vl>M thelrujividual hits it in order to 

increase.the shock or IO!tprise Of the teebnlque. We Wld~ttnd that Walling may be used wllea 

the detainee is unoooperuive or unrC$ponsive to qu0$tions from inttriogatol"$.. Depending on the 

eXtent of the detainee's la.ckofeoopcntion. b~ maybev.'l.lle4 oat tim~dud ng an inteaogabon • 

session.(one lmMct witb the w.tl) ot """l' limes (pcchips lO or 30 times) eogso;;utively •. We 

understand that this technique b not desigr.ed to, and does not. eause. severe pain, even wMo 

used repettedly as you have described. Rather, it is designed to wear down the d«tlneoand to 

sboek or ~rprise the dettinee and alter his e~ons about tho treatmem he believes be will 

· receive. In particular, we speeifica!ly uodctstand tbot the, repetitive use of the waUing tc<Mique 

is intended. to contribute to the shoclc and dntma of'lh&experithce, 10 dispe.l:t. detainee's 

e.tpectations that icterrogators wUI not use lncres.sing livels offo~ and to wear da.wn hb r~stance. IL is not intended LO-e.:ld based on exPerience you hive informed us dt3t ir does 

not~nnict !.flY injury or' c:aus.o-ae'ierc p:t.in. Mediad Jod psyc.hologital ~OMel are physicaUy 

present or otherwise observing whe~,~eyer thi$ teebnique. is applied (as they &r~ With a.ny · interrogation tcehnlque in\'Qtving physieil eoot.ct with t~e detliri«). 

S. Facial hold. This technique is used to bold the head immobile during inturog~ion. 

Oho open palm is placed on either side of the individual's r.ce. Th• fingertips are ktpt well 

away from the lru!ividual's eyes. 

"""'6:Paeial slap 'Or fnsvlr •laP. With tl\is teciuiique, the interrogator·slaps the individaal;s 

face with fingers slightly spretd. 11•• hand mal<es oont<ot with tbe ,,.. directly b«we<n the tip ~-----..,-. <>!f.lb,..ind~<HO~-..f-tl~nding-eo-.1».-'1'11~0<-lh .. uo._ _ __ _ 

"invades'' the individual's "pcc>OiUI spaoe." We utl(lersund '!bat the goal of the facial slap is not 

to inllie1 physi~ pJin th.t! is severo orlaliing. lnstud,·thc pvrpo .. Qfdlef>cial slop is to loduce 

s~ek, S\ltpnse, or humiliation. Mediealand psyehological pe:.onnclare.Jll\ysically pr,.cot or 

otherwi.sa observi£18 whenever this technique~~ applied. 

1, Abdominal slc:p. In this tcehniq ~ the interrog&!or strikes lhe ~bdomen of the 

delainee with I he back of his open hand. Theinturogator mull have no ring• or other jewelry on 

TOP~~· ••or 
68 


628SECRE9.eps

~RN 

M fwld. Tile iiJCcrrogal« U position<d di:ocdy m bit o( ~ ~ ~0111!7 DO DXIIC thaA II indio$ from the dei.U.ce. Wnb hi• fiop• hold tiaJtdy topher aJld Mly e<teoded, aJld ,.itlo 

his palm toward the intcrroptor's owo body, wlos his tlbow as a fixed pivot poin~ the • 

in!enogator slaps tht. detainee in dte deltinee1

s abdomen. The intetrOplor may not use a fist • .,4 the olap must be delivered above the MYel and below tho stemum. This technique is used to <0<1ditlon a detainee to pay ane~~~loato theloterropto<'s queotions and to d(slodge expe<:<odoas 

thai the dcttlnee will DOt be IIMIChod. It is oot Intended te>-end baJOCI on experience you have 

~ 

iAfonr.od w t1aat ~does aot-inllia uy injory or cousc Ill)' !ignifiQlll poia. Medial ml 

penoond are pbyliwly ptcstetO< o<ber<.iseobsezviaa "-this t«<miqvt io applied. 

. 8. Cramp.d conjlnrmflll. This ttdlniquo lnvolvt$ plaeios tho lndlvlduol in, a confined 

spaco, lho dimen.siocs Ofwf\ld\ remict the iDdivldua.l's movemeot. The confined sptce is 

usually doric. The duritl.>n o{ e<>nfmemcot variu based upoa the size of tho comlincr. For the 

lqor «>nfined apace, the Uldivlclual C&ll <llod up Or sit down; the &ouller opau isi&.'B• """""' for the &Ubj«t lo'oit down. Coofieement m the llfp 'P"'C auy lut oo _. th&llt boun at • 

ti11c for ao mwo thin II bourl a dly; foe the smaller "''"• ~~~~ auy lut no mare !ban two hourJ. Umits on tbo dw-&don of cramped con1loemeuf a.re based on ~nsidc:ntions cftho 

dtC&lnee't aizo and weipt, how he respond's to the technique, and oontinuioa: consult.a(ion 

between the interiogators and OMS officer$." • 

9. Wall sl4ndlng. ThiJ tecbniquc is used only"' induce temporary musdo fWS<J<. The 

lo4ivldual •uids obcM fllur to five feet from a wal~ 1ritb bis fett sp<tad apprnxim&tely to 

&boul4ct width. His""" are slrdehod out lnllool o( hi"" with hisl\os<n tuins on the nil &114 oul'1'0f1lns his body wel&ht. Tl:e irAividual u 001 pe:miUed to ,_.or repositioa bisiwld• 

or feet. 

10. St:rt.Jsposflionr. Tberc~thrc~strcs.t position$ that m•ybe.used. You have 

Informed uslbat th.,c posilions oto not<l«iancd to ptodu<» tho pain usoeloted with contortioos or twi>tln& of the body. !Wh<r, like wall u..dlne, d\oy are designed to pnlduec the-ph}'ti<ol 

di$<0<1\fon usc<i&kd with l<mporuy ltllldel'itlp. Tl:e thrte llless positions ote (I) siltit~~o• 

the floor .,ilh l<go cxtcodcd suatabt ""'ia &oct &114 """' railed above the hud. (2) lmeeli.oa oo 

tho Ooor~elwing b&ct 11 J~Sdeg~..p. uwl(J)t...Unsap.iosta wallgenenUy about 

lhr9e..fut~•Y from the dcllince's feet, with ooly the detainee'• ho&d toudlin& the ""al~ v.ilile hls'Wl'!ru' il'oliandcumd io &cmt of him or·Sehlnd bis b&ek, a.nd w~ile eo Interrogator atan4s 

next to hlm t'o prevent inJury ir!>e lose. hi• balance. A> with wall slondlns, we undcntand thll 01yo po;lHoor are used pnly to jndva CMJIUQCY musdc Cttjgu 

ll. Waurdousing. C<>td W&tu is pbored ottthec!<Wncc either 8omaCO<'JJiau«from 

a hose witl:out a noule. Thi1 ud!niqo,e is bteod<d to wtalcm thedt11iAee's rcsUuooeml 

ponuado him to e<>opcn.te v.ith interroga\Ors. The wtter pouccd 'on t~ deuinee must bo potable. 

,, tn /lftcrrrteoliOtt ~dum, we a.l'-0 acldrtuod Chc U$C Octwmleu {MCCrJ pboed iA a ~OCIM'IIl 

box aMOOQCtudccl ~rc d"'oot ~ek.&hestaCK.. We uncknWd !kat- Cor reasouUtdatod lO ~eoCXt.tA \Nr ltoolcJOvtoWo<ll<-..--4oo<lA-OS<dtb>t~aaolb>smnowdltr-INtia.C.-u...l 

........... ~~.wdoOO(adi..,..lacalat.... 
69 


628SECRE10.eps

·. 

ro~t11 --rrojO'RN 

llld th<lnterrogatoo D1Uit eM~re thal Wiler docs not enter the d«eincc's no ... mouth, or eyes. 

A ntedioal oOloer must ob$cM llld monitor 1M d<teincc thtousl>o<n owuettion of this 

ttd!nl'l"e. lncludlng for sip of bypotli<nniL Ambient t-blrcs IIIU$I r<tll&in abcvc ~'I'. If !he ~islyillacn tbolloor, bis bwllsto...,..;, '..niul, IJid apood>o,ID&I. orotbor 

maurial mwt be plaoed bet<.= him llld chc lloor co mioimiu tho less of body btU. At tile 

conclusion of the water dousing s .. slon. the d<ltinee muse be moved to a healed room if . n~my co penilit his body tcmpenture to return to oonnal in a utb mlllll«. l"o wure 111 

adequarenwsinof..C<Iy, chemaxill!lltll p<fiod of tin)< Chat a dotalocomay bepcrmincd to remain- bas been l<lll ~ lhe time It wllidl, buccl cn <~teo~sive ....sioallil<t'IMo ·IJid ._;.-. llypodl<mit<OU!l! be expected to dC'Idop U.laotlllly iMM<b&ls .,.....,. 

S'Jbm"'Sed lo wmc of the ..,..cernpcmur.. For example. Ia emplcyins tbis tcdtoiqo.lo: 

• For water tempeBture of 419 F, tota.l dur&tion of expoNtc may 001 exceed 20 minutes 

without drylna and rewullliaa. 

• Forwatcttemp<niUtcofSO>F, to<aldlntioaof~ruy!IOI ..-d •o t:liout<$ 

without dJyina led~~ ... 

Forwtt.cr tempetatuic o!S9•P, total duration or exposure may not cxceod 60 rninutes without dryina and rewarming. 

The mioio:uao pct111Wibl• t.._..twc of the wttor usoc1 Ia ....,., dousiaats 41'F. thouall you have inf«mcrr us dw in prudcc the wmr t<mp<ntute is s-nJiy 1101 below so-F, 

since lip wll..-nlher than remgtntcd water Is sentrally used. We undcntllld thtt ••crsial of wattr dou.5ing routinely JJ.se<l in SERE tn.ioins it much more extreme ln that it involves ~plete lmmcflion oflhc individual in oold water(wbcro wttcrt""f'f'turcs may be below 40'P) &lid is usually porf'ormed outdoor• where·ambicne. &it temperatures may be u low.., tO' f. Thus, tfte SI!RB ltlinins vcnlon inYOivu a far geuer impactoc body tcmporllllU; SE!\1! !raining &!so 

involvca a tiruttioo wb.cre lht water may enter tht U'lin--e's DOK a.o:l moutA.u 

You hive .Jso cJetor)bcd a V1ri&tion of Wiler dou$iq iavoh·ll\8 mutb smallet quancitle~ of water, this vuiation is known as "'!1Jclclng.'' FUcking oCwlter Ia athlev6d by tho 1i1tcrrogator .;..euina hi$ fingustnd then nicking them at tht detainee, propelling dc091ds 11th< deceinee. 

Flieldna of w•rct is doco "in an effon to e<eate a dimi.cting dfect, to •• 11110. to 

~in 

irritate. to in$llll bumiliotloa. or to eausc tmporary buult • 0<14bcr 11 ncr atl 

the 'llli<l:ioa" vuiatioo o[Wilerd~ &!so 1111Jt.be pan to4 withio the VIJ.tcr and 110blcnt U l<mpCrll .... r>ng .. COf .... ter dOIIling desoribcd.abovt. AJthoup wa:er 

may be nielced into tho dcttlncc's f&r» with thlr varittion, tho Olclcina ofwattr 11 all times is 

done in sucb a manner u to avotd the Inhalation or lngesuon otwafu by che d-etainee. ;s, rd 

10 
70 


628SECRE11.eps

~"•OM euc •• 00.1 • 

TOP ~RN 

lZ. Sl<ep deprivation (m<>"< rborr ~~ J:wn). This teelu>ique <objects • dettinecto .. , 

extended period wilhout sleep. You ha~ lnfonned us that the primll!}' JlU!1lO$C of chis teollniquo 

is to weaken the subjec:l and wear down his rulsoanco. 

The primary mc.thcd of tiHp d•ptivatlon lnvolv-. IJ1e uno( ~cldin8 to k~ ~ 

dettince aw.kc. In tiU> method, tho detainee Is standing tnd b land"'!T<d, and U~ lwldoolfs ate 

&tt<ch<d by ale"3lh ofchoin 10 the ceilin$. The detalnto's lunds are welded in front ofbis 

body, &o that lhc C1cttiMe hu appfoximatdy a two· Jo three--foot diunetcr of movemeru.. ~ 

dttllneo's f"" uubuJded ·co I bolt in the floor. Duo WC is IIKCO 10 ...ute that the shaeldes 

are n<iih«tooloe<e nortootisJU forpby!Je.J Afcty. W•Wlderstand &omdbeus:sioos widl 

OMS tbat the Wclding does 001 r=lt in 1117 JianifieaOI physical palo for the subjt<t. The 

deo.Jnee's binds IB aenutlly ......... the towJ Of hb heort IJid bit d>itt. In some eues, the 

d<!alneo'. lwxh ru.y he raised above the lc\'Cl otbb hud, but ooly "".period or up to,.., hours. All of the detainee'sw.;,IW is bamo by hislO&J IJid r ... <klri03 ~ deop cleprivatiOtt. You hsve w"""ed us II'.., the.&Wc .. is not allowed to lw(g Crom 0< support hiJ 

body w<lgbl wilh tile sbleldes. R&:hcr, wo Ulld<omand dw the shaddesare oaly us<d u • 

passive m .. no to'l<eeptbed.W...,.,todi"3 IJid tllur 10pr...., him &om&Uinguteep; sboulcl 

the d.W, .. begin to &U asleep, he .,.ill lose bb balonee and oWiken, dthet beeouse of th• I<Nilionoflo""& hisbaltopeor becausooftl:erestrainingtOilSion ofthe1laeidts. Thcureof 

tt-.is pus-ive rne&DS for keep ina lht deta!Aoe awab avclds the need for using means that would 

require [nu:r&ction with the detalnee and might poac a dtft8et of physi~l hum. 

W.e underrtand from you that no d<Uinoe •ubje«ed to <his t«hniquc by the CIA bu sulteced any blrm or injury, either by nlling down and forcing me handc:uffs to bw biJ ""i&ht 9r in tny o1her way. You b&ve auurod uJ ~hat deUlnus ue continuously mooitored by doled· 

ciroult television, so thlt ira detatnu wtre un.tblo to stand. he would immediately be removed 

flom lho standing po>ition and would not be permined to dangle by bb Wrisu. We underlland that J4.tndfng s.leep deprivatiOtt may c:.auso edema. Of sweMil'-& in d'le.loY~-er extremities b«a11SO it 

forca deai.neesoo >!and fOr an cxteodod period of lime OMS hu IU!vis<d "'that this conditiou 

ir not poin!u~ and tb4t the ;>and ilion disappun quickly oooc tho d.Wnee I> pettll~ted to lie 

c!owt>. Medical pet>0Me1 wdi!Uy n>c>nitO< 111y dttal.cec being sutjected 10 mnding sleep 

deprintioo for indiestiom of <de111> or other pbytical or psyebolosical coa<fllioas. The 0.113 CMdtl1nu ir.dude enonsiv•disaiMioo on o>edtetllllOCI&oriog of d.Wnees heiOS subjected 10 

sblddina tod s!«p depriv&tioCI, IJid they IDclude spedOe buw<lioos for~ per-..d to 

,~.....,.!iv<. ...,...llldili positloos octo uke other oaio:u, iocbdina ordetin& the ee.Ssa~ 01' sleep oe;rnvttKNa, ie ordct lO reY.ovo Of' lvoid saiouJ ed.Cr.La Of otber sig.niftaat 

medical oondilioJU. Su OMSGrddclboul114·16 

In lieu of standing sleep deprivatioo, • douinte lilly instead be $tiled on and shsdtled 10 

•matl"'ool. :ntMlooloSUJ>port~decainoo!f wqht1 but.i~-too .. raoU ~o.permiWhUilbj«Uo 

balance himself $Ufficiently to be abl& 10 go to Jleep. On rare oeca.si(l(l.$, a. detain«- may also be restrained in a horizontal position when necc.$sary ro enable recovery from ,edetM wi,hout 

interrupting the oouraeof sleep de.pcivation. u We unaerlta.nd th.&l th* altcm~tive testniru~ 

. H Spcclfie2lty, )'Ctl ~vt bf~rm<d as tb&l. ~a tl\mocwloo.1 w:trln che ~ l)e intur<lpciec& cum 

and !.be altcnd.alllaac4loloCncmJdettificd t.\epot.cn~bl.toJ ~bleo:!tma in the lorr;e:r llmbsoCdc~ 
71 


628SECRE12.eps

ro fo 

altbollgb ll!l<lOmfocub!e, m aot~iilliiicontly ptlnM,aQCOfding to the cxperitnee and 

prof .. sional judgment of OMS IJ1d other penonnel. 

We und<nl&nd tltJl a d<lli ... ulldergolna al«p deprivation is geaCtllly fed by hand by CIA pmonnd ao that M need DOt bo unsbadded; however, ""[t]f.progre$$1$ made during 

!nterrogatio .. the interrotjl~ unsbacldo the detainee and let him feed himaelf u •I'O'itive Incentive." Ocloh<r 12 Iter at 4. If the dculnee ia clothed, ho wws an adult diapes 

undet his pants. O<Wn ... su ,oa to aloop deprivation who..-. a!"' subj«< to nud~y as a 

sepuuo iot«regalioa tccbnique will u dmes be nude and wocring a diaper. If tho detainee is 

~illlla diapet, ~ isduckld reaulutyand changed unoceswy. The usoofd>edi>per b roc aartitltJ' and beillh puq>osq of the detainee; k Is oot uaed roc the puq>ose ofhumUWicg the 

deuin«, and it is not cor>sidcred to bo an illlaroptioft tecllolq<le. The detainee's sldo C<>Ofdlon 

is monitored, and dl>pen ue chansolu neodcd 10 !bat tbo deulnoe doeo cot Rmlin ill a soiled 

diaper. You~~ ialilmlod us that to dale oo c!ecJi ... las cxpai"""" any olein proble•ns 

resulting liv<u use of diapen. 

The mnimwn .UO.."Ible dllration tor <10<9 4q>ri\·ation ll!lboriz,ed by1he OA is 110 

houro, a1\oc wiUch tile det.._ mull bo permitted to alccp witbo<A im.nupllon foe u lcall ci&ht hours. y..,-inforilled us that to dato, 1110rotban a doun de11lnecs have b:ea> subjeaod to sleep deprivl!iotl of more than 48 houtt, IJ1d three deulnees havo been subje<:<od to ot .. p deprivatioo of n>Ofelhan 96 hours; tho lonaOlt period pftime for wbloh eny detainee hu been 

deprived 9f sloop by the C!Ai. liObouts. Under )l)cC!A'ssuidolines. •loopdeprivttion <lOUld 

be resumed after a period of eight hourt of uninterrupted oloep, but only if OMS personJtol • •peclfictlly ddcrmirted that the<e oro no medico I Of p<ycholos!oalcootrajndieatlon• based on tho dcWnee's eondition at tht.t time.. AJ dhcu"ed botow, however, in thiJ memorandum we will 

evaluate only one application of up t.o liO hours of~olecp dcpriv~on)' 

Ill< IbM< to,_~, ..;e..,i~lolcnoploo fHfo<S..... G.B.-cy. Priodptl Dcplq 

.. t ( ....... !2, 2005) 

th-

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~«8~ ~ 

lloo<). 

0111 ct.earmsca..r:bc .. -bc.al or uac4 liwb&lala or~ AJ Olt 

the.lqsutca'Lclldc4il. SIR&ptEoe.-o.cto:t:Judalto~10aWpciiiCookAooriasoci; tNMCt 

da diekCJao:::mbetct"C!!""'U'Cd~lboe Oi ON16occ /1, 'Nul• c f T~C!t.JidtC'"'PKk' ao4tloxlcl:sm_,... __ ....,...,.. .. lttfol~.,. .. ksi4i'"'""'""~fo.-ccthcia>bsi>eyood 

~c:nsi911otCft'.I!Cts:odpcQ •wk!'m.rt lbspJtimakB!!idmtly"!??cnlMabk&odet:IIDCCriO . 

dcpriw "'""of uobc.U. slocp, o!likllllol'ioa lilclr tow<rllnbs,. .-.. n ... C>e -...fSUlldin& ll«p 

dcprivalim. We w:detA"MS Uot 1llsunc1atl1 J,UCtudom and etoocdu.m for~~ ..... vc·ob$emd fbrbolh twdl l.lld fOC1 w1dl~ ill tbb position. ld. Yoa ha~ ltiiOnoc4 vt cNthorlr.ontalllecp ckprlvafioa tw been used tildi lllt detainee'J 11fectcd Jimln Nve dCIIIOCLStntcd suftlcl«<l tOCOYCI')' to rcNm. to siWr.c orJU.n41DC steep dcprintlocl 

mode_ u W1mN.td byclle. eqll!rc.r.lUitsorhfll«roc*lon~ tod rubjocot tc.a ~ bychcmcdlcll 

ollioer tNt~ ls ooc:ontrliMiCIIdOAW tCS\Im£na oa.er &16epdtprlvatlot\ modes. U. 

" We c:xpw DO vkw oa tr\oebct an)' f\W'I.bc.r tuo o( sleep, dcprintioca foUo\\ioc alSO-hour lflPliCl!ion. o1 

th<teellRqo< aDd 1 h""' .r ~""""'14 vlol>tt "*"' o.n~A. 

roP s~, 1111[111-Ng.P6RN 
72 


628SECRE13.eps

y.,.. hive icfonncd us!W deul- are dosdy moaii«<d by tho ioterrogatioo team at 

Ell ttm .. (ciU;a dileclly"' by dosed-circug video camcn) w6ik beins lllbjec:ted 10 slC<p 

deprivation, and thtt these P"'Oanel W111 fllervene and the lcdtniquo will be dJseollJWjod if · t'lw8 •te m.Mic:ll nr f'IJ)'cholog:ieal conttalndieations. trunhennore. u with all interrogation 

tcoh,nlquei used by tho .erA, •l<ep doprivalloo Will ool bouscd on any del&inee if the prior 

medieal 111d pl)'Obolosic&i usessm001 r.-ls any contraindications. 

t 3. TM -.....ctrboard. • "' thls teeMlque, tile deu!nu is t)'ills on a pnoy th>< I> inclined at an lJI3!e of 10 to IS degrees to the horizontal, with 1M dotal nee on l>lJ bade and~~ 

head toward thelow<r ond ortbo BI""'Y· A doth is pla<cd o'vu tbo delllnee'• f\ee, and cold 

w11uls polll'<d oothoeloth&om a MlpofapprmrimJtely 6 to 18 inehos. Thewitdotha-eates 

a barri<r lhnlugll ~lclo his diffi<>~~--« ia some casu tlC)( poosib!_..,lmlhe. A sinal• 

"apppication" or w•ter may GO< bSI !or ~ tball40 ·-~ with the duntooo of an "application" m<UUIW frO<n tile momcnl """"wat«-<>fi'Alli<Y<C quantky-js first J>OI'I'd ~!oth uotiJ tho rnomenl the cloth it rtmoved &om Ute subject's raco. Ste August 19 tltr at I. When tha time Hmh is ruched; tht pouring ofWitU il tmmodfatcty 

• <liscontil>lcd and 1M dotll is removed. we. uoden\snd thst if the deuinoo mJlr.es tilt elTon to 

'deftlt tbotecb>ique(o..., by ~i>rin& l>lJ hud to lho slcl6 snd breathJaa oot of tho oom«oCI;J 

mouth), tlle illlem>ptor may "'P hi• bow uound lho dellinee's tlOM and mouth 10 d&tl1 tk ruootr. In whioh ease it would tt6t be possible for the det&ineeiO breathe duri~& tle appfiudon 

of tho Water. In addi\101\, you bavo lnfomted "'that th6 tocbniquo may be Applied in a moMer to 

dof'ea\ .efforts by the Oecli-to h6kl hi• brett& by, foe enmple, beginnlll$ an app!ieadon r:f 

water u Jha detain e. is c.Ma!iftl. Eicbec io the normal 'Siplic.atioo. or where c:<J.Ltlan'lelu-es ue • osocl, wo undorsland illlt _.,may..,.,...._., m~y oc:cumul•« in-dle deWrt«'s mouth and 

na,.l cavity, pceven~ina him from breatflina." In ~dition, yeu hlvt Indicated th&tt!le detainee 

as A oountCllllea~rc may swallow water, possibly in snlfleant~antit!u. For tbl,t rt.UOC\ 

based on advice of medl<al pusonnet, tbe CIA requiru that ,.line $Oiutioa be used innoad of 

phin woter to roduoo tho possibility of hypocmwnio (I.e-, roduoed COIICCOtntion of sodiwn in 

,lho blood) ifthod«aill<e driob lhe Ml«. 

Wo underm.ncl tblt the effoa ortk waterbovd b to induc.o a Rnsatlon o( dmwninc 'Tf)is wutiion is bued on • deeply roo)ed phy•iologiul,..sponse, Thus, tho dettlnee 

experiences thh sensation evea ifbo li awar& that h6 is noc at(uilJy drowNns. We a.ro informed 

tht~.ext-'¢ experi~ lho prooess is oot pbysiea!ly plilll\ll, but thll b uaually does 

eauso fear &Dtl pomc. The wuerbolrtl ills be... used DllGY ~of timer in SERE trainins 

provided to American military_per.tennel, though in tbJt context it is u:.uatly limited co on. or twlloppuCitloM otno momfwr'4~dl,.«tr"- -----------

11

1a-~o(tlis-....-.. .. -&lll<dlomuln!Jolof.ft-Ciulthe lodhidooluoolcfJ0'41Sthe~~isootiolacl~dy,_ __ 111oc.bullols_k ....ri<tod 

by the ••<lo<lo. <RIIiAIIJOW<ioAofd ......... Su /G Rtporr Il lS ("Alrll.,. b 11>1U1c<«< ••• zod die~ 

p(OC!uctJ 1hc n.s:atio" or 4mmil.& 1M 1\dfoatiofL•). F'« purposes of~ ll.'"lal)'sls, bo~vcr," will ._o ~ 

ch¢ indMCiuaiJS unable lo btalhtd.llria;c ~ctldr• period oC uyapp~c::atioa of wmr dll'itl& tb~ wu.eltloud U:dm5!l't. 

11 Tho~Ococnl wrsotiotlottlle ,,r...,.,. .. WU!~ wi11o .,...,_,. .~ 

of-11111.-!lerdill'..-slaGIC•ppllcltootolfle~ Wedi>amC.."""""Gctxol'scrlddlo>s 

TO~,..-INil)PORN 
73 


628SECRE14.eps

TO~ ~~ 

You ha~expWntd thatlhew~aboatd tcchni<lueisused olllyif: (J)tbeCIAilu 

ocedlble intelligonce thJt atcmxiJI Wclc h lnuniAent; (2) there are "Nbotanliot and credible 

indicators the subject llu acriontblc lntelligenee tbat ean prcYOQ!, dillllpt or delay this ataclc"; 

and (3) olh« intenogation mttbods havilllled or ore ualilcely to yield actionable intdligen~ in 

limo to prnvenllhe attack. S" Att.ehmenlto A.vgust 2 Rim> ul!<r. You have alSO lnfonned us thlf tho waterboa.td may be appi'ovcd for use with a 8.h•M deta.inee onty during, a.t most, pr.e 

sinal• 30-day period, lJld tlw durin& !hat pctiod, the watttboard ted\niquc may be used oo no 

._. tlw> five aays. w. !Unhcc uodentand that .. .,.y 24·"-period, mterrogltoli ltll1 use 110 

more than two "sesrions• of the wa.tabo&rd on a subject-with a "'session" deflnod to mea.c lbe li010 that lhe d.WO.. is sttawod to th6 .,.,aWard-on<! that no ...,ion tn>Y lut 11>0<e llw> "''I> ilours. MocC>OVa', during toy ....t.., tile Clllllber ofii<!Mdu<l oppHottiou ofwuerlulioa 10 

~nds « lqtt may not erocod alx. /U DOled lbovo, the nwd!llllll2 ltlll!lh of "'Y 19Piiation 

of wata is 40 soconds (you htve lol!)nnod us that this au>Ci!llum ~ .. rvely boon roaolted). 

Fi111lly, lhe total cumulative time of al~os of whnovcr leoglh in • 2A·bcu< p<tiod may 

notoxceed 1lminutes. St<AIIfiJII/9 <4rtt1 2. Woundenu.nd thlltbc,. 

Jimha.tions have been en.abll.lhed whh exteruive iaput ftom OMS, bued on expcricn~ t01 date 

wllh Ibis tedullq(Jo •nd OMS's professiontljudgmcnt th>t u14 orthe watttboard on • healthy 

Individual subject 10 th .. ollmhati0<\1 would be "medically aooepubl .. " Stt OMS Gui!UIIncs at 

18·19. 

Durill81h• u>o of' tile watctboard, a ph)'>ici.ao and a psyobologill aro pc...m It Ill times. 

lbo rktainee is m<~naored to.....,. thai bo does not develop mpir&tory diiiRn If the dcuir.u 

b not bRaliJic& liedy tfte< 11-.o docll Is ....,vod flom Ius r.oc, be ia i<Mlodiately mo\'od 10 • 

vonicol posiliocl io order to dar doc water from !lis mouth. oosc, 1:14 naoopborymt. 'll'.ogor:>ey 

used tbr ldmlnisterina tl>ialocluo1quo is apcci&lly daigood 10 tbst lluCIA be OO<OJDptillltd V<r1 

quiddy ifn.......-y: Yoor l!lcdie&l penO<\ntl have explained that tbeuse oftbowatcrbowddoos 

~·small risk of COital a potentially sljnilicant modi<"~ p<obl<ms and dill e«~>in meuures'" 

taken. to &veld or addcc.ss auo1t pl~lcmL Fic$1, a dettinee migl'.l vomit aCid !hen aspirate tbe 

ome.sls. To roduoo tills risk, any deto1ncc on wl>om this tedlnlque will be uaod is firtt pla«d on • 

liquid diet. s ... nd, the dculneo mlgllt &$pirate JO!Ile of the watu, 'l'd llloresu!Ung water. in the 

uoa~ m1ght lctd to pneumonia. To mldgato this risk, a pouble saline \olutlon is u«d io tbe 

. procedure. Third, it is oonccivablt (Jhough, we un<lenund ffom OMS, lllghlyunlikely) lh&l a 

deuil= «>UU4 suffer lptm)J or the larynx that would ptt>'enl hlm ll'om breathing ·-wbeo the 

~.,r,... ... is,Jtopped an41he dttaipco i• r<~uraed to u upright pcnilioo. In lho even~ of 

111olt lptJIIU, l qualified physielao Would immediately int~OtO aadrm lhe p<ob1ccn, ood, if 

nocemry, tile intervdlioJ physician WQlld porft>cm 1 -my. A! !hough th6 risk of sud> 

opastasis CCosidocd ICtiiOtO(it~IICIItfr ht> oe•ct o«<<fftd iodl .. laMIOliPIIIA'<S ofSfRE 

tninioa), we are wonnod that the ... ....,. tmetgu>:y m<dical <quipment is always pceo<tll1ltbough mt~olt10 tile dtttlnoc-4uriii8~Y"'I'!'Iioarloft-of th6 wa;Oiboord .SCt.puafly.id. 

II' 17·10." 

tcnhel belo-Yr. M~'Cf. u noced lbo'leo, 'IK."t..Y cSUJ'e«M $iNat!Oll$ Qt cktalnccs uMera,oln& interrocad02 aM 

miHIU)' pertOMcl ...Sertoi"'lnlnlrt ......C.qai.s~IIM,. r"'- ooollo~- in SElU!IIUlln&- Thai eq>eri'""'ts_ol...,....,_t.., .. llo&ollo""""""" 11 OMS idadmeoi'.U.. poc.otlst liW; 

TOP~--~IIN 
74 


628SECRE15.eps

~= ~ . We understAnd thtt in manyyean ofu~on thou$81\ds ofpllli<ipoots in SERE !raining, • 

t6e watetboanl tec)ulique(althougb used in a stantially more limited way) has not rcsvlted in 

any cam of ..nous physical pain or lf<o!Ol!8ed eo1al hall!l. ill addition, -m ilndomand tllat the 

waterll?ard h&s b= used by tbe CIA on t~brecgh levd al Qaeda detainees, two of wbom were 

subjected to the teronique numiro..., times, aee<ltdlos to OMS, none of these tbiu . 

iodividu•l• hu shown any evjde-of physic.! p>in or sulfering or mont&llarm in the more 

tllzn 25 months sinoe theJeohnique was used them. As noted, we Ulldet"St:llld that OMS h1J 

boen involved In imposing stria limits on theu oofthewatcrboud,llmlts tllat, When combined 

wttb tarcful monitorina. in tbeU: profusion&! j!·' gment should priven'! physical p,ain or ·$uffering or mentJ.IIwm to a detainee. ill add~lon, we u crstand !hat lllY detainee is closely monitored 

by medical and psyehologieal personnel whene " the wuerboard is applied. and !hat there are 

•ddit:ional repOrting requ[n:mentJ beyond tho :af reponing requ.iremo."'ts in place when other 

in«m>gation lechoi<iues ate used. S.e OMS Gu <lin<: at 211. 

.. . . . AI. nortd. all of the intetTOSJtlon techni cs dw.:ribed above a.te wbjea to numerou.s re:striccions, many bljcd o.a input frOm OMS. Our advice in Lhls memorandum is basecfon our 

undemanding that there will bo wel.\d dhm~ to all of those guidelines, rostrictio ... and S>feguards, and that lhuo will be oogoing mo · ring and reporting by the team, ineluding OMS 

medical a.n.d psydlologicai personnel, as well u prompt intervetuioo by t team me•nbec,·u necessary, to prevent pllyJiea.l <iilt'rt$$ or mCot harm so significant u possitUy to amount to the. 

sevec-e pb)·sicel or meatal PJin or sufferi:og'" · is proNbitcd by seiettons Z340.-2340A. <Nr 

. a<lviee is also based oo our !otl'ld.erstandlng tb4J. intecrogatocs who wilt use tb($0 teduliques are 

adequately trainod to undenta.nd tha.t the aut d use ofthetochnique.t ls not designed or 

intended to cause sevore physical or mental pai or $lfferin& a.nd a.l.so to uade.Mlnd a.nd respect 

the mcdicol judgment of OMS &nd the importan role that OMS pcnonoel play io <he program. 
75 


628SECRE16.eps

f'lloOtli &ITf U 

TOP OpCRN 

• 1 is'WJ!TP"rii"'£ O•odl'a ~to W.ncb.an otuek-Mihill tho Uoited · 

Sllles. Aeootdmg t t 111-11.11.11. • od oxtenl1¥e I:OMO(IIOOI to Ylt10US al Q.aeda 

luders

between 

, members 

an wociateand 

of the Talib and the al.Zar twi 

o 

nitwo<1c, 

diS<\1$sStKb 

and 

an 

!lid 

a«te~wst 

amnsed ~ 

15- r..u.r at2-3. ,You .dvi1od \'11 chu mochcal a psyeholoc,iul u~s ent's 

completed by a CIA P.!trs!ehe '?d psychologist, and thAt bued on thite"'m e&Uoo, tho 

pbya!<iae concluded 1 1 1 1 uedically otablc•ed Ills no medical contralodicatioiU to 

!ntcnocatioo. including tho uso flnt<m ·quos" IA!dressed in !hit mcmottodum." 

Mdicol and PS)'doo/ogical AISUStrl IOAUJ11111 Rizro L<tttr tt t• Tho psycbolosical.,....,... .,.., alenalld orie:tted onar.d 

aucotioll.......,awoptiale."/d. 012. Tbepo)'d:olosiaSinWf Jht 

P<....,.. _,. deu alld topal; there,.... eo evi4-.o ola tflQua)>t cliJonl«, oldosioas. 0< 

h>liucillttioas!.alld t]ben Wtte""' li;l'ir ... ~ra~ ar.xiety ot odKt .....w dlstl.rb>.ooe. • Jd. Tile psychologist enluatad- 'psycbolosie&lly liable, rci<Md and 

defensive, • and "opint4 that there. wu ao evi4 .... that tho use oltbe ~errogAtioa 

mcthodt would cause any 1ove:c or protongod p~yehological diSNrb>.n.._ /d. It 2. Our 

conclusions depend on these wusmcnu. Before 1.11ing the techniques on otbct detainees, the. 

CIA would need to ensure.. in eac:h aso, that all mcdieaf tod psyehologlc:cl usestmentl indicate 

that 'ho deulneo js rrt to undergo dto uaoofthc inlerro,ation lechnlques. 

n. 

Seetioo ll40A PfOvid .. lho\ ,w)bo<- ouui<le li:e Unned Sllles -.its or lllm!pU 10 

commil torturesh>ll be 5ncduo4er tllis titl•orimpruO<ted not mo~than 10 years. orbocb,alld 

lr death rcsul .. 10 any peraoo rro01 eondoct prohibited by ll>.i< <Ubnction, sllaU be punished by 

death oc imprisoned for &ny term or 1UI' or Cor ltfe.OIIU Section 2JCO(l) cleRnes .. tonure'" a.s • an 
76 


628SECRE17.eps

(; 

, .... •ut t 4 

e<t commlucd by a penon •ctin& undor color oflaw speciflcolly int<Jldcd to inOict ......,. phyaical or meotal pain or IIU!rcrina (otbct than pain or suffering incid.,IIIIO law(•l sanctiolu) 

upon another person wltl!ln hla <Wtody or physical eonJrol. "" · 

Congres. enac:ted scetions 2340·2l~OA to cat!)' cot the obligaii.ona of the United $totes 

under theCAl' . .SUIUL Con£ R'l'. No. 103-482, &1229(199-4). The CAT, amona other 

thlnas, req•ires the United Stilet, u alWe puty, IO ""!'~that OC:II or to nut<, &Ions with 

attunjll&&nd OOOljllioity to commk sudt ac:ta, are crimes llndec U.S.Iaw. S<• CAT aru. 2, H . Seccioas7J40.1340AAtisfydl&l ~,....,.respect ma<ts oommiued oucsi<kthe lh'ted 

Stiles," Cbodu<t consliMi~ ~· ..w.in ti»Ur.i:<d Stat" drucly wu-ood r.maiptohibited by vtrious other federal &nd ~t~tecriJnio>lmtute.. 

~· rcom colldoQ! proNbCtcd b)' t'b.lt nl:lcccdoo., sha!f~JM'jst.ed by dc:llh « IJI~ Cot aA)' tum ol JUI' « for lite.. 

(1>) lorisdkdoo.-Thcte It J•illdi<Cien<MJ <llo ao!l\iiy pcoNbitc4 lo .-~on to) 11-

(1) kll1e,od.otrm4« b auiiONiotlbeU'aittd S!l!.ts; ot 

(l)<l»alkpd ~-I• r-IA llooUolrod su..., imlpocdvool<lloNtlGNit'T or dxTiaicawlll~oO'cocSu 

!<lCoos;>iDcy.-A_...,."""*" .. ...-.. --on--,. ""!«ttodle..,.pem!!ico(-O..IIoti""'''Joi6<1Q).s0..ponliOcs,_wr.r""' 

o~:-.dle-oc""kto ...... ...,...occlo<~. 

II U.$.C. f WOA. 

"-u•opoM6cslafdl 

"'"""fn!Ns<bl'(U-

(1) "\Ort\R" tnell'IS &AactCOM!iuod b)- a !XJSOCUCdQ& U!Wkfcdor or taw spcdtlc.ICf 

ini<Mcd 10 iz1111« J<VtiO ~ca!Otoncotll paio c. ..U«ios («<l<t U pol:\ Ot NlfO<tn, intld<n!aJ10 ta.~tll......WOOI) upon"'* pcqoo •illlin hls<WIOdrorrll)'~:olooot~o~; 

(2) "severe mc:nw pW1 or lUifttftl( mt.aAS l,he pro·.'qcd.a~CAIJI1'iltln c:auscd b)' or rcsultiac 

!ton>-

(I)> dle-u ..-........ w11 bJodooodrbosubjocoodto-.. ....,.ptpa~ 

.,.;.or.o!lf«:ii&O(~~ .. q<~o(~""io&--.. - ~CI!tub...S IO~pccC.....ayllles >S:Sot-l~and 

0) "UMcd StileS" l'leazu lba ~~CW:nl SUtu ottbe tlllitcd SUt.est thoe Dl.st/IQ ofCoWCDbia. 

IIMIIM ""'lllO""caldls, ouriooriu, o.nd pO!.Selsl"" oflile Unltc4 S0.101. 

IIU.S.C. fllOO(uamtnd«SbyM. L. No. tOI•lll, II8SI&liSll (1004)). 

" ~ Umi1od llle tmllotW rood~ Ill the roknl tom•:• ,..,., by p<O>IcliJic ~ t1>< pubibilloa applleo 

oaly<o cooduct o=rriQ&".....,;&Ihe UlliiOd SU<cs," II U.S.C. f l.loOA(a), Wh!cll lr<>l<Rlllf dd...S loUie 

IW'*IO.....,ootsi4t"ttlesevonl SW<S aftl>c I.W:I!ISUJ<s. llloDUirictdColliiiii>U.IIMIU><~ 

ttniloritl,wpos=i•:n'ChoUrlto!Scii<S." U.flllll(l)(lsCI<Ododb)'N> I..No.IOI-m, ms:.t llll 

\ 
77 


628SECRE18.eps

I 

' 1'lle CAT delaes "tC<IIIr.- "' u to teqllite ~ ia!COtion>l infli«ion of" ~true pain or 

Nlfcrlng. whether pbysietlor l!ltll(&l," Aniclel(l)oftheCAT proYi~: 

·For lhe purpo>CS oft~ C4clvention, the term "torture" mWIS any act by whl<b 1evere pilln or S~Jfferi"S, whether pbysicel or mental, IS int~tlon1Uy lnntf;lcd un • 

pmon fo< ""'h purpo,.. aJ obwnlog llom hlm or a dlitd person infom!ation or • 

confea&ion, punimiog him for 111 &« he« atb!rd person lw committe<! or iJ 

SUJlle<ll«< ofliaving committe<!, or ialimidatiag.,. OO<tCing him or 1 ll'ird person, 

or for·&l1)' rusoa based 0<1 diocrimb111ioa of lilY kind, wheo JUch paio or 

suff<Zi1>8 u infli«ed by or at tho lostlptioa of or wUio choc:o-" or acquleaceDoc 

or • publlo ollieiaJ or oCbor .,.,_ Klios in •• c!!ici&l copacicy. n doa""' inolvde pain or Nfl<rinS arislng only fl-. inh<m>t b or inddemal CD lawfUl 

AO<tions. 

The Senate il:cluded tile following U<\derstandil:g in its r..oJution of tdvl~ &Dd COIU<RI 

to ratilic•tion of the CAT: 

The Unitf;d States undentaoch that, in order &o conitituto torture_ an act must be 

specifte~Uy intended to inllict severe physical or .,..tal pain or Ml"u lng and th&t 

mental paio or sulfering refen CD p~oot<d mental hum etused by« rcaulliD8 from (l) lhe iortencional ionl«lon.O<Ibreata>ed inllidioo of OOY«C physiCll pain 

« sulf..lng; (2) lheullllnlJmtloo or appli.,tioa,"' thre&t<nd admiaian6oo or 

appfiCIIion, of mind altering "'bsuocu or olher pcoc:eduf., ealadlled 10 disrupl 

profouodly lhe ...... ot lhe pmonllilr.; ()) lhe tUu1 ofimcnlo<J>I dutll; or 

(4) lhe thtm tlttc ~.,.,_will IIU1iomly be subjeaed to dcolll. scwrc 

pllysic&l pain or sulferi,._ or IM &dnlinWati<lft or appuc.&tion of *ad 111«ing 

sub-or o<bcr ~eduret oalculucd to di""P' profoundly !he,.., .. or 

peuoru!icy. 

S. Exec. Rep. No. 101·30, at 36 (1990). Tioia unaentallding wu dcpos11ed with lhe U.S. 

innrument ofrotification, see 18)0 S.120(0~. 21, 199~). &lid t~utdcfin< l the scope of 

United St.ttes obligations under !he truty. S<e Rtf<•- of S.rl<llt Rallf!t:4don History ro 

Tr<oly /uterpW<ZIIan, II Op. O.L.C. 2-l, 31-)l (1987). The eriminal prohibhion apinst t011Ure 

t~codifi"4in 1l U.S.<;. §§ ll~0.2l~OA tcoerally L'"lcb lhc CAT's dtlinicion of 

1011W0, iiibjc« to .... u s. understlllding. • -

l:lnder lhe.Janguog ... doll(cd.by eoaams in=ict>s n~0-2l<IQA ~ ~~M~ " 

eonduot t1Ulll be "specifieally intended 10 loniet ~"'physical or m<OUI pain or IUffct\na." In 

the discussion !hit follows, ~ willscp&tltely <Onsider each of the prlncip•l e<~mponenuoflhis 

lo:y phrase: {I) the meaning of"sevcrc"; (2) cbe moaning of"severc pb)'tietl pain or suffering"; 

(1W4)~ Yeo liM aiMs>! uslllatlilt OA's .,.crlht~'" ~Ill tldl m.......W.~> would"""" 

·-the Unilod Sraca" 01do!iDcd Ia IOCQoos 2l40·2l40A.' 
78 


628SECRE19.eps

I (. 

TO~T·---~1\N (3) lho .....Ung of"m'<~e me>!ll p>la or Mrerllls"; an6 (4) the mcaoir.a of"'pecific:ally 

illtt4dcd." 

(J) 17.c mwniltgcj .. ., .... , .... 

Beause the mtute does not ddlM ·~c. •......, c:oaswc [che]IO'lll io &ccord..,. "'iih 

icsOtdiouyor~IIIWiiog." FD/C•.M<y<r,.SIOU.S-471,476(199(). TboCOCMOOA 

uodentan6iog ofth•cmn "tortwc• tod the conccxc ia wllicll che saMe was ... acd cbo lMmu our ana.ly1is. Dtctionaziu deljne .. ,evcrc" (off en conjolned with »p~inj 10 mean .. extttmdy 

violeru or lntCMC: .,.,.,. jxw..• Amrrl«m H<rllago Dlctlonory ofth• El'lfl/sb LallP"f" 16Sl 

(ld ed 1992);se•olsoXV OifordE.ngll#rDictiCtlai)'IOI (7d od. 19J9)C'Ofpoin. JU!fenna. 

· lou, or lho lib: Grinws, extr<me• an6 "'f cireum-... :Hard to wllain or tndoro j The c:onunon w:dcnt&lldina of "torture• !iJtchef SUPf'CXU the saMo<y C00«f1 chat the pain or 

svfl'e<los mu.c be seven. S•• Blad's Law Dtctlcmt)ll S28 (8th eel. 2004) (ddicina "ronurc• u 

u(t)l\0 inO etlo~ oflhttnsc pain to tho body or mind to punish. to extt104 a confeuion Of 

infonn&tlon. or to obuln $&discic piW\Irc'? (emphuis dded); Wtbstrr'llhlrd Ntw 

lntmtattcnal DtCJioniir)l tJ/ lilt fl!g/1111 IAtrp>gt Uroabrldp!Z-414 (l002) (definin& "tot1ute" u 

"rrie lnlfo<Oon ofilsiUU< pain (u W. bumU:s, onullll\8, woun6illg) co puoisll "' -

oomeoMj (emplllsil &dded); OiftXd AmtrfCDn DtCI'-" Olld Langvqo Ovt<!t 1064 (1999) 

(~efinJn.a .. tortWe .. as •the iotliction o( .u~ bodily pain, csp. u a punislunent or t mtansof 

peoouloo") (emptwls added). Thus, lhc use oflhe word ",.vee•" in chostaMQI)' prohibition 

ootonurecle>rly deoot01asemaclon or coocli!ioo dul b extreme in U!lenoicy and diffi..,lcco 

. endure.. 

This interpretation is dso a)CISisCtnt "ill> lhe llillorical un6ersc&ndina oftonuro, wta:h 

hu pe<ally involved tho usoofprocodures an6dovioos d..;gMd co Inflict intense or eJ!Utme 

pain, The devices ind procedure~ hirtori .. lly usod were £011erally inlon6td co ... ,. ••tr""e 

p•in v.hlle not killina rhe porsoo bdna qoatiOMd (a< ot leut oot <loin& so qulelcly) 101hac 

q~<OUid t011cir.ut. DescripcloculnLonlHopo's'-<e, "Tortwc,"UaMnilyof 

I!Jsc:x/C11Q'Otd Cbaoee Lc<ture at H (lan. U, 2004) (dtaerib1ng the "boclt,* ..tid> inll>lvtd 

aushlna ofche vietlm'slegs wd r..t; repea1od pric!dng with long nccdlu; and tholmb10rews), 

and In Professor Langbeln's·boak, Torturl Olld fhe t.aw cfProof. tiled Sllpro p. i, malco tbio 

clear. AJ ProfesJOr Lansbcin cummatlud: 

""";;; cOinmo...i comn devicu-~o. radc, lhumb<Cl'iW>. legs<rewoworked upon the extremlti., or lhe body, elcher by dlrtendina"' comp1<$$ing 

inem. We mi)' 1\ippose tlm11fc"A'liiO!Ie:r1)t'tonure-wm-prcfom4-beeauso--tboy--- .. ·--. 

were somewbll less likely to maim or lcilllhan COCicion d\recccd co the lrllnk of 

the liOdy, il>clOeci<~ l!iey'W«<ld l:le'qlliclr:ly adjusted-to ~ aeooun>of·the 

vicUm's r<SpOftla during the cxamiollion 
79 


628SECRE20.eps

TortllrtcndiMU..ofProofii.IS 

TO~~(foocnotocmiltcd)." 

--~ 

The st&!Ute, marcover, wa.s inte<lded to imple01entllnited ~ll.cs obllaalioas under d;e 

CAT, w!Uoh, u quoted obove, dctlncs "'ort~~re• u acu that inlallionally lnllict "•ev<re pale or 

Nffcriqg." CAT art. 1(1). AS tho S,enato Foreign Rtlations Commiltoo explained in its rCj)O<I 

recommending that the Senate consent to ndfioation oflhe CAT: 

The [C(.T) seeks to define "torture" in • relatively limited (uhlon. COITCSpondia& 

totbeoommoa undcntandilla oftortunas an cotttemopnctico~lc.h Ia 

univ<tlllly condemned. ••. 

• • . Thetenu "tomn," iA Uohed SUies and iateroatioo>l11S18t,U OIUofly 

reserved for oxu..,... d<llberate and uJIIISUa!Jy Cll.ld pncdea, Cot <D"'''It, awtaincd systematicl>cotlnS, 11'9fiC1d00 o( ef<Cirie CllfTUltS 10 laiShlvo paru of 

tbo body, and !)'ins up or han&ins In posltions lhllcause e>dreroe pain. 

S. Bxec:. Rep. No.' iot-30 o< ll·l4. Srullo DavidP. Stewart, 1l1<111rluro Collwml/011 aJtd th< 

Recepd011 ofltKernaf/01101 Criminal ll:tw Within the Unlttd States, IS Nova L. Rov. 449, 4SS 

(1991) ("Bystrcssinstbe exvemclllturoortorturo, ..• [the] definition [ortotNrcio the CAT) 

dcscriboo ar<lll~lyfimhod set ofdrcumatanceslikdyto'beiiiOBtl under moll, if DOl~~~ 

dom..Ue l<pl systemt. "). 

Drawina di>tinctlons amoos sradW.os of pale Is obviously 001 an easy task, up«Ully 

al~• tho bek of uy preci.., objec:livo sdea:lli<: criteria tor meuu:ins palo." We are givtJ 

1001• aid in this WI< by judidolU.erpralliooJofth< T~ V~t~ims PToleodon A« ("TVV'A1. 

21 U.S.C. § 1350note(2000). TheTVPA.olsoCSIJQedto!mplem<nt tbeCAT. pcvvide .. civil 

remedy to victims oftOrtut6. Tbt TVPA 4eliAU '"tQdure'" to indue* 

any act, direet<i! ag4i.m an lndlvlduol ln the offender's wstody or phyaicrol 

control, by whic:te stvtff pgfn or ntffuhrg (olher \han psin ot cuO:cri•l$ arhing 

u Wt.~)' Itt. Dot s:a)'in&thltonly IUdthlROricaltochni,qu..,...shn!IM ooa-cu CIOC1$(iltae 

.,.....,......,._:U40.a!..,A B<IIO..h!sl«ieal-iqoflo<llct<b_ .. ~ 

C'.ol\eru<'<U.""'U.po•iblcio(l!iocM<or;-· C,:l.l.mr<~:<• u.tkJSidu,l<1\I S.2<6,Ul(1JllJ . 

....J!-~~di'OIII104<Y!ioPobJc!o<ftcrill!:bf«...,.ria&IJio, ..... lsoodat, ......, .... c:oosilttl4_.....,.,MOO<~-..- . ,.., .. ,"""""'~~~-m·•=ot.o""4~. quolliJ.--nc,-iidpciitlill~lltetjoetj<lP"Itatdbi-lidiclciAI 

... dNs.,<:anc:!ybe ~ lftdhc:d)'. ,. .,. si'~apnWMtiJ!Itd6wtll,. ,.,. 

obj-lyqv~l< Conseqoa>d)'..-ct~"""""splodep<J!ds.ca-.plli<oi:U•<n 

cot~~.mv:nieati~ both vubal m1 bti\MOC'al. OvtA po..a's ~. oa.e ••"""' flOC. ~r lcs: IOW!kU=o<y)"'-'"bii!W.paclcou' mood&,am,..,...~,ee-oru, ,_,..,..,,.. off•mfly mtcnlxn. udtheln:lpxtotp.tln OAthdr llves. 

O<nnb C.1\ltt. An~:s d!t Ptrt()ll, Not''"' tiN J)alrt, Pai.n: Omiaf Vpdate:s, ScJI(. t 99) (tmplwb 1ddcd). Th£s 

luk or dulty l\1ttbc:r c:ompllct.ca the dfort lo dclloc ~~or aufkrin&-

TOP~tlt -·NOyOJ\N 

20 

-I 
80 


628SECRE21.eps

ooly fwm or inhetent in, or ln<ldmtallO, bwful•u<liocs), wl:etltu ~or 

murttz!, is inteatioDJIIy inflicted on tbat Individual (O< NCh pw'pOSOI u obl1ini!l& from thu iodiviilull or a tb!rd puiOCl information or a c:Ontemon, puaishiJ18 th>l 

individual lOt on act dl.lt individual o<& thW per>Ot\hU eommiued oris "'speeted of having eommlllocl,lntlmldaling orooerclng th&L lndl•ld••IOJ' athkd 

person, or for aay rwon baled on di$t:rimioatlon of IllY kind •.• • 

28 U.S.C. § 13SO .a<<, § l(bXI)(crnplweud6ed}. The~hlsi...S l&:lavs&oluimilatlo 

-ion2H0'• ph=e ...._.physical or m<aW pain or sutrering. •n Altha eo..n of Appeals 

!Or tbe Di&trict of Columbia Cir<Uit bu explained: 

The ~ewru1 roquir&~~~ent is en>cial to CllSllliJI8 !hot tbe conduct proombtd by lbe 

[CAT) and tbe TVP A luufficlcntly emcmc •od C!<llrlp>US to W1111at the 

""!venal eondemnatioa tbu tbe t..,.. "tonure"Dodi eonnotcs and invok ... The 

dnft~s of the (CAT), u wdi&JtbeR.easan Administration thll sisned I~ t~e 

Bush Admioisci'1Lion lhat wbmittcd i1 co CoaSf'CS$. at:~d the Sen11te cblt ultimately 

ratified i~ tllerel'oro aiiiOltgbt to «tWro tll&t "ooly aots of a certain S"•ily slull 

~considered to constitute tonute," 

The ctitiiallssuo lstbe destoe of pain and wlfaina tbu tllo allepj 

tOttUtttilltendccl to, &nd ICN&llydid, lnflict•pontbe victim. The more!m...., 

lut!o& or bei...,. tbe aaony, tbe """" Ukc!y it is to be tonur&. 

Prl« v. S«<a1Ut P<opk 's lhycrr .17Gb ./alllddrtya. 294 F Jd n, 92-93 (DC. Clr. l002} 

(citatiON osoiaed). The D.C. Cira.it io Mea oonclu6ed lln.t a ..,.,.,lalt>l tbu aU qed b...q, a1 

the hands or potice but tlut die! not PfO"'d• detaib COIICCtlliD& "the &ewrity or pt&intitfs' •tlesed 

batiJ18&, includiJI& tbeir &.queney. dul'llioa. the pans of the body at which they w«e olmod, and 

tho w .. poN used to e&n"f thtmou~• did not suffice "toonSW'&that (lt) Nrisl!l<d) the TVPA's 

•rigorous ddinition oftoc1tKo.'" /d. at 93. 

In SimpSIJn v. Sotlcllst Ptoplt 't lJbJ'lll Arab Jamahiriya, 3261'.Jd 130 (D. G. Cir. 20:03), 

tbt O.C. Cirouil ogaln oonsiderod the types of aots that «nutitule tonuro under tho TVP" 

deftnltioo. The plaintilf alleaccl, amons other things, tllat Libyan authoriaea had ~.old hor 

inoonwuAicado &nd !hroatenccl to kill hes ifsho tried to leavo. S« ld. &tl32,l34. The coun ~eilgeil tim "thbc &llesccl<cts CCII>IIIIy rc!leet i bent toward <1\ldty on tbe p>rt oft!toir 

perpdtlton,• ~ m<nios the dlstria COtltl,,..... on to h<>ld tlllt "they are 001 io ~.., 

ygasuRy qpcl IX suffiQecrly COUQ!t !gd Att"8C0US u ra mosritnte Ccvii!Cc »Ttta;p tbc rr.nnins 

oftberrVPAJ.• /d. &!l34. CuesiowllidleowuhlvofOllndton~nillusu.tttheexueme 

liJl\lreQ(eo.ndtl<;t tbu flllsvrid\lo.thestlllJ!OI)'delin~ion. &., e.g, Hllao,.. &we ofM<V<W., 

\03 FJd 789, 790·91, 195 (9th Cit. 1996} (eoncludmgtltlla courseofeonductthll included. 

among other thinp. &eVtre beaU._, of plaiotiO: repotted thruu of duth and eleelrle shod<, 

sleep deprivatioo, cxierulod shaelc11ng to a cot (at tiaies with a towel ovor his nose &nd mouth and 

water poured down his noliJils),. aevcn mentlu o: eonfinement in a "wf\bcatlngly bot" and 

"Sl<llooJ(t>)(l)o!O..TVPAdcli>u""-!pdAorouli'W('uMcr-.wlyl-l~to 

110<11 .. U40(f)'sddWlloRof....,...._lll plio wS<ll!trl.,~· 

TOP~-- ·~RN 
81 


628SECRE22.eps

( c:nmp<d cd~ IIIII cCgtt years ofsollwy 0< IIOif·..UW,. ooaliAemeut, coosliNted tartur<); 

Mdtfntl'l(c •· v.dmr'c. 191 F. SUpp. 2d 132:1, lll2-40, 134SM (IW. Ga. 2002) (~ 

lilac I """""cf ~ 111J! icdudcd, IIIISIQC ocher l.fWias, s..-wte bnti ... to tho saiUis. ~ 

and Other parts oft~e body »ith ondal pipc1, b.,.. knuc:l:l.., bttoqs. a buctlall b&t, l!ld VVlOUS 

otheritem•; romov;J of te<dl with plicfO; lr:icldna in the face l!ld nO.; breald"i of bon" &nd ribs 

lllld <iisl0«1tion or fingm; cuttiQS & fl&uro Into tho victim's fcxd\e&d; lwlsi"i the vlctlm and 

beating him; CJCtreme ~mitttloos of food and water; &nd subje<tion to games of"Ru~i&n 

roulette," constituted !Onute); Dallbutl v. /Wpub/lcof/roq, 146 F. Supp. ld tY, ZHl (II,D.C. 

2001) (entetiQS defat> It judgment agalnstlllq whm plaintiffsllleged, unona other tltil\gf, 

tllrtats of''phyiioaltO!Iure, such u euttina oiT •. . fiogcn, pomng out ••. fingom&ils," IDII 

dcc:ctiq sbocla to !he testicles); Citlppll> v. lll""'ic P.<p-Jblic Q[ /ran, II F. Supp. 2d 62, 6-4-66 

(D.D.C. 1991)(oondudia& tlu! a ooum o( coodllct IIIJ! indud<d frequeot bt•lii1Po pisco! .. ilippic& llveals ofi<omioeot d<aU.. clec:cric Jhocb,llld a!taJ\pl$10 fotce oonfesslons by 

ptly!Jia Rllssim roulcttel!ld poU!nl tho lfiAorateadl <la!ial c:oo>tl1utod tonuro). 

(1) 71r• m<tlltlnz qf "#IVff pl!o;sia:J pain« Sllff<rillt• • 

The rt>.Me provides a tpocifie dclicltion of"Jevere·ment•l pain Of tulfctiO.S, •-II U.S C § 2340(2), but does not der.oe tho tum •seven~ pbysiell poin or w!l'«ina. • The meaning 

o£"so~ physi .. l pain" is rtlllively lltllsJ>IfoiWird; it dcno~tS physictl pain that .is Olrtr<m< in 

· intensity and difficult to codure. In our 1004 L<gal StandardJ Oplnloro, wo eoncluded th&t under 

tomo clrwmila..,., eonducc intended 1<> lnflict"seyue pbysiell JUITtri"8'' may eollllilulo 

torture even iflrh not illtondod to lnntcc "severe physiell pain. • /d. &t 10 Tb&t conclusion 

foiiOWJiiom the plain llf1811t&• oheetioos 2l40-23,0A. The inclu.siOo o( tho wonls "or 

Miff «ina" in lbe pbnse •..-. p\lysieal palo oc su1l'uiog" "'8aes!J lilac the stlluiCII)' ealeJOil' of 

physiw 1011an is nor runlted to . ........ plryrioal paiL• Sa. 'e.g, Duncan •· Wolk«. m u.s. 167, 174 OOQI)(e.ploinil!Jpr<oumpcioo qaiNI surp!utqc). 

•s.vm pbysioal sulferirl& • howovtt, is diffiCUlt to deGnt with proelsloo. A> we.,.,.. 

previously noted, thetcxt o( 1M JUMe and the CAT,I!Id their hlttory, provide little cooorcle 

SUidance &StO wb&t (:oQsreU intuded by theeoocepl of"Jcvere physical suffering." S .. 1004 

Llgal Standards Opltrton it II. Wo int«Ptel the pltn.sein a statutory context Wbcro Congms 

exprc&sly dis1in8\Jisbcd •·s~vere physical pa.in or suffering'" f'rorn ··severe mencal pain or 

suffering.'' Cons.q~ent y, we believe Ita reuon&ble ioferenu that "phycle&l6\lflCring" wes 

intcndod by Congre.tS t·o me.n somW.ina dlstinta from •mental pain or tutTctin&-"11 Wt. 

presume that wbere Congress uses dlff'tf'tnt 111uds in a statute, those words &ft inteoded to ha:~·e 

dill'~. Sq. c.g.,&mu,v. Utrf¥4Sial<£ 199F.ld3S6,.lS9(7thCrr 1999) 

("DifT<I'CIIt lJoguAge in Kjllt1te d&u&el in a st&tutc indie&teo Congress it>tendod distinct 

Wljncs."l. M"""""', siveo that Co~ S,ody ecfmed •mental pain or sv~· ia 

S<Ciioos 2340-2J.40A. it is oolikdy to ~ai Olltoun&iillinclliil wdill ~ 

" C.atllDAclidianarrd<CoiliO<lfol"pllyric:or' -n ,~·~caJ...mt\r4" io ,_ OC<Il<tlrio& ditrucuc ff'OfQ menul pain or dcritlc. .Su, ,,,., ~ Htrir~ ();alorl«yofdN UtfiiJh Lon(~taglf •~ lU6 

("Of or t<l<ling 10 tile body u ~ from Co lOin4 C< rpm!"); (),f,;dAmtri«Nf Dlc~.,.,on~ 1-«w•i• Ouldc M 741 ("of or ... C<Jlll~~& Ill< body (p/<YJIMI <R«<#;plyrl"'l «<<"""')"). 

TO~TJII I --N~ 

. 22 
82 


628SECRE23.eps

including C$$enlially menW di!IUS$ wiUtin the .. pmtc category of"physical suffcriog."" 

In our 1001 Legal St4ndarth Opinion, we 001\cludtd, based on the undustandioa that .. $Uffcrlng" denotes' a ustatt"· or "'eo edition" Lb3t must be .. endured!' over time. thlt thefe is "an 

.e:clended temporal eJemeo.t, ot •tleoa an element ofpenlstenoe"to th• conccj>t of physical 

sufl'eciog in ~ions 2l40-2340A. Jd atiZ&.n.n. eoo.lstent ,.;lh this analysis in our 20ilf 

Legal StaJ>i/QrdJ Opilri"", sod in light ofstand>rd dia iorwy definitioos, we read the ,..;,ns . .. $Uffcring. .. wh--..aused in rer«enc» to physical or bodily sensations. (O mean 1 statoot oondition 

of physical diruess, misuy, aJ!ticrion, or torment (\1$\la!ly asOO<iatod with physiC3l pain) that 

persists fora sigoiflc;;ant periodaftime. Su,.e.g., Wtbstu's17tird New fnltmarJona/ Dictf<lnlltY 

ot 22.84 (defi,ni!13 'sulfering" as "th~ stot• or experien"' or one v.no suffer.: the endunnce or or . submisslon.t() affilption. pail\, Joss"; .. tpai1'1 endUred oc a distres.s. Joss, ori.Jljury incutrecf'); 

· Random Ho•so Dtcdorll11)'oftheEnglfsh Language 572, Jl%9, 1998 (2d od. uMtnidgod 1987) 

(giving "distt<n,'' "misuy," and "wnnerit" IS aynon)'IN or•suffeiing"). Ph)'>ical distr ... 0< 

dlscomfort that is muely trsnsHory tnd that does not persist over time docs not conrthute 

"physi"'l AJifering" within lite nt.,nlng of th"t&1We. Funhermore, io our 10/U f,<'gol 

StMdarth Opinion, we eonoludod thol •severe physi~l sulferipg" for purpo$M of ~rions 2.340· 

2340A requires '"i. COQdition of $0~e extMded durttion or pc:tsittencc U well U intensity'' &nd 

"is reserVed tbt physical diWC$$ that is 'severe' considuing itt intensity· and dut~don or 

·per$iS1<n.,.,, rather thon merely mild ortrwilocy." Id. 1112. 

We tbererore believe that ""ve-rc: physical A~fl'etiag'' under the statute means a !fate or 

· conditioo of physical distress;mbery, affiiction, oc torment, u.sually involving physieal pAin,. that 

is bOlh exueme In Intens-ity and significantly protracted in duration or persistent over time.. 

Accordingly, judging whether a pa11iculu stue or cODdition ITI1f amount to ""sotcre physiul 

suffering" requires.a weighing ofbo-th itt ime:uity and its duration. Th~ more p1inful or intense 

is the physical distress iovol\•ed- l.t., the eloser it opproachu the levd of,cvere physical pa.in 

separtiely prosc.ribcd by the sta.tute-thc.lo.:s signffiwit WQI.IId be 1ho dement of duralion or 

per-tistenoe over time. On the othu hand.. deproding on the (itClUfDstancos, a le,,.•et of pbf&ic-.ll 

~ 'lbLs (OOtlusionll nillforocd by (bt expusfoN ot ecneem at the timed!~ Scmte £1~ iU actri~tnd 

consent l\J <he CAT 1boat ~ potenl.iJJ for Ya&UMW lA"bdW'if!$ t!~CQfteep\Oftru:ncal p1iil orsuffcri~a.s ;a 

der~~~.nti11 any~lptoh:)i~Oil~· Set. <.g .. ~wn4~1f~(n.ttTMvrt: K<ari~~g &fore 

Ill< Sino~ Cim.a. On Pcrtfgrt/Uidlcnz, lO)s:t Colft.l, IO(lf90) (prepuo:!Jttfe:rient or Abctlum Sofa~t, Lf.&.tl · Adviscr,~tof"Sute: "'Tlleeo~·swordi.:t& .•. is: notin.lllreq>e<Uupccdsouwcbe!ievc 

- .. ~-~~cc:.useJ~·~~cm.io.1ll'("'""'m1ua•Mmg~ -· , 

m\IJt SQ1 pan]cWar attention lo 'the rnc..anlt.(&nd lnt~Oilot"itJ pmirioas.. cspo:i.atlr cocc:tndt~~t.hes~ 

~J~~~~u:.m:~=;1=t1:~~~·;i6 problem wi.tll the Torture Co."l'ft4tioa-oM lll3l. pem~Qte; ttl our<:o110Crtl$-4s ~~~==~~ irs Jmp«d.c ddit.l:loll of tortl&re, 

esp«:l;tty 

nukt$"il vqy 

JSWt doublfu.l wm!Japplkdto.ctions..-iti.dtn:su1tso!e1y that dlJe Vaited S\11a·OI\ coN:is'ltliC "llil.h Ulmewl 

Cor.Wtuti<l~ 

~h. 

due 

'Jbisdtfinitlot.JJ 

pcoecss ooasvaiw. ~ fulflJI its ob!lptioa W'ldct Che Cocvet~tlOII 60 adcq~A:dy mpl\" the defiaitioo ofloctu.re i.ato th: domt:Stk c:dmim:l ~w or lhe UNkd Staa..")~td.~t ll{prqw'tdSCJkm.cntorM.ukRitfwd; "Acoo:dingly, theTortwcColn'CDtlon'lnpe 

dc!"Ulition ~1'14 1M me:cul ht!'erin,c up*< t!ftorturt.cant~ot be ~''Cd b)' tt!t.rertCe to d..abtiJbcd pdoc:ipks or iftl.t:matioaat bw. In an. cl'fort tO O"f'U(::mC.Ihi$ ~abl~ demcnrofv;apenes.s fa Arlie!t I ofiM CollvmUon. 

we ll>voproposed •o -twtl!<ltdeli"' <e~<remer.W paillCIIC!Stit1lliJ!g lortl!lt wilh sulfl<iml specilldU> 

lo •.• moet Col!sillllCfonal ~•• """"" "''uuem..u."). 
83 


628SECRE24.eps

TOP~i··t --IN~ distress or cfLSCOmfort th!tis lacking in extreme inte11sity may not corutlMe .. severe physical suffering'' regardless oftts duration-i.e., even if it lasts roc a yery long ~od of time. In 

defining eoodua proscribed by sections 23.40·2340A, CongJcss cstibllshed a high bar. The 

ultimate question is whether thc·eooduct •·1s wffidunJYe~reme and outngeous to warrant tbc 

univemleondemnation that tholcnn' 'torture' botb «>MOICS and invokes}'. S.. Price v. Socla/1$1 

People's Libyan Arab JQJ714}ririya, Z94 F .3d at92 (Interpreting tlie 'rVP A); if. M•hlrwvlc v. Vuckovfc, 198 F. Supp. 2d at 1332-40, IJ4S_..6 (mod&rd met undutbc TVPAbya oour,.of 

eoodu<t t!ut included severe beatings to the genitals, head, and odter parts of the body with m<tal 

pipe.s and vuiOU> other items; removal of teeth with plien; kicldng in the face and ribs; b<etking 

of bones and ribs and dislocation of fingers; OJtt.ing a figure into 'ho victim's rorc!tead; hlna.ing 

'tho victim and beating him; mreme Hmill-tions of food a.nd wa.ter;·and $ubjection to games of' '''Russian roulelt(."'). 

(3) The m~ing of "SfYUI mtnfO./ pain or sufltrln$~ .. 

Section 2340 defines "seve<e mental pail)'!' suJfering" to mean: 

the prolonsed mental harm eoused by or resvltlns from-

( A) the iruendon.t11nniocion ~r lhreatened infliction of severe 

phys-ic.e.l pairi or J.ufferins; 

(B) the admlnlstraijon or opp!ication, or threo<ei!ed 

dmlniitn.tion or application. ofmind-aJtcring substaoocs or other 

procedures calc:Ulated to disrup! prcifoondly the unses or the 

P<nQnaHtyt . 

(C) the threat ofinunill<llt dealb; or 

(D) the threat that tnOtherperson will imminently be subjected to 

death, severe ph)'lict.l pUn or IUfrtrina. or lbt.administntion or 

applioation of miod-aherlng substances or'Olher procCdures calculated 

to diSfllpt profOundly these~ orpeuonatity[.) 

18 U.S. C. § 2340(2). ToltUrc Is defined undu the statuto to includ .. o act speclfieelly intended 

to Inflict severe meptal pain or suffering. See/d. § 2340(1). 

An important preliminary question with. respect to chis de!in.ltion 1s whether the 51111\ttOC')' 

list of the four "pn:dioalc aou" in seetioo Zl~0(2XA)-{O) is exclusive. We have coneluded th>t 

Co~!!!cMed t~c!ist ofpredi«atca<:ts 1.9 be exclusive-that is, 10 .,lisfy the definition of 

.. severe me.1tal pain or sufferini" under the.starute, the prolonged mtDta1 harm rnUJl be caused 

. by acts falling within ono of the four NtutOtY utcgo<ies of predicate act$. 200f ugol -. ----~pllrlurn;t1':--W~"91lt:hnllnrii~~learlanguzg .. ofth10'S1llute;-·----

which providcu dettiled definition that includes four categories or pre4ieate acts joined by tho 

disjunctive .and dOC$ not Cbntilin a Clldiall pf1lvllilfn or aoy-othe'rl;mguagesoggcsting that 

additional act.! might qualify (for example, language such u "including" or •soeh acts a~'), fd" 

» n.ese fOUr(ltegori~ of predicate acts '\K. me:alb«s or ao 'a.s:ocilted grcup « k-rlC~,' JU$Uffln&ll~t. illf.m:t"« tlut itula r.o< meotioacd 'llo"qecxcl~ed byddi'be ~techoict. net inadvertcn<:c.." Bamltdlt v. f'(~~~~~Y 

C:O.I <;<> •• Sl1 U.S. ·14,, 16& (200l)(quot"'a Q"'td Slolu v. Y""", m·u.s. SS, ~S (lOOl)). S.o oU., <f., 

TO~RBT/ !Np{c)RN 
84 


628SECRE25.eps

TO~ .~1\N 

Congrm plainly c:onsfdefC<I very apeclfio p<cdieote acts, IJ>d this definitioo ttaob tho Sen>te's 

ur.decst~ng CO<>C«1!ing mental pt!n or suffering on which iii advice and consent to ratifiation 

oflhl'l CAT was conditioned. The conclusion that the list of pred~to acts Is exduslvc is 

consistent with bod> the text oflbo Senito'l Wldttllonding. alld with the!iot ~t the 

undeutanding was required out of c:oaoem that the CAT's ddinitlon oftonuro would 001 othelwise meet the c:owtitutio!lll requirement for clarity io deJinios <rim•• St.• 200( L<gal 

Skutdanls Opinion II 13. Adoptlos an ~ ofth•l!tMothlt expands O.olist of 

precllcate oc:u fO< ... ...,. onaml pa.lo or oull'eri"'" 'li'tdd eoosfuute anlmpcmo4sible ,...,<i!U.& 

of the-aod""""" intn>cluoe tbo vtt:y llllj>ll>Cilb> tlut prompted the Senate to requltethis 

Ullderston6'iJ1& u a c:ood'~ioa oflu a<lvioe an4 """'"" to nti6cotion of the CAT. 

Anotho< qu..W.. iJ wb«her lhe ~ of"p«>>oased a:elftlllan:D" e&uscd by or 

resulting &om""" of the <lllttneratod p<odicalo a<~s Is asep.,..te requirement, or whdl'.er iUeh 

"p<aloneed meoul harm• is to be P""""od aoy tinit ooe of tho pctdieoto 1<11 O«Un. Ald>o<lgll 

it it po.ulble to rt.ad the statuto•• refcrCnoe to • 1ht proloa.ged mental hum ccutcd by or resultii.\Q: 

from._ tho predie.ate ads as ueatJna a rtttutory _pre.sumption that ea.cb of tho preditalb tet' will 

always oa~se prolo<lgod menltl harm. we ooneluded in our 200~ L<gal Sr•ndartb Opfnlon th&J 

that was not Coogrc::ss"s intent. 1inu tho ttaMory d~finition of .. nvue mental pain or rufrering"' 

wu meant to tracl<thovnde<1tandln& tNt thoSenaterequired u aeonditloJitoits advice ...0 

CONent to 11tifioatioo of the CAT: 

ia O<d« to c:crucirutetorturc, 10.,. must bo opeeili..Uy iateDdcd to iollicl.-e 

pllysic.l « menu! P'l• or ~ an4 thai-..! pain or 1\16crio; refm to 

~cd meoul harm ow sed by oe ,...,Iring &om (I) tlle illlut1ionollon•ctioo or 

thr .. cenod iollietioo or ...... physi<al pain« o.oll'cring; (Z) the administration or 

JppUcation, or threatMed. admlni•ntion. or application. or mfnd. llttrina 

substanc<s or othtr proecdures oalwlaced to di.srupt profoundly tile oenoes or tbe 

penonality; (3) the thtut or lmminen! death; "'(4) tbe tlue3t lhot another pe11()0 

will imminently be subje .. ed to dulh, sovm physleal p.~ln or ouffetlng. or the 

~~ministration or application otmind alteriqg subsuncts or ather procedures <aleulaced to dlsru~ profoundly tho senses or penonslity. 

S. E.!_ec,J!g>. No. IOI-30 ac36. As wep<eviously sutod, "[w)edo not belio,..that aimptyby 

ad4iciiiio'ironf 'tho' Sefore ·~td ~' Coqress io:tendod t"llt"erill ehtn&• U. tlle 

defin~ioa of menlO! pam or ..mring ull1ial!ltod in tho s..,.tc's uodetmndi"' to tbe CAT. • 

--~fStcrndtJrds~.,..t~·l4~1>4l011uro~Uo:tlj<io"'----·­

artide I of the [CA TJ. n. delioltioa for ·..-.~,. Pleatal pain and sulferina' iaoo<p0r11es !bo 

(above mentioned] und<MandiQS." S.l\oj>. No. 10l..J07,-ot"SS-S9{1993)(ompbaoiuddod). 

This undctsw.!ins, embodied in tilt Statute, deli• .. tbe obUgat1o11 undertllken by the United 

St>tes. Given this ur.dcrstOAdin& the le olativelli~ory,.,., the raet tl\lt ...:tlon 2340(2) ddinC$ 

.,severe 1,2\Mta.l pain or su{fcrin(" WCfully in lansua.gc Very Jimtler lO tht under1tanding, We. 

boll eve lho.t Consress did nol intend 10 creato a prt~mptlon that any timo one oflhe·prccUeate 

1_.0/h.,.....,v, T""""C...O'II-"'I""U""""4c:-4i0«1on(IOr, la!U.S. I6), 16S(t99l);2A- J. SJrvp, Sldrdu on! SloM«y Ccru/rwd/0'1 f 47.l.l (6thl.lOO(J). No< do,. "'l<ll' 'OOClCnQ' lailicoCioos" th!! 

woal4rtbottltisiaf<t-. v .... mu.s.at4S. 
85 


628SECRE26.eps

I<1S oeam, ~ ~al harm is aut .... tically deemed "'result. St< 1004 L<gol Skrdtvtb 

Opinion at ll l~ . AI !he same time, itisConcc;vabltdwtheoc:altrmceofoneoftbo pctdl<&;c 

acu ol<n>e could, depeoding <Hllho <in:wnsunus ora pllliallar we, give rise tO an infereoceof intet~t to.,..,. prolooged mtllW harm, u requlrod.by tbo ~torute. 

. . Tul)ling to the question or wbac constitutes "prolonged 11\t!lltl harm cause<! by or 

ruulting from" a ('ll~ieate.ll(:l, w~ have, cooduded that Consr~s nt n4~ this phrue to t~ire 

mcntaJ .. hum" that bas some luting duration. /d. at J4. Thue is little guida.nci to. draw upon in 

'interpretiog the phrase "prolooged ment>l harm," which doe• not ippur in the relevant medial 

)itcnture. Nevertheless, ourintetprtC.tlon b consis,.nt v.ith the ordinary m...Ung of the 

IUtUIOfY tunas. Fir.t:t, the use of eM word •lhafm'" -as oppoud to simply repeating "'pain or 

I'Uf!Cring'"-suggesu SOm¢ me:ntal duo.ag. or injucy. Ordinary dic:tio-n:uy ddiaitions of .. h.atm;• 

.Uoh u "physioal or mental~" 111/firy." Wtbttu 's1hlrd N""ln/mlatlonal Dictionary at 1034 (empha>islllded), or"{p]hy>iodor psyollojoaioalh¢nyor"""".f•." Am<rl<anHtriiOgt 

Dit:llomry of 1M Englisii[Jmgv"f• u m (ea>j~hub added). .,~port tbi1 in!ttp<~ 

Sooood, to "proloog" me>IISIO •t.,pca io tipoe." "CX1tod io ~tioa," or "<!nw 0111, • 

Websur's Third N<W lnk"""/OIIal Dl<iJonaq at Ill S,!Unher "'ss<S'Jna that to be "proooopp. • the meatal damsge must c:ntod for some period oftiale. This.,._.,,,,. aetd not be pconnao..., 

but it must be intcad<d to oontinue fi>t a "proloe~~ed" period of time• Morto\'<r, IRlCiet Mdlon 

23~0(2), tbo •prolonged melD! batm" mu$1 be •ea....s by" or "rOS\IIting from• one of tho 

cnumented pteclicate ..... A$ .... pOioled out io11)0( /Ago! Sionda-tb Opilficn, this conol..ton 

is nol meant to suggest that, iflh6 ptodJcate act« acts conti-.ao (or a.n extended period, 

"prolonged mentallunn" =not-.ruotU after they are completed. ld at14· 1S n.26. &dy 

ocowreoceo or lhc predicate aot 00111d oouse l!lCl\lll harm that «Nl4 conti~ become 

prolonged-duri11g the extellded period the predicate uti continued to occur. Set, e.g., Sa<id• v. 

Ashcroft, 270 f. Supp. 2d 596, 601-4'2 (B.D. PL 2003) (finding thu predicate acu had conrlooed over • three-to· four-year pCJ"Iod and concludine I hat "prolonacd mental harm" h&d OC>alrred during that time). 

Although the<e are few judicial opinioN diso.using the question of "prolonged menctl 

harm." those cues that bave.addres.scd 1M. Wue tre c:cwisteat with our vi~. For enmpl~ ln 

l~e TVPA ca.~e of Mehmol'ic v, VtiC.bJ.t<, tho district '""" explained that . 

TOP~·-·oy,aRN 
86 


628SECRE27.eps

TO~ ~~ 

~ defmcltal) also awed oc pllliolpUed iatho pl&intitra' meotal t~ 

Meatal tOflllle coosl$ts o!"pcolon3ed IT#!lllwm cawed by oc ~ 1ioa>: 

\he ln.tt--l'ltlona11nfliet:ion or threatet)ed infliction of severe physi<:IJ pain or IUiforiag; , •. the thrut of immin011t death , , , ," As.., out ebove, plalnlilfs 

noc.d in tbeir te.limotl)l !Ut they ~Wed tbll tbey would be lcil!cd by [tho 

ddc8Ciw] dllriog lllcbeatinp holnnicted ocdllriogprou of"RRmianroW<te" 

EacJt p/41ntl/f COIIIITifiOS to Sll/fer long.term psydrc/ogfca/ harm as o rtS!Jit of the 

tNtkc./s they sujfu«i tJt tht hands of dtfrndant and others. 

198 F. Supp •. 20 11 13~ 6 (crnpba.sis added; fim tll!J>sis Ia origioal). ID ROdllna its cooc!usloo, 

the CO\lrl DOted dtat eaeb of tile plaintiffs were oontlnuiJI$10 suffer aerious meAtal 1\ann ovenlon 

yurunerthe<Yoaulnqaesdoc Su ttl. 111334_.0, In eaeli ea,., thescmon,.l offoctswere 

CO<Jiouloa,.... ell« tho inlll<Oion of tho prodlcalc-. S<< abo &x#• v. Atlraoft. 210 

P. Supp. 24 at S~T-91, ~1-02 {\'i<tim waa!Mooppod IJid "forcibly r=uited" u a cl>ild tolii« 

•t thc.,ao of 14, and, over a puiod ofthr" to t'ouryws, wutep6ltodly.rorccd to take narcotics 

Uld flvuteaed wit~ immiaenl death, 111 ofwbloh produoed "prolonged mcnrol hum" durina that 

rime). eo.mndy, ia 1'11/<da Aldana v. Fmlr Dtl MOtt#Prodllu, lo<., JOS P. Supp. 2d 12*5 

(S.D. Fta. 2003), tho court rejCCicd a claim under l;. TVP A brouaht by iodovidualt wbo ha4 

!><co held it aunpolnt overai&hiiJid rep .. todly ihrutoned with dcalh. While ,_sniz.Ins rb>t 

tho plaio¢111) bad e>q><ricoecd M "ordu~" tho oowt oco~dc<l tbat they ba4 1\ilc<lro show that 

!heir e>q><ri..,.. eauaed IIIIi. da!U£<, ooriQIIhal "'bere b simply oo alleption dW Plaldllli 

hav• suffered any p/olooged monral harm or physico! Jajury u a result oftholr alleged 

intimidotioo' Jd. 11 1294·9S. 

(f) The mtonlnf of "spenficclly intmdttl. • 

Ills well recogniud thtt 1he. tctm .. specific intent" has no clear, sc:Uied definition, t:ld 

thl! tho courts do no< u5C it CONlllendy S•• I Wayne R. lAFave, Substanrt"" Qoimlrrdl r-

§ S.l{e). at 3Ss.!t n.79{2dcd. 2003). "Speci&intc:tt" iiii>OSl ociiiiDOfllyundcntood, bo•..-, 

"to detiantle llpc<:laJ nteaJal dement w!>lch u Rq~~!(od abv.~ and boyond My'll!ental ,..,. 

requited with rc.sp¢01 to thoactvsr<us oflhc «imo." /d. ar3S4;,.. also Carttr v. U.irtd $JoltS, ·SlO U.S. 255, 268 {2000) (eocpl&iniag that ,..,cnl intent, u oppoocd ro spOclOclntenr, roqllires 

"that the dcteodant po...ssed lolowlcd~ (oaly] wirh tOipO<IID 1M-. r=s ol' tho «imc1. 

s._.. IIJ8&CII rl\lt only 1 <()a$eious ~ire to prndoee the proscribed result eo~itutt1 

speciOelntcnt; olhcra ousgest rhar •-rcSoonable roretoeobilily niiy ouf!ieo. In Unit<d Sk>tc.s 

•· Baifty, 4« U.S. 394 (19SO), for enmplc, tho Court ..,sg .. ted that. arleast "[i]n • senml 

sense. lit a. <WS, ~~batOiteQOCueiOt;1slyiJtsit~d a' 400 .05 

The Coun compared the common law's mens rta eoneeprs or.~ fie iol~ and aonerolllllml to 

tliclilOil!JWdil'COde·al!lliiTmr<Oncepts oheting 1"''1'•sefully and,.otins knowiogl.y. Set /d. 

at 404-Cll. , A] pcuoo wboQUStl a panlwlar rosuk is said to IQ purposdlllly," lvtotelho 

~ "i!'hc<X>llfdously d .. irralhatruul~ wb&!CIU tbe 6nlibood ofrl'.at rti'Jit ~ 

from hitoondueV" ld at 404 (inlemal quotarion morks omirte<!) rl. penon "iuaid to ail 

I:Dowini\y, • in eonii>St, "if he la awm> 'that that reoult u praaically oertain to follow !'rom bis 

COddu<t. wbatewc loi> dqir•n>ay be u10 that resclt.'" ld (UII«<tl quotalloo marla ...Urlcd). 

Th( Court !11m 1<ated: "In a sen-1 ...,., 'purpose' correoponds toosdr witll the tommCO·l&w 

ooncept or sp«ific il)lent,.whUe 'knowledge' cqrrespqn<Js loo.sely with tho c:oncept o£ ge11«1l 
87 


628SECRE28.eps

tO~, -·NQP611N intenL" ld at 405, llleo<ttrut, ea.euuclia.s United Slaru v. NtJswtndtr, 5~ F.ld t269(4th 

Cir. 1979). •ugg<st thallo pn>vo sp<cine intall it iJ CMUgh chat thodefeodant simply have 

"I<Mwled&e 01' noti<e"th&t his lCI "would bave likdy '""lted u.• ~ p<O$Ct!"bed outCOCM. 14. ll ll7J "Nocic<, • doe court t.dd, "iJ pro>ided byd»rouoo.t>le~ilyofthuaNRl....t 

probabte ccwequenc:es o( OM's acts. • /4. 

AA in 200l Ltgal Stnndardt Opinion, Wt wUI not •Hempt to as.eortt.lri tho prtcitt 

meaning or•specifie inlent" in sec:tions 2340.2J~OA. S..ld atl6-17. It is clear, hq\vever, that the neeeuary specilie int011l would be preseoc iC &nlndividu•l p«formed an ac:t 1114 •c:oastiowJy 

d<Sirl(dr cb>t~<~<o inllic:taevcrc pb)'>ical « ,.,,d p>iil « aull'criftl. I lAFave, Sit~ Crimlllall.aw § 5.2(a). t1 341. Con......ty, j( ao individual ac:ted 1ft good faith, aod.ooly ali« 

• rmooablo investiS&li'"' OSIIbllshi"l! t!ut his cooduc:t wculd not be expooted to Wllc:t ,..,... phys.ical or mental pain or sufftting. be would ooc htve.rhe spoclfio lnten1 oe<:e$S.lt)' to violate 

. .sectionJ Zl40·2l40A. Such &1\ individual could be u.id Mitbcr oonsciO\I.sly to·desirc. cllo 

pmscribod '""'~ nt, e.t .. Bailty, ~ U.S. at 40S, nor to bave "knowled&< ee noOeo" t!ut bis tel -ld likely ba~ ....,11<4 tn• tbo pror<n'bol C<J100ft1e, NU.Wtndtr, S90 F .2d at 1213. 

As wo did in 21JIU Lttai Standards 0)>1/dorr, .. -e West two &l!ditieoal poinla rtpnlios speCific Intent: r11>~ spocllio intent iJ diltineutshod from modvt.. A good motive, 011oh as to 

prot«e n.Jtkmal sea~rity, dlliS not exeuse conduct that is spocir,c:ally Intended to Jn.Oid sc'Ve.re 

phy•i<~lor mentil pain or sufl'Orlng. as prosoribed·,by the scatute. Soeond, specific Jnt<nt to lake 

• sivcn action= be f....d ev<n if the &etor -.!<1 t&lce the lCiioe oaly upon uruln ..... itlons. 

q . t.f., Hol/4way v. Ullitd Suw, S24 U.S. I, II {1999) C'(A} dcfend&J>< wy nol acpto a 

p<ooaibod inlet by requirina tho vic:tim 10 coa=ply v.ia a coodhioa the dc~ant bas no riP 10 impooe.j. Sttcrlsotd.atlO.It &no.9·1l;ModdPenaiCode§l02(6). Tho~fOfenmple, 

tho faot th1t a victim mlsht h&vo avoided bdng oOtU!red by c«>p<ratins v.itMhe petp<trator 

would not render permissible the. rC$011 to conduct that would Q(her\\'ise constitute torture uOOer lhollatute. 206~ Ltgal Standatd>Opin/on at 17." 

m. 

ln lhe disCU$$lon that !bllo~ we wllladdress eaeh or1bcspeciGe interrosarion 

tedlnlques you haV< dembcd. Subjec:t to tho understandi•s•. llmlollions, and .. r<suards disiussod herein, illcludln$ ontOittg n:tediealand p.sycholo$ie.al monitoriQ8 and tUnlintCf'Vcation 

u noc:oswy, we conclude that the a.uthorlz:.od use of ea.eb oflt.ese c«bai~ coc.tld«td 

individually, would no1 violl10 the pn>loi'bltioo tbt eo.g...., toas adop<ed ;, ...UOulJ4GlJ"ll6,...~~ silll' Is ~~n ~ard ..ph ~ to all but cv.,,oftbe tedloiques. Uoe of deep dcpr1vattoa &$ a.n enhanced tec:hniqu.e and use of the warctboard, howevu, iavolvc more 

substanolal queotiO<ll, with the w>tcrl>oard proscntl"'l the most aubsoantial question. AJohoU$11 wo 

- ·----wnotude1hal1"""""'f'tlf ... 1~u=J'"W''l\1!mtlliii'IMtn'llllmje<t !O'tlle1imitati1m:s-- -

you haY< described-would nol'viobte theiWllte, the isJUes raised by lhe"' two tcohniques 

<:COliS<! grut cmtlm'ln tbdrust;11!d~ar~ all-Ill dlellln~Wi~>ctnnd 

Jt The. Oi=illll OM*- fl~ ~~C hlstioeha$~ fils ~ocaadtlmW 'sAlism.ibt a~t cwatl llllapt'CIItioa. ot!M ltpl ~ ~ Mdl014 2J40·lJ40A h cor.d~t 'llilll iu OXl~ence In cbc 1()(}1/A.t~t $1(lndard.sOpr1ll011. 

10~·--·NO~ 
88 


628SECRE29.eps

,..OM atft IS 001 

ro~---tN<o,o'w reslri<tlons J<lU h&vod...nb<O ..0 also.._ ar.d 0011\illlll:.g IIIOC!ical tad~ 

moniccrins. 

llefbu addrcnlna the applleaUon of sections 2340·2HO/.tolhc specifio tedU>iqu .. in 

cj\lestioo, ,.,. nolO certaio ovcr>U fcalureJ ofll>e erA 'aapproodllhlt ate signiGcancto our 

cooclual- lntenoeaton arc lninod an4 omifiod ia a coum cl-.>1 you have infonocd us 

aarnntly luu a~llllltcly four ....b. lntcrroptors(and ~« petiCC'.r.d dq>loyod as port of 

thls provam) m required to review and aeknowledac <he applloablc in<errogation gvidelinea. 

St~ <At!/ln<nttnJ Gvld<Unu at1; ltdiJTr)galion CMdellnuat 2 ("Tho Ditec<Dr, DCl 

Cawllcrtcrroria Call« Wll cosurctbat all p.......,...: .~~~~~~~~ penons d«alnod l"'f'UW 14 1he autllorities Sd fMh ~· have t>«n appropria tlr~«ccnod (lfom the modica~ 

have f'evlewcd these Oulddines, havt. received 

have <o"'''lded lhc all&ch<Jd AdcnovllodgemCill. intcrrogalonue 

adequately tniMd, that they onden~ nd thedeJi&n &04 purposo()(lho lote."J''8&tioa ~ 

ond that they wiD apply the tcehniq<~e~ ioiC<Of~ -..ilh lheU outbo<i<od and lnteodod Ilk 

Ia addition, tho 1nvolvemonc of 1Uedical and payeho1og.ieal penonnd in the adaptatioft 

and applieacioo of the esu~>romod SEI\B tcc:liolqucsls putieulu!y noteworthy for pufposes or cor analysis." Modie&i pa=l bave b«o icYOIYod ia ~ ~.U<atiooa ....-...d requirina 

cm,;csl<>-«tt>in ptOCodurco, pllti<:ultrly the ute oC !he wautl>oatd." We ht• .. bad exuo~h,. 

n Asi&Olo4abo'tt,acb:cClhc.s.c cd\nlqlestwboc.QW~cd(t ~lrlsooacwcswhhsipticw 

·mo4ifi,.llool)ft ... SEN!....,._ Th:..pJOUt""'o>llltlco.,;Gt......,Loliridooah~CO<­

....... ,..._....,_ _ _,..,."'fC''<oce_....._"O!Ifcb,...loave~loCL Aplo.6:lly 

~ll>e'"""-tiri!UooooofOap<ricnoo,,....,.a6""""'...,._""""""._"""_ 

~~~~:;:;:'.otr"':!:t=~~=:.;o;;:rztl'fE= . WU!Jdlool od.!"" ""'d>IM,Iois ~~'No ll'd aiWCyun b lhOt .,...;; .... "- :::l'ooc~ 10, o:\I:I:.'=".W. oC 

•*m4roppod CCI r.uo.~a&,...ollhcl«h.'Oiqo¢&. lollllou;llocnteOOCO$!..,. ..,~.,._..uy~ lh< 

=~::.."'!:.~~~::f:;.~1ft!l'1="~10- k'ftycatStxpc:rlcnce~ChSEREr:aliin&IOW)WC.bWJIO«J~"CotMJ = eoc=~~J~e; 'progtm IUilrcfln& lA'/ a4vttM meatal btaiUI C1ft¢b (!llouth he tdvbed. ~[OM P«11ft wbo dld fiOI. ~kU Che 

~~~~-•..ulbeallllmelloollnllol!olo .. -.wpi!i$?''zlrfi'U ...tm"" 

_.-;;-.:"~:.'\;==~":.:::":::! :.:l~h -----...;:-"'ii,~==-~~~=.::-~ 19tllhlou&lllOOI,oo.lyO 14Y.werepolkdfromlloepo*""~P'fCllolosJco.l r..-(~pe<:iftc• y,alllooop 

~~~::~=antY.tt'indl ~~~ 6otoriolloc.r..-.swoO«iot-..ooo-<N~Ikllllloloc<W""....,...,.'""'""""'~""""" 

lha itlhcro"' ""'"''....,. P')doaloP:al<£rods of !I>.< lt1i~U&ot d,lky "oro """"'17 mfri,..L • 

• H We nole lll:ll mit i.lrrolvtM«<4 or nledia.J perwnnd klduicnln& W~dr COt, w In ri\Odtori~ 

lmpl--"ao( lhcpr........,ls ••~dilf<r<!QCromcadi"""'.ru..ocoiWquc.Qialopdlnlho 

Wpcclot Oeocul's Repoft. SNIGRt'JWI It 21 &l6 ("'MSwu ~c:oG".IJtcd 11« knoolvc:4 j•lbt friti.ll 

...:)'I!Jotlknaoo4bcodlosor(<dooood....,_~l-,__,;,,.ars..,..,_• 

~OLCopWca(lhc/III""'I"""'M<-.,oJ.'). S"""'L'otlimt,bucdOG""'""""',._OMS,::ddilb:al 

<01\SIIllnll hoi'C bca\lm~ on II!OoCillc ~CC~Wcroes. 
89 


628SECRE30.eps

meeti~widllbem«!iealj>USOIII>d m>'OII'Od io monitoring lbeuseofthesotcchoi~es. [< .. 

dear tho! !bey b&~ c:oret.Aly worked«> e.uuro chat lbe tedlnl~os do 001 resulliA .....-c 

j)hylieal or menU! p&ia or sumring 1o tbe cktuo .. i" Mcdicd and psycbologicd pcrsoMel 

evaluate each ckt&inee before the ... ofthc$e tocl!niquos on the deuinee i$ approi'Od, and they 

llO:Itinui to mooitor each detainee througllout hls inlOII"Optioa and dctell!ion. Morc:ov~. 

medical pet10Clod arc physicdly pr=t throughcut application of the W!lerlmrd (aod present 

or othecwuc obsclving the we of allteclmlquca that involvo phyaieal CO<Jtact, u di.sc:uased more 

'fully above), and they cuef\J\Iy monitor dctolnces who uc undergoing oleep deprivation or 

dictuy IIWlipo.lluion. In &dditiOII, they reauwly ...... both lhe mndlcd lllcralllre and lhe 

ex)le<i~ with deuineo;. ~ OMS bu spocln .. uy dcdarcd'lhat 'tm)cdicd offiecct mu$1 remalA 

cogniu11-t at all times oC th~ir obligation co JKCVtnt 'Kvtte phy1iCal"or mental pa.in cr suffering ''' 

OMS O.W.Tinu u 10. In lUI,~ understand tho! medical and psychological pertOMd have 

dlscontioucd the 11M ofiOCboiq\10$ u «> • partlallor det&ioeo .. n.n they· believed be mijbt aufi'Cf 

iNch pain or Nlferiog, and iA cctW.1 inltao<cs, OMS oncdicd petSOMd ha\'e oo< t:l<ared ccruin 

delaiDecs fur 1011»-<)( lfty-ted!oiquu bU<4 oa tho ih!tial m<dicd and poyc:bologjcal .....,....... They hove also imporod adc!itio:ul ru:rictiocu oo thew.: oftecbniquet (oudl u 

• the watctboord) in ord« to pn>tect lbe ..Cety of dccaiotes. thus r<duciag filnh<t lbe rU1: of.._. 

polo or wlfering. You b&ve wormed uslhollhey will """""'•to lave !his rd< ond auchorily. 

w .. ssume !hal all~ uod........S lbe imporwu ro!ellld au!liority o!OMS pawr.nd 

and will OOOP<flle with OMS ia the ox«ciae oflhc$e dud .. 

F...Uy, ill sharp oontriJt «>lhosc priCIIoes unlvuully eoodemae<l u tonure •-lbe 

centuries, !he techniquea ,... eons!d« her< have been wcfully evatuate<l to avoid caoaing '"""'' pain or IU!TcriJJgto the det&i...,. NOMS has d ... ribed lhcsclcolrriiqu<> u a gJOUp: 

In all insla..,..s dtc general soal orthe~ teehniquos is a psychologic.l irnpacr, and 

noc ~omo physiealeffe<t, wlth a apeclOo soalor"d\slocal{ing) (lhedcuiDcc's) 

expectations re-garding the trc.alment ho balio ... es he wUl rtce.ivc . . . ... The more 

physictl techniques ace. delivcr«l in a mtnner cart-fuUy limited to avoid sertous 

.P•in. The slops, for eumple, are dcsJ&ned "to lnd~J<etbocl:, surprise, and/or 

humili.e:tio.n" and •GOt to tnDict phyaiul pain ch"t i1 "vcre or b.stin&." 

!d. .. 8-9. 

~areri:w:!f'IIWuc,.~ ~~t:n.-.d.abcc:au::dto~IICitpmUC. 

~~brlccqld~~Cl~'ridamaiM.Mdccuc:ioutoastocxtc:tdbb~c:cizr6. lliJabsdlldt deat, u JW b~klon:nc:d us-.iuoat'" ~'~~rid~ OMS~ )!:nor: CC!Oit~ Chlllbc: iavolw.cd. 

----. ... ,,.,,,l ...... rt.:lrt•ib..-.... -~--M<bc0./ddiiOuapblo, "OMS is mpco•l>I<Coc ..-l>eaod IOOOlo.orinad>e bealt!t<lolt A(,<::JI;f-~ 10 

'~lr.<cuop!¢aJ~ol<l.aa!.f0<4c'W .... I""'II><~~IR!rJilOC< -:4 ""b< "''""'d '"""" .......,., pcrii\IOCOllwm" 0/ISO.IclcJiou• '(foocw.•ocoitlcd~ 

K Toas:sistio~u:pcriatOtMt21Cilt~, ~utdcntandttuttbcteiscc(U1u~on 

~andp$)'Cha!~ ~cnoe wlllltheotoot'lt!Hot.cdlnlq~KSOCidcV:""*a:~~t41e~~spccial 

;~ON on docu~Mtltirtc expa;_~ wt~ docpdeprtvttio-" end d~ '111lc:rtoml. Sec 0~ Cistfd~li~~<J •t 6-7, t6, 

30 
90 


628SECRE31.eps

Willi lhis back8t0und, we tum 1D the lj)plicati<>n of secclo!ls 2340-2340A tO ucb of the 

specific lr.ltmlCuioo tocbnlqu<$. 

I. Dlettuy manipulodon. Buod on e>q)trieocc, leis evidtqc Lhu Lhllceehciquo i> no< 

eq>OCtod 10 c:aue uy physical ~ Jet al®e polll thJt is exu-ia iate<ulty. 'The detain« is 

<are!UIIy monilotod to tnlUn: that he doa not tulfer aouto v,-dp Ieos or 107 4dlydratloa. 

Fwthet, thete is nothing In lho exp«<onoeofQ!oric intake at thislevd that oould bo oxpoctod 10 

tmse pby.:..J p&ia. Altbouah we 6o 001 cqwco a-who voluntarily enters a woip-lo$$ 

program with • detainee subj«tod to diewy mtoipu!lllott as an intomgadon tcdmlqut,""' 

~tieve that it il relevant thatsevectl commefclal weisf\t·lou programs avanablo fn tho United 

Statea involve similar or eva SJOIIU n:dU<docu Jo c.lorio inttl:o. Not could Lhll teel"'lque 

rti!OC&bly bt lhoupt to inc!-• ......,. pllysical svffm.,.. • Al.....,gk dicwy m.mipul.U... may 

oaU$e. some dogreo of hunaer, such art expuicnco is Car (rom extreme buoger (let a.tono 

lle.rvation) &ad e.nMt bo expected to IIIIOWI1 to ~~e~o physicalsufferif\8" under tht ttacute.. 

The Coloric: lewis tre.., buod on d>o dttai .... , weigbc, to u co ......n cbtt d>o d«ai:> .. does 

not "experience exvome hungtr. AJ noted, tr.any people pv1iclpace In wd~ht-loss ptosrarns clue 

involve s\miltr or more stringent tslorie lin>imlons, and, while '"'ell partlcipUion tiiWOL bt 

equ.tod "ith 1M ose of cliewy ~>'.IJiipulUioo u "'iawroptioa totlulique, wo be!i..,. 111&% Lhe 

..Uttoto of N<h prcgrunsls nleVU\1.10 Ylbc•ber dieouy m&llipuladon """'ld cowe .,.ve;< 

physical wlferins" within ~,. meanlna of sectlono 2340.2340A. Bccawo tbote is no pro>pect 

!hat tilt tocl!niqlle ......U oause .-o physic&~ pain"« r•fl'c:rlog. - ockclude thu lho oulhorited 

use of this teclullque by tn od«!'Utoly lllined intmogsW could 1101 reaJO"'bly be c.omidaod 

speoiOeoUy intended to do so. • 

This toehnique pctlctt$ .. iuu< or•sevcre m<ctu pain .. sufr.riua" within the IIIOilllns 

of sections 2341l-2340A. bttl.se the use of this teennlqu• woold involve no qualifying pn:dielte 

&a. The tec:M!que does no1, for elCIII'lllo, involve "the inuotiontllnOiotion or threat toed 

inftiesioft olwmo pb)'lieal pam"' JUIT<rin& • 18 v.s.c. f 2340(2)(11), ot 1he "&~ 

..• of .•. oeed~re~ oaloulated to diSNpt profoundly tho sc....s or tilt personaley,• ld. 

§ 2340(2)(8). ~io<enver, !hue b no buisto belie~ tJw dietary mlllipulatlon tot~ld t&U>< 

"prc:O.Sod n=tlllwm." tbtrefote, ,. ... oondude dtlt tilt IU'.boriled uJe of this tocMique by an adeqwtely lllll\ed intcnogator oould not rwonal>ly be .O,;duod spcdr.eany lnlendod to 

eau.ta.ll!!J!P>:rm·" .. 2. NU<fity We undont&nd thu nudity Is used u a ti>CMique to erette psyd>olosleal 

~---4isoomf01tof'lot.CO inRi~)'-pby:siyal.pa.in..or.l\lffetiag Von have Informed us that during the 

use of this techciqut, delaisK<:s .re kept illloeatioaJ wich ambitnl tomperotureslhat «Wlelhere 

is-~ttolhcir heahb. Speoifitolly,.thiucdloi~~.w_~s 

below 68'P (and is unlikely to be employed below 7S'F). llven if this technlqoe involm &Ome 

pbyliesl disoomfon, it cannot bt said to cause "suffcriJca" (as we have cxplaiAed tho ttrlll 

" tAfnl•l•. U.Utod ~ .... U e-. 0.11.1\. (L<r. A)(l111), tk~ C.ortciEWINll J1it11U -~•-flt~""'·-dicc.-•.....,_,...,.,_otcC<tooc~z~quct,.ru ... •-•co .,.....,,· udetioedlollloEor.,...~acHe-JUP> nt.-.r ... C>nooasitecdol 

011< "!Our.cl" or bread w a pir.t orwotcr "">' 1ix lloun,#t td., "'*>~ epfnloaor ludlt Zdda, Pill A. no dctnotioo o/lhe......, did in tlut""" b 1104 dlar. 
91 


628SECRE32.eps

above), Ia alooe · ,...,...phT0~ ysical paiA or --· aulfaiog." and we ~ooodudo 

·9IfoAN !hat i1J .,,horizod u.. by an adequudy tnlaed intmosatot ooolc! not ....... wy bo ooosldcrcd 

specifically intended to do so. AJthoolab ...,. d.uiMes roi&ht bo INmililled by Ibis tccluUque, 

upoclally siven posoib~ cultut>J ...,;dvitics and the poS01'bility of boing scco by fcm.lc 

· officC(It it cannot c.on.stitute. "severo menu.! paiA or suf!eri.ng11 under tho ltatute because it does 

not Involve any of the predicete acu specified by Congn:ss. 

3. Afle~rtion grasp. The aueotion grasp lnvPII'CS no pb)'Jical pain or suffttin& fortbio 

<letainee and dOt.! oot Involve any predicate aet for purposes of severo mental paio or suffe<U1g 

Wlder tbo otatute. ~dl"llly, bocausethiJ technique Clllllol bo expected 10 ca ... severe 

pbyslcal ot mentol poln ot Nlftring. wo coadlldetlut its authorized use by to adcquttdy tninod 

illttrToptor could 001 rcuoaably bo coosjdtred spceiflcally iolcoded 10 do so 

4. Walling. Allhouslulre wolllns t<dl:iiquc ir.voiVt.llbo.,.. of ooosldenble for« co 

. puth tire dtrai11<>0qain1t tire""' &od rmy involve •llri• """'bet of "901itiON in e<r~ain .....,, wo uodemaod th>t lbo f&lse w.lllt-'l b 1\led b llaib!c •od t~~Jt tNstecbolquo Is not d-.ipod to, 

and dOCI not. c.a.use $C-Vere pbysfcal pain to tho detlineo. We underatand that lhue asJy be some 

p&ln or Irritation associated with the oolllr, wtucb is used to help ivold Injury welles whlpWb 

to the dellince, bUt thlt aoy physical p&ln ossoclatcd ~itb tho uso oftbo colllr would not 

opproad> tlle love! oflntetUily nzcded 10 con•litute ,..,..,..physic&! pain. Sjmlluly, wo do n01 

bel love that the physic&! distrus caused by thiJ toobnique or tho duration of Its use, oven with. 

multi pi~ repc:eitiOD$, COI.tld ltftOUJU co 1evcro ph)'&ic.aJ suffe:ing withlo the mc.aning of fOCC.Ions 

2340-2340A. We und<r'$1>nd that mod!o&l and psyd>oJosicol pmonrt<l aro p<CI<nt 0< obseMttg 

dwin& the we of this teclloiquc (u with all techciques involving physicalcontaot with a 

doui,...), ud tbatany m<mbet oflbo team .,.. tire medical sulf may iolercodc to IIOp tho uso of 

thcl«<lnlquoifit Is bt!ns used U...pfOptl!y or .rit_.,,.. that it m>y.-iJVury to tho 

dow .... We also do not bdicva dut tho use of dis teeboiquo would m-.olvc 1 tllr"tof 

io.fJicc.ion o( severe physical paia or tufrcrina or OCher prediel\e att f01 purpose:~ or aevere. mecttl 

pain or sufferins under L'>ellltlitO 1\.lthe<. this tcdm!q.o is d"isned to shock tbc d<tainee aod 

diwpt bis e>q>oct•tions thtt he will n01 be truted forcefUlly and to woar down hiJ r<$illlnco to 

1nterrogalion. Based on the&e undel'tl&adinaJ. we conclude tb.lt tho authoriud \IH of tbis 

l<ohnlquc by adequately trained Interrogators cOuld OOHcasonably be considered spod.flcally 

Intended 10 cause sovcre physical or mental pain or lUffering in violaiion oheotions 2140· 

2)40A.'' 

S. Facial hold. Like tbc atlmion truJ>, this teehciquc involves DO physical pain« 

tu.ff'~Gtl does not fftvolvo any proclreate.~~et far purposes or JICV«e muual pa.ln or $Ulftring. 

Aocon!iJI&Iy, we ooncludc tbat its autboNcd .,. by a.dcqu&te!y trllnod intemrgllotS oould 001 

" lalnr.,.,-M•-"""""-.. ,.r.otdco<rib<ll><wdio&toclaiq<><aJmoclviattlic-ol 

'lq><litl-.-...nd.,..,.W.ppllool:' -~lkl&'·~· 

spo:iA!all7 b>soloalhe ....,_"' o... w. .,........,..c...r~u~aolyoo "''""' cbc.S.U.. w at.oct 0'( the; c~ to ~6ml.lbodcuiL\(II'atesistulcc. end to diftP' CJCPC<Ut~•lhl• be .,..;11 tot be ttu(ed 

wflb force, aad lhat'JVCh use l.a aotlQt«ldNIQ, t.nddoes Mtln ftd.caust.~CYCre phy1icaJ pain to dledtt.llin«. Moreo'ltt', OUt 14\'klc.Jpedr.ca~ y UAalC:S tb.&t \be IJSc ofnltlr¢ wiU boo Slopped lfttlm IIIAJ'Indical.iou dat (It~ 

~of l.be tedltlfque fs « rcu:y be c:aU$1.1&' JC:'I'Uo phydcal pala '0 ~t!kaiMC. 

TO~T .I • --IN~ 

32 
92 


628SECRE33.eps

,..OM, •• ,, •• 001 

TO NQPO'IIN 

reasonably ~ eoruidcre<lsp«ifieally Wended 10 CNle severo p!lysical 0< mcttal pain or 

IUfftring. 

G. Fmat ,skrp or lruull ~lap. Althovsh thi-3 tocbttiquo inYOiv~ a d•s,.c of phys.ietl p:a.in. 

the pain wociatodwith a ol&p to tho flee, u yoo h•voduaibed it to us, could not ~txp<Cled 

t6 C<>Mitute ,..,.,.. phy>ieal pain. Wo uoderstand that tho purpc>so orthll teobnique is to "'"'• 

lbocl:; ouq>risc, or humiliation, cot to inDier physl"'l poin tb>t is severe or ludna; womume it 

.,;n ~used accordingly. Similuty, tho pqslul dist= tlw m&y be ..used by an obrupt Jlapw 

tho &ce, <V<P if f<!'Olted several ...... would noc eoastilute .. cortended orate or oooditioo of 

pllyaul ~.df<rio& and also _,.d 001 likely iovolvothekvd of intensity r.quuod foe....,. 

pllytiu!IUII'erio& undo< tho"'~ Fic&lly, al>cial sbp would no< iovoiYe • pttdiwe .er Co: 

purposu of..,..,. aumtal pain or 1111l'..U., 1\=f<n. dtuuthoriud use ofthu toohniqce by 

&d<q~~atdy tniled iotetroptOB could oot t.uonably booonsidored sp«iOoally Intended to 

eauao ,...,. phy>iul or mental pain or oulferiaa In violllion of sectioN :n~0·2J40A.'' 

7. Alxfo•nfiiDI slap. Althqll&h tboabdomiMislap tedulique might lnvolvo some mioot 

physieal pain, it Clllnot, as you have dc:Jetibed ft to us, be said to [nvolv6 even modertte, let 

alono :wwn, physical p'&in oc oufforins. Again, bce&usolhe technlque eannot be expo<tod to 

COuse severe physieal ptil> & sull'erin& wo 00!1Civdethat hs aulhotlzed use by an aclequatdy 

tnlned inlerroptor oould not reuontbly bo coosi<lcn:d spocilkolly iotended to do so. N01 could 

it bo considered Sl*ifioally iotended to...,.,...,. mtntt1 pW> or suff.Oilt within~ 

m...w., or-x.ru 2340-ll40A. u..,.. of the st1romry fll"'&l1e acu .......nd bo pea<~~~. 

a. Ot»,rptd «1f1/intm<lll. l1U l<Cbaique dou""' U.~ve aoy sipfie&at pbyaieal paia 

0< sull'eriaa. llolso dou DOt invo!Ye. predicate ... f« p<l1POSOt or sever• meiUl poio or 

11111l'ering. Speoificolly, we do not beUevelhat plo<:iaa a de!Ji~~«ln a dulc, ctamped f91CC Co< the 

limited period of time involved heR oould JWONbly be cOO>sidetod a ptOOc~n calculated to 

disrupt profOIUidly the...,,.. sou to oausoprolonsed mental h>tm. A090t<lln;ly, we conclude 

tblt its authoriied use by &dequttcly <rolned inlcm>gat<>r1 could not reasonably boconsidctod 

sp~neaUy Intended to cause $OVett phytte.l or mental~~~ or wffcrln.gln violttion of1ectiortJ 

2H0·2HOA. 

9. Wall standing. Tho w&llll•odiosteclmiquc. •• yoo h&ve desoribedl~ would not 

IR~rne physico!' pain withilflho JllOI.fl!111 of the sulule, It >loo.:&MOt he copoc:~ed to 

cau .. sovwe pbysial sull'<tioc- l!vca if !he phyriul disoomfort or mutdc lltijpje aSSO<ia<ed 

w;sb w.~ll srandina migtu be tuhstwial, wc m;dt:rStaod rtu rhc durarjon oCtbe scdJ.gjm is self'. 

limited by the iodividu>l 6 t\lioec' s &b!lity to susuill the po>itioa; tiM, the 11>ort duration of the 

d~moans~q~mlllld~a~ollllUII&tllil.~~

be con.sidered speeifiully lll!trulod to caux, mom pbyricol sufferi~g. Our tdvico also.,...,.. 

th&l the dcuinee's position is not desl&nod IO p<oducuevue poin thJi might rCIUit ftom 

contortions or twisting of tho bo4y, but only tcmponsy muscle r.c.igue. Nor dots wallllllnding 
93 


628SECRE34.eps

....... o . .......... '0 . .. , . .. ........ . • , •• • 2 • ., ... ••• 

involve any predicale ;ct f« pwposis ofa<vcre mental pain or suffering. Aeoordinsty, we 

conclude that til< authoriud Ul6 of this tccllnlqv< by adequuely llllned interrogllort oou!d oot rcuonal>ly be considored specifically intended to cousc sen<e phydcal oc mcn\11 paiA oc 

Sttlfama in viol <lion or tho ltltu!C. 

I 0. Strut pcJIUI)IIU. Foe the same rcuoN tb&t the usc or wall ttanding wuuld not violate U1e cwute, we eoncludetiutlhc wlhorized we or w..s positions such •• those de.sulbed in Tnt.,gatlon Mtmcrani!um, It employed by ldcqualely tni&ed intem>ptors, could 001 

rwooobly be CX>lllideced ~cally inteeded 10 caase ...ue pbytical or mer.W ~ oc 

suffcri"' io YioUtiooofsec:tions~I).2340A. Aswtth .. ..U SW>dins, welll>d....w.lcbwthe 

dun.tion ofche teeboiquo is aelf·linilicd by the iodivi6utl d•u'-'• tbnlty to sust&in cho po$!tlon; thus, tho soort dun.bon of the di>comfon meall$tbll this tccllniquo would not be expooted to Cluso, &OO.eoutd not reo.son&bly bo eon.sldered spoclfically intended to cause. aovere 

physictlau!rul~ Our alfvlco also assumes thal wess po!lti<w 11'0 DOl dO>~ned 10 produce 

sevoro pain tb&t ~"*'It~ ccctortiocs or twistq: of the body, but only te~CII)' CDJS<Ie fatigue... 0 

)1. Wazertt...s!n&. Asyau btve der«ibed ittouJ, wotcrdou•i•S i.,.olveadoullnsthe 

'cJeta.inee whh watct from t oonttlner or & bose without t notzlo, and Ia intended to weat hJm down beth phyJically and plythologloally. You hive intormed ut tllu tho wacer mlaht be u cold u _. t•F, t.hougft you h.a.ve further.&d.viaed 1lt that f.be water aenttally is not reftiaet.atc.d and lll<Rfor.is lllllinlytobe lwthln SO'F. (Nevet1belm, r.. purpooesofouranalys!J, we wi!1 

UJUmethat waeruoold u4l'F mi8b!bouood.) OMShllad'li...S thai, buedoo thoeotteaiive 

expecienoe in SJli\E U'Lni113o the medic:tllkerawre. and ~~experience witb dettioeet to date, 

wacor dOUJlng as outborized ia not designed or eotpCCtod to cawo aignifieant physical paln, •nd o:nainly not lt'lett physical pain. AJthouab WI) undefst~nd thal prolonged fmmu.rlQII In Vet)' cold water may be phyaieally palnfil~ u noted above, lh~ int<m>p.doetcclmiquo does not iDvolvo immenion a.r.d a aub11antW mugfn ot afety is IM:ilt into tM time limitatioo on the u.se 

must 

or t~ 

bt 

CIA· 

limited • .,..,. douW1& tccllnlquo-we of tho t<duliquo wi!h .,..., of A,; .... ~­

to no morolhao ~4s of the time in.wtiieh bypot~ermit could bo ~od 

\0 occ:w from tQIQ/IJnmtrsiM In water oftht ume tc:mptnb&rc.4 While being cokS can Involve 

physical dlaeomfort, OMS aloo •dvises lhacln their profel$lon&l judgment any resulting 

discomfort b not txpocled Ia bo inletUe, and tho duration is limlted by specific ~m" tled to 

4 Altrtslposidoatb3liJr'lfiotruN:b~-~-~U Oit bddforJO ... tbllliClCII:iM. DOI~Ilpro<oclnc_...,._,"""" __ _._qaco<Joos_tlo<_ Q:A"")'fltldM~Jf.JZ: ttii'Ctn<r/~ .. a lo&(l99l)(lldi"'tblollot"fllotd"'IAitldiVIjo>lto 

--

stand. fll. orbed bl. tbononral podiJocu for proton,td peM..U o{tli!K" ftiiJ' ~Me: "torture. .. ~l.)l!ft.lllo -;.;.;;;""""";;;;;;' ;;:'----

-<>f~Thlrdo-~-e.n~tlll~~Wtto:rolll( 

""'.YI>o io!tlc<co!GO ptUol><n clwat," but octaddt"'"" II U.S C. If U~O.ll40A~ \loik<! Ntdont Ococ<>! 

~.....r~.u.a~~·· ~ ·"""" . V.II.Doo NWI!OM {Scfll,~(~tlul~-il p!I&Mon6'

pasitlco{' .. cMio""""'_l>o_at-.). 

" ~. e;oo-m lnehco~ly llt'llllcdycVU~tdilt~fd !1\ W'idtt Lhedtaam.Ct&OCCI 11. wbl.<:h diLs technique b wed-Uic ~ ¢10fe mcdblflltll!nisioa l:ld, f b.ocleaaly, m.c:dlclllllCnlioA-llo~ 

uodci1Wid tlut a.. lltlalaee - ld be c_..s •• ""'"" tllllt U>d "Pod!)'· 
94 


628SECRE35.eps

( f 

water tempenrure. Any discomfort caus«< by this te<hnique, thetefore, would not qu•llfy u 

"stvere pbysiCl! sufl'eril18" within the meanil18 of sections 2340-2340A. Consequently, given 

,that thete Is no exp<Ot&tion thl.Uhe te<hnique willowse severe phy•icol pain or suffering when 

properly ustd. we eonclude that the authorized use of this tocftnique by an adoqu1tely trained 

interrog1toc could not reasonably be ecnsidc<ed speeilie.lly intended'to cause Utose resulu. 

With re.>ped to mental pain or sul!ering. as )'ou have described the procedure, we do 001 

believe thlt aoy of the fi>u r st&tutocy predicate aots neeessuy for • possible finding of sevete 

menc.t pain or suffering under tbe statute '""'kl be present. Nothiqg, for example, luds us to 

believe that the detainee would understand tho procedure to eon.sliMe a thrc:.tt ofimmin.ent 

death, espeoi:lly given that cue is taken to tn.sure thlt no ivatcrwill get into the det.inee's 

.ntO'\Jtb or nose. Nor would a deta.inee-reasonably unders:Utld the prospect'ofbting dou&ed With 

COld water a$ the thrtafeocd in!li<:tioo or SCY«O p:tin. furthermo~ e.ven were we tO conclude 

.!hat there could be. quaiifying pAdieate eet, nodling '"8&'·"' that the detainee WOuld be .. expee~ to $UJfer iny prolonged mental hum as! fesult of the procedure. OMS advises thlt 

hu~ hu been no evidence oJ suc:h harm in the: SERE lr&inJng. whieb ucilius a much more 

eld.remc technique i,nvolvlng total immersion.. nle presence ofpsyehotogift$ wtto m·orutor lbo 

~~tainee's menta.t condttion m.&.ke$ 'uch httm evea more unlikely. Consequent()', we conclude 

th>t the authorized use of the reeheique b'y adequately traintd loterrogators could not reason>bly 

be considered Specifically intended to eavseJC\'ere.amntal pain or suffering within the ~ng 

ot the statute. · · 

The flicking toohnique, which is S'Jbjett to tho wne·temperature llrnitalions as watet 

dousing. but Woutd involve suNtanrialiy less ~er. a fortiori would not viola!e the statute. 

12. Slup ct.prlvoll"!'. In the/ntcm>gatlrmMemorandum, we toll<'luded,th3t <leep 

deprivuion did not violatu~ions 2340.2140A. Seeid. at 10, 14·1 S. This question warrants 

further ualysis fQr two reasons. FirSt, we did. not OOnslder the potential for physiei!l pain or 

suffuing resUlting from the ahaekling u'ed to keep detainee$ awa.tc:e or any impact from the 

diapering of the. detainee. Secood, we 'did not add~s the po~osibitity of severe physical StJfferiag that does not invOlve $eveie physical pain. 

Under the limitations ad.opted by ~1e CIA, sleep deprivation mty not exee«< 180 hou<s. 

Wbieh we undcm&nd is •pprox.imately two-thirds of tho maximum rccordcd time chat hum4n.s 

hav~tJ!f!UI steee for pwpo ~pfmecjjCl! !111dJ, ts d~eussedj~ow " Fun~ermore,any 

·detain<e who hu undetgone180 li<>ull ofsfeep deprivation otlist then be allowe.! to steep 

without interruption for at least eiabt st<aight our~ Although we undmtand that the CIA.'• . 

idelin..-would"llow-t.no<heNes~on'<>kieij><leprivatioi)Wbegi""'fteM!tO'dettin~Hest---

-.- 0 1be IG /wpott dc.$C:t"ibed the 11'\Wmurn tlfowabf( period o! J!oep depriv~on tit ttw: time~ 2.6~ toua Qt 

11 d.l/'$. Sc~/0&~11al U. Youb.rveil'lf<~tlt)(ldusl.h:ittoOJhavc.M¢c.csttblish«<a mito!liO~th3tin 

Clld nodcuiM.C: bs b«<t "'**-d c.o more d-\&A LtO ho.:n of dtq)dep.rivatloa. a.ad that 61~dcprWalio.o. wa11 

t~Cdy execed l20 boot~. To dlle. onlr (bru &Wooc:s }QfOb«n subjected to slct9 6cprintton for more tlwl96 

""""· 
95 


628SECRE36.eps

at least eight holll' of uninterrupted sleq> foUowing l80 bourt ofsleq> deprivation, we 111ill 

• <Mluate onfy one application ofup to ISO hours ofsleq> deprivation. c 

We uodenw.d from OMS, and Ctom uw· u:vk:w.u!Ur¢ lltcnwre on th~ phy,jology of 

·steop. "thtt even very mended steep depriV1lioq d.., not cause physical pain. tel alone severe • 

phyrieat pain." "The longest <tudies of sleq> deprivation in hum•ns .•. (involved) voluntem 

(who} were deprived ohleq> for 8 to II days . ..• Surprisingly, tittle seemed to go.,,...,& with 

the :rubjeets physie>lly. The maln ef!Cecs l•y with steepii.ess ond lmpsired brain timecionina. but 

~Von these were no great eause for concern... James Horne, Wl!Y Wt Stetp: 17:t Funcr;OIIS of 

Sleep In Humans and !)Jher M<»nmals 23-24 ( 1988) (" 11'19' We Sleep."! (footnole omitted) .. We 

note that there are important diffe.rences ~~cen slo:p deprivation u an intc:rrogatioq t~h.n;que 

used by tho CIA &Jld·the controlled eocpaimentl toeumented in thelitcnture. The subjeelsofthe 

experiments wuc Cree to ritoYe abOut and CI'I8&.8C in noona.l aet.Mties ao4·0fWtlcd a •tflnct<Jil 

cxi>tenen" wil~ "ple.D)Y of time fqr re!Wtion," ueld. o.t 14, whereas • C!ctain .. in Cl,\ cu.ruxly 

wo.uld-be shaclded and pcevented from iuoving·freely. Mor«>V<f, the subjecta in the expecimellt$ 

ofteo inert.ased their food OODNmption durin.s,ptriods oC extet~ded sfoep loss, su ld. at 38, 

wl\ereu lho detainee undc:going lnterrogatKm may be p1aeed on a reduc:ed-caforle diet, u 

discussed al;pve, Nevertheless, we undenw>d ihat expetts who hne stud~ sl~ deprivation 

have eo'neloded that "(c]hemost p!.\Uibl• reason for the uneventful physleal findings with ll>ese 

human beings istha< . .. sleep loss is not plflieularly h3f1ll[ul." !d. ot24. Weundetstind ll>at 

this conclusion doe's not depeod on the cxteni ofphysinal movement or exerciso by lh• subjecl or 

whether the subjea inc:n~~ his food eocuo.mptton. OMS medieal stl\ff' members ba\·e •lso 

informed us, based on the it experience with dotlinCQS who ba.ve undergone e-xtended steep 

deprfvr.tk>n and lheir rcviow or'lhe relc'Vant rm:di~l Lherat r~ thlt exttnded stoep deprivation 

does not cau.s~ phf$iCal p:in. Altbough ccfenu_ or swetiing. ofthc lo~ legs may som~mu 

develop a.s a result ottM Joog p¢eiods oCstandinsllsociatod with stoep deprivation, we 

understand from OMS that such edema is not pllintilla'nd ·11ill quickly dissipate orn:e tile subject 

is rcmovCd from the standing position.. We t.lso understand that if a;ny C11$e of st&nlfic.a.nr edema. 

develops, tbe tetm will lntett:ede to ensure~ that lbo dttMnce is moved Uom the standing position 

tod tlllt he reccives.aoy medieal.ottention oeeesslly to relieve the .Welting a.nd allow !he edema 

to dissipate. For th_e$e reasOq,., we eonolude. that the aulhorized use or extended steep 

'AJ:n«td a~weveoot cond:udl.llttl'ot14dWoc:11 \I.$C otskcp~vtl!?f'. s!Jbjoctt~d* W c:attf'ul DedkiJ wpcrvi'iOI\ would riolll~ (!)e ~ blrt It~ Ff~ltime we Cqi!C$$ co opinioo oet wbedtu 

add.J!Jo~ sleep dcprinli0ftww!4 bococsi.ncnl with ~e-ns 2l40·2:3.t0A. 

" .'\l!.bQtjifl ilttP &pnva!Joa is noliU(o;ti'jlb)'ik;tJiy Pili\MO wt ~ lhii SIDo~ st\ld:le~ Eave tiOGl lha( exteMcd IOUl $(cc:ptl.cprivlli'Ja lmY b~~Ve th~elfoet Ot rod»elr!e W{,~ tO $Mie fortJu of pain lD 50R 

• -...,)cas: li<<:T.-r,;i3:·~•,,d<n••M;«..C..-.IY"p:Orf"M>tiM>I/frcrrf1wmclt'rmifl,m,.lds..,._•··­

Sfm!ato:m&IOtY111rulroldsfn Htoltl:y Voht11tuu, 66 ~ru.tic M.o19ll (200f} (fiodin& 1 Jlgl\ltieailt 

dccreao: In h<>t P>fn thr-tds a1ld ...,.-.. I• col!l pain ~tls aflu • ., tJQ>l wlil»il\ sleep); SJialdti Ot:m. et a.L,l'M ~(bofT«cl Sl~p Dcpr~(Ofl. Sti«JiwSktp/11ltrrvpl(Oit twJSJupRu:owry<Ht PtJin 

roltr(IOO(. TlrrnholdJ In H«<!tlty&.'bj~ts, iO 1. Slttp R.t~ JS, 41 (100!) ('51lclinta'raUstica11y siP.iG<::aPI.cSiop 

ors.,.A lntoCet31Jtt lhzoc.shoot4s: fQc mccl~ea.J or~,a!A attu4011oursr.rd. a.tl$·36 (di$ws.sintotiKC 

~4i<:f). We wl.~l dUoJss tlle polmlial in(tt:lctlocu ~.sleep depiiwlioa &Ad Olh.tr ln.t«rrJati.Oa toc:bnlqvcs Ul 

!.be scparat~ mcruon.adwn, tD which we rt(mcd fn footno;c 6;11dc!.res:stng wbdhtt lht combitlciS ~ o! c:r:naiA 

tedllliques Is co..W.C with tht lcpl IO!UIR:me.U of R<lieM 2140-lHOA. 
96 


628SECRE37.eps

deprivation by adequately trained ln!crrogdOrt would not be expoclod to cause and (!OIIId 110( 

rwolllbly be cauidc:rtd sp«U~e~Dy inteod<d to cowc se>-= physical p!io. 

In addition, OMS persoMcl ..... infonned Ul tbai the Welding or dctaill<OS is not 

designed to and does not rwltln slgnlftealll ph)'lleal pain. A ~ccaince tubJ«< co •loop 

4eprivadon"WO!Jld nol be allov.·td to bJog by bls wrisu, and ~understand tllll no deuinoe 

RJbje«ed to sleep deprintian co datelw beco allowed to boa& by his wrists ex bas «hctwiso 'sulfered IJ>juty." lfneceswy, weund~tl'.atmedi<al pd'IOMel will intCICCdooopm<tll 

11fY NOh injllf)' and would require either chat immogitou usc a different med>Od to keq> tho 

det.a].eoawalce (NOh as through tho use of sitting or hori:onttl'posltions), or tbot the use of tho 

technique be ~tapped altoaether. Wbe4 tho oittina posirioo u cued, tho d.W ... h....,,..; oo • r.Wl stool to "itch be i1ah>dcled; lk JCooi"'PPQ<U bla ~1M is too am.all to let tho 

dc<ainoe balanoe himself elid f< uloep. We also apocl5c<yulldetatend chat the uae of 

abackling wilh horitontal sleep deprivllioo, whicll hu only b<cn used tardy, Is do .. in web 1 

wty as to ensure thn there is no addldonal stress on tbedtttinec.'s arm odcgjolnll thlt miJht 

f«cc the limbs beyond nswral ext<aslon or cnatoteasioo oo uy jollll. thus, Jha<l:ling c.aMOt 

be uptCtocl to result lo acwn pll)-sl<al paio, sod wo ooocl\lde tJw its 111lha<iud .,. by 

•dequotelytroined interroaatorr eould not r=onobly be con>idered sp<cillceUy inttnded to de 

10. Fin&lly, we believe that the use of a diaper .. nnot be <ltpe«ed to-<J~d could not r0110nal>ly 

be consldeced i.ate.nded to-result in aoy pb)'siuJ pain. l-et alone severe physical pain. 

Akhoush it I• • more subsuoiW ~ porticululy pv<A the intp<ecisioa i• tho 

statutory stllldud and d\e lade of guidance &-om the eouru, ,.._ obo cond;Jde th>t mended Jleq> 

deprivation. $\Jbjeet to thelimitatlonlend cotl4irions ~escribed herein. wwld not be c:q>e«ed to 

couse "severe physical oulfering." We underotoad tbatoome indlvlduals who undergo excendcd 

ol«p cleprivadon would Uke!y atromo point expcri""" pbyoical dllcomfon end c!irlress. Wo 

IllUme tJw """' individuols wwld evWUII!y feel w .. k pl>)"ic~Uy sod m&y _.;- ochor unplust.nt phy~icalsensarions from prolonged fllitll'e. includins ouch symptoms u imp>imoont 

to ooprdinaled body movement, difficulty with speech,"'""" and blurred vision. See ll'!ly Wt Slttp 11 30. 1D addltloo, wo uhdcrstend thllmended 1leep deprivation wilr ol\on ewse a ..WI 

dfopinbodytmper&tlllt,suld 113l,endwolS11Jmetltai rueb dropinbodyt~turomay 

also be ...o<iated with uopjasont pllysical....,•tiom. We also ....,.,. !hat ••r physical 

disoom!Ott tharmlaht bo rwooi&tod with sleep deprivation woul4 Ukely inor<No, at ltutto a 

poimpdld10op ~,. iUb)ect g<>., without •J«p. Th~>, on tb010 &"'tl)lPtions,lt may be the case 

that ·~ aome point, for aomelodivlduab, tbe des«< or physical di1trtss experieoeed in sleep 

• dcprivarioo might be ~Jilftrial. " 

On the other h>nd, we undenttod· from OMS, end from the liter&ture we have reviewed 

oii tile ii\iYi!Ola&y ofiloOJI~rililltJt1!41\'!aUtlfllllyl151entntreoded~loep deprivat ot>w ll 

' ' ~lllkl1101.&l.vfmorc IIWilldeui.crJ ~ eoallcuttomepcriod'oldocpdqtri'IJtJOO. SteJMvllr)l4 nll1-3 • 

• n..s=i>fllq-m..llutll<q>4<;oc!VatioonU,It""""" OUJOepb'bllity iO pa!A.s-.npwiiOI< 

44. o:apltlcs lllis- . 
97 


628SECRE38.eps

TO~ 0~ 

and wilb liltleappueot l!lsli'w, ind lhallbis bu """' U>OC!A'I<>q><tienee." Furthermort,lhe 

principal ph)'Sical problem wooillod wilh SI&Dding is edeal1,. and in any imtuee of slgnilicanl 

odena, the WttrOSUion twa 11;11 remo'•e lhe deiJinee from !be staoding position aod will...t 

modioel u:i•ta.ac .. 'J1\e thaddin,a It oJed (lnly u a passive means of k:etpina chede&&inec tw&ke 

and, in bolh lhe tlgblnt1s of !he 1h&oklcs and the pos[liOJII'!S oftl.c·lw>d, it aol illlendo<Jio 

cau,.. p&iiL A deuinoe, for exi.IOJI!t, wi!IIIOI bo allowed IO h&ag by bis \\riSIS. Shletling ill lho 

tilling poo~ion inYOI...., a 11ool thai is ad<quototo oupport lho decaine<' • .,..;p.c. In tho nn 

iQIIIllees when borizonl&! aloep deprtvalioa may l>e used, • dUel: lowd Or blankd is placed uod<r 

the da&lnoo10 p<OIOd ag&lnst roducdon of body tcrnponl\1!0 fro111 eont&ct with tho fioer, and the 

aw-.ades and all1cl:lcs onll!lcllor<4 ao ..... to..wop&ioorcnatetensloo oa any joint. [fthe 

deul-ls oude and b uaing •• adult diopa, ll:oo diaper is dlooted r<a"latly to pt.....C stio 

lrrl11rioa. The eood~io .. of •Jeep dcpriVJrion .,. thus •imed at prevca~lns $0\'«e pby•ie&l 

sulfering. Bec..uso >Jeep deprivation dOOJ DOt Involve phyolcal pain and would nollie e><pe<t<d 

10 e&UI< ... ...,. pbylicaJ dJSitCSS to the dtllinct, Jhe txlendo<J d\lfllion Of &Jeep clcprivatiOQ. 

wi<hinthe IIQ..Ioour tilllit imposed by the CIA. b -a sullideol !adO< alone 10 eonllilu~epllysietl suiTCring witblnlho m<aaloa oCredioos l344-2340A. We therel\lre be!ievo that 1M we 

oflf\is tcehnlque, undu the speciOtd limits and conditions.. II nol '"extreme and ou1rascous" ottd 

does 1101 ru.eb the hlgb bu ... by Congress for I violation or -ion· Z340-2J40A. -~· PriC< v. 

Soda/itt Poop/1 's Llb)<:nkab .1-.hJrlya, 194 F.ld at !n (10 be IO<IIKo under the TVP A, 

coaduct must be •exttomuod OW.SCOUs"); q: .V.U.V..Vk" fl•t.bnle, 19t F. Supp 2d at tnl40, IJ4S-46 (llandud ltlct undd lho TVPAby t eourn> of eond~ct that inotuded ,.ve<e beotingc 

10 the Jcnltals, h .. d, and 01!1« pasu of tbe body with !Mbl pipes and vulouc otb<r heme·; 

nmovaJofttoiJ> witlo pliers; l:icldoaJn the W:e and ribl; IJRcldcg of bon .. and ribs IOd 

disloeatioo offiopo; conioa a Gguro illto t1>o vierim's ~ ha~ the vlerim and beKia& 

him: extreme limittdons of food ~qd water: and !Wb;«rfoa to pme:s or"~Russiaa rooleuej. 

Nevortheloss, because ex<~ed sleep deprivatioo oould io ..,.,. caces resvlt Ia 

subllar.ti&l pllyslcal disuoss,lho saf'esuizifs adoplo<J by IlK aA. inotodilli ona~ medical 

monitorinaand inttf'VCn.Uanby tho team irneedcd, aCe important to msurc.thatlt.ectA•, usc or e><1ended sleep dtprivatlon will n<ll run afoul of !lie staMe. Diln:rcnt individual dotoinen may 

reaa pll~cally to cleep deprivation In c!illlmll ways. Wo uiume,lhtteforc, that tholeam will 

S<pU~tdy mooj!Qrcseb lodividual dalill~101» bund.,.Uaasloep<!ep<ivalioo, tnd !Nt tllo 

oppti01tion oltllis todlniqoe will bo scruiti~ to the individocllzed plr)'Sical ooedition and 

rea~"'t.'eaeb dctai~. M.oteOv«, we qt~ph.a:si:r."'urundeuUndina that OMS wiU in.tervtne 

lo alter or otop the course of sleep deprintioo for a detainoe it OMS eonotudes in itt mediool 

j\JdamCIII that the teuiooe is or may bo experieneirc extreme p!tysical diltre.ss. • The,...._ we 

.....ll.lndocd,41tlloltll•~--·otpdsU>c<o"'*"'ua..JU"-"'O.~"'""I~~~~~~t .. _ """"'to clcqo dq>rinlloo. baud oothol ~~'ld IU "'fCJi<OCO •i~ Cb< UdJIIqut. Ill its pldclm=. OMS u"'~ ... \ .... ukll-llt.oa ... !<r-.. ..... posiDooc.~cnoopc4-oodtb: 

-III. S.•OUSCM-111. 

" Poe c::wn9'e, IIY1 ~ysiCll pain or sutr~M& &SliiXbted ~'Ia A&lldtn£ or willl ~ ml&bl b«:ome ,_.._,...;m,.-... otu..~ .. apWcciudotaW:o..-eondltlcoao4"""""do"" 

pcnNt ld!I IOIIlleat<ii.IOd"'-tlul~~lb&-oriltllbl!lb.,...-.w'1illo 

-Slld,if....,.,..,., toii _~Cb<-tc~illolti:"'C«-pooilioeo<o!llllul u.. tkq> dcp<Mtloo be diSCO<IIWx4 allop. s.! ~Gol.ltlltJU 1111-16. 
98 


628SECRE39.eps

undcmand, will intcrve<1o nol ooly if !he aloep dcpriyatioo iudf m&y be havill$ sud> elfocu, b>.rt 

• 1 . also iflhoahael<ling or ocJ1er conditions attendant 10 lhc ledlniquo appear to be cau~ins sevm 

pbysioaltulfering. With lheso precalltions ioJ>Iace, aod based on lho WVIIlption lhlt IIIey wiU be lbUowed, we~D<Iude dut !he~ ute'o! extended sleep deprivali011 by &dcquu<ly 

· ttainod iolcrrop!ou ......,d 001 be txpe<lcd 10 lll6 could not reuon&bly be<Oillidoned 

spocilic:ally intaodOd to causo severe P.h)'lic&lllllicring in viol&! ion of IS U.S. C. §§ Zl40-2340A. 

Finally, wo also conclude dut extended 1lccp dcpriY>Uon cann01 be expected to c&usc 

•,.vcre tn<Otal pain or tufl'erins• as den..d In occtiom 23<10-2340A, tnd dW lu ~rUed •~ 

by acleqlultty lr1ill<.d intcrros&IO<S could not reasooably be 0>01idtred op«ilieally l111tnded to do... ron; .,. do aot bell.--e dut.use o! U:o o~o<p deprintiocl techniq~J<, ..t>jec:1 colhc c:onditloas in plaee, 'WOUld icrvolYe one oCcbo predic::~te •~s POOCSAlY for ·sever~ mental pain or 

sufterlna" under U:o st&Mc. Then would be oo intucti<la Of thrcot~ infiictlon of ~vao phyaical pain or IUffcrioa, wiUtin lhc.mwlins oflhe Slatule, and lhcro muld be no tbrc&t of 'Imminent death. It mayboqucltioood vlbdbct alccpdeprivationOO<dd bodwtctcrlud ala ''proce<!ure(J Calculated 10 disrupt prof<IW>IIty lbe ,...,.. cr Ito pcrsooalit)"' witl!in tht n>COlling • o? aeotion 2340(2)(11). siJICC we ur.dcntandllool OMS aod 6'olll lho J<ieotif~ r,..,....,.. that 

c:ntncled sleep depriYIIioo migbl ia:luco hallucinations ip ...,. cuu. Pbysi<Una 8'om OMS hove in!Ormed us, howovu, that !hey are oflhe view that, in acnenl, no "profO.nd" dlwpoor. W®ld «suit from the lcnsth of slc~p deprivallo~ cootemplated by the CIA, aod apln the ' ~lentllic litttature we havo revicP.'ed appun tb support this c:onduslon. Moreover, we uaderiland lhat any tum member V.'<luld dltec:i tb.n tho tcdlr.iquo be immediately dlt<Ontinued if din -.any si&JI that the detain« is ..pcriCIICIJI$1:alluci .. doos. Thus, it 'awcon lhat lhc llllhori:ed we ohloep deprMiloa by tbe CIA would not beupocted to red in a profound 

64ruptioa of the r;enses, &lid if i1 did; it "'Oilld be 4iscontiDued. !!Yen usumina. however, lbt 

the extended use ofalccp dcpriv•tion may result in hsllucinadons 1!141 OQuld fairly bo 

. characterized as a "'profouM''·disrupt-ion oft he subject'.nenses, we do n·ot belic.ve.lt tenable to 

concludolhat iJt wdl cirwmstances ti-.C use of sleep depriVJtion could be said to be "c•!rultt!d" 

to cau.so sud> profound diRUptiOCI to lhesCliSU, u r.q,ited by lhe owute. The terns "oalculued" dC<lOiu sometlli<1& that isfllllllOd oc llloupc out befo<dw>d: "Coo.Wtte, • u1'1td io lho sW1«. is delioed 10 mean :'to planlho lDIUre ofbe!ordund: lhinlt our; "to ~:g., pt<pare, or &dopt by !orethousl• or ureM pllll: fil« prep•ro by ~ptopri>te meant." Webster'< '111/rd N..., .lnt<matiQIIa/ DlctiOI""Y at 31S.(dofirung "calculllo''- "used eblc!ly (u it is in section 

2340(2)(8)) .. 1•1 pall p\rtlieiple) with complementlf)' nftrutl~ ~lwlatedto aucooed>"). H-ills evident tbtt tho pc(etUW !0< IllY hsllucinatioos co the part of a detainee undec~ sleep dtprivUioo> is not oomdhiostlltl.....Ubea•wc:ulW4" r..Wtoftbeweol'this 

t~Ai<:ulatly Jive<~ that !he team ,...ld 1r.wvcae isnmodillely to stop lho todlnique if 

there wuc sigru tbe tubj.., was eq>erieoei<~&l:allucinatioo~ 

Si€61kf.ivemfWtWete fu asSOTrie!"6uf'6f'attlibundance o! Uutien;=t!ii\~ft00""61"''<1""'<e"'l'= ~ deprivttlon could be uid 10 be a "proccdur<U calwlated to disrupl prOfoundly theaense.s otlhe 

peiiOiia'lily"'flhoSWjCCl'WilliUi1oenitiiiin~mo{l){llT.~- · t<ehnlque WOI!Id be expec~c6 to-« lhat its IAithorizcd =by &doquatcly ll1i:Jcd 1 .. .,.~ 

could rouonably be c:onlidcrcd •p<cific:ally intended to-<aUsc "pro"'"gtd tnerOal harm" u 

RqUirc6 by !he swure, becauoe, u we uode<ttaod it, AnY hallucinatory effects of slup atprivotion would diiSiptto npidly. OMS hulnformed us, buod on th~scicnlific lltcntu,reUid 

39 
99 


628SECRE40.eps

co iu own cxpcrietv:6 wilh deuinccs .mohave bceA ~oep dq>rivod, due any suc:ll hallu<iattory 

effects would no< be prolonged. We undet&land ft'Oin OMS cbac Why W<'SI«p prQ\·ides"' 

"=nee summuy ofcbe scicrnific liect&cwcon chil polot 1u diS<Us&ed !hero, eli longest 

documented period of time for wtlioh &ny llom1n hu gone wichoul sleep is 264 hours. Sa ld. II 

29·34. Tho Ionge$! otudy witb moretban onci\Jbjott lnvnlwd lOS hours of sleep deprivation. ~c:e id. at 37·42. We.uudttStutd thal lhQe and odw atucUCJ connitvting • Jigni.fica.nt 1Jod1 or 

solcruific lilctalurc indicate tbataleep depriva!loolemponrily affoets thcl\lncdoalrlg of !he brain buc does 110( otherwise have sigolfi,canc physlologl.,letrceu. S<eld. ac 100. Sleep dcprivuion'& 

cfl'eou oo !he br>in ere gcocraJiy noc sc-me but can lndudc implircd cognitive periV<m&nCC and 

visual h&llucinatloas; however, these cO'eccr dissipate rapidly. ofte;n with as tiute as CNte nizlu's 

&Jeep Suld. &131·32,14-17, 40, 47-SJ. 11w, weeooeklde, any tempomyhallu<inatiooswc misJ>c mull from cxtcr.ded aleep deprivation could oct ,....,.,bly be ooaside<ed "prolonged 

mcoul ham"for p<UpOS<$ of S<Cdoos 2340-1140A. • 

In li!):l of chese obs<:v&ti«is, <bo.IJII 14 ha <ltlenc!ed .-lc may..-.& a substaodol 

C)UWoo uode< -*>cis 23o40-23o40A, --WI cha ~ uu cfslctp dq>rivalloo by 

IN!oquatdy l!1ined int~ wbjca 10 !he lliOiucioo$ and IIIOClitOrinS in pl•ce, could 001 

I'UJO<tlbly be ooNi<leted apccjfiCI!fy loceaded 10 .. ..,. .. vuemcnat polo or scll'fllills. rllllily, 

!he UlCoh diape<foc...rtuy puq>oK<onan individuaJ aubjceled co sleep doprivatioQ, while 

pocendally humili&Ciag. could noc be CONiderod opodfleolly in\cndod to inflic< oeve<o mtnt~ 

p•jn or sull"uina within the meanins ofchc m.Me, because chore would be no statutO<)! predicole 

act and no reuon co eocp«< "prolooaod mm•f ~wm• to rcluk." 

4

' Wilhout &:lermmtna ~ cnltJJJmUQ dam tor rr.c:nul harm {0 ~ coN!4~ "prooolktcd." "'0 ~ nOl 

bel'cvc chU '"pcolon,ecd rr,cnca.l b:Lltn'" woald occur dl.lt'lnJ tM &Joc.p ckprivaflort Itself. N aotcd, OMS v.·O"&Id o*t 

~~~t lhc ~«<W~c be dU:oclinuod it' halluc:WdonJ OCWifCd. t..~r. Mtl if OMS penoa.'!Cl ft.roaottnte of 

~~::~:;;~~::d~~~~==::::~~~tu~::W' COIUCit,.<"pro~ .... ~a~Jwra~ldllnollc~otlloo......, w .. ..-...,,..,_!Mtlols~tllllc 

·~<alls~'><c=w.mOIOOit«ftlabrOMSP<~iododlot~;Uts ._utlruc.cJ"'!!hot 

CliO pcdool ot deep d<¢....., lo<tu"" • · 

"We-d:l<CbeCOllloCJWCOllloHUo»•. llat&t'.!Wul, IOJF3d141(1!11Cfl l~~-lhal anr'.cq.oC~ol<cal<¢llc<. ... ot.,.....wuo&..,""""""'~"-. no"""" .......... di!M<~db<=o&..,4<;<11od<a'l""*l!lc--&t-oodkdMI ... - .... Ilcoo4<pmcMadoac-10-._ la.hiMI•. I!Ud""""'"' t11o e.._,.c-tot- ~-.,.,-oti).(Chaldocp41p!..._,.. .... ~-·"""*"c/....,........_ 

dil~ .. --lllc£-o-.n.-· ... ~ ... dtpM:ioa&t----· --C>JIIrioaclloi'"F'-It119, ......... --"''1011oo:n,H<mojolicyopWol>&ttiO< flully,,..""oe.&ti><O>.-~T,._otlloooabotdo<Ki;i>Cooooi"'-I«"""""NPI.la 

--.dc::--.~ .... >/1' -~-~.,..~ 

_

--W.a ..OC(y or pt><Ci<Utakea lOpdlu, INioclfllc '''"" dcprimlco (O< ~"'"' pcrio<ts,' - .... to..., .. ste!inc4i;!f1jd!Jol!hciCAD~~twi'eflhcCn#fl. 

4•IIUI Tomn.. U.N. Doe. A/S'I/U all S6 ($opt. 10, I Ptl) ("~<q> clqori'n!loo.,..,..... on III.Sp(<U ••• 1Tt11 ift aome (::l$(tC:Oilltittt•t«tw."), lb~ Cocncai.'Ltec pcovi4cd 110ckcalh OQ ~I. of lbe sloep dcprh'ltion Q( lmrr h 

wu ~cmcn«:d ~no anal)<d.s to wppxt ks eond~UIOCI Tbc:$o prooodCIIUprovtde little or flO bdpt\ll ~IU!oo 

in our re\'f(W ottbt OA 's use cl sleep dqlri't'lilon.ockrJed.loa.t 2l•0·23•0A. While we do not rely on lhiJ bet'" 

lziiOq!f'Ctinc a:tcxiOA1lJ40·1-HOA. ~note ll~ Wt UO IMIC ofnodcddoa ohny fordSDCIOC:IUIC Wen:'ftiOn.al 

tt1'buall ficdlftc !hot U..ICd>lll,.;co wlrwl W., U MU<a IOIIK llmllltlons 1N1 cooditioos "'••~ ,..lll4 ..,...c ~lortw'c. 
100 


628SECRE41.eps

' I 

13. lf'attr~d. We p~ou~y con<lude>l that the use of tho Wlltert>oord did not 

coilstitute torture under sectio,. l340·l_l40A. S.elnttrroga!ion'Memoraildrnn at II, IS. We 

!"Ust rCCO<Zmine the iSsue, howevet, bee>use the teclu\iqu . as it would ~ UJ<Jd, could involve mor& 2ppliettions i.n lotlg~r se:ui.on.s (and possibly using diff~et'lt metl~1:) than we earlier 

considered." · · 

We understabd thtt in the escalating rcgimw ofinccaogatinn techniques, the Wllted>oud 

is considered to be ¢e most serious, requires .• separate approval that may bo >OUght only diet 

other te<luuques have no< wcclted (or are considered unlikely co work In ihe time available), and 

ia fact has been--ond is c.xpccted to~ on very few deta.ioees. We aoccp1 the assessment 

of OMS chat ihe vmerl>otrd ·~ s by far the moSI 111Umatie of the enh~n<,ecl i;>rcrrQg:llion . ~iques." OMSGufdtllnur. IS. 1'biste<lWque could subjei:t adetaine~ to a high degree of 

disttess. A iiet!in~ to "'bo.:n 1he technique it applie~fwill experience lh~ pbystologic;aJ 

· .• sensation of drowning. whlehlikelywill I~ to pcnic. Weueder)taad that even • deuinee who 

1<nowt he i• no< ~ng co dr~wn Is Ukely co hove this response. Indeed, we m informed !h•t ~n individu~ls vert familiae with the technique expetionee this lon whep subjec:te4 t9 ~e 

waterboard. 

N~venhe(e$:$, althou&b \hi.s t~bnltt'Je pceset'lts tho most substlfltla! question' under the 

statut~ we conclude for the ruson.s disCU$;Sed belo'w tflax the authothed wo otiti.e watetboaid by · 

adequately tr.l\ned intcm>plon, subject to the timitltions and eonditk>ru odopeed by the CIA ond 

in the 'absence ofany medical ~niDditation.s1 woulcl not violate sect!onJ '2'H0.2.340A. (We 

und'emmd t~eontcaindica.tlon nlly have precluded the U$e of this p.anicular . 

· tec:J~que o.-In ~cbing thit c:Qflelu.sion. wt do 001 in any way minimize tho 

11 Th<: J(J &port notocl ®t ta '4_Mc cues Ul( wt~d. wu used '!litli W ge:.tu hc;!qi.1.Cf'IC14blnititbtl)' 

~R#IGI<#porlat S,H,~ 103.o4,WtboC'atit wuWo¢di!l&ditrc.cttt'nwlner. Sec it!.. M.l7r(J)hc 

.waleftoa~ tcchniq\}e •• . w&sdlffcn:.nl fiomlbetec:Mique4e9a"l'bcd ir. ~ DoJ opltdon llMl \ISGd io, ll~ SERB 

lptning. Thedi1Jercece wu b th ~ in wtUcb tbe d:cU!nce'st!rqel~ was cbs:ntc:tcd. AJ. th,o SElG ~I 

and ~qriniort,. ~cct's ~ow: a:disrupfedb)' tbf:.Em&apptica(ion orh.datnp c:fothO'm l.hcait P3SSI&ts; lhelnte:TOptorapptba's=ulltmOWif C<f...me:r 10 dte doU1 ina c:oc.<ron'Oa AU.'\Ik.f. Byoon.Cru1, lbe 

AJeney ltit~!Of ••. .ap;plkd La.~ l'Ol'olmt$ or w;!« lOa doe.tl Uut (ICvttod ~deWnce's tOOUdl w =· One of the PfY4;l\olotid11Ller'r0g.MOf$ ~•ied.&cd. trot lh~ A&c:rq's useoC' the: ccc:hn.i~ Is d.iifcfeot from t.~ usccltL' 

~E:kE'if.iuu g&Uuseit'ri"'"Jot"fCSLfll(l~~ 

~ fu.tW.c"potte4 that "'M$(1)Ckp4slbl<he ofdte.SER.E psr<::M\~.nletroptqn oncht-

.... ~W boa:d wo~s.pcW@~~t:ied~~~CDm.itMdjiJStet\(frorotM.~ •• _ 

sukcquetU Asmcy U$agC as to ld:dt a1mMt incl:.vant ~eotJy, ao:wd.inc to OMS,tbetc was no o priori 

tb.SOft to \~e i~ Wt appf)'ia.g die~ 'tfth cbc !tcqur.Gq ~t~41nta\sil:y wi~~ wbi'Ob II. was as:d bt·lbt . 

psycbolotfstlintmoptoc1Mtti(becdfic:K:i01fsor m<dlcaJ.Iy"(t." II. atll a.2~. WJ:.Iuve.QtC/ullyC«<SI<5cn:d 

mel() R<porl.,ddiS<Un«< it wilhOMS J'C"'"'l'l tu n«o!, 0.\<S 11\~tlw..-.l..S I'! t Mlt!lb<rofdwli<S In 

tlle o:wlk:atkil oCI.be w.ltc:~ £ncl'Odltl& limits an the. r,~ UldC'WIW!tti\<e uSeoCthetoc;bnique. M<lctOYc:t. OM'S pc:lsonnelatl." c:ucfuUy iosuuaed b modloriAJ 1!\Z$ t'~t a&s aro p«$011aHy pteud ~tt.en~n:r h l$ use:1. 

S.t OMSCMd<Una" I 7-20. IM«d, allhouD> pb)'Jiriu i.sruu.nls""' be pr=« Wll<nolh<r e~d to:tniq•" .,.apptioll, ">Js<ofcheW.tato.lo!r<q<ilidlltcprucn<eohph)'S!dlll." /d. a! 91>.2. • 
101 


628SECRE42.eps

FROM "" '' 00~ 

ro~·--IN~ 

experience. The panic l$$0tilted ,..iti, the fedillg o( drowning <OUid uod<Kktedly ~ sisnificint. 

Thoro may ~ few O\Orelligbteoing OJ<p<riene<s than fecli118 dut ceo is uoable to breathe. a 

However frightening the •"l'~enoe n>ay b<, OMS penocnel baY~> informed u~ that tbe 

waterboard technique is (\Oi pbyslcally poinlill This conclusioo, as we unde:lland the fllou, 

accords with the <>q><rienoeln SePJ! trallli.Qg, whcse the'Mterboetd bas been administered to 

.. vua~ thDusatA m0be:s of the UDiled Stttcs Anned Forees.n To be sure, In SlliUlminl•g. · 

the tcdmique ;. CO!!fined to at molt two appliCation< (and WUJ!Iy o:lly one) of ao more dwl40 seconds each Here, tbcro may~ two.....,.., olup to two !lours ~ during a :Z...bour 

p<riod, ancleacb ...iioamay indude COilltiple appfltllioas. of,whidl s!lmay lasllO oeooods « lone«lbut none~ dwl40 JOCOftlls), 10< • cow U.e of 191'1icatioa of as roucb as 12 ..,.,,. 

in a 24-bour ptriod. ~ tbc Wllotbo>td ~ 011 up 10 fivo doys durq the lO-

<Ioy period for w!Ucb it is apptOved. S<t A•IIIJf I li<r at 1-2. AJ you have 

Informed u.s, the CIA bas previously used the wat ropcatedly on twO deWnee" and, u far 11 ean ~determined, tb.,e detain~ did not~·- pbysleol palo or, in the p,rolCssiOll&l • 

j~dgmMt of~oetor>, is there any medical , .. son to believe tboy would batre done so. Thetefero, we oonelude tbat the outborizcd use of llle waterbo:vd by ad"'tu&tcly tnlncd l,nt""'8atori C<>Uid 

not reasonably be wnsidered sp«lfically Intended to ..usc ·,.vere physle&l pain • 

We alw conclude that the us. oftbe wa:etbcard, ll!l6er the striet lltnlts and conditions Imposed, wwld 1101 be expe<lod 10 cau11 •severe pbyoie&lsulf~ng" uodet the otatute. AJ noted 

above, tbediffia!ltyofspedf\'i118&Cil<IIO<Yofpbysico.l Mrcrina aponllombo<b pbysie&lp>io and mc<UI paia"' Mr~ng, 110111 wilb lht requirn:xu thotany IUd> IU!faina be •sever<, • 

calls ror 10 iotetplOIIlion under wllieb ·-· pbysieal ~aiD(';, ........... ll>r pb)sl<al diotre» that is severe eoosidaing botb itt lnt..,;,y onc1 duratiocL To the """"tbai iA 10100 

appli<atioOl me use aflhe wuerboetd oeu!d eowe ebolciag or limUat pllyolco.l-s opposed"' 

mentakC<lllliof\1, those pbysieal,....tioas mlgl>t well havo an intCNity approacbin& tbe 

degree eonternplated by the statute. However, ll.'c understand lhattny such phy1ical--&s 

oppOsed to mell!af-<ien .. tions caused by the use of the vntetbc:vd end whoa the appfiwioo 

Jl As IIOt<:d ibovc, laii'IO$l uses ol'tht kdlnlqtt1 cbc 'uoridmtls lA Act Ole. 10 ~1e, lhoucft his 

bfu1hiq ia: rtnritte4 l!ec:au.Je IAIOINI 1101 bf~ ¥t00J4 ftOt be pos:sibl~; foe purposes o( ~ &."'ll,y.s!J 'lfe 

...,..,....,.-.~lsuoibleiO-d"'""•~ot-. 

,_.,.,./~~IIK-bWloft)f....Soelyl>N.,.Sillll!"""'-"+ A>...,.lnO./G 

R<po,t, 1•~10iailh,_rwll>--<di<ciO..SEJ!!~ .(cj_I.,NnySERE U1~oo:otw-.d-dl--cfltsc!natlectrm .. .,._,wllo.,..•""'i=• 

:~tUt:t::zta:~:!tt":c!=,~oCk~~::--se I<CiloUqocud,u'*"k""aot-,.bo•-"""""~ We-doal<lMSb>- - -·-· --~~i~.ot~AMUU.WG{4Jdldolk,m1:s'•n•olh'intgWa~ 

ow e.xpcd.<DCC Ms ot.~ Some ~unqrocst)oNbty c::ll'willl:suad~ lJr&cll!IIGibuorappUcat.~ 'fl'i"- ao 

Um-.odlaldr dilOtttsibte "'"""'IV< 1-beyond thdl """"&..niCA w 0.. cxpn1coco. • OM$ Gwldtlbu.<" t 7. We trcawvclh:attt a reo:nt Sct!.*JII<IktaryCom.m!ctcc llcirin& DoosW So~ Bxcculi~Dir«torof~ 

Ce.l\1¢t (Q.r vt«i.-ns oCTort~n, tulifi«< ~~ 10m0 U.S. mlti~:Wy penon.~ who Nvt anckrcoac. waterbou4 \t1itlk!.& N.~ appvc:o.t.ly tutcd "tballt's W:ca W u yars ol Cb.mp7 to tel OYct it.. Y~ t~vo hion:t~ us that, iA 2001. 

tk CIA 111'!1< ioqtlrios tollq»>1"""' oiDefWoptnOMd .... l~<d U.S!lllE "''""'' aodtllal thiD<i>W"""ol Defense. wu- r.ot aWJJt ot urt IJdonNIIIot hL woellf ~ .roc:e. tta1wcmt, oor ''eN QA awarc.ofac.)' sueb iafotmoW>a. 

-I 
102 


628SECRE43.eps

ends. Given !Miimellmi1SlmpoK4, &nd lhefaotlho! mypbysieal diltress (uop~to 

po$Slblo menW sutrerina, which b dlSQIISed bek>w) woold OCOJr only durina theaecual 

.application Qfwater, the pbY'ieal distress caused by the watert>oard would not be expected 10 

ha.v• H1e duracion required to amount to aevtre physical sutrcring.~ Applieatlons are strictly 

limited to at most40 s«oado, &nd ato~&l oC&t most 12 rojnut .. ln any 24·bour period, &nd •~of 

thttechnlque islimiced co It most flvo days durinalhe Jo..lay pe<i06 we consider. 

Consequently, under tbtso eornlklons, wo ofttc. watat.oud c:alu\01 be expoded to cause ••.vcce 

physical sulftriog" within lheae&nlll& of the surute. and we oondude thll iu ouchori.tcd we by 

odeq~~ately lllll>ccl im~ could 001 re&IOII&blybe, ooosid«<d spoc:Uically O>tendod to 

e&UIC "Jwere p.'lysleal.,mMc, •» Apia, flootorevc<, we <Mion tlut gollearo sbould be used 

lA &dhotit1s to lbe limit&lions bopooed &nd ill .,..,;torU~g lt!Y dellliiCC subjected to it co~ 

thedelllooefrom'o:xperieooi"Simtephysleal a.mricg. 

The !MSI SIJbSian<ial qu<ltion raised by tho watetboor<l relot., to tile .WUIO<)' c!e6nt<ion 

oflol•cvao caeotal pa.in or saffMna;." Tho len$&lioo of' drownins du.t wo v .. 'ldecstand &ccomp;miw tM use of(he wacctboud arJUI&Jiy tQUld qualify u a ••ttveat of imminent dcatb .. 

within t~ meaning of section ll40(2XC) and chus mi&lu consti!Uie·• predlcoteac:1 for"sovete 

. mental pain or s¢fcring" \lnder thmtuto." Although the watuboard Is uaed with. safeguards 

that m&l<o ootuollwm 'l'Jitc unlikely, !he dc!ilnee may not !<now about the&o ufeguards, ll:ld 

ovon !fhodoesleamoflhem, tho cod>.nlquc b rtiO lilcelyto cre&te panieln tho fbnn orao aruce 

Instinctual fUr wog from !ht phYlkllo&ieal-•tion of dto .. nina. 

Ne...tbdeas, tho """""Y de!i•itiotl or•......,.c m<=>UI p>ia or oumru.a" obo roquir., 

llw tllo predi..rcac:t pmdu<. "prooac>ced rr...W luroo. • 18 US C. § 1!40(2). A< we underlbnd from OMS penootOd ft11lliat trith tllo bUio<y oflhe wac..ward tecbnique, u wed 

bodl in SERE IRining (lllousll io a•t&.Ually difTmot nunnct) &nd in ll'.e previollt CIA 

tntmoplions. rber~ is no mtdical buis co bdic.v~ thlt the tedmique wouk:l produce lAY manal ell'cct beyond !he discress lhu dlrcotly accompanies ill u .. and cho prospect !hll it wiU be uK4 •a• ln. We undersund from che CIA chat to date none oflhochousllldJ ofpctsons wl>c have 

undocsonc the moro limited uso of Ute nJquo in SERB tninlng hat wffered prolonged mental 

kunt as a result Tho CIA •a uto or tho tedtaique could .far exceed tho one or two o.pplieations.to 

wblcb'SEI\B ll'linlng is limiled, &nd tho pltllelpaotla SERB tninlng pruomtbly uodcntonds 

thac tllo teotmi'l'Je iJ part of a11aini•g pco811011h•t is uoc incended to hun him and wiD end 11 

~ble time..Buttbophy~ans ~d psycltologlsuatthc<;IA &mUiar withthoftol> 
103 


628SECRE44.eps

have iofCIIUied us tllat ia the case of the two d.W .... who have beoo subjecced lomoro 

ext"'Jive ~&of the ....rctboud tochaiqox, 10 evideac:e of J""'ocged ID<tllal b&nR bulf'I'<IR'I 

in the period .U.ce 1ho 1110 of the watetto&rd oolhose d<uinces, • p<riod will ell cow spw II 

I cut l$ months for .. ch of these decaln..._ MO<OOv.<, In their p,rofcosion>l judgment bucd on 

th~ exporienoe and the admittedly dilfcrcnt SBI\B expet!en«, OMS ollldob lu.Curm ua th.tlh<y 

would not oxpea the watal>o&rd to cause ouch hum. Nor do v;e bdieve that the distt .. s 

&ooomp&Dyioaux oftllo~quoov !iYedaJSin• 3~yperi<>d. in ited( could betllc 

"proJooaed mccw tunn• tQwhidltklt.IIIU rcfen. The tecboiquemay bedtsi&Jled lQ<Ritc 

feu ot thedme it i!uaed onthoddain«,sothit thedctainocwilleoopcnlotOl""kl &Nrc 

sessions. funbenno.re. we 1d:nowfcdge that the term .. protoaged'' is imprec:bc. Nonelhele.~S, 

withovt in ony way minlmlzi!li the dlltt'UO cauaod by this to<bnlque. wo believe that tho paole 

brov&b! on by tho wattrl>ori d~ the •orr limited t11110 il ilt<CUolly adn>loimrcd, ...,blned 

wllh MY resi~ Ce&t that may be cxp<:riencod ovu a -wbl:tloO&« p«iod, OOilld not be ..;d 

to1111011n1 to tho"pcolooaed mecw lw1n" tllattheiUWioCO*<S." .fcwtheseruJOOS. we conclude that tbo outhorlzed use of tho woterboud by adoquotely trained lntuTOgt!O<I could not 

reasonably be considered lpecifically inltnded to Uuso .. prolongod mental ha.rm." Ag•in. 

howevot, we Cllltion dw the use oflhts le<l>rlque ealls for tbo most carel\d adbcrel>Ce to the 

limltotiocs Md ..J'es-da impoaed, lneludioa eoastaotmonltoriO& by beth medieol fJid 

!"Y•~..olosieal pmo~~MI of any de<air.eo wbo i> su!>jecsed 10 the wat<Ro&td. 

ll laHilMv.btGitfl/~.(b,otllftdlQ.ro.ait.wodth.M C~C~Cr~to!CODd!XIl~.lft'IUIIbtrof 

~-aC-IIulimllorilicoiOd.c~,.,.,.;IIII04,_., ThoOOOIIdcom'l>cdlloooourroaC 

-~ 

He wu olo<o r.co.,.pol br-o(lllt oni!My, wbo bltodf~ 11114 "'tidy t..llllnl while M MJ JW14<:\18o:1and teuond; IItty also tM:alenotd tll.m ,.1th dea!L Wileo dUs ~Jtld ol 

lntcuoptioa ~he wu d~ 'lot9* ~~cdJy~twed ~thdntb. Ill tbcnc:.:t mild ofll(cri'OptiOf\. aU o(bh ttalbs "u-• Wd4ed to • oot &Ad • totfd 'fi'U plaa.d cwu JU'a.ose end _bb..._.,,.,..._..,"""'.._W._IOCI>atbefd<ue!laocllbo,..... 

.......... 'l>lsiUUdlb<&~Jh ...... "'""-' ...__ (Wl>)..nlll--10!!- "'~""'aC.W.WctiOrh.'<,(bc) .... kft-..1100.. 

tot lb< Olio follo>lnc.,.. d>yr, dulilllwticUmo be -~'q~Qtedty int<Jtopud. ll<"" lhao lrapri.soocd for se-.'tn moollls ln al)dl'oet\IJdy bot a.nc1 ualltctU, .a.~ 1.5 meterS: squw; cS~aM& d'lls tl~ be was shad\k4l0 We 0)(, uftnt by al hb: limbs and btu bJ' OM bmd at~d oat 

IOol,lb<>llbutlbel><lcfatpcriods(oawt.lc*be"".no...l'outor.,.lbeO>I~. n.. --..... - .. ~C...IIoo_,.,..._ ...... - ....... lois-. Doria& tWsporiod,kor.a·...,.....,~e,,__.....,.,.._.,....,IOoliacdut-ae 

lco4 ••• - &ll"c Gel (!Os)lo>lo. IHol ......... 10l41oow looc lbe--Wllao<l dpoo 

=~c~o~o ....... ~-·~r='" m- ddcnlioa. approxiCN.Idy1h'f-Oftheolla 50lkOI)'ooitinctnenl 1M the rut in nw·JO&!wy 

Wnent!"l - ·----- tOlP.l4~t190-9L lloe""'"lloco-'Jdot. "C"""dtart!oaotlaCCbe_IO_Itpblaiii)IQ:IIiocl- b:l ..... lf>eclpJa11hr!r.Jwtoi:flbc-loddioiCCitur«_IIIY __ •IIoclo COQIH of coMuctol tDrturt.,. II.M US. ln ""~to th.ccimou dttfttaces lxtwcto Clle~ Ia HIIoo Uld 1M ClA '1 usc o(the \fl!ubou4 subject to d10 earctniiiCII:udescrlbcd a6<1Ye {lmoftl Qll\d~s. U.Ril•~t \M: 

........... .,six b9w> 1104 rotto•w .,Pte~ u.uuor ................. pll)'$kalllo>tlnp~ lfle eoortrud><d .. 

-..,INIO>t~byil>d!~-~ H........u,O.or..tll>3loC<Wol~"""""oolcl "'"'coleqWIJclcscribc0~1!at""'1*"•..,.aCibtcNnclaistic:JaCdoo~u-.'llcr 

tona~t• CIOI:I:$dSCCICIIir.Jolcucl<llc:s:dwiiiOCI;..q iot!c axo(4U to:l::iqoe 

TO~fi·-·!NO~ 
104 


628SECRE45.eps

; f 

e-if the o=rrenee of ooe ~f the predi<ate ae<s oould, depending on the cirtuJOJCan«$ 

or a pl(tieularcase. givcri.soto an inftlenccofiotent to cause "ptOIOI18od menuJ hum," no sucb 

circumsttnces exi$1 here. 'on the, contnry, c:Xpetiencc with !be we of the watmoard indic<tt$ 

thu prolona~ mentil hum would not be eocpected to occur, ud CIA's use of the techniqll4 is subje<~ to a V>riety of safeguards; di......., abov., dt$i81lt<l to eruure that prolonat<l. mem.lf 

harm dOes oot resul~ Therefore, the cirrumstar= her. would negate any l'OI<ntial'inferenoe of 

spccU'ic intenr co cauSe sud& harm. 

Alruntingadheren<e to the stri<t li!llit>rions disru51ed hCt.in, including the meful 

medical monitoring tnd available i.oterventioa by the team u n·ecessa.ry, we eonel\tdo th3t 

althoogh t~ qu.,Uo~;. subotantial and difficult, lheautho~ use of the, W\\terboMd by adequately lr&.intd intcttogators and oth~r c~ members could oot reasonably be conslderod 

spec:((ioaUy intet~ded co· e.t\l$e severe phys.ic.al .or mental pain or suffering and tbo$ would not 

vioJete ,eettons 2340·ll40A. 11 

fn rum, based on the information you bave provided and the limitatioi'lt proeedur~ and 

1tfcguards th31 would be in pla<e, we ooncludethat-altl\ou&h extended sleep deprivation aod 

use of the wztttboard prc.sem niore substantial quistio-ns in certain respoeCu under the st-alute and the u.se of1be wattJboard raises: th~ most sub$tantitl iuuc--ooone of thes-e apecific tcchoique.s:, 

considerod individua.lly, would violate the p'rohibirion in se-;tions 234;G-2340A. :I'be univcml 

rejtclioo of torrure and tho President's uf1tGUivoeal directive. that che United Swes not eagzae in 

t011ure warrant great tate in. w ly.tlng whether p.rtie:uJar in1erroptioo tochniquu arc 'coil.slstent 

with the req\Jirements Of KCtion.s 2.340--2:340A. and we havt attempted-to .employ $\lC:.h care 

t.hiougtiout our tnalysis. W~ emphasitc thtt tQeic a.rej$$lle$ about whfch reuontb1e pertOGs 

may diugree. Ourtaokh:IS beeri madem01;ediffieult by t~lmprecisionoftheslatuteand the 

retati~e ab~ c.o ofju4icla1 guidapce, but wo hJ.\'t applied O'Jr best readlng oftbe law to tho 

specific:. facts that you ha.ve. provided. M is apparent. our .conclusion is based on the assumption 

:that ~oso observation, ineluding medical a.nd psychological lt'IOnitoring of the dettinee.s, will 

e¢ntiou• during the period when tht$e teehniq4es ~reused; that the per•onnel pres.nt ue 

.a.uthoriud to, arid will. nop theuseofa t~niquf,at any tlme ifthq tx.licve.it is beiag.uscd 

improperly'orth!'eatens·a detainee'ssaJety or dial a detainee maybe at risk of suffering seYete 

by~~ttl pail!, or suffering; !l>&t ~,medica~ tnd psy~log1~1 pco<~nnel are 

continu~lly assening the t.YJilable-littntutft lQd ongoing experience with detainees, and thal, as 

they have dor.e to d~t~ Utey wilt make adjustments to techniques to ensure iMt th~ do not tausc 

!eyCtC ohysjgl or m Mtel pgin or s•ITecjngJAl~Gka1>i31pft_lnd..olh$£ 

1easn mcm ers un4entand tho proper usc of the t¢mique5, thal the techniques are not desio3ned 

- ···-.. ---··-------···---- ·-------- ---------· '' As QOtcd. medi-ca! pctf-OW1d a.."'C Lnstruc::tt4to ~" spcdll cau ln rnoniloJin& aad Rporting on~ or tht watert:oO:ud. St-e OMS GlllddiMs a 20 rNO'fE: ln ~et lO~ Worm Ml.l.."'a medi9lljudpllelllJ W rccom.mtrlcbtioA$. it l.s htsport&n.! tlu! crctY appUcadoaof!M vratel'tm:d 1x C\orou.gtJy documtntod: how lOQt-eadt 

applicatiOtl (and tbcen&ircpi\'ICCdufe}l$1!, b1w mud! mtet mused i.'l. tlseprot'es.s (rulizin& elm nwc:h s:~ 

oil), how endly th.e watct\l'U ~ppf-iod, i!a tq.l l"1J ~. U'Che n.aso- ororopl:asyr.x wu filled, wh11 sort« vd\l.l:M wasexpencd. Mw long was tbt.tkuk 'bd1\'eCO'IpJ10c3rlo1is, a!ld haw lhc .rubjec( locked.~""" u.'il 

~ j (<"Pfwil omin<d). 
105 


628SECRE46.eps

I t 

•aOM attl II. 0.~ 

or inu:oc!od to couoe severe pbysi<ol or llc:at&l.,.io or OJ!ferio& &ll4 IIIII tlley ""'" coopen:o • 

witb OMS pena:u~el In tbe ......Uo otlbeir impoct&nt duties. 

Pleaso let us know irwe may bo otftlrther usi!Ws:e. 

~ 

St<YUI 

6~ 0. Bradbllty 

ll<p."l' Asc1istant AII«rMY Ococnl 

~ .. 

TOP~---·0~ 
106 


628RIZZO1.eps

. •. 

•.: 

"iiPiiiiiiitoliilljr 

.. ------'''' 

(b)(1) 

(b)(3) NatSecAct U.S. Dep•rtment of Justice 

Offie<; ofLegafCoimsel 

w..,.,...._ D.C. 20SJa 

.July 20, 2007 

MEII{OllANDUM FOR JOBN A. ruzzo ACTING GENERAL COUNSEL, CENTRAL INTELLIGENCE AGENCY 

Re: Application of the War CrimtS Act, tht Detai,_ Trtlltmtnt Act, tmd Common Article 3 

of tht'Gmewl Conventi= «> Certain TeChniques that Maj B< UMI by.f/>e CIA In the 

· Interrogation of High Value a/ Qaeda Detai"'!es 

You have asked whether the Central InteUigen<:e Agency may lawfully employ six 

· · "eobailced interrogation tecbniquC$" in the interrogation of high value detainees who are . 

. members of aJ Qaeda and associated groups. Addressing this question ~uires us to detennine 

~hether the ~po~ te<:bniques.are consistent with (!)'the W~ Crimes Act, as amended by the 

.. MiliW}''COmniissions Act of2006; (2) the DeUinee Treatment Act of200S; and (3) the · 

~enu of Common Article. 3 of the' Geneva C<lnveotjans. 

. , . As the President announced ~~~, ~tember 6; 2!)06, the CIA bas opetlled •.detention and 

i.ntarogation program since the mollths after the attacks• of September II, 2001. The CIA bb 

·: ·. ~etamod in this pt'(lgJlJtl several dozen liigb .value terrotbts wbo _, believOif tO possess ciitjcal 

· infonnaiion that wuld ~st in p~ future teriorist attaclcs, including by !~ding to the 

; • ·. •. · -paptute<if(llhec senior al Qaeda opetlliVO!J .. In i~J!o;nogating umall,nuOiberoftheSe~. 

1

·. · .. · ' : . , the~ app1.ied wbat the ~!ICilt desa;ibed as "' ·~ternative 'set of'procedures" ...;.and wbat1he , 

· · .ExecutivcBrancb il}tenul)y liu rellon'ed io as "enhanced inletTQgation tocboiqu~" .1'bcse. . '!cdli>i~ ~ developed by profcssionlls in the CJA,'wtrc ~vee! by the Diredor of the 

: .CIA, and w...C employed Y.,der stmi .coD<!itions, iricludinll c.veful su~sioo 'll!'i1ll01litoriog, 

·, · .· ,:iJr' mallDO!,.I!>afwai dil!'errnined '? be saf~ effectiVe, ani! laWful The Poosiden\ his stated thst 

·the. use of sucb tecl>niques w 'saved America.n lives by revealing .info~o about planned 

.·· .. • . 

. . . . . ··;:\·· 

::. -~. 

. •. terrorist p)ot>. niey bav~ been rocouimen.ded lbr approval by the)?rincip8ls ComPtit:tee of the 

· · ' National S«uriJy Coui>cil ai,d l>riefed tolhe~ll·Diembersbip ofthc~o'rial intellig= · . ~~ies. . ... . . ... . ·, 

;, ....... . ... 

.· . '• .· ·. · . .D~ FROM:· MUit!pi~sob~ · .. j • 

< REASON: ·J.S(c). · . 

' DECl.:.Xl · 

. 1bis memorandum is clliss~ in its C:Otiri:ty .. .. ·:~ . . . 

(b)(1)' 

(b)(3) Na!SecAct . 

· .. ~~L ___ ..; ~ 
107 


628RIZZO2.eps

'· ',· 

... 

) 

.. ·. 

~W~9MP~8M8M8N'~~ --__ ----------l~ (b)(1 ) 

(b)(3) NatSe<:Act 

Prior to the President's announcement on September 6, 2006, fourteen detainees in CIA 

custody were moved from the secret location or locations where !\ley had been held and were 

· ·transferred to the cmtody of the Dq>artrncnt of Defense at the U.S. Naval Base a1 <l\Wltanamo 

Bay, Cllb•; no detainees then rem.ained in CIA cmtod~ under this progiam. Now, however, the 

CIA CJipects to detain further higli value detainees who meet the requiremtOIS for the program. 

and it propo~ to have rux interrogation \echniques •vailable for use, as appropriate. The CIA 

baS deterinin~ that ti)ese six tedmiqu~ are ihe minimum necessary to maintain an effcc;tive 

P':ogram designed 10 obtain critical intelligeilce. 

, The put eig)lteen m<inlhs have witljcssed significant changes in the legal frameworlc 

applieobleto lhe amied conflict with ai Qaeda. The DCtainee Treatment Act ('"DT A"), which the 

President sigoed on Deeember·30, 2005, bars the imposition of "the auel, uoosual, [or] 

iribumane treatment or punisbmenj prohibited by the Fifth, Ei8hth, and Fourteenth Amendments 

to the Vnited·States Constitution" on anyone in ihe custOdy of the l}nited States Goveinmen~ 

regardless ofloeation or nationality. The P~iacnt bad require!! United States personnel to 

£oUov,: tJ>at standard throughout the viorld as a mau~ o{ policy prior to the cnactnient o~ the 

DTA; the DTA requires comp.Jiance as a matter o( law. 

On ~une 29,'2006, the Supreme Court decided Hamdan v. Rumsfeld, 126 S. Ct. 2749 

(20!J6), holdii)g thai tht mil.itary commissioll$ estalilisbed ~Y tbC President to tty unlawful enemy 

combatanls wer.e not consistent with the law of"'"'· which at the time was a gc>eral requirement .of the Uniform Code of Military Justiee. ComniOn Article 3 of the Geneva ConventiOIU was a .part of the applieohle law of war,~ Court suted, because the armed conflict with al Q!oecfl constituted a "coli1lict o,ot of ali intenwioDal character." , The Court's ruling W&s contrary to the 

· Presidem's prion!etenninatioo that Common Article 3 does 'not apply to an armed coollict 

'acro.S llalional boundaries with ail intern,a.tional ttrrori~ organiUlion such as al Qaeda. &e 

·Memorandum of the Presideat for the National Security Council, Re: Humane Treatment of a/ 

Qa~ and Ta/iban Dotaintes at 2 (Feb, 7, 2002): 

·The Supreme Court's deeislo~ ~og ~ applieability of Common Article 3 .. 

;intro<lueed a leg.l standard. that had not previously appfieil tO this conflict and_had ooly,rarely. 

. been ~ in past eooflicts •. WJii1~ ~ireeted at oooduct !hit~ egregioUs aAd universally' 

. '·: ~odcmni:d, Comnion Article 3 coo!alns ~ ~/l)le and, il11cfioed tenD$. that ~d . ,· luovo;mtcrprcted in. a nW>ner 'tj>at miglit ·suliject'l:Jnited State& intelligenee pe<sopnel to 

·. un~. post """·S!AOditds Tor their ilonduct • • The War Crimes }4 mo3nified the . · 

.Signifieanee of any disa&r'!<ement over the 'me'aning of th0$e 1en'ns bY. making a violation of 

• .Common· Article 3~ fed.eral.crime.· · · · · 

; : 

• • 1 ~lhispoliey, tblsooi..~~~ ~!><f'~ ..:.....,.ottheDTA !ballhesix . 

eObancod~t<>cbnlq.,..~.btJdocompl.ledwilbthe-o(U.S.obUP.IfoosuodcrAitklcl6 

. :.•. •;· ortl>c~d~Tortmial>d~lllmiawior~~~§6SU.N.T.S s:s("CAT:').S.c ' Mcmotanduql.forlobil A. Rizzo, Salior Deputy GcoJiDI eou..d, CentbtlDiolli~ A(p>cy, Cmtn s-G. · 

,:. . ..• lladbu<y, ~ Dqxity Assistant~ GOooaJ. Otlico o!L<gal a.oo.d, li.<:.AFPIJt:olion q/Unlrd S•tu • ;' .• ·. : .OollgodtNU (/n~ Artkk M oftk c-..n11 ... Kgo/AII T.,..,.. to Cutdn T<dW9v¥ th« May &.11#4 In~ 

) : '~"'*'"t1Jif'.gloVtll•coi~O.~O:I4i~~30,'?S) . .. ':;· 

'f8f .·~~ ~ 

2 (b)!1) ... 

(b)(3) NatSecAct 

.. · ·.· 
108 


628RIZZO3.eps

8il'olii~~Will[='==------'~ (bX1 > • ____]~ (b)(3) NatSeCAct 

The President worked with CongteS$ in the wake or the Hamdan decision to provide clear 

!ega) standards for U.S. personnel detaining and interrogating terrorists in the anned conflid 

with 81 Qaeda, an objective that was achieved in the enactment of the Military Commissiom Act 

of2006 ("MCA"): Of most tdevance h.;., the MCA amended the War· Crimes Act, 18 U.S. C. 

§ 244 . to specify nine discrete offeu.es that would C9fl'titute grave breaches of Common 

Article 3. See ~Cj\ § 6(b). The MCA further !Jnplemeoted Common Article 3 by stating tbat 

the prohibition on cruel, inhuman, and degrading treatment ill the DTA r.eacbes condUct, outside 

of the grav.: breaches detailed in the War Crimes Act, barred by Common Article 3. See id. 

§ 6(c). The MCA left respou.ibility for interpreting the meaning and application ofCotnmon 

i\iticle 3, cx..q,t for ihegrav.: breaches defined in tbe ,tmendec! War Crimes Act, to the 

President. To this end. the MCA declared the Geneva Conventions judicially unenforceable, su .id. (a}, and expressly provided that the Pre.ideot may issue an interpretation of the Geneva 

. Co~entiOns by_ executive order that is 01 tut.h'oritative . . . as a matter ofUn.itcd States l~w; in the 

. · sam0-manner as other llllminisirative regulatioll$:" ld. § 6(a). · 

• This memorandum applies tb<;se new legal develoP.ments to the six interrogation 

tecbniques that the Cl(l. proposes to use with higb value al. Qaeda detain~. 2 Part I pr<>l(ides a 

. brief history of tl;le CIA detention program as well as a description of the program's procedures, 

. safegtW;ds, ~d the' six enhanced ~qu~ now proposed for use by the.CIA. Part II addresses 

the newly amended War Crimes Act and concludes that none. of its nine specific criminal 

. :, 1bls lilemonodum llddrcs!es thecotllplianoeorthe six pn>pos<d.lokaoptioa t«boiques with the;..;. · ~llid-aeatyprovisionotissue. Wc~yhavcC<liJdlldcdtba!tlleo!l~donolviolalcthe 

-.J probibitioo 0!> lDl1\JI'C.. CO<ti1icd ai ls"U.S.C..§f 2:l.CO.~A. S.. Mt:mcnndum for Jabn A. Rltto, Senior 

) 

• Attorney 

~ Ga>eral 

Gcncrol, eo...-, OOic:o ofl.qal 

O:nlnl ~ 

C4w>od. II<: Aqrq, Appll-on CJvm of 

s-o> 

/8 U.S.C. 

G. Bm.uty,

ff 2340.23401. _Priodpalil<puly to Cmtoln ~ T<dvofquu rhDI 

M"J'/Jo Uwlln tJoe Jnlim>gotion ofoH!gll V<>luc ol QG<ilo DcrDinot (May 10, 2005) ("S<dioo 1340 (}pln/On"):.IU 

• ·olJN! Mcmom>dum Cor lobo A. Rl=, Sedor ll<puly <lenc;t>1 Coodsel, Cimrol lmdl~ ~. fio1!> S<tYeO G. Jlfodbal7, Piinc:ipoJ Dq>wy AssistJnt AUbml:y Gcncrol, omoo oflAgal Cdunoel. ~ ApplbiJion of 18 

•. U.S. C. §l2J40.1UIU1otloeCombindU.. ofCu-tdn.T..mi'l"ulirh</nl<m>gallooofHiglo VoJ.<tiiQ<><do 

IJ.toiNu (Moy 10, 2005) ("Co,nbln<d.£i..;,") (COIIduellni thai theCOII>I>U>cd'-oftbcse tcc~Jtljqucs -'dno< 

. • ~the r<dcrai probi'G;tioo ... -). In-...... ._~ thai thcooNiidoruof<OnftnmWrl iothc 

• • :' .•• ' CIA JI")8J3m fi!lly Qaptywitl> thc 9'J'A oD4 OJ!xlmon ~ 3,1Dd ""'clo~--<>Q!Idllicos'lpiobcl'e. • .. : ... . ·: : S.. ~ loriobll A. IUzzo, Adiog GcacnlO!ooocl; CcoiD!.IDJdli&aloe~.lloa! Stev.= G.. · 

~. AotinJ Asslslaat""""'*' Galcial, <Jmoeofl.qal Couooci;Rc ,jpp/I#IJiatf·o[IM Dclqlnu ~ 

. . Aft to Ommdons o/Ccn~Io[C.npoof Iiii<Il!gmct Agin'l)! fodlldu <Aut JJ. 2006); Ldltr to 1obo·A. ~ ' . • ,, Aal,g Ga>eral Cc>wt<d, Ccai,.J~Aq;DI;y. fnlm S"""" 'o. B.-y, Acdo& AssUwa AttomcyGcilonl, 

'< .'. 011kx:o1Lega10Jun.el,Ji. Applloo&n'of-cow;.onNtldd(oC<Nf4dOM ofOiii~ "!. CIAFodlitiu' :· 

• ~ ·31, 006); • . • • . 

• •. " • • • " ·Top:<bcr wiihe>UrpriQropiDons,lbe~ ...,cli=ss iD this-- ri,uy add~Us tb6 

poJqJtially rdevaot-ot'lloitocl s.-taw tb.at"" ~to tbetawfuin= <!COle CIA <ldalliOn !f>IJ 

:·: .. =: ·,,. ~c~..:,.~thal~.::t-1!:-.. ~::::::=~==~~of ' ·. , · . • .- . ' .d<:tJ.Dcd.io.t8 ,U.S.C: § ~ IIJid tb<tt:(~~~ iA title lhruotapptiqblc.' In llddliioo. ....,Uiidcat'>oil • . 

'; . · .. · ., lUi d.e CIA will no1 clctoin•io iiU procilm arry,p<Bou ,.bo is a prisooa.ofwa<lllldcr ~ 4 qflhe Thir11~ · ... ".• .. ·· •;., c..n<:otionRclative~U>O~Pf~ofWar 6U S.T. 3J16(Ailg. Ll,l~S)fGP\Y")cn- · 

. . : ·,'. . · """"""'by Aai~4 otO>e'FOwtl> a-.. can-R.eWive to O>e~OCCtdlion l.'onloosm nine' of 

,:.::>, .': ,. Wai.·6V .. S:T. ait6{~ 12; 1949j(".G€;'("),0Qdtbi;sthepi<Msioal:Qrtheaa...i~ "!!'tr llw! • 

. j ,· .. ~~3alsolloCIO( ":... • . . 

· ·:.. .' "•. : .. , · . · · . •T'I!e~r:~j!Jiiill~ ... ~~iMit- =====~=] 

. ,: 

' • ' • ~ .. "' . .• (b)(1) . . . 

l · . X~l NatS<ocAct . 
109 


628RIZZO4.eps

.-

·· .. ) 

(. 

· .. ·· 

1'8f 1!1!8litlir[ '---

(b)(1) 

(b)(3) NatSecAct 

off~ piolu1>its the six tedlniques as proposed to be employed by the C~ In Part m, we 

oon.sider1he DTA and conclude that the six techniques as propo$ed to be employed would satisfy 

its requir<ments. The War Crimes Act and theDTA covet a sulistantial measureoftheoonduct 

prohibited by Common Article 3; with the assistance of our conclusions in Parts n &nd m. .Part rv explains that the proper interpretation of Common Article 3 doe$ not prohibit the United 

States from employing the c;:IA• s 'propose<! interrogation techniques. 

To make that determination eo;.,lusivc under United Stales law, the l'ii:$ident may cxUcisc ru, eutbority under .the Constitution and the tvfi1itary Co~mi.ssions Act to issue a.n 

executive order 'adopting this interpretation of Common Artis:!• 3. We understand that the 

PreSident intends to exercise this authority. We have i'cviewed his proposed ex~tive order: 

The executive order i$ ,wholly consistent with the interpretation of Common Article 3 provided 

herein, and the six proposed iotenogation techniques comply with eaeh of the executive order's i.mj.s, ' 

(b)(1) 

L (b)(3) NatsecAct 

. The ClA'uuthority to operate its propoSed detention-and intOSTogation pro~ i$ • 

--··~-,·~·.-~ l 

j Altliough'the ClA'sd<!ennon progtam waslen)poruily 

emptied. iii early September 2006, that Memoftmdum of Noajicatfon has '!lOt been suspeniled b)' 

·the Pretident and continueS to.autll9riie the c'rA 1o opera!e a detention progntm in aeonrd&nee wit!> the tenns ofthe m.,morandum. . . . ' . . . . 

,•. . "':bC'ClAJiow proposeS !0 operate a JU:oited-d~eniion il1d iiltmo~ou· P.t'Q~ pursUant .10 lh~ aut.bOrity gpiJ!ed by the Pretidt!U in theMem01'01Jd¥m 9f NorijiCtJtion. TbC CIA docs not 

, . .in!enll fOr this program to-involve Jong-tetm detention, Of to Serve .. puiJlOSC similar to thai ofihe 

. ... . ' IJ.S. Naval. Base 8t Guan~o Bay, CUba, which' isln 'part to:detilin danil~oia ~y · 

• ., : ·' ·. OOOlbatlnts. wbo, continue to pose a threat to .the United SUtes, until the end of the armed 

·. C<?Oflict withal Qae<la oru.oti~olhersarisfactory aifangem~ cO.n be made. To th.eCOD!I'<Y. ·.CIA curreotly intends for p~ns ~ced iriio ibe program to be decained only .so long as'l$ 

necessary to ob,taia 'the viW inte!Jigeaiec they may. possess. 9n~ thit Clld is accompli.sbed; the 

• · . . CIA intcpds to trwfet 'tbe d~ to tbe custodY of other~ties,' including io some cases the,' 

• · · •• .' United:$1iteinepaitmcntof:Qe~~ · •. • · ,-' , . :'., .. : · . 

. ·. ·.·: 

. ·: ~ 

. . ·: 'nn.~~)>=,rou~- ~lh~ .. ~~~~~~~~ib.l'f<sida11's . ~. 2006 .-lgoduliali 'lltiicblle~ lhat tile JX'08>'1UI waiemjlly'lllhattillle. 1)< aA- 0 • : · · .,. • • • • • • ;· •• • • • • 

,:-; · rfiiJ!iliillilMI ~ 

~b}(1) 

(b)(3) Natse<:Act .. · 

.. ~·.: .. 

_,j. 

. , .. 

> 

~30 260 : 
110 


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. ·-r 

. .J. 

T8P lllillfiiTL -----~ (b)(1) (b)(3) NatSecAct 

The group of persons tp wbom the CIA may apply interrogation techniques is ·also 

limited. Under the tenns of the M•mortmdum of Notificotion, only those wh6m the CIA bas a 

reasonable basis to believe "pose a continuing. serious threat ofviolenj .r. ~ to U.S. pcrso!l$ 

and interests or who arc planning terrorist activities" may be detained.· Even ano (b )(3) NatSecAct 

detamees who meet that standard, however, the C]A does not propc>se to usc enhanced 

interrogation !CQhniques unless the CIA bas made three additional detcnninatioos. First, the CIA 

must cOnclude !hat the detainee 'is a member or agent of al Qaeda or its affiliates an4 is tilcely to 

possess critical intelligence of high '?-Iucio the United States in the Global War on Terror, as further det:cribed below: ·SecOnd, the Din:x:tOf" of the CIA must determine tha.t enbo.nocd 

interrogation methOds arc needed to obtain this crucial information because the detainee is 

, withholding or Owupulati.OS· intelligence or the threat of imminent ~tlaclc~eaves iosuffictent time 

. for lhe use of standard questioning. Third, the cohanced tee!tniques may be used with. 

·particular detainee only i( in the professional judgmenrofqualified medical persoimel, there are 

no significant medical or psychological eonuaindications for their use with that detainee. 

J. 

The prop is limited to persons whom 1.\>C Director of the CIA detcnnines to be a 

member of or a part of or supjJOrting al Qaeda. the Taliban. or associated terrorist otganizations 

and likely to po'$seSS infonnauon that could pre.vent tcrrori~ attacks agaiDst the United SU!es or 

its .interests or that could help locate the senior leadership of al Qaeda wbo are oon<luctiog its · 

campaign rlf terror a8ainst the United States. • Over tho history of iu detention and interrogation 

· prograrri. from Man;b 2002 until today, the CIA has bad custody ofi:toljli of98 deuinee$ in the 

pro~ Ofthcise 98 d~ces. tbc CIA bas only use<~ CilllaMecl tcclmiques with a ,total of30 . 

The CIA,has told us that it believes many,'ifnot al~ 'Of those 30 d~luld receivod tnining 

in tho resisttnce of interrogation methods and that al Qaeda attiv~y seeks 'informatioo regarding 

. U.S. irncrro~on ~s in.orderto cnbailce.that trainjpg. • 

2, . 

· :;~· ~ .. . The~ has informed us that, ev~ will) r~ ro d~es wbo~~ be!ievec\ to possess 

1

• ' ' fiigJi VaJUC information. enhanced techniques WQU)d nQ( be U$«1 uruCSS>nonnal debriefing . 

• :. •, : :.' . mCtJiod, have ~ ineffective Of unless the immineou of apotmljal allaclc is ~eVed DOltO 

·' ' • , .'· ; • oJ.Iow sullioiCJil time for the use of Oilier metbods. Even under tholatte< tircu~ the 

' •. •·· detainee,will beatforded the opportunity'to .:n.w.e;. qilestions before thcuseofOAy·..i(w,oed 

. · , • technique$.. IJ>" either~. the on«<i>e. iilicrrogation team mutt d!'tenniile·that'the d~nee u -' : • ~. witllhold,irig Qr IIWiipU!atiDg infoflllAtioD. The interrogation team thdr.deWops a wrillaf 

. . .: .. : .' • int~on ~IIlii.. ""'>: intcrro~on plan that would i~vol~e the""': of ~tecbni'l\'ts. 

.. 

• 

:

.

1': ' •• ... . 

CUSIOdyof.'alxl~.:ii.diaJiflgiinDcocml>cr2!l06

~d....s--dldoot<mplofaoyc:nl)anoodintenopionudiJilquosduriogbi$~ . OAoll!ew_;~~ .... ~ OnApdl26, .: ·: • • .· :wo7,thc!lJ.plioo.dai-BadiiDihdtwtody.orthcDCpol1meill,arDdmlO. '. • • 

"> ·: . . . lbc~ii.rotulsustllottt .,c,.;.~;,rilif..:m-,~~llicaooocir~bin • . . , • J.Od<DorA)'ml!lii·Za....uiriaswarnfolill&~o(~t~il'othcroo~.,..~ 

.. J ' . . . ' . . ·.. . 

··1·· : · .~ rerssGPO:r -· . . . '--,-,~ ~ .. ; ·. :.I · · s (b)(3) NaJl?ecAct ·.. •. 

( 
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(b)(3) NatSe<lAct 

must he pet5onally revieWed and approved by the Director of the Central Intelligence Agency. 

Eaeh approval would !Jst for no more !han JO days. 

J. 

. The tbird significUt precondition for use of any of the enlw>ced techniques is a careful 

evaluation oftbe detainee by, medical and psy~logj~ professionals from the C¥\ 's Office of 

Medical Services ("OMS"). The purpose.ofthese evaluations is to ensure the detainee's safety at 

JIIIJ times and to pt'oted. hipl &om physicaJ or mental harm.· OMS personnel are not involved In 

the work of the interrogation itself and are pi'OSetll solely to ensure the bcaltb al)d the safety of 

·the detainee, The intake evaluation includes "a thorough iJ;IitiaJ medical' assessment ... with a 

complete, dOc:umented history and a physical [examination]addressing in depth illy chronic or 

.previous medical problems." OMS Gui<klines on Medical and Psychological SII[Jj)()rllo 

Dotafnu Rendition, lnturogation and DetentitPUt 9 (Dee. 2004) f:'OMS Gui/Ulines''). In 

ad4ition, OMS persOnnel monitor the detainee ~ coodition throughout the application of 

enlw>eed techniques, and the intcrro8Jiion team would Stop the use of particular teebniquesor 

halt the interrogation altogeiber if the detainee's medical or.psyebological cond)!ion were tO· 

indicate that· the detainee miglit suffer significant pbysical or mental harm. Su &aion 2140 

· Opinion at -6. Evdy CIA officer present ai an interrogation, including OMS personnel, bas the 

· authority and respOnsibility to stop a technique if sueb harm is observed. 

- . B. 

The propos«! iutcrrogalion techniques are only one part of an iut~ detention and 

iuterrog,rion progiam .op"l"!ed by the 9A- The .foUndation of the prograrii is the CIA's 

kngwledge of the beliefs aDd psyebologjcaltnits ofal Qaeda ·member>. Specifically, members 

.. of aJ· Qaeda expect that 'they wiU \>e subject 19 po more. tban vetbal questioning in the hands of 

· tM United S~es. and thuiare trained patiently to wait o1lt U.S. interrogatOrs, confident th,lt they 

· . : ~ withsto,nd U.S. irlterrogation techniques. f'.t ihe ~time, al <;!aeda opmitives be6eve that · 

they are morally pennilted.IO reveal informaiioo ooee ~Y have reacb!:d a eettain limit of • 

d,iseomfort. The prograin is designed to dislodge the deui.I!Oce'fexpectations 8bout how be will 

bC ~ .in·U:S. ~ • .\0 create Hilllatioli in 'Wblch .fl~ feil• )hat he J,s ooiin. contra~ and 10 

'e$1&blisb a reatiopship C?~ <fependcllce.on lhe part oflh!> detaillee. · ,-\ccordin81y. tbO proSJ&DI's 

'inleoded <;!feet is J>Syebological; iriJ not intend<:<' to~ iof~on througti the unposition 

.of physical pain. . · . : · · · . · . . ·: 

• In iliis re;;,. the GIA g.;erally does oi>t ask questions durlng · admmi~tion of the 

.techniques to wblob the CIA does not already know the answers. To1he extent the CIA 

questions detaiti~ during the administration.Oftlie tec;bniques, the CIA asks fj)r already lmo.wn. 

/( ., ·:· information to 8111!8e Whether ihe detainee bA.neaebed the point l!.Wbich he belie9es that he;., 

no loQger required to resist the diselosure of e.Ocinte' infoiom.ation. When CIA personnel, in their' .. · profes&o.naljlidgment, belim.tbe·detainee.bas le.ooed that J>?int,·lhe.CJA:wQuld diicontimw 

.· 

_.. u~ ~£the tecluij<tues and debrief'lhedtt&inee resail!in81Xlalteis.o":whicl!.tne trA is not · 

• .. . .. : 4efi.nitivo;Jy infOrmed. 'rbiiapproaeb hisbJigbts the inicrided psyC:h<ilogjcal cffeciJ oftbe .• 

.. 1: .• .. ~qU~ aiJ.d #'~ ili.!f oftl)e aetaioe'e ~~ p~v! ~ false .iof~au.o'! wl!ly au meins. . . . • 

·. to dJSCOnttnue lheu' applic:ation: . . .... . . . . . . . •. . 

.·· 

... ··)··,· .· . . ·. ~ 

·.- ·: ').'' .... " 6 

· .. , 

(b)(1 ) .' 

(b)(3) N~tS<!cACt 
112 


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(b)(1) 

(b)(3) NatSecAcl 

The CIA ha.s designed~ techniques to be safe. lmporUDtly, lhe CIA did DOl creote the 

proposed interrogalion techniques from whole cloth. Insteod, the CIA adapted eoch .of the 

techniques from those used i!) the United States military's Survival, Evasion, Resistance, and 

'Eseope ("SEREj training. The SERE program is designed to familiarize U.S. troops with 

interrogati~n techniques they might experience in enemy custody and to train these troops to 

·resist such techpiques. The SERE propm provided empirical evidence thi1 tl!e techniques as 

used in'the SERE program were safe. Asa result ofsubjCcting hundreds· of thoUsands of military 

personnel to variations· of the six te<;hnlques at issuq here over decades, the military-bas a long 

.'!Xpeoience ~th tho m<.dieo.l :and psyehl!logjeal effeeti ofsuch tecluUques. The CIA reviewed 

the military's extensive reports concerning SERE training.-.Recognizing that a detainoe in CIA 

custody will be ina very different siruation froni U.S. military personntl who experienced SERE 

trainln& the CIA nonetheless fOund_ it imporunt tht.t no significant ""lasting medical or 

psychological harm had resulted from the use of these toebniques on U.S. military personntl over many year.; in ~ ttiining. . 

All of the techniqiles we di$cussbelow would be applied only by CIA pe.:s.oonel who are 

bigbly trained in carrying out the techniques witbin the limits set by the CIA: and d~cribed in 

this memorandum.' This training is crucial-the propOSed techniques are DOl for wide • 

applic;ation, orfor use by young and untrained persoMel who might be 1!10"' likely to misuse or 

abuse them. The average ag~ of a CIA in erro~tor authorized to apply these toebniques is 43, 

and many possess ad~ced di:_gree$ in psychology. Every interrogator who would apply these 

ettht.nced techniques is trained and certified in a course that lasts approximately four weeks, 

wruch ipcludis mand_atory lmowledge of the 4etailed interrogatioo guideliMs that ifte CIA bas 

dC'!eloped for this progrtlll_1. This.courseent.Ws for each interrogator. more than 250 hours Qf 

·tfaioi.og in the tecluJiques ~their limits. An interiogator works under the direct super;).$iod of 

e;xperienced personntl befOre be is permitted priDc:ipally to dircot ali interrogation. Each 

. interrogator baJ lieen psyebelogically'!a'Oelled to minimize the'·n.k that llliint~guor might 

misuse any t.echnique. . We understand from you'tht.t these procedurea ensure thai all · 

intt;rTogators understand tho desigo<Uld ,purpose of the !nttnogalioo techDiqu~ and that lhey · 

.wili·IIPPIY the tecluJiques in accordaoce with their authorized aod intended use. · .. ~ . . 

. . . . ;rk ·CIA. proposes. to U$C twO categoiies_ of Onbanced interi:o,&ittio~ teebiliquc;s: 

•· _oonditiooing tccbniques· and ~rreetive ~Qu~- ~ <;IA has 'determi.o!>d thai \he six · 

iechniqu~~ desa:ibe below 8IC. the~"'~ to maintain an ef(~ p~ (or 

9btaitJ!n& the type of erititl!l intcll ~eoce'from a hi!!)>' value detainee that the~ is ~esi$-Ded : 

lOeliCit. .. • · ·• · • · · · · · • ' .-
113 


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(b)(3) NatSecAct 

~ Condilitming tedtniqw:s 

You baveinfonned us that the proposed conditioning tecbniques are integral to the 

progtam's foundatiooal objeetiv&-to convince the deiAinee that be does not baYe control over 

his basic human noeds and to bring the deiAinee to the point wbere be'flllds it pennissible, 

consistent with his. beliefs ind values, to disclose the information he is protecting. You have also 

told us that this approach is grounded in the ClA's·lcnowledge ofal Qaoda treining. which 

authoriz.es the disclosure of information at such a point. The specific conditioning techniques at 

~ssue here are dit:tAry manipa.1181ion ~nd t>.xten4ed ~ depriv3tion. 

Di•tary manipulation would involve substituting a bland, commercial liquid meal for a 

detaioee's nonnal diet. As a guioeline, the CIA would use a formula for C3lorie intake that 

depends on a detiinee's body weight and expected level of actiVity. This fonnula would ensure 

that calorie intake will always be at least 1,000 kcallday, and that it usually would be 

significantly high<;<.' By comparison, oommerc:W weight-loss programs·used within the United 

States c:O~oly limit intake oo 1,000 kcallday,regardless ofbodyweighL CIA medical officers 

ensure that the detainee is provided and accepts adequate'.fluid and nulrition,'and frequent 

monitoring by medical personnel talces place while any detainee is undergoing dietary 

manipulation. Detainees would be n;>onitored at aU times to ensure that they dO not lose more 

than ten percent of their starting'bod9 weight, and if such weight loss were to occw; opptication 

of !hi tecbeique would be discontirwed. The tiA also would ensure that detainees, at a 

minimu.111, drink 3S mllkg/day ofOuids, but a_ detainee und<;rgoing dietary manipulotion may 

.drink as much water a.S be reasona.bly pi~ · · · 

Extended sl«p dqjrivadon would involve keeping the' dc:talnee awake continuously for 

up 'to 96 bows. Although the application of this techniqile may be reiilitiatod after the detainee is 

allowed an oppottunity for at leost eight unintttrupted bows of sleep, CIA gUidelines provide 

that J. detainee would oot be subj"!XOd to more !han 18,0 hOurs oftot&l sleep dep[ivotion ~g 

one 3().day period ~ llnenogatOrs would emplo~ Cldendtd sleep deprivation primanly to ~en 

.• ~eiain<;e's IO int<;rrogotion. .'The CIA koows li'ofll statements mo~c by al Qaoda · 

. inembers'w)lo haVe been interrogated that'll Qooda-operativ~ are taugbl. in~ that it is· · 

: consi~ent With their beliets and va\Qos to ooopente with interroga!o~ and to disclose . 

• informafion olice they have met the limit$ of their abl1ity. tl> resiSt. S!eep deprivation is .effective 

.' •• U. safely i?ducing fatigue .. one means to bring such operatives ~ that point, 

~The CIA~ toDows ISa~aeolorie ~ oi9oo kCOVd'Y + 10 kc.uq,do7. This 

· • QUIDiitl' is llll!,llipllocl br Ll Cor a &cdelllazy adivi!y left! or l. 4 for acoodmle ldiviiY ICYd. Regordlel:s <;l tllis ' r.· roimul,.t.c~millimwlicalorieiulab:is )500lcx:alldo7,andinuoCYe~>t\S~-~co · . · reoci~>e less tb:m 1<!00.lcx:al/~. 'Ibc soideW>oa.loric illtalce. for a~ wbo ~ 150 poonds (lppiOldmordy 68 ~) 'MlOld,lllcn:i<m be ll<Oilj 1,900 ~rorsed""*J' aclMty "!id.wculd bemorellwa2,200 

.. iQlldly tor-aetmty.. · • · ' · 

· · .... : · 'IDihls~~~~ihetawfuJ••••;d-~pedod4fCCllllin~·~dcprivlliop~!>•; ~ tb:m 96,houii. Sbould tho CIA<Ieiamloo lhlllt...wd be~ (or tbO~ofthooi.ID-!" 

• CXIeqSfoo of Chat pedo'd wittl rapect to a p3njrulardcai-, Ibis Offine wi.>Jd~ lddilioiW guidao<e.on !be .• 

' apj>lica~ ~tbeappl,icoble lcQI' ~~ lbo fac:uoftbarparticolu-_ ' · · . • · . 

• .. 

.· . . , · TliiPii&S1!liiJ' L_~ 

··«·: ' . 

. • . . ·. . . (b)(1f' ' . ··. . . 

• • •· & (b)(3).Nat$e<Act l.00264· . · 
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The CIA uses physical restraints to prevent the de<ai~ froro falling asleep. The 

· detainee is shackled in a standing position with his hands in front of his body, which pr..,.,nts 

him ~m falling asleep but allows him to .OOve around within a two- to lbr..,.foot diameter area. The detainee's hands are generally positioned below his chin and above his bean! Standing for 

such an extended period of time can cause the physical dfeas that we describe below. We are 

told, and we understand that medical stUdies conlinn, that clinically signifieant edema (an 

excessive swelling of !be I!'3S and feCI du~ to1he building up of excesS fluid) .may OCCUT afler an 

extended period of standing. Due to the swell in& this condition is. easily diagnosed, and medical 

personnel wouJd ~op the forced staodias wbeo clinically ~ig:nifiunt $)>mptoms of edema wete 

r=gniz.ed. In additi<?n. standing for extended periods of time produces muscle stress. Though 

this condition can be uncomfortable, CIA medical personnel report that the muSeie stress 

8S$0Ciated with the mended sleep d'eprivation teehhlque is not harmful to the dtlainee and that 

_detainees in the past have DOl reported pain. 

The detainee would not be allowed to hang by his wrists from ·the chains during the 

'admioi:stralion of !be technique. If the 4etainee Were no longer able to stand, the standing 

,compo!'""' ~f the technique would be immediately discontinued. The detainee woul~ be 

·monitored t1J all times thnoilgb closed circuit television. Also, medical personnel will conduct 

. frequent physical wd psychological examinallons of the detainee dutinS application of tbe 

. tccbnique. • : · · 

We underSiand -.bat detainees undergoing extended sleep deprivation miSht expericm:e 

"unpleasant physical sensations fi:,om prolonged fatigue, inc(uding • slight drop in ~y 

tCmJ1ef81U'C, difficulty with COOI'dinated body mo-.ement and wilb sr>eOeh. nausea, and blurred 

visiou. • 'Sudon 23f0 Opfnio_n.l131; see also ld. 11 37-38; Jl'lh;y W• Sleep: 'nre FW'!Ciilms <Q 

Sleep In Homons ani/ Other MammiJ!s 23-2.11·(l998). &tended sleep deprivation may cause 

. diminished oognitive jimctiooillg and, in a few isoiBted case&, has cau~ tbl: detainee 10, 

·• ·. · ; eoq>Orieoee haUucinaiio~. M;edical persoilne~ and indeed aU interri>gation.team memb.., are 

• instructed to stop the use of this technique if the detainee is obS<tVed tolUffer from significant 

·impairinent of his m'!'Jia) functions, including hallucinations. We unclc;tstand thaJ subje<:ts 

-::. : -clq>iived of sleep in Sj'ientific studies for signiticantly longerthan.tiJe C!A:S 96-bour Umit·011 

. ,· · ., · . ·. ~DiiDUous sleep deprivation geoorally rctunl to normal neurological functioning'with ooe ni8ht · .. ··. ' , . oho~ sleep, See&ction 2~/0 Opinion aUO. . . . . ' 

,. ';.· • .. : . Because rel~insad~ee fi:omJhesbacklestouti,lizctorietraollitics~d present a 

. ' sisl>ificatjt ieauity risk and would into;ofeie ~ the ~~ess oft!>• technique, a detaioee 

·. : '·' . :-~--Thc-OA--._,..--Ihis-. ..,--ing~asstm_1iocthecloatoalhc96-boua-,ia'.;ulwlbcPI..-cllkq> 

·:. . <!q>rivltioG teclliligac. SimJ!arly, wi~ rq;anlto lhc CIYCI>I! sloc:p dcprivatioD limit of 180 ~!be 0A dol:s,oot ; ·:.> . .. tpply tbe sbactliligproccilwa for,_,- a 10111 of 180 boon in -30-<llfpcrio4. · . · 

. ·:.. . . :· •tt~~~~ •• ~;,._"""~d..rlbe_.:.. .• . •• :;. .. ~doesooqic;mithimtoS!aodfonliCx!eodedpCriod..orih~ci<YdopO:J>bl'Sical~liom 

· : •. :. e:>aa>dediW>dio&.~ascilJiicalljo~cdc:a>aormusclc"'- tltco.~IIIIJ useah~· 

·. • •· · .. · · · indhod~sloel' dcjnivatirll. 'Underiha mt11toc1, lhc.d<llilioe ~d bC sboddciltC~.a smalh;IO!>~~ far · 

', ' ~hisweij:bl.botof'imillljcicnt~bimtolccq> bii1l!!IJDoe~!"'!-

,''· . ·· ..•. ·. ·.· . . '· . . . -., . '· .. ·

... · .· (b)(1) 

'-.....---_J~ 

(b~(~) Neu:;ecAc~ .... . . ~· ... 9 lD0265. 
115 


628RIZZO10.eps

.. : 

(b)(1) THI flll8fllr~ ____ ~ (b)(3) NatSecAC1 ...J 

undergoing ~ended s!ecp deprivation frequently weors a disposable undergarment designed f<ir adults with incontinence ar enuresis. Thi: undergarments are cheeked and changed regularly, and 

the detAinee's skin condition is monitored. You ljave informed us tbat undergarments are used 

solely for sanitary and health reasoos and not to humiliate the deuince, and that the detAinee will 

Ww: clolhin& such as a pair of shOrts; o~er the under·s=t during application of the 

t~que. • · 

2. Corr~6v. tahniques 

Correetive techniques entail some degr~ofpbysieal contact with the detainee. 

Importantly, these techniques are not designed to lnfliet pain on the detainee. or to use pain to 

obtain information. Rather, they are used ·~o correct [or] startle." Badcgr011nd Papu at S. '!'his 

categOry of techniques. as wei~ is.ptemiscd on an observed feature of a! Qaeda training' and 

mentali~he bdief that t.bcy will not be touched in U.S. custody. Accordingly, these 

techniques."condition 8 deuince to ·P•Y attention to the interiog&tor's questions and .•. dislodge 

"eXpecliltioll$ that the detainee will not be touched" or ihat a detainee can frustr&te the 

intcn'ogation by simply ouilaSting or ignoring the questioner: Section 2UO Opinion at 9. There 

are fwr techniqu.es In this category . 

. The "facial bold" is used to bold 8 detainee's head temporarily immobile during • 

illlerrogation. One open palm is placed on either.side of the individual: s fllee. The fingertips are 

irept wdla\vay from the individual's eyes. The faeial bold is typically applied for a period of 

Only ·a few seeonds. · · 

The "attention 8J"'SP" .consistS of grasping the individual with both bands, one hand on 

each ride of the edUar oponing, in a oon110Ued and quiet motion. In the same motion as the 

I!I!>SP. the individual js draWn to~ the illlerroSJ!or. The interro8JI<>r uses a towel or other .collaring device around tho back of the detainee's Doclt to .preveni any whiplash from the sudden 

'?"?'tion. ·Like the facial bold; the attention ~ is typically aj,p~ed for a ~od of only a few. seconds. · 

· · ·. ·: .. · '!be "abdo~~ slap" inv~lv~ the iljlotrOgafor's ~the !bdom~· ofthe dctai~· ·with. iJ!e ,back ofllls open band. The IDimOgilor .must have no ~ or other Jewelry on his band 

· or Wrist. Tho interrogator ls.JX?sitioned, dircciiy in &ont oftbc deyainee. no more tl\an 18 i.nehes 

... iiom the'dctai.ileC. )irJibjlis fingers bcld tightly t~er...OO fully extended.&!"~ )Ni~ bis11,alm 

.towird his own body, usmglii§ elbow·as a &xed .pivoi point, the interrog81or slaps the detam~ in 

· the deuinee'f .abdomen: The illlerrogator niay nO\ u.e a fist, and tJie slap inu5t be delivered 

above tho navel and below the sternum. . 

. ·With the~~ (or facfaiJ slaP, • the inttrro8ator slaps the Wd.i'o(idual's f&OC witb fingers 

slightly sPJCBd. .rte-hanl! .wdce. contut' with the area ~Y ·betWeen the iip of. the individual's· 

• .," · ';. . ··Wand the bottom of the CX!ITeSponiling.e.flobe. .. The intC!'f!)~ thus ~invades" the 

·: · : • ·; .. · il\dividual's "per.onal SJ>apc.' We understand that the pl.ap<?SCOfthe fllcialslap is to induce· 

• .,' • · ' ·. SboC.k or ~ Neither.the.abdqmj.i)al.slaj1 .Or the facial slap ;is Used With·an inteo.sityar 

.·.: · fi:ccl!l~tbat ~d cau:'·~;paioorbar#liothedetai_oee. · • 

.-- .. - • . (!))(1) l00266 . • · . . (b)(3) NatS~ct ·: .• 10 

·, 
116 


628RIZZO11.eps

.-- (b)(1) 

(bX3) NaiSecAct 

Medical and psychological personnel are physically present ot Olherwise observing . 

whenever these techniques are applied; and either they or any olber member of the interros-tion 

team ~II intetVWe if the use of any of these tcduliques bas an unexpectedly painful or harmful 

psychological effect on the detainee. 

In the.analysisto follow, we con>id.er the lawfulness of these six techniques both 

individually and ln eo~bjnation. You have informed us. however. the one of the- toebniqu~ 

sleep depriV1ltion-flas proven 10 be the most indispensable101he effectiveness of the 

iDten-os-tion program, and its absence would, in all iikclihood, rcndoT the remaining tecbniques 

of little Value. The effectiveness of the program depends upon penu&\ting'the detainee, early in 

the aj>plieation of the Jochniques, that be is dependent on the interrogators and that be laclc$ 

control over his sitwltion. Sleep deprivation, you have explaineil, is aucial to reioforcing" that 

the d~nee ean improve his situation only by l""'persting and providing aec;urate infonnai.ion. 

·The four corrective tedlniqu~ ate employed for their shocJi elfect; because they arc so carefully 

limit~ these correctiveteebniques startle but cause no 'significant pain. When used alone, they 

quickly lose their viluc. If the detainee does not immedittcly cooperale in response to these 

techniques, the detainee will quiclcly learn their ~mits md. know that he ci.n ~ist them. The 

ClA informs ~ that.the eonective techniques are effective only when the delainee is first placed 

:ii> 1 baseMe st&te, in whieb he does not believe that be is in control of his surroundings. The 

. ooriditioning teehniquc of sleep deprivation, the ciA informs us, is the IClst intrusive means 

a~lableiO thiS end &rut therefore eriti'eal to the effectiveness of the intarogotion progrun. 

) D. 

· J.'hc War ~es Act proscribes nioe criminal offenses in an armed conllict covered by 

Commo11 ~cle 3 of the Geneva Conventions'~ &e 18 U.S C.§ 2Mt(e){3): To list.the 

_probibited-praakei·is to under;scOre their graVity: torture, eruellnd io1uiman treatment, 

p_erforming bi'ologieal experi~, mutder, mutilatioo or malmiDti, inteiltionally cousjng serious 

·.;. liodily injury, ~ Seor.j!al assault or abUse, ancf the. taking of bo~ . · 

· ·. · , ~e OC!ld not ;...dertak:e in tbe p~ memorandu}l:l to idterpr<:t a:l1 of the ~ffenses ~ . . ·fnrtb in the War qrim.cs MI. The CIA's proposed .teehni<[lic$ do nOt C9en argua,bly imj>lieate six 

.. <if these off~niling bioloiiiea! Oxperim~ ~er,mutilation or m&imiog. rape. 

. • 'Sciual ~autt.or ~e, and lhe.iaki.rig ofho~es. ~ 18.U..S.C, §§ 2MI(d)(t)(C), (D~. {B); 

·•. . . ·(G), (H), aQd·(I). Th?se.si>i oll;enst,' borrow &om existing~ i:riJD!na1' ~w; they have well· : 

~_e.fulc;d meanjngs, and ~will not explore them in d<P,tb hece11 : • ··" • . 

~ ... 

• ••ii.. ~~~for~~~for~~imtDaiDIYiii'!"~~.;;., ......... 

.. . . • CCllll::Ur wilhP3rtll"s~ci1hcpcn!l<¢.~appllcal?lcto.lhetaevallt~~Crimes A<t . • 

. :: .;·.>.~ :- . ·' . . . ·.. •, . . . ·:. .. . . ·. .. : .. • •• • . . . . "~O>ew.r0lmc.Aa<ll::6n<$ 0C(....,.uoc~cr1hcG:peVi~illi.;..~t.twthal 

-:.rl. . ... 

· .. ~ . ·. 

.•. tui~ lhe iD)qpiaatiOn oCihc~·~ !"""' ~llasprovidcd llla:'JIO ~·(~ ...,.. , • ol'Jaw $ball !"i\>fy a ~for 1 tuJi oC~on iD lbOO>WUo!1hc U~lcl! \" ~lhc" i>oobi>Woos · 

~I .. '{1,)(1)' · .. I.:O'Q26.7; 

(bl,(3) l'latSecAct 
117 


628RIZZO12.eps

TOP SFOPPJ._ ______ ~ (b)(l) 

(b ){3) NatSecAct 

Some features of the three remaining offenses---tOC1urc, cruel and inhuman treatment.. and 

intentionally causing serious bodily injury-may be implicated by the proposed teebniques and 

sa it is oecessary fur us to·examiae them. Even with respect to these offenses. however. we conclude that only one tQCI)njqub-eX!ended sleep deprivation-requires significant discussion, 

although ':'e briefly address the bther five_ techniques as appropriate. '

1 

. First, tbe War·crlmes A<:J. prohibits tOf(Ure, in a manner. W!ually identical to~ 

previously existing federal prohibition on torture in 18 U.S. C.§§ 2H0..2340A. See 18 U.S.C. 

· §"244t(dXIXA). This Ollice previously concluded thai each of )be Ql~Uy proposed six 

techniqu~. including extended sleep deprivatiol>-$Ubjocl to tlie stri<;J. conditions, safeguards, 

,and. monitoring applied by tho CIA-does not violate' the federal torture st.Uutc. "See 

.. Memorandum for John A Rizio, Senior Deputy Geoerat CofU1$el, Central Intelligence Agency, • · from Steven G." Bradbury, Principal Deputy Assistant Attorney General, Office ofLegil 

Counsel, App/it:4tlon of 18 U.S.C §§ 2J40·2J4{)A to Certain Techniques 1ha! May Be Used in 

lh<lntOTTogatl0n of a High. Value aJ Qa&Ja 0.141ne• \'Section 234{) Opinion") (May 10, 200S). 

·'N w~ explain below •. our prior interpretation of the torture statute fCSOI~ not only the ptopet 

interpretation of the torture prohibition in the Wat Crimes A~ but also stveral of the i~es 

presented by the two other Wat Crimes Act offenses at issue. · . , . 

.) 

,. 

Second, Congress created a new offense of"aueJ and inhuman treaunent" in the War 

·Crimes Act (~"CIT offense"). This offense is directed at proscribing the "auel treatn>ent" and 

. 'inhum011e treatmCO: prohibited by Commo.n_ Art!cf• 3 ~fthe Genom. Co?"cnriollS; ~· GPW Art. 3 r.ll. l{a),· In:addrt>on to the "severe p&ys>cal.or meoW. pam or suffering" prohibtted by the 

torture stalUte; th~ CIT offense reaches the new category of"serious physical or meoW paio or 

. suffering." The offense's sepatatedefinitiooi ofmeotal·and physical pain or sull"ering extend to 

a wider scope of conduct than the torture statute and.ralse<tM> .previously UJlTt!'Oived ctuCstiqns 

. . wh<p 8J!plied to the CIA's proposed techniques. 1bC first issue is whether, under the definition 

.o("otriousplryslc:at pain or suffering." the ~Jeep deprivai.ion.teclullq(Je io\entionally inlli<:J.s a 

:bodily injUry that involves .••. a significant irnpaitm.co,t·ofthe fun~ on of a bodily:member .. : 

. . or.meotal faculty,".IS_U.S.C. § 244l(dX2X0), due. to the mental and pbysical con<litiOJ!S that can 

-. .'be exP!:<:ted io accompany the CIA's proposed tecbnique: the second question is" whether, under 

. ; ·· . ·.the.definitioO:o'f".scrioils mtl1fal paiD or suffering." the likely meoW effects of the sfeep ·. 

·.: :: •. ."·.",&!'Privation tee¥ que constitute "seri&us &lld non:tmnSitpry" menW. harm. ft Under the 

. ·. • . · ·. .P~ures and ~~ds p~oposed to~ 'IP.J>P.ed. W. answer bo\b qu;--tJons.in tho.~ 

::; .. 

~ 

~-~ b«aci>es oCCommoo.Anidel in the war~N>.. MCA § 600(;1). tn lho .... ..,;, or An!de 3,·-.e., wodo lind tJtat Coagcssbassit £onh ddit)ltioail~lho WwrCri!o« '•A<t thal~l)lllyc:i>osUt<atwilhllie~qfthc--rdledecl inSIICii--s.. • litfra-at SI·SZ, 61'64. · • · • • · :'l:f· . • •• . . • • • • ·: • • . :· . • 

' ' · .:· · •• ., F:o< examj>lt, boc:a1*thc cciqe(:ti'ye toclutlquisilMilve sciDe pby1;ca1 amtacl with lite c1cWJtoc, dtc ' • .• ··: • ,. dtcntto-wtlidllbo!c ~catoiboWI! OimcsA<:talaiusomeOOtiSidC:miciol. Ar"!!eoq>limatvlrioos · ·. : •. : ~lteloW;~.-theinlldilessot~Jt>Ciinjq\tes.ndllie~lllidir~oqti'Ca•n11cave tb!m. 

• •.·• . o\tlside!lte-QCtltc.WarOimcsN;t. • • · · •• ...)'. . . ' . .· . 

. { .. . ... _· . nr' 81!i.:tlrr ~-~----...J ,.. .. 12 (b)(1) . 

(~)(~) NatSecAct 
118 


628RIZZO13.eps

(b)(f) 

(b)(3) NatSecAct 

_.) .. 

11Urd, the. War Crimes 

ewr liiliPiil

Act prohibits 

l_ 

intcntion&lly 

~ 

causing "serious bodily injury" (the 

~sBI offense"). The SBI offense rilies OnlY. one additional question with regard to the sleep 

deprivation techniqub-whether the mental and physical conditions that may arise during that 

technique, even if not "significant i.mpainncnt(s]" under the CIT offense, are "protracted 

impairments" under the SBI offense. CompoTe 18 U:S.C. § 244l(d)(2)(iv), with ld · 

§ t365(h)(3)(D). Consistcn~ with our prior analysis of the similar requiremc;nt of"prolonged 

mental barm" in the tonure statute, we .conclude that these conditions would not tri88cr the 

. · applicability of the SBI offense." 

• " Ia tbo ddlote OYa' <he Milillly C<l.:.m...oos ACI, MeaW> of C<lnp<SS expre<sed wieldy dilT<riJl& • views as to bow the terms oftbe War Oimcs Act woold apply to illl<m>ption ...,.,;ques. lrt ~pt of these 

divttgeul views, we do DOt rqord the1egjslaliY<bis<Ol)'~fthe War Qilnes Act omeoclmento as potticulvty 

iUominating. al"""'gllwe 00.. tf..t sevenloftllooe ,_ closdy iawiYCd in~ the Act swod th&t tbe tcrms 

did oo< add<ess'aoy puticWar teeboiques. ,.. Rep. Duncon Hnntcr, tbo Chalnn3n nf<he lloosi Anlled ScMoco 

O,nun;uoe aod the Act's Jeacrmg spo""" in tb<HOUS<, explain<¢ 

!.« mobC o:Jw: The bill.km... tbe specific coocloct OW.is prolul>!al uoder C<liiUDOII t.rticJe J, 

bot it doe$ aot ~co lde:Dtif)' itlkcTogatioo practices to the enemy or to tab.ltl)' particular 

~of~cmnlftbetable. .Rather. tblslcpQoopropertyleaY<Stheclcd.;ousutothe 

melheds o( intcnoptioa ID the Presideutand to the~ pn>fessionals lll the CIA, 00 that 

they may carry CorWud 1his vital ptogrun tha~ as tbei'Rsideol expblocd, .,...to ptbcr the 

aOtical.imtlli"""'"""""""' to pro1«t tbe"""""' frouunocha causiropb;c.....,;,-. 

ts2 Coni Jloo. 87938 (Sept. 29, wo6). Senator McCain, .mo Jed sewu .. ~.,.... !he Act's t.cx1. similarly 

'Statcd'th&l "'tIs -·ID suucst1hat ani legisbtioncoold provide an cxpiJdt and .U.aidliS!ve lis< oC wluot 

. ~ 

~ 

:ic:tlvitios are i1kPJ and whicb are petn>iUed. • aJihoo&b 110 did swelhat the A4 "will crimiJWlto ...W. techniquCr. Jiko,..t~andotber tec:luiiq.co lhlll cause serious pomocsu1rcringdlat need not 

-!>e proto .. " IlL ~SJO •• i3 (SepllS, 2006~ Ocher )ljembets. who bolh supported and~ the ACl, auO<d 1hatthe -itself esoabJisbcd &<uera~Siaadanls, ralherlhanpr•saibiJ>&spcQJict<dlniquc<, &., c.g,.ld. 11 

~10,•16 .<.........,. oCSca Leahy) (the bill "S3ddlco tbe Wu Crimcc Act with a ddlJi!tioe oC crud and~ 

·· =c~r.'~~=ID:sf~"'Zc:.:;..=;~~~ .Act so tb1t <rimlllalli>bilitydoeicoot....U from teeboiques ihat lhc.Ualted Sla)cs ti>ay bivt cmploy<>d, <uc;b as si.olulatOcl drVWIIiD& CJCjJosure to hypoll\ermia. - ... looP sleep clqrivalioo"); td. at SIC))8l~ (Sept. 28, 2006) 

· ·. ·c-ors.... amtoa) <~th&l the-'lcuiti "'u.e tixt • ._.....,._ ..ooemp~ar tcclmiQue. ptdt as~ looi-dmo ~ iodlJ!potbemtia oo ~ csnnotbecllqed fllr ?c:dmcc"). 

• • • • At ti.. saoxi-. ocher Mcmbea. iridOdir>& Seaator w.-. the OlalDtsio oCthe-Mbcd Serviqco 

Comirilttcewho alJo'!UdoodYIDYolvcd'!i>~OYerthebiU'fteXI,SII8&"'tcd1hatll»biU DJiDlt · cdrrtlnalizecOrlain~onteci>oiqUes.inchldir>cvariatiousoC...W.o,I'~ JX'll)osorlbytheOA(ollhoollb 

-M~ctill~dilo>osfl>edc:tailcd~ wilhintheoAp<08!ll!ll~ S... c.&-.ld. atSIO,'m(_....., 

• 

• 

· 

oCSca 

t<duiiques. 

w ....... 

scrcss l (""""C!>atthecoaduCI positicbr. iod~ pn>Joaged 

lrtthe-!<eneecly 

Sllrlding 

~ 

••• sleep clqlrivatiob. 

wbid> ....,JdbaY<prohibhcd 

and '!""' simJ!ar aas, 

~ 

• is "ill!'fY 

, Cpiaion .. , '*"':11 prohibi!alt;y the bi,!L "]. ~tw JU"id. at.SIO,J90 ~ otSCii. Wamcr)(OIIi>oolrt&the · · 

.· ... ,. .•. Kennedy~~the.....,iddllt"Cooi!J=sbolafcloottiytoprovidCJO'SpcC!!Iclist'cf~ . 

·: : ' ' .. ; "l1!'}ec!Qn'tlaiowtobal~~b9141. S..o1Jold.IISIO,l84 ($IJlOrlir:moCSctLL<:viD)(aou:iitg.with~ 

. • ·: ,' .•Wamtrastothe~ ~);ld. at SIO,:J3S.36(Sept. 27,2006);/d. itSlO,~S-36 (stalaiiODtQfSca 

·.. .: ' 1llirbjlt) 

~ 

C'fi1be.biU WO!lid lllllkr<•ta c:rimc to.uoeoWsi¥0 ~on ~lib~- ... pairt!bl, It!=~ and proiQJI&Od sleepdcprMtiop"J: td. atH7SS~ {1?qlO. 27, 2006)(-of 

•••·• :· .;·R.q>. Sbayi) (IIWill&lhat."IDJ' n:os<>rlJble' pchQn Would coD<lude" tblt."th<so<allcd ~ or!Wdt ~ · 

;.)

. . ~ ~-iiopl-..t !;>'tbei>Os<bithe CIA" "would Slill,becrimlnal M"ct~Sis UDder the WuCdrDcs M. . bec:aoso ~c:tearJy~ ·,..;...s mi:n~ and~ sutrtrins"J. ·. . · · . . · • 

.. . . • 

: (b)(1)· ·. 

(b)(3) NaiSeeAct 

·. ~ 

-----.J 

•'. 4 

.·)) 
119 


628RIZZO4.eps

.-

·· .. ) 

(. 

· .. ·· 

1'8f 1!1!8litlir[ '---

(b)(1) 

(b)(3) NatSecAct 

off~ piolu1>its the six tedlniques as proposed to be employed by the C~ In Part m, we 

oon.sider1he DTA and conclude that the six techniques as propo$ed to be employed would satisfy 

its requir<ments. The War Crimes Act and theDTA covet a sulistantial measureoftheoonduct 

prohibited by Common Article 3; with the assistance of our conclusions in Parts n &nd m. .Part rv explains that the proper interpretation of Common Article 3 doe$ not prohibit the United 

States from employing the c;:IA• s 'propose<! interrogation techniques. 

To make that determination eo;.,lusivc under United Stales law, the l'ii:$ident may cxUcisc ru, eutbority under .the Constitution and the tvfi1itary Co~mi.ssions Act to issue a.n 

executive order 'adopting this interpretation of Common Artis:!• 3. We understand that the 

PreSident intends to exercise this authority. We have i'cviewed his proposed ex~tive order: 

The executive order i$ ,wholly consistent with the interpretation of Common Article 3 provided 

herein, and the six proposed iotenogation techniques comply with eaeh of the executive order's i.mj.s, ' 

(b)(1) 

L (b)(3) NatsecAct 

. The ClA'uuthority to operate its propoSed detention-and intOSTogation pro~ i$ • 

--··~-,·~·.-~ l 

j Altliough'the ClA'sd<!ennon progtam waslen)poruily 

emptied. iii early September 2006, that Memoftmdum of Noajicatfon has '!lOt been suspeniled b)' 

·the Pretident and continueS to.autll9riie the c'rA 1o opera!e a detention progntm in aeonrd&nee wit!> the tenns ofthe m.,morandum. . . . ' . . . . 

,•. . "':bC'ClAJiow proposeS !0 operate a JU:oited-d~eniion il1d iiltmo~ou· P.t'Q~ pursUant .10 lh~ aut.bOrity gpiJ!ed by the Pretidt!U in theMem01'01Jd¥m 9f NorijiCtJtion. TbC CIA docs not 

, . .in!enll fOr this program to-involve Jong-tetm detention, Of to Serve .. puiJlOSC similar to thai ofihe 

. ... . ' IJ.S. Naval. Base 8t Guan~o Bay, CUba, which' isln 'part to:detilin danil~oia ~y · 

• ., : ·' ·. OOOlbatlnts. wbo, continue to pose a threat to .the United SUtes, until the end of the armed 

·. C<?Oflict withal Qae<la oru.oti~olhersarisfactory aifangem~ cO.n be made. To th.eCOD!I'<Y. ·.CIA curreotly intends for p~ns ~ced iriio ibe program to be decained only .so long as'l$ 

necessary to ob,taia 'the viW inte!Jigeaiec they may. possess. 9n~ thit Clld is accompli.sbed; the 

• · . . CIA intcpds to trwfet 'tbe d~ to tbe custodY of other~ties,' including io some cases the,' 

• · · •• .' United:$1iteinepaitmcntof:Qe~~ · •. • · ,-' , . :'., .. : · . 

. ·. ·.·: 

. ·: ~ 

. . ·: 'nn.~~)>=,rou~- ~lh~ .. ~~~~~~~~ib.l'f<sida11's . ~. 2006 .-lgoduliali 'lltiicblle~ lhat tile JX'08>'1UI waiemjlly'lllhattillle. 1)< aA- 0 • : · · .,. • • • • • • ;· •• • • • • 

,:-; · rfiiJ!iliillilMI ~ 

~b}(1) 

(b)(3) Natse<:Act .. · 

.. ~·.: .. 

_,j. 

. , .. 

> 

~30 260 : 
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T8P lllillfiiTL -----~ (b)(1) (b)(3) NatSecAct 

The group of persons tp wbom the CIA may apply interrogation techniques is ·also 

limited. Under the tenns of the M•mortmdum of Notificotion, only those wh6m the CIA bas a 

reasonable basis to believe "pose a continuing. serious threat ofviolenj .r. ~ to U.S. pcrso!l$ 

and interests or who arc planning terrorist activities" may be detained.· Even ano (b )(3) NatSecAct 

detamees who meet that standard, however, the C]A does not propc>se to usc enhanced 

interrogation !CQhniques unless the CIA bas made three additional detcnninatioos. First, the CIA 

must cOnclude !hat the detainee 'is a member or agent of al Qaeda or its affiliates an4 is tilcely to 

possess critical intelligence of high '?-Iucio the United States in the Global War on Terror, as further det:cribed below: ·SecOnd, the Din:x:tOf" of the CIA must determine tha.t enbo.nocd 

interrogation methOds arc needed to obtain this crucial information because the detainee is 

, withholding or Owupulati.OS· intelligence or the threat of imminent ~tlaclc~eaves iosuffictent time 

. for lhe use of standard questioning. Third, the cohanced tee!tniques may be used with. 

·particular detainee only i( in the professional judgmenrofqualified medical persoimel, there are 

no significant medical or psychological eonuaindications for their use with that detainee. 

J. 

The prop is limited to persons whom 1.\>C Director of the CIA detcnnines to be a 

member of or a part of or supjJOrting al Qaeda. the Taliban. or associated terrorist otganizations 

and likely to po'$seSS infonnauon that could pre.vent tcrrori~ attacks agaiDst the United SU!es or 

its .interests or that could help locate the senior leadership of al Qaeda wbo are oon<luctiog its · 

campaign rlf terror a8ainst the United States. • Over tho history of iu detention and interrogation 

· prograrri. from Man;b 2002 until today, the CIA has bad custody ofi:toljli of98 deuinee$ in the 

pro~ Ofthcise 98 d~ces. tbc CIA bas only use<~ CilllaMecl tcclmiques with a ,total of30 . 

The CIA,has told us that it believes many,'ifnot al~ 'Of those 30 d~luld receivod tnining 

in tho resisttnce of interrogation methods and that al Qaeda attiv~y seeks 'informatioo regarding 

. U.S. irncrro~on ~s in.orderto cnbailce.that trainjpg. • 

2, . 

· :;~· ~ .. . The~ has informed us that, ev~ will) r~ ro d~es wbo~~ be!ievec\ to possess 

1

• ' ' fiigJi VaJUC information. enhanced techniques WQU)d nQ( be U$«1 uruCSS>nonnal debriefing . 

• :. •, : :.' . mCtJiod, have ~ ineffective Of unless the immineou of apotmljal allaclc is ~eVed DOltO 

·' ' • , .'· ; • oJ.Iow sullioiCJil time for the use of Oilier metbods. Even under tholatte< tircu~ the 

' •. •·· detainee,will beatforded the opportunity'to .:n.w.e;. qilestions before thcuseofOAy·..i(w,oed 

. · , • technique$.. IJ>" either~. the on«<i>e. iilicrrogation team mutt d!'tenniile·that'the d~nee u -' : • ~. witllhold,irig Qr IIWiipU!atiDg infoflllAtioD. The interrogation team thdr.deWops a wrillaf 

. . .: .. : .' • int~on ~IIlii.. ""'>: intcrro~on plan that would i~vol~e the""': of ~tecbni'l\'ts. 

.. 

• 

:

.

1': ' •• ... . 

CUSIOdyof.'alxl~.:ii.diaJiflgiinDcocml>cr2!l06

~d....s--dldoot<mplofaoyc:nl)anoodintenopionudiJilquosduriogbi$~ . OAoll!ew_;~~ .... ~ OnApdl26, .: ·: • • .· :wo7,thc!lJ.plioo.dai-BadiiDihdtwtody.orthcDCpol1meill,arDdmlO. '. • • 

"> ·: . . . lbc~ii.rotulsustllottt .,c,.;.~;,rilif..:m-,~~llicaooocir~bin • . . , • J.Od<DorA)'ml!lii·Za....uiriaswarnfolill&~o(~t~il'othcroo~.,..~ 

.. J ' . . . ' . . ·.. . 

··1·· : · .~ rerssGPO:r -· . . . '--,-,~ ~ .. ; ·. :.I · · s (b)(3) NaJl?ecAct ·.. •. 

( 
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must he pet5onally revieWed and approved by the Director of the Central Intelligence Agency. 

Eaeh approval would !Jst for no more !han JO days. 

J. 

. The tbird significUt precondition for use of any of the enlw>ced techniques is a careful 

evaluation oftbe detainee by, medical and psy~logj~ professionals from the C¥\ 's Office of 

Medical Services ("OMS"). The purpose.ofthese evaluations is to ensure the detainee's safety at 

JIIIJ times and to pt'oted. hipl &om physicaJ or mental harm.· OMS personnel are not involved In 

the work of the interrogation itself and are pi'OSetll solely to ensure the bcaltb al)d the safety of 

·the detainee, The intake evaluation includes "a thorough iJ;IitiaJ medical' assessment ... with a 

complete, dOc:umented history and a physical [examination]addressing in depth illy chronic or 

.previous medical problems." OMS Gui<klines on Medical and Psychological SII[Jj)()rllo 

Dotafnu Rendition, lnturogation and DetentitPUt 9 (Dee. 2004) f:'OMS Gui/Ulines''). In 

ad4ition, OMS persOnnel monitor the detainee ~ coodition throughout the application of 

enlw>eed techniques, and the intcrro8Jiion team would Stop the use of particular teebniquesor 

halt the interrogation altogeiber if the detainee's medical or.psyebological cond)!ion were tO· 

indicate that· the detainee miglit suffer significant pbysical or mental harm. Su &aion 2140 

· Opinion at -6. Evdy CIA officer present ai an interrogation, including OMS personnel, bas the 

· authority and respOnsibility to stop a technique if sueb harm is observed. 

- . B. 

The propos«! iutcrrogalion techniques are only one part of an iut~ detention and 

iuterrog,rion progiam .op"l"!ed by the 9A- The .foUndation of the prograrii is the CIA's 

kngwledge of the beliefs aDd psyebologjcaltnits ofal Qaeda ·member>. Specifically, members 

.. of aJ· Qaeda expect that 'they wiU \>e subject 19 po more. tban vetbal questioning in the hands of 

· tM United S~es. and thuiare trained patiently to wait o1lt U.S. interrogatOrs, confident th,lt they 

· . : ~ withsto,nd U.S. irlterrogation techniques. f'.t ihe ~time, al <;!aeda opmitives be6eve that · 

they are morally pennilted.IO reveal informaiioo ooee ~Y have reacb!:d a eettain limit of • 

d,iseomfort. The prograin is designed to dislodge the deui.I!Oce'fexpectations 8bout how be will 

bC ~ .in·U:S. ~ • .\0 create Hilllatioli in 'Wblch .fl~ feil• )hat he J,s ooiin. contra~ and 10 

'e$1&blisb a reatiopship C?~ <fependcllce.on lhe part oflh!> detaillee. · ,-\ccordin81y. tbO proSJ&DI's 

'inleoded <;!feet is J>Syebological; iriJ not intend<:<' to~ iof~on througti the unposition 

.of physical pain. . · . : · · · . · . . ·: 

• In iliis re;;,. the GIA g.;erally does oi>t ask questions durlng · admmi~tion of the 

.techniques to wblob the CIA does not already know the answers. To1he extent the CIA 

questions detaiti~ during the administration.Oftlie tec;bniques, the CIA asks fj)r already lmo.wn. 

/( ., ·:· information to 8111!8e Whether ihe detainee bA.neaebed the point l!.Wbich he belie9es that he;., 

no loQger required to resist the diselosure of e.Ocinte' infoiom.ation. When CIA personnel, in their' .. · profes&o.naljlidgment, belim.tbe·detainee.bas le.ooed that J>?int,·lhe.CJA:wQuld diicontimw 

.· 

_.. u~ ~£the tecluij<tues and debrief'lhedtt&inee resail!in81Xlalteis.o":whicl!.tne trA is not · 

• .. . .. : 4efi.nitivo;Jy infOrmed. 'rbiiapproaeb hisbJigbts the inicrided psyC:h<ilogjcal cffeciJ oftbe .• 

.. 1: .• .. ~qU~ aiJ.d #'~ ili.!f oftl)e aetaioe'e ~~ p~v! ~ false .iof~au.o'! wl!ly au meins. . . . • 

·. to dJSCOnttnue lheu' applic:ation: . . .... . . . . . . . •. . 

.·· 

... ··)··,· .· . . ·. ~ 

·.- ·: ').'' .... " 6 

· .. , 

(b)(1 ) .' 

(b)(3) N~tS<!cACt 
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(b)(1) 

(b)(3) NatSecAcl 

The CIA ha.s designed~ techniques to be safe. lmporUDtly, lhe CIA did DOl creote the 

proposed interrogalion techniques from whole cloth. Insteod, the CIA adapted eoch .of the 

techniques from those used i!) the United States military's Survival, Evasion, Resistance, and 

'Eseope ("SEREj training. The SERE program is designed to familiarize U.S. troops with 

interrogati~n techniques they might experience in enemy custody and to train these troops to 

·resist such techpiques. The SERE propm provided empirical evidence thi1 tl!e techniques as 

used in'the SERE program were safe. Asa result ofsubjCcting hundreds· of thoUsands of military 

personnel to variations· of the six te<;hnlques at issuq here over decades, the military-bas a long 

.'!Xpeoience ~th tho m<.dieo.l :and psyehl!logjeal effeeti ofsuch tecluUques. The CIA reviewed 

the military's extensive reports concerning SERE training.-.Recognizing that a detainoe in CIA 

custody will be ina very different siruation froni U.S. military personntl who experienced SERE 

trainln& the CIA nonetheless fOund_ it imporunt tht.t no significant ""lasting medical or 

psychological harm had resulted from the use of these toebniques on U.S. military personntl over many year.; in ~ ttiining. . 

All of the techniqiles we di$cussbelow would be applied only by CIA pe.:s.oonel who are 

bigbly trained in carrying out the techniques witbin the limits set by the CIA: and d~cribed in 

this memorandum.' This training is crucial-the propOSed techniques are DOl for wide • 

applic;ation, orfor use by young and untrained persoMel who might be 1!10"' likely to misuse or 

abuse them. The average ag~ of a CIA in erro~tor authorized to apply these toebniques is 43, 

and many possess ad~ced di:_gree$ in psychology. Every interrogator who would apply these 

ettht.nced techniques is trained and certified in a course that lasts approximately four weeks, 

wruch ipcludis mand_atory lmowledge of the 4etailed interrogatioo guideliMs that ifte CIA bas 

dC'!eloped for this progrtlll_1. This.courseent.Ws for each interrogator. more than 250 hours Qf 

·tfaioi.og in the tecluJiques ~their limits. An interiogator works under the direct super;).$iod of 

e;xperienced personntl befOre be is permitted priDc:ipally to dircot ali interrogation. Each 

. interrogator baJ lieen psyebelogically'!a'Oelled to minimize the'·n.k that llliint~guor might 

misuse any t.echnique. . We understand from you'tht.t these procedurea ensure thai all · 

intt;rTogators understand tho desigo<Uld ,purpose of the !nttnogalioo techDiqu~ and that lhey · 

.wili·IIPPIY the tecluJiques in accordaoce with their authorized aod intended use. · .. ~ . . 

. . . . ;rk ·CIA. proposes. to U$C twO categoiies_ of Onbanced interi:o,&ittio~ teebiliquc;s: 

•· _oonditiooing tccbniques· and ~rreetive ~Qu~- ~ <;IA has 'determi.o!>d thai \he six · 

iechniqu~~ desa:ibe below 8IC. the~"'~ to maintain an ef(~ p~ (or 

9btaitJ!n& the type of erititl!l intcll ~eoce'from a hi!!)>' value detainee that the~ is ~esi$-Ded : 

lOeliCit. .. • · ·• · • · · · · · • ' .-
123 


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(b)(3) NatSecAct 

~ Condilitming tedtniqw:s 

You baveinfonned us that the proposed conditioning tecbniques are integral to the 

progtam's foundatiooal objeetiv&-to convince the deiAinee that be does not baYe control over 

his basic human noeds and to bring the deiAinee to the point wbere be'flllds it pennissible, 

consistent with his. beliefs ind values, to disclose the information he is protecting. You have also 

told us that this approach is grounded in the ClA's·lcnowledge ofal Qaoda treining. which 

authoriz.es the disclosure of information at such a point. The specific conditioning techniques at 

~ssue here are dit:tAry manipa.1181ion ~nd t>.xten4ed ~ depriv3tion. 

Di•tary manipulation would involve substituting a bland, commercial liquid meal for a 

detaioee's nonnal diet. As a guioeline, the CIA would use a formula for C3lorie intake that 

depends on a detiinee's body weight and expected level of actiVity. This fonnula would ensure 

that calorie intake will always be at least 1,000 kcallday, and that it usually would be 

significantly high<;<.' By comparison, oommerc:W weight-loss programs·used within the United 

States c:O~oly limit intake oo 1,000 kcallday,regardless ofbodyweighL CIA medical officers 

ensure that the detainee is provided and accepts adequate'.fluid and nulrition,'and frequent 

monitoring by medical personnel talces place while any detainee is undergoing dietary 

manipulation. Detainees would be n;>onitored at aU times to ensure that they dO not lose more 

than ten percent of their starting'bod9 weight, and if such weight loss were to occw; opptication 

of !hi tecbeique would be discontirwed. The tiA also would ensure that detainees, at a 

minimu.111, drink 3S mllkg/day ofOuids, but a_ detainee und<;rgoing dietary manipulotion may 

.drink as much water a.S be reasona.bly pi~ · · · 

Extended sl«p dqjrivadon would involve keeping the' dc:talnee awake continuously for 

up 'to 96 bows. Although the application of this techniqile may be reiilitiatod after the detainee is 

allowed an oppottunity for at leost eight unintttrupted bows of sleep, CIA gUidelines provide 

that J. detainee would oot be subj"!XOd to more !han 18,0 hOurs oftot&l sleep dep[ivotion ~g 

one 3().day period ~ llnenogatOrs would emplo~ Cldendtd sleep deprivation primanly to ~en 

.• ~eiain<;e's IO int<;rrogotion. .'The CIA koows li'ofll statements mo~c by al Qaoda · 

. inembers'w)lo haVe been interrogated that'll Qooda-operativ~ are taugbl. in~ that it is· · 

: consi~ent With their beliets and va\Qos to ooopente with interroga!o~ and to disclose . 

• informafion olice they have met the limit$ of their abl1ity. tl> resiSt. S!eep deprivation is .effective 

.' •• U. safely i?ducing fatigue .. one means to bring such operatives ~ that point, 

~The CIA~ toDows ISa~aeolorie ~ oi9oo kCOVd'Y + 10 kc.uq,do7. This 

· • QUIDiitl' is llll!,llipllocl br Ll Cor a &cdelllazy adivi!y left! or l. 4 for acoodmle ldiviiY ICYd. Regordlel:s <;l tllis ' r.· roimul,.t.c~millimwlicalorieiulab:is )500lcx:alldo7,andinuoCYe~>t\S~-~co · . · reoci~>e less tb:m 1<!00.lcx:al/~. 'Ibc soideW>oa.loric illtalce. for a~ wbo ~ 150 poonds (lppiOldmordy 68 ~) 'MlOld,lllcn:i<m be ll<Oilj 1,900 ~rorsed""*J' aclMty "!id.wculd bemorellwa2,200 

.. iQlldly tor-aetmty.. · • · ' · 

· · .... : · 'IDihls~~~~ihetawfuJ••••;d-~pedod4fCCllllin~·~dcprivlliop~!>•; ~ tb:m 96,houii. Sbould tho CIA<Ieiamloo lhlllt...wd be~ (or tbO~ofthooi.ID-!" 

• CXIeqSfoo of Chat pedo'd wittl rapect to a p3njrulardcai-, Ibis Offine wi.>Jd~ lddilioiW guidao<e.on !be .• 

' apj>lica~ ~tbeappl,icoble lcQI' ~~ lbo fac:uoftbarparticolu-_ ' · · . • · . 

• .. 

.· . . , · TliiPii&S1!liiJ' L_~ 

··«·: ' . 

. • . . ·. . . (b)(1f' ' . ··. . . 

• • •· & (b)(3).Nat$e<Act l.00264· . · 
124 


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I 

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The CIA uses physical restraints to prevent the de<ai~ froro falling asleep. The 

· detainee is shackled in a standing position with his hands in front of his body, which pr..,.,nts 

him ~m falling asleep but allows him to .OOve around within a two- to lbr..,.foot diameter area. The detainee's hands are generally positioned below his chin and above his bean! Standing for 

such an extended period of time can cause the physical dfeas that we describe below. We are 

told, and we understand that medical stUdies conlinn, that clinically signifieant edema (an 

excessive swelling of !be I!'3S and feCI du~ to1he building up of excesS fluid) .may OCCUT afler an 

extended period of standing. Due to the swell in& this condition is. easily diagnosed, and medical 

personnel wouJd ~op the forced staodias wbeo clinically ~ig:nifiunt $)>mptoms of edema wete 

r=gniz.ed. In additi<?n. standing for extended periods of time produces muscle stress. Though 

this condition can be uncomfortable, CIA medical personnel report that the muSeie stress 

8S$0Ciated with the mended sleep d'eprivation teehhlque is not harmful to the dtlainee and that 

_detainees in the past have DOl reported pain. 

The detainee would not be allowed to hang by his wrists from ·the chains during the 

'admioi:stralion of !be technique. If the 4etainee Were no longer able to stand, the standing 

,compo!'""' ~f the technique would be immediately discontinued. The detainee woul~ be 

·monitored t1J all times thnoilgb closed circuit television. Also, medical personnel will conduct 

. frequent physical wd psychological examinallons of the detainee dutinS application of tbe 

. tccbnique. • : · · 

We underSiand -.bat detainees undergoing extended sleep deprivation miSht expericm:e 

"unpleasant physical sensations fi:,om prolonged fatigue, inc(uding • slight drop in ~y 

tCmJ1ef81U'C, difficulty with COOI'dinated body mo-.ement and wilb sr>eOeh. nausea, and blurred 

visiou. • 'Sudon 23f0 Opfnio_n.l131; see also ld. 11 37-38; Jl'lh;y W• Sleep: 'nre FW'!Ciilms <Q 

Sleep In Homons ani/ Other MammiJ!s 23-2.11·(l998). &tended sleep deprivation may cause 

. diminished oognitive jimctiooillg and, in a few isoiBted case&, has cau~ tbl: detainee 10, 

·• ·. · ; eoq>Orieoee haUucinaiio~. M;edical persoilne~ and indeed aU interri>gation.team memb.., are 

• instructed to stop the use of this technique if the detainee is obS<tVed tolUffer from significant 

·impairinent of his m'!'Jia) functions, including hallucinations. We unclc;tstand thaJ subje<:ts 

-::. : -clq>iived of sleep in Sj'ientific studies for signiticantly longerthan.tiJe C!A:S 96-bour Umit·011 

. ,· · ., · . ·. ~DiiDUous sleep deprivation geoorally rctunl to normal neurological functioning'with ooe ni8ht · .. ··. ' , . oho~ sleep, See&ction 2~/0 Opinion aUO. . . . . ' 

,. ';.· • .. : . Because rel~insad~ee fi:omJhesbacklestouti,lizctorietraollitics~d present a 

. ' sisl>ificatjt ieauity risk and would into;ofeie ~ the ~~ess oft!>• technique, a detaioee 

·. : '·' . :-~--Thc-OA--._,..--Ihis-. ..,--ing~asstm_1iocthecloatoalhc96-boua-,ia'.;ulwlbcPI..-cllkq> 

·:. . <!q>rivltioG teclliligac. SimJ!arly, wi~ rq;anlto lhc CIYCI>I! sloc:p dcprivatioD limit of 180 ~!be 0A dol:s,oot ; ·:.> . .. tpply tbe sbactliligproccilwa for,_,- a 10111 of 180 boon in -30-<llfpcrio4. · . · 

. ·:.. . . :· •tt~~~~ •• ~;,._"""~d..rlbe_.:.. .• . •• :;. .. ~doesooqic;mithimtoS!aodfonliCx!eodedpCriod..orih~ci<YdopO:J>bl'Sical~liom 

· : •. :. e:>aa>dediW>dio&.~ascilJiicalljo~cdc:a>aormusclc"'- tltco.~IIIIJ useah~· 

·. • •· · .. · · · indhod~sloel' dcjnivatirll. 'Underiha mt11toc1, lhc.d<llilioe ~d bC sboddciltC~.a smalh;IO!>~~ far · 

', ' ~hisweij:bl.botof'imillljcicnt~bimtolccq> bii1l!!IJDoe~!"'!-

,''· . ·· ..•. ·. ·.· . . '· . . . -., . '· .. ·

... · .· (b)(1) 

'-.....---_J~ 

(b~(~) Neu:;ecAc~ .... . . ~· ... 9 lD0265. 
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(b)(1) THI flll8fllr~ ____ ~ (b)(3) NatSecAC1 ...J 

undergoing ~ended s!ecp deprivation frequently weors a disposable undergarment designed f<ir adults with incontinence ar enuresis. Thi: undergarments are cheeked and changed regularly, and 

the detAinee's skin condition is monitored. You ljave informed us tbat undergarments are used 

solely for sanitary and health reasoos and not to humiliate the deuince, and that the detAinee will 

Ww: clolhin& such as a pair of shOrts; o~er the under·s=t during application of the 

t~que. • · 

2. Corr~6v. tahniques 

Correetive techniques entail some degr~ofpbysieal contact with the detainee. 

Importantly, these techniques are not designed to lnfliet pain on the detainee. or to use pain to 

obtain information. Rather, they are used ·~o correct [or] startle." Badcgr011nd Papu at S. '!'his 

categOry of techniques. as wei~ is.ptemiscd on an observed feature of a! Qaeda training' and 

mentali~he bdief that t.bcy will not be touched in U.S. custody. Accordingly, these 

techniques."condition 8 deuince to ·P•Y attention to the interiog&tor's questions and .•. dislodge 

"eXpecliltioll$ that the detainee will not be touched" or ihat a detainee can frustr&te the 

intcn'ogation by simply ouilaSting or ignoring the questioner: Section 2UO Opinion at 9. There 

are fwr techniqu.es In this category . 

. The "facial bold" is used to bold 8 detainee's head temporarily immobile during • 

illlerrogation. One open palm is placed on either.side of the individual: s fllee. The fingertips are 

irept wdla\vay from the individual's eyes. The faeial bold is typically applied for a period of 

Only ·a few seeonds. · · 

The "attention 8J"'SP" .consistS of grasping the individual with both bands, one hand on 

each ride of the edUar oponing, in a oon110Ued and quiet motion. In the same motion as the 

I!I!>SP. the individual js draWn to~ the illlerroSJ!or. The interro8JI<>r uses a towel or other .collaring device around tho back of the detainee's Doclt to .preveni any whiplash from the sudden 

'?"?'tion. ·Like the facial bold; the attention ~ is typically aj,p~ed for a ~od of only a few. seconds. · 

· · ·. ·: .. · '!be "abdo~~ slap" inv~lv~ the iljlotrOgafor's ~the !bdom~· ofthe dctai~· ·with. iJ!e ,back ofllls open band. The IDimOgilor .must have no ~ or other Jewelry on his band 

· or Wrist. Tho interrogator ls.JX?sitioned, dircciiy in &ont oftbc deyainee. no more tl\an 18 i.nehes 

... iiom the'dctai.ileC. )irJibjlis fingers bcld tightly t~er...OO fully extended.&!"~ )Ni~ bis11,alm 

.towird his own body, usmglii§ elbow·as a &xed .pivoi point, the interrog81or slaps the detam~ in 

· the deuinee'f .abdomen: The illlerrogator niay nO\ u.e a fist, and tJie slap inu5t be delivered 

above tho navel and below the sternum. . 

. ·With the~~ (or facfaiJ slaP, • the inttrro8ator slaps the Wd.i'o(idual's f&OC witb fingers 

slightly sPJCBd. .rte-hanl! .wdce. contut' with the area ~Y ·betWeen the iip of. the individual's· 

• .," · ';. . ··Wand the bottom of the CX!ITeSponiling.e.flobe. .. The intC!'f!)~ thus ~invades" the 

·: · : • ·; .. · il\dividual's "per.onal SJ>apc.' We understand that the pl.ap<?SCOfthe fllcialslap is to induce· 

• .,' • · ' ·. SboC.k or ~ Neither.the.abdqmj.i)al.slaj1 .Or the facial slap ;is Used With·an inteo.sityar 

.·.: · fi:ccl!l~tbat ~d cau:'·~;paioorbar#liothedetai_oee. · • 

.-- .. - • . (!))(1) l00266 . • · . . (b)(3) NatS~ct ·: .• 10 

·, 
126 


628RIZZO11.eps

.-- (b)(1) 

(bX3) NaiSecAct 

Medical and psychological personnel are physically present ot Olherwise observing . 

whenever these techniques are applied; and either they or any olber member of the interros-tion 

team ~II intetVWe if the use of any of these tcduliques bas an unexpectedly painful or harmful 

psychological effect on the detainee. 

In the.analysisto follow, we con>id.er the lawfulness of these six techniques both 

individually and ln eo~bjnation. You have informed us. however. the one of the- toebniqu~ 

sleep depriV1ltion-flas proven 10 be the most indispensable101he effectiveness of the 

iDten-os-tion program, and its absence would, in all iikclihood, rcndoT the remaining tecbniques 

of little Value. The effectiveness of the program depends upon penu&\ting'the detainee, early in 

the aj>plieation of the Jochniques, that be is dependent on the interrogators and that be laclc$ 

control over his sitwltion. Sleep deprivation, you have explaineil, is aucial to reioforcing" that 

the d~nee ean improve his situation only by l""'persting and providing aec;urate infonnai.ion. 

·The four corrective tedlniqu~ ate employed for their shocJi elfect; because they arc so carefully 

limit~ these correctiveteebniques startle but cause no 'significant pain. When used alone, they 

quickly lose their viluc. If the detainee does not immedittcly cooperale in response to these 

techniques, the detainee will quiclcly learn their ~mits md. know that he ci.n ~ist them. The 

ClA informs ~ that.the eonective techniques are effective only when the delainee is first placed 

:ii> 1 baseMe st&te, in whieb he does not believe that be is in control of his surroundings. The 

. ooriditioning teehniquc of sleep deprivation, the ciA informs us, is the IClst intrusive means 

a~lableiO thiS end &rut therefore eriti'eal to the effectiveness of the intarogotion progrun. 

) D. 

· J.'hc War ~es Act proscribes nioe criminal offenses in an armed conllict covered by 

Commo11 ~cle 3 of the Geneva Conventions'~ &e 18 U.S C.§ 2Mt(e){3): To list.the 

_probibited-praakei·is to under;scOre their graVity: torture, eruellnd io1uiman treatment, 

p_erforming bi'ologieal experi~, mutder, mutilatioo or malmiDti, inteiltionally cousjng serious 

·.;. liodily injury, ~ Seor.j!al assault or abUse, ancf the. taking of bo~ . · 

· ·. · , ~e OC!ld not ;...dertak:e in tbe p~ memorandu}l:l to idterpr<:t a:l1 of the ~ffenses ~ . . ·fnrtb in the War qrim.cs MI. The CIA's proposed .teehni<[lic$ do nOt C9en argua,bly imj>lieate six 

.. <if these off~niling bioloiiiea! Oxperim~ ~er,mutilation or m&imiog. rape. 

. • 'Sciual ~autt.or ~e, and lhe.iaki.rig ofho~es. ~ 18.U..S.C, §§ 2MI(d)(t)(C), (D~. {B); 

·•. . . ·(G), (H), aQd·(I). Th?se.si>i oll;enst,' borrow &om existing~ i:riJD!na1' ~w; they have well· : 

~_e.fulc;d meanjngs, and ~will not explore them in d<P,tb hece11 : • ··" • . 

~ ... 

• ••ii.. ~~~for~~~for~~imtDaiDIYiii'!"~~.;;., ......... 

.. . . • CCllll::Ur wilhP3rtll"s~ci1hcpcn!l<¢.~appllcal?lcto.lhetaevallt~~Crimes A<t . • 

. :: .;·.>.~ :- . ·' . . . ·.. •, . . . ·:. .. . . ·. .. : .. • •• • . . . . "~O>ew.r0lmc.Aa<ll::6n<$ 0C(....,.uoc~cr1hcG:peVi~illi.;..~t.twthal 

-:.rl. . ... 

· .. ~ . ·. 

.•. tui~ lhe iD)qpiaatiOn oCihc~·~ !"""' ~llasprovidcd llla:'JIO ~·(~ ...,.. , • ol'Jaw $ball !"i\>fy a ~for 1 tuJi oC~on iD lbOO>WUo!1hc U~lcl! \" ~lhc" i>oobi>Woos · 

~I .. '{1,)(1)' · .. I.:O'Q26.7; 

(bl,(3) l'latSecAct 
127 


628RIZZO12.eps

TOP SFOPPJ._ ______ ~ (b)(l) 

(b ){3) NatSecAct 

Some features of the three remaining offenses---tOC1urc, cruel and inhuman treatment.. and 

intentionally causing serious bodily injury-may be implicated by the proposed teebniques and 

sa it is oecessary fur us to·examiae them. Even with respect to these offenses. however. we conclude that only one tQCI)njqub-eX!ended sleep deprivation-requires significant discussion, 

although ':'e briefly address the bther five_ techniques as appropriate. '

1 

. First, tbe War·crlmes A<:J. prohibits tOf(Ure, in a manner. W!ually identical to~ 

previously existing federal prohibition on torture in 18 U.S. C.§§ 2H0..2340A. See 18 U.S.C. 

· §"244t(dXIXA). This Ollice previously concluded thai each of )be Ql~Uy proposed six 

techniqu~. including extended sleep deprivatiol>-$Ubjocl to tlie stri<;J. conditions, safeguards, 

,and. monitoring applied by tho CIA-does not violate' the federal torture st.Uutc. "See 

.. Memorandum for John A Rizio, Senior Deputy Geoerat CofU1$el, Central Intelligence Agency, • · from Steven G." Bradbury, Principal Deputy Assistant Attorney General, Office ofLegil 

Counsel, App/it:4tlon of 18 U.S.C §§ 2J40·2J4{)A to Certain Techniques 1ha! May Be Used in 

lh<lntOTTogatl0n of a High. Value aJ Qa&Ja 0.141ne• \'Section 234{) Opinion") (May 10, 200S). 

·'N w~ explain below •. our prior interpretation of the torture statute fCSOI~ not only the ptopet 

interpretation of the torture prohibition in the Wat Crimes A~ but also stveral of the i~es 

presented by the two other Wat Crimes Act offenses at issue. · . , . 

.) 

,. 

Second, Congress created a new offense of"aueJ and inhuman treaunent" in the War 

·Crimes Act (~"CIT offense"). This offense is directed at proscribing the "auel treatn>ent" and 

. 'inhum011e treatmCO: prohibited by Commo.n_ Art!cf• 3 ~fthe Genom. Co?"cnriollS; ~· GPW Art. 3 r.ll. l{a),· In:addrt>on to the "severe p&ys>cal.or meoW. pam or suffering" prohibtted by the 

torture stalUte; th~ CIT offense reaches the new category of"serious physical or meoW paio or 

. suffering." The offense's sepatatedefinitiooi ofmeotal·and physical pain or sull"ering extend to 

a wider scope of conduct than the torture statute and.ralse<tM> .previously UJlTt!'Oived ctuCstiqns 

. . wh<p 8J!plied to the CIA's proposed techniques. 1bC first issue is whether, under the definition 

.o("otriousplryslc:at pain or suffering." the ~Jeep deprivai.ion.teclullq(Je io\entionally inlli<:J.s a 

:bodily injUry that involves .••. a significant irnpaitm.co,t·ofthe fun~ on of a bodily:member .. : 

. . or.meotal faculty,".IS_U.S.C. § 244l(dX2X0), due. to the mental and pbysical con<litiOJ!S that can 

-. .'be exP!:<:ted io accompany the CIA's proposed tecbnique: the second question is" whether, under 

. ; ·· . ·.the.definitioO:o'f".scrioils mtl1fal paiD or suffering." the likely meoW effects of the sfeep ·. 

·.: :: •. ."·.",&!'Privation tee¥ que constitute "seri&us &lld non:tmnSitpry" menW. harm. ft Under the 

. ·. • . · ·. .P~ures and ~~ds p~oposed to~ 'IP.J>P.ed. W. answer bo\b qu;--tJons.in tho.~ 

::; .. 

~ 

~-~ b«aci>es oCCommoo.Anidel in the war~N>.. MCA § 600(;1). tn lho .... ..,;, or An!de 3,·-.e., wodo lind tJtat Coagcssbassit £onh ddit)ltioail~lho WwrCri!o« '•A<t thal~l)lllyc:i>osUt<atwilhllie~qfthc--rdledecl inSIICii--s.. • litfra-at SI·SZ, 61'64. · • · • • · :'l:f· . • •• . . • • • • ·: • • . :· . • 

' ' · .:· · •• ., F:o< examj>lt, boc:a1*thc cciqe(:ti'ye toclutlquisilMilve sciDe pby1;ca1 amtacl with lite c1cWJtoc, dtc ' • .• ··: • ,. dtcntto-wtlidllbo!c ~catoiboWI! OimcsA<:talaiusomeOOtiSidC:miciol. Ar"!!eoq>limatvlrioos · ·. : •. : ~lteloW;~.-theinlldilessot~Jt>Ciinjq\tes.ndllie~lllidir~oqti'Ca•n11cave tb!m. 

• •.·• . o\tlside!lte-QCtltc.WarOimcsN;t. • • · · •• ...)'. . . ' . .· . 

. { .. . ... _· . nr' 81!i.:tlrr ~-~----...J ,.. .. 12 (b)(1) . 

(~)(~) NatSecAct 
128 


628RIZZO13.eps

(b)(f) 

(b)(3) NatSecAct 

_.) .. 

11Urd, the. War Crimes 

ewr liiliPiil

Act prohibits 

l_ 

intcntion&lly 

~ 

causing "serious bodily injury" (the 

~sBI offense"). The SBI offense rilies OnlY. one additional question with regard to the sleep 

deprivation techniqub-whether the mental and physical conditions that may arise during that 

technique, even if not "significant i.mpainncnt(s]" under the CIT offense, are "protracted 

impairments" under the SBI offense. CompoTe 18 U:S.C. § 244l(d)(2)(iv), with ld · 

§ t365(h)(3)(D). Consistcn~ with our prior analysis of the similar requiremc;nt of"prolonged 

mental barm" in the tonure statute, we .conclude that these conditions would not tri88cr the 

. · applicability of the SBI offense." 

• " Ia tbo ddlote OYa' <he Milillly C<l.:.m...oos ACI, MeaW> of C<lnp<SS expre<sed wieldy dilT<riJl& • views as to bow the terms oftbe War Oimcs Act woold apply to illl<m>ption ...,.,;ques. lrt ~pt of these 

divttgeul views, we do DOt rqord the1egjslaliY<bis<Ol)'~fthe War Qilnes Act omeoclmento as potticulvty 

iUominating. al"""'gllwe 00.. tf..t sevenloftllooe ,_ closdy iawiYCd in~ the Act swod th&t tbe tcrms 

did oo< add<ess'aoy puticWar teeboiques. ,.. Rep. Duncon Hnntcr, tbo Chalnn3n nf<he lloosi Anlled ScMoco 

O,nun;uoe aod the Act's Jeacrmg spo""" in tb<HOUS<, explain<¢ 

!.« mobC o:Jw: The bill.km... tbe specific coocloct OW.is prolul>!al uoder C<liiUDOII t.rticJe J, 

bot it doe$ aot ~co lde:Dtif)' itlkcTogatioo practices to the enemy or to tab.ltl)' particular 

~of~cmnlftbetable. .Rather. tblslcpQoopropertyleaY<Stheclcd.;ousutothe 

melheds o( intcnoptioa ID the Presideutand to the~ pn>fessionals lll the CIA, 00 that 

they may carry CorWud 1his vital ptogrun tha~ as tbei'Rsideol expblocd, .,...to ptbcr the 

aOtical.imtlli"""'"""""""' to pro1«t tbe"""""' frouunocha causiropb;c.....,;,-. 

ts2 Coni Jloo. 87938 (Sept. 29, wo6). Senator McCain, .mo Jed sewu .. ~.,.... !he Act's t.cx1. similarly 

'Statcd'th&l "'tIs -·ID suucst1hat ani legisbtioncoold provide an cxpiJdt and .U.aidliS!ve lis< oC wluot 

. ~ 

~ 

:ic:tlvitios are i1kPJ and whicb are petn>iUed. • aJihoo&b 110 did swelhat the A4 "will crimiJWlto ...W. techniquCr. Jiko,..t~andotber tec:luiiq.co lhlll cause serious pomocsu1rcringdlat need not 

-!>e proto .. " IlL ~SJO •• i3 (SepllS, 2006~ Ocher )ljembets. who bolh supported and~ the ACl, auO<d 1hatthe -itself esoabJisbcd &<uera~Siaadanls, ralherlhanpr•saibiJ>&spcQJict<dlniquc<, &., c.g,.ld. 11 

~10,•16 .<.........,. oCSca Leahy) (the bill "S3ddlco tbe Wu Crimcc Act with a ddlJi!tioe oC crud and~ 

·· =c~r.'~~=ID:sf~"'Zc:.:;..=;~~~ .Act so tb1t <rimlllalli>bilitydoeicoot....U from teeboiques ihat lhc.Ualted Sla)cs ti>ay bivt cmploy<>d, <uc;b as si.olulatOcl drVWIIiD& CJCjJosure to hypoll\ermia. - ... looP sleep clqrivalioo"); td. at SIC))8l~ (Sept. 28, 2006) 

· ·. ·c-ors.... amtoa) <~th&l the-'lcuiti "'u.e tixt • ._.....,._ ..ooemp~ar tcclmiQue. ptdt as~ looi-dmo ~ iodlJ!potbemtia oo ~ csnnotbecllqed fllr ?c:dmcc"). 

• • • • At ti.. saoxi-. ocher Mcmbea. iridOdir>& Seaator w.-. the OlalDtsio oCthe-Mbcd Serviqco 

Comirilttcewho alJo'!UdoodYIDYolvcd'!i>~OYerthebiU'fteXI,SII8&"'tcd1hatll»biU DJiDlt · cdrrtlnalizecOrlain~onteci>oiqUes.inchldir>cvariatiousoC...W.o,I'~ JX'll)osorlbytheOA(ollhoollb 

-M~ctill~dilo>osfl>edc:tailcd~ wilhintheoAp<08!ll!ll~ S... c.&-.ld. atSIO,'m(_....., 

• 

• 

· 

oCSca 

t<duiiques. 

w ....... 

scrcss l (""""C!>atthecoaduCI positicbr. iod~ pn>Joaged 

lrtthe-!<eneecly 

Sllrlding 

~ 

••• sleep clqlrivatiob. 

wbid> ....,JdbaY<prohibhcd 

and '!""' simJ!ar aas, 

~ 

• is "ill!'fY 

, Cpiaion .. , '*"':11 prohibi!alt;y the bi,!L "]. ~tw JU"id. at.SIO,J90 ~ otSCii. Wamcr)(OIIi>oolrt&the · · 

.· ... ,. .•. Kennedy~~the.....,iddllt"Cooi!J=sbolafcloottiytoprovidCJO'SpcC!!Iclist'cf~ . 

·: : ' ' .. ; "l1!'}ec!Qn'tlaiowtobal~~b9141. S..o1Jold.IISIO,l84 ($IJlOrlir:moCSctLL<:viD)(aou:iitg.with~ 

. • ·: ,' .•Wamtrastothe~ ~);ld. at SIO,:J3S.36(Sept. 27,2006);/d. itSlO,~S-36 (stalaiiODtQfSca 

·.. .: ' 1llirbjlt) 

~ 

C'fi1be.biU WO!lid lllllkr<•ta c:rimc to.uoeoWsi¥0 ~on ~lib~- ... pairt!bl, It!=~ and proiQJI&Od sleepdcprMtiop"J: td. atH7SS~ {1?qlO. 27, 2006)(-of 

•••·• :· .;·R.q>. Sbayi) (IIWill&lhat."IDJ' n:os<>rlJble' pchQn Would coD<lude" tblt."th<so<allcd ~ or!Wdt ~ · 

;.)

. . ~ ~-iiopl-..t !;>'tbei>Os<bithe CIA" "would Slill,becrimlnal M"ct~Sis UDder the WuCdrDcs M. . bec:aoso ~c:tearJy~ ·,..;...s mi:n~ and~ sutrtrins"J. ·. . · · . . · • 

.. . . • 

: (b)(1)· ·. 

(b)(3) NaiSeeAct 

·. ~ 

-----.J 

•'. 4 

.·)) 
129 


628RIZZO14.eps

·. 

(b)(1) 

(b)(3) NatSecAct ~ __ __. 

) 

. . ~ 

.· 

(b)(1) 

A. 

Th~ War Crimes Aet protlibits iorture jp a manner virtually idenli<:al to the general 

federal anto·torture statute, 18 U.S.C. §§ 2340.2J40A: 

The act of a ~n who commits, or conspires or attemptS to commit, an act 

specifically intended to inllii:t se>Ue physical ar mental pain 91" suffering ( othe< 

thM pain or suffering incidental to ~wful sanctions) upon another person within 

his CU$tody r physiCal control for the purpose of obtaining information !Jr a 

confession, punishment, intimidation; coercidn, or any reason based on 

cliscriminat.ion of any kind. 

18 U.S,C. § 244J(d}(IXA) (emphasis a,dded}: The V{er Crimes Act incorporates by refe<ence the 

definiti(!n of the term "severe mental pain or suffering" in 18 U:S.C. § 2340(2). Su 18 U.S. C. 

§ 2441(dX2XA)." This Office pccviously concluded that the CIA'$ six proposed interrogation 

.. teehni~ues would not ooostitute torture under. IS U.S. C. §§ ~40.2340A. Stt Stction 1340 

. Opinion. On the basis of new information obtained regarding the techniques in question. we 

have reevaluated that analysis, stand by its conclusion, and incorporate it herein. Therefore, we 

conelude that none oftbe techniques in·question, as proposed to be used by tbe CIA, constitutes 

. torture under th~ War Crimes Act. · · · 

B • 

. The War .crime$' Act defines the oJ!;ense o'"cruel' or inhuman ueatrnen(' as foDows: . 

The act of a:pe=n who commits, or coospices or ·attempts tO commit, an act 

inundod to jnflict severe or seriOUs physical -or mental pain or suffering (other· 

~pain or sulfering inciden!al to lawflll sanctiom). including serious physical 

abuse, upon·anotJier person within his CU$1cx!y or control: 

·1&-u:s:C. § 244t(ttXIXB). AltbouBbothis oll'ctise extends tO. more oonduc~than the torture 

·-off....;; y.oe conclude fof the re&Sons Uiat £(\Dow that it 'does oot prohibi~ the six .proposed . 

-t~ques as th~y ":"' designed to be used by the CIA. ·. · 

· . ·•. The err off~ iD additiont~ prohibni,;~ tJie "s~ ·physical or mental paln or 

suffering" C<?"ered1>y tlie tortute -oO'~ alsO,"'"* "#rlous ~~y•ical or rileotal.pain or 

· ••no..--lnthcWar;CrioDi. lltlllilfi:ntn.msoc:tiooll4\lflicwo...,.~mmat<rialbcr.o. P'on~, -.ocdoa 23':9iopplles0Dir~lhe ~ _,.lhe UPilM $o.r...-Tiooeprohil>itiollw Ia lhe . ;WUOimesAd,bycillllliso, wool4applyto~~<felpcatioa; thaloeo::afln,"t!>o-of..-

~witi>" IA Iimcdooallict "uo(ofao~<loatlc!<r." ~oo--UIId<tlheWar · 

. .cn-Aa,ioactM!7omostl><'"fortllc-Of~l!dixDolliooiora~~~ 

• ~oraior=son ~>oax~ ooicilo:rimmatlooariDf.Jdllil.• s<.tsv.s.c. §2441(d)(IXA);-•lf<>O.T Arvl· 

• (o.rioposlngasfDillar~lixtbc1TCOtJ''•olo:finitiooaCoomon:j. 11oc><;iW!esthat ..0~J;creln'!"'"fot 

• OheJ>Uil'OO'of obtahoiooi iaformatino• and orelllldeitalio>"in the-.(\(or--..;011 wilhaCcmooo Artidel 

i;Oalli~: ,"'tbccO ~ ~concntp ould ~soDifiecf~, ·. · · . · • , 

. ,(b)(3) Nal~e~ 
130 


628RIZZO15.eps

(b)(1)'' 

(b)(3) NatSecAct 

·.• .. ·· 

..... 

":.;.· ·· •, 

:,,_./; 

•'(o)(t) 

suffering.. In contrut to the torture olfense, the err olfense explicitly defines beth of the two 

key term>-''serious ph)l$fet1l pain or suffering" aod "serious mental pain or suffering." Before 

turning to those specific definitioJ>S, we consider the general structure of the off<;nse, ~that 

structure infOrms t!Je interpretation of those specific terms. 

First, the context of the CIT offense in the War Crimes Act indicates tbet the term 

"serious".in the statute is generally direded at a less grave-category of conditions then falls 

wilhin tbe scope oftbe 1011Ure offense. The tenns are used sequentially, and cruel and inhuman 

tteatmeot is generally understood to<:<>nstitute alesserevillhan torture. SU, e.g., CAT Art. 16 

(prohibiting "other cnJel, inhuman, or degra.ding treatment or punishment which dQ hot amo11111 

io torture") (emphases added). A~rdingJy, as a gcnetal matter, a condition wOuld not ·coostiwte"'severe physical or mental pain or suffering'" if it were not also to constitute ''serious 

physical or mental pain or suffering." 

Aftbough it lmplies something1es:s exttemc than the term ''seveu.,'" the ia:m "serious" 

·still refers to grav"conduct. As with tbe term "severe," dictionary defmitions ofthetenn 

. "serious" underscore that it refers to a condition "of a great degree or an undesirable or IWmful 

eleme11." Webster :r Third Inf'l Dictionary at208J. When specifically descnoing physi,cal pain. 

"serious" has been define<! as "inflicting a pain or distress, [that is] grievous." I d. ( exploining 

thai, with regard to pain, '.'Serious" is tbe opposite of"mild"). • 

the, term "serious" limits the CIT o(fense to grave conduct is t'einforoed by the 

pu!J>OSC of the War Crimes Act. The International Committee of the Red Cross ("'CRC") 

Conrmmtorles desciibe the conduct prohibited by Common Article :i as "acts wtiich.world 

public opinion 'fi!lds partioolarly revolting." Pictet, gen. ed., m Olmmentaries on. the Gent\C 

Convenllons 39 (1960); s.e a/S<)injra at SO (explaining the significance of the ICRC . 

Conv,rw{trl•s in interpreting Common Article 3). Of the minimum standards oftre&tmelll 

<:onsistent with l)wnanity that .Common Article 3 ...U to 5us~n, th,e War Crimes AJ:J. is directed 

Qnly at'"grave linaehes" of Common Article 3. &<:18. U.S. C. § 2:\'ll(e)(3). Gnve brtacbes of 

tbe ConVentions represent conduct o( suclt severity that the Conventions oblige si~es (o 

"pro'vidcetreCtiye penaf sanctions" for; and 10 sean:b fpr and to prosecute P.Cf'i>os committing, 

···such violllionS qfthe Coov~ons. See, e.g., ''GYW" Article 129. ThO Conventions ~mselves 

' in defining "pve t>re&Gbes". set'forth:W>&mb;iuously ;erlOU$ otrenses: ''willful tillin'& tof1Ure 

: .-o(iohl.awi.tre&lmeJlt, ~clud!ng biological experimentS,' willfully cousing great ~ or 

serious injwj to~ 0r h<;<t]lh." GI.'W. Art. 130. In~ eontcxt, th~ tq "serious" must llO! be 

read lightly. Accordingly, !h• "serious P.h)'si~ or mental pain or·suffering" pr!)hilii~ by the 

CIT olfense not include trivial or mild. conditions;· rather, tbe offense ref~ to lhc grave 

con<lud at which the term "serious·· aDd the grave b_reach provision of-the Geneva Coilveniions 

are c!ireded. · · 

·• . ' • Second,.the CIT offense's.struCIUre sha~ our inlCJPretalioo ofi~ sepan!~ prohibitiODS 

~ the inflicuoo of"physic&! paiD or sufferi.Qi and. "mental 'pain Or su.ff<{ins. ~ 'The err. · , offense. iike the in!i-torture statute, envisiOns !Wo.sePo.rate categories of harm and. indeed, · 

~Y cfefines each term.. As we discusi below, -rtiis sq,aratioo is reflectec! in 'the. . · · · 

,~tin· that "sen~ phYs,icAI pain .or ~Critlg" .i~ol•e tbe iJiil.ic!ioq of a ''bodily irijury." 

To pemlit purely ment&J conditions to qu4lifi,...."pbysical pain or suff~ ~d ~der the ' - . . - . 

- T8P8iWliJI: 

(bl(,3) NaiSecAct. 

IS ~ ·-. 
131 


628RIZZO16.eps

. · I 

.J 

(b)(1) 

(b)(3) NatSecAct 

c:arefully considered definition of"oeriO<Js mental pain or suffering'' surplusage. Consistent with 

the statutory definitions provided by Co.nsress, we therefore unclersund the suuaure of the CIT 

offense to involve two distinct c:ategol)es of balm. 

. The err offense largely borrows the anti-tonurestatute's defin~ion of mental pain Of 

suffering. A!though thC Crr offense makes two impo11ant adjustmeOLS 10 the definition, these 

revisions presdve the fundamental-purpose of pnoviding clearly defined circumstances under 

which mental conditions would trigger~ coverage of the sutute. Extendiag.the offense's 

coverage to solely mental conditions outside of this careful definition .would be i~consist~t _with 

this structlJre. C/. Section 2340 Opinion at 23-24 (ooneluding thet mere mental distress is not 

enotigh to cause "physical sufferifl$" within the meaning of the anti-tonure statute). We · 

!J!etcl'ore eonclude the~ ooasistent with'the anti-tQttute statute, the CIT offense separately 

-proseribes physical and mental balm. We consider each io tum. 

l. 

' The CIT olfen.se prosen'bes ao ac:t "intended to inflia •.. serious physical . : . pain or 

.solfering." 18 U.S. C.§ 2441(dXl)(B). ·unlike the tortUre offense, wbicb does not provide an 

explicit definition of"severe' physical pain or suffering," the CIT offense includes a detailed 

definition of"oerious physical pain or suffering." as follows: 

!BlOdily injury thet !JlVOI~ 

(i) a substantial risk of death; 

.(li) ¢l<lteme physiCal piin; 

(iii) g bum or physical disfigumnent ofa serious. nature (other than cuts, 

abruioos. or bruises); or 

· .(iv) si$JUfieant.loss o.-imp&i!mM.t oftbewnoti.on of a bodily member, 

· .. _organ, or m~ faculty." 

ld § 2441(d)(2)(D) . 

. . tp.li8bt,ofthet de6nition, the pbysica!cornponCo! oftheC!T ofl.'e'ose bas two core 

·r-. F"I,<SI,'it ~that tbe def~ act with the intent· to inflict a "bodily injury." 

' ~ it rCqwxes that the intende<! "bodily injury" "involv9" one o.f-~ effectS. or ~lilis -<X>nc;liti'?= . . . . . . . ' 

•· : '· As an iniliaJ matt~o<, tbe CIT olfense:requires tha£.the defendant's oondua be. intended to 

·in1Jiet a "bodily injwr.~ The term "injwy," ~ependibg oo coDICXi; can rtferto a wide range. or 

· ·. "!wm" or disaimfQrt. Su VU·OifordEng(/ilrDICIJonor;y il. 2~1. Tbi~ isa t=1 that dnws ' . • .substantiil meAning frOm the wotds thet swrouod i~ T1>e injury inust be·".bodily," which ·· • 

' ·' · ' requires the injury to-be "of tho body.': D WOrd~ Dictionary~ 3~1 ~term "bodily_" 

:. · ([istioguisb~ the "physical~ oftbe human body from the mind. [!ioti?naries mQSt 

· closely ~e.lbe'term '"bodily" to the tcinn "physical" ani! !"'J>I~ !bat the -.WOrd "C<?nirists with. 

\. . . . . . . '.: .·· .,. . •, . 

WPrr:Wiwr (b)(1) 

(b)(3) Nat~ecAct 

lo 

Ul02 72· 

•.' 
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). 

merziai or "spiritual," Wtbsler 's Third In!'/ DicJionary at 245. Therefore, the term "bodily 

injury" is most reasonably read to mean a physical injury to the body." 

As expla.ined above_ lhe -structure of the err offense reinforces the interpreta:tion of 

"bodily .injury" to mean "physical injury to lbe body." The term "bodily injury" is de6ning 

~serious p/ry<icol pain or ;.uTering." To pennit wboUy mental distrqs to qualify would be to 

cifewnvent lbe ea.refuland separate de6pitioo ~fthe "serious mental.pain or sufferio8" lhat.oould 

implicate the statute. In furtherance of this SUU<:tw"e, Congtess chose oot to import dc6nitioos of 

"boaily injury" from oCher parts of title 18 (even wlUie, as explai~ below, it expressly did so 

for tlie SBI offense). TIUs cheice reflects lbe iilct that those other de6oitions serve different 

pwposes in other·staMory sChemes-particularly as sentencing enhancements-ind lbey 

potentially eoilld include purely mental conditions. The CIT offense differs from these other 

criminal offe.nses, which prov1de "bodily injury" as in element but do not have separate 

de6oitions of physic8J and mental harm." For example, the anti-tampering statute de6nes 

"bodily injury" to include conditions wilh no pbysieal component, such as lbe "i!"pairment of 

·;the function of a .. . mental faculty." 18 U.S, C. § 136S(b)(4). Ifth,e de6oition in the anti-

. iampering statute were to control here, however; the bodily injury requirement would be 

'indistinct from tl:te required resulting cOndition of a sigoi6cant impairment of the (Unction of a 

mental facultY, Su 18 U.S.C. § 136S(hX4)(D). Thus, "bodily injury" must be construed in a 

·manner consistent with its plain meaning' and lbe struelure of the CIT offense. ~rdingly, we 

must look to "(!>ether the circumstances indicate an .intent to inflict a pbysical injury to the body 

when .determining whether the conduct in question rs i!>tended to cause ••senou$ physical pain or suffering." . . . 

b. 

' ·· · '· Second, to qualify anerious ph)'Slcal pain or suffering, the intend(:!i pbysi~ injury to · 

the body must "involve" one of lOur resu!ling condition$. Only one oflbe enumeratnd conditions 

~erits' d~ssioo in "?~on )"ith sleep deprivation, or .any ~the CIA's oCher proposed 
133 


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, ..... 

.. )' '1 

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techniques: "the significant 19SS or imJ"irment of the function of a bodily member, organ. or 

mental lloculty."

11 • • 

The coodition requires a .. Joss or impainnenL •• Standing alone. the term "lo$$" tequi.re:s a 

"deprivation," and the term "impairment" a "c!etdior>.tiort," here ofthree spe<:ified objcots. &• · 

Webster's Third lnr'l Dicticmary81 J33B; I 131. ll9th of these terms, of their own force-and 

without modification, carry aa implication "Of duration; the terms do not refer to merely 

momentary conditions. Reioforcing this condition, Congress required that the "loss" or 

. "impairment" be "significant.'' The term "significant•· implies that the intended Joss or 

impairment must becharacteriu(lby a "'bstantiaJ gravity or. serioUSDess. And the tCfl!l<lraws 

addition_al meaning from its context. Tl;e pl!rase "significant Joss or impairmenl" is employed to 

define "serious physical pain or suffering" and, more genela.lly, the extrem~ conduct that wwld 

constitute a "grave brcaeb" of Cort)lllOn Artiele 3. In reaching the level of seriousness called f<>< 

io this context, it is reasonable to conelude that both duration and gravity are rclc'vanl An 

~eme mental condition, even if it ~ not lut for a long time, may be deemed a "significant . 

impaiirment" ofa mental &culty .. A le.sneverecondition may.beeomesignifiean\only if it bas a 

longer duration. 

The text also makes elear that Oat all impairments .of bodily "functions" are sufficient to 

.jmplicate the err olfense. Instead, Congress ~tied that conditio"'i alfecting three impoJ1ant 

types of functions could conStitute a qualifying impairment: the lilnctioniog of a "bodily 

membii," an "organ, • or a "mental &culty." The meanings of "bodiiy member'' and "organ• ar~ 

siraightforwar<l. For example, the usc of the &l)1lS and the legs, ineluding the ability to wilk, 

would ele..tly constitute • -function" of a "bodily member." "M.ntal faculty" is a1erm of art ia 

c:;ognitive p;yehology: In thai fie!<( "mental faculty" refers to "one<>fthe powers or agencies · 

int.o w!Uch psyebologists·hllve divided the mind-such .as will, rea.sOn, or intellect-and through 

the inteiaction of which they hllve Cll!feavo~ tO explajD all menial phenomenon. • Webster's 

. • ih;rd lnt'l DICtionary 01 3:44 ~ we explain below, the slcep.deprivation technique can cause a 

tetl)porary '!imillisbment.in general mental acuity, bUt the text o(the statute~ more than 

an \'~pecified or '!""'Pbous imp,Prmem of mental. fuocti{>l;ing. 'The usc of. the' term "mental 

fa~lty" requires tiJa1 we ide~ aaJmportant aspeCt of~~ functioning tiJa1 baa bee~ . · 

- . . .. 'llix: -..-..w dsl< ot ci..a.· cooditioo dead;~;.;, apply ·..,.JI<;cp dqBiValion or any ofl!oo CA's 

qti>Ct~tecbniqoca. Noacoltllcsix~"""'d~lll--1-dskoldta!IL 

Medical pcnonucl ~ ~"*"""'ddlljooo "'l>ject 10~ thatuo ~ooscxiltfarcll< 

..P,lli:osion ottbO I<dWQ)ICSIOjhai~ -.CA prococlo.t<o~~Oilof'l<d>oique- ;t . """''"coodillooisthat'iD<if-thcdskoCC!ealh, ..... slltJ>dy. ·• . .• • . 

· ' Ow Sedion 1J4Q(}pboi".;. ~dcorthattbC "i:xuuac ~ pobl" ~also cll>cs DOt lqlply ben:. 

;&&18 U.S'. C. p..Cl(d)(2XJ?)(il). 'lbclo, wc~thct~•..,.,...ipilylical plio" io thcloctlRSII\UIOIO . 

• . ---piJys\cal.polll" /d:'!119('"1lie ... oftlloWord • ..,..,.,. intllcstalll!Oiy~OO.-<!eadl' 

dcllo!es a ~ • ..r.COCldilioD tbal ~ ~ill iDICIIOiiY·and 'cllllbllt m ClllloR. ");·(JI..(ImlllroiiMI1'001<1imle$ 

~roiolll<i;p.-oi~po!A"). Oiltllebo,isat"'"'~$11tllcsQ:cechaiquesiloDOt . · 

~l,hc imposit!l>o 0!~ pt,ysical'pa!n. • ... t.t.at 22·24, 31-D;Js-.39, ":" ooochille thai lhey IJio do DOt 

ilM>I'(C "eXm:!De pbylical p&!Ji • .AorJ,.bcciasellO tcdmique-a yisil)le pluskalalltraliooi ocllum oC.u7. · Jdod, tllc ooi.!rulmot"a)Miaor~oia .enw..i>we(olhq-~ cats.~ orbruhicsl" is abo DOt 

·i.aopiiesl<d. • • • ••• : • : • 

;:_: , .t. (iii(1) 

(b)t~) N~tSecAci t3'027.4 1& 
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... ; 

. ·:-.:.£3: 

(b)(1) 

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TOP 0£.59'& 

impaired, as opposed to pennitting a gCJltnl sense of baz.iDess, fatigue, or di=mfon to provide 

one of the required concliti!)Rs for "serious pbysic:al pain or suffering." 

Read together, W(: can give discernable content to how meotal symptoms would come to 

~ostitute "seqous physic:al pain or suffering" through the founh r;esulting condition. The 

"bodily injury" provisioo requires the intent to inlliet physical ;njllry to tlie body that would be • 

expectecl"to result in a significant loss or impainncnt of a mental faculty. 

11 To constitute a 

"significant loss or irnpairmeot." that mental conclitioli mllSI display the combination of duration 

and gravity consistent with a "grave breach" of the law of war. Finally, we must id"J!Iify a 

disc:rete and imponaot mental function that is lost or imp. aired. 

The physic:al ronditions tbit we· understand arelike.ly to be associated with the CIA's 

proposed extended sleep deprivation technique would not satisfY these requirements. 1\!i an 

initial matter, the extended sleep deprivation technique is designed to involve mioimal physical 

contact with the detainee. The CIA designed the method for keeping-the "detainee awak<>-

primarily by shackling the individuil in a standing position-in order to avoid invasive pbysic:al 

contact or oonfrontatioo between the detainee aod CIA perso~. CIA lnedic:al peisonnel have 

informed us that-two pbysic:al conditions are likely to result from the application of this 

techni'l"e: Sigiuficant muscle fatigue associated with extended s:tandin& aod edema, that is,. the 

swelling of the tissues of the lower legs. CIA medic:al personne.l, including tbOs;e wb.o ba~ 

observed the effeets of ~ed sleep deprivation as employed in past interrogations, have 

' informed us that such conditioll$ do not ~en the legs to the poirn <bat the detainee could no· 

Ionge; staod or walk. Detainee. subjeeted "to extended sleep deprivation remain a)>le to walk 

after the application of the technique. J'v!oreover, if the detainee were to stop using his legs an6 

to try to suppon m·s weight with the shackles suspended from the ceiling. the application of the 

technique would be adjusted or terminated. The detainee would not be left to hang from the 

shackles. By ~efinition,. therefor.e. the fi.J;t«tion of the 4etiunce's legs woold not be significantly 

impaired-they wOuld be expeell>d to continue to sustain-the detainee's weight and cna61~ him to walk. • · 

.. •. · Nor is.simplc eilema aloqe a quali!ying.irnpa;,ent. lJ is possible that cliJric:ally: 

· Significant edema.<o the loWe.> leg$ _may OCQlf during·lJ(er. sia!!es of the teChnique, and rD.oc!ic:al 

personnel woul<l tcriJiioate application o(the technique if the edema were jud~ to be . 

. ·:significant, i.e.,if.itp0s6d a risk.to"h<:altb. FC?t ~piO, if edema beeomC$ i.!ffieieni!y"serious, 

· it can" increase the riskofa bl~ clot ailchtroko. CIA .medical p"etionoel would monitorlho 

·detiinee and tettninate the technique before the eQemartaelsed that ~ of se-":y. "EdC!'J& 

. subsides with ~y a few hours of sitting or reclioin& 8Jid ·.~n persons with seVere edema ""'! • WaDe: The limitations set by" the CIA to avoid clinically _s"igni.ficant edema, and the continued 

' (b)(1) 

.(b)(3) NatSecAd. 

-· 

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19 . 
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628RIZZO20.eps

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ability ofth~ detainee 10 use his legs, dernonsuate that the mild edema that can be expected 10 

"QCCUr during steep deprivation would not oonstitut~ a "significat1t impainnent" of the legs. 

The mental conditions associated with sleep deprivation also are oot .. serious physicO/ 

pain or suffering." To satisfy the "bodily injury" requifemenl, the menml condition must be 

Jraceabte to some physicaf injury to the body. We understand from the CIA's medieal experts 

and medieal literature that tbe mild hallucinations and diminished cognitive f\metioning that may 

be associated wilh extended sleq> deprivation irise largely from !he general men18.1 fatigue thai 

accompanies tile absence ofsleep, not li'om any physical phenomenon tllat would be associated 

with the CIA's procedure-for preventing sleep. These mental symp!oms develop in. far l.ess 

demanding forms of sleep deprivation, t'len where subjects are at liberty to do what they please 

but are nonetheless kept awake. We und~ that there is no evidence ~ the onset of these 

mcn18.1 effects would he accelerated, ·or their severity 'IW&Vated, by pbysieal conditions that 

may accompany <he ll!UDS used by the CIA 10 prevent sleep. 

Even if such dimin4hed cognitive funetioni~ or mild hallucioalions were attribuW>Ie to 

a physical irijury to the body, they would oot besigniji=rlirnpairmcnts of tile function of a 

mtn18.1 faculty within the meaning_ofthestatute. The .CIA will ensure; thrOugh monitorina aod 

.regular examinations, that the detainee does not suffer a significant reduction in cognitive 

. functionina througqout the application or the technique. (flbe detainee were observed. to suffer 

any hallucinations, the technique would be irnmediaj<:ly discontinued, For ~ating other 

_aspects of cognitive fuoetionil1g. at a minimum, CIA medieal personnel would monitor the 

) 

. detainee to determine. that he is able to. answer questions, des<:ribe .his surroundings accuratdy,_ 

and re<:all basic l&cts &!lOut the wol'ld. Under these ciJ'!:ums=, the dirn.inishment of cognitive 

fiinctionina-would not be "significant."" · 

'' 

. . ,,..1. ... 

.ln addition, C1A observations and ~ medic;af stUdies tend 10 confirm that "(bat ever 

effect on cognitive fuoC:tioJ>'IIiay QCCU! would be short-lived. Ajipticatioa, of the proposed sleep 

deprivation technique will be.limited to 96 bouts, aod ballucioat!ons or other appreciable· 

;eogrutive etfects are unlike!~ to·occuruinil after the midpoint of that _period. Moreover, we 

· -uoderstaod·that.cogriitive fu~oDi'!& is futly.reotored with O!IC night ofooimat stcei>. which 

: detainees wo_uld be pennit1ed afut ap¢ieation ~tbe te<hniqi,e; o;v~olhe retatiye mildness of 

· • tf>e ~shed cog,ililve.fiin<:tioni.Dg that the CIA would pennit to occur bcifore 'the technique is . .disoentioued,·sucb men18.1'cffcciiwould not be~ ~openbt f?r.a iuffi.cicot dwirtion to be ·':significailt. ... . . . . . 

· •• TI)c~dll1,...disc:ilssbcrtinmaf...,...~topc:nuadoll!c~to disclooe : ~..,-be-.! DOt otbcnrioe wish oo·do. 1'bese--arc.,.. tbcni!Ydiro:ted; ~-•c · : c.u..n, "I:Olficul ~ortbcdctaill<e's...m. arguablj. •JDCI>Iii faalltY.· ·lnsleod, ci.e t.oc~m~quesw 

• • • dai8Qcd to'atl"! ~that !tad lhe-co-=-llii..urm• ~........_ 1o lllii Will'. !be ;: t.odmlqocoore~aptbc~IIDIJ!»dc:tlh)oe'•wlllls ~prl!ll<i!y~lhftbc..W.-IOibc 

. t.odmlqtlei,aodlhec:bios<d..._iD .. --. • . • . ... ,: • 

.' '· .• ·:.': ,. Almal b~af~~~caiJ!Oil!!lf~W('U!a.:;OToll'~,_p..~~lbe~"· '· "iocl~~pllyslc;ai-':-Sd.IBU,S.C.§~J(d)(l)(iv){prolljbitioatbe inftlaiooaf~!"sO)ous 

pllysicaJ oc o'lcmll pain.,. sulrerin& ..• iDoludint.m-'pbys!calabusei. CociQess pvvidc:d •i<rioos pbysic:aJ • (t>;(·;J .·. ........ . · .. ·. ·:· 

(b)(3) NAtS&e)>.c,t 'zo ; - L :J0271)' 
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628RIZZO21.eps

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The CIT offense also prohibits the infliction of"seriousmenul pain or sufferirog." under which purely menllll oonditions arc appropriately considered. In tlleSectlon 2340 Opinion, we 

conetuded that none·oftJle techniques at issue here involves the intentional imposition of"severe 

mental pain or sUffering; ..-that term i.s defined in 18 U.S.C .. § 2340. Tbe9IT offense adopts 

that definition with two m9<li!ications. With the differences from $Cction 2340'italieizcd, 

"serious men~ pain or ~ffering" is defined ~ follows: 

The .lUi !>Us and nort-transitory mental' lwm (which need no(be 

prolonged) cau$Cd by or resulting from- · 

(A) the intentional infliction or threatened inDiction of seri~>US physical 

pain or· .suffering; _. 

(B) .the administration or opplieation, or thrcotened odministrati'on .or 

application, of mind altering sutistaDccs or other procedures calculated to disrupt 

.profoundly the senses or thci>"f''nality; · 

(C) the threat of imminent death; or 

(D) the threat that another person will imminently be subjected to death, 

.wiuus physical pain or sufferui& or the admi.nisttation or ai>J>Iipation of mindaltering'subManCts or other procedures calculated to disrupt profoundly the= '-or petsonality. • 

Secl8 U.S.C. §'2441(d)(2)(E).(specifying adjustments to 18 U.S. C. § 234?(2)), 

None of these modifi;,..tions expands the scope ofihe definition to cover steep 

· · deprivation as,CII)ployed by the CIA or any of the otbefpiopoSed-rechniques. The CIT ollensc 

.,:.. 

.·.':' 

· · .cq)Jacc$100 term "seven/' with the~ ·scri~s~ througbout,thetcxtof ~8 :u.s.c. § 2340(2}~ 

1'1>• CIT offense also alters the requirement of"proWnged mental harm" til 18 Q. .. S,C. § 2340(2), 

. :· • replacing it with a ccquir~ of"serious and ooo-transitory'mcntal barm-(which netil 001 be 

, P,.ol!!_ogeil)." N~cl-JUst, as_with th~ definition. iii. !fie ami-io~o atatuic, the d~~n in· 

· .. · 

, . .. ,,· 

:, ,.;.;~ 

oiNz-.. .,. "'*"'Pie of a·- of harm thalAns wWw. the cicbai.ise ddiood tam of."Jerioos )lllylical polo,.· 

' sufl'criJli." "SeriousPbJ.stCalabusc: tha:doremaybellclpCilflo~uy~!soowl>ioO>Crapatticulu ' catocorY ofpll)'licol,hamllills wiibin lhcdcfiJ>iti9.oof'J!'DOO$physical pah>!l<sufti:rizlg." We do ootllodjt • • • idevanl).l<zo.~.uthc1<tm"suiourpbxUoal~jsdiloC:tcdat~"""&'<)'ofllODdllct dloldocsqo<ocau 

· 

~ 

iutlle!=IA'•~""- 'l'b!>-,ord"ab<ooo"iJI!liillela J>OU=ofcoodoc:tor-~~­

"""'thOiotalded ialimY is.~ sov=. die"""'._. maybe atisfiid ~"'!'h·-·u . ·. . _., "'"""'"'_..,~--. q., wuw~ 171irdmt3 ~CI1....,.•tS (deWUIIg- ... . , •imprq>a «iDi:orm:l ...,,.;app~i<at!ociroa_,:.,;\i..s....-"J,iOd-4ootteodto -justiliocl .-. 

· .pb]si<:al....- While ibe aA uses .some ·com;a;~ ~ U>at iiM>Jve pbysi<al coiltliCirihllll:.dclah>cc, 

•. ,tboOIA!IasSIIUddloltJ#*"'...i:dtou tlleddiiooc'a ·· • andiOrqaillbiuaamoa,,.s.u..,·-.ld J'ootl>C u\Qiwlthm-ty or~C.ose~~.,.m:IIUidl~ tocoostirutedliiJ'Iiol · .. 

~im;iiec!.~tbo-·,..,.;.,.,Pt>ysi<allliusc.." . ... . . •. : 

- . ~· 

. ·. (b)(1) -

.'" · ' (b )(3~ NatSecAct --_] · 

. '•: •. 

l:J0277 
137 


628RIZZO22.eps

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the CIT offo.ue requires one of four predieate acts or conditions to .-It in or cause mental 

harm, and only then is it appropriate to evaluate whether that harm is "serious and non-

.tfllliSitory." Su S«<ion zuo Opinion at 24-26. Three of those predieate acts or conditions are not implicated hete. Above, we have concluded that none of the techniques involves tho 

· imposition of"serious pbysieal pain or suffering." The.technlques at issue here also do not 

involve the "threat of imminent deatb," see supra at n.l7, the threatened inOiction of serious 

pby~ieal pain or sufft.ring. or threats of any kind to persoiJ.! ollier than the detainee." 

Tlle only predicate act tbat requires a more cxtetlded analysis here i3 "the admioistnltlon 

or application • . . of mind altering substances 0r other prOcedures ealculated to disrupt 

profoundly the senses or the personality." The text of this predieate act is the same as in 18 

u.s.c. § 2340{2)(B). 

. In our Section 2140 Opinion, we placed substantif.l weighton the requirement that $he 

proeedure "disrupt profoundly the seoses," explaining how the requirement limits the soope of 

1he p~ieate act to particularly extreme me'!lll C:onditiortS. We-aelcnowledged, however, that a 

l)allucination could constitute. profound disruption of the seoses, if ofsuffieicot duration. ld 

· at 39. ~cvertheless, it is oot enough that a Profound disruption of the senses 111(1)1 occur dUring 

the application of aproeedure. lnst!'ld, the statute requires that the proeeclure be "ca/culatod" to 

C.Use a profound disruption of the scnseo. See Web.stu's Third lnt'l Dictionary at 315 (de6ning 

"ca1culated" as "planned or contrived so a. to aa:omplish a purpose or to achieve an effect: 

thought out in advance") ( cmphasjs .added). This rocjuitcment does not license indifference to 

oonditions·that are very likely to materialize. But we cao rely on the CIA's reactions to 

conditions that may occur to discern that a proeeclure was oot"ealculated" to brjog about a 

proscribed resulL CIA medical persooncl would regularly monitor the detain.., accordirig to 

aoeepted medical praetiec·and woUld discontinue the technique should any hallucinatioos be 

" ll Is true tlw the .r...-mlllllikdt to beawarcoCtbc llmllarlons imj>osod ~·CIA ~-

.adl'a!Dtl." =~~~...=,~~,!!:=~==« That the deaineel!lll' harbarsacbfan;.lloweYcr,.does DOt-thattbe CIA immopto" 11M issued 

ttp~ "1!>mL" fbcf<dml OOWI$·----.. ~ ._ .. ':Gimt' ooly ifthCriasooable . · ciboetvcrwouldr<ganlhls-ordcodsasa"iaiout.........,.,..ofu'imadioorolnlllctboclllybana" Unitd 

• St4lu v. MltcloCn, 812 1;.241.250, 1255 (Yth Or. 1987);..,. olio U.~ &4tu v.·Zayr</. 314 1'.3<1130, )36 (Jdeir. 

2004) (,....): U.rred Slolu v. Sovle, 1221'3<! 122, l2S C1d Ot .• l997) (fUnbcr roquirlois a -.,g that, "011 (tbe 

• thttat's] taoeandht~~towbicbitismade, itioso .. cquivoCal, """'~ ~eand 

"''''ffie as to4hc-~ ariOOOttYq a pavi!y (jfpurpooeandlmmillmt~ ofc:aocuti<mi (u>rana!quoiation~iu-N>~Iy• ~ .. ~LIN§ ..Sl·(l5tho<l. 1996)(10~ftlin:o~ 

."tbo!C<I IJ~-tbevlalmftor<dfilrhls~or~bowuinc~an&or I>Qt~llc wasa=allylo 

~." prcsumabl]dDclO tbeiata>tia>of.the-..,to c:any ouf'tbiproocn"bCd -~ CIA ~do DOt 

.. tdl the-that. abscorcocperotioO; they will iollidc:oodOcttbpwooJ~ rise tO the~ ci~Strioos jiJysial 

paht~sulf~" Noodothcy.,._bl~piJJsical.icuthllimlic:olethll"lirioos ~ ....... . 

~.,.;n- Pm!wllldKeetoo.1!t<LaWoff~§ 10,1144 (511lo<l.1984)(ilcdooable...,....abol 

threfts OCQlt"Wbcn tbe dd<D6.IIil pa>:IIU a-ill.aodla - ... or m-os to IDticaJc<hat ilm;oy 

l.mmccUatdy betliadc l<o.dY rorvse")'··AhseOtlliysucb~-ooodoc:l# U..CIA. lhiideuiDoe'•perOt • ~over~ ml.!llt~""" ..wJd DOt ~Jbcl<galddil>i!loo q~-um._• . . .. 

.... UJ0278 
138 


628RIZZO23.eps

;. 

'. 

(b)(1) 

(b)(3) NatSecAct T81 Ol!OJ If[ 

diagnosed. Sucb prec3Utions demoosmte that the tecbnique would not be "ealtulated" to 

produ~ ueinatio s?1 • 

Wbetl>er or not a hallucination of the duration at issue hete were to constitute a profound 

disruption of the senses, we have concluded that the hallucination would not be looa enough to 

eonstiMe "prolonged menw hJrm" under the defini,ion of"severe menw pain or suffering" in 

· the anti-tOitl!fC statute. Section 2340 Opinion at 39-40. The adjustment to this definition i~ the 

CIT O~eplacing "prolonged mental harm" with "serious and norHtansitory mental harm 

(whicb need not !>C proJo'nged)"-'-does not reacb the sleep deprivation·tecbrllque. The 

m<>di.6cation is a refocusing of the definiti~n on severity-some eombinuion of du111tion l!'d 

intensity-instead of its prior reliance on du111tion alone. The new test still excludes meoW 

harni that is "transitory." Tllus. mental harm'that is "marked by the quality of passing away," is 

"of brief duration;" or "l~(s) for minutes or seconds," su Webster's Third lnt'l Dictionary at 

244849, cannOt qualily as "seri04S mental pain 'or suffering," Also relevant is the text's 

negation of a requlrtment that the mental harm be •prolonged." 18 U.S.C.'.§ 244 (dX~)(E) 

(providing that the ll)entalhatm that would constitute "serious physical 'Pain <ir sufferirig" "need 

oot be prolonged"). · 

These adjUSimeOis, bow~, do oot eliminate the inquiry into the duration of mental 

liarm. Instead, th~ en: offense separ&tely requires that the m~tal barm be "serious." As we 

explained above. the term .. seriousn does considerable work in this con ~ as·it seeks-to 

. describe conduct that oonstittite$ a grave breacb of Cemmon Article 3-Cooduct that is 

·universally condemned. Tbe requirement !hat the mental harm be "serious~ directs us to 

appraise-the.totality of the Wc:umS\ances. Mental bann that is particularly intense need not be 

long·lastiJ\g lobe serious. Conversely, mental harm tha~ ooee l1lCel.iil8. minimum level of 

intensity, is nOI'as extreme would be ooosidered "serious" ooly if it oootirrued for a tong perios! 

of lime. Read togetiler, mental bann certainly "need not t;e ptQiooaed" in ali ciraunstaoces to 

ooosti!>tte "serious menw pain or sulferio&" but <:ertaio milder forms of meatal effects wou1a .need to be of a significaot ·d'!f&tion to be oonsidered "serious." For the aame reasons that the 

jbott-lived hallucinations and othct fotrns of dimi.riished cognitive functioning that may occur 

with exleo!Jed lack of sleep woitld oot be •slgni.6caoi unpairmeins of .. meotal faculty," sucb 

mental oon4iti~ also WOUld riot expocted,io result j.o "serious nieotal harm." Again. aucial 

to O)n' ODalysisJs ~l C,IA periOnnel will intervene sh.ou.ld any ballucinatlons or-significaot 

cjeblines iA cognitive funaiooingbeo6served and tjW aoy poteolial)>allueinatioos or <Xhetfonn$ 

of dimiDlsbed cognitive fulietioqing subSide quickly wben rest is' permitted. : ··,-. . . : ... 

(. 

,. . !b)('i> : . · (bX3) NatsecAct 

.·· ( 002?$ 
139 


628RIZZO24.eps

I. 

-. 

) 

(b){1) 

(b)(3) Na!SecAct wbn llE7'me---

c 

~ 

The third oflense at i"SSue is "intentionally causing serious bodily injury." I 8 U.S. C. 

§ W l(dXI)(F). The Act defines the SBI offense as follows: "The a<:1 of a person who 

;ote,ntional!y causes, oroonspires or attempts to ca~ serious bodily injury to one or more 

persons, iocluaing bwful combat8lltS, in violation of the law ofwar.'.n The War Crimes Act 

borrows the definition of"serious bodily injuiy'' directly fu>m the fedcnl asS&lllt statute, 18 

U.S.C. § 113. &< 18 U.S. C.§ Z441(dX2)(B). The fedcnl assauh statute, in tom, inoorporates 

by reference the definition of"serious bodily injury" in the fedcnl anti-tampering statute. &e 18 

u.S. C.§ 113(b)(2). The.anti-lllmpering m~ stattS that: 

{T]he. term "$Cfious bodily injury" means bodily injury which involves-

(A) a s..bstantial risk of death; 

(B) extreme physical pain; 

(C) protracted and obvious disfigurement; or • 

(D) prottaeted lo"SS or impairment of the functions of a bodily member, 

organ. or meriiJIJ filculty. · 

18 US. C. § 1365(bX3). Thteeoftbcse rtoultiog effects are plainly not appijeable to the 

. tecbniques under consi.deratiOn here. As explained above, the tecbniques involve neither an 

.. appreciably elevated risk of death, much less a substAntial risk, nor the imposition of extreme 

physical pain, n9r ": di;sfigurement of any kind. Indeed; no technique is administered until 

medical jiersonneJ have determined that there·is DO medical oonlraindieation tO the use of the 

tecbnique with thai pa!licular detainee. For reasons we explain below, sleep deprivation also does not I~ to "the protnlcted loss or impairment of the functions of a bodily member, organ. 

or mentAl faCility." 

• • . tbis Ollii'C tW analyzed a similar temi in the C01l1.e;rt of the s\eep ~eprivation tecbnique 

before. For eotam.ple, we determined that the mild ballucinations that may occur during eortended 

sleep depJiVation arc not "prolonged. • Seal<m 2~40 ·Opil!fon at40. Both tl!~ term "prolo!!8¢d" 

.· and the term~protraded" require that the condition persist fO< a significant duration. We--e 

·, · rductaht topiripoiot the amount of lime a condition must·last robe "prolOnged. "·Neveitheless, 

' • · ;. jo<licial doo...mmations m~ b.vm ba4 been "proo(jllged~ ·under a ~ar definition of ' 

torture Ui the Torture Victim l'rotectioo ht, 28 u.S. c. §··1350 note, ioYOlved meDfal effects, · 

.·. · ... · including post-ttaUmacie strw.s}ltidriime, thai bad ~ for months "oc,.Drs after the events 

!o question.. Se_oMehin(IVic v. Y11Ckovtc, 198 R Supp. 2d.l322,. 1.346(ND. Ga. 2002)(retyingoo 

the fact that"~ plaintiff oontinucs 19 suffer long-termjnycholqgieat.barm as a resuh of the 

ordeaJs they suffered". years afUr ~alleged t6rturc"Ui.dc:temtioing that the plainti~ cxp<;rieneed. : 

;.:. .. J 

<i:.Xi>·. 

; .!'f016¥"" mental~ ?;~· v. ~ft. 270 F. Supp:71 ~96, 601-02 (E.D: Pa. 2003) . . . 

· ' •Th.SBiaO' .... r'ocjujttsu'uclcmoottliatlboCXllldUctlio.:U.~ot'lbo lawofwar." n.ez..,. · beiWn matttistba! llirs~~ beyQad lboream.ofihO"SBiotfcuoc. U; for -1<. • ~al"ail • 

.>miedforco~COIIlbola!it~-to coooe~boililyiujurjoontbcbal\l<fi<!<J~~· · I<Bi-~lllJopcruloos. tbc"SB.Iafli:DScwouldiiOt,aJlllll'. -llieiQ>positi9QOc"serioosbodliY ~nnlboso · inQJSIOdyili-w.i~ .... IO.,..,...,teseapc, woUld ajsoDOt..mtatolbolawoCwar. su.~g. . . GPW,ut.42. • . : ·. ·• . · • ·' . • · _ •. 

. \." · .. . , ; '(b)(3) NAtSecAct 24 UJ0280 
140 


628RIZZO25.eps

' (b)(1) 

(b)(3) NatSeCAct 

) 

.. ;

··:.J .' 

(tio1ding that 'Victim suffered "prolonged menu.Jiwm" when be was forcibly drugged and 

threatened with death over a Period of four yean)." By oo.;trast, at least one court has held that 

the-roental traum.a tliat OCQJtS o.ver the oour<e of one day docs not constitute "prolonged menta] 

haim." VilledD Aldana v. Frulr CXI Mont• Produ~. Inc., 305 F. Silpp. 2d 1285, 1294-95 (S.D. 

FIL 2003) (holding that l"'fSSDS wbo were.beJd at gunpoint overniglrt and were threatened with 

· dealh,throughout, but who did not allegemeotal hatm extending beyOnd that period of time, had 

not suffered "prolonged'mental harm" under the TVPA), Decision$ interpreting "serious bodily 

injury" under J8 U.S.C. § 136S(b)(J) embraoe this interpreUttion. SM United Slates v. SpiMIIi, 

: '352 F:3d 4~. 59 (2d Cir. 2003) (eliplainiog that oowts have looked to whether victims "have 

. iufrered from lasting psychological debilitation" persisting ICing after a tlaWD3tie physical injury 

in determinillg whether a "ptotncted impairment" has OCQITred); Unittd States v. Guy, 340 F.Jd 

·655 (Stb Cir. 2003) (holding that persistenoeofpnst-ttoi.matic streij syndrome rnorethan one 

year aft.er rape ooostituted a ."protract6d impairment of the function.of a . •• mentAl lilculty"); 

United SJ,ate.sv. Lowt, 145 F.Jd 45, SJ(Jst Cir. 1998) (looking to psychological care ten months 

· after an incident as evidenoe of a "pro<racted impoilllltilt''). U1 the absence of professional 

psychological caro in the months and· yean after an incidenLcausing bodily injury. oourts bave 

. on occasion turned away claims that even extremely violent acts caused a "protrtcted . 

·impliinnent of the function of a . .• menta] faculty." Seg, e.g., Unittd Swtes v. Rivera, 83 F.3d 

• 542, 548 (lsi Cir. 1996) (ovenuming sentencing ~cnt based on a "ptotracted 

impairment" when victim bad not sought COW>Seling in the year following incident). Thus, 

whether medical professionals have diosnos:Od and treated such. oonilition. after these 

ieduiiques have been applied, is cerUtinly relevant to delermining whether a protnlcted 

impairment"?! a mental faculty has oe<:urred."' · · 

• (Jive.u the CIA's 96-hour time limit on continuous steep· deprivation, the hours lietweeo 

Y,.llen these inCotaJ cooditioos could be expected to d.Vc(op and when they could become of a 

se)'Qity that CIA. personnel u:munat~ the teebnique would not ·be ot: sufficient duration to satistY the requirement that the impairment be •pmtrai:ted.- This conclusion is rcinforoed by the · 

. .'medical evidence indicatillg !pat such condition> subside with one night .of notmal sleep. 

· . "w. ~~ave DOOCCO$loiliD this opioi.;, .. ~~tbelatti>tio.i~lin11icticoorpos~.ua....;c · :.ab..,.idrom.Wooldviolalclhb$81olfcasc. aA·a--wllhlbo.lhb:l1""'""-withwbomcalucal 

.tccboiqucs have beeo.,.... ill~ Post. as wdlu iafonDidoD ~ mi1i11<J. SlliO!!Dinln& suggest lllll'odlba; the 

sleepclcpmarioo, ~ D«IID)' of.thcodl!"sb:-tedmiqQes, is. likely to~ post<n1l!Diilcsyndrcmc. CIAriicdicOJ pcooomd baveowDlncd lbcsC-ror sigosotpoot-tJO.Ulm!ic....., S)'Jidrome; ODd 

nooed'ohe cldain= tw, beeo ~ <o suffer li'om 0. • . . · • · . 

: ' ·(6)(1) . 

•. · :Cb)!Jl NatS9CAct 25 
141 


628RIZZO26.eps

(b)(1) 

(b)(3) NatSecAct mnsscnm[_ ----..J -~ ~ 

) 

.... 

D . 

. Our analysis orthe War Crimes Aa thus far h;ls focused pn whether~ application ofa 

proposed interrogation teehni<Lue-in particular, wended sleep deprivatioo-cteatea physical or 

mental conditiOn$ that cto$$ the specific thresholds establi$bed jn the fu;t.. We bave addressed 

questions of combined U$0 before in the context of tho anti·torture Slatute, and concluded there 

· that the combined.= of the sQ< teehniques at.is$ue here dia not'result in the iinposition. of 

"extreme physical pain." Memorandum for John A. R.lzi<l, Senior Deputy General Counsel, CeniraJ Intelligence Agency, from Steven G. Bradbury, Principal Deputy A$$istant Attorney 

General, Office ofLegal Counsel, h : Application of /8 U.S. C. §§ 1UIJ.~J40A to the Combineil 

. Use of Certain Techniques in the Interrogation of High V.alue a/ Qoeda Detainees (May 10, 

2005). This conclusion is impoitant here beeau$0 "extreme physical pain" is the specified pain 

thtmold for the OT offense and the SBI offense, in addition to the tonure offense. See 18 

U.S. C. §§ 2~4t(d)(2)(DX2), 113(bX2)(li). With regord to deroents of the War Crimes Act 

conceining ''Impairments," CIA observations of ihe eombined· use of..!bese teebniques do not 

SU88est !hat the addition of other techniques during the application of extended sleep deprivation 

would acceletate or aagravate the cognitive diminishment associated with the teehnique so as ~0 

reach the specified tbre$belds ib the CiT and SBI offen~ Given the particularized elements set 

forth iD the War Crimes Ad, the combined use oftbeSix techniques now proposed by tbe CIA ·Would not violate the Act. · · 

E. 

The War Crimes Act addresses conduct that i.1 Universally condemned and that 

constitutes grave breaches of Commbn ¥c1e 3. Co~ weted the statute to declare our 

Nation's commitment to those Conventions and to·pro..O.de our pCr.onnel with clarity as to the 

-boundari.es of the eriminaJ concluct. proscribed under Common Article 3 of the .Geo.Va 

Conventions. For the ,..;,.(!0$ j)iseussed abo:'< e. ""' conclude that the six techniques proposed for 

·use by_ the CIA, wben used in ~rdanee with their ~mpanying liinitationt and safeguar~s, do 

.. D()t violate the sp<!'ific offenses ~lished by the War C;r:ime! Ad. 

.. ·m 

' .F.o< tbe·reaso:.S discUssed in tbiS:.Pan, the propo~ ~gatioi>_toetuUques also• are 

consistent with the-Detainee Tieatinent ACt. · · . . < 

A. · . . . . The QT ~requites the uJ!iicd States 10 cX>mply with cerUln oonstitu'tiona) staodar!is'in the 

~of all pe=ns'in tbecustodyoroontrol ofiheUnited Stat0s,;reg11!1lless.ofthe 

',, llatio~oftlle~norihe:pbYsic:a!'~Oti:of~dc:tcrui~n. TbeDTAprovidesthai"(n]o 

• ill<fividu» in ~'<"StOdy-orUnder the phY"!cal COntrol of !lie United. Stat<';'~·~ 

· · ··. · i.gardless of ~o~ or pbysi_C8llocatioo, shall be subject' !A? crud, inhunian, or ~cling 

. . . • . : · ;frcalmept, or puniSfm1Cill. M J>T~§; I<io3(a) .. '):he ACt ilef!ll.S ~cru,Cl, ~man.. or' degrading 

:.tt(llliiern or~hmenr. as fol(ows: . · · · · · , : · · 

... ) . . ... )~) ... 

(bX3) NatSecA7_1 

. : 

. . . _'isr • ·'if£11._ __ ~-~-.J 

26 "l00282 
142 


628RIZZO27.eps

(b)(f) 

(b X3) NatSecAct 

---1 

J 

... · 

.• 

In this se<:tion, the term "cruel, inbJman, or degrading lteatment or punishment" 

means the cruel, unusual, and inhumane treaunent or punishment prohibited by 

the fifth, Eighth, and FO<Jtteenth Amendmenl$10 the Constitution of the United 

States, as defioed in the United Sutes Re<ervations: Declanuions and 

Qnd~dings to the United Natioos Convcntioo Asainst Torture aod Other 

Forms of Crue~ Inhuman or Degrading Treatment or Punishment done at New 

York, December 10, 1984. 

'·DTA § 140J(d)." Taken as a whole, the O'fA imposes a statuto<)' requirement that the United 

S~ abide by the substantive eoct$litutionaJ standards anplicable to the United States under ilS 

reservation to Article 16 of the CAT in the treatment of dc;tainees, regardless oflocatioo or 

citizenship. 

The change in law brought about by the DT A is significant. By its owa t&ms, Article 16 

of.the CAT applies only in ·~emtory under [the) jurisdiction" of the signatory party. In addition, 

the eonslitu_liohal provisions inlloked in the Senate reservation to Article 16 generally do oot 

.apply ofthcir owti force to aliens oul$ide the tenitory of the·Uoited Swes. Su Johnson v. 

Eisentrager; 339 U,S. 763. 782 (1950); Unittd SIIJfes v. VertiJJge>-Urquidez, 494 U.S. 259, 269 

(1990); .-<alto United Staks v. Be/mom, 301 U.S. 324, 332 (1937); United SIIJfesv. CUTits.· 

Wright Export <;orp., 299 U.S. 304, 318 ( 1936). Thus, before the enactment of the DT A, United 

SIJilesperooooct were not legally required tQ follow these conStitutional standards oulSide the 

tenitory of the' United States as-to aliens. Nevertheless, even before the DTA,.it was the potiey 

of the United Swes to avoid cruel,.inburoan, or desTadiog treatmtll1, within the meaning of the 

.'U.S. ~lion to-;.nicle 16 of the CAT, ofanydeWneeio U.S. CU$1ody, regardless9flocatioo 

or ~tionalil}'. &o supra at n.-1. 'The purpose of the DTA was to ondify this policy into stall!' e. 

B. 

AltJ!ougb United States obligatiOilSund..- Atticle·l6 extend to "'I!<> cruel, unusual and 

Jn!nil'l!ane lteatrneot or punishment prolul>ited by the Fifth, Els!>th, and/or Fourteenth 

Amendments to the Coostitu!ion of the United StJiles," only the Fifth Amendment is directly 

·1-e'levant bt.:e. ~ Fowteeoth Amendment proVides, in rele\!ant part: "No. State shall • . . . 

,.t"P,iive any person of life; bberiy; or property, withO<J\ due process oflaW:~ (Emphasis added.} 

: 'l_'bJ$~0Qdment does not opPIY to aetioos·laken by-the l'edtial Goveroment. Su. e.g., San 

27 rooz~ta 
143 


628RIZZO28.eps

(b)(1) 

(b),(3) NatSecAct 

) .. 

Frondsco Arts & Athkfics, Inc. v. Unite</ States Olympic Comm., 483 U.S. 522, 542 n.21 

(1987);.8<>111~·· Shmpt:, 347 u.s. 497,498-99 (1954). 

The Eighth·Amendment prohibits the inlliction of"CtUel and unusual punishments." A$ 

the Supreme Coort repeatedly (las bcld, the Eighth Amendment does not apply until there has 

been a "formal adjudication ofguiiL" Su Bellv. Wolfish, 441 U.S. 520,535 n.l6 (1979); 

Ingraham v. Wright, 430 U.S. 65 I, 671 n.40 (1971); see alSo In re Guanl4namo V.tainee Oues, 

355 F, Supp. 2d 443, 480 (D.D.C. 2005) (diJmissing dt!&noes' Eighth Amendment claims ~US¢ 'the Eighth Alucndu\CUlllj)pfi~ ouly ·..na mt iudividual i:s oouvicted or. crime''). n.e limited applicsbility of the Eighth Amendment under the ~ervati9n to Article 16 was expressly 

recognized by the Senate and the Executive Branch during the CAT ratification deliberations: 

The Eighth Amendment prohibition of CtUel and unusual punishment is, oflhe 

lhree [cOnstitUtional provisions cited in the Senate ~ervation], the mostlimitec! 

in scope, as !his amendment ·has consistctllly been interpreted as protecting only 

. "those convicted of Crimes.· Ingraham v. Wrigh~ 430 S. 651,664 (1977). The 

Eighth Amendment does; however, alford protection against torture and illtreatment of penons in prison and simitU sitUations of crimii:al punishnren~ 

SulllJlllUY !"'d Analysis of the Convention Aglilnst Torture .:0d ()the( Cruel, l,nbuman or 

[)esrading Treatment or Punishment, inS. Tre.ty Doc. No. 100-20, 019 (emphasis ad4ed) 

("Executive Brmteh Summary.and Ar~a/yds of 1M CAT'). Because none of the high value 

detainees on whom the CIA might u~ ~ iljterrogation techniques has been oonvicted of 

any crime in the United States, !he substamive requiJ:cmenl$ of the Eighth· Ametldmcnt arc not 

tlirectly relevant bere. 21 • . • • 

The Due Process Cbus.e of.the Fifth Amendmeof forbids !he deprivation of"life, Uberty, 

or property wi!hout due p~ oflew." Because the prohibitiOJ>S{)f!he DTA are directed 01 

"treatment or punishment." the~ docs ill'! require apptic;ation oftbe pnneedural aspects of the 

Fifth· AmOodment. l'be DTA provides for oompliance with the substantive prohibition against: 

"CtUcl, inhuinan, or d~ding ttcalmcnt or punishment" as defined by the United States 

. reservatioh.to Article 16:oftbc CAT. The-CAT recognizes such-. prohibition1o nefer to scrioos 

. ~ve acu approacli. but &).1 short o~ the to'nure . .elsew~ P,t~hi~i\~ by the CAT- Sa CAT ArL 16 (prohibiting "other cruel, iJJhwnan; or dcgradina trd.lment or punishinent which do 

not amoUJll to torture;. 'The term "trestment" therefore ref en to 'this prohibition pn substantive 

condutl. 'IlOilO. !he probess by which the Goveinment 'd<cideS'to imPose sucb-an outcome. .The 

·addition of the term "pUnisbment"likewisc ~ a foais on what actions. or omlssions are 

"Thisbaotll>sayibll~~..a..-.~oCno~iA~Ii.eDTArqpre' 

• · 

•. 

· 

coavidion 

witbollta11ialwoold inrcm>plioli .violalctbcDucl'roc:essa.- J11<!1i= <!be~ c-t Sec 

bu. Ullttd.ll'Gtuv. made dear tllolii'COIIDI;Ill......,..;ng Scolimo, 481 U.S:7)9, 11> 

746-<7(19S7); 

~ 

·. · ··· ~·f~v M<>is GcrouGIH"'J'., 463 US.ll9,':tM (I~); Wolfislo, 441 U.S_IiS3~36 &"1!-16.17. 

· ·' ,..._...~to"audaod~punlslm:n"1Jilll<t ~Eigb!b-wo mar""""- . •• . prilbibiJocl ~ Ulldertbc'!'lftb ~ Ofaiwoe, Cbe Coosoitulion docS DO! pobil>il Cbe lmpooilioa 

... =:"s~.!'!:;f::::-;;=~teadmlllislntMtUl~lawfu!IY<k:caiD<4. ~ o.g.,S..dl>tv, · 

• • r, • . 

'· . 

.. (b)(1) ·. 

(b)(3) NatSecAct 28 
144 


628RIZZO29.eps

(b)(1) 

(b)(3) NatSecAct 

":.· . 

ultimately effected on a d<Uineo-nol upon the pro<lC$$ for deciding 10 impose lhosc outcomes. Cf Guitiorru v. Ada, 528 U:S. 250,255 (2000) (obSCIVing lhatlhc inlesprculion of a slawtory 

1enn •lhat is capable of many meanings" is often influenoed by the won!.< lha1 sUrround it). . 

Moreover, lhe DTA ilSctfineludes extensive and dOtailcd provisions dictating the pro«s< to be 

afford~ ecruin deuinees in military custody. Su DTA § 140~. Congress's decision to specify 

detailed pi-oeedurcs applicable to particular d<Uioees canooi be reconciled wilh lhe notion lhat 

cheDTA W.S intended simultaneously to extend thp proc:t!lural protections of the Due Process_ 

Clause geo.erally io all detajneps btld by lhe United Statei. 

Ralher, the substantin component ofche Due Process Clause governs wba1 types of 

treatment, including what fomu-ofiruerrogation, are pennissible wilhout trial and eonvialon. 

This proposition is one that the Supreme Court confirmed as recently as 2003 in Ch<rvez v. 

Martinez, 538 U.S. 760 {2003). S.• id. 81 779-80, id. at 773 (plurality opinion); id. at 787 

(Stenns, J .. concurring in part and dissenting in part). Funhcr reinforcing Ibis principle; a 

. majority of the fustices reeogni>.cd that lhe Self-Incrimination Clause-instead of proscribing 

jlaitiCular means of interrogating suspecu-only prohibits coerced confessions fi:om being used 

to secure a crlm.inal CQ/fVfctlon. Su Chavez, 538 U.S. a1 769 (plurality opinion, joined by fout 

Justices) ("[M]ere eoen:ion does nOt violate the text ofche ·Self-Incrimination Clau!SC absent use 

of the compelled statement in a criminal ease_aga;I)SI the witness."); id. at 778 (Souter, J., 

eol~QJ11'ing in the judgrzient) (rejecting the notion of.a "stand-ilone vi9lation of the privilqte 

subject to compensation" whenever "the police obtain any involuntary self-incriminating 

~Cllt"l .. 

In this regard; substantive ·due process protecn against interrogation practices !hat 

"sho<:k() the Q>OSCicace. • Rochin v. Colifomia, 342 U.S. 165, 172 (!952); .u ais<J County of 

SacramenliJ v. {Awis, 523 U.S. 833,846 (1998} \"ro this end, for haifa century now webave 

!'J'Oketl, of the eognizable lenl of exccotive abuse of power .. lhat which sboclcs the 

conscience.")."' The sbocl<s-tho-<ooscieoc:e inqujry does not f(!CU$ on wbetber the interrogation 

was ~ve, which isthe relevant staiulard for whethet a statement would be admissible _in 

court. S..MaJ/qy v.Hogap. 378 U.S. I, 7 (1964) ("Under. (the Self-lnaimination Cl~),'tbe 

constitutional inquiry is oot ~the conduct of the ~e officer> in obiBining the-confession 

Wa:s·sbocking. but whether the eonlession wu-iicerand.voluntary.").· I.nstead;ihe "'relevant • 

_liberty is OO! fteedOI!l frimi u$v(ful ilitmogatioos but freedom fr.oni sevel'e b#tly or meiltal · bihD inflicted in the eowse-ohJ). iJ!temgation."' WllkDu v. May, ~72 f.2d 190; 195 (7th Cir. 

. 11189) (Posner,_J.). In or~ to cross !)>at "bi$h'~ J]lreshold ia lhe law c!Uoi:Ceinen~ c;ob!ClCl, !hUe 

M)JSl be ~misconduct'that a reasonable persoo woul<!_ fin~ so beyond the norm of~~perpolice 

T8F 81!81Wirl._ ____ ~-- • (b)(1.) 

. . ' ' (bl(3J Na\SeCACt 2? Ul0285 
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(b)(f) 

(bX3) NatSocAct rcnstsnw 

·:· ,. ' ·: ·· 

procedure as to shoclc the eonsc:ienc:e, and that is caleut&ted to induce not merdy moment&l)' fear 

· or anxiel)', but severe mental suffering." /d. 

A1l we discws in more d~l below, the "shoclcs the conscience" test requires a balancing 

of interests that leads to a more Oexible nandard than the inquiry into eoercion aod voluotariness 

that acc:Omparues t!Je introduction of ~tenients at a criminal trial, and the governmental interests 

at stake may V&l)' with the eonte:xt. The Supreme. Court bas long distinguished the government 

'interest in ordiD&l)'lawenforeement &oni the more eompelling interest in safeguarding national 

security. In 2001, the SUpreme Coon made this distill(;(.ion elear in the due proc;ess-eonte:xt: The 

government interest in detaining illegal, aliens is dilfer~t. the Court expJajned, when "appt[led] 

<IWt'Owly to a small segment of particularly dangerous individuals, say, suspected terrorists." 

Zadv)dczsv, Davis, 533 U.S. 678, 69t (2001}. This P.roposition is echoed in Fourth Amendment 

jurisprud~ as well, where "special needs, beyond the normal need for law enforcement," can 

. justify warraotless or even suspiciooless searebes. Verrronia School Dls.t. {'!Jv. Acton, 5JS U.S. 

646; 653 (1995). In this way, "the [Supreme] Court distinguishe(s] general crime control 

programs and those that have aoother partieulat purpose, such as procection of citiwu against 

special bawds Of protection of our borders." In re SeattdO>se, 3t0 F.3d 717, 74$.46-(l.'or. 

Intel. Surv. Q . Rev. 2002). Indeed, in one Fourth Amendmeor-case,-the Coon observed that 

while ii would not "sanction [automobile] stOps justified only by the general interest in crime 

· eontrOI," .a "roadbfoelc set up to thwart an imminent terrorist attaelc" would present an entirely 

clilfeient Constitutional question. Indianapolis v:Edm_orid, 531 U.S. 32, 44 (2000). 

c. 

Application of1hC "shoclcs the conscience" test is complicated by the t'act that there are 

relatively few cases in wbicb <;ourts have applied that test; and these cases involve contexts .and 

interests that differ sigltifican~y &om thoSe of the ClA.interrogatioo program: The CoUrt in 

County of Saatimenw v. lAwls emphasiud that there is •no calibrated yard stick" With wbicb to 

d~ '!"berber conduct sboclcs the conscience." 523 U.S. at 841. To the contrary, "[r]ules 

of due process are not •• . subject to mechanical application in un1luililiar territory." !d. at 850. 

A cWm that govemuienr conduct "shocks the C:onsciCoce." therefore, ;eciuires •an exact analysis 

. ;Of circu~ce.s.M ld. The Court !Jas exp ain~: · · 

Tho phfase [due proceSS of law] fortnUiates a ooncept less rigi_d and "'oro Ouid 

. )han those envisaged in other sPecific and pa:rticulf.r provisloos Qf the BiU.o.f ·Rights. ItS appliCation. is less a matter of'rule. A:sserted denial is to be tested by 

. . '·. an apprai~ of the totalitY of facts~ 4siveo case. .That. which ~y. in one 

setting. constitute a denial of fulldamental fa.irpess, Slloelcing to the unive.:ul 

. Sense of justice, may, in other cin:umstaoeis, and in light of other consid~oos, 

.fall sh~of sUch a denial; .'. . .. . · · • · . · . 

. ~.' .',- ·.: .. fd SO(~BOtt.rv.Brao/,316U 45s; 462(1942)) ~tsmV: Cftyo]Pian¢, 10 .. . , • F .Jd 21; 2<( (Sth Cir. 1995) ("It goes ~I saying~ in dctermipU>g w~er'lhe · 

<. • • 'consti;utiol)alline ba,s tieen crosse(~, tbe.'c:!aimed wtpllg niust be viewed· io the coDI!'XI in 'wbicb it 

· ~ "). In e,val~~:ttin8 the techniques in 'qiJCS!i.Qo, S)l~ Court~ thmfore 

. . •. )_. ·. · requires us to ";oa~ize the cin:umstaoecs'underlying the ClA interrogation program-limited to 

·;-. ii iiiWI~ . (b)(1) . 

(b)(~) NatSecAct l.\)0286· 
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(b)(3) NatSecAct 

high value. terrorist detain<:es. who possess intellig=critlcal to. the Global War on Terror-and 

!his clearly is not a oootext that has arisen under existill8 federal e'ourt Jlf'C!'Cdent. 

In any context, however. two general principles; are relevant for detennining whether 

executive condu~ "$hocks the conscience." The tC$1 requires first an inqulry into whether Lhe 

. conduct. is "arbitrary io the coostitu)ional sense," chat is, whether the conduct is proportiooale to 

lbe government Uit..-.,t involved. &o Lewis, 523 U.S. 81 846. Next, .the test n:quires 

toosideration of whether lbe conduct is objectively "egregious" or"outrageoos" in ~ght of 

t:i-adition41 cx-eootive l>cbaviof &Jld COJllcaupouu y pnu::t.ied.. &e ld at 847 o..S. We considu- Cl:lcl:r 

element io tum. 

]. 

Whether government conduct ''shocks the consciem:e" depends p,rjmarily on whether the 

r.Onduct is •a.rbitraiy in the constitutional seose." that is, whether it amowits to the .. exercise of 

power .witliout any reasonable justification in the suvico of a legitimate govemment8l 

Objective.". /d., 523 U.S. 81~6 (internal quolltioo mules omitfed): "[C)onduct intended to 

ipj~ in some way uojustifiabte by any government.interest is the sort of official acti9n most 

likely to rise to the oo=ien<c-shockiog level," altlurugh deliberate indifference to the risk of 

• in.fJ ieting such unjustifiable iojwy might also "shoclc the conscience." /d. 81 849-S 1. The 

':shoclcs the conscience" test therefore requires consideration of the justifications underlying such 

. ~nduct in deterln.ini.og its propriety. 

, .Thus, we mu.rt look to -wbether lbe rd~t conduct furthen a goverrunent interest, aud to 

lbe oatui-e and.importanee of that interest. Secaweihe Due Process Clause "lays down (no) ; .. 

categorical impetativ~" the Court has "repeatedly'bcld th8l the.Govemmcnt's regUlatnry iotereot 

·io c:ommuility safety C8Jl, in appropriate ci.i'almstaoc:es, outWeigh an iodividual'sliberty 

'interest." Urnted States v. Salerno, 481 U.S. 739, ~8 (1987). 

·, 'AJ Qaeda'$'demo~ted ability.!<> lauodi ~pbisticated ·8llacks causing~ casualties 

within the United S181eS and 'against-United Sl81es.ioterests worldwide and tl.e thre81to lbe 

.l:JoMcl s~ poset!'by aJ Qatida's contiouiug ef'l\>ltstn plan and to executesuc:hatU.cks 

. ~~tably implicate~ (!)Jtljlelli0g ~ent8l iftt~ of the highest order.'. '11 is 'o!ivious 

!i'!duoatllllAble' th8l oo govemmcnt8l interest is·mat:ccompe!1iog than the security of the . Na~oo.~ Haig v. Agu, 453, U.S. 280, ~07 (19.81) (cilitioos omitted); su also Salemo, 481 U.S. 

· ·· : '81' 748 (noting that "society,'s ioterest-is at its ptalc" "iil times ofwar.or insum:c:tioo"). The CIA 

· • . ioterrogation pto~a.nd, io particular, its use of enhineed ioterrogatjon techni'l\l.,....is •· 

iDteodtd to sa;ve this paramount ioterest by' ,producing substa.ntiaJ·quantities of otherWise 

una~lable iJ!telligence: The .CIA b~lievois that ibis program :'bas been a key !"830• wby a!-

• •. ,Qa'i!l:a bas OOJed to laun~ a 'spe(ucuiarattacl(io the West since J.l September~!."' 

: · .. ,' • . Metp<>rimdum for StM!l_G. B~~ci_P~ DWUIY AS$istaot AttoJ'Dey~'Oflico of · : . • ·Legal-Counsel, {(Qui _,CIIl~ Legal Group, tx:I CounlerUrrorist Ceotao, "' . .-· .. :. t#~~~~::"=l~~:=~::es~~~: 200S) . · 

· · ·sigrjifiCaot:·iJiiewgeoce·tbaf1he ~vommtoi has ilsed' io keep )he Nilion sife. As .!he Piesident 

_ ,). . · , ' toq;!aiiied. "by gyviog us infOrm'ation about t""!d'rist,pJW we rol!l~ ' no! get.aoyw_iiere elSe, ~ 

' .:· •. "-- •.· (~)(3} CJ~~i 'PB~ . ,M t __ ~ _j~ 

.. <h><,> t noi87 31 (b)(3)NatSecAct ~ 
147 


628RIZZO32.eps

) : 

(b)(1) 

.OTOI;IillllP"'craoliiPilln cr iir[l, =====]~ (b)(3) NatSecAct 

prognm baS saved innO<entlives.'' Address of the President, East Room, Wrute.House, 

September 6, 2006. 

For example, we understand that enhanoed interrogation techniques proved panieularly 

crucial in the intetrogations ofi<ha!id Sbaykb Muhammad and Abu Zubaydah. Be.fore the CIA 

used enhanced teclmiques in intetrogating Muhammad, be resisted giving any Wormation about 

· future allac.ks, simply warillng. "soon, you will know." As the President informed the Nation in 

· bis September 6th addre.ss. oliee enbaneed techniques were employed, Muhammad provided 

infonnati~n revealing the "Seeond Wavi;" a plot to crash a rujaek'ed airliner into the Library 

Tower in Los Angel..-tbe tallest building on the West Coast. Information obtained from 

Muhammad led to the eapture of inany of the al Qaeda operatives plaruiing the attack. 

lnterrogatioos of Zubaydah-again, once eobaneed techniques were employed-revealed two al 

Qaeda operatives ~Y in the United Stales and planning to destroy a hiSb rise apartment 

building and to detonate a radiological bomb in Wasrungton; D.C. The t~iques have revealed' 

plots to blow up the Brooklyn Bridge and to release mass biologieal.agents in our Nation's 

'argest cities. . · ' 

United Stales military and intelligence operations may' have degraded the capabilities of 

al Qaeda operatives to laupeb terrorist attaclcs, but intellig0oce indi~.S that al Qaeda remains a 

grave threat. In a speech last year, Osama bin Ladq~ boasted ofthe deadly bombings in '-"•don 

, and Madrid and .warn® Americans of his plans to launeh terrorist allac.ks in the United Stales:· 

The delay in similar operations Happening in America baS not beeh because of 

. &iiure to brea!c through y-our security m~res. '!be 9perations are ~der 

preparation and you will #e them In ymu homu the minute they are through with 

, preparations, Allah willing: 

.Quoted ot btip:ltwww.bro.itbart.eom!20061t9JDSF7SMR,HS.html (Jan..l9, 2006). In Au81!'( 

. · . 2006, British aulboritjeo foiled'a teaorist plot-planned by al Qa¢da-lhat intended 

. (11.)(1) • simultMeously, to deto~~ ~Ote than 14 de;body jets IJ!.Veling ac;ross1he Allantit and that 

(!>)(~)NatSe~trened ~kiJ_' morecl\•ilians tbanalQa~ ~~on ~tem~ 11, ~1. 

•. \ · · .. ·. · Intellig~j dicotes a ~of~ taTOrist .. nicinaactiviticis amooa ~ :· · ~v~ - _j , • , • .[ $U&&est that the o!lieials are •:Ware of an impending 

i · • · · · "major •nack" against ihe West. There is SO!Ile indi~on that tbes<i inajor inada will originote, 

as !be ioceot airliner pJot mel, 'from terrOrists based in the United I<illg~ 

·· ·.·L . . .. 

' ' 

'. _, · :iii , 

. co ~es: 

cllk1) , ··' 

(b)(3) NaiSecAi:! 

This intCilig~reinforces that thC-tbreot of terrorist a11acb j>osedby.alQaeda 

. . ::· . ' '. .. . .: . ; . 'lb)(ll • . . . .. · · · · · ' · (b)(3) NatSe~ct 

32 . Ul0288 
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In addition to demonstrating a compelling government interest of th<: hig)lesl order 

• underlying th<: useofth<: tedlniques, the CIA will apply several measures that will tailor til<: 

.JiroSr>m to that interest. The CIA in the past bas talceo and will continue to take specific 

preawtionJ to narrow the class .of individuals subject to enhaoced tecluUqucs. As desaibcd 

~careful screening procedures are in place to ensure that enhanced tecluUques will be used 

only in the interrogatioos of agents or members of al Qaeda or its affiliates who tre reasonably 

believed to ix>sscss oitical intelligence that con be used to prevent furore terrorist attaclcs against 

the United States and its interests. The fact ~ enhanced tecluUques ha~ been used to date in 

the interrogatioa$ of only 30 lligh value detainees out of the 9~ detainees who, at various ti)nes, 

· ha~ been in CIA custody demonstrates this selectivity. This interrogation proSJ= is oot a 

.dr8gnet for suspected terrorists who might possess helpful information. 

Before enhanced techniques ue used, th<: ClA will attempt simple questioning. Thus, 

erthanceci tecluUques would be used only when the D~or of the CIA considers them necessary 

because a high value terrorist.is withholdio'g or manipul•ting critical intelligence, a< there is 

iri.sufficient time to try other t¢0hniques lO obtain such intelligence. Once approved, enhan~ 

techniques would be used only as less harsh tecluUques &.il or as interrogators run out of time in 

th<: faoe of an imminent threat, ·so that it would be unlikely that a detainee would. he subjected to 

ma<e duress than is reasonably necessary to d.icit the information sought ·The enhan~ 

techniques, in ·other words, ue.not ihe first option for CIA iaturogators confronted even with a 

high value detainee. These procedures wger th<: lechniques on situations where the potential for 

saving.the Jives of innoctllt persons is the greatest. 

As important as catel\IUy reslri<)ling th<: number aud =pe of interrogations ue the 

safegiltrds the CIA will etl!ploy to mitigate their impi<)l on the d~ ind the care with which 

thc.C!A chose these techniques.. The CIA has determined that th<: six tecluUques we discuss 

herem ue the minimum necessary·tomaintoin an effective progrannlesigned to Qbl!in the moSt valua.bl.-intelligence pqssesse<!. by aJ Qaeda operatives. The 'CIA interrogation tca'm an.d medical 

• personnel would review the d~nee:s .coqdition l!«h befofe a.n.d during interrogation, ~g 

• tbattcchniqueswiU not be used if there ls any-reason to belie~ their use would cauoctbe' 

· • · · · : · ~Ciainee significaut in ental or physical harm. Moreover, ~ these tcc;bniques were~ 

· .· from the mililary's s,ERB ~ the. impact oft~ques Closely ~blibg thosc. proposed 

.. . • ·, 'by the .ciA~ been thesupject ofextensiye mcd\cal $1\ldies. 1!ach of these techniques also has 

•. ·:~ ~played earlier in the CIA program, and the CIA DOW J;!as iis experience with thoio .. d~, includ.illg Jong-term medical 1119 P$)'chological obsctVal,tons, .-. an additiooal. · 

. ~irieal basis for tailoring this narrowly draWn prognnl. :These detailed procedlltts, !IJid . reliance .on historical evidcn~ rcllec:C a limited '011<1 diftct focus IQ further a Critical 

.;. 

. . go~ental interest, while at the same time eliminating any unnecessaqi harm 10 detainees. In 

: .. · tbi:' ~n~ ~ ~qucs_.are not·~~ in th~ constitutional ~" 

' ·. z.. . · .. · .. ·· . 

. .. . ·: '·. The substautive d~e procesS inquiry requires ~dcraiion of nOt only whether 

. .: · ·: can<lu~ i$ pi'l)p,Oitionate 19 the so;iv""'!DI'D' intcmi i,tiyolv'od, ~~~ ~<.:'th~ cooduct is • • > • consist~! with obJective standards of:col)t!uct. as m~recfbY, traditional execut!v~ bcba'(ior ,,). . . . .. "f. <i>ntemparary practjce .. In this "'sa;rd, the inquiry ~o~Cal Clement. Wbctber, . 

. ... . ''fiJ>!iiiaw( . •. (b)(1) . 

(b)(3) NatSecAct : 
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: 

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considered in light of"'an understanding of traditional exea:&tive behavior. of c;ontempora.ry 

practice, and of the SUndard.s of blame generally .applied to them," use of the enbwced 

interrogation 1echniques constitutes government bebavior that .. is so egregious, so outrageous, 

tbat it may fairly be said to shod<:ll>eoootemporary conscience." Lewis, 523 U.S. at8~7 n.8;ste 

also R«hin, 342 U.S. at 169("Words being.symbols do not SJ)C8k without a gloss. On the one 

hand the gloss may be !lie deposit of history, whereby a tenn gains technical content."). In 'this 

~oO. we.conside:r examples in six potentially relevant areas to d<;ermine the extent to wltieb 

those other areas may inform what kinds of actions would shock the conscience in the context of the CIA' program. 

In oonducti.ng the inquiry into wbcther the proj,osed interrogation techniques are 

. consistent with established standards of exeCutive ~nduct, we are assisted by our prior 

cOnclusion that the techniques do 001 violate the anti•torture statute and the War Crimes Act. 

Coaeress bas, through the federal erimi!Ullaw, prohibited ~ain "eg)'egious" and "outn.geous" 

&en. and the CIA does not propose to use techniques that would contra~ those standards. 

Certain methods of intetrogatjdg even high-ranking tetroris~ch as tortur&-may well violate 

iheDuc Process Clause, no m'atterhow viluable the infonnation sought. Yet none of the 

•. techniques at issue here, considered individually or in combination, oonstitu.tes torture, cruel or 

inhuman treatment, or the intentio!Ul infliction of serious bodily injury under United Stales law. 

See 18 U.S.C. §§ 2340, 2441. In considqing whether the proposed techniques are consistent 

witli traditional executive behavior and eonlempoi1ly practice, we therefore begin from the 

·premise that the proposed techniques are neither "arbilrary" as a constitutional mauu nor 

violations of.these federal criminal laws. · 

) We have not found examples oflnlditional executi9e behavior oi contemporary practice 

thai -would condemn an interrogation. program that furtheri .a vital government interest-in 

parti<:ular, the interest· in proteetillg United Sta~ citizens from catastrophic terrorist auacksand thai is carefully d.Signed to avoid unnecesaary or signific:&n\ ~ :ro the conuvy, we 

coocludc from tliese examples thai there is support within contemporux community standards 

for the ciA· interrogation program, as it bas been proposed. Indeed, the Military Commissions 

AcJ. itself was proposed, debated, and enicted in no small part on ll>e assumption thai it would 

. :. .. · ~low the ,CIA piognuino go 'forward. . . . . 

· · . .Oritltiary Criminal lnvesttgadoru. The Supreme Court b&..eda......:..S tho question 

· wliether Vlriol!S police interrogaiion p.rOCtiees ~.sboek the .ODsc;ienCc" and tbus vio a~e the F'aflli 

. Amendment in .lhe·contc.rt oftraditloJ!iJ erimiliaJ law enf9rcement. In Rochin V. <Aiifomia, 342 

U.S. 165 (1952), tbe-Courl reveised a.erimirial co~viction where the prosecution introduced 

evidence against the.defend&nl thai had been obtained by the forci.ble pwnping'ofthe defendant's 

stomaciL :fbe·Coutt's analysis focused on the brutality of the police. conduct at issue, especially 

the intrusion into 'the defendant's body: 

l,. ··:. . . Ul~y ~~ mto~priva~ ~ petitioner, the strul!8t~to-open his lljOUth 

and remove: what :Was there, the forcible exliaclion orilis stomach's conten'ts--

thiScourse~f~i.rJ8byagems·of~go~~itt)~tai.n~den~ is~nd ·to offend even bardened ~ensibilities. They are t'nelllOds too close 10 lhe l]lcli; and 

ti.e ~crew 10 p.eimit of co.nsti.tuti~~ itiff.eimiialiOO: · · ) .'. t · .... . · •. 

. . (bX1) :.- . ' ;' -~·. '(b)(3) NatSeCAct •• 
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~~ 

:, . .J 

/d. at 172. Likewise, in Willi~ v. Unftu States, 341 U.S. 97 (19Sl), the Cowt considered a 

conviction under a statute that criminalized depriving an individual of a cOnstitutional right 

under color of law. After identifying four suspects, the defendant used "brutal methods to obtain a confession from each of them. • /d. 11 98. 

A rubiSa hos;e, a pistol, a blunt i~men~ a.sash cord and ocher implemeni.S were 

used in the project. One man was forced to look 31 a bright tight for fifteen. 

minutes; when he was blinded. he was repeatedly hit with a .rubber hose and a 

sash eord and finally knocked to the Ooor. Another was knocked from a chair and 

bit in the stomach again and lgain. He was put back in the chair and the 

prooedure was repeated. One was backed asainst the 'Mill and jammed in the 

ehest with·a club. Each wis beaten, thre31ened, and.unmercifully punished for 

sever;al bows until he eonfessed. 

!d. at 98-99. The Coun cbaractetized this bNtal.cooduct as "tbe classic use of force to make a 

mao testify ogairul himSelf' and bad little 4iffieulty concluding that the victim had~ deprived 

ofbis rights under the Due Process Clause. /d. at 101.02 C'(W)bere police talce matters in their 

~wn bandS, seize victims, beat and pound them until they confess, there cannot be the slightest 

doubt that the potice have deprived the victim of a right under the Constitution."). Willimns is 

signiJ:ic:Mr because it ap~ to be the only Supreme Court case to declare an imenogatioo 

uneonstitutiooal where its fruits were never csed u evidence in a criminaJ trial .. 

In Chavez v. Martinez; sjs U.S. 760 (2003), the police bad questioQed the plaintif; a . 

gurishpt wounc! victim who was in sevae p~in and believed be was dying. Tbc plaintilf was ®t 

clwged, however, and 1m confession thus was never introduced against him in a criminal case. Tht>Supreme CoWl r~jected the plaintiff's Self-Incrimination Clause claim but remanded for 

coosideration of the I"!P''ity of the questioning under the substantive due prQCCSS standard. SU 

id, nm (opinion of.'f1lomas, f.);id. at 718~79 (~er,J, cons:wring in judgment) . 

. ~Y. the Cowt oonsid~ applying a potentially more restrictive standard lliao "shocks 

.l,he con>Cieoce"-:-« ~ Jbat would have categorically baited all "unusually coereM:~ 

· intenogltions. S.•ld. at 783, '1$8 (Stev~ i., ooocwring'in pail and dissenting in part) 

• (~bing the interroSation at issue as "torturoUs" and "acl~coxampleof.a vi?latioo of a 

- .oonstitutional ri,sht-il;lplicit in the conc;tpt of orderro'liberty"). ('mtemal quotation marla 

otiUttod);,id.,ot 7~{Kennedy; 1;, co~,jg in part and~ in P~) ("The Cotlnitution 

· · d<!C$ 1101 OCliJiileoance the offiCial imposition of ~!'l'epaih or pressure fot'pul'J)OSO$ of 

iotcrrogll,iioO: This is true whether the protection is found in' the Self-lncriminatioil ClauOe, the 

lli'oader gu&ral!tees of the Due ProcesS Clause, or both."}. N.ICI$1 fiveJussices, however, 

rejected Jbat p(oposition; the contcxt·speQfic nanu:e ofthe<lue ~inquiry iequited ~ the 

sapdarci<emain wbetho:r an inteno~oo is cOnsci.nc-boel<:ing; $ujd. ot 71+76 (Thomas; J., 

'•· joined by IWmquist, c)., 8IJ!I Scalia, l); id. at 719 (Soutcl', 1., concurring in the judgmeo~ 

. ·Jo(IiOd by Br~er;i.), . · · - • 

;: ,·.:. ·;: . ·~ •. The CIA pn;iram~s '!'uch less invasive and extrem~tban mocb oi'th~conduct iliat:tbe 

. · • SllJ!reti>eCourt_bas held to rai~ .Ub~vedllepi'OO<:ss eo~ co,ndu<:!-lbat bas geoentlly 

.:5 . ..1 ·, 

. <~)(1) 

iovi>fyed signi(i4i>1 hodilyintruston.(as inR<><;hin) or tht>inOi~on.of. O!' indilf~to, . -

~me paiJ>iod ~ering (p'io Willia;n~ and Chavez). tu J~gc Po5n~of~ Sev<;ntl) Circuil 

,··· · '(b)(3) Nal SecAct .C302.9i 35; 

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has'observed, the threshold defining police interrogations that C>Ceeod the bollnds of substantive 

due p~ is a "high" one, which require$ "OJiseonduct that a reasonable person WOIIId filf<f so 

,heyond the norm of proper. police, procedure as to shock the co.nscience, and that is calailated 10 

induce not merely momentary fear or anxiety; but severe mental suffering." Wi/J:ins, 812 f .2d 

at 19S. In contrast, and as di$CU$$CCI in detail btlow, the enhanced inteno8lllion techniques at 

issue here, if applied by lhe CIA i'n the manner deseribed in this memorandum, do DOl rise to that 

level of brutal and severe conduct. The interrogators in Williams chose weapow-clubs, butts·of 

guns, sash cords-<lesigned to inflit1 severe pain. While some of the techniques discussed herein 

in~oJve physocal contact, none of them will involve the usc of such weapons or Ute purposeful 

··infliction of extteme pain. As proposed by the CIA. none of these techniques involves tho 

indiscriminate infliction o( pain and sufferili& or amounts to efforts to '"wring confessions from 

thncruscd by force and violence." Williams, 3~ 1 U.S. at.l01..02. 

' Moreover, tlie goVCT1lment interest at issue in each of the cases discussed above waslhe 

·general Uiterest in law enforcement."' t government interest is strikingly different from what 

,is at stake in the coniC~'~ of the CIA progrilm: The pl))lc<:ti,on of the United States and ils 

.• interests against terrorist attacks that. as experience proves; may tesult in massive civilian 

casualties. Deriving an absolute standard of coriduct divorce<~ froln'COntext, as Cltavu 

d~o stnlt.S, i$ not the established application o£1he "sbc)Cics the conscience" test. Although 

none of the above cases q:pressly coodopes the .. iqwis that we consider lierein, oejtbei does 

an}' of them arise in the specill) ·contCJ<t of prot'ecting the Nation kom.arrJ1ed auacl< by a foreign 

enemy, and tllus collectively they do not provido evidence of an executive tr_aditioo directly • 

·applicable to the techniques we consider herO.,.. · · 

.·.; ) United Statts lvfilltary Doctrine. 'Ibe Unltod States Army ba.s codified procedures for 

,military intelligence intertOSl'tiOos in !lie~ Field Monual, On September 6; 2006, the •• ' 0 •• • • 

' ,. Wj 11~ .,.u an ""'"'PI• ¢ • prooocutioo. uoder'!bot isoowcodlfiod as t8 U:S.C. § 2A2, ~mobs 

,....., 

ita ~ 

becolnougbluodc< 

oO'cnse.w >iobldtbc

...,;op 2A2 

.coostitutiooal 

for ):lolicebeatiagollld~ons 

rip!sofiiiOChctwbilcac:dna 

iovolviDgChcC><CCSSive 

uoder oolorol!Jw, ~ 

aoeofforce, bot 

,. ·. 9'J'FIS;Ipplying...,;oo24lco.osUialllybavof"""""'""wlltth«d\Ovtoleot-""'"justifjod. Tolhisind, 

,· ''·::: -:' ~':'2&.~:-:=~:!,-::i;=:==.:.~d....t · •. · PattanlUI)' lJlslnlctioo8 ~003~ COwuofappcoll,'pankolotty'afi•l'lbcSupreaCCcult'sdlrificallooOCdw:' 

' ' ' 

,, ' "sllocl:stbcCOD>clcooc" stanclardloLew/s, -~olmodto wbe(bcrtbcoOoduclcould be'jmtifiod by. 

~~imm.t. ~• OJYcfL(m.&<*,lS2F.3d790,!!'7-98 (tCt> Cid998). , ' 

. ;. · '!'~Chc-l9l¢ofdCtentlcm'for~.,;,iliwta,; caft.--P.•P>Oes:~wdlasp.usuplloc:MJ • 

0. ~: . 

ooiuDicncnt.·Chc Supnme C>wt basbcl<l t!>ai -duo-~ n>qllirc"Sife~ti"'l(" tocl,udDoc :)doq~fcM,sbdla',cioCh41~11ldmodical<aJ0.", ....;~v /lmo<q, 5HJ.S.307,31S(I982), The!iil""'to 

pcwidesbdo...,.,.,-;;, most woWd fll"'im>a'bly "sbock tbcCOD>cit;ziO<." 'lbOQoun .... 

,DOI·,oonsX!irod~bediOr'tbc~ooolddqmtfntmtbls~~iuJ,imltc<f-,......., , 

pro~oc:tma tb.o Nalioo £rom plospodiYe t<:uOrut llld: Ne.onbdeu, ii Is iafor:Dia!iYo t111t both 1be o:lllditioos of 

· ~ .. ·w &d1itlcJ. .u ~ ror Job. NRi721i, A<:lin& GcoeqJ c::ou-t. ~ ~ . . ,· · t.pcy,froms..-G.Bradbcily,A¢>i~.AU9DICYGaicrol.QiliceofLegal,CcU!Jso!,A~of6w 

• : : • .'. ~" DdD/na -1c< ltJ CondiDOfUo[Ccnf-otCcttrol/~l<llipnanpcy ~If<>!' Fodlllla,IA 8,(AU&, 

'' • 

--

31. :!p06).ond1he~ ~-lier<iJI,'"' l>!frol170-'ll. """'* witll tbc"sooe'oooditions" 

' ' ' ' "-

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Oepanmeot ofDefeose issued a revised Army Field ManuJJ/2.-22.3 on Human Intelligence 

Collection Opentions. This revised .....;on, like its predecessor Army Fltld Manual 34-S2, lists 

a varieiy ofint=ogation tcc:hniques tbllt generally involve only verbol and emotional tactics. In 

\he "emotional love apprnacb, • for example, the interrogator might exploit the love a detainee 

feels for his fellow soldiers, and use thjs emotion to motivate the detainee to noopenr.e. Anny 

Fitld M(OIUa/ Z-22.1, at 8-9. Tbe interrogatot is advised to be "extremely careful tbllt he does 

not threaten or ooerte a source," as "conveyirig 4 tbrw migbt'be a violation of the [Uniform 

Code ofMilihlry Jusa;-r.,..):"' TheA.nny F'ii!ldMan'!DI Iimits intenovrion.-. to expre.-.~ly approved 

'tec.bDiques and, as a matter ofOepartmenfofOefensc policy; also explicitly prohibits eight .. 

teellniques: "(I) ForCing the detainee to be naked. perform sexual acts, or pose in a sexual 

manner; (2) Placing hoods or sacks ov.erthc head of a detainee, using duct lllpe over the eyes; 

(3) Applying beati.nss. electric shock, bums, or othet forms of physical pain; 

(4) 'Waterb6arding:' (S)Using miliwy working dogs: (6)1nducing hypothermia or heat injury: 

(7) Conducting mock executions; (8) Depriving the detainee of necessary food, water or medical 

care.• !d. at S-20: The prior Army Field Manual also· prohibited other t<ehn.iques such as "food 

deprivation" and "abnormal stoep deprivation." · · 

. • The ejgbteen approved tecllniques liSled in the Army Fltld Manual are dllfercnt from anc! • 10!$ stressful than thoS. under consideration here. The techniques proposed by the CIA ate not 

strictly vcibal or exploillltive of feelings. They do involve physical conll<:l and the imposition.of 

physical scnsatioDJ such as fatigue. The revised Army Field Munual, and the prior manual, tl!us 

would appel{ to provide some evidence of cont=y executive practice for military interros-tions. 

, ·While none of the six enbMced tecllniques propo~ by the CIA is expressly prohibited under 

\he eurrenfManual, two of the proposed tccbniqu...- "dietary manipulation" and •steep 

depriyation"- were proliioited in an uDJpCcified form by the prior Manual 

• Nevertlidess, we do not believe tbllt the prior Army Field Manual is disposjtive evidCI!C<! 

~or traditional executive behavior [and) of ~ntemporary practice" in the context of the CIA 

l'f'08t8!" for several reasoiu. Tbe prior manual was designed fur traditional armed conJiicls, 

. partieulatly cOnflicts governec~ by the Third(ieneva Convention, wblcb provides extensive . 

·· 'protec:tions for prisonets ofW..., including an expreSs prohibition of all forms of ooerci<>n. Su 

· · Army.FjoldMonual 34-SZ, at l·?.to·l-8;:.... also ld.lfiv-v (requiring intenogalions to-comply 

with. the ~·vi. Conventions and the Uoiform cOde of MilitAry JuStice); GPW Art. 17. Wtth 

IO$p9CIIO \hCse "'"'di.tiOnal conllicts, the prior manual,prnvided s~dl!rds to.bc.adminiltorecf 

generally by, miliary personnel without regard to the 'identity,,V)IIpe, or staiUS Of the d~ec. · 

.By c:Ontrast, al Qaeda.ttirorists subjCet to the CIA progiam wiU be unlawful enemy combatants, 

not prison en ofw,r. ·EVa! witliin thjs cliss of unlawful combalali!.S, the~ will be • 

· administered <>nly tiy tnined and experienced interrogalors who in twn wi)l:apply the tcc:hniques 

. •. only.t(!a subset ofbi8b value detainees. _Thus, the prior ~at directed at'exccuting gcoeral 

.. ": • .oliligations of aJI military personnel that would ~se in traditional' &oned conflicts J>etwccn • · . ·. ucifollll()C! amues is nOt controllini evidence of bow 1\igh Value; unlaWful enea>Y combaiants Should be treated. . . • .. . . . .. ; • • .:.• .... 

. . ~. · .. . :' . In oo~ the revise(! Mny Fleid~ 'Y8S written with an ~licit )lnderstandiDg 

.._.. · · . . · ~ ~ wOuld govern bow our Anno:<f Forces vrould. ~ unla_wful enemy. combalap~· captured In . -

,..) : tiie preseotco~Ct.as"tbeDTA:required~o~ theManual'spublieatioq. Tbe~scd1""Y ·: · :_. 

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) 

Field Manualauthori= :111 additionalinterro81Jlioo tochoique for persons who are unlawful 

combatants aod who are "likely t~ po>SCSS impo11AnlinteJI!get)ce." Su Army Field Manual 2-

22.3, Append.i<·M. This appendix reinfoiU$the11aditiooal e.ecutive undentanding that «min 

intcm>gation techniques are appropriate for unlawful enemy combatants that should not be llsed with pri>oners of war. 

The.revised Army Field Manual cannot be desai~ed as a linnly rooted tradition, having 

been pub I ished only in September 2006. More significaJitly, the reviJed Anny Field Manual was 

cpproved by knowledgeable higb level 'Executive Brauch officials oo the b~i$ Of another 

· understanding as well-that there has beeo a CIA interrogation program for high'value terrorists 

who ~ information that could help pcotect the Nation from aoothc:r caw.ophic.terrorist 

attack.' Accordingly, policymakers could prohibit certain interrogation techniques from general 

use on those in military custody~ they bad the option ofuansfc:rring a· high value detainee 

to CIA custody. That understanding-that the military operates in a different tradition of 

·e.ecutive action, and more broadly-is established by the tC<t of the DTA itself. TheDTA 

requires that those in the "custody or e.ffective control" of the Depat;Unent ofDefensi not be 

"subjl!ct to any treatment or tochoique of interrogation not authorized by or listed i.n the U.S. 

Army Field Manual on Intelligence !ntCITogalion." DTA § l402(a); su also id. § 1406. By 

contrast. the DTA does oot apply this Field Manual requirement to those in the C\fstody of the 

· f;IA. aJ!d requires only that the CIA treat its detainees in a manoer oonsistCilt with the 

constitutional standards we bav.e discussed herein. DTA §' 1403. Accordingly, neither the 

revised Army Field Mcznual nor its prior iterations provide controlling evidence of c<ecutivo 

. practice for the CIA:in interrogating unlawful enemy combataniS who possess hith vi.tuc 

·. i?formation <!>at would prevent terrorist altaW on Americ&.o civilians. . · · 

.Stau Dqxutmenr Reports, Each year, in the State Ilepartment's Co\UllJy Reports on 

HUnwrRigbts'Practices, the United States condemns torture and.ofher coercive' interrogation 

tecbniques·c:rnployed by other couniries. In diScossing Indonesia, fot example, the reports list as 

"[p]sycbological totture'' condil!'lthat iuvalves ''fj>od.and sleep deprivation," .but give no specific 

iofonnation.as to what these tcCiuiiques involve. Ill discussing'Egypt. the reponslist, as 

. · : .. :'mCc.bo:ds qftortur~ .... stripping aDd blindfolding victim$; sUspending, victims: from a ceiling or 

. : .. . / · · 'doortiame will! f!"'' just Uiucbiog the floor;.[llld) beatiog victim.t [with various objocts]." fk• 

•.• J· :·. ,a/Jfo, ~.g., Itmi (classifying sleep, depri~tioo i.si:jlbcttorture or severe pri>ooet abuSe); Syria 

. ~d~Ssing sleep deprivat!on as either torture or "'ill \!'~='' : . · 

.··. •, 

• • These rei~ its. 'bo;.,ovet; do not P...,vide Controlling evid.;;;.. thai. the czi..'i~on· · program "shOcks tbi. contemporary consCience. • iu on it1itiaJ mitt C.; the State ~ent bas 

informed ~a that tliese reports ate' 1101 meant to be !c8J!'conelusions( but instead they are public 

· .. ~plomaticstatements designOd·io o;ocourage foreign govenllllelllS to'altcrthejrpolicies ina 

· • • . • ·.: ·io.aonet that would serve Qn,ited .. States interests. ID aoy ejrent, the coi>de.tnn¢ tedmiques ire 

· '. oft~~ ofaeourseofoonductthatinv.ol_v"! othei, m~e~tcdmiques, aod appears to be . 

. ,. . : . 

. •<'· .::. 

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undertaken in ways that bear .no r=blanc:e to the CIA interrC)gation progtam. The reasons for 

the cond~ conduct as described by the State Departmen~ for example, hove no relationship 

·with the CIA's efforts to prevent catastrophic terrorist att>cks. In Liberia and Rwanda, these 

tactics were used to target Critics of the govcmment; Indonesian se(;Urity forces used their 

zcebriiques to obtain confessions for aiminal law cnforcemen~ to punish, and to extort money; 

·Egypt "employ{ ed) torture to extract information, coesce opposition figures to cease their 

political activities, and to deter others from similar activities." 

The commitment of the United States to coademrUng tenure. ,the indiseriminttc use of 

forCe, pbysic:al retaliation against political opponeocs, and coercion of.oonfessions in ordinary 

criminal cases is not inconsistent with the CIA's j>roposed interrogation practices. The CIA:'s 

screeniog procedures seek \o ensure that enlwiced techniques are used in the very few 

interrogations of terroriStS wbo arc believed to possess intelligence ~f critical yalue to the United 

Swes. The CIA will use enhanced techniques only to the extent needed to obUin this 

"'ceptionally imporutnt information and will take care to avoid inflicting severe pain or suffering 

or any lasting or unnecessary harm. The CIA progtarn is designed to subject detainees io oo more ~uress than is justified by the Government's paramount interest in pr01ecting the United 

States and its interests from funltcr terrorist attacks. lD these essential respocts, it fundamentAlly 

differ$ from the conduct condemned in the State Depanment reports. 

/)uislons by Foreign Tribunols. Two foreign tribunal.s have addressed interrogation 

:practices !hat arguably resemble some at issue here. In ooe of the !'8ses. the question in !Oct wa8 

wbether certain interrogation practices met a standard that is linguistically similar to the "cruel, 

inhumaD, or degrading ~en!" "!8ndird in Article 16 of the CAT. Tl)ese tribunals, of COW'SC, 

did not apply a standard with any direct reluionshlp to that of the DT A, for ~ DTA specifically 

~ejjnes "erue!, iuhuman, or degrading treatment.or punisbment" by reference to the Cstabtisbed 

~ards ofUnited StateS law. The Stnal.e's reservation to. Article 16, incorporated into the · 

DT A, was specifieally deSigned to adopt a discemable standard hased on 1M United States 

·COnsiitutioo, in maiiced co~trast to Article 16's treal)!'standard, w(lich could )lave been subject to 

. tho doeisio01 of foreign governments or international tribunals applying Olberwise open-ended 

. tt:nns such as crue~ in.btiman or dci!lading trcatm~ or punisbmenL" ·The eSsence of the · 

Seoa~e•s ~tion is that Article Ws standard.simpliciler-as opposed to tho mtaning_gi_ven it 

. b~ ~e Seoale reServation-is not coJJl!Oiling·under United State! law. · • . 

· · ·.'· · 'qle thitsh:old questiod, therefore, is whether these c:Oses !!ave any relevanee to the 

interpretation-otthe P't.flb t.m<indmenL The Supreme Court has· not loolied to lb(eign or 

· · i.oterpational court decisions in deierminiog wbetha cond'uct sboeks tho consCience within the · 

·meaning of the F'tfth t.m..idmciu. More broadly, usiog foreign law to inteipmthe I,Tniied States 

Constitutiooreii>ains asubjectofiniensod~e. &e!WperV. Simmons.543.U.S. S51, 578. 

· (~S); id 'at622-28 (Scalia, J:;tlissentin&);:.ttkin.t v. V'uginia;,S3'6 T,J.S. 304, 316 n,21 (2002); 

. .. . . 'id. at 32?< (Rehrujuist; C.J., ~. \Yhen interpreting the ConstitutiOn. we bel!t:ve tl>at we_. . . must lqoJc:.fitst and foremost .to UDited Stites sources .. SU, a.g., Address oft!lo A!!OfDCY General' 

··· at the Uoiveisjty of Cbioago ~w Schooi.(Nov, 9, 200~) (''TbOse-'vdlo sed< to ens!trine' foreiait 

, · ~w ~ our COnstitution thfough the t<iurtstbcrefore ~ a bOI;Vy ]lut~en. "). This focus is • 

particulari)Hmportant here because thoSenate!s reservation to Article 16 was de'sigbed to .· . . . ,. . . ··. . ·. . . .· ) . 

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pro,jde a disc<rnable and familiar domestic legal standard lhat would be in!ulatCcl &om tbe 

impressions offoreign tnbunals or governments on the meaning of Article 16's vague language. 

We recogniz.e, howevet, the possibility that members of a c:ourt might look to foreign 

decisions in tbe Fifth Amendment context, given the increasing incidence of such legal reasoning 

in decisions oftbe Supreme Court. Some judges might re$Md the decisions of foreign or 

i!llernatibnal courts, under aiguably analOf!Ous circumstances, to provide e,jdence of 

contempOrary Slandards under the Fifth Amendment. While we do not endorse this practice, we find it nonet!>cless appropriate to co'!'ider whether the two dec:Uionsin question shed any light 

upon whether the interrogation techniques at issue here would shOck the conscience. 

We conclude that the relevant decisions of foreign and international tritxmals are 

wopriately disti"8Uished on their face from the legal issue presented by the CIA's proposed 

techniques. In Ireland v. Uni!Ld Kmgdom, 2 EHR.R 25 ( 1980), the European Court of Human 

Righi$ ("ECRR"}addressed five methods used by the Unite(! Kingdom to interrOf!atC mernbers 

oftlie lri.!h Republican Army: requiring detainees to tenjllin for seven! hours •spreadeagled 

against the wall, with their fingen put high. above tbe bead againS11jle wall, the legs spread.apart 

and the feet back, causing them to stand on their ioes with the weight of the body·mainly on the 

fingers"; covering the detainee's head with a dark hood throughout the interrogation; exposing 

.the detainee to a continuous loud and hissing ~oise for a prolonged· period; depriving the deiainee 

of sleep; and "subjecting the detainee(] to.a reduced diet during their stay" at tbe detention 

facility. ld at 1 96. The ECRRifid \)01 itidieatc the length of the periods of sleep deprivation or 

l)iee:xtem towhi<;h thedctaib<ie's dieaswae modified. Jd at.1 104. TbeECRRhel.d tha.t, "in 

eombinatioo,"·these iechniques were "inhuman and degradingliealmenl, • i.o p811~ecause tbey 

"arous( ed in the detainees) foeliogs off ear, anguish, and .inf'enority· capable of humiliating and 

debasing them and possibly breaJ?ns their physical or moral resiStance. • /d. at 1167. 

The CIA does oot pno~se to use all of the techniques that the ECHR addressed. Witb 

regard to the twO techniques potentially in commo~ended sleep deprivaJion and dietary . 

, manipUiatioo-<heECRRdid oot.C>Cpre$sly coosidecormakeany fin!lingaas to any,iafegnartb 

.• · that aooompailied the United Killgdnm's illlernogatioo techniq.ues. ·A JJ~iCcl Kingdom report, 

· •. · released sejlaratcly from the ECBR lili&ati<\0: indica1ed that British offi~ ~ in 1972 had · 

rcc;ommended ~ditiooal saf~ (~r !he sleep deprivatioo"techniques such as ~ ~ee of · anil moDitoring by a pliysiCian similar to pnoeodures that. are uow part of the CIA po-ogtam. sa .bijrtist. n.1s. 'fheECBR decision, however, revitWed those intemigation techniques.bef'o~e 

Such re<iQmmeodations were implemented, anil.iherefore, there iS some mdcnee tbat the 

. .· · techniques considered by the E<::aa were oot aeoooii,panioil by pr~es and safeguards similar 

· · ·.10 those that will be applied m the CIA program. 

· More ~portantly, the llQli made rio' inquiry.int;, -.yhethcr any go~ental interest 

.'might bav~ IWOII4bly justified the oonduct-st. ~~in that ~~ch is_the·ICgal ~ ihit 

'tbeDl'A requires !n tva!uating.tlic CIA's pnopOSeQ ~ tedipiques. The .lack of sUch an . inqUiry reflects the fact that thcECHR'.s definition of"inlluman and degrading trutmcnt" hw1 iittl~ reset!'blante io the U.S: ~Jional ptj\>ciples~rp«<t~ und/lr lbe DTA. The ECHR • has <temonstrared:tbis gulf pOt ~y it!' their<~~ iisel1; but a~ i,ri other ECRR.deciiioos 

that re-:eaUnexpansive'und?""~ing of the concept that.8;"""_filr;beynnd_ how courts in tbe 

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· Uniced Swes have interpieted our Constitucion. For example, the ECHR has held !hat the so-

. called "death row effect"-tbe years of delay bdween the imposi1)on of. death sentence and its 

· execution arising from the petitioner's pursuit of his judicial rcrnedie9-itself eonstitutes ··'inhu.man or degrading lt'eattnent or punishmenL .. St.~ Soering v. Uniltd Statts, ll.Eur. Ct H.R. 

439 (1989). The Supreme Court, by contnst, has routinely refUsed to entertain such claims, aild 

lower. federal courts have no! found them to have eri~ • S.e, e.g., LOckey v. Tems, 514 U.S. 

I045 "(1995)'(dcnyiog certiorari to reviow a de<:ision rejecting such a claim over a dissent by 

JustiCe SteVCl;IS); Alkn v. Omosid, 435 F. 3d 940, 959'(9th Cir. 2006) (The petitioner •:cannot 

ctedibly argue that !he evolving standards of de<:eoey !hat mark !he pJ"!lgress of a IJla!UriD8 • society, as evidenced by !he decisions of state and federal eouru, arc moving coward· recognition 

of !he validity of Laclay claims."). The ECHR also has read the EUropean Convention to gnu>! 

that court authority to sautinizc prison conditions. For example, !he ECHR has concluded th&t itis inhumAn and degrading to confme two persons to one·eelJ with only-one exposed toilet 

between them. Melnik v. Ukraine, ECHR 72228410 I (2006). Amid such expansive decisions, 

the ECHR miSbt well regard the proposed enbaOOed interrogation toehniqu~. or even the 

existelliie of the ClA interrogation program itself; to eonstiw.te "eruc~ iobuman, or degrading" 

tteatmenl under the standards incorporated in the European Convention. Yet we do not regud 

the ECHR's interpretation of its own European eoOvcntiOn human rights sta,nd11rds to eonstiwrc 

persuasive evidence as to whether the CIA te<:hniques in question bore would violate !he Fifth 

Amendment, and thus the DT A. 

The SupruneCOurt of Israel's review ofinterrogatiori teehhiques in Public Committee 

Agriinst Torture v.Jvaei, HCJ-5100194 (1999), similarly turned upofi foreign legal issues not 

"i-elevant here. There, the Israeli cowt held that Israel's General 'Security Service ("GSS").was 

·not legal)y authori2ed1oGnploy certain iritecrogation methods With J)trS<lM suspected of terrorist 

acti~cjucling shaking lh~ tOrso of the detainee, depriving the d~e of sleep, ind forcing 

!he d.etainee toraJ?&in'in a variety of stress positions. The OQWt reached that conclusion, 

liowev"!', because it found that !he GSS only had the authon!)' to qage in int"')''gatinns 

. specifically authorized by: Imeli dp~ stalute and that, under !he theft "existin_g S;tite oflaw; 

. ... . . • id. ot36,the GSS was "subject tp the same restriction$ ,applicabl~' t? "the orcjjnary po~ 

: • · ·.investigator; id. at29. s .. id. ("There is no siatutethat gran!S GSS inv~toBspe<:ial 

_· · · .. interropting powm ~ ate'differeut, or more sigrufi~ 't!la!> those pted t1ie poll~ 

.... 

investigator."). Under that l.&w,1he,GSS w~ permitted onlY. to.••_,me orally any pa'SOilll 

· supposed 'tn:!>e l'<:qU&inted Mth tbC faCts .and cin:wnstanecs of '!'Y otr~e'" and to redUce their 

· respo-!O \V!iting. '!'<~thus the statUte did riot pehnlt the "physical m=" <if inteaogation 

.1lndatakeil by the GSS. ld ·at 19 (c::illng tbc"Is!'aefi Criminal Procedure Statpte AsL ~I)) 

(euwhasis added). A1 the same time, the Israeli CQUrt specifically held open whether the ·legislarure coul~ authorize such techniques by staMc, id &135:36, and determined '~hat ii was oot 

-apJ>fOIJI'iate in t!iat case to c0osider special interrogation methods tluit might be atilh<\<:ized whe:> 

oea:Ssary to"$0.ve h!tmari life, id · at32'.' . · . · · · · 

..·. ..~;....;;~.~tbaitaUJitad~~~~to~fn>m~~ a< dc~,_,P,b/lc OimmlnUAgolntr T...,.,., HCJ SIQQ/94 at 23,1iot lhc"alwt ;pccifically._-

., • U.)>ol<m,rDOiiDiU~oa.(l(aoya.oay,bad bnC!iSIJtUlioyla ... l.lidcOd.tbec<icili~d>OI tllC 

•. le~.,.kl~gr.W()GSS~.X.theud>orily!O<Opply pbyiica!IOrce'lforio&the~or"­ ·-0 · · ioospoded~iDwl-iDllostilett:mll'iltidM_iies," fd. at·lS, pnMd<doiilytb.Jithc:-Jaw"befit(s1 thevoloesof ,.· 

· 

·'

· ~lfjl . Nat~ct

' . · . 

= TlWIIIl-.' ---,.---

~ 

· .. · 

41 

L~02S7 
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~ 

! 

) 

As we have explained·above in 6nding particular U.S. Supreme Court decisions to be 

distinguishable, it is not the law in the United States that interrogations performed by intelligence 

officers for the purpose proposed by t,he CIA are subject to the same rule$ as "regular police 

interrogation(s)." /d. at 29. Thus, the Israeli court addressed a fundamentally different question 

ihat sbedslinle light on the inquil)' before us. Wbere'the J.sneJj GSS lacked any special sta.tutOI)' . 

authority with respcca to "'!errogatioru, the GIA is expressly authorized by statute to "collect 

intelligence through hUman sources aod any Qtber appropriate means" and is expressly 

distinguished from domestic law enfoncement authorities. so u.s.c. § 403o4a(dXI). Indeed, .beyond lbe CIA's general rururory wthorlty to.coUect human intelligence, lbe Miliuuy 

Commissions A:CI il$cl! wu enaeled specifically to permit the CIA intmogation program to go 

forward. S.e infra at43-M. 'l'bU., wbilethelsneli court rested its 1999 decision on the 

.legislattJre's failure to grant the GSS anything other than.ordin81)' police IJlth.oiity, we face a 

'CIA interrogation P.rowam clearly authorized and justified by legislatiVe. au,tbority septn~tc from 

and beyond those applicable to ordinal)' lay.< enforcement investiSations. And the braeli 

Supreme Couit itself subsequenuy ~the profound diJfereooesbetween the legal . 

·'Standards tbat govern domestic law enforcement and those that govern armed coofliCI with 

terrorist organizations. Co111f!11Te Public Commiltu.Agalnst Torture v. Jsrml (1999) (stating tliat 

"ihere is no room for balancing" under lsneli domestic law), With Public ~ommittee Against 

J'orpm l'n !$rae/ v. The Government of Israel, HC1169102 (Dee. 'II, :WOS),122 (holding that 

under the law of armed conJliCI applicable to a conflict against a terrorist organization, "human 

rights are prOtected ... but oot to th<irfu)l scope" and emphasizing that sueli'rights must be 

."balanee[dr.against "military needs"). 

Swviva/, E;WJSion, Rujstance, and Escape ("SEliE") Training. As we noted at the 

outset, v~tions of each of the proposed lechniqu~ have been used before by the United States, 

providing some evideDee thit ihey are, in some cireumstances,' consistent with ex«:utivc 

tradition and practice.. Each.of the CIA~s enhanced interrogation techniques bas been adap!Od 

. ·.from.military.SERE traiiuns. where tecbqiQIIes very mpcib like these have long been used on our . : .. . own troOps. Individuals und«going SE.IU!1nining are ob'o!iously in a VOl)' different situation 

· ·. · ' :from.dCtainees utidergoing interrogation; SERE'traince$ fml>'\" that thO treatment-they are 

• • .. experiencing is part ofi training· program, that it'WiU last only a short. time, an.d tbat they Wl11 ~ 

be significantly barmed bY the f!Oining. · · · . : : . · . . 

. · We do not wish to:understalC the im~ of these diff.,..;oes, or the grayity of the 

psychological trauina Chat 11/&Y accOmpany tbeula~ un1:ertain!y f-'1 by tbe ctA,•s dctaioees. 

...... ;· .. ~. , . 

.·· ... 

,· 

, ... 

• On the other band; the interrogation prOg!&lll we ronmder bererelies on tccliiliQ\Ies tllat have , 

deemed safe e,oug~~ 10 'use in tlfe training of. our own troop.>. We can.~ at )east ooe 

eo.qclu~op· from .the existence of SERE trainin3-:use of the t~ques involved in the CIA's 

interrogation PI'981M! (or a! least the siinilar ~'ll'es from .which these have been ad!lpted). 

::. : : • · cannot be considered 10 be C4tegorjca.lly in<:9p.sistent witb "!nditiOnal executive behavior" a.oO . · -tO<itetnporary praci.icc" ~It$$ o£.coatext. • · · · . . · ' . . . , : . :~ . .:: .. :· . :.• .. .. :.: · ; ··:'·. ' • tbe ~ oflsrael, l .. 'ellidcd ~~jliopCr~ .;,.i~ihe~sliberiJ) IO .. .,.,;,;. QO-palerdlao • 

.. ·'· ~·;.toi37. . ·. '· . . 

. .) · . . :. 

. . 

,· . . (b}ci) .. 

·.:' (b)(3) NatSecACt L3.02S.8 

42" 
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(b)(3) NatSecAct ro"itsrcnmf~-------..1~ 

I 

) 

The Enactment oftht Milif11ry 0Jmmissi011$ ACL Finally, in C<?nsidering "contemporary 

pra<:tice" and the "standards of blame generally applied co them, • we con$ider the context of the 

recent debate over clie Military Commissions Act, including the views oflegislators wbo have 

been briefed on the CIA progJom. In Public Committee AgaiiU1 Torture, RCJ 5100/94, the 

'Israeli SupreiJ!e Coun observed chat in a demoeracy; ic was for the political branches, and not the 

couru, to strike tbe.appropnace balance beTween security imperatives and humanitarian 

standards, and it invited the Istacfi legislature co enaCI a s~e spcciJically delimiting the 

security.service's authority ''to apply physical foreeduiing tlie interrogation of suspectS 

ruspoCI~ ofimcolwment in hostile terrorist activities.• ld at 35. In the United States, Congress 

m fact enaCied such a staruce, respl)ndingto the Presidtnt's invitation by pas$ing the Military 

Commissions Act to allow the CJA inttnOSa!ion program to go forward. While the isolated 

statements of particular legislators are not dispo$itive a,s to whether spee\fic interrogation 

techniques would sboelc the conscience under the or A, w,e pr:operly may con$ider the Military 

Commissions Act, taken as a whole, in coming to an understanding of"eontemporary praCiice, 

and-of the standards of blame generally applied to them," and what 1\meri=. tkougb their. 

_representatives in Congress, generally deem co be acceptable conduct by the executive officials 

charged with CD$Uring the national seaJrity. Lewis, s~ S. at 847 n.8; cf. Roper, 543 U.S. 551 

(2005) (finaiog the passage and repeal of state laws to be relerut co contemporary standards 

under the Eighth Amendment); Atkins, 536 U.S. 304 (same). . . 

The President inaugurated the.political deb•te ovtr what "'!!Uld become the Military 

Commissions Act in his ~ on Sep\Cillber 6, 2006, wberejn he announced to the American · 

people the existenceofthe-CJAprogram, the ofthe a1 Qoeda detainees who had been 

interrogated, and. the need-for new legislation to allow the program to "go forward" in the wake 

· ·of Hamdtin. As the President later explained: "Wbco I propo!ed thislegislotjon, I explained that 

I WO!IId have one test for the bill Congress produced: WHI it allow .the CJA program to 

cOntinue? This Iilli meets. !hottest." ltemarl<s of the President Upon Signing 'the Military 

' Commission Act of2006,EastRoom, WbitcHouse(OCI. 17, 2006). SeoatorserueiaJ.to its 

. .. · ·Pltssage agreed. !hot the 'stamte must be structured to pCrmi.t the CIA's program to .onotinue. S.e 

•. · · · . 152 Cong. Ret. SI0354-02; S10393 (Scpt.2&, 2006) (-emeot of Sen. Grabam)"("Sbould we 

have a CJA program classified in nature !hot would allow tec.boiques not in the Anny Field 

. · ~ to get good intelligence from high value !Mgeia? The answer from my point ofview !s • 

. yea, ;,oohould."); id. at S 104i4 (Statenient of'Sen: Mceaip) ("[M)y onUcagues, 'have. no . 

. • · doubt-'this legislatioo will.aJiow the CIA to onntinue intetrOgatins prisoners within !lie 

··boundaries established in·ihe. biU .")_:'Jtepreseotati~e Duncan HWlter, the leadiDg sponsot of the 

: ~ ... 

• . · ; bHI io the House, ,;ntiWiy described the legislatio~.u "leav(ingJ the decisions as to them~ · 

ofinterro~n to the President and !0 tlie intelligence professionals &t the CIA, so tltal they' may 

;aiTy foiward .this vital program that, u the Pri'Sidein explained, ~ to gather th.e critical 

intelligenee.neCeisary to .protect the coun!Iy from another cawtropbic to;rrorlst auaclc. • 152 

· 'Cong. Rei:. H7938 (Sept.'291·2006). The Act clarified the Wor Crimes Act and provided .a 

. · comPt-eltensive fi:'amework {or interpretiQg the Galeva Conventions sp that the CIA pnigram :migbi gl> forwat)l after Jfamt.laJ{_ • · · · · 

,: . The Militaiy Coafmi>sio!is Act. i_q b'e sun; did not prohibit or liCCllS" s~fic :. : 

. . illttirrogation tecJiniques. As cliseussed above,· M~· of Co08fess po both sides oftlte debate . ,j;j . ! e,q,res~ lv_idei_y di~er~t views~ to'tbe speeifi~ int~gaiion tctlnti~cs ~t might~ . 

. . : J \SecAct ·'TOO ss'~s{ ~ l iJO 2.9 9 

43 

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not be permitted under the statute. Su :supra at n. 13. Nonetheless, you have infonned us that 

prior to passage of the Military Commissions A.ct, seveta1 Members of Congress, including the 

full m~berships of the House and Sallie Intclligcnee Committees ,orul Senator Me<:ain, wete 

briefed by General Michael Hayden. Director of the CIA. on the six t'eclllliqut;S that we discuss 

herein an<! that, General Hayden tl<plained, ·would Jikely be necessary 10 the CIA delelllion and 

interrogation prog1Mt should the legislation be coacted. In those classified and private 

Conversations, oone of the Members expressed the view tbll the CIA interrogation program 

should be stopped, or that the f~iques at issue were inappropriate. Many of those Members 

_.thereafter wete critical in ensuring the p.Ssage of the legislation, making clear lhtough their 

·public statements and through their votes-Jhat they believed tbll a CIA: program along the lines 

Gcneral.Hayden described oould and should oontinue. · · 

Beyond those with specific knowledge of the classified details of the program, all of the Members who engaged in the legislative debat~ were aware of ~ia reporto-some accurate, 

iome not-describing ihe CIA interrogation program. Those media reportS suggested that the 

United Sta;es bad used teclmiques including. and in some cases ei<eeeding, the coerciveness of 

the.•ix techniques proposed here. The President's request that Gongrcso peXmlt lhe CIA program 

to "go forward," and the carefully negotiated provjsions qft)le bil~ clearly presented Con8f0$$ 

with the question V'h~er the United Stoles should operate a ·classified interrogalion·program, 

limited' to high value detainees, .employing techniques tbll excCeded those empl,oyed by ordinary 

law en:i'orcement officers and the United Stoles military, but that remained law.ful under the antitonure statute and tbe War Crime$ A.ct. There can' be little doubt that tbe subseque.nt possoge of . 

lbe statute rdlected an endorsement by 6oth tbe .Pres;deotl!ld Congress of the P,litie&J bl)ncltes' 

$bared vipy that the CIA interrogation prograin was. oo.isist..n with contemporary pntetice, an(! 

tbere.fore did not sboek the ooJiscience. We do not !'Cgald this politiC&! e.ndorsement.ofthe CIA 

io=ogation progrun to be oonclusive'OD tbe oonstitutional que.stion, but we do find that the 

. passage of.this legislation provides a relevant measure of rontemporary standards . 

. . ·.· .... The subS)antive duop~ aoalys~ as al .... ys. muSt ~n highly sensitive o~~ 

We·do no ~ any one of the oootexta'discussed beic, on its own, to'arlS\VCI' the critiC&! 

• · question:· y.ibat intOnogatioo tecliniques are pcimis$ible fur use,by'lrlil!ed profeissiooals of tlie 

· . '•CJ.A in seekilig to Prot'lel the Nation li'pm.!Oielg!l ~ wbo op«UC lhiough • ~··and . 

·. 'secrei inteinational'nctwoil: of cells.dedjcated..U> lau.Dc.biDg catastro~c ~rist atta<:Jcs·on the • 

. '!lnited States and its citizens &n4 al.lies? Nonetheless, we-read the~tional trail tion 

rdlected in !lie DT A )0 pennit the United S~ to employ a riarrowly cfrawn, ~ely 

·monitored, 

~ 

and cari:fully .safeguar<fOd jpterrogalion program for hi&!! valu~ terrorist.o_thll uses 

teclllligues thll c!o not inflict significant o.r lasting pby~e&l or mental lwm. . 

D. .. > . : · 

;. · · . Applymgthde ~~ stan'dardo ;~ tbe~yioposed r.ques ~ ~ividually 8D.d in .: ... 

'(!)mliin.ui?n. 'We ~~c;lude that these tecll¢ques are ~~ wi!J! the D'('A. .. • . , 

: · .. •, .•. 

q;;.ggppojiliiiiiiilil~--ll._ l __ -,-_ ~ 

Ul030D · 
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• Dietory MQJfipulatlon. The CIA limits the use of dietary nunipulation to ensure that 

detainees subjea tq it suffer no adverse health effeas. The CIA's rule$ ensure that the detainee 

r..,.:;ves 1000 I<CaJ per day as an absolute minimum, a level that is equivalent to a widentngeof 

.commercial weight loss programs. Medical personnel closely monitor the detainee during the 

application ofthi~ tecl)ilique, and the technique is terminated at the prompting of m!"'ical 

persOnnel or if the detainee-loses more than teo percerit ofbis body weigbl While the diet ouy 

be unappealing. it ,exposes the d~ainee to no appr.iciable risk of physical bann. We understand 

from the CIA that this tecbnjque has proven effective, especially with detainees who have a 

particular appreciation for food. In ligbt of these safeguards and the technique's effectiveness, 

·the CIA's use of.this tecbnjque does not violate the DTA. 

Cmrective Techniques. Each of the four proposed "corrective techniques" involves some 

physical tonuct tetweeo the interrogator lnd the d«<Ainee. These corrective tecbnjques are of 

. two types. Fi~ there are two "holds." With the facial bold, the interrogato( plaoes his palms on 

· either sldC ofthedetainee•s face in a r:riannercarefulto avoid any contact with eyes. With lhe . 

auention.81"oSP. theintmogator ~!'asps the detainee by the ~llarand draws. bim to the 

int~or in oraer to regain the detaioee's attention, while using a collar or towel around the back oftbe detainee's ni:clc to avoid whiplash. These two techniques inflict no appreciable pa.io 

on th~ deta.inee and are dir«:ted wholly at refocusing the detainee on the interrogation an_d . • frustntting a dcta.irice's clfon. to ignore the interrogation. Thus, the described tccluliques do not 

. violat~ the requirements of substantive due process. 

Second, 11\e CIA proposes to use two "slaps. • In the abdominal slap, ihe interrogator inay 

begiri with his hands no farther tbao 18 inches away from the detainee's abdomen and may strike 

·the detainee in an area of comparatively little sensitivity between the waisi and the sternulll. 

the facial slap iovolv~ a ·tra.ioed interrogator's striking the detainee's check with· his baud. Lil<e 

.the holds, the slap1 are primarily psychclogicc.ltecbniques to .make the detainee uncomforuhle; 

thor are not iptended, and IIIIIY not be Wed, to extract information fro~ detainees .by force or 

·physical coercion. 

·; :- . . There is no questjoo, however, !hat the slaps may momentarily Wlict some pain. But 

·'· careful aafegv.vds ~that Db significant pain 'W(lU]d occur . . With~ facial sl&p, tbC 

. :interrogator must DOt wear any ~ngs, and must sirike,the d<!ainee in the area between )he tip of 

_;. ·.the ohio a.nci the comsp_ondina 08Jiobe to avoid any toota<:t wi,tb sensitive.areas. The ' 

·· inlertogator may not use a JUt, but instead mu'st ilsean-open hand and strike thed...u-.only, 

with 'his open fin$~ not with his palm.. Willi thO alt(l~niilialslap, the ~ator also may not 

l.lSe.•&t. may not wear jewelry, and may strike' only between the st!'"""" and the n.tvel. Tbe 

inlet'I'Ogator is nquired to ma.iotain a'sbort distaooe between himself and the detainee to~ · 

a blow of si8nifieant force. UndOubtedly, a ·single applieatioo.of either of these techniques 

: ... ; . ~a q~oq different from their repe&...l u>e. We understand, ho~.;., that iotetT!>gators 

·.will pot apply these, slaps~ an inteosity, or a fr?iueocy, ~will c:ause Sigoifioant P.bysical 

':·,; • • · pain·or'injury. Our·conclusiop that Jlfese tbchnjqpes do not~the co~ence d~ not )Dean 

. . . • : . :. :tJJat: interro8319<S may punch, beat. or otherwise ph~cal y ab\ls:e deuinees inan elfo~ to c:xtract .:·.·. ·. .:' .. i'nf~l)ll. :To'tbeoonrruy, lheresUJt that wereadlbere~expi'~ limi!Od to t,be~offit : 

- · : · : mo""limit~ st•~ !oeb.nigu.S.thatllave carefully been ~esigoec! t9 arr.a.detainees · 

.... >."/. • . .. (J;)(l) . . . 

• · ·. (b )(3-) NaJSecAct l• • •• •• 

·.-

,. 

·. ..- . .. !'ef .!1!!1!1\fMt. 

.,__~--....J l.003 01 

. ··.: 
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'iQP.&liiiliil{ __ ---- ~ 

. .) 

, . . 

. :· . . ·,· 

psychologically, wilhout barmi.og them physic:all y. Slaps or other fonns of pbysical contact lbat 

go beyond those described may raise different and serious question$ under the DTA. 

Monitoring by medic:al personnel is also imP.,runt Medical personnel ob~c the 

administration of any slap, and &hould a detainee suffer signi6cant or unexpected pain or h.atm, 

the tecbnique would he discontinued. In this context, the very limited risk ofbarm associated 

·this~~~-~the~~ . 

E:fl•nded Sleep Deprivation. Of the teclmiques addressed in this memorandum, extended 

sleep deprivation again, as under the War Crimes Act, requires the most extended anaiy$is. · 

Nonetheless, lfter reviewing medicO! literature, the ob..,.,;.tions of CIA mcdicil staff in the 

applicatiOn of the teclmique, and the detailed p(OCCdures and safeguards that CIA interrogators 

and medical staff must follow in applying the tcdlnique and monitoring its application, we 

conc;hlde thauhe CIA's proposed use of extended sleep deprivation would oot impose barm 

unjustifiable by a governmental interest and thus would not shock lbe conscience. 

'fbi> scope of this technique is limited: The detainee would be subjected to no more than 

96 hours of continuous sleep deprivation, absent speCific additionalappr~Vlll. 'including legal 

approval from this Office and approval from the Director of the CIA; tho detainee would be 

allo'!'C'I an opportunity for eighfbours ofunintemJpted sleep following the application of the 

technique; and be would besu~jccted to no more than a total of 180 hour's of~ sleep, 

. deprivation teclmique in one 30-day periocl Notably, humans bave been kept continuously · 

awake in ex~ss of2~0 hours in medical stUdies. There are medical studies suggesting thai sleep 

deprivation bas few measur&ble physical effects. Su, e.g., WhY We Sleep: The Functions of' 

.. Siup in Humans and Other Mammals il-211 (1998): To be sure, the rele""!lce of these medical 

studies is limited. These studies bave been conducted under cirwmstances very dissimilar 19 

those at issue here. Medical subje<:ts are in a relaxed environment and at relative liberty to do 

whatever keeps their 'interest. Tho CIA detainoCs, by contrast, -ire undoubtedly under duress, and 

their'freedoai of movement an<! a<:tivities are extremely limittd CIA.medical personnel, 

bowever, bave confirmed that these limited physical e'ffccts are not significantly agg13vated in 

th~ unique environment df a CIA interroSation. 

. . . · M d.esCribed above, the CIA's melhod ofkeepUig.detOinees a~ous 

. ~cause edema, or ~in the lower lias and feeL _Maintaining the standing 

· t><>sition .for as many as. four days would be extremely unpleasant, and under sonw ~= . . painful. .although edema and aiu$clo fatigue subsi~e quickly '!"hen the detainee is pCrmittcclto sit or 'to recline.,. • · . 

-.-/ . 

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.. .I 

. _) 

At the same time, however, the GIA employs many safegu&r\ls 10 ensure !hat !he d<Uinee 

does not endure significant pain or suffering. The detainee is not pennitted to suppon his wcighl 

by banging from his wrists and !hereby risking injury to himself. Tliis precaution ensures !hat 

the detainee's legs are cap•ble of functioning normally at all times-if the detainee cannot 

suppon his own weight, admi.nistration of the technique ends. In addition, the CIA's medieal 

personnel monitor the ijetainee throughOut the period of CJCteoded sleep deprivotion. They will 

halt use of the teebnique should Jbey diagnose the d<Uinee as experiencing hallucinations, other 

abnormal psychological reactions, or elinieally significant diminishment in cognitive 

functioning. Medical p..-sonnel also will.monitor the detain«'s vital signs to ensure that they 

st•y within normal pmmeters. If mediesl personnel detennine that the detainee develops 

clinically significant edema or is experiencing significant physical pain fbr.auy reoson, the 

teebnique eitheris discontinued or other methods of keeping the detainee awoke are used. These 

. -.eeommodations are significant, because they highlight that the CIA uses extended sleep 

<Jeprivation m..-ely to we>ken a detainee's psychological resisunee 10 interrogotion by keeping 

him awoke for longer than normal peric?<ls of time. 

Ct>mbined Flf<cts. We do not cvoluate these teebniques in isolation. To detennine 

whether a course ofinterrogation "sboclcs the conscience," it is important to evaluate the effect 

of the potential combined use of these techniques. See, e.g., WillitinJS v. United States, 341 U.S. 

97, ·103 (1951) (evalu.tiuga tbree-day eourse ofinterrogotion techniques 10 dctennine whether a 

'COnStitutionAl violation OCCUlTed). Previously, this Office has been' particularly concerned ~bout 

t~ues that may have a mutually reinforcing effect Slleh !hat 11\C COIDbinAtion of teChniques 

rnighl in<;rease the effect that.eoeh would impose on the detainee. Combined Use at 9- 11. · 

·· Specill~ly, ,medical studies provide some evidence that sleep deprivati_oo may nnduoe tolcnpoe 

10 som~ fonns of pain io some subjects: See, e.g., B. l<undermann«r af, Sleep DepriYation 

Affects Thuma/ Pain 'l'hnsho/Jis /)111 m>t Scmatomuory 'l'hnsholds inRealt!rJ! Volunturs,. 66. 

.Psychosomatic Med. 932 (2004) (finding a signifi<;ant decrease in heat pain thresholds and .0""' decrease in cold pain thresholds after otie .;tight without sleep );.S.· Hakki Ooen et ai.,'Th< Flf.Cts 

of Total Sleep bq;rivatlon, Selective Sleep /ntqruption and Sleep Re"""!JY on Pain 'Tokranctl Thr•sholdsinR~Subjects, 10 J. SleepR~eh 3S,;H (2001) (findi~ga statistieally . 

significant .dro.P ofS-9"-' in tolerance tlire$holds f!)f meehanieal.or pressute:l'ain after 40 "'?=); · 

· :ttJ.: at ~5 36 (dlJ<:ussiugotber studies). Moreover,.subjects.in these medical Sllldi~ haye been 

~Cct \O ma-e their C!)DSUmption of food during a pecioc! of sleqi deprivitio'u. Su Why 

·. We Skep at 38. -A sepanne issUe therefore !x>uldarise as the'slcCp deprivauod icehnique may be 

used during a Period of dielal}' manipulotion. . . . • :. r • • • 

' No~ess, ~are s-atisfied ~t there are safeguarijs iii pia~ to protCct .against any 

sigiu.ficaat enhaneemeDt.of the effects of the techniques #lssUe wh~ used in combination with 

sioep ,depriva\i<>n. Dctainci:$ subject to dielalj manipulatio~ ~e closely monitored, and aoy 

S!J!istieally significant w.eight ioss. wou]d result Ui cessation ot; 'ala minimum, the dietary 

-manipulation techniqUe. With regard t6 pain seositivity,.none.oftbetechniques at l.ssuehtre 

. invDl.ves such· su\>stauijal pbxsiesl eo~c:t,- or would .be use!' wjth such ~e.icy, that sl~ . 

, deprivation woul~ aggravate ~ pajn ass~ated with th~ tectmiqu~ to a I"Yd that ~ the 

OOoscienee, MCJ!:& generally, we baye been assurCd by tliCCIA,.t)lat they will.8!ljust and monitor. 

the frequCP.C)' and intensitY ci(t1te use of other ~ques dairing'a peciqd} >t ~leep deprivation: 

O>mhiried Usiat~6. .' · · · · :. · . · · .;· · . 

:·(li)(1) 

(b)(3J Natse~ct 

TiP Iii~ '-------,-J 

. 47 t:l0303 . 
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628RIZZO48.eps

) 

·. 

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(b)(3) NaiSecAct 

In evaluating these techniques, we also recogniz.c the emotional ;cress that they may 

impooe upon the deuinee. While welcnow the eareful pioocdures, safeg=ds, and limitations 

under the CIA's interrogation plan, the detainee would noL ln the course of undergo.ing these 

techniques, the detain~ might fear that more SCYe!'C treatment might follow, oc that, for exampl<>, 

. the sleep deprivation tcciu)ique may be <>entinued indefinitely (even though. pursuant to CIA 

pro<>edures', the technique would end witbin 96 hours). To the extent such fear and unceminty 

may occur, however, the~ would bear a close relationship to the lmporunt government purpose 

of ~taining. information crucial to p~ting a. future·tennri.'tt itt111clc According to the CIA, the 

belief of al Qaeda leaders that they will not be harshly treated by the United States is the primary 

obstacle to encouraging them to disclose critical intelligeDee. Creating untertainty over wbcther 

that assumption holds-while at the same time avoiding the infliction (Ol"even the threatened 

infliction, su supra at n.2l) of any significant lwm-is a necessary part of the effectiveness of 

these techniques and thu.s in this context does oot amount to the arl>it.raty or egregious oonduct 

that the Due Process Clause would forbid. When used in combination and with the safeguards 

described above, the techniques at isSOJe here would not impose harm that oenstitutes "cruel, 

inhuman, or degrading treatment or pljnishment" within the meaning oftheDTA. 

IV. 

The 6nal isSOJc you have asked us to address is wbethertli~ CIA'sUS<>ofthe proposed 

, interrogation techniques would ~e consistent with United St~es treaty obligations under 

Corwrion Article 3 of the Geneva ConventionS, to the extent those obligations are not 

enoompassed by the War Crimes ACL" As we explain below, Co_!DJJlOn 1\rticle 3 does not 

disable the United State$ from employing tho-CIA's propOsed intetTogation techniques. 

"·'ll><w8h _.a.ioo of the Miliwy <;ommissioos Aa. the Gcaeva ~outside the rcquirtoiCIIts ~the War Crimes Aa. cooistl-a judiclally UDtnfotoeablc 0.., obliptiao ot tbe u~ SQteS, Ui>clet the 

• Natioo.al ~17 M.of1~7. p1>1>CdyautboriudCO'I<rtac:Ooo_.,..nccd oaily~plywith the~ 

·'.aodthe....,..oftheUail<dStates. S..50t1 S.C.§413b(o)(S)(Jlrobibitiagtheau~of.,......- · 

. "11>at 

:wc Wll1enomd 

-.1d vioW. 

!hat. the 

the 

CIA 

Coostilutioo 

inl<Dd$ .Cor 

or"!')' 

tbe Jlr08""" 

statute of 

to 

the 

CXIIIIply

Uailoc.l 

cwitb 

SlateS;" 

Commoo 

without 

Anlclo 

mcolioDios 3, aod our treaties)

anal)'sis 

, ~ 

below is 

,prem!soc10l1thatpo1j;y~ •• . . . 

• .• .. - " ·•. In~ wooototbaUbcMCAp..m...aaocl>c{modoaoisufwbcftby·lbe.Prisidemooul4.......,th..tbe, . . CA-Uunoptioo propom fi>l1)' oomptleo with Commoo Anide )-by ...soeoJin&'bis r-Homd4n ooac1uslao that • . · .: Coauioon ~ 3 does no1 apply to the armed oooftiCt.opinsc Iii Qo.d.. SectiOo, 6(l)Ql of the MCA pnMdes the 

: • :l'Rsideat with the .,._IY io••uurpn«be .....iog aod Qj>l'llcotlm of the:'~ Conveniicns" 1hrouP · ~veonlenthac.sllallbc~inthesamo"""""osoebaadminist7alive~(ompbosb 

:- added). By spccifica1Jy ~n..n.s---...raw,'ib.Ml;A p1Mdes tbcl'ral-will> attcast the same _ 

_ autbcrili to inl<oJnt tbc lrelly as ao.--._ ,ioould ~to inlbpc<ta r.dcnlstaturo: '!be Sopccmc 

. .. ·, ;. C<Jwtbashd llhauudmlnistDtiYel&"iq's........,..~ofaf!dcul...,..istobe"Dv<n 

--.~,.;shi.,..;,lfaCOIIItbisl>dcllnaJriacaisethalacDotber~ou;,.oJbca.rtlwltheoa6 • 

• , ~in~-regu11tioo. See Nd'l O>ble & T•~A~ ... •. lln>nd~/nkm~Shv.. S4S U.S.!l67, · · 

980-!IU (2005). & the Ccurt cxplaiJl¢. the"prioi juc1ida! ~""of •-trumpo onqcnty<OIJSI!U'daa .. .. •••• otherwise eobdocltoO. ....... ddi:reaoe ci.Jytf.lhepd..-.,;,..~ liold,s Chat itsooamuclioafollows from d!e • ---tamsoftbc-aodtbusim.ooo""""foiapcycfisettllmL" /d.'llnl. ·f!-c54ootbold .. · ··. ' ibat ~ Artidi3 W2s ~ -lb.tlia-, tbc Coartbdcl ooJi thaHbcbc.d~ooQc<:oGul>oO ·• 

) - A!1ide J was thai It applied ui ..Y eoaflii:t that was ootacol!1U<:< bc<WeOa stotes. :n.e eowt di4 not l!ldrtu.tbc&<t _ • · . that tbc ~bad n:acbod the OpPosite c0nci~JS!9ri m ~Fc:l>riwi'7. 2002,anl!". ~ roduc:!:d diat M. ~·the ..• 

. :-. -. <~i(1) . 

·· .· ~b)(3) N!)tSecAct l'00 30 ~ 

-48 . 
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· .. ·. 

:' ·· 

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A. 

Common Article 3 has been described as a "Convention in miniature:· lntemational 

Commit<.., of the Reel Cross. lean Pictd, gen. ed. W Ccmmtntmles ()II~ (/em!w> ConY<,.tions 

at 14 {1960). It was inteeded to establish a set of minimum standatds appticable to the treatment 

ofa.IJ detainees held in non-international umecl conflicts. 

1. 

Our intetpretation must begin "with the text of the lreaty and the context in which the 

written words are used." Scci~t~ Nationalelndustrielk Atropostiole v. Unittd States District 

"Corirt. 482 U.S. 522, 534 (1987); Eastern Airlines. Inc. v. Floyd, 499 U.S. 530, 534 (1991); see 

alsfq Vienna Convention on the Law ofTreaties, May23, 1969, 1144 U.N.T.S. Article31(1) ("A 

treaty_ shall be interpreted in good faith in accordance with the ordinaty meaning to be given to 

thetenns of the treaty in their context and in light of its object and purpoSe.");#• <>!Jo Ian . 

• "Brownlie, Principles of Pu"blic Jntunt1l{onai!Aw 629 {1990) ~ language of the lleaty must 

~>¢ interpteted in light o{tlic rules of general internatiOnal law in focee at the time of its 

conclusion, and also in light of the contemporaneous meaning of the terms."}." The foundation 

Or Common AtJi.ele 3 is its overarebing requirement that detainees "shall in all circumstances be 

treated humanely, with~t any•adverse distinction based on rate, color, retigion or faith, sex, 

·b\tth or Wealth;· or any other similar criteria_" This requirement of humane lleatroent is 

. 'supplemented and focused by the enumeration of four more. specific categories of acts that "are 

we~ shall remain· prohibit~ at any time and ~ any place wbatsoever." Those forbidden acts are: 

(a) ywtenee to l.ife and person, in particular murder ol a.u. kinds, mutilatiQo, erucl 

treatment and toJ1Ute; 

.{b) TaJci.os of hostages; 

. ·-~position of Ole Solic:Oo<Gcacral S..l26 s. O..at 2795;/d. .. l~s-46 (lloomar.J., 

.• , clisseiflin&)~C!JatdiomaPiiJdidiiOiadclrcoswbdllcr<ho~wasaml>guousorclckrcace~ 

~} ·. ' . : . · . 

: • • ~ lbc MCA C>CJl"'SSI)' ollows tile "''""''""• """"""tbe ·~oil" of Coonmoi> i.rode 3 by "l'<Udveonlcr",bchwfWIY.bOiild,_bkpr./f"""""~onofOielna1J. WldlewencOcloocfUUy 

. ~tbe ilsDe~"" baYCiittiC-dlatJOU.-oC<e>audl>islory, tbei'Jesidcr>t<:O!lld....-blyliDcl 

• diol'm . ._<>OOlli<:tootofu~~eiocr::rrrrift&ladi6tqri"">'ofoncor111el1ia)r~ . · 

~doc$""'-&rii!DICdooollict Will> .. inu:rrrllloaal t<m>rist orpllimiortocc:orsJin&""""'- boaDdories. .su,e.g .• Pidd, me.....,...; .. ,"' :w ("Spealdag~ 11"""' bo~ thai Ole<>oaOJcu 

rtimd ro iD AltJde 3 mamrodcoafticu, wi1h IIOIICd r..-oo eilhqtldo~ ~ ... in~ wblcll : .,.iD-,. ~ almDar to ID intcrrDlHlml War, buttdupl..,.,wltll/n the -Jindof• m.gt.......,..j · ~cmplwi< lidded). 'lbcid-, aUhcJuab ""'assume iD liabl ar Hanu{, ~ Commao. Artic:IC 3 rwti<s .. u.. pr<ow 

, .iw!Jia. ""Doto ~ .tJje Prtsidcol~ oocld intaprtt Commoi> Anlclc ~DOt li> apply by' an~ otti •.• • l"""!underdx;~""- . 

.; .:· .. : . :~ ·: .. . ';;~tbcthillcd Sa.ust.asooHatifiecitbevtainaConvaWoAOD~taw of~webneancn ., IOOk.d.,Artidcs3laridltoC1hc ~asaltOOQrtetorrulcsoC!r<31)1~'1ricldy~.ln 

··imimatioaallaw. ·.• · . • 

•' '4-'i,.i/' · .· . . . •• (b}(1) • 

(b)(3) Nats.lcAct ·. r-----

.. 'ii!ll flilfiil:liJI! { 00305 ,. 49. 
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(e) Outnges upon pers¢1\41 dignity, in particular, humiliating and degrading 

areaunent; 

(d) The passing of sentences and the carrying oui of executions without previous 

judgment pronounced by a regularly constituted oowt alfor<ling all the judicial 

·guwlees which are recognized as indispensable by clvilitcd peoples. 

Of these provisions, two have no application here. The proposed CIA interrogation methods will 

involve neit)>er the ·~ooog of hostages" nor the "passing of sentences [or] the carrying out of 

executions." 1'lru$, our analysis wiU foc.~s on parappbs l(a) and J(e), as well as Common 

Miele 3's inrroduaory text_ 

Where the text.does not farmly resolve the application of Common Aniele 3 to the CIA's 

proposed interrogation p~aetices,. Supreme Court Precedent and the pi'ICtices of this Office direct 

.us to several other interpretive 'lids. A:. with any u.aty, ,the nogoti,ating reoord-&so known as 

·,the trcnoaux preparak>iru-<Jf the Geneva Conventions is relevant. See, <.g., Zlcherman v, · 

• KOI'ean Air Lines OJ., Sl6 U.S. 217, 226 (1996) ("Because alreaty·ritified by the United Stai<O 

is i:IQt only the law of this l'!"d, but also ao agreement aD\008 sovereign powers, we have 

.araditionaUy considered as aids to its interpretotion the negotiating and dtaftiJia history (travt1U% 

. • preparaJoiru) and thC )10St·rat.ification uodersta.Dding of the ooniraeting parties."); ~• also 

Vienna Convention oo the Law ofTreaties Art. 32(a) (stalin8 that "supplemcriwy mwu of 

· · ititerpreWi'on, ineluding the preparatory work of the treaty," may 'be' appropriate ~ the 

) . Jn.eaning of the text is "ambiguoils or obscure"). With regard to the Geneva C<Jnventions, an 

.. " :. . 

additional, related tool is available: In l960, staff members of the International C<Jmmittee of 

' the Red Cross, many of whom bad assi<ted in dtafting the Conventions, published Commentariu 

;On eaCh o( the ~neva Conventions, under the general editorship of Jean Pietct · Jean Picret, 

. p. ed., C()mnWftariu on. 1M Geneva 'C<>1twmii0113 (ICRC I !160) (hereinafter, "Commentarief') . 

. . These C<Jrnmentatiu ptovido some insight into the negotiating history, as weU as a (airiY. 

eo~t'O"')ioraneous effort to explain the ICRC"s views on the Conventions' proper interpretstion. 

I .Tbe Supreme Court bas found the CammentariesJ!CI'Sllasive 'ill~ the Geneva 

. Conventions •. $« HQl'rd:Jn v. ~·ld. 126 S. Ct. 27 9, :!79~·98 & nA~ (2006) (citiJ?8.the 

·, CcmmtnUfrles teo 1ilDes in 'interpretio'g (;Qmmoo:Aniele 3'to apply.to the armed coo11iet·wilh a! 

.. :Q~ and explaining that "(!Jiiougllnot bindlng law, the [I;CRC Commentary) is.: as the parties 

· ·. ·;_eoogojz,c, relev8ut in int~g ~ Ge<>.,.,.Cooveqtions'').. · . · • 

·. . . In adai.tion, ·e<:lUio int.ematiooa.i bibunals have in recent ~applied Common Aniole 3 

... in wilt cnmes prosecution>-tlle International Tribw!al for theParm.er Yugoslavia ("'CTY") and 

the Internationll.erimlnal Tnlrunal fur Rwaoda("{CTR"). 'Ibe:ir deeisions may have relevance 

.. · ~persuasive ~~:~tbority: . Su' Vierinl Conveirti~ 0o the Law o[Tmiiies Art • ._3 1(3)(b)(stating 

.. : ~ "subsequc;nt pru;tiee·in application oftbe tnaey" may be rd~t to its in!erpret.alion), 11!• :S).preine·Court r6ceotly eicplaioof~ ihe iuteipretsti!'n Qf a tieatyyy an inrOmational tribunal 

-:· .. · ~e<! ~th adjudi~ ~between S;gnat<iri.S shout~ o:ecclve ~respectful 

' ... eonsiderati~D." &inchez-Utunas v. ·oregon, 'U6 S. Ct. 2669, ~3 2~; Stt.also Brt4rrJ.v. 

· 'Greeno, 523 u:s. 3'71, 375 ()~8) ~ airiain).:· 'The' Genevi Conventions themselves do 001 

' eliar&e.eithei lcTY or lCTR with 'this duty, (caVing th~ Views • ~niewtiattess weight than ·.. . . ·. · •,\. . . . : 

· : ~bjcj>: · · . : (b)(3) M~ecAet 

. ·.· to·n os· 
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: such a lrioonal otherwise might have. We do, however, 6nd several decisions of the ICTY of 

use, and that our analysis aligns in many areas with tbe deci,sions of these tribunals provides 

some comfort that we have accurately interpreted the l!eaty' s terms. 

Finally, we also recosnize that the practiet!J of other state parties in implemeoting 

Common Article 3 (as opposed to the statements of officials from other nations, uruuppoited by 

any con<:eere circumstances and conduel) may serveAS "a suppleroenwy means of 

interpretation." Set Vienna Convention on tbeLawofTreaties Art.l1(3)(b). We bave found 

only one counuy, the United Kingdom, ro have engaged in a sustained effon to interpret 

Common Article 3 in a similar contc:xl, and we' discuss ibe reiCvanee of that example below." 

. ,) . 

In additiQn, the Preparatory Committee for the International Criminal Coun established 

under the Rome Starutc bas developed·elemeots fo(crimes under Common Atticlel that may be 

lried before thai eoun, and an acc:Ompanying commentary, Su Knut QOrmann, £/emenJ.s of 

Crimes ~r the Rome Stature of /nJematiOnDI Crim!IIIJ1 Court: Sources and CommMtary' 

(Cambridge 2002). The United States is not a puty to the Rome Sutute, see Letter from John R. 

·Bolton, Uridcrsecretary of State, to U.N Secrewy ~erat KoR An>n (May 6, 2002) 

(ll1lDOIJ1lcing intention of the United States not to become a party to the Rome Surute), but 

several partieO·tO the~ Conventions are. Thus, while the Rome Surute does not constitute 

a legal obligation of the United States, and its intcrpre!Jition of the ollt.nses is not binding' as a 

matter of law, the Statute provides evidence of how 9ther state parties 'v;ei>o these offenses. Uke 

l)>e decisions of internationallribunals, the geocral correspondence between the Rome Statute 

and our interpretation ofGommon Atticlel provides some confirmation of the c:orreCIOC$$ of the 

interprt!Jitioo ~erein. 

. : ·~ 

. ~ .. 

rn addition to the guidance provi<!ed by these tladitio!"i tools of treaty iotcrpreratiQD, the 

Military Commissions Act substantially assists our inquiry. . • · 

TbeMCAameods the War Crimes Act to incl,;.se nine specific criminal offenses defining 

' the grave biia~ oftl)e Geneva Conventions, which we 1\ave discusscd·above. These 

amen~enu coostitute.authoritative statutory .imp)ementation of a~'" 'k ll!>portant, by . 

. "Tho~ oCDI&!>Yothc< ...... puti<s "'-I.Oc:ivil cooOicts _ ... .....,~\= Jilltply.. . 

violatoCoounoOAstiCic~witl>out~ay~ lbc -oO'~Iilr~ 

rq>e<ltldly iaslittfted ti.iuseasan official p>etice iDJCCkincto IOJlll'dS-iD lbell>cn-¥l<oo:boadrmy o! A.ls<dabdweeo1954aad.1962. flu. <.g., SbMEltd<biri,Fr.,.,. ... dtheAI&<rlan fl' ... : ~· P~lkyof 

.. ,'Fqrgclling' to a F~o/ACC00111rd>llhy, :14 CdUill.llum.Ris. I.. &v. 413, 4l1·2l (lOO)): Moro""""!'J, ~._,..n,...,.PiDIUSialoocl-o{CoamlonArode3 ill~:wilhlbelota:aal oco1!ic:tio 

. a..clarya. We dO q<it W..sucb.aclioosasa'&>JideiOthe .,...;ogorCommoo Artide3,aadiildocciiiiii!J'o!the 

• 

• .

• 

...... 

rqlOI1ed ayaaioils 

'tromwbot 

oflheso theyiD oation$110 fioetdo wbeo..,_- ~ Dot thoit 

tb:irOWilll<dicmllsccwity 

examples do rtin(cm:c the 

~ 

DCCd io ~­

• :. . "~~~~dr.for~~obl!catiOas~the~niudStoles · 

"· u.-tllc GeoMCoaveott,..,aadsuC:h~··p<opedy~ooi-o!tllc~ : . ~-- CoQgrc:ssn:gu!u!y~l~ iDJ>i~- tn:atyobliP.n-,aod Cllollq:islatioq • 

provides ddialitioas fJ>r Ullde6Dcd !""J'S or CJ!(ierwiSe q>cdlia tile~ 1qa1 d!eet of such "!"ties. Su, 

_Iii $£0&1 l.-- ·uJ030.7 .<'bx1> . > · :.(b}(3) NatSecAct . Sl . :· 
167 


628RIZZO52.eps

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(b)(3) NatSecAct 

·. "; 

·:.•. 

. , 

·· •. . ~ . 

. ,..:. ' .... . , t• 

.. 

. . . . · .. ·' • I 

.. ·.:. 

statutorily prohibiting cenain sp<;<:i6e acts, the amendments allow our intcrpre~ation of Common 

Article 3 10 focus on the margigs' of relatively less serious conduct (i.e., conduct that fulls shon 

of a grave breach). Accordingly, we need not decide ibe outer limits of conduct permitted by 

c:ert.ain provisions of Common Article 3, so Joog as wedetermiile that the CIA's practice$, 

limited as they arc by clear statutory prohibitions and by the conditions and oaf~ards applied 

by the CIA, do not implicate the prohibitions of Common Article 3. For tlut inlapretive task, 

lbe War Crimes 1\a addresses five ~c tenns of Common Article 3 by name:-"torture," 

"cruel treatment" "murder.• "inutilatioo." and the "talcing of hostages." ·Although the 'f/ar Crimes Act does no< by name mention !be three remaining rclevanttcnns-"violeoce to life and 

person," "outrages upon personel dignity, in.particular, huntiliating and degrading treaunent, • 

and the overarcbing requirement of"humaoe(}" treatment-the Act does address lbem in pan by 

identity;Dg and prohibiting four o<her "grave breaches" under Common Article 3. Three of these 

·Offcns<$-pert'orming bio)ogical experiments, rape, and sexual assault or abuse., see 18 U.S.C. 

'§§ 244J(d)(lXC). (G), (H)-involve reprehensible conduct tbal Common Miele 3 surely 

prohibits. The Act includes·aootber offenso-intentionally causing seriOus bodily injury-which 

may have been intended to address the gra\.e breach of "willfully Cll!sing great suffering or 

serious injury to body or health," specified in Article 130. Thisgrave breach is not directly 

linJced to Common Article 3 by either its tal, its drafting history, or the JCRC Commentaries; 

nevertheless, the "serious bodily injury" offense in the War Crimes AiJ. may substantially 

overl•p with Common Article J's prohibitions on "violence to life and person" and "outrages 

upon personel dignity." · 

.Congness-also staled in theMCA that the amend¢ "provisions of(the War Crimes Act) 

fully satisfy· the obligation under Article 129 of 11\e Third Geneva COnvention for the United 

States-to provide Cffective penal sanctions for grove breaches. which are encompassed in 

common Article 3 in the context of an anned conlliel not o(an ihternationel charocter.• MCA 

'§ 6(aX2) .. This Stal)ltory conclusion suggests.the view o1cOngness tbal the t.eml$ .. mu{der," 

"mutilation," "aue! treatment;' "torture," and tlie "tf.king of hostages" in Common Article 3 are 

properly interpreted to be cotenpinous with the identically 1Wlled off~ ill the War Crimes Act. Article .130 of the Third Geileva·CooveDlion C!<Preslly States that two of these cifftnses-

~rturo and inurder ("willful killing" in Article 130}-are giave breaches. As explained below, 

:mlematip'n3J com.tnentatOrS and·tnbunals believe tbal·• third off'Cns6--<:ruel trealment-is 

. ·i!lentica.t to the grave bt<ach of~inhuoian trealmelll~ in Anicle'l30. 1:0 Ciiminalize only a subset : <>f~ose acts would not be consistein ?'itb tbe ®ligation oftb_e United States und« Article 129 

·.of GPW, and Congr.ess believed it "fully .salist[led)• tbal oblig,.tion in the MCA." In any even~ 

. no legisl~ve history in<ficates that Coogress bcliev.ed the '!;V&r. Crimes 1\a left 8 g,.p in ~vera&· 

·• ci, 9U.S.C. §§ l0140S (oddrcssing !b<>~oope~tlle~ m!heRa;os»itioo ofl'otdp ~ A~t, lSIJ.S.C.§l093(~anddc:Wifli&t«;>softlle~ontllel'rcYcationand~oftlle · . 

. Crilll<lofGmoc:lde); 11u.s.c. § 1·16C•l (1\dlnioat<rmSof'tbo Colrlailioa lortbc~<>fLi!mlyand MlSiie 

:WO!b); 13 u.s.c. f 2339C (cldiaiDg tams ortlw: ~ OoavealialifwtbeSIIJIIlR$Siou oftbcr.....,;,gar 

ll'en'Odsm);~U.S.C.§$94(e)(~tlleUOit<4~1ocome~afl9~). •. : 

, ~w.:...X....;!!efiD!tdy~tlleqiXS\ionof~';~t!!tlle""'otller ~of~ Attie!C3-iD lbe war CrimeS Aa-"mntiladOn" anc1 tho ~.ar~-adlllaoew!Uch •wean 

exj>rusly In Miele ~orGPW. ~~ llfe ... ~by ~~~e ~ QA ioiaroptioa-

.. . :.._·_ :": 

. · ;; coji1f · ·: (b)(3).NatSecAct 

52 u>a3oa 
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'·· 

with respect to any of its offenses that expressly address by name specifio prohibitions in 

Common Article 3. Combining Congress•s view in its implementiilglcgis:lation with our own 

onalysis of Common A.rtide 3's relevant terms, iocluding the alignment of Congress's 

detin.itions with interpretations of international tribuna.Js, we conclude below th.a1 Congress• s 

view is correct ond that it bas in the War Crimes Act fully and correctly defined the terms at 

.isSOJe, namely "torture" and "cruel trea~t " 

3. 

Congress in the MCA also made clear, however, its view that the 8J"VC breaches dcfioed 

in the War Crimes f'ct do not exhaust the ob[i$ations of the United SUtcs under Common 

Aitid.e 3. The War Crimes Act, as amended, states that "the dcfioitionsfm the War Crimes Act) 

.are i.nteoded only to define the8J1lve brt3ches of Common Article 3 and not the full scope of the 

United Ststes obligations uoder !bat Attide." 18 U.S.C. § 244J(d)(S). As 10 !be rest, !be Act 

stales that the President may "promUlgate higbet standards and admini$1tative regulations for 

violations of treaty obligations which are not 8J"Ve breaches of the Geneva Conventions." • MCA' 

§ 6(aX3)(A). . 

Our ioquiry wilh respect 10 !be residual meaning of Common Artide 3 is therefore 

ci>nfined 10 lhelhreeterrns not.c:xpres.ly defined in the War Crimes Act- "violence to life or 

per$00," "outrages upon persooal dignity," .and "humane" tteataient-to the !'Xlent those terms 

have meaning bel,ond what is oovered by the four ldditional offenses und'er the Wa< Crimes Act 

. described above. • The President, MOmbe<s of Congress; and even !ustiees of \he Supreme 

'Court in Hamdan have reoogoized that these provisions are troublingly vague and that post hoc 

int!"i>reiat!oos by c;ourts, international tribunals, or other state piuties would be diffieult to 

· predict with' aJ! ac:cepiab!e degree of certainty: See, e.g., Address oflhe Prcsiden~ East Room, 

. "?{biteHouse(Sept. 6, 2006) ("The problem istbat these (e.g., 'outnges upon personal dignity, 

, in particular, lunnlliatinli and degrading ireacment'] and other prqvi.sions of COmmon Mtide . . 

Tbre¢1U'CYSgUcand W¥1efined, and each oould be interpreted io'diff'erent ways by American arid 

foreign judges."); JS2'Cong. Ree. S103~ 810412 (Sept. 15, 2006) (:>taiernent of Sen. . 

;)l!c:Cain) ("ObS<:i've<:s have commented that, thOOgb such '0\ltrages [upon Personal dignity]' a<e 

. di.f6j:Wt to dcfint precisely; we aU know.thtp> when' we see them. Hawcver, neitbei-1 oor any .Other i-esponsibie member of this bOdy shOuld W..t to prosecute aoct(iotentially sentence to death 

ariy individual for violitiQ8 sueb·a vague standard:"); Hamdan, li6 S. tl. at 2m \Common 

'Article 'i obvidwly tolq'lleo a great d~or flexibility in'tryins indivitlu.i. capiured during· 

'armed conjliCt; its r<qilire<nents ate general ones."); id a( 2848 (I'bomas, J., disseniiog) · 

~ehiracteriiing provisions 1n Common A,rtic.le 3 as "vague" and "ndJul""'"l: 

. . They wer~ no~tbe first to ri:mark on~ unOcrtaioty, nor is tb~ ~.in occident.-

,. ·' · ·}'be ~es explaiJI that !be c;onven!lons'· negOtiators f6Und it "dali'gerous to uy:io go 

\ · •. ·into too 1011eb detail" and thus !'OUght "ftexible:· ~gethat would keep up, with ~nforeseeo 

. 

. 

.. ·: .' 

. . 

circumstances. Pietct, m C01yrmei!l/>rle.i, . . at 39; ·.· ..u N . Commentariu, 

. . . 

•! ~04-05 ("'t . ~ 

. .. ·.:·;· ·· 

S3 . 
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useless or even d&ngerousiO atlempl to make a list of all the factors which make treatment 

'bum&ne."'); st~ also 2A Final R.-d of Dipl'omotic ConferencuofGomva of 1949, a1 24& 

{"Mr. Maresca (italy) thought tha1 it gave greater fOrce 10 a rule if he merely stated its 

fundamental principle without any eominenu; to enter into too many details could only limit its 

scope.j. 

The difficult task of applying these remaining terms is subsuntially assisted by IWO 

inlCf])retive tools established in United Swes praelice as Well as international law. The first of 

~esc turns 10 more developed. United States legal standardo-simil&r 10 those set forth in 

:Common Anicle 3-to provide content 10 Common Anicle 3 's otherwise "general terms. This 

· approach is expressly recommended by Congress in-the Military Commissjons A<;l, which 

reaffirms the constitutional standards oftrealment txtended abroad and to aliens by the Detainee 

Treatment Act. The MCA further provjdes tha1 any yiolatinn of the constitutional standards in 

the Detainee Treatment Act in connecaion with a Common Article 3 anned conflict constitutes a 

· viol.¢onofCommon Aniele3. S..eMCA§ 6(aXI). TheMCAtbus both pointS us IOpartiwlai 

.domestic law in applying Common Anicle 3 and leaves open the possibility-advanced by many 

during the deba~A> over the MCA-that compliance with the DT A as well as the specific criminal 

· prohibitions in the War Crimes Act would fully satistY the obligetions of the 'United States under 

. Common Anicle 3. · 

During the legjslali¥e debate over the Mililar)l Commissions Act, Secretary of SWe 

· C!>ndol~ Rice explained .wby the State Department believed that Conaress reasonably could 

-declare tha1 compliaoee with the ot A would SBtiSJY United States obligetions under Common 

Article3: · 

In a ease where the treaty's terms are inherently vague, it is appropriate for a state 

'!' look 10 its own legal framework, precedents, ooocepts and norms in interpreting 

· these tenns and carrying out its intemation4J.obligations. ... The proposed 

Jegjslation would strmgthen U.S. adberen«e 10 Common Anicle 3 of the Genevt 

' CoD¥entions .heeause it would add meaningfUl definition and clarification to 

. vague tenns in· the treati~. . .r. , . • • • , 

. :··.·~= · : ioJbed.epartment'sview;theteisoot an$1$tloUidootbe,~incOnsisteOcy'Witb . respect to the substantive behavior that is probibilect in paregrapbs (&) and (c) of 

Stction I of&mmo!' Article 3 and tbe'bebavior tbi(is probibil9'1 as •aue~, ' 

Uihumi.n,.O< degrading trealplent or punj.shment, • '!'.that phrUe is defined in the 

U.S. reservation to the. Convention Apinst Torture. that sub~vc standard 

-was·also utilized by Congress in the Detainee t'reatinent Aa. ·Thus it is· a • 

. reasoilable, good Caitb ~on of Common AJ:ticle 3 10 state .•• ·tb8t the . 

.. " ; •. ,_ · prohibitions rouDct in~ ~cit Trt;atmenrAct o£2005 fuli,Y satjsfy the ·. . 

'. obfigatio~ of the.tJnited Statci ~tb resjiect to the SWICbtds for delelllion ~ 

· ":··-·. . trea~mentestAblisbed inthosep&rt8raJllisofCooimonArl!cle3. · · 

• -~'.·. · .. : ~tet~d! SeaetaiyofStateCondoleeztaRi.cetothe~o~r'ai>JC Jobn Warnei. Cb.innao~fthe.- ·• 

· . Sooa~ Aiinid Setvi~ Conlmittqo.(~ L4; 2006) ("Rice):.etter"). :1n eoactiJig.lhe ~CA. ·. 

, ,_,,J Co"fess'did not 'l":"ifically declarelhat~satisfaciion o(tbeDTA woula saiisfy.pnited ~wes 

(b)(1) . : • . :· 

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obligations under Common AJ;Uele 3, but Congress iook measures 10 leave open sueb an 

·interpretive deeision. In partirular, section 6(aX3} of the MCA expRSSiy delegates to the 

President the authority 10 adopt such a "reasonable, good faith interpretation of Common Article3," and section 6(a)(l) provides that the prohibition under theJ)TA is directly relevant in 

interpreting the scope ofUruted Statetobligatioos under Common Article 3. 

. It is stri~ that Co118JCSS expressly provided that every viohition of the DTA 

"constitules [a] violatiooij of common Article 3 of the Geo.Va Converitions prohibited by Uruted· 

States law." MCA § 6(aXI). Ewecially in the context of the legislative debate that aocompaoied 

the passage of the Military Conunissions Aa. this statement suggests a belief that the traditional 

constitutional standards incorporated into the OTA very closely track the humanitarian standards 

· of Common Article 3. If the fit wczeloosc, it would bcdiffirult to foreclose the possibility that 

some yiolatioos of the DTA would oot also be violations of Common Article 3, unless Congress 

were of the view.that Common Article 3 i> in all oases more protective thai> the dom~ic 

constituiional provisions applicable to our own eitiuos . 

• T'bc manner in which Co~ reaffumed the President's authority to in1erprit the 

Geneva Conventions, outside of grave breaches, is consistent with the suggestion that the 

Detainee Treatment and War Crimes Acu are substantially C0"81"ent with the ~uiremeots of 

Common Article 3. The Military Conunissions Act, after identifYing both the grave breaches set 

out·in the War Crimes Act and tTallSgressions of·the DTA as violations ofCommoo Article 3, 

stotcs that the Presldcnt.'may "proJilll]gate higher standards and admiuistrative regulations for 

violatioJlS of treaty obligaiions.wbich are not grave breadr<s of the Geneva Conventions." 

MCA § 6(aX3XA) (emphasis added). The provision does oot mention the DT A:. While tbe 

j,roVision indieateslhat there are violations of Common Article 3 that are not 8J11vc br<aches 

, · covered by the War Crimes Aa. it also implies that tbc DTA may address those additional 

.. violations. Su ofso 18 y.s.c. § 244 l(dX5), as amended ~YMCA§~ (Slating lhal "the 

definitioJU [in the War Crimes Act) aie intended only to define tho grave breac~ of Common 

Article 3 and not the full scope of the 'Onited Sl!les obligations under that Article~). 

. . In ~lying the DTA's·standartl 'or bumaoe tr~cnt to Coau:nO.n Article 3, Congr.SS 

·•. W\S·acting in aC:conlaooe with a practice gtout.ded in tlle text arid history of the Geneva . · 

• • ···,Conventions. The Conventions themselves reco8niz,e that,~ from "grave breaches," ibe stale 

. ·:··- . · . Pvties bave some flexibility to oonsU!t tbei.r owo I~ traditions in implemeoti»g aod 

. :. 

. d~ their' treaty obtigati~os, . Al.thougb parties are <?bligaied IQ prohibit anve breaches, 

· with "penal sanctions;: .su GPW Art. 129 1'11·2, the Con.ventions reqilirC parties'."to Wee 

measur.s necessary for tl!e suppretsion of other breaches of. the Conventioo(s]." i<i 13. 'Ibio · Ccmmeniaries also suggest suCh an' approach wbCo they cicp1ain thai Common Arlicle 3 was 

drafted. with refereo~ to th(tb.....exiSiing doroesti~ Jaws.of ~ parties:' It.•mcrely .d~ 

· · · respect f?r certain rilles, wbich were ~cady recogoized as esseptial in all civiliuil i:ouotries; and 

• ;. Olbboc!ied in the natio~ Iegislalionofthe Stales in question.• · ?ictel. ill C.oiiunenlltn~,at36 . 

. . Not only was tbe United -SI!Ies ~ng.ibe Coi>venti~' !~ills drafters, but 1t W.. then (as it iJ .. 

-·. . oow) amona tbc leading constituiional dtolocnctes of th'O world. ' It is therefure tilanifestly . • 

. , ... • :; : appropriate ~or~ United States to coosid,t;r ,it$ ot-.'0 wnstltUtiooat~on.:.-ihoie rules . . , "embodied io the natiooallegis)at{on" of the United JltiteS-in determining the meaning oftlie 

' . :(t;,1·l·· . ·. : . . .• .(6)!3) N~t~ct !fli~ llf!iiWii,___:-:---~-'~ . Ul3311. 
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general. $1A!Idards embodied in Common Article 3. The DTA incorporated constitutional 

standards from our Nalioo 's legal tradition that predate the adoption oftbe Geneva Conventions. 

Indeed, UIC United SLues previously bas looked to its OWJl taw to clarify ambiguous 

trea1y tetmS in similar treaties. A leading example is now embodied in tbe DTA itself. Faced 

with an othelwise undefined -and diffirult-to-apply obli8atlon to refrain from "cruel, inhuman, or 

~egrading trcallllent" in Article 16 of the CAT, !he Senate turned to our Nation's constitutiooal · 

muvt,..rd.s and m"cl~ el~ in it$ .advice t.nd consent that die ob~tion of the UnitM SuuL~ t,~nder 

this provision would be determined by reference to the Fdlh, Eighlh, and Fourtecnlh 

Aniendmeots oflhe U.S. ConstitUtion. Su E:acu!M Brt:mt:h Summary and Analysis of /he CAT 

at tS-16; S. Exee. Rep. 101-30, Cm•venlion Against 'Torture and Other due~ lnlruman or 

D6groding 7)-eeument or Punishmtnr at 25-26 (Aug. 30, 1990); see a/SQ Sanlann v. 

Ccmmissioner, 313 F.2d 461, 463 {4th Cir. 1963) (looking. to a more detailed definition ofa tenn 

in. domestic u.s. tax statuteiO inte<pret a comparati\'cly geoeral treaty tenn). As with tbe 

Geocva Conventions,' this approaCh was' at least suggested by the trea!y itscl~ which n:qui(ed 

state parties to "uJJdertake to prevent . .. aueJ. inhuman, or degrading treaunent or J>Ulli!hmCilL" 

·CAT Art. 16.(empbasis added); see ~liw Branch$1JJ71111<liy.and Analysi~ of the CAT, S. 

'frea1y DoC. 100-20 at IS (cxplai,ning that this language is "O!Ore limited" than a "stringent. 

prohibition·· and ..:embodiCs a.n undertaking .to ta.ke mC8$Ures to prevent'·' violations within the 

rubric of existing domestic legal structures) ... 

·Tbe second interpretive tool applicable here attempts to reconcile·tbe residual 

impfecision in Conunon Article 3 with its application to the novel eoofliet.against al Qaeda. 

Yn>tn treaty drafters purpos<!ly etnploy Wgue and ill-dejined language, such language ca:, re.floct a conscious d9Cision to allow state parties to elaborate on the meaning· of those terms as they 

confront circumstances unforeseen at the time of the. trea1y's drafting. 

Like 011r first interpretive principle, this ~pproacli shares the supPort of Congress ~gb 

tbe·ftam~rk established in t!Je Military Commissions Act.. Iu that ACI,. eongress chose 10 keep 

' the Geoeva Conveotions out oflhe ~ and recognized tbBI tbei!xecuti<ie Branch !u.s . 

_. . . disaetion in interpreting Common Article 3 (ouiSide-the gT.ve breaches) 10 provide goOd faith 

• · · · applications ~fits ""8'1• teims 10 cvolvil\8 cif!:umstancet. The eocpliCi.t premise behind the Act's 

· comprehensive fi1.1Dewor!t for interpreti.og lhe Geneva Coilven.tioos~ is tbBI oUr GoVeminept 

needed, and the Conventions perOlitted, a railge of cliscntioo for addressing the tJu:eat J18l!irisl the 

.· . 

' · · . Qniled'States Pt;<Sented by ai-Qaeda: As we discWaed in the co!'leort oftbe DTA. Congress 

;bow that a CIA inteiTOgatioo program bad to be part oftbat disCtetion, and ilrus a guiding · 

. obj"!CCive behind th<>.MGA's enactmell\ was that lhe ClA's p(Ogrim OOuld "go for'lyatd" in tbe 

~of Hamdan. ~· svpra at 43-44. This is not Ill "'!f. that the~~ declarea. ibat ~y eo~uct 

• :•. ·: • • • • 40 Its a~ ~Dauer. ibe United Saatcs aDdai~ t resr:aY11ioD to thO CAT.-tJahqd SW&i 

· .. -;· , . ~lhat~~m.o:~.!~::!.~~~jO~~ • • ~cn>tl, UWmwl.or~"""""'" ... ~ ~rajuired by~ u.aty, ...tdicnf .... i~ . 

ther=:ivali011outof.mabwldaoooof.emtiO.iodootbcauseill!etie.edlhatUohcdStau:s1&1!'WO<IIdl¥J-of. 

tbeoblipliDDSi¥Jder Mi<le'l&,pnllltrly- S. B>oc.Rip.IQI::)O, ~ooJjg.UUSTOTflln.andOt/J<r 

Ow~ l~oi-D<rr~:n:-'"' fw!Lrhmenru2S-26(A>o&-JO; 1990).' •. · ·. . · . 

(b)(jJ . . (b )(3) NatSecACt 

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' . ·: ... 

.... ·: 

... ... 

/".-

fatting under the auspi<:e$ of a CIA: intenog;uioo program must be oonsistc:nl with CodlmOn 

~icle 3, To the Contrary, Congress recognized that Common Article 3 establishes some clear 

limits on such a program, Nevenbeless, the result of lingering impreeision in Common 

Article 3 's terms should oot be institutional paralysis, butr&ther discretion for theExeeutive 

Br&nch in developing an·effective CIA program wilbin tho~ clear limits. 

Common Article 3 certainly places clear limits on how a state party lllAY address such 

challenges and absolutely bars certain conduct offensive1o "all civilized llllions." Pictet. m O>mmenkiTies, at 39. For ~ee, the provision prohibits "murder of-all kinds." •mutilation." 

.,jd "the taking ofbosiages"-terms thai io.re susceptible to precise definition and lha1 "are and 

shall remain prohibited at any time and in any place whatsOever." When it comes, ·howevu, to 

Common Article 3 's more general prohibitions upon "violence 10 life or person" and "outrages 

• upon personal dignity," it may liecome necessary for sta1es to define the meailing of those 

prohi~iti~. not in the abstnct, but io their applicali<?n to the specific ciraJmstanc.S that arise, 

Indeed, the IGRC Commentaries th~mselves contempla1e that "whaJ constitutes humaoe 

treatment" would require a sensltive balancing of both S<CU!ity and hum~nitarian concerns. 

Depending on the cir<:umstaooes and the purposes served, detainees may well be "thh object of 

strict measures sioce the dictates o( humanity, and measures ohecurity or repression. even when 

they are severe, ate not necessarily inoompa1ible." ld ai 20S (emphasis added). Thus, Common 

· Article 3 recognizes that st&1e partie$ may· act to define the meaning of humane ttea1mc:nt, and its 

related prohibitioos, io tight of the ~c seeurity challenges at issue. 

.. tbe.eonfli!'! with aJ Qa!J<!a reflects pneeisely such a novel clr=n~: The application 

. of Collllll<?" Article 3 to a waJ: ~SI interllllional tenorists targeting civilians was D91 0!"' 

oontemplated by the drafters and negotiatOrs of the Gtneva Conventions. As Common Article 3 

was<lrai\Cd·in 1949, the fOaJs was on wars. between ua.ifonned Ulllies, asytcllas on the 

atrocities thai bad been;:ommitted during World War~ A. common feature of the eoallicts lha1 

served as the hiStorical backdrop foe the Geneva Conventions was the objective of the parties to 

engage t)>e other's military forces, As the ~CRC described the !Jl.lller, "Speaking g~ly, it 

must be recognized thai the eoollicts refen;ed ·to in Article 3 ate armed conflicts, 'Wilharnied· 

for~ on either side~ io;hostifid~!'flicts, in short, wbic;h are in many~ 

. similar to.an iotenljltiooal war; but tAke placewithin.theooofines of& single country." ?.ictet, m .. Comm«ntaries, at 37.(emp.h;ue$ in originAl)." · 

: • . : · AJ. Qaeda in ils.;.. ~~the United Slues ..id.its 'allies is not organized in~ . 

. ba11alions, under respoosible ocimmand, or dressed in unifo~ O!tbous!> we oeed not decide 

whmet these baJimadcs of unlawful oom~taney set·al Qaeda iolO a .class by itsel£ ~ is 

undoubtedly novel fr!>m the itandJ>OiiJ1 ~f'the ~eva Coo~tions is'tbaLaJ Qaeda 's prilllAty . 

•. ~~lhoSupmi>eCowt ~d>e~ •• ~lhateoiaaioo~l dld'i>ot ' 

.apply to lhoOOidliaopinslal~ !I>Cn:""' bo·llale-Q>atlhejloradipntic case lllr tlledtaft<adCcmmon 

· Artfdo j _ .. lm=aldWWU. 2B FlnoJ R<COrd.ofdit Diplomdk ~ off;tnev<> of 19'49,11.121; ,.. 

; · :.•: .. :. •• a!>o ~m~.ll29. A~iDI"JJ""'lioo oCcOmmooMick~must.-dJOCIIhat'~ Anic:Jcj,ato~iJ~tl-omlt<lllS!orical..,.,.;,pwtieaappli<dtolboJll'!'<"'_,..,dllllllid • oon1licl witb al Qoodi . . . . .. . . . . . . 

· ... (pX1 f : • (bX3) NatSecAct 

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·. ' 

·· ... .J 

.~:. 

••••• 4 

-·:. 

means of warfatc is not to vanquish other unifonped annies ~t rather to kiU iMo«nt civilians. 

In this way, aJ Qaeda does not resemble the insurgent forces of the domestic reheltions to whicb 

.the draft"" and negotiators of Common Ai6ete 3 intended to apply long-standing principles of 

the Jaw of war developed for national annies. Early explanations of the persons protected from 

action by a state party under Common Article 3 referred to the "party in revoh agairut the de 

'J~~re Gowmmerrt." 2B Final Rucrd of the Diplomatic Omftrerrce of Geneva of/9<19, at 121 

(emphasis arlded);-.we also Pictel. ill CommenfQTies, at29 (explaining thallhe historical impetuS 

·of Common Article 3 was bloody "civil wars or social or revolutionary disturbances" in which 

the Red Cross had trouble intervening becaose they were entirely' within the territory of a 

sovereign state); id. at 32 (discussing the paradigm model of"paltiots struggling for the 

independence Md dignity of their countty"). AJ Qaeda 's _genetal mCMS of engagement, on the 

other band, is• to ~void direct hostilities agailUl the mili!MY forces of the United States and 

instead to commit acts ofterrorism as-iost civili'!" wgets. 

Further supPQ!ling a cautious approacb in apply;,$ Common Article 3 in the p~t novel context, the negotiators and signatories of Common Article 3 were not under the 

impression that Coi)IIDOD Article 3 was breaking oew·ground regarding the subs~ve rules that 

govern state partico, apan from •pplying those rules to • new category of persons.., They sought 

to forrnAliu "principles [that bad] developed as the result of centuries of warfare and had already 

tiecomc custoawj law at the time of the adoption of the Geneva ConveotioM because they 

ret!~ the most urtivenally recognised hunianitarian prin.dples." ProstCJtor v. De7alic, Case 

No.IT-96-2l-A,(ICTY Appellate Chamber 2001); su also Pict~ m Commtl}fQTico, at 36 

. ·.(explaining that'Common Article 3 establishes. rules "Wbicb Wetc a/r.ad)l recognized~ essential . ill ill civilized COWJtries")•(empbasis added). Of course, the application of Common ·Article 3 's 

general stindarcls to a conflict with terrorists whO are focused on the aestruction of civilian 

wgeu; a type of conflict not clearly anticipated by the CoQVeotioM' drafters, would not mOldy 

.utilize the axiomatic principles that hall "developed as the resnlt of centuries of~." Thus, 

we <DUS;f bC cautiQus before we construe these p~ to biDd a s..tate's lt&nds in addressing sucb 

a threat to its civilians. 

• ·. That a treaty should oot be uglitly ~ed to take away web .a !Undameota] ~vereign 

· . respoMibility-to ptO!cct its homelaDd, civilians, and allies from cataStrophic alla~-is an 

inleipmive principle recogniz.ed in interna.tfonallaw. ·"&e. ~nhim 's lnte.rTratianpJ lAw 

.. "§ 633,"at t276 (9th ed. 1992) (explaining. that the in dubio nut&; canon provides that tmWei 

should ®t be co~ed to limit a "'?Vereign 'right of stall)$ in the" absence of all~ · egreep>ent); cfMerritm v. JICtirlllilApat:he.Trf6e, 4~S U.S. 130, 148 (1982) ('sovereign power" 

· Cannot be relin<]liisbed "unless surrendered ill wintistakable tl:rmS"). 0 1be right to prot~ its 

"As ~ ll>oYe,"the fnoovoiioo .,~ Arlidcl-""' to impose wbclly aO.d ~Oil "JIIIts,obutloipplyttie llwol-oociVilwarslbat1aqp:l1sbaredthe~olh11autlooal......S . 

' ~ wbilo lad<iJI&a Slalc partyoothe~GdO t1111t a>Wd boa participaDt Ina~ r<i::ip:ocal treaiy • · ·..._..,.;.. :S...Pi<U:I. IDO>nimenl4riu.a31. ~thediJ,IImwac~bibludincSIIIeStollw.C 

. . .;., ~-Ill assurance tll3t the.enmiywOwd do the pme,lbeybeliMd that the pmJ ba$clino 

. tbor!~a~ruodcr~Artif•l...m:~~~~Usb<d. · · 

• • · 0 The canoo·of In tblblo mfmu<i;t<nUy, "wbeo"ill ~~aim") tw-iJ>i,licd 1>1-. - rrlbuoalstoconsorue~....,..;m..,..,.. the~olftuwlamaul..-dp 

:. : ~b)(1 . 

. . (b){~) NatSecAct 

PSf'iM~ _j~ 

· .. 58 
174 


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) 

: -·· 

citilens ftom foreign attaclt is an essentialattiibute of a $tate's sovereignty. Advisory Opinion on 

the Legaliry of 1M Threat or US. ofNucltJ:tr Weapons, l9961.C.1. 226, 266. To be sure, the 

states negotiating Common Article 3 clearly understood that they were disabling themselves 

&om uodcrtaldng certAin measures to defend their governments against insurgents scdcing to 

0\'enhtow those goveniments, which inarguably is an important part of sovereignty. We would. 

however, expect clarity, in the lOlii or uleast in the Conventions' negotiating hi$tory, before' we 

would interpret the trealy provision to prohibit the United States 6-oin taJcina actions deemed 

eritiul to tho oo~eign 'fuoetion of pmtoct~s i!-' eitiz,en;s &om eat'a.$tt0pbjc fOf'Cign tcrrori$t 

:attaCk. Crucial' here is that the CIA'~ program is determined to be n~sary to obtain aiti~ 

intelligence to ward off catastrophic foreign terrori.st attacks, and that it i• carefully designed to 

be safe and to impo10 no more discomfort than i> n~ to aehiM that crucial objective, 

'fundamental to $tate sovereignty. ]11$1 as the "Constitution {of the United States] is not a suicide 

pact," Kennedy v. MD~dbza-Martinu, 314 U.S. 144, 159 (1963), so also the vague and general 

terms of Co=n Article-3 should not be lightly interpreted to deprive the United States of the 

means to prote<:t itB citiZens !Tom terrorist attack. · 

· This insight inform$ passages in the ICRC Co71ftnentaries that some have cited to suggest· 

that the provisions of Common Article 3-to the eoctent they are not precise and specifi~hould 

be read to restriCt $tate party disaetion wheoe.ver possible. The Commenl<l(fesindeed recognizethat, in some r~ adopting more detailed prohibitio~ in Common Article 3 would have 

been undesirable beCause the drafters of the Conventions could not anticipate the !DC8Sures that 

men of ill will would develop to avoid thetcans of a more precise Common Article 3: 

'1fowever greu•the care '!"dertaken in~ up aliR of all tbe vorious'foi'J'!$ of il>flictioo, it 

would nev,er be poSSlole to catCh up with the imagination of future torturers who wished to. 

sati!fY their bestial instincts; and the more ~itic and ~mp ete a fist tries to be, the moJe 

restrictive it becomes:· Pictet, m Co!nmenl<lrles, at 39. It is no. doubt true thereti)re that 

Common Article 3 's 'geDetll.probibitioos do establish principles tliu preclude a range of 

conduct, and.that they shou)d DO{~ subject to a teeluiical reading that parses among coodu~ . 

. To the contrary, the principles in Common Article 3 are ~erally worde9 .. in a way that is • . 

"flexible, and at t.bO saine time precise; id., and they call '!pDD stat'e parties ~o evaluate proposed 

wnduct in • good'faith Wanner, in an effoli tb make compatible both "!be dictates ofbun;aniti.' 

• • · 1 

·. towards oo.ml!al4nts and ibe,''niCUires QfSec;wity and repr~ion" ,pproprillle.to'ddending 

·one's people &om ~· atlllcb in the t.nncd·conflict at issue, id. it 205. We, therefore. 

. ··~ ~.'·: 

· .. J · .. 

un~e;rtake such ~ inquiiy tielow: · ' 

]l. 

' These int~retivc. tools inform <iur aoa!ysis oftbe'tliree r,devaot termS und¢!' Common 

· Aftiel~ 3: part18f1Ph·l(a)'s proi!J'bitioo on "viol~ to life and ~o. in p~cular murder o~all 

:. 'P.,wC.$. '.1(< W.T ~Bo4J.ii::M.,.,.,..~M.dt~~~dloi..,~(JI~u),' · WTIDSWAIIIRI116S,..: 1~,1998WL:W2o,u•46(Jm 16,1m)(~!baul>e~prlaciplc 

· ottn dlibt•mJ!f!uli·wlc!dr """'SJ'he<hU. ~--!a,.; .. a sopp~emen~arymc.nsor~ "). F« 

C:xamp~<,dw:lolano,t!oulo:.at!lf!osdoetdbsod tollOIISUlleiDamb!-treotytam(o eod<~-­

~ tt:irifory witlloula dearSW<:ID<IIC Su 0... ~lng S.,..U.tgmy....,. Piti.U'Ugl/4n tllld 1'11/w 

Sipod<ln. . LCJ. 6-;s, 6<8. · ' 

(b}41 ) .~iwSa>;.t= lG0315· (b)(3) NetSooAct 

~9 
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) 

··· . . 

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Olriija;wp-· 6:i£Eiio. iZPi110FTFTIL_ ____ ~ 

kinds, mutilation. c:ruel treatmertt and torture"; paragt&pb l(e)'s.probibition on "outra&es upon 

personal dignity, in particular, humiliating and degrading .treatment"; and Coaunoo Article·3's 

ovC<arehing requirement that eovered persons "be treated humanely." Although it is first in the 

syntax of. Common Artide 3, we address the gencp.J humane treatment requirement last, as the 

question beeol!le$ the extent of any residual obligations imposed by this requirement that are not 

addressed by· the four speci~c examples of inhumane treatment prohibited in paragraphs l(a)-(d). 

1. 

Against those persons proteaed by Common Artide 3, the United StBtes is obligated not 

to undertake "violtoce to life and person, in particular murder of all kinds, cruel treatment and 

orture.'~ GPW Art.ll(a). Paragraph l(a) raises two relevant questions: Will the CIA 

program's use of the six. proposed techniques ineet Common Article J's general requirement to 

avoid "violence to life and ptnon," and wiU their use involve either of the potentially relevant 

Cl!Bmples of"vialtl)ce to life and person" denoted in paragraph I (a)-torture and cruel 

irwment? · 

a. 

. · Th~ Jiroposed techniques do not implicate Common Artide 3's general prohibition an .._viOienec to life and person." Dictionaries define the term "violeDGe..., as "the exertion of 

physical force so as 10 injure or abuse." Webster's lhird lnJ 'I DictiCTnfiTY at 2SS4. The 

ourrounding text and struC!Ufc of paragraph l(a) make efear that "violence to life and person" 

does not eneomp&S$ every use afforce or evecy physical. injurY. Instead, Common Article 3 

provides specific examples of severe eonduct covered by that term-murder, mutilation, torture, 

and cruel ~nl As indicated by the words "in particular," this list is not pbaustive. 

Nevertheless, these.UrrOUJ?dingterms strongly su8gesttliat paragraph l(a) is directed at only 

serious acts of physical violence. Cf Dole v. United Slealworkers of Am., 494 U.S. 26, 36 (1999) 

("The traditional canon ofeonstruction, ~fliT a sociis, dlc:Wes that words1!'"0uped in a list 

sliould be given related meaning.">: · · 

· ·This reading is supponed by the ICRC Comm~iis, .:..Web cxplaili that the prohibitions 

. . . •. , · in Pat118'"Ph !(a) ~co=a<:ts wbieb world public.opinioo finds parl.iculady revolting--acts 

.wllicl) were committed frequently dw'ing the Second Wo'rld War..". ~ictet, PI Commintarits, at 39. International tribunals and otl>er bodi~ similarly have focused .on.lerious OJid ~emional 

· instances of pbysi~ force. 1\.t the same time; -these bOdies have had difficufty idtl)!ifY;ing any 

... ~dual contentto the ti:nn "violeix:e to Ufe and j>ctlon" beyond the four spec;ific<:xarnples ·or 

-prohibited violence that Common Article 3 ·enumciates: The ICCs Eiements of Crimes does" qat 

' ''<ICJIDe "violence to life or pelson" ·is an 0treose.separatefrom ihe four specifi~ examp!es. ThO · . · .. . : · ~CTY similarly has suggested that the.ferm may. not !>Ave di;eemable·eontent aPJI! from its four .\ 

. '\ ·· -'· . . ~~s:omponents .. The ~bwial ~ally ~a that. ~O enceto life'Or ~n·: is .. d~~ by· 

· · ~ · : · tbe llCCU.anilatioo of the elemerits .of the specific o~~nse:f of• murd~, nnttilt;txon, erue:l trt&tmC'llt, 

••• ·:·.'·:· :. : • ... aru! tocture, '

1

' and <lcclfued to define other stiftil'iclit conditions for the offense.." ~tor v . 

. . 1J~c. n:-9S.l~-T.11&2.f.l'rial Cbaaiber). ln~ter the tnbun.u a finer point co the 

matter, .at Ieist for pwposes ofiniposing eriininal,sanctions. th~ c;oun CO!lld"DOt identify a . resjdual content to lhe term "violCIICC to life~ person" ~ _di$misseCI cbirges that the 

.;'

· 

./

. 

.

· 

(bXlJ

(bl(3)

,. 

N~tSecAct 

ii' ~M...,._ o ~ 

l00316 
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defeodant had ena'!led in "'violence to life or person" that did not constitute tprtitre, auet 

treatinent, murder, or mutilation. fke Prosecutor v. Vasilfmc. Trial Chamber,11 194-205 

(2003). Bven when prosecutors attempted to proffer dements of the "violence to life and 

person" violation as a ~ing ofl'eue, they argued that the offenoe required the imposition 

of"serious physical pain or suffering," _which would make it duplicative of the prohibition on ~cruelu:eaunent_ • !d · 

We concl~de that the pfOposed CIA teehnlques are consistent with Common Article 3's 

prohlbition on "'violena: to life an~ person." ru we explained above; Congress strictly 

prohiliited ~ serious forms ohioleoce to life and person, and the teeliniques do not involve 

~y of these. The ICRC Commentaries have suggested that "performing biological experiments" 

would be a type of"'violenee to life and petSon" tha~ althougll not explicitly listed ~on 

' example, is also probibited by paragraph l{a). ~.e.g , Pictet,.m Commtnlbri,es; at 39. The ' 

CIA techniques do not involve biologiC41 experiments, and indeed the Wat Crimes Act · 

ibsolutely probibits,them. See !8 U.S.C. § 2441{d)(lXC). W)Jethet or 001 those grave breach 

offenses exhaust the scope of "violeocc to life and person" prohibited by Com.mon Article 3, we 

are confident that "violence to life and pcrson" refers to acts of violence serious enougll tl> be 

considered .comParable to 'the four examples listed in Commqo Article 3-murder, mutilation, 

'ionure, and cruel treatmenL T!Je ClA techniques do not invoi>'C the application of 'Physical fora: 

. ri.sing to this' staitdard. While. the CIA. does on occasion employ timited physical contact, the . 

";slaps" and ."h(\ic!C thal cqmprise the ciA• s proposed corrective techniques ate carefully limited 

•· i.o frequenCY, and ~tensity and subject to important safeguards to avoid th~ imposition ~f 

sisnificant paiJI. They are designed to gain the attention of the.detaioee; they do not constitute .J ibe type' of serious physicalfora: that.is implicated by parasraph !{a). . 

b. 

·TI.o· CIA i.otetroption practices also do not mvolvC'Iny ;,fihe four more opocific fonns 

of "violence to life or person" expressly prohi~ited by patagrapb l(a). Tbey l>bviously do. 'not involve murder or mutilation. Nor,' as we bave explainec( do they involve torture. Se• Section 

;23~0 Opiriff"' and syJ»"! at 14.44 • • • • ~. 

. ... . "Jaduiapmio.,aoc!thoStcrt"l mo~wi~~udoo! tlo,atlbccolmoec('~ .' ; ~ioqu<olioowould,oo<violoto1l'ofedeu,l ~~oo"""""iD 18U.S.C-§2.Jo<O.:UC0Aortbc 

,. · ~"'!""""'ii!I&WarCrimesAoc,- ISU.S.C.§244l(d){IX~. ilC<haftllosO<>!f""""o.<quiro~.., 

c1...-thoimpositioo.af.._.physical ot""""' po;a 'or...mriDg. ..mc1o ir~ -~ j>noC:tioc 

• ~-izi Anld• l'Cl(ti!'Coom:oti<>a Af;Un11 TOI1Ureud1hc1CC's~ pf~ Micl,c3's · probl!>ilioa 00 toJture. $<~ 06rmooo,,El...wsO{Otmuat401 (n:quiriug'l)>ecltmo:ot'of~ .._. pbysk:al • 

or""""" poinor ...tfi:rin&" fc<- uoc1cr e-m.. Arti<le 3), lbc We Crimes. Ad '!'d tho tllilcdl problbifion 

on torilre~ddilio•..,._ -po;aqrliOdl'erl&i&" udtbis-sj>«:i!i<:ddi.aiti~does""~tho 

. '' · : .Jedo('dJeOO'O<iDCI>cRoiDoStatmo; Wt<ad,tbo-oCihisck:liDi!ionisM~afthoU-

. i•&uci11> ilslllifiCadaD<4'dio CAT. S..·l36 Clooi,ll.oe. :16,198(mO{TortmOJs notfudbacldiliOd b! C=mon' 

· . . · · • · ·.:>'.mclc3,'aod tho '!lalfed ~!lid""'""""'...,~ to tllit~ 1lai O>cmonidcUiled· ' : ··. eoq>lioatiooot-...,.,.WI\o.hior ...tfi:rin&"iscalt~liD~ CICjbe~f~daillitioaaf 

• · · · ~Dtba-\llanasa ......-,rdleas'lhc poiitio..Citlhc U'litoc! Sbuosdlat \IllS ~ckrJI!edddlnfllc•roC . • ,. ' ._, l<H1Die is ~eotwilh~onal )llllitl«,u...:ilec:ud,b(~ l'OfthoCAT,iildaci:d'!i><"".'"'-cot.c:rcd 

~ •. :: ·~ A~•.V I!i~. )9SF.M t-z3,143o.~Qdat.lOOS);-ol>o:V'~~o!thoU.. . 

. (~)(1 ), . . 'fl!l! fii! !!Mt,~ -·-·-

(b){;l)Na!Sec,6.et 
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1lle remaining specifically 

roriMcna

prohibited 

{ __ 

fonn

~ 

'of"violence to life or person" in Common 

Arttc.le 3 is .. cruel treatmenL"' Dictionaries define .. auel" primarily by refer-e.n<:e to conduct that 

imposes pain wantonly, that is, for 'the sake of imposing pain. Webster's Third /n( 'I Di¢tiOI'I(11')' 

at 546 (''disposed to inflict pain, <JP<Cfolly in a wanton, insensate, or vindic6ve manner"). If the 

purpose behind ll'ea!men! desaibed as "cruel" is put aside, oommon usage would at least require 

the treatment to be "severe" or ''extremely painfuL"· ld OfcX!urse, we are not called upon here 

to ev&uate·the term "cruel treatment" Slll!ldiJ)g wone. In Common An.iclc 3, the prohibition qn .. ctUel tr«Jttnent" is pla«:d between bans on c.x:ttc:rnely ~verc and depraved octs ofYiolcnOC>-' 

murder, mutilation; and torl)lre. the serious nature of this liS\ undcrs<Orcs that these tcnns, 

including cruel treatmcn~ shere a oommon bond in referring to oonduct that is particularly 

188l"~ed "'!" deprav'ld. Su S.D. WOITen Co. v. Maine J!d. of &rvi1'0/1111<niJJJ ProttCJion, 126 

S. 0. 1843, 1849:S0(2006) (the noscitur a rociiscinon 'is no help absent some son of 

gathering with a common feature to extrapolate"). In addition, Common An.icle 3 lists "cruel 

ueatmeDt .. as a form of .. violeoce to life and person,'' suggesc.ing that the term involves some 

.elemon.t of physical force. · 

lntemation& tribunals and other bodiC$ have addr~ CoJl!UIOn An.icle 3 't prohibition 

on "cruel treatmeot" at length. For purposes of the Rome SW\Ite ¢ai>fisbing the lntemation& 

Criminal COurt, the U.N. preparatory oom!llission defined "cruel treatment• upder Common 

A.riicle 3, 10 require "severe physical or meow pain'<!' suffering." wnnann; Elements of Crimts 

.at 397. The committee explained that it viewed "cruel treatment" as indistinguishable from the 

•inhuman treatment" that constitutes a grave breach of the ~eva COnventions. See id at 398; 

su also GP\I(.Art. 1.30 (listing "torture or inbwn.an treallnmt" as a grave breach of the <kneva 

Conventions). Tliis view apparently alto was embraeCd·by Congress when it eStablished the 

offense of"cruel and inliuman treatrneru" in the War Crimes Act as. part of its effon to 

eri!JUnalize the graye breaChes of Common Miele 3. $<!' !8 U.S.C. § 2441(d)(I)(B); :see also 

. MCA § 6(aX2}: Construing "crUel treatl!>COt" to ~ ooterminOOI$ with the grave breach of "inhuman trcatincnt" further underscores the severity 'of the conduct prohibited. by paragraph 

· i(a). . · , · . · . · 

. . . · ·. · " ' Aligning ~a An.icle 3's prohibition on "cruel trcalnlenl" with the ll"'vebreacli of · 

. "iilhi.una,n tre8tmerit'' ,aJso demonsttBtes itiCiose ~ to "tortui-e." ·St•·GPW Art. 130 (statin8 .'''.pw···iof1UT• or inlnunaritredtmenJ; including biological expenmeats,''is • grave Qr~cli oflhe· 

.:'<;oDventions) (emphaSis added). This rcll\iollSbip was c:r\icial for'\he ICTY in defining, the 

. .:.:Jca>ents of~crUeltreatmeot" under Common Article 3.'. The b.Dunal explained that ciUel 

' , ·treatmMi "is' eqUivalent to the offense ofinliwiw> treitmem. in ilio ~~ode of the grave 

· . . b~hes provision ofthe .Geneva·Co'nventions" &nd1bai ~th tetf!ts perfoim the '";'k ofbatnng 

<"treatment that doe! not moot !he purposive rcquiremenl for the qffeo~of tonure m oo·mmi>n . 

• . · article)." Prose<:uroiv. Delalic,.C..ONo. tr-96:21-T; 154:Z.(Trial Cbainberl. tm). ~ · 

• · ·~: ~ematiOn41 <::riminaJ ~ stopped ~ ach!.evtng thiS eO~· de,fining the olf~ of .. crucl . . : .. : 

.. : ~t1)'ea~KoM2.l (dJ ia~i>uri>oniooc.addoorli";,"dicrd>O tePJdltct~.;.w,~~~· · • . :· : · . . . ,treaty intllclrapptic:atioooo~Siatc") •. ~isDi>riuon !'>.misit tluiliooc-otao<tihspositioci~ ~ ~ . · ..... ' · > toiOJ;AAe,Common,Anfde_3 ~no-~o,cumtbetlaiuxl s.-tlwuloestheCAT,and!bbS:, 

, ,. ~~1===:.~~=ct~~~~3's · ; .. t:-~;:J ' , ~ -" ~ . . : • . ~ . • I .• • •. ' ';(~:·· : 

, • .• (b)(1). • . . ' . ' 

• .' , (b~3) NatSecAc~ 

62 
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628RIZZO63.eps

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) 

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lreatment" under Common Article 3 itknfically to ihat of torture, except removing the 

requirem.nt that ·-ere physical or mental pain or suffa;ing" be imposced for the purpose of 

"obcaining information or a oonfession.. punlshment. intimidation or coerCion or for any reason based on discrimination of any kind. • OOm>ann, EJ<mtnts ofCrlm<.s, at 397, 401. The ICTY 

went further, suggesting that thete may be another difference .from tortur~at crud treatment 

is directcilat "treatment which d~ tberately causes serious.mental or physical suffa:ing that falls 

sh!lrt of the severe mental or pbysical suffering required for the offence of torture." DelaJ.ic, · 9S4i . 

In the Wu Crimes AJ:t, Congress, like the ICTY, adopted a somewhat broader definition 

of"cruel treatment," prohibiting the relevant conduct no rnaner the purpose and defining a·leyeJ 

of"serious physical or mental pain or suflering" that is less extreme than the "severe physical or 

m~al pain or suffering" ·required for tortufe. In this way, Congress's approach to prohibiting 

the "cruel treatmenr~ bured by Common Article 3 is s:onsistent with the broader of the 

interpretations applie<l by international.tribunals.'' Congress, bowev~, provided a specific 

definition of both "serious phyaiCal pain or sufferi.ng" and "serious mental pain or suffering." 

The ICJ:Y found it impossible to de5.ne ftll1her "serious physical !Jr mental pain or stlfferin( in 

advance and instead adopted a e&*by-<:a.se apptoaeh for evaluating whether th~ pain or 

suffering imposed by past conduct was sUfficiently serious to satisfY the element$ of"ctllel 

treatment." Delalic, I 533.' This approach, however, was ored to the ICTY's task of applying 

Common Article 3 to wholly past oooduct. Congress in amending the War Crimes Act, by 

contra,<~. was seeking to provide clear rules fo( the conduct of 1,\Jrure ope(31ions. Co_ngress's .more detallcd definition of"seiiow physical pain or suffering" and "seri9us mental pain Of 

~Jf.erlng". cannot be said to contrad!ct tile '"'l"irements ~fCo=on An,icle 3. 

We conclude, with. Congress, that the "=elrreatm!"ll" term in Common Article 3 is 

~S6e<l by·oomplianee with the War Crimes Act. As we have explained a9ove, the CIA 

.tccbniques are ooosistect ~tli CorJaress's prohibition on "cruel and inhu~ treatment': io the 

War Crimes Act, se• supra at 14-'24, and thus do OOL violate CoD:>mOn Article 3's prohibition on • ·•cruel treatmeat." · · 

'• .· .. ;. :t.' • 

.-.:. . · l'arigripb J(c) Qf.Co~n Article 3 prohibits ~outragea upon perso dignity,'in : .. • • .particular, bumiliatil]gand degriding trCatnie.nt." pr~ tams i.nCo~oo Anicle3 with 

· • uneertain m~g. the imprecision ioberent,i,n puagrapb J(e) '!""" tl1e cause of greatest concern 

among leaders o!.Jhe llxecu~eaod ~atjwBranolies. St• .wpri,..t S3 S4 (citing salements • 

. , · by the Presidenrand S~tor M,cCain). 

: ·; .' "ThelcrY cldi-·cruel~as~thal~ocrlouS)JJCOl{i.l iiom or...iral.a..,. ·, ~ .. ·-9"'-... livmon·df8Jd'ty.• Dtl4B<.ii1s«<~ldcled), .. ~txi1Jua&lmbas- ·, : . , •. · • ~lrs~toL•sodooslllliodc6n-dipity.• ComoiaoMldoJ basm~pnMDoa· . 

: . ~t.:r,.m types oC ~to pc:nooa1 cllpily iD iu J"'lbibitioll ci•OUii.p up00 pemaaJ dipj!y,.iD ; ; , . ; ~~OIId~treat~~~q~~.• GPWArll I(c).Tbe~afthe~~ . 

.. · · ~ !'>al•uads oa pc:roooai cli¢.IY sbould be aDalf!Od UDder pia2ppb' t(e), the Jtqllln:malts atwtiicll.,. . ~below . · · · '· ·· 

.·.,)· ·· .. (b)(1) . .:' •. ·. (b)(~) Na!Se<:Act ·. '63 
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) 

P.espite the ge.>eral nature ofiu I1J18Uage. thue are several indications that 

pangnpb I (c) was intended to refer to particularly serious conduet. The term "bumiUating and 

degrading tteatmcnt" docs not stand alone. Instead, the term is a specific type or subset of the 

. somewhat clearer prohibitiori on "outrages upon personal dignity." This structure distinguishesConunon Article 3 from other international treatiesthat inelu~e freestanding prohibitions on 

"degrading treatment," untethered to any requirement !hit such treatment oonstitute an "outrage 

. upon personal dignity." Compar~ CAT Art. f6 (prohibiting "cruel, inhuman or degtading 

treatment ot punishment whlch does not amount to torture") with Buro~ Convention on 

·Ituman Rights Article 3 ("No one shall be subjected to torture or to inhuman or degrading 

treatment or punisbmenL"). Thus, paraj!J&Ph I (c) dO<OS not bar humiliating lllid degrading 

treatmen(' in the abstract; instead, it prohibiu "humiliating and degra!ling ~c· that rises to 

the lcv..l of an "outiage upi>n personal dignity." This interpretation has been broadly aocepted by 

international tribuMts and committees, as it haS been adopte;<f both by the ICC Preparatory 

:Committee and the ICTY. Su D6rmann, Elem4nts of Crimes, at314 (stating, as an element of 

. ·the ICC offe0$e oorresponding to paragraph I (c) of Comnlon Anic!e 3, that ''the severity of the 

humiliation, degradation or other violation was of such desrcc as to·be generally i-ecogni.cd as 

··an·ouuage upon pe..sonal dignity');Pro.r«Utor v. Aklcsovsld, Caoe·No. IT-95-14111111 56 (Trial 

.Ciwnb..-I 1999) (requiring that the conduct~ to the level of an outrage upon j>ersonal 

, dignity). 

The term -outnge" implies a relatively flagrant or heinous form ofill-treaunent. . 

Dktionariei deline."outrage" as "describ{ing) whatever is so flagrantly bsd that one's sense of 

"-decency or one's power to·suffer or tolerate is violated" and ~st "monstrous, beinous, [and) 

atrocious• as synonyms of"outragoous." Webster's Third lnJ 'I Dictionary a1 1603 •. In this -:1'. .the term "outrage• apj>eals to the common sense staodatd of a reaso!"'ble person's assasing 

eoc><!.uct U(ldc;- all the cin:Wpstanees. And the judgment that term ~ is nota mere opinion that 

.. · the-behavior should liave been di.fl'erent-to be an outrage, a reasonable person must assess the 

oonduct'as beyond all reasonable bounds of decency.· This reaCtion is not to leave room for 

· ·. • ~ebatc, as the term is directed at "the few essential rules of humanity which all civf/ised nations 

consider as valid e-.ouywhert and undu all ci1'QIIfiSfQncu and as bdng aliow and outsftk war 

·"tuelf?' P.ictet, m Commentaries,., 32 (e.npliUes added). Aocordingly, Ui ~lying tho •outrage 

upon ptrsonal digpity" tc:mi. the iCIY.has recogiUzed that it does not. provide 11)&11}' clear . . ;.tan~s io _advance, but thal it is oonfined to oxtremely-seiiaus.mi=oducil: "An outr.ge uptin 

.•. J"'f""nal dignitY, within Article.) . .. is • sj>cc!es ofinhumo,n ~'!Dent that ·is. dept<>robk. · · .• 00Cl1Sipning mare serious suffering than most prohfbl(ed'Dcts within the genus.7 AI~. at . • .. · . 154 (em~basis added). · .. 

. . ·. · · · · ' . The ICRC CommenJaries on the Galeva Conv¢oti~ u.Odencon: the s-lity of the 

·,. · misconduct Jiara8rapb·l(e) addresses. Su P.i<itOI:m Co~tes, at :i9 (liaking pangnpb 

'·:. ·: : ·t(e) to the probib'Jtiont on torture;' ctu~ treatmCtit, muider, 'knit liiUtililioo in para8rapb !(a) and · 

:. / _, • . explainins t!>at both pat8graptis ·~"'7"' acts. which World opinio11.fiods ~irly TCV<?liina-

' . -• : · ··.acta wblc!l were cptnmitted frequently ilqring ihe Seoood 'l'(orld Was") .. The ICTY Similarly 

'' : '· .... • _Joofls,to a Severert4etiOO from ~lop<noli~thiiOtality ofthe_circuJDsta,;oe$. . 

· ; . :. ,SUA~.oli.-at1 SS-56 .. (to ~olate ~~ 1(~). thobumiliatioaanddegrodati!lJ! must~ ... • . ·_·so intense !-f>at the reasdnable perso~ would lie olltn$ed~. -An e:nmination of purpose also . · 

.;...,.J_, \ · .Worms "':'*Sral>h l(c)'s r~.S o9 "buDillimna ind ilegrading ~tmeor ~rises to tlie •~jet ~r 

• ·.,. <bx;>' .. ~Piilii\Wii: ~ uwJzo- ~ (1>)(3 ) N"tSO<:Act 

\ ·44 . 
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(~)(3) NatSecAct 

an "outnge upon personal dignity." 1lle sarne international tribunal has explained tlut 

par>graph l(c) requires an inquiry not only into wbelher the conduct i$ objectively outngcous. 

but also into whether thC purpose of the conduct is purely to humiliate and degJi>de in a 

oontcrnptuous and OUIT8gOOU$ manner. Thus, ·the ICTY has looked to the inl£nl of the '""'sed- it is. not eo~ugb that a person feel "humiliated," rather the cqndua mu.st be "animated by 

cantempt forthe·buman dignity of another, person." Jd at 156 (emphasis added). For the 

Yugoslavia tribunal, par>graph l(c) captun:s 8 concept of wanton disregard for humanity, of 

recldessnuc, or of a wicb to humiJia.to orlO degra4o for iu own ~e. 

This inquiry into a reasonable person's ~lu;tion of context. purpose, and intent with 

regard to the ttealllleot of detainees i$ familiar \0 United States law. In the context of perSons not 

'oonviCied of any ·crime, but nonetheless detained by the Gov~ en I, this same inquiry is· 

demanded by the DT A, and the Fifth A:mcndment standard tlut it incorporates. As we have 

explained above, theDTA prohibits tteannent, and interros.ation techniques, that "shock the 

conscience." Rtx:hin v. <A/ifomla, 342 U.S. 165; 172 (19,52}; see afs() (;qunty of Socram,cnlo v. l;ewis, 523 U.S. &33, 846(1998) ~'To this end, for haifa century nowwchavespo~cn of the 

cognizable level of executive abuse of power as that wbieh shocks the conseience. "). Much like 

the test contemplated by tbe term "outrage," the "shocks the c:Onscicncc" test looks to bow i reasonable person would view tbe oooduCI ''within the full con tal in which it occurred" lewis, 

523 'Q.S at 1!49 (emphasis added); see id (reqUiri ~g "an exaCI analysis of<:irc:umstance''); Wi/J:ins 

v. May, 872F.2d 196, 19S\7th Cir. 1.989) (Witb reaasd to ~nviaion treaunent, the test is 

Whether thQre was "misconduct that a r..soi>able person wouta find:so beyond the ooni> of proper police procedure as.t6 shock tbe con.<cience."). Indc:ed, our oourts in applying the 

substantive due process .standard have a*ed "wbether ~ beliavior of the aovemm~ officer' is 

· so-qvcgiou's. so 'i>utrageous, tlut jt may f~r y be said •o shock the ciooternporiry con.scicncc." 

/Awis, 523 U.S. at848 n.8 (emphasis added). Bceawe a reasonable person would look io lbe 

·· r~orjllstification f'orlbe.conduct, the"~theconscieoce"tcst und.;theDTA ai.O 

contemplates such an inquiry. ld at S46 (isldugwbethcrtheconduCI amquntsto'the "exercise of 

.pow_er witbout-&oy reasonable justifieation iii the service of·a legitimate govemmeolal 

: .. obpve"). · · · . · 

. .;' : . :· ·. . ... , · Foqhe$e reosons, 'WD coildude· that d)e t~ "otltiages upon pqsonai dignity" invites. not. 

, " . • · . ·foro ids, ail inquiry in!O the justifie&!ion for.sovcrnm.enlal conduct, as theten;t! l'8iiS fo~ lbe · . 

; .. .' . ·. outragoousnessofthoconduct.to.beevall!41ed in tb mannerareasonabl ~Would. To.be• ·. 

·,, • ·- . : · . · . ~of Cooimon Attiele 3 i.Otroduces j~ sj>ecifi.,.ptOhibitjon; inCluding its ~eo;eooe .0 . ~ . · ·.: · :.~outnpupori personal <!lgnity,''.by'11)8.DC141ing that "!ch'acts"arc "'!'f sliall ~prohbited • . 

• , . . . of aTrJ' ttm. t1r.!fi in any p/oce 'WhatsoeVer.: This texi could be read tO, 'disapproVe-any evaluation · 

.. . . . • , of circ:unutance, or lbe consideratioos·behiJid or justificatioDS for·speCificaiJy probibit(ij conduc:t. 

.:$ee .. -¢;f,;Pictet, IV Commentaries, at 39 ~ ~ tJie D!ethod folloWed iii 1be Convintioo when 

i~ proclaimS f011t absoiutti prorubiticins:• The WOrdit1g lfdopied Cowd. DOl b9 more' definite. ••. ·No 

p6$s!bl" oopbo~ is left; there COn ~ 00 OXCU~ DO allCouiting circ:u~~ . . · . • l).~ : ~· ·: . . . . . . ·. . ·.. . .· -~ . 

~: .:. :' .' :. ~~~~=~~~~~~~~=~~i:n~:~anit:.:"' · ttaty. ·;nus OOnl:lll,'iQn is .sUpported by otbcr lerJ?>S in Commop.Miele.3. :F.<¥' ~le, · '. · 

) ... ) ·. COnu:oQn Ani~le 3 prohiBits "murder," but ljJIJJ'der bY defuiitiol! is '!lit mnply ~y homicide;, bUt 

G.~~ats~~ :'~ ~~~ : . .. ; .;.' . ·. .65 l 003:Zl 
181 


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:·· 

(b)(f) 

(b)(3) NatSecAct 'i'9,.!1ii9iUJG __ .----~ 

killing without lawful justification. Common Alticle 3 may not permit a "murder' to be 

justified, but .committing a homicide in self-defense simply would not constitute a "murder." 

'Simil&(ly, the tam "outnge" seelc:s to identify cooduct that would be universally considered 

beyond the bounds of decency, as transcending "the few essential rules of humanity which all 

Civilised natio~ consider as valid everywhere and under all circumsl8DCeS." Pictei, m .Commenuiries, at 32. ' An approach that foreclosed consid'etation of purpose throughO<a 

Common Arti~e 3 l:arulot be squared with the !CRC Com'!''"UQries in cvali>alio& wliethcr oonduet i.!; hu~ requirement orCommoo Article) that c.bc "outrage upon personal 

. !!isnity" term is.t.l<pressly Stated to advance. The humane treatment requirement is ~d to 

prohibit "IJ)y •!"! of violence or intimidation. ·inspirul not. by military reqvirements or a 

1•gitlmato tksir .. ]or =rity, but by a systcm®c =mjdr human values." Pictct, IV 

COff!m<ntaTies, at204 (emphasis added). · 

. An evaluation of circumstance therefore is inberen~in the plain meaning of lbe tetm 

· . "ootr18e." It is a concept. following relatively clear prohibitions on partia:Uarty grave acts, that 

•lllrns to th~objective judgment of reasonable people and prosaibes.el>odu.;i'that is so vile as to 

be universally'coodemned uoder any stOlJ!!ard of deceoe:y. B~sejt relies on such com,mon 

judgment, the term "outrage" IIWSI evaluate conduct as reasonable· people d01 by weighing the 

. justificatio!Jf for that conduct. As the Supreme Co~ of Isr~ recently explained in apply,iog·the 

:'rules of internatio~ law.' to Israel's " fight against interna!ional terrorism," tlie principles of Jhe · · Jaw of war in this context "are not 'all <>r nothing."' Pub1io Commltto< Agalrut Tortur•ln lsratl 

v. Govemm~t,a(lfN><l, HCJ 1{>9102, rJ. 34 (Sup. :GL Israel. De<:. U, 2006). 

"lbltt ~prohibition of"outrages upi>n personal flignity" IQ9ks behind ~u<t for its 

. ju~cat,ions iUuminat~ Jhe decisions ofthe!CTY interpreting this term. For:e:xample, in 

·l'rossC!flOr v. ~<Wac. IT-96-238 (Appeals Cham~er. June 1:?, 2002), the tribunal ~dd that forcing 

iiteeoagoo girl in de:tentioo to .dance naked on a table was: an "ou~ upon~onal dignity." Jd 

. ·.: 1I6o. The$e faets involved clearly outngCOU:S OOoduot underUicen for .0 ~Oilier than the 

, ' prurient pficatiori of th'e d~endant None of the ClA'·s proposed techniques bears a passing 

... ';- resembl~ce to the p.nuient a.o'd oufrageous'COndu<:t "! issuein~.,.;c. · . , · 

.:.::''. _: '. ·. ~ptypo~icichni<i,ti~ also~_; ~~Wi~ ibe Outii.goous~odiK:t ~ted •· • ·.' ~ . at the Gbraili P.riso'n. Ui Iraq . . A:>. Geo«oo ·An\P.nio:Taguba'$-oflicialinv.estiption tepofled;· .:: ... , ... . t)!e d~-·~:Abl,J Gbraib ~e. subjected to "ia~~lalan!. 'alld:M.n!oJ? <ri!'?inal ab....,. ~ 

. : • ··,.· :S..(-Genet&i Antonio M Tagubi, Article J~frrW,st/gdtlllrtOjtlie,BOOthMllltazyPO/fcy.:lJrlgqd# 

: ;, .' ::. .. 16 (MaY 4-, 26(!4):('-r'agub& R~: The~ 'awgCd the offcocJi08militiry pesipqnel with 

: . . . · : "fO(cil>ly &rrangl.;g 4~:in Various ~Y explicit p9$,itjoiiS'for pboto~bing"; "fon:ing 

• : · • •. · nikCd male d~ to .wear . .womeo~ iuldetweac.': "fo~ &foups ot:maJe <!~<6to -~ 

. <mast¥roato.lhetb.sclves whife ~p~hed and vid~; ~amnging ~Cd male 

·~;.-.. ; .'detaineeS iti a plie~ 'itiehjunlpii>g'on lliem"; ~oii!S O:'nalced d~ 9i>a-MRE Box,. ., 

:.";. : :-with a Oiod~ on bis;llOad; .and aitaclnng wins to Ills fi~!ttn, tOa, and peni; to Simulate e!ecirie . . : . • :·:·' :;. ·; '!J\Iacing ~~pg Cha!ti or~ arow.<f a.ifet&ii)!IC.'s ~ aild kying.&;~t;.iilale soldier ~se: · 

... ·. • ·.' -.. _; far a pi~" ind "sOdqm.iZinga~witb~r~~lighi uitp.erbapsabr® itict." Td 

·.--;. · · ,:· ··att6'_:17:· Th.;se wint(,o actS ~.; ~fOf!abusivei'nciiO)vd'piuposa .lljey.bearno. . ·, 

:· : •. ' .• ~~~,ei~m.~so~r~ect.to an~·,.;t:~t~iJu~ll~ fqr~b)'ll.ey(A.' :· .: .. :.. 

:: .• ) · ·' whelh<i c:n>P)?yCd_lnd•v•dualiY. or ml:bplblpapon. . · •. : ' .• .'·. · ... 

(<JbX1) · · .~.: · . .-:·:·· ~..s;w~a : . . ris,8iJ . '.t~• ., < .. -.·.··. " l "nai, ~ •. · (b)(3.);NatSecAct· :· ' . l . . • .'. UU, <l,v. 

,.... . • .. . "'·· . ·. • •. ·: ' :• ,.,. .!)6·. 

;· •• ! . ~ .:. . 
182 


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(b)(3) NatSecAct 

·: . 

The contraSt with Ko.ac and the acU at abu Ghtaib goes some way to hig)llightiJl8lhe 

conduct that paragraph l(ci does reach. As the ICRC Commentarlts have explained, pangraph 

l(c) is directed at acts which world public opinion finds~evolting-acts which were committeil 

frequentiy duriJl8 the S<iCOnd World War ~ Pictet, mCommtntarits, at 39. World War lJ was 

typified by senseless acts of hatred, and humiliation or degradation, for no reason other than to 

reinforce that the victims had been vanquishOd or .that they were viewed .. inferior bcca~ of 

their nationality or their reHgion. Nct.dlessly exposing prisoners to public curiosity is pan of this 

ilarlc history, see GPW Arl. 13. and commentawrs cite as a i>aradiamatieCXIlllple of .Ucb . eonduct the pmdiJl8 of pii.sooers in pu&tic~ Set DOrmano, Ekmtn!S of Crimu, at 323 (refeiring, 

to the post-World Warn prosecution ofMaetler for marching prisoners through the streets of 

'Rome in a parade· emulating !lie iradition of aocientl!iumphal celebrations). rn ap.otber case, 

Australian authOrities prosecuted Japanese officers )Vbo tied Sikh pfisoners of war "to~ post and beat them with sticl<s until they lost consciou~." ·Trial of1'<inaka Cfmichi and Tho Others 

(1946), XI Law Reports of Trials of War Criminals: .United Nations War Crimes COmmissions 

62. In addition, tbey shaved the prisoners' beards and forct.d them to smoke cigarcttiis, in 

• deliberate denigtation of the Sikhs' religious p..aices requiting faciallWrand forbidding the 

.handlihg ~tobacco, all as post hoc punishment for ininor infraction~ of the rules ofthc prison camp. !d • 

. ·. These actS were in/ended to humiliaJe; and nothina mor<>-thcre was n6 securiJy 

justification, ·no carefu!Jy·drawn plan 10 Prote;ct 'Civilian iives. These were part of a panoply.of 

atrocities in World War U meant 'to "reduce meo·to the state of aniinals;" merely beCause 'of.wbo 

they· were: See Pictct, m Commentdrtts, at 1£21. these actS. were W>dqlaken· for wboUy ·• 

prurient, huiniliatiru>.. or.bigoted.einds, arid that eatur~ was an inextricable P'!l of~t made . them -outragcous."h '47 . : · . · 
183 


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.... 

TOPGF?W[ ~ (b)(1) ' 

(b)(3) NatSecAct 

With ~ principles in mind, we tum to wbcther the proposed CIA teclmiques_ are 

consist<11t w\lh Common Article 3's P.robibition on "outrages upon personaJ·dignity, in 

particular, humiliating and degnoding treatment." We already have deunnined that the CIA 

.program does not "shock the conscience," or lheceby violate long-standing principles of United 

Slates law founded iri'the Fifth Amendment to our Constirution and ineorporetoCI into the Or A. 

Especially regarding i temi tha~ iD many' ways: provides a protectiv,e bulfea; around~ 

CO!"parati'vely specific prohibitions in. Common Aniele :1, it is appropriate for the. United States io turn to its do;nestk les*l tradition t~ ptc>Vide..a funiJiar, di~~le sund.acd ~or the inquiry 

that p~b l{c) requires.· As we expliined above, the MCA rellects a C!JDSidered judgment 

by Congre$s that theDTA'tightly fits therequircmC1ts.ofCommon'Article 3;and !)lis 

congreisionaljodgment i$ import_An~in determining the proper inter'J?'Oialion of Common Article 

3 fo.r the United States. The or A asks wbelher'conduct "shoGks the contemporary conscience," 

it evaluat.es the judgmMt of the reasonable person, and it tracks the inquiry lhatl)le .plain 

meaning oftbeterm "outrages" invites. ·Tbus, our conclusion that the program is consistent with 

the DT A is a substantial fai:tor in detennininf lhal the program <foes DO( involve "OutragC$'Upon 

persooal dignity"·under Con:uilon Article 3.•. • · . 

But consistency with the DT A is oot the only basis for' our conclusion. .(n the limited 

eonteoct at i$$Ue here. the CIA program's narrow focus, and ·its compliance with the careful 

safcgu~ anCI Iimitations incorporeled irito the program, provide adequate J»:~ection against the 

· ""'!JiragCS upbn'Jier$onaJ dignity" probibited bY Common Articlp 3. Ofparti<;tllar imponance i$ 

that. 'the interrogati~o techniques in the CIA. prop are 11Cfa standard for treating our enemies l"ha:ever 'o/t:.1i.itd tltcm, inCluding those in military custody. Instead, t)le CIA Jl11)8t&ID is 

~":ly targeted at a small number of the most<langerou.s aPd IQ:>owledgeable ofterroi'ists, . 

tbo$c'wbom the ClA has reason to believe 'harbor i.mni'inent plans to kill civilians ~tthe 

l'IOrJd (lr.Jitherwife possess islfonnation of critieal,i.lllilli'gen<e '<81~e concerning the ieadersb/p or 

a<;IM!ies of .aJ QaedL For those few, the United Stales takes mea$ures, to obtain what they knOw, :·. .. . ... · . . . 
184 


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(bX3) NatSecAct TOl>'WGPET 

--·.· 

) . 

but each toehnique is limited to keep the detainee safe and iu application is circumscribed by 

extensive procedures and overs.ig.bt. ibose wtio impJement these techniques are a smalrnumber 

. of CIA proftssioruils trained·in the techniques' careful limits, and every intem>gation plan is approved by the Director ofihe CIA. · 

In addition, as we have empbasiz.ed throughout this opinion, the CIA's detailed 

procedures·ond safeguards provide imponant protections ensuring ~t none ·or the techniques 

would rise to the level of an outrage upon personal dignity. With n:gard to the corrective 

Jerlllllq'!es,tbe CIA bas assured ~ U1at ~'would not be us¢ with an intensity, or a li'equcoey, 

that' would cause significant physical pain or injury: Su Akkrovski, .'j51. Wrtb all the 

techliiques, the <:!A would deternune in advance their suitability an~ llteir saftiy with respeet to 

each individual detainee; with the 'assisianee of pi9fessional medical and psycholog\cal 

examinations. Medieal]>ersonn~ further would monitor their application: CIA perFO,nnel, 

. in~uding medical professionals, would diS09ntinuc, for .example, the sleep deprivation technique 

. if they determined that the detainee W...or migbt be suffering_fr.om extreme pbysicil distress. · 

Each de!¥nee may reaet differently to the ~X>mbination of enh,Dced interrO&a!isln t<d!niques to 

which he is subjected. 11lese safeguards and individualized ~ttcntion are crucial to our 

co~lu:sion that the combined·use of the techniques would not violate Common Article 3. See 

Sllpran.SQ. · 

• 1u such, the techniques do .;.. implicate the C:ore principles of the prohibition on . 

"outrage§ upop pel'9nal ;digrul)i." A ~easonable person, ·considering all the ~mSIAnees, woold 

ndt ccins,ider ~ oooduct so seriou~ as to.b:e ~·d tlie ~of human d~. '(he-. 

teehniqties ve·not in!ended to hUmiliate one. degnide; rather, th~y life eatefully limited to the 

putpOSe of obtai~ critical .iniellig"'!CO. TheY. do not awiifcSt the "Oe;om for huinan valu~· or 

refiect conduct done' for the.']llll'POse.ofhumiliating and degrading ihe detain<»--bedark: past of 

;. . W.orld Warll,,aga;.i.st whicb ~pb: (c) set t.sweexP.l.ain abow, a.rwonablc person · 

. .:( . •. >VO'lld-consider the justification for the cood)lct aDd theJUII context of the protective Ill~ 

.·. pirt D) pla;ccbytbeCIA. ~niingly,'the~ limitsbnthe.CIA ~~.the~focus 

of the progriql. 3nd the eriti~ purpose '!hat the·prognni $erVCs are.importanHd the c6DC!u$ion .. 

:· " .· . . uiat !bOii>c.teehnlques do nOt oo.nsti!Utecoodue(so' seriot)S.as to 'tie beyond tbc bounds ofliuman· 

\~·.:::·.,,. 7;~~~~~~~.i~aW~~~~~~~hL~~~u~.· , pecessary.to main~~ eff~~ progi'am fllr~ small of al Qaecla ~Jl<""!l~ That • : 

•. · ... - tbe.CIA bis.C9Qfini:d ifselfto sii'Cli ... lllitiimwli. alopg.,w1th the. other'limititiOO$ tbe ~bas . 

. pia~ on the program, doeS .oot.reBect the type o£ wantoo conten>pt'fQr b~l)'-4jle altOcities 

· > :• . , ani~ted by, batted for ,ollters tb3t "were ~qlinitted fr~ently <luring the Second World WBJ" . 

. '··' . .lind tljirt "pub_ lie op!ni9,n finds P.articulirly o:YO.ltin( -«1 "'!!ll~ tlio prohibition 011. "outiages •. 

:·. ·: . .. .• upon ~Oil dignity" is aimed. Piote:t, m CommuifQ1;(es; t,t3!( . . . . . 

\~·~:.:.:. . :.: ... : ::~ .. · .: : ._.. ;: .~:><: '._-\:::'· :.::· ... · ;': .-:. . -( .. /.:\ .. i.:.> .... ,.: .. ; :' >, '; 

:: 'f..·· ' '· :: ·:. ·: OVmbfug the.fu!'i Spt#ic ptQiiibltions'"u~-~n-Ait\cl.;.! isa s~~e.rit .. : 

':·:.:·:{~: .. iha(pefsOn5¢ii~Oclby COni!DGnAiticlel"SbailiPall GircumSt&D.oesbe:Ueatid~[ · ·· . -

·"< J>;.;· ~~wnb~ lrly :.s~~:o? ~'! ~·)ace, ~oilt ~~~ or ~ --~~~\oc ~r \ ·". ··: 

"· , '<~>!1> .. ··. . ·. · ~~ ~ • um:ns.'· :,:.: :'(b) ;3) NatSec:A£1· • 69: .. . • .. , 

: ~ . . •;" ·. . " · .... · .. · · _:.:··. ,':.·, .~· ~ ... •. 
185 


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(b)(1) 

. (bX3) NatSecAct '5QP rrsnr· 

any other similar criteria.""' The text maJ<es clear tllat its fOI!r specific proliibitions are directed 

at implementin& !he humane.treatn>ent requiremeo(. ~ GPW Art. 311 (following !he humacc 

treatinent requirement with "(t)o this cod !he following acts arc and shall rem'ain prohibited"). 

As w.: have discu$$cd above, those speci6c provisions desoilbe seripus-c:onduct, and the 

stQJ~ of Common Miele 3 suggests chat cooduct of a ·similar pvit_y would be required to 

constitute inhwnaoc ~nt. · 

The question be<:omes w""- if an)'lhiria. i<. required by "buinane treatment" under 

Common Article 3 tllat is not eapJUred t>Y the1P<Cifie prohibitions in subpan~ppbs (a)-(d). We 

can discern Some content fro;, references to "humane treatment" in ocher parts of the' Geneva . 

Conventions. For enmple, otbOr pnoVisioQS closely link humane treatment wilh the provision of . 

the basic netessitics essential to life. Aiticl~ 0 ofGPW mandates lhatlhc "evacuation of · 

· • · pr\soners of war shall always be •flwta hllmtDJely •••• 'The Dd.!ining Power shall supply 

: pruopers of WM .wf>o Me being evicuatcd witJi' sufficient foOd and potable water: aDd with the 

: ' ·. occessary cloihing and medical attention.'' &•4{.10 GPW ·Ail 46. This-theme runs throughout 

· • ·' . • the Co.nventions,.and ~dcod Common Nticle 3 itself req11ircs a suO.Ct.Qf su~ basic n,ecessiiits, 

by !Daodatlng lhat the "wounded·and side •hall tie c:ollected and ~ for." !JPW Art. 3 12. 

Given these reference's througbout the Co..Vemions, humooe tre.uDeirt under eo.;,.,oo Article 3 

· is 'reasonably read to require that del&nees in .the CIA pro8iam be l>fOvidcd with the basic 

occessities of lif&-'-food '81ld water, shelter from ihe element.,· protciclioo from extremes of heat 

. aDd cold, necessary clothing. and css<;otial medical care, ab$CDt emerg~ c;ircum$t!lilces 

• . :·. ~nd the control of th~ '\)nit'? Sto1.S. · • 

.I ,. · · . We i)ndeistaoo that~~ takes care to COSU{e that the~ reoeivelhose b,uic · -iti""' You have ioformOd us tliat·del&oees in CIA custody'·,.., subject to regul¥ physical 

aod,psycbological mOnitoring by medi~J!etSOruiel and receive~oniedical-and ~taJ .. 

care. They are gjven·adequate food-and as ~h ~eras they ~bly please. CIA detentioq 

li<:ilities arc-sauitary. 'The del&oees receive o~ clotbes and are shelter«~ ·from the tlemeols. · • · · · .. · . " · . · 

.< · ·.· ~ . ~: -·: · Fo~ :utl.illd~ determinc:i tO. be :withbcii~g' ~ ~e ~CC. bo~ri~ tb(; 

: ( 0 ~ • !::lA piopose$t0:~· in olie Qrt~Saiioo io~c;!miq.i&-<li'etaiy ~arl~t would .• , . '. odjust1liOpioV;s;Qno{tlie~ !CSO~)kdetioinee's~sarclcOwola!iiY: substi!u~{or a· .... 

,. ..: .. :.b:and ~~ui4 djet lhat;_Wbileless ap~1hin mcals, eXceed&oul_!itl.ou rcqu~enti. : 

. . ··~-- .. . ·· ~~~~~-~~mi,;t~~il~~ ~~~· · ::. . a...ific:a~il>qtieoi!Oouu)'DO<jusdty..iy~&omo,.,;..;.Arddc3:s~-cif-

• • - TbOGeDMO>avalliom~lmpO>eeQ1!11lJaliDC!Iln>qairpDcoU. SuGPW M 1,6t"IAJD 

' .. 

.•. .. ·.- ·:pobo!>enoC~sb!D ~....,.,Qii.t.obylllo~- wi-wo~~bO.Icd"''._ : .. ,, ... . . .. ::~,~beild' pollddiOpUilOaf. oruy'odx:< dilliliCdoofl>m!dellouimi!•~"l<~ ..• ~ • · ,. · · :· ::·,lddcd). Adjclo ~wb pr<iyides~~tpfuoqoa~~~wiQ qp~ooprilooenoC 7 

;:;.J_:_._:· .. ~~Ib0~~~6~uu::~~.~.,~~~~ :./:· ;,·· •. ,., ll)cproylskinotliUmaq<~ lbe~-c:xpl>.iq.Uiot~-~ll!'<d · ' . • ,· •. , . : .. aiuria;'I'OJ'bom..lo • ...acrcoiim>c•>.~rti~ ~too/g.Sthe~ol:l(o~'pCDopfalls6dowtboi .. _'. : ~:. · .. :· • • · -~~Plc!d.DJ.~u it40-4!."1bui,_"atum ll>deumlioillg'lllobasio; ... 

-'.:~_: _.· .. ~_ ~. ·:.. · .·. ~~~ . .• -.'.'·. ·~~h~ i..lililli!li=iiiii ili '"tllii"'"""' .: =~::·j. :.·· .-/:' .. . '~· .. : .· .... ·. ···< .:· .. -·,;; ' - ~··--~ ~ .:~ :: -~·;uJ~~} _ _r ... ;::: 1>)(~~ atSe~9 . •· ;. · • : :~ • :··.- • 
186 


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(b){f) 

(b)(3) NatSecAct TCP &riOPFT 

• f 

I 

' 

for safe and healthy mCdieally apprp~ diel progiOJliS in the United S~. During application 

·of the technique, the delsincc's weight u monitored, and the tecbni.que would be diseontioued 

s!>oWd the detainee lose 0J9re than 10 percent of his Starting body weight. ').'be clement of 

humane treatment that we can. glean ftom the siruc:tun: of the ~-va ConVentions is one of 

"sufficient food." GPW An 46. Because the food provided -during the temj>owy application of 

the dietary nwiipulat.ion tecbni.que is suflic,ient for heaJ.th; we conclude that it does wmply with 

J)le "sufficient food" elemeot of Common Article 3's hui1Wle treatm nt requiremenL 

f'/ Aldstwsld. C.sr. No, rr-95-1411, 1 108 (dismissins-Common ~cle ~ clu.<ges ogainst prison 

wan! eo wbo provi4ed only iwo meals a day to all d~ees ovu a peripd of II!Oriths and 'Wbete ~me deuioee$ loSt over thirty pounds). · 

Wn~find it relev.,;t that the CIA's interrogation and detention pr~ complies with 

. the substantive due process requirem.Uti of the Fifth Amendment, which under.moit . 

··circumstances require safeconc:litions;" including."adewwe food, shelter, clpthing; and medical 

care" and whicb·.lft incoi:pOrated into. the DTA. Yoimgbe;g v. Romeo, 457\i.S. ?07; 315 (1982). 

·l(.equii:ing the provision of basic nej:<.SSities·u anot)jcr Cxa,mplc of how Llte constitutional 

SW>darda incorpora!ed'in the QTA themselves provid~ a "Juimane treatmein" principle tha1 tan 

... guideci>mplianec with Common ~cle3. Congii'Ss recognized as much in the·DTA, given the' 

·statutfs eaplicit.prcmise. that thc·Fifth, Eighth; and.Fourteentlt l!,(bcndm¢1$ are dire<:\ed ogajnit 

·• .,Onecpt of"inhumane ~cot or punishment." MCA. §'l?(cXZ). • 

. .The CIA pro~ndcr the restrictions that wc.bAve ootlineti;.-<:omplies with each of 

d.>e specific prohibitions;in·Common !uticle 3 that imp em~ its oyuarchirig humine1reatrncnt 

· rcquiremenL OUtsidelho~ rout prohibitions, aiM! ~ addi6onal t<in~ of basic ileoessitics:Jhat 

· )He bave.clisettncd from the siruc:turc oftiie Conventions, ,. confront. anolbcr oituntion wberc 

, ·. .. the <Content ofthe.requiremant is undcripecified by the treaty. St• Pictct,lV Commentiut.S, at· 

,.. '. ·· 1S.39("Tbe definitlon'[ofli.una:nctreasmeo~] is.notilverypr.cciscoOe,asweshaiJ,ICC . . on.the . 

·· ~ ~.lhcrc'is Jess'11iflicqhy in,uwnerat0;18 ~Which arC lnc;OmP,&tibte with~. 

•; ·• 1teatmcot. Tbatis the JJielhOd followed ill the Convention when it prOdairiu four absolute 

.• . ; • ' • ·:. ;pio!ill>itioDs.:J. Agfin, thif isa Situa)i<iD wbere thegeQCI'a.(ity'was intenlional: l'o'tl!e: .... :.' 

: ):· . ':: ;. -. nego~ott, :·:n Secm(ed]' Wel..Ss .IJl!l.evtn d,angerous'to Ott~! to IJ?Oiic a ~st of ali .tl!• factors ' 

•. ':'-. · ·that woUld mal\• treafmciit!bunlane.'" 'Ith.204 . . nic Conammlatiu~ !llat '!Wbai = .. / .:.··. ~nn..~.ir~t- •~•balwein&:Ot'~!Yand~ill'eonCcrns, n •.... ":·:. . !~~~~~=v~:~~:n=~:::~ea;~:;=~·:. < '""=:- .~ s ,Jd ai 20S(emplWis idd~) .. Gi~tbeaetibetatc8eoerality ~ftpe.~~~Staod~it .·. ·· : · · · .. iu'easonablc to tum 'to ourowillaw, wbich establishes a~ ofliJIIW!c treatm~ that . 

. ,· • : · ~ similatiy require$ ':~ ~security.' and .h\llilanilarian coo~; to:'provi(le COD\eOIJO ' . , • 

. .-:: · . : ,Otherwi.ie.WlSpecifiCdl¥ms·in theCOnveoiioni· BeCause ihcciAjrog.:am coqiplieswillithe · : '. · 

' · _.;: •· '·Stabdaidofhilm&Peinoa~Die.ntprovld~inthe.D.euinee t&tnicm.Mf.ind tfieus,- ' ·' ;-:: . ·- .,.., ..•. :' · :.'CQnsti~ ~ t!iai ir-uioorponiCS,~ ~ip'iovides~<iS witl! thc~ .< · •• 

:{ .: .: : ..... ~· 1 ·. {ood; sMJ.~, tio.tbi:Yi, and medic&! care; II!• ¢M. :pioi!i'am satis6#' ~miiicni i.rticJe 3's.buinan.e . 

·~·; ~: .~ .. :i :. ~~~.t~ ·. ·.F .. ~:::..·:. .,.,= .. ; ... ·. .. . ". . :: :·. ·./ ·; ... , ..;:.~·:; ·: .. . _.=.. :. ,.' 

J:···.·~:· ... \. . .. "': ···. ··:-.·> • :. ~-- . ·. \. ' . .. ~ ·•. \ . '• . ~· ... 

· :(~il.N~~e-;t· ':~'';.< .. ~ ·.· ~ .. -'\~:·: ;)~ ~! :.: ~::·· '•.' ·. 71 .. ; . .:·. •#' .. ·. 
187 


628RIZZO72.eps

(b)(1) 

(b)(3) NatSecAct 

~ ... 

c 

We alSo. recognize th4t lhepractiC<SofO(het state partid in implemQlliog COmmon 

ArtieleJ-0. opposed to the statements of o<b..-swes WlSUpported tiy eonat~e ciccumstances 

and coo!luet-::=a.n .....,.. as •a suppleineptaty means ofioterpre~ation.'' See Vienna Cooveotion 

on theLawoCTrealies Art. 31{3)(b). We-bave~ehed for e:<ideoce ofstate.parties, seelcing 10 

i!"plement Common Article 3 "!a context similllr to that addressed herein. '!Jle one example• . 

!hat we b,ave found supports llle, i!ll..-prelition of Common Article 3 that WtJ have set forth above. 'Io j>arurular, the U!lited Kingdom from ibe tim.e of !be adoptinn ofCommo~ Article 3 Wliil the' 

early 1970$ applied an interrogation program_in a dozeD counter-insu'rgency operations that 

'r~b es in several ways'llle one proposed to "be employed by tqe CIA. 

Following y.'orld Warn and the adoptiOn ofCommnn Mcle 3, the United Kingdom 

. developCd and applied five "in depth interrOgatioo" teeb!>iques ~o deal with a nu~ of 

:~ · :; s.i.tUa.tiOns inv61~g intema.l sceuriw.•• Rt.portOf<the ~ltte~<>/ Privy. Cw~llors Appointed· 

. ,. to Considu'Autlwriud ProeMJ/~for tk Jnu.(r'ogtl/itm of PtrMns'Suspiittd pj Ttm>rism, 

. 1~2. Cmod. 490 I, 110 (HSMO 19n) ("l'arker.COinmittee Reportj. The five tec!u>iques 

.. · · · . iilvolved.(i) covering a detainee's head at alftimes, exeepi wbeo the detainee was under 

• , ·.' ~eirci~on or in' an room by hi~; (ii) ~bjeetiog the d_etaj.Gee ~o contibuous Md . ' : · : monotonous n~ ofa.volumeealculated to'isolate'[him]'frQJDcommuriieation•;·(iii) depriving 

·•. • the detainee of. sleep "during the early days• ofthC interrogatioo;'(iv) res.triding.a derairiee's\lict 

• '. ·. · to "one roilnd of.b,...d and one' pint of.watei- at siJ<·boutly inleiv-'S"; and{v) forcing ad~ 

·. .to ft~t oot ~~~ wall with IllS hat>ds.iai!Cd. i.nd !llsJegs spread apllrt. for hours afa lime, . 

• ) • Witb only -:p,eriodieo,l loweririg of !lie~ to~ cirs:uJation." Lord Gaf~. Minority· 

: . ~n. Par~· CO!DJili'ttee itO;pori, 1 S {"G1mliner Minori.ty ,RCporf');.su Dlso:ParkJ:i 'coiDmi.ttee ':' : . . · ---Rep6n-1!'0 .. Broadly. speaking. th";teehniq':'"' w~~desi81>ed t.c>malce'llle dctaince- (eel ~he 

: - ·; . · . isin.a hostile atn:lOsphere, subject to stri'et dilcipUn~ ... a/>4 poinpl~clyi~lited sotbat be fears 

' ' • : :what ~y 6appe'n ~ ~ 1(1. 11. J.'Iom!be 19.50s througb~tl!cearly 1970s, lbeJ3ritjsh !XD,P.Ioyed 

. : • . .'· jo~e;,r .,U ofiJ!e five techniques ip. a do.,q, "counter ilisurgeney opeiatioos" ar~ ~world, 

·· • ;;,, -: ;jgcJuilid8!lpeutiC?QSii)Pil~ne, Kenya,~ tl)cBnti,Sh-CaineroopS.lltul!ei.·Britlsh Guiana, 

;.:.__:_:.·.> ... ,(dcl!.~ysio,lb~l?orsian'Gulf, andJ90rll]\ln!Trdan;d. Sujd. , · ' ·;' {·: ··, • • : .•• " I.. •· ••• :· ,;. : • ~...... ·: •• - .. ': .. ·.~ . ,; • :'. .• . ·• . .• ·:. : .. 

<::,;· .. <. ·. • .. ln.lvil;~t\le P!lblicl~ed !Mt}l'ri!isi>$eC.i.rit):'~bademployt.dtbtse .~. 

. ,-•" : : • , •. · · • teci~piques ag'aiA$1 .Irish.natioo&ls ~ca.:of.supportiftg Irish ,J,U:>publ)eau Army terrorist •. 

· j ·." . ·: · ' 'ai:bVjties, pie'B~ Govertunept apjlo~ a.tti(eo-Petioa ~ee.!'f~rivfCowise!ort, · 

• :•. . · .. ·!. : .. ~ by M Pl!rker of.Wad(!ington, lbe. I-!>i-<1 Cbie£1Usti90 w&8Jand; IO'ciwnilie lh~ : • 

: ":: ·• ·. : ·· legl!ily of \!Sing iht·,five ~tiob ieebni4u.s agiliitst"~ t~ •• See" Pldc.er 

~-:· -." ··;, ': Com.mittce!lei>ort.ft 1-~: ~other !biDis..tbe:eoTOJ!UttQe. eo,nsidered wl>~ the ·: · · 

•. ·:: • . · ,~: tethniqu¢svioJatbd., 196s ~""'fO!iui!iri&Jbat !11f qillit.ir>y illltm1~cotnplyWi!b 

·~·~·:=:.: /.· ··.!/U:tiele·3 ofiiMi~~ ~ventionR~tot,bc;J.'r~QfPrisooers q{~~ tl949)." -Su ' 

•. ;". 

'· . 

,. 

:·:;·. ;· .<_:,J4. n ~"' l\ppli.~,-~ tDajotiiY, ofllie COIII!Jiittee,:~Udillallle J.onl <?>i¢:J#~· 90~~9,i!· . :·')- :'··' :;··-~~:epplieali<;>n<;>fi¥e ~que$.;- sli!>,ieetto"Piop<;rsaf~Otds, U'JX!!tia_gthe~olion · :· ,. ~ 

:: ~·~·! <' .~.r~!Ucb ~tlie !f~.u> ~¢!J iiiey. ~ J1applieit;.wouJcftie ~ ~tlfonoiiy~lb:~ .J>i!Cctive, . . · ! 

~~J!J·z :J;: '"':~,~- ,._. "· · : :-. , · · · :,. Y :\ a~a 2.;,· · ·.<(~)(~) N~t.~ct .·.' · .. ·.F~P &Jj ~, .·.·' '- ·:·:;;,·,.··.. . · • 

• :::-:::· ·:. ;. '·· . .. 72 . ,_. . . •. 

~. : .. : .. . .· -~·. _.' : 
188 


628RIZZO73.eps

·-

(b)(1)' 

(b)(3) NatSecAct 'PiP £ITPw1 ----' ~ 

In reaching this conclusion; the Parker Committee rejtcted the notion that "the eod 

justi.fi.S.Ihe means." /d. 127 .. ·It repeatedly.suessed that aggressive inteqogarion techniques .. 

. "should only be ~ed in eases wbt{e it is considered vitAlly neAiessary to. obtain informali,oq." /d. 

. 13S. It alsO emphasized that interrogators $bould be pr<?~ y u-,ined zed that clear guidelines 

· ~d exi$t "to ossist ~ persoru>el [in dec(dine)'~ d~ec to which in,~y pas1i~ar . · ClfCI!IllSUnces·the. tedmiques can be applied." /d. Similarly, n recogoiuillhe unponance of 

· obtaining appr~Vallfom seniq"government officil!ls !;>efore employil!B the five ttcliniQueS; /d. 

137, an~ i.t recOmniended that aggressive i.nterrogalions oecut .only in the presence of a ~~or 

ofticer'' with ... o.v'Cfa.ll oono:ol:a.ud .. . yasow•frt::~opo~J.Sibility fot llreopt:ai{iou .... .fd 138. 1fte 

committee at.o. concluded :'that a doctor with some psychiatri.c.ttaining -.hoold be present at all 

times •• the in~garion ~$<! should be in lh~ posiiion to .o~c the course of oral • 

interrogation!'$<> that b~ could ':Warn tbe.controUcr if be felt that the inierrogation was being 

p~ed tilofal' (al'thQU8h,_io i:ontiut wi~ tbe c~ program. thc<IOCIOr wciuld not·h&ve the 

8(:!ual 'authority to sto_p the~teqogati9.S). I d._ 141. .. 

· The1'~~er cOII)initiee emphasized, bowe11er, that its ieje<:l)on of a pu'ie "en_ds·m~; '&llaly!Js did n<it ~ tharCommqo Article 3 barred countri~ from giving som9 weight to the 

need~o protect their citiuns against the harm tlireatei>ed by terrorist orinsurgent operiltions. 

The committee, for example, emphasiztd .tba1, when properly ;a:dministered, the frvc iltterrogation 

.. -tocbniquc$'po$cci'a "negg';siole• •-rt.k of'pbysical injwY and "no rCaJ risk" of"long-ictm OlenUl 

elf..,u ~ /d.'t'i114-l7:· Yerthey had ''proliuced'vtry valuablt.resul~ !n revealing rebel 

.o(g&nizatiol);trafn~g &l!d 'B811.1~ 9r.de.>.',"' ~d.11~. JP.'Nortbern-Iieland,:the ~mmi~ · 

·,obse>ved.useoflhe t~~ucs~;!>rd¥Y p<ili~ interro~oo bad WI~" I~ !0. amoDf ·. ) · · · oa...: thin8S, the •del!lificabon of more than ?90·1Jt,A,. members, detail,s.abo\lt "POss,•blt'I.~ • 

. · • opUal!ons" and "fUtur~ plan,<," and~ discovecy of large quantities of arms and explosives. id. 

n ·21'22. :The <;.ommittee emphasized. thai. the techniques were "directly ftn!l<iodi[ectly . •• 

respo_osible.for ~~vin.s of~~~ ,!If~ Citizens. • ld·124. _,. 

· MOrc'broa<lly, tl!e1'8lter Collimittee ~Wnedlbat.thell~C8lli.o$·ofeomm'on Article l's 

• <e$ttfctioos·IDU$l.be int.,Preted 6ased.on tbe nqture' oftbe' ~ilflict. See. id. 1.30 (explaining that 

:. ',': • :t~ sucb ... "'lwn!":"'i.':'in.bpman. • .., bu'11\liatiiJ&' anci •d~iJJ8' f4ll •obc.:ii>dgcd,b.yfa . 

;,~. -.._ ; . ~ •.'·. 4isp~oiia'tCl ol?~ in•the li~l'lbe ~~ in ~Djoh tbe)edmiqu~ aie lied").; ·• 

; :· .. ;· ' Accordingly. the <;o~ eooclude,d ~ :Commoi1)\rtif!e'3 1111/st:bc i.ol~ in Iigbl'ofth,e ' i 

.·:· ·. ,:;· . ' unjquethreas p0sed~ tcrrorism. ~gh "sbortofwar in.(is<>rdinaoi'~~ l«rofjsm is"in ." ... · ... ·.-· • manyway; 'Worse than Wat-,•·zd.' 1.32. .. It'OCCIIio':'withiillhe:coupiry;•fiieixf'zed·fuc' . .,filfootbe 

;:; ··,; : ' : ·. i~able; !hC:rebeliin&j be.iUthle$s .pen dct-ed to acbi~ethcir eod~ by ii:Jai~~

. " ,·~. < ; . at!&~ on inDOcent'·i>ersocs. li.i4foimilioo~ to be' !'btai.qe¢ ume mUSi be of tllC esienoeof~ . 

· -' ··:-. · ojletabon,. ". Id. M<i~; fllctarstliaqnigb!'~cilitate i.oierr<>garioo in l:t>Alitjoili! wit-such as 

·. ·:: ·' . ,.' '"aiupleiilfOrplation" toasslst irli:Onogato~aoil "a numbe<-ofpfuODC'S wflo dl.lik'e ibe.¢irte:ot 

'· ·.,., •· :·i •••~Y~e-~~Oiily.loo~'i'ili!n&l<l l4lk".,-!ireotlenakii in ~r~u1i~~ •·· ·. ,. 

' . ·:. • ··< .'··o~?ns.~ ld:fi f.S-~ . . ~also fd.. (notirig~cujty il\ <>Q~g imonnati<>n ~quicldy"): . · . •· ·: 

:. ::; .;,; ·.:' • •. ~ieiltly ~f~ ~~ .. coooiUd~ that ip:ti~t<>ftlie narure o£the ~~ threat, :, ... ; .. 

·.,,,.,,. :-::., int~opi6!:hniqui:s,~pl yed~ytbeUdited:Kingdomwereconsistentwitli Coll)lllOn ' ,}' • 

:··. :;~·(:::·;~:·~c ~J: ·. . "' !: . ~: . .: ~." ·.;·_:· -~· ·i . . ·:~. : .: ·.· .~ .~· . .-· .. ::· · : .. :. · .. · ~l • .. : • • ;. _.' • • ·."·. ~ 

j •• ,.. . ·.'· • .. • .. ·,_. ,... ··: .•.• .~- •· ,. •' ·•• ·'' . 

::_ -~~~;'• ; 'I • • ·• 

:'·· .. :~~)i~ ·: ... ,:.:- </.. . ~~ ;;-~ . ;_'.:'·ctiX3J·N.at'secAct · .;· .': .·. :.< ::···· ···::.~_.'--. - ..... 7')-;-.. -.:-... -.. -"'· 

··.:;· ... .. ·::·· -~: ... ·· .. :~:~·- .•.. 

·' 

.. ( 03-3.2·9' ... .. . 

. ·. ·:· ... :. ":.:_:.· ·.· :· : . . ··:· . .... 

'· 
189 


628RIZZO74.eps

<bi<1r .. (b)(3) Natj>ecAct 

~, 

·~ .... · 

·.· 

. ~· 

) 

• . . Shortly after the Porlccr COmmittee issued its. report, Prime Minister Edward Hcotb ann<iunced tha~ as a manc:rof poGcy, Britain would n01 use ibe 6ve techniqllCS in furure 

interrogations. &e Debate on lnterrogitio11 Technique$ (Parku Coqunittee Report), 832 Pari. 

Deb., H,C. (5th Scr.) 743-50 (1912); see also Roger lli,lycrs, A Remedy for Nonhun Ireland: The 

. Case for United Noli"'!:' P•~•f!lng int~tio~ In An lntUnaJ COnflict, I I N. Y .L. Sch J, 

· ·lnt'l & Comp. L. 'I, 52 n.220 (1990). The Prime Minister d,id not, to our knowledge, Wee issu.e 

with the Lord Chief Justice's ;nterpretation of t,bc United Kingdom'~ lieaty oblig&tions under 

· Coll]DlOn Miele 3, however. 1ndeed, ;n innoun<:ingwhai he siateil was a change in p<iliey, the 

Prime Minister empbasiz.ed that the ~ority of the Committee "eiinclude[d) that usc o£the : 

·methods could be justified in excep(ional-circum~~" subjCct to'Safeguards. ld. at74J. 

• . Tllat for more than rwo decades following the enactment of Common MieleJ . one of the 

wolid's !coding advocates f!'r and ·prac<itioocrs of!lJe rule of law aod·buman rights employed 

teChniques similar to those in lbe CIA program and.detemiined that they. complied with CornniQo 

Art!Cie 3 prov.ides strong suppon for o_ur conclusio~· t!W the CIA's1)TOposOd tOcluiiques are also 

co~istent 'with ~mmoo Article 3, The CIA~s .Pioposcd tcc)miques are no) more grave U,., 

')i.o~e employed by the United KJngd(!m. To the P:>nrrari. tbe'unitcd KJngdo.m foUlld,str'oss · . 

]i<;>sitioos to be consistent wilhCO.mmoo Article J,.but the.CIA currently does not. propose to 

include .such • tccl)nique. Consistent with ~mmeoilation$ in the Partci!r Committee's·lcgal 

., oj!;i,;on; tile ~ h&s developCJ! Cxteosiv~ safcguJtds,· iliclildiog wiitteri,gUidclincs, training, 

close m~ring ~y medical and psycbnlogi~ ~ alld tlie appro~ pfbigb level 

:. olli¢als.(9.tnsl!re that the program is confined.'to Safe aod-n~ applications oftbe . 

!<dm)'ques,in con'!'OilOd. ptofc;ssi~oaJ C!IVironmeot. WbiJ4the UoitecJ·KJngdoiJ! empkiyed 

.these tccliniqucs in a do;eo'co.lonial and related ~cts;_ ~United SW.. pt))poses 10 use these 

ta;hl\iqlfes only with •. small ilun.bet of high valtiC't""'\)ristS ¢gaged in a worl~wid~ inned . Cqnllja. whose primary objective is to.inflier mus civilian casualti'es in the-United S~ and . 

~gh"'f1 the freeworld. · • · · . 

. . .· .. The United Kin8do;,.:s detcrminatio~ lind~~ Atti~ e 3 ilso'Sbecb~bSiantial · • 

' · • ·. b~t on'.the'.decisionso(-othcr iJilcnlatiooal tribunals ~pplyiog I~ standaianhaf~erilallJ. 

: · :.· ·.. : d!Jf~ fr?m ~on Atticle.3-.' A$~sscd al>ovc, ll!e Euni~ Cowt of~ RightsJiter 

.\ ;~ .:. ·· foUnd tliat.t"'l> of~inleJl?,gatiOq tcc!u>iqu'ts approve<~ by ¢>c Co~ierJlwiipulation · · 

.. . · · ·. aoil Jlccp deprj,;atio......,violated ihe.Sjand-alonc pl'abibiti'oq !lll "#gra.cliOg ~~in'lbe .: · · 

··. · · :-!llliQpean'eonve;Dtioo QljBluiWl rug~ns,to wliicb theiY.illoo s~esisnota part):, ~~. _ ·, ·• /: ·. :. ; '. ·T/irit<!f.!Jittgrlqin,2EHRR2S (WSO)., l'!>c.ci>~ c#Jaineil ibat "d~.treatine;m·tlode,. the ,. '· 

• . .' ': · · · , ECEIR-incluil.a actl~.d~ at. "b~JI.(tl!eJ P¥~ o•monfr~ of 1e\ainees- ·I d.' .. ~ ~ 16~: .'l"becOOrt:s capf,Ci<lli3 interpretatj!ln of·lbeJiufo'pe8n Convtn!i()_o's prolui)iti~n on . ._ •. 

/\:~ :·: ., ·~. 7d<Sridins tr~· ;.. i>OJ ~-$\Jl't for ~9ir~cle? .... ~~ ~ .. . 

.. ;:-:::::·· ·.~£~~~:~=~~~;~~~~..; ·,·::· ~· ; . •.. .~ .......... ~d..atl7~ AscliScilsoodo~Joye,:,.._.,.ot4i-42,1lioisnldi,C~~ . • . 

::·;.=:;,~::· ~':=~=~==':k.~~.: ;:~:9'.t=:·· .. . ·: · ·: :r ·· ... · OfC4ajoiOj,'AJiiclca. Sixj<ai>IO<cr;oie ...... :alo.1...o""""'-dliitlie~~-• ... . - ' .. -·:··~!a!fcm~l!idw., ooa!lirmed<O•llk(~.clilfer. Vihil91her~;Jxes·· Y· . , •• ·. "aa!!QQU~e"I<Siiic:tioos ~cimDxnt~tbc:ra oflmio!!OoniH'" · · .. ~~ ·-· 

::~~kX . :-:\:> .: ·· :. ·· ~ ... r~ s~h't_~- ~-~ ~ ;.·. · :;:,.::'/> :>~:':: :;· 

);{:':.·<bJ<~> Na!§~~ .· '.'·}:.,~:·.· .......•.. ':·:::._ _! :·:_ . ·~ · · • · '. :. . ;::~ :-.-... · .OOJ3o. :,( 
190 


628RIZZO75.eps

(b)(1) 

(b)(3) NatSecAct 

.·· 

... , ••• 0 

_,1 

(: . 

ha,s.intt:rpreted tb.at provision not onl). to impo.se detailed roquireme.J1ts o.n pri~n conditions. but 

also to probibit any ac:tion that drives~ indiv\dual"to aa e8ainst his will or conscjonee," a 

Slaildard !hit might well rule out .Dy significant interroga!ion at-all. Sa Greek~. t:f Y.B. 

ECHR 186. Those decisiom teflect that the European Convention is a peacetime trtuy that 

prorubits any form<lf"!'tgradingJreatrnent," wbi ~ Coaunon Article 3. prohibits only 

·"humiliating. and· degrading .trewnent" lh4t ~ lo the le""l of an "0\'trnse upon P,crsonal 

dignity." Common Artie!~ 3 is a prpvision designed for times ·9f war, ·whin the gathering ofinteUigonee, often by)cquiring i eaprured ..lemy "10 act ~nst his will or conscience" or by 

underoiining.hls "physical or moral iesiStabcC." iuo be expecte<j. Furthermore, it is" unclear thar 

. the ECHR in'lr<klnd v. 'U.IC wa$ coilfrOnted With tecl!piques'that provided adequate food and 

th3t wtt~ eatefully designed to l!e safe.. such as those proposed by ~ CIA. 

it is the United Kingdom's interpretation o('Common Article 3. in prac:tice'tlat is rei evant 

to oUr determination. oot the ECRI~.'i sub~ueot in..,.Pretation of the legality oftbe.United 

Kingdom~ tccllniques under a different treaty .. The prac:tiee o(tbe Uruted !Gilgdom in 

implementing theinterpmation ofC9nunon·ArticJel supports~ interp~-!on set ~ortb abOve. 

D. 

F:or lhesere&S9Jl$. we interpretComin9o.Article 310 p.,..,;ttbe CIA'~ int.;.;.~gationand detention. program 10 go. forward. POrt of the foundation oflhfs interpretation Is that Congress 

bas largely·~ the requirements oteommo~ Article 3 tbJ:oug)i the War Crimes &nd I>cWnee·Treatmout Acts. Tbese·provisiolfS Uielude deui.iJ¢.proliibitioos o.rfpartiCularly serioU. 

c:Onduct, ill.,!diti90 to extending' protee:Cion oftbe Natio11's own eo~~tional standaids iQ 

aliens aeujned·abJOad in. the course of fisl\tins against Americi, persoos Wbom·the Constitution 

· would riQt oiJierwise Je&Gb.. And the ~· ~on program, both in its conditions Of 

confinement and with regar~ 10 tbe.$ix pro.posed inter:rQgation techniques, is co~i~ait with the, 

·. • War· Crimes and D!;toiriee Treatn;t<nt Ai;u. T6 the exteot that Common Article 3 prohibits' 

:.··,· .• additioaal'.Oodu<:t, '!Jiaddr~ b)i tbe Wai ~ ~ De!ainee ~tment ACIS,thc ClJ\. · • ~ is consistent with lllosel:CstrictfOos as well. .. . . - . . 

:::.'::.:' _ .:·.-· ..... :~ -: ;~i.,~jj~rki;~~ t'ihlspro~-. ~~~~..;ow~~~ • - .• .-to idVince • &uminiuria.. ""· ciCti · · 'oft\>e ruglldt<>rc~a ;Wc;rtt.iQg ~· WroriSt · · · ·• ·• • . ·.: • '-<"· indeed!kcr(w~i.f th.tibesk 7:1' ~teehni e! ~relbC~ '· ·~:, .: : : • OcCe$sary foT a~ iliat ~ulci lie' CffeCti v~ ln<>btaiilin~elbg~ q,JtO.~ihls ~ : .. :. •. ·· ··. ~is limiiOd tc! a ~1 DUm~ ofhlgh:Va.lileieriorists ~; aftei·~ ~~ · -.. •; · 

" ... " ·P._II!fesslonil b:lidligenee office($ of tho ~ ticlielie to ppssds '<irucial ip~lli_gence.'. Tlje:prog,.m . . . · ·.,- .. ;: -;si:oixluC:tedulxlereaieful~andis d¢si~ 'oiri:twseoo'J>&in.tbat-isoillD~foi ·. · .. ·• 

tbe'Obtainingof~iJJ!CpjgenQO,. ,\qbe iaiJ)C!ime, itOJ>Cil!ieswithirptPct;funits--oocond~ ·, . 

/;·f.,. . inclucllngihostma.ndaici!lfY.·Jhe Wy.~~i.od tJ>~pn;Qibition'OJ!10rture.~~.., <#IJ!e .. • . : • . . . ·moljvilion·ofthe oonduct. CorDino'n t\{ticle 3'WU :riot diilled with lhe'tl!reOt posed liy a,fQ'~ . 

;;;:~f_;,~:;~z;z:;:~~,;.; .. ._,./:. .. . ·: ... '::' ·. :~· .· '" . "' .· . . .· . ..... < ': .... , . ... :. ,; . · li'9J> ~~&wliii' ~ .. '~., :'L-noia.t :. ·. · <·:.(b)(1)' :,.: -~ • · .. ~ ·; .... ··.-· ;~. ,. :.' ,··' .... ,_ ... · :.· ... · 

!: · (b)(3).NatSecAct ·: 7S . •• ... •• .. 

~:: .. · · .. ~·· .:.:.:· ,.~·:.. ·.·;:· ... ..... · . ;. , .·.·-
191 


628RIZZO76.eps

(bl{i) 

(b)(3) NatSecAct 

less definition. The gcneial principles leave state patties to add=tbe new eveotualities of war, 

to mold the interpretation of the Geneva Convenbon.s by their conduct. We will not lightly 

construe the Geneva COnventions to' dliable a sovereign state frOJ;D defending agalnot the new 

types oft..-roriot 8ltad<s carried out by ai'Qaeda. 

~ l • 

: ·,: 

. 'The interprelation in this mernorandu.;, 'reflects what we'believe to be the correct 

intcrpretiiion of Common Arliele 3. Because -.in general provisions in Common Article 3 

vittt design.O to provide state parties With Dtxibillty to address new .thteats. however, the nature 

o.r S\leh ~exi~Uity is that Oiher state ~es may exerCise their" d~cretion ~ wt.yt Ou.·t 6o ~t 

perfectly align with the pi>lieiesof the United States. We recognfze Common Article 3 may lend 

itSelf to other interpretations, and international bodies or Our treaiy ~ may disagree in 

..ome respectS with this intcrpretati<?o." · • . 

• , Juot as we bave re~ed on ilie War Crimes and Detain"' Treatment A<:ts, other states may 

ium to ireaties with similar langu"8c; but dra!i~ for dissimilar purpo~ as a source o( 

.• 

: disigrcemco\. As discusSed above, for cxampiC,Ilie Euroj1ean Cowt_ofll:u~ ltigbts 

d~ermii>~ that ~n. ofth!'-interroSat\on t..:linique$ proposed !'Of use by the C~-<liet 

-manipulation and ~eep deprivatio~Jiiolated the European Cooventi<ln's·stind:alone ~ .. . . . p_ro!Jj_bition on "degrading treatmellt.". lrt{and-v. Vnitod Kingdom, ~ EHRR 2S {1980}. For · 

-·.: 

· • . reasons.we have explained, the .ECHR decision does not oollsti.tute tb,e'ms for a oo!TCCI =<liog 

.·' · : ; of Common Atticle·J in our view, ·bui thC ppcmess of•hnmiliating .and .degrading tieaJ!nent!' . 

. · ··. miSbt not prevent otJ>ers. fr<?rn. irioo<.:ec:tly, adv.,.;.ting silcl>"an mtapretaliOO), and the State .. J:lepartineht !nf<i"!'• ui that·giveo tl!o paSt slalt.meots of Our European ~y partners .t>out ) · .. u~~ States a~ons iii the War on Tcmr;~ ootwjthatanc(.ing sqme oftheit.<l!im past 

p~ :see supra,at o.36,.tbe 'united $tates ooUld reasotiably eXpect . .0~-of '?U' EuroJ'!'OD ' treaty. partners tq '!ike precisely sueb arr.""P."'l'iye.reading oftbe oi>entemis ill Common ... ~ MicleJ. ' · .-: ·· ' , ·. . · ~8 the generality of S.me of Common Micle+s provi.;.;ns, cOogr~. ·.·.'' .: ... ~cda~~tbrougbwhjebth~Preside~?-tcouldau~y ~el!o'wll!• :·:: : ' · . United Stites would appfy its terms.io S!*:ifiuoote:xts'. Thc'llfilitan'-Comroissioos Act ensures 

:. :. :;-.; · ·:: ·:· :'!barthe l'teSieseni·s· !ot~Oo-Q.f)h~ .m ... g a,od "J'PlleabilitY <!( thci Gcneva..~veotion$." . 

•· ' ·. ·. ' Wo\ijd i:>Oiltiol asai!WterofUnit«< ~Jaw:· Sec:lion 6(a}.oftho¥CA-is!quatcly diiu:t~-il -: 

;--.·:.' • · '· ... 'lh& fisl< &tibe .t.,p..eaiio:~ t.tiat ,.,.,wei e\iide our military' and \i#elligence'pei-s(,nrlel could 1>9 

;)· .. " .. ;. cas~.,;~iifterthet.d6y our.o,;,.;, ~Ot~ooaJ tn'bui\a!S.aimed~ il:l.?'li eiui ." . - • ,; :•: ·•·g!"'Cttl.laJis\!ag.tJnCoinmOo-Artie(e'J..thatcould &W ~~ ofllWido'~~ pfpol!.cY .;·:,. 

:; .• - · .•prefereneesor irubjtctiveint~ons. :to.reduCC this.ri,dc, C<io8ress reru!i..ed~e~va· 

·.:::_.: • •. ·, :. Coaveniio.os judicially:uneilfo~le_ Su MCA.§ S(a).'·"Ilieroio cifthe. Coutts iii enforcing. die : . • . . . Genevl conveoti~ i~ liniited-to Odjudicaiiog prosecutiOns under ihe:w,,:Crimei A<:t'iiUtiotcd 

. ·~·· ·;· -'· bj~Jtxeam~ ~~~~~~oow:ts~yDC?it~ ·•.f!ln;iS!ior;rt~o~~ .... 

~·-~.:.:.~.·-·:.~:~.:_.- - . .. .·. ~: . .. - -----:~~~~f raxiP;inn. ,: · .' · ons~~).': :·.: .' · :~.·. ··:~~~~} iSe~.. .., .. ··: :: 76 · · · · · .;: -.:/.·_: ... ·. ;·.: >. ·.:.·· ".:. · . .• l . ~ ~-... •••. •• . ... ::·· !· ,• .:. : ,.: ...... : ' • 0 : . r( 0 ; ' 
192 


628RIZZO77.eps

~ 

(b)(1) : 

(b)(3) NatSecAct 

'· 

) 

oflavi" to d..;ide the content of the swutory dements in the War Cri!lles Act. &e {d § 6(a)(l). 

~ngrcss alsQ expressly reaffirnied tbat the President has .Ulhority fO! the United States to 

interpret the meaning and'applieabilitY of the Geo.V. Conventions. See i4 § 6(a)(3)(A). Should 

he issue interpretations by excC:utive Order.' they .will be .. atnhor\tative . .. as a mat;ter of United 

States!,~ in the same manner as o!Jlcr admioiSU"Itive regulations.• ld § 6(a)(3)(C)." 

Wellllderstand lhat the PresidCnl intends io.utillz.e this medWlllm and to sign an 

·exeeutive or~ $cuing forth an inictp!elati,on of Common Article 3. That action would ,. 

• cooelusively determine the applicatiO)I o( Coliunon Article 3 to the CIA program as a matter 9f . United States law. We have reviowed the proposed eX.ec:utive order and have<ietennined that it 

is wboUy consist~~ with the analysiscfCommon AJtiele 3 -set forth above. Su.Proposed Order 

Entitled·lnlltflJ;e/plfon of the Go~ ~titinsComrnon.4rfi~l• J is ApiJ!ed toe Program of. 

Detentfqn:ant!ltittJTogatiqn, 0~ by~' Cintrollnttlllgince Agancy''(Executive Clerk final· 

tlraft. presented to the President for signature, July' 20; 2007) ("Drill Oi'der"). Beause the . 

.txcci.tiveorder would be·poblie;it cannot~gAgein the<ietaiteii application of Common . Articlo 3 to the $be proposcil tCdmiques tnlbodied in this opinion. ln$tead, the executive order .. 

seu forth an. interPretation of Coromon J.rtiele' 3. u a higlier level of generltity that tiaCks·the , 

lUlllysis in this-opinion aod, thortby,.conelusively determines that the CM's proposed progrun 

. of ioterrog81ioil and detenlion, includinglht; six proJX>sed iotenogatioJi techniques, complies: 

- with'Co.mmiOn'ArtiC!e3. ' · ·. . · , · 

· :nie executive order~ prohl6it any t~Qll~ ~r 'oonaition of eonlin..;,ent that , 

. conStitutes to~ u d~ in i's U.!).~. §·2340, or any aa.prohib.ited by ...Won 2441(d) of ~ 

llie Wu Crime$ A~ Set Dhii'Order §'3(b)(iX4)-(I!). Tbj$ Ofl\C.: has ioncluded II\&! ibe ~ 

r)roposed technlques, when applied in oomplianee with IIJe'ProeCdures and:safeguards irut ·in 

pti ... by the CIA; ~mplywith both II)• ftatnll iint;:io.ture ..mrte and the Wu. CrimC;S Act. See· 

. .-·:: . &ctiqp .2340 Opimpn and Part n, sripra; .. . •. · . .. · . 

, ·.• '· ·.. . TqenSu!efuU ii!>J>lein"!'llllionofpa[llgTiph l(~) o~n AJ1jcie:i: tbec:ic-li.vc , . · · -. · o(dei~ ~proliibil ':'o~ octs ¢violt:oeesenot¥ .-.igb, t

0:be co~dend compuabl<>to .. , .. 

:-; ~;~~· :_.~. ·- ~nrdec. tctrtute;<JDJJtilatip~.and-erqcl ~inhuinan as (\cijocd id',the V{ar Act.;. ~·~ · .. 

• , , ·.:·. · 'D¢{ O!'ler '.l{b)@(q. liS;#.r~~ (..u _p~ JY,Jl,l:a; .11f>~a), th~ sijt pro)>o'~ . · ·, -...... - ·. ;.' • •. · •. · t"!llmiques do no( involve Violcn<»oo a'levet.e()~le10 the IOur·eoumeatecl fo1111l>of · ·. · 

;<,;' ' z;;;;;;;;~l~.ci;;;:;;~2 ;; :< ·: -~.: . ~-ardbla!ilj~oq:op~b7illo~~ ... ,..~~ ... a.p., ~ ~ . . : •• • s.;0:;2669.,268.50006). c::oc.s.-.-.~ .. tbt>tdCII:dlol.d ..... ~to-~0.0.. . •. 

,·!:i·:~-·/ -:=~!~=~~=~~=; '.):. : .. . :. . : · H~. l26S:Cta~ll<j.AL284'7 (I1Icalu;J'.~ 'Ibc>~r•06a•• ~ . · .... · 

:JJ'., ·:: (b~S) NatS..0qt ~fir~~~!~ <· :: .. 'f ' · ... ' ·. \,..' ·. ,;· ?f ;·.· .. .. . . . . . . . ·.-:" •. . ~ · ... ~- ,: :; 
193 


628RIZZO78.eps

,.. (b)(1) 

(b)(3) NatSecAct _______ ~ 

.· 

trtaunenc The limitations on theadmini~on, frequency, and intensil)' ofthc tccbniques-in 

particular; the <;orrcctive techniques-eNUre that !bey will not involve physical force that ~ius to 

the level of the serious violence prohibited by the executive orda. · 

The executive ordct would prohibit any .interrogation technique or condition of 

confinement thAt would constitute the "auel, inhuman, or dqvadin~ treatment or punishment" 

prohibitOd by the Detainee Treatment Act and section 6(c) of the Military. Commissions Act. 

Draft Or<f=: §·3(bJ<i){D). We bave concluded that the six proposed technique$; wheb used as 

:iuth"orized in the.contextofthls program, comply with the SUndard in ~DTAand theMCA 

• .. /. .. Su l'r,it W, stlpia. · · 

-.. 

::· .. -·. Toddresspangraph l(c) ofComnion Article3 further, the executive ordct would bar 

interrogation techruques or conditions of con6Aement constituting "willful and outra3eous acts 

·:or pctSOnal atiuse done fur tile purpo,. of humiliating or d0gr.ding_tbt indi~idual in &-IIJ~ so 

serious that any reasonable ~n, Considering tbe citcunistances, wouJd deem tl!e i.ctuo be · .:·.:. l>eY90C! llilioubds ofh"""" decency;sucb as sexual or ~y ,illdecerit acts undenalc"') for 

.~ : . !· .the piiq>ose or humiliation, !oicing the indivi4ual to perlbrm'senw acts or to·posesexually, 

ihre3tening the indiYidilal with sexual'mutilatioo, or usipg the.individual a; a hiuni\Jl shield." 

Draft Order§ 3(b)(i)(E). This provjsion reiitforces.,cruclal. featurei-Qfthe in!On>rctation of 

puagt~~pb l(c)"OfCommon Alti01e 3 set forth ire this opiriion: ·ro:tiiggu the plfa8Tlpb, 

·· ·: ·'··· . Jtuiniliition and·degrWtioo mu$trise to the·levcl<lfanootng.r, and th~ tean ~ou~ loollsto 

• J :: theC)"lluation of a reasonable j)j:f$00 t\»1 the conduct is beyond ibe bounds of hUman decency, 

-.. .-tak!Dg illtO<=!)oside<atiOo tl_ie pwposeJUld conten ofthe..O~e~." As:exP,JoilledaJ>ovc,_tbe·Silt · 

) proposed tec;bniques do not coostiiUte ~outrage$. upon pusonal digni!Y"' Wl(la; ~ principles; . 

> '·:· _.. . : ~ the techniques also satisfy sect~ J(b X\XE) oflh~ ~eculive o.r!fei:' • 

'.. ' . ~~ i!"plenieliting plifWIIfl~ l(c) ofCo~on .Aruc~ 3, the exc;cutive.o.:der.would ·. 

• • -~- proliibit "act& intCQ(Ied to deOipte the.religiori, rel!gious praciices, ~rrdig!ous obje<;ls" of the 

·.?~ ~- ~. . ditainees. Draft Order.§ 3(b.){i)(P). The sill teawques propOeed by th~ ClA are'notcllrOctc!cllt. 

~;; ,. ~ .• . · :.; tbe.reUgioo, religi~ ,F.cti~,_ "!'religiouS o\lj~ ~r:~ d~ ·: . > · · J .• ~ •. · .. •• ·' • • • :. • •• ·• • • • .\·: ... • • .; ••• '· • • .- : 

.. : ~ 

.::· "-'-,:··:;:-:: :.._ ~ . ~~~~esaildcondit,illnsofCQQfiOcm~a~~~I!>!>Pfclumaybe uie!Joal~ 

'.~·- ;''': '• ,•' witb:=,wn auen detai.oeeslk.li~to po..WhighVihiem~is.ence Q:·~ QraftQider•' . " 

::;::::·· ... -:--· ~3~)('~1).Md!}>e i>ro~;s ~~~ (~P~ lA..IIIJ1(a). cv.;p,o~aiusf~ · .. , ..... • ·: :,_: IX>IIduCted'Jlui'suanl to.Writt¢ 1>9li~~ Wilt!~ 'by thpDifcOtO<of.tbGCIA ('"•Drift·~er-§.3(e)), . 

~-.:.: > ·.· . lh• C~w!lil>JvesuclipojJcie,siDP.!&C<:(~~arttA;f,,sr¥o~· Ih ~ditioo;lh~ox~~:-i ·._ ·: ' .• ;:, : :· . . . '.o(derwould reqiliro the·Directot· based oo ptjl!essio.oal a4Yij:e, to.il«eai)ma that l!>e ~ques · .,... -· : :are •safe fQr~witbeicb detifnce" ('"• Draft:Ordtr'tit.§ 3(b)(m1). aDd ihe CIA.intends.todoso 

:;·~?:-~·· · .·,:,,.:~~~~~~.: :'~~>: ·; .' '. :· . . . . ... ·: ,~::_.' .. : ·_ :::· .. ·.,. .. : ., .. :~· ;: ... '.: ··. ,· .::. 

; .. _:,,. · . '> . : · 'Un4er-the propo~ eo(~e O(der. detainees lbi!St "recciy~ tbe basie D«essill~ oflife.·· ·. :: 

:;;:~}:;~t:~:~ ::t:1:::::::::1rr:::t::z:2 !·-<. - •·• ·- ilb)(~ ot tho dieuaveo.dCr.'IhO~ibodcitiotimoo~tbOuseolddaloOi:subUmiosblda.. ·' ·~ · Tt;·; ;>;) . : ) ,!<)i--'< .. · .. ·: . . , <o~\r.: 

. • (b)f3J,Natsec;i¢.! ·:_.·": ·~/·:,;·. ·, :

7

P;. · ••• -·-· ~ •·. • . .' •• !·· ..... 
194 


628RIZZO79.eps

..... {b)(l) . 

(bX3} NatSecAct • '-----...J~ ,, 

.. 

f!Dil) extreines·ofha.t and ciold, and:e...,.tial Jliedjcal care." $u Oroft Order§ 3(bXiv).- This 

• T<\QIIirt~Dent is ba.Sod on the'interpretafioo ofConunOn Article 3's O:verorc!llng humane treatment . 

reqUirement set forth ibo'vt, and we have concluded that the proPosed techniques comply with 

this basic ne<:essities standard. SuPan TV .B.3, supra. Should the President sign the executive 

imler, the six proposed· teelioiques would thereby comply wilb the autbpritativc and controlling . . 

in!erpreUti.cin of Coinmcin Article 3, as the M~A.mal:es elear. . ·: 

· V. •. . . ~ 

. . . The armed ooofliCtagaii\st 81 Q&eda-an "ioemy dedieated·tocanyingO.., c:atlstrop_hie : 

atlacks on t11,e United States, its citiuns, and its allies-is unlike any theVnitod·States has 

Confronted. The tatl,ic:S ~sir)! to defend against tliis !"'¢0nveiltional ~y thus present a . 

~of neW questiOI)$ under the law of~ conllict. The Cobclusions ~ have reached . 

lierein, how.Ver, are as foCused.u the narrow. CIA pi-ogrori> we address. Not intended to be Used · 

l"itb !!U.detainees·or.by all u:S. per59nnei w~ intern>gat~ capJUred.terro.rists, the CIA~ · 

•. WOil14 be, restricted i~ the Dl.Qst ~wiO\fg~ibleud'dll!)gerOusofterrorists '!"d is desi$Jied to. . · 

obliinJnfonli~tion cr:<'eial io defaiding ibC Nati(\n.. Co.bmon-Article 3 penni~,< the"CIA.tp go 

'fO(lYard )"i!li the propnsod interrOgation' program, and the Preild~tlt may detern;lnelbat ~e . 

• C!)l>Ciusively. b,Y issu)ns an !JXOC:Uti'Yt oider.to that elf~ pursuant to hi~ aulbority under-the 

' ConStitution and tlie MC;A II$ .xplaio"!! ~ve, .the propos<d executive ord~ ._mplisbcs 

. prec,lsely 11!•1 We also have-c:on.cluded )hat t!>e CIA's six prop.oscd.interrogati(/11 tecl)njques, 

· subject to all of the conditions and safegUards described ~er~ '11(0\lld complywitb.t,heOetainee'. 

· Tr~~~ A~ 804 the a.<enmesAct. · . ' . :: • · . . · : · 

Please 1~ II$ ·lalo:w if;~ ~y be of furtbec'.Ssisunce. 

.·· 

...... 

···.:·:·:·<:; 
195 

U.S. DEPARTMENT OF JUSTICE

Washington. DC, October 6, 2008 

MEMORANDUM FOR THE FILES 

Re: October 23, 2001 OLC Opinion Addressing the Domestic Use of Military Force 

to Combat Terrorist Activities 

The purpose of this memorandum is to advise that caution should be exercised 

before relying in any respect on the Memorandum for Alberto R. Gonzales, Counsel 

to the President, and William J. Haynes II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General, and Robert J. 

Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States (Oct. 23, 2001) 

(‘‘10/23/01 Memorandum’’) as a precedent of the Office of Legal Counsel, and that 

certain propositions stated in the 10/23/01 Memorandum, as described below, should 

not be treated as authoritative for any purpose. 

It is important to understand the context of the 10/23/01 Memorandum. It was 

the product of an extraordinary—indeed, we hope, a unique—period in the history 

of the Nation: the immediate aftermath of the attacks of 9/11. Perhaps reflective of 

this context, the 10/23/01 Memorandum did not address specific and concrete policy 

proposals; rather it addressed in general terms the broad contours of hypothetical 

scenarios involving possible domestic military contingencies that senior policymakers feared might become a reality in the uncertain wake of the catastrophic terrorist attacks of 9/11. Thus, the 10/23/01 Memorandum represents a departure, although perhaps for understandable reasons, from the preferred practice of OLC to 

render formal opinions only with respect to specific and concrete policy proposals 

and not to undertake a general survey of a broad area of the law or to address general or amorphous hypothetical scenarios that implicate difficult questions of law. 

We also judge it necessary to point out that the 10/23/01 Memorandum states several specific propositions that are either incorrect or highly questionable. The memorandum’s treatment of the following propositions is not satisfactory and should not 

be treated as authoritative for any purpose: 

• The memorandum concludes in part V, pages 25–34, that the Fourth Amendment would not apply to domestic military operations designed to deter and prevent further terrorist attacks. This conclusion does not reflect the current views 

of this Office. The Fourth Amendment is fully applicable to domestic military 

operations, though the application of the Fourth Amendment’s essential ‘‘reasonableness’’ requirement to particular circumstances will be sensitive to the exigencies of military actions. The 10/23/01 Memorandum itself concludes in part 

VI, pages 34–37, that domestic military operations necessary to prevent or address further catastrophic terrorist attacks within the United States likely 

would satisfy the FourthAmendment’s reasonableness requirement, if the 

Fourth Amendment were held to apply; thus, the erroneous conclusion in part 

V was not necessary to the opinion. 

• Part V of the memorandum also contains certain broad statements on page 24 

suggesting that First Amendment speech and press rights and other guarantees 

of individual liberty under the Constitution would potentially be subordinated 

to overriding military necessities. These statements, too, were unnecessary to 

the opinion, are overbroad and general, and are not sufficiently grounded in the 

particular circumstances of a concrete scenario, and therefore cannot be viewed 

as authoritative. 

• The memorandum concludes in part IV(A), pages 16–20, that the domestic deployment of the Armed Forces by the President to prevent and deter terrorism 

would fundamentally serve a military purpose, rather than a law enforcement 

purpose, and therefore the Posse Comitatus Act, 18 U.S.C. § 1385 (2000), would 

not apply to such operations. Although the ‘‘military purpose’’ doctrine is a wellestablished limitation on the applicability of the Posse Comitatus Act, the broad 

conclusion reached in part IV(A) of the 10/23/01 Memorandum is far too general 

and divorced from specific facts and circumstances to be useful as an authoritative precedent of OLC. 

• The memorandum, on pages 20–21, treats the Authorization for Use of Military 

Force (‘‘AUMF’’), enacted by Congress in the immediate wake of 9/11, Pub. L. 

No. 107–40,115 Stat. 224 (Sept. 18, 2001), as a statutory exception to the Posse 

Comitatus Act’s restriction on the use of the military for domestic law enforcement. The better view, however, is that a reasonable and necessary use of military force taken under the authority of the AUMF would be a military action, 

196 

1This memorandum supplements the Memorandum for the Files from Steven G. Bradbury, 

Principal Deputy Assistant Attorney General, Office of Legal Counsel. Re: October 23. 2001 OLC 

Opinion Addressing the Domestic Use of Military Force to Combat Terrorist Activities (Oct. 6, 

2008). Neither memorandum is intended to suggest in any way that the attorneys involved in 

the preparation of the opinions in question did not satisfy all applicable standards of professional responsibility. 

potentially subject to the established ‘‘military purpose’’ doctrine, rather than a 

law enforcement action. 

• The memorandum reasons, on pages 21–22, that in the aftermath of the 9/11 

attacks, the Insurrection Act, 10 U.S.C. § 333 (2000), would provide general authority for the President to deploy the military domestically to prevent and 

deter future terrorist attacks; whereas, consistent with the longstanding interpretation of the executive branch, any particular application of the Insurrection 

Act to authorize the use of the military for law enforcement purposes would require the presence of an actual obstruction of the execution of Federal law or 

a breakdown in the ability of state authorities to protect Federal rights. 

For all of the foregoing reasons, we have concluded that appropriate caution 

should be exercised before relying in any respect on the 10/23/01 Memorandum as 

a precedent of OLC, and that the particular propositions identified above should not 

be treated as authoritative. We have advised the Counsel to the President, the Acting General Counsel of the Department of Defense, and appropriate offices within 

the Department of Justice of these conclusions. 

STEVEN G. BRADBURY, 

Principal Deputy Assistant Attorney General. 

U.S. DEPARTMENT OF JUSTICE

Washington. DC, January 15, 2009 

MEMORANDUM FOR THE FILES 

Re: Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks 

of September 11, 2001 

The purpose of this memorandum is to confirm that certain propositions stated 

in several opinions issued by the Office of Legal Counsel in 2001–2003 respecting 

the allocation of authorities between the President and Congress in matters of war 

and national security do not reflect the current views of this Office. We have previously withdrawn or superseded a number of opinions that depended upon one or 

more of these propositions. For reasons discussed herein, today we explain why 

these propositions are not consistent with the current views of OLC, and we advise 

that caution should be exercised before relying in other respects on the remaining 

opinions identified below.1

The opinions addressed herein were issued in the wake of the atrocities of 9/11, 

when policymakers, fearing that additional catastrophic terrorist attacks were imminent, strived to employ all lawful means to protect the Nation. In the months following 9/11, attorneys in the Office of Legal Counsel and in the Intelligence Community confronted novel and complex legal questions in a time of great danger and 

under extraordinary time pressure. Perhaps reflecting this context, several of the 

opinions identified below do not address specific and concrete policy proposals, but 

rather address in general terms the broad contours of legal issues potentially raised 

in the uncertain aftermath of the 9/11 attacks. Thus, several of these opinions represent a departure from this Office’s preferred practice of rendering formal opinions 

addressed to particular policy proposals and not undertaking a general survey of a 

broad area of the law or addressing general or amorphous hypothetical scenarios involving difficult questions of law. 

Mindful of this extraordinary historical context, we nevertheless believe it appropriate and necessary to confirm that the following propositions contained in the 

opinions identified below do not currently reflect, and have not for some years reflected, the views of OLC. This Office has not relied upon the propositions addressed 

herein in providing legal advice since 2003, and on several occasions we have already acknowledged the doubtful nature of these propositions. 

Congressional Authority over Captured Enemy Combatants 

A number of OLC opinions issued in 2002–2003 advanced a broad assertion of the 

President’s Commander in Chief power that would deny Congress any role in regulating the detention, interrogation, prosecution, and transfer of enemy combatants 

197 

captured in the global War on Terror. The President certainly has significant constitutional powers in this area, but the assertion in these opinions that Congress 

has no authority under the Constitution to address these matters by statute does 

not reflect the current views of OLC and has been overtaken by subsequent decisions of the Supreme Court and by legislation passed by Congress and supported 

by the President. The following opinions contain variations of this proposition: 

1. Memorandum for William J. Haynes II, General Counsel, Department of Defense, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, 

Re: The President’s Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations at 4–5 (Mar. 13, 2002) (‘‘3/ 

13/02 Transfer Opinion’’) (asserting that ‘‘the power to dispose of the liberty 

of individuals captured and brought under the control of United States armed 

forces during military operations remains in the hands of the President alone’’ 

because the Constitution does not ‘‘specifically commit[ ] the power to Congress’’) (‘‘The treatment of captured enemy soldiers is but one of the many facets of the conduct of war, entrusted by the Constitution in plenary fashion to 

the President by virtue of the Commander-in-Chief Clause. Moreover, it is an 

area in which the President appears to enjoy exclusive authority, as the power 

to handle captured enemy soldiers is not reserved by the Constitution in whole 

or in part to any other branch of the government.’’). 

2. Memorandum for Daniel J. Bryant, Assistant Attorney General, Office of Legislative Affairs, from Patrick F. Philbin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Swift Justice Authorization Act at 2, 12 (Apr. 8, 2002) 

(‘‘4/8/02 Swift Justice Opinion’’) (‘‘Indeed, Congress may no more regulatethe 

President’s ability to convene military commissions or to seize enemy belligerents than it may regulate his ability to direct troop movements on the battlefield.’’) (‘‘Precisely because [military] commissions are an instrument used as 

part and parcel of the conduct of a military campaign, congressional attempts 

to dictate their precise modes of operation interfere with the means of conducting warfare no less than if Congress were to attempt to dictate the tactics 

to be used in an engagement against hostile forces.’’). 

3. Memorandum for Daniel J. Bryant, Assistant Attorney General, Office of Legislative Affairs, from John C. Yoo, Deputy Assistant Attorney General, Office of 

Legal Counsel. Re: Applicability of 18 U.S.C. § 4001(a) to Military Detention of 

United States Citizen at 10 (June 27, 2002) (‘‘6/27/02 Section 4001 Opinion’’) 

(‘‘Congress may no more regulate the President’s ability to detain enemy combatants than it may regulate his ability to direct troop movements on the battlefield.’’). 

4. Memorandum for Alberto R. Gonzales, Counsel to the President, from Jay S. 

Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Standards of 

Conduct for Interrogation under 18 U.S.C. §§ 2340–2340A at 35, 39 (Aug. 1, 

2002) (‘‘8/1/02 Interrogation Opinion’’) (‘‘Congress may no more regulate the 

President’s ability to detain and interrogate enemy combatants than it may 

regulate his ability to direct troop movements on the battlefield.’’) (‘‘Any effort 

by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the 

President.’’) (previously withdrawn). 

5. Memorandum for William J. Haynes II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal 

Counsel, Re: Military Interrogation of Unlawful Enemy Combatants Held Outside the United States at 13, 19 (Mar. 14, 2003) (declassified by DoD Mar. 31, 

2008) (‘‘3/14/03 Military Interrogation Opinion’’) (‘‘In our view, Congress may 

no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.’’) (‘‘Congress can no more interfere with the President’s conduct of the 

interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield.’’) (previously withdrawn). 

OLC has already withdrawn the last two opinions listed above, the 8/1/02 Interrogation Opinion and the 3/14/03 Military Interrogation Opinion. See Memorandum 

for the Deputy Attorney General from Daniel B. Levin, Acting Assistant Attorney 

General, Office of Legal Counsel, Re: Legal Standards Applicable under 18 U.S.C. 

§ 2340–2340A (Dec. 30, 2004), available at www.usdoj.gov/olc/2004opinions.htm; 

Letter for William J. Haynes II, General Counsel, Department of Defense, from 

Daniel B. Levin, Acting Assistant Attorney General, Office of Legal Counsel (Feb. 4, 

2005). We have also previously expressed our disagreement with the specific assertions excerpted from the 8/1/02 Interrogation Opinion: 

198 

The August 1, 2002, memorandum reasoned that ‘‘[a]ny effort by Congress to 

regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President.’’ I disagree with that view. 

Responses of Steven G. Bradbury, Nominee to be Assistant Attorney General for 

the Office of Legal Counsel, to Questions for the Record from Senator Edward M. 

Kennedy, at 2 (Oct. 24, 2005). 

The Federal prohibition on torture, 18 U.S.C. §§ 2340–2340A, is constitutional, 

and I believe it does apply as a general matter to the subject of detention and 

interrogation of detainees conducted pursuant to the President’s Commander in 

Chief authority. The statement to the contrary from the August 1, 2002, memorandum, quoted above, has been withdrawn and superseded, along with the entirety of the memorandum, and in any event I do not find that statement persuasive. The President, like all officers of the Government, is not above the law. 

He has a sworn duty to preserve, protect, and defend the Constitution 

andfaithfully to execute the laws of the United States, in accordance with the 

Constitution. 

Responses of Steven G. Bradbury, Nominee to be Assistant Attorney General for 

the Office of Legal Counsel, to Questions for the Record from Senator Richard J. 

Durbin, at 1 (Oct. 24, 2005). 

Here, we record our conclusion that the assertions excerpted above are not the 

position of OLC. 

It is well established that the President has broad authority as Commander in 

Chief to take military actions in defense of the country. See, e.g., Power to Use the 

Armed Forces Abroad Without Statutory Authorization, 4A Op. O.L.C. 185, 187 

(1980) (‘‘The power to deploy troops abroad without the initiation of hostilities is the 

most clearly established exercise of the President’s general power as a matter of historical practice.’’); Training of British Flying Students in the United States, 40 Op. 

Att’y Gen. 58, 62 (1941) (recognizing the President’s authority to ‘‘dispose of troops 

and equipment in such manner and on such duties as best to promote the safety 

of the country’’). Furthermore, this Office has recognized that Congress may not unduly constrain or inhibit the President’s exercise of his constitutional authority in 

these areas. See, e.g.. Placing of United States Armed Forces Under United Nations 

Operational or Tactical Control, 20 Op. O.L.C. 182, 185 (1996) (Congress ‘‘may not 

unduly constrain or inhibit the President’s authority to make and to implement the 

decisions that he deems necessary or advisable for the successful conduct of military 

missions in the field’’). We have no doubt that the President’s constitutional authority to deploy military and intelligence capabilities to protect the interests of the 

United States in time of armed conflict necessarily includes authority to effectuate 

the capture, detention, interrogation, and, where appropriate, trial of enemy forces, 

as well as their transfer to other nations. Cf, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 

518 (2004) (plurality) (describing important incidents of war). 

At the same time. Article I, Section 8 of the Constitution also grants significant 

war powers to Congress. We recognize that a law that is constitutional in general 

may still raise serious constitutional issues if applied in particular circumstances to 

frustrate the President’s ability to fulfill his essential responsibilities under Article 

II. Nevertheless, the sweeping assertions in the opinions above that the President’s 

Commander in Chief authority categorically precludes Congress from enacting any 

legislation concerning the detention, interrogation, prosecution, and transfer of 

enemy combatants are not sustainable. 

Congress’s power to ‘‘define and punish . . . Offences against the Law of Nations,’’ 

U.S. Const, art. I, § 8, cl. 10, provides a basis for Congress to establish the Federal 

crime of torture, in accordance with U.S. treaty obligations under the Convention 

Against Torture, and the War Crimes Act offenses, in accordance, for example, with 

the ‘‘grave breach’’ provisions of the Geneva Conventions. This grant of authority 

also provides a basis for Congress to establish a statutory framework, such as that 

set forth in the Military Commissions Act of 2006 (‘‘MCA’’), for trying and punishing 

unlawful enemy combatants for violations of the law of war and other hostile acts 

in support of terrorism. Without suggesting that congressional enactment was necessary to authorize the establishment of military commissions, the President’s support for enactment of the MCA following the Supreme Court’s decision in Hamdan 

v. Rumsfeld, 548 U.S. 557 (2006), confirms this view. The prior opinion of this Office 

suggesting that Congress has no role to play concerning the prosecution of enemy 

combatants is incorrect. See 4/8/02 Swift Justice Opinion at 17–19. Furthermore, the 

power ‘‘[t]o make Rules for the Government and Regulation of the land and naval 

Forces,’’ U.S. Const, art. I, § 8, cl. 14, gives Congress a basis to establish standards 

199 

governing the U.S. military’s treatment of detained enemy combatants, including 

standards for, among other things, detention, interrogation, and transfer to foreign 

nations. This grant of authority would support, for example, the provisions of the 

Detainee Treatment Act of 2005 that address the treatment of alien detainees held 

in the custody of the Department of Defense. We disagree with the suggestion in 

the 3/13/02 Transfer Opinion that this Clause does not permit Congress to establish 

standards of conduct for the military’s handling of detainees, but rather ‘‘is limited 

to the discipline of U.S. troops.’’ Id. at 5. 

The Captures Clause of Article I, which grants Congress power to ‘‘make Rules 

concerning Captures on Land and Water,’’ id. cl. 11, also would appear to provide 

separate authority for Congress to legislate with respect to the treatment and disposition of enemy combatants captured by the United States in the War on Terror. 

Two of the opinions identified above reasoned that the Captures Clause grants authority to Congress only with respect to captured enemy property, such as enemy 

vessels seized on the high seas or materiel taken on the battlefield, and not captured persons, such as the fighters or supporters of al Qaeda and its affiliates who 

are detained by the United States in the global War on Terror. See 4/8/02 Swift Justice Opinion at 16–17; 3/13/02 Transfer Opinion at 5. This Office has substantial 

doubts about that view. 

Sources from around the time of the Framing suggest that the Founders understood battlefield ‘‘captures’’ to include the capture of enemy prisoners. During the 

Revolutionary War, the Continental Congress passed legislation concerning not simply the capture of enemy vessels, but also the capture and treatment of persons on 

board those vessels. See, e.g., 4 Journals of the Continental Congress 1774–1789, at 

254 (Worthington Chauncey Ford ed., William S. Hein & Co. 2005) (1906) (prohibiting the treatment of persons ‘‘contrary to common usage, and the practice of civilized nations in war’’); 10 Journals of the Continental Congress 1774–1789, at 295 

(Worthington Chauncey Ford ed., William S. Hein & Co. 2005) (1908) (‘‘[I]f the 

enemy will not consent to exempt citizens from capture, agreeably to the law of nations, the commissioners be instructed positively to insist on their exchange, without 

any relation to rank.’’). Likewise, in 1801, Alexander Hamilton observed that belligerents in war have the right ‘‘to capture the persons and property of each other.’’ 

Alexander Hamilton, The Examination, No. 1 (Dec. 17, 1801) (emphasis added), 

quoted in 3 The Founders’ Constitution at 100 (Philip B. Kurland & Ralph Lemer 

eds. 1997). See id. (‘‘War, of itself, gives to the parties a mutual right to kill in battle, and to capture the persons and property of each other. This is a rule of natural 

law; a necessary and inevitable consequence of the state of war.’’). Other early commentators similarly understood the ‘‘law of capture’’ to encompass the capture of 

prisoners of war, as well as the seizure of property. See Richard Lee, Treatise of 

Captures in War 45–63 (2d ed. 1803) (tracing the evolution of the law concerning 

definition and treatment of captured enemies); Emmerich de Vattel, The Law of Nations 394 (Joseph Chitty ed., London, S. Sweet 1834) (1758) (explaining that persons 

or things ‘‘captured’’ by the enemy are usually freed as soon as they fall into the 

hands of soldiers belonging to their own nation); G.F. Martens, An Essay on Privateers, Captures, and Particularly on Recaptures (Thomas Hartwell trans., Lawbook Exchange 2004) (1801) (addressing the treatment by various nations of prisoners of war as part of the law of captures). 

The Supreme Court also presumed this understanding of the Captures Clause in 

the early decision Brown v. United States, 12 U.S. (8 Cranch) 110 (1814), in which 

Chief Justice Marshall considered whether by virtue of a declaration of war the 

President possessed authority to detain enemy aliens (both enemy civilians and 

enemy combatants) and to confiscate their property. After quoting the Captures 

Clause, the Court noted that Congress had enacted laws regulating both enemy 

aliens and their property in the War of 1812, and concluded that those laws should 

govern the actions of the Executive Branch in the conflict. See id. at 126 (‘‘The act 

concerning alien enemies, which confers on the president very great discretionary 

powers respecting their persons, affords a strong implication that he did not possess 

those powers by virtue of the declaration of war.’’); see id. (citing an ‘‘act for the 

safe keeping and accommodation of prisoners of war’’). Insofar as the early Supreme 

Court, relying on the Captures Clause, commented favorably on Congress’s authority to regulate the treatment of prisoners of war—and, indeed, actually suggested 

that the exercise of such congressional authority counseled against locating the authority to detain enemy prisoners solely in the general war powers of the President—we have substantial doubts about the assertion that the Captures Clause 

200 

2The survey of early historical examples in the 3/13/02 Transfer Opinion similarly does not 

support that opinion’s assertion that an ‘‘unbroken historical chain’’ recognizes ‘‘exclusive Presidential control over enemy soldiers.’’ 3/13/02 Transfer Opinion at 19. To the contrary, that history very usefully demonstrates a number of examples (such as the statute cited in Brown) 

where Congress passed legislation addressing the circumstances of captured soldiers. Although 

many of those measures simply authorized Presidential action, and were careful to preserve 

broad discretion for the President, they reflect an early understanding that Congress, as well 

as the President, has relevant authority in this area. 

grants no power to Congress with regard to the detention and treatment of enemy 

combatants.2

For all these reasons, the identified assertions in the five opinions excerpted 

above do not reflect the current views of OLC and should not be treated as authoritative. This Office previously has withdrawn two of those opinions in their entirety. 

Appropriate caution should be exercised before relying in other respects on the remaining three opinions. 

Interpreting FISA and its Applicability to Presidential Authority 

A number of classified OLC opinions issued in 2001–2002 relied upon a doubtful 

interpretation of the Foreign Intelligence Surveillance Act (‘‘FISA’’). As the Department has previously acknowledged, these opinions reasoned that unless Congress 

had made clear in FISA that it sought to restrict Presidential authority to conduct 

warrantless surveillance activities in the national security area, FISA must be construed to avoid such a reading, and these opinions asserted that Congress had not 

included such a clear statement in FISA. See Letter for Senator Dianne Feinstein 

and Senator Sheldon Whitehouse, from Brian A. Benczkowski, Principal Deputy Assistant Attorney General, Office of Legislative Affairs (May 13, 2008). All but one 

of these opinions have been withdrawn or superseded by later opinions of this Office. The remaining opinion containing this questionable proposition is: 

6. Memorandum for William J. Haynes II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal 

Counsel, Re: [Classified Matter] at 13 (Feb. 8, 2002) (‘‘2/8/02 Classified Opinion’’). 

The proposition paraphrased above interpreting FISA and its applicability to 

Presidential authority does not reflect the current analysis of the Department of 

Justice and should not be relied upon or treated as authoritative for any purpose. 

The general rule of construction that statutes will not be interpreted to conflict with 

the President’s constitutional authorities absent a clear statement that Congress intended to do so is unremarkable and fully consistent with longstanding precedents 

of this Office. See, e.g.. Memorandum for Alan Kreczko, Legal Adviser to the National Security Council, from Walter Dellinger, Assistant Attorney General, Office 

of Legal Counsel, Re: Applicability of 47 U.S.C. section 502 to Certain Broadcast Activities at 3 (Oct. 15, 1993) (‘‘The President’s authority in these areas is very broad 

indeed, in accordance with his paramount constitutional responsibilities for foreign 

relations and national security. Nothing in the text or context of [the statute] suggests that it was Congress’s intent to circumscribe this authority. In the absence 

of a clear statement of such an intent, we do not believe that a statutory provision 

of this generality should be interpreted to restrict the President’s] constitutional 

powers’’ to conduct the Nation’s foreign affairs and to protect the national security). 

The courts apply the same canon of statutory interpretation. See, e.g., Department 

of Navy v. Egan, 484 U.S. 518, 530 (1988) (‘‘[U]nless Congress has specifically provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.’’) However, the application of this canon of construction to conclude that FISA does not contain a clear 

statement that Congress intended the statute to apply to the President’s exercise 

of his constitutional authority is problematic and questionable, given FISA’s express 

references to the President’s authority. The statements to this effect in earlier opinions of OLC were not supported by convincing reasoning. 

As set forth in the Justice Department’s white paper of January 19, 2006, addressing the legal basis for the surveillance activities of the National Security Agency publicly described by the President in December 2005, the Department’s more recent analysis is different: Congress, through the Authorization for Use of Military 

Force of September 18, 2001, Pub. L. No. 107–40, 115 Stat. 224 (2001) (‘‘AUMF’’), 

confirmed and supplemented the President’s Article II authority to conduct 

warrantless surveillance to prevent further catastrophic attacks on the United 

States, and such authority confirmed by the AUMF could reasonably be, and therefore had to be, read consistently with FISA, which explicitly contemplated that Congress could authorize electronic surveillance by a statute other than FISA. See U.S. 

201 

3We recognize that the Supreme Court in Hamdan v. Rumsfeld refused to read the AUMF 

to authorize the President to convene military commissions in contravention of the Court’s interpretation of the Uniform Code of Military Justice. See 548 U.S. at 557–58. The Department’s 

2006 white paper, however, was based on the view that FISA, which expressly contemplated 

that Congress may authorize warrantless surveillance in a separate statute, such as the AUMF, 

was more like the statute at issue in Hamdi, 18 U.S.C. § 4001(a), which prohibits detention of 

a U.S. citizen, ‘‘except pursuant to an act of Congress.’’ See NSA Legal Authorities White Paper 

at 20–23. 

Department of Justice, Legal Authorities Supporting the Activities of the National 

Security Agency Described by the President (Jan. 19, 2006) (‘‘NSA Legal Authorities 

White Paper’’). As the January 2006 white paper pointed out, ‘‘[i]n the specific context of the current armed conflict with al Qaeda and related terrorist organizations. 

Congress by statute [in the AUMF] had confirmed and supplemented the President’s 

recognized authority under Article II of the Constitution to conduct such surveillance to prevent further catastrophic attacks on the homeland.’’ Id. at 2. The white 

paper further explained the particular relevance of the canon of constitutional avoidance to the NSA activities: ‘‘Even if there were ambiguity about whether FISA, read 

together with the AUMF, permits the President to authorize the NSA activities, the 

canon of constitutional avoidance requires reading these statutes to overcome any 

restrictions in FISA and Title III, at least as they might otherwise apply to the congressionally authorized armed conflict with al Qaeda.’’ Id. at 3.3

Accordingly, because the proposition highlighted above does not reflect the current 

views of this Office, appropriate caution should be exercised before relying in any 

respect on the 2/8/02 Classified Opinion as a precedent of OLC. 

Presidential Authority to Suspend Treaties 

Two opinions of OLC from 2001 and 2002 asserted that the President, under our 

domestic law, has unconstrained discretion to suspend treaty obligations of the 

United States at any time and for any reason as an aspect of the ‘‘executive Power’’ 

vested in him by the Constitution: 

7. Memorandum for John B. Bellinger III, Legal Adviser to the National Security 

Council, from John C. Yoo, Deputy Assistant Attorney General, and Robert J. 

Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority of the President to Suspend Certain Provisions of the ABM Treaty at 12, 13 (Nov. 15, 2001) 

(‘‘11/15/01 ABM Suspension Opinion’’) (‘‘The President’s power to suspend 

treaties is wholly discretionary, and may be exercised whenever he determines 

that it is in the national interest to do so. While the President will ordinarily 

take international law into account when deciding whether to suspend a treaty 

in whole or in part, his constitutional authority to suspend a treaty provision 

does not hinge on whether such suspension is or is not consistent with international law.’’) (footnote omitted) (‘‘The power unilaterally to suspend a treaty 

subsumes complete and partial suspension: both kinds of suspension authority 

are comprehended within the ‘executive Power,’ U.S. Const, art. II, § 1, cl. 1. 

. . .’’). 

8. Memorandum for Alberto R. Gonzales, Counsel to the President, and William 

J. Haynes II, General Counsel, Department of Defense, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Application of Treaties 

and Laws to al Qaeda and Taliban Detainees at 11–13 (Jan. 22, 2002) (‘‘1/22/ 

02 Treaties Opinion’’) (reasoning that the President has ‘‘unrestricted discretion, as a matter of domestic law, in suspending treaties’’). 

The highlighted assertions were based on generalizations from historical examples 

in which Presidents have acted in certain limited circumstances to terminate or suspend treaties. See, e.g., 11/15/01 ABM Suspension Opinion at 14–18. 

We have previously concluded in a file memorandum that the reasoning supporting these assertions is unconvincing. See Memorandum to File from C. Kevin 

Marshall, Deputy Assistant Attorney General, and Bradley T. Smith, Attorney-Adviser, Office of Legal Counsel, Re: Legal Issues Regarding Proposed Broadcasts into 

Cuba at 2, 11–13 (May 23, 2007) (‘‘Cuba Broadcasting File Memorandum ‘‘). We observed that Presidents have traditionally suspended treaties where authorized by 

Congress or where suspension was authorized by the terms of the treaty or under 

recognized principles of international law, such as where another party has materially breached the treaty or where there has been a fundamental change in circumstances. See id. at 6–13. We found the two opinions’ treatment of this history 

to be unpersuasive, their analysis equating treaty termination with treaty suspension to be doubtful, and their consideration of the Take Care Clause to be insufficient. See id. at 11–13. For those reasons, in 2006 we advised the Legal Adviser to 

202 

the National Security Council and the Deputy Counsel to the President not to rely 

on the two opinions identified above to the extent they suggested that the President 

has unlimited authority to suspend a treaty beyond the circumstances traditionally 

recognized. Id. at 13. We noted that the President, in fact, had not relied upon the 

broad assertions of authority to suspend treaties contained in the 11/15/01 ABM 

Suspension Opinion and the 1/22/02 Treaties Opinion; the President decided not to 

suspend the Third Geneva Convention as to Afghanistan, and he did not suspend 

the ABM treaty (instead, the United States gave formal notice of withdrawal from 

the treaty pursuant to its terms). Cuba Broadcasting File Memorandum at 13. In 

summarizing the advice given in 2006 concerning the reliability of the 2001 and 

2002 opinions, our file memorandum emphasized that although we questioned the 

reasoning in these opinions, we had no occasion to make a determination about the 

extent of the President’s authority to suspend treaties: 

The above critique is not meant to be a determination that under the Constitution the President lacks authority to suspend treaties absent authorization from 

Congress, the text, or background law. The White House did not directly ask 

that question [in 2006], and we did not purport to resolve it. There are arguments to be made based on the Vesting Clause and other provisions of Article 

II, as well as history. Other prior opinions have suggested that the President 

could have plenary authority to terminate treaties, and one can find scholars 

supporting such a view. The issue, however, is not nearly as simple or clear as 

the [11/15/01 ABM Suspension Opinion] and [the 1/22/02 Treaties Opinion] indicated, and we therefore are no longer willing to advise the President to act in 

reliance upon those memoranda’s more sweeping claims. 

Id. (citation omitted). 

We adhere to the 2007 Cuba Broadcasting File Memorandum, and, accordingly, 

we confirm that the highlighted propositions from the 11/15/01 ABM Suspension 

Opinion and the 1/22/02 Treaties Opinion do not reflect the current views of this 

Office and should not be treated as authoritative, and that appropriate caution 

should be exercised before relying upon these opinions in other respects. 

‘‘National Self-Defense’’ as a Justification for Warrantless Searches 

A 2001 OLC opinion addressing The constitutionality of proposed FISA amendments asserted the view that judicial precedents approving the use of deadly force 

in self-defense or to protect others justified the conclusion that warrantless searches 

conducted to defend the Nation from attack would be consistent with the Fourth 

Amendment: 

9. Memorandum for David S. Kris, Associate Deputy Attorney General, from John 

C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Constitutionality of Amending Foreign Intelligence Surveillance Act to Change the 

‘‘Purpose’’ Standard for Searches at 8 (Sept. 25, 2001) (‘‘9/25/01 FISA Opinion’’) (reasoning that because the Government’s post-9/11 interest in ‘‘preventing terrorist attacks against American citizens and property within the 

continental United States’’ implicated the ‘‘right to self-defense . . . of the Nation and of its citizens,’’ and because the courts had recognized that ‘‘deadly 

force is reasonable under the Fourth Amendment if used in self-defense or to 

protect others,’’ it was appropriate to conclude that ‘‘[i]f the government’s 

heightened interest in self-defense justifies the use of deadly force, then it certainly would also justify warrantless searches’’). 

We believe that this reasoning inappropriately conflates the Fourth Amendment 

analysis for government searches with that for the use of deadly force. 

We do not doubt that the existence of a government interest in preventing catastrophic terrorist attacks is highly relevant in determining whether a particular 

search would be ‘‘reasonable’’ under the Fourth Amendment. Although warrants are 

often required in the criminal law context, the Supreme Court has recognized 

warrantless searches to be ‘‘reasonable’’ in a variety of situations involving ‘‘special 

needs’’ that go beyond the routine interest in law enforcement. E.g., Board of Educ. 

v. Earls, 536, U.S. 822, 828 (2002). Foreign intelligence collection may fit squarely 

within the area of ‘‘special needs, beyond the normal need for law enforcement,’’ particularly where it occurs in the midst of an ongoing armed conflict and for the purpose of preventing a future terrorist attack. See NSA Legal Authorities White Paper 

at 37. Accordingly, as explained at length in the Department’s January 2006 white 

paper, warrantless searches for such purposes may well be ‘‘reasonable’’ and consistent with the Fourth Amendment. Id. To the extent that the 9/25/01 FISA Opinion advances that straightforward proposition, we have no disagreement. 

203 

However, the 9/25/01 FISA Opinion’s reliance on court decisions involving the use 

of deadly force suggests a ‘‘self-defense’’ rationale whereby the purpose behind a 

search would, standing alone, justify the search for purposes of the Fourth Amendment. The Supreme Court has recognized that the use of deadly force may be ‘‘reasonable’’ under the Fourth Amendment where the ‘‘officer has probable cause to believe that the suspect poses a threat of serious physical harm either to the officer 

or to others.’’ Tennessee v. Garner, 471 U.S. 1, 12 (1985); see also Graham v. Connor, 

490 U.S. 386, 392 (1989). Under this rule, the circumstances in which deadly force 

may be employed are highly fact-dependent and require a showing that the officer 

believed that the suspect posed an imminent threat of harm. The 9/25/01 FISA 

Opinion’s assertion that ‘‘[i]f the government’s heightened interest in self-defense 

justifies the use of deadly force, then it certainly would also justify warrantless 

searches’’ does not adequately account for the fact-dependent nature of the Fourth 

Amendment’s ‘‘reasonableness’’ review, and does not expressly recognize that the 

circumstantial factors relevant to the Tennessee v. Garner self-defense analysis are 

not necessarily the same as those that may determine the constitutional reasonableness of a particular search, both in its inception and in its scope. 

Accordingly, the highlighted reasoning in the 9/25/01 FISA Opinion does not reflect the current views of OLC. 

* * * 

For all the foregoing reasons, the propositions highlighted in the nine opinions 

identified above do not reflect the current views of the Office of Legal Counsel and 

should not be treated as authoritative for any purpose. A number of the opinions 

that contained these propositions have been withdrawn or superseded and do not 

constitute precedents of this Office; caution should be exercised before relying in 

other respects on the remaining opinions. 

We have advised the Attorney General, the Counsel to the President, the Legal 

Adviser to the National Security Council, the Principal Deputy General Counsel of 

the Department of Defense, and appropriate offices within the Department of Justice of these conclusions. 

STEVEN G. BRADBURY, 

Principal Deputy Assistant Attorney General. 

DEPARTMENT OF JUSTICE’S OFFICE OF PROFESSIONAL RESPONSIBILITY REPORT ON

THE INVESTIGATION INTO THE OFFICE OF LEGAL COUNSEL’S MEMORANDA

CONCERNING ISSUES RELATING TO THE CENTRAL INTELLIGENCE AGENCY’S USE OF

‘ENHANCED INTERROGATION TECHNIQUES’ ON SUSPECTED TERRORISTS

The report ‘‘Department of Justice’s Office of Professional Responsibility Report 

on the Investigation into the Office of Legal Counsel’s Memoranda Concerning 

Issues Relating to the Central Intelligence Agency’s Use of ‘‘Enhanced Interrogation 

Techniques’’ on Suspected Terrorists’’ is available at https://www.aclu.org/files/ 

pdfs/natsec/opr20100219/20090729_OPR_Final_Report_with_20100719_declassifica 

tions.pdf 

UNITED STATES MARINE CORPS

June 26, 2017 

Senator JOHN THUNE, 

Chairman, 

Senate Committee on Commerce, 

Science, and Transportation, 

Washington, DC. 

Senator BILL NELSON, 

Ranking Member, 

Senate Committee on Commerce, 

Science, and Transportation, 

Washington, DC. 

Dear Chairman Thune and Ranking Member Nelson, 

For over a decade, I have been part of a group of retired generals and admirals 

of the U.S. Armed Forces who have voiced our opposition to torture. I write to urge 

you to oppose the nomination of Steven G. Bradbury for the position of Department 

of Transportation general counsel. 

In his role as acting head of the Department of Justice’s Office of Legal Counsel 

(OLC), Mr. Bradbury displayed a disregard for both U.S. and international law 

when authorizing the use of so-called ‘‘enhanced interrogation techniques’’ to interrogate terrorism suspects. These interrogation techniques, which Mr. Bradbury reVerDate Nov 24 2008 06:50 Jul 25, 2018 Jkt 075679 PO 00000 Frm 00207 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\30769.TXT JACKIE
204 

1See ‘‘The Torture Documents,’’ The Rendition Project, available at: https://www.therendi 

tionproject.org.uk/documents/torture-docs.html. 2See Torture Act 18 U.S.C. § 2340 (1994); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted December 10, 1984, G.A. Res. 39/46, 

annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 

26, 1987, art. 7, The U.S. ratified Convention against Torture in 1994. http://www.ohchr.org/ 

EN/ProfessionalInterest/Pages/CAT.aspx; International Covenant on Civil and Political Rights 

(ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), entered into force March 23, 1976, 

art. 2. The U.S. ratified the ICCPR in 1992. 

peatedly approved, included methods that the United States has acknowledged and 

even prosecuted as torture and cruel, inhuman, and degrading treatment. 

The use of these techniques not only violated well-established law and military 

doctrine, but also endangered U.S. troops and personnel, hindered the war effort, 

and betrayed the country’s values, damaging the United States’ stature around the 

world as a beacon for human rights and the rule of law. We know that the United 

States is strongest when it remains faithful to its core values. The use of torture 

and cruel, inhuman, and degrading treatment undermines those values, and Mr. 

Bradbury continually represented their use as legal and advisable during his time 

serving in the Bush Administration. 

In recommending these techniques, Mr. Bradbury also displayed a discomforting 

deference to the executive branch’s wishes, tailoring his legal recommendations to 

fit the White House’s preferred outcome, and even testified in a Senate Judiciary 

Committee hearing that ‘‘the President is always right.’’ Mr. Bradbury’s recommendations also contradicted the intent of Congress. In 2005, Congress passed 

the Detainee Treatment Act with a vote of 90–9. The law prohibited abuse of detainees by the U.S. military and agencies, but Mr. Bradbury authored a legal memo specifically designed to undermine the will of Congress and to provide the Bush Administration with authorization to continue using interrogation methods that constituted torture and cruel, inhuman, and degrading treatment. 

I believe that this is more important than political affiliation. Mr. Bradbury has 

time and again shown his willingness to contravene established law and the intent 

of Congress in service to the will of the executive branch. Though the position to 

which he is nominated likely will not involve decisions on national security issues, 

I believe that based on his past governmental service, Mr. Bradbury is not fit for 

this political office. I ask you respectfully to oppose his nomination. 

Semper Fidelis, 

CHARLES C. KRULAK

General, USMC (Ret.) 

31st Commandant of the Marine Corps 

June 22, 2017 

To: 

Chairman John Thune 

Ranking Member Bill Nelson 

Committee on Commerce, Science, and Transportation 

CC: All Other Senators 

We write to express our serious concerns regarding the nomination of Steven G. 

Bradbury for general counsel of the Department of Transportation (DOT). Mr. 

Bradbury’s role in justifying torture and cruel, inhuman, or degrading treatment of 

individuals held in U.S. custody marked him as an architect of the torture program. 

Not only should the Senate be concerned about confirming a nominee who had a 

central role in the criminal violation of human rights, but his work during that period calls into question his ability to provide the kind of rigorous, independent legal 

analysis that is required of any top government lawyer. 

Mr. Bradbury was acting head of the Department of Justice’s (DOJ) Office of 

Legal Counsel (OLC) from 2005 to 2009. During that time, Mr. Bradbury wrote several legal memoranda that authorized waterboarding and other forms of torture and 

cruel, inhuman, or degrading treatment. As such, he is most prominently—and correctly—known as one of the authors of the ‘‘torture memos.’’ 1 His analysis directly 

contradicted relevant domestic and international law regarding the treatment of 

prisoners, and helped establish an official policy of torture and detainee abuse that 

has caused incalculable damage to both the United States and the prisoners it has 

held.2

Mr. Bradbury’s role in the torture program, even then, was notorious—so much 

so that the Senate refused to confirm him as assistant attorney general for the OfVerDate Nov 24 2008 06:50 Jul 25, 2018 Jkt 075679 PO 00000 Frm 00208 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\30769.TXT JACKIE
205 

3 Amanda Terkel, ‘‘Justice Department Lawyer to Congress: ‘The President is Always Right,’ ’’ 

Think Progress, July 12, 2006, available at: https://thinkprogress.org/justice-department-lawyerto-congress-the-president-is-always-right-1ce40cf3ab61. 4 ‘‘Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to 

the Central Intelligence Agency’s Use of ‘Enhanced Interrogation Techniques’ on Suspected Terrorists,’’ U.S. Department of Justice Office of Professional Responsibility, July 29, 2009, available at: https://www.aclu.org/files/pdfs/natsec/opr20100219/20090729_OPR_Final_Report 

_with_20100719_declassifications.pdf. 5 Id. 

6 Jane Mayer, The Dark Side (New York: Doubleday, 2008): 321–322. 7Steven Bradbury, ‘‘Memorandum for John A. Rizzo Acting General Counsel, Central Intelligence Agency,’’ U.S. Department of Justice Office of Legal Counsel, July 20, 2007, available 

at: https://www.justice.gov/olc/file/886296/download 

8 ‘‘Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program,’’ Executive Summary, Senate Select Committee on Intelligence, December 13, 2012, 435– 

436, available at: https://www.feinstein.senate.gov/public/_cache/files/7/c/7c85429a-ec38-4bb5 

-968f-289799bf6d0e/D87288C34A6D9FF736F9459ABCF83210.sscistudy1.pdf 

fice of Legal Counsel during the Bush Administration. The Senate now knows even 

more about Mr. Bradbury’s record, and the harm caused by his opinions, based on 

oversight by the Senate Select Committee on Intelligence and its report on the Central Intelligence Agency’s (CIA) use of torture and abuse. 

In Mr. Bradbury’s time as acting head of the OLC, he demonstrated an unwavering willingness to defer to the authority and wishes of the president and his team 

instead of providing objective and independent counsel. During congressional testimony in 2007, Mr. Bradbury responded to questions about the president’s interpretation of the law of war by declaring, ‘‘The President is always right’’—a statement 

that is as outrageous as it is inaccurate.3 The DOJ Office of Professional Responsibility (OPR) reviewed Mr. Bradbury’s ‘‘torture memos’’ and determined that they 

raised questions about 

the objectivity and reasonableness of Mr. Bradbury’s analyses; that Mr. Bradbury 

relied on uncritical acceptance of Executive Branch assertions; and that in some 

cases Mr. Bradbury’s legal conclusions were inconsistent with the plain meaning 

and commonly held understandings of the law.4 Senior government officials from 

the Bush Administration who worked with Mr. Bradbury have said that they had 

‘‘grave reservations’’ about conclusions drawn in the Bradbury torture memos and 

have described Mr. Bradbury’s analysis as flawed, saying the memos could be ‘‘considered a work of advocacy to achieve a desired outcome.’’ 5

Moreover, Mr. Bradbury’s 2007 torture memo was written with the purpose of 

evading congressional intent and duly enacted Federal law. The Detainee Treatment 

Act of 2005 (DTA), legislation that passed the Senate with a vote of 90–9, stated, 

‘‘No individual in the custody or under the physical control of the United States 

Government, regardless of nationality or physical location, shall be subject to cruel, 

inhuman, or degrading treatment.’’ However, Mr. Bradbury’s memo explicitly allowed the continuation of many of the abusive interrogation techniques that Congress intended to prohibit in the DTA.6

Perhaps most concerning from a congressional oversight perspective, Mr. 

Bradbury affirmatively misrepresented the views of members of Congress to support 

his legal conclusions. Specifically, in his 2007 memo he relied on a false claim that 

when the CIA briefed ‘‘the full memberships of the House and Senate Intelligence 

Committees and Senator McCain . . . none of the Members expressed the view that 

the CIA detention and interrogation program should be stopped, or that the techniques at issue were inappropriate.’’ 7 In fact, Senator McCain had characterized the 

CIA’s practice of sleep deprivation as torture both publicly and privately, and at 

least four other senators raised objections to the program.8

As a senior government lawyer, Mr. Bradbury authorized torture and cruel treatment of detainees in violation of U.S. and international law. Mr. Bradbury demonstrated either an inability or an unwillingness to display objectivity and reasonableness in evaluating the president’s policy proposals. We ask that in reviewing 

Mr. Bradbury’s nomination for general counsel of the Department of Transportation, 

another profoundly important position of public trust, you take these serious and 

disturbing factors into consideration. 

Sincerely, 

American Civil Liberties Union 

Appeal for Justice 

Center for Constitutional Rights 

Center for Victims of Torture 

The Constitution Project 

Council on American-Islamic Relations 

Defending Rights & Dissent 

Human Rights First 

206 

Human Rights Watch 

The Leadership Conference on Civil and 

Human Rights 

National Religious Campaign Against 

Torture 

Open Society Policy Center 

Physicians for Human Rights 

Win Without War 

The CHAIRMAN. Senator Blumenthal is up next. 

STATEMENT OF HON. RICHARD BLUMENTHAL, 

U.S. SENATOR FROM CONNECTICUT 

Senator BLUMENTHAL. Thanks, Mr. Chairman. 

Thank you both for your willingness to serve. 

Mr. Bradbury, in your questionnaire for this Committee, I think 

you were asked whether you have been the subject of a complaint 

to any, quote, professional association. How did you answer that 

question? 

Mr. BRADBURY. I don’t believe I’ve been subject of a complaint. 

Senator BLUMENTHAL. You answered the question no, correct? Is 

that answer correct? 

Mr. BRADBURY. Yes. 

Senator BLUMENTHAL. I have, and I would like it to be admitted 

into the record, Mr. Chairman, if there’s no objection, a New York 

Times article of May 19, 2009, reporting a complaint to the Bar associations of four states and the District of Columbia regarding you 

and a number of other attorneys relating to legal opinions that you 

provided as a member of the Bush administration. Are you familiar 

with that set of complaints? 

Mr. BRADBURY. I haven’t seen them. I heard the report of it, and 

we checked with the Bar on that, and they don’t have a record of 

a complaint. I think what happens, Senator, as I understand it, is 

someone files something, and there’s a period of time, and then 

there has to be some procedure taken at the Bar office, and then 

I would have been notified, and I was not notified that I needed 

to do anything. So—— 

Senator BLUMENTHAL. Were you aware of those complaints when 

you answered your questionnaire? 

Mr. BRADBURY. I was aware that there had been reports in the 

media of it. I was aware at the time of the reports in the media. 

And that’s why I said I checked with the D.C. Bar to see if there 

was a record of a formal complaint. And there must be some process that happens before it becomes a formal complaint proceeding. 

Senator BLUMENTHAL. Did you check with the Bars of the four 

states where those complaints were filed? 

Mr. BRADBURY. Well, I’m only a member of the D.C. Bar. That 

would have been the only one that would pertain to me. I believe 

some of the other people who were discussed in the media reports 

included Attorney General Mukasey and several others. 

Senator BLUMENTHAL. But the questionnaire asks whether you 

have, quote, been the subject of a complaint to any professional association? 

Mr. BRADBURY. Yes. 

Senator BLUMENTHAL. Wouldn’t the correct answer to that have 

been yes? 

207 

Mr. BRADBURY. Well, my understanding would be we asked the 

Bar and the Bar said there was not a complaint that they had a 

record of. So that’s—I think I was—— 

Senator BLUMENTHAL. Well, whether or not there was a record, 

there was a complaint. 

Mr. BRADBURY. I haven’t seen this document, and I—so I—— 

Senator BLUMENTHAL. In your questionnaire, you reported things 

as minuscule as having been a sandwich maker in college. 

Mr. BRADBURY. Well, that was a job that fell within the time period that I was required to—— 

Senator BLUMENTHAL. Well, I would suggest respectfully that 

perhaps you may want to reconsider that response and amend your 

questionnaire. And I would like this article entered into the record. 

And with your permission, Mr. Chairman, I would like to suggest 

that the D.C. Bar be asked to respond as to where the complaint 

is or was, whether it was ever formally filed, and whether the procedure was started for pursuing it. 

The CHAIRMAN. Mr. Bradbury, you indicated that you don’t have 

any knowledge of that? 

Mr. BRADBURY. I don’t know internally within the bar what the 

procedure is as I sit here. And so—— 

Senator BLUMENTHAL. Let me move on for the moment, and I’ll 

follow up in written questions. 

You indicated that you would recuse yourself with respect to 

Takata. Will you recuse yourself as to any of the successor companies or interests that purchase any of the assets of Takata, since 

it’s now in bankruptcy? And will you also recuse yourself as to any 

of the issues concerning liability that might pertain to other airbag 

manufacturers or automobile manufacturers that use those airbags, 

since the same legal and factual issues will be involved in all of the 

potential liability? 

Mr. BRADBURY. Well, as I’ve indicated to Senator Nelson, I certainly will recuse myself from all aspects of those recall issues relating to the Takata airbag issues. So—— 

Senator BLUMENTHAL. I’m not asking about recall issues, I’m 

asking about liability for severe injuries and deaths caused by airbags that may use, among other substances, ammonium nitrate—— 

Mr. BRADBURY. Yes. 

Senator BLUMENTHAL.—which has been found in Takata to be 

very relevant, and with respect to those other airbag manufacturers or automobile manufacturers be relevant as well. Will you 

recuse yourself from all of those issues relating to the automobile 

and airbag manufacturers? 

Mr. BRADBURY. Everything related to the airbag issues. So the 

liability aspects that you describe would certainly be related to 

that. And with respect to successor entities, that was another question I think Senator Nelson asked, and I did make it clear that I 

viewed the successor companies or successor entities as part of 

that. 

Senator BLUMENTHAL. And while we’re on the subject of recusal, 

since you represented a number of airlines, I believe, American Airlines, Delta Airlines—which others have you—— 

208 

Mr. BRADBURY. American Airlines is the one in recent years that 

I’ve represented. 

Senator BLUMENTHAL. How about in previous years? 

Mr. BRADBURY. Well, many years ago, at my other firm, I represented another airline with respect to competition issues. 

Senator BLUMENTHAL. Will you recuse yourself as to those airlines? 

Mr. BRADBURY. As I’ve indicated, I certainly will recuse myself 

with respect to American Airlines. Any particular matter that has 

a direct or substantial effect on American Airlines, I’m recused 

under the statute for one year, under the ethics pledge for two 

years, if I were to be confirmed. And then, of course, any—Senator 

Blumenthal, any, as you know, any matter that I actually handled 

for American Airlines, where I was involved, I would be recused 

from completely permanently. 

So the answer to that is yes. American is the one that I have 

been active on in recent years before the Department of Transportation. 

Senator BLUMENTHAL. Well, I appreciate your response to my 

questions. And I have a number of additional questions with respect to competition in the airline industry, practices of airlines, 

the need for more competition, the excessive consolidation that’s 

taken place in the industry, the need for passenger bill of rights, 

which I have introduced to protect against some of these abuses, 

and I will submit those questions for the record because my time 

has expired. 

[The article referred to follows:] 

The New York Times 

ADVOCACY GROUPS SEEK DISBARMENT OF EX-BUSH ADMINISTRATION LAWYERS

By Scott Shane—May 18, 2009 

WASHINGTON—A coalition of left-wing advocacy groups filed legal ethics complaints on Monday against 12 former Bush administration lawyers, including three 

United States attorneys general, whom the groups accuse of helping to justify torture. 

The coalition, called Velvet Revolution, asked the bar associations in four states 

and the District of Columbia to disbar the lawyers, saying their actions violated the 

rules of professional responsibility by approving interrogation methods, including 

waterboarding, that constituted illegal torture. 

By writing or approving legal opinions justifying such methods, the advocates say, 

the Bush administration lawyers violated the Geneva Conventions, the Convention 

Against Torture and American law. 

Kevin Zeese, a longtime activist and lawyer who signed the complaints on behalf 

of Velvet Revolution, said the groups were acting because the Obama administration 

had resisted calls for a criminal investigation of abuse of prisoners under the Bush 

administration. 

The Obama administration has not ruled out the possibility of professional disciplinary action being taken against some of those involved. 

‘‘The torture issue needs to be taken out of the hands of politicians if it is going 

to be dealt with as the war crimes that it is,’’ Mr. Zeese said. 

209 

John C. Yoo wrote some of the legal opinions in dispute. Credit Mandel Ngan/Agence FrancePresse—Getty Images 

The complaints are available online at the group’s website, www.velvetrevo 

lution.us/torture_lawyers/index.php. 

The filings come as the Justice Department’s ethics office, the Office of Professional Responsibility, completes a report on the department lawyers who wrote opinions authorizing harsh interrogations. 

The report, in the works for nearly five years and expected to be released in the 

next few weeks, is said to be highly critical of some authors of the opinions, including John C. Yoo, a senior official at the department’s Office of Legal Counsel in 

2002, and his boss, Jay S. Bybee. 

The Velvet Revolution complaint also names Steven G. Bradbury, who headed the 

legal counsel office from 2005 to 2009; the three attorneys general, John Ashcroft, 

Alberto R. Gonzales and Michael B. Mukasey; Michael Chertoff and Alice S. Fisher, 

who headed the Justice Department’s criminal division; two former Pentagon officials, Douglas J. Feith and William J. Haynes II; and two former White House lawyers, Timothy E. Flanigan and David S. Addington. 

Legal experts are divided over the likely effect of such complaints. 

A complaint filed last year against Mr. Yoo, a Berkeley law professor who remains 

a member of the Pennsylvania bar, was rejected by that state’s bar association, in 

part because the Justice Department was already investigating Mr. Yoo’s role in the 

interrogation memorandums. 

Mr. Yoo has often defended his role in writing the legal opinions, noting that they 

were written in the anxious months after the terrorist attacks of Sept. 11, 2001, and 

were intended only to outline the limits of the law, not to advise policy makers on 

what methods to use. 

But one interrogation opinion written primarily by Mr. Yoo was later withdrawn 

by the Justice Department, which considered it overly broad and poorly reasoned. 


628YOO.eps
210 

The CHAIRMAN. Thank you, Senator Blumenthal. 

Senator Young. 

STATEMENT OF HON. TODD YOUNG, 

U.S. SENATOR FROM INDIANA 

Senator YOUNG. Thank you, Chairman. 

Mr. Bradbury, I really enjoyed our visit, as I did with Ms. Walsh, 

in my office. 

Ms. WALSH. Thank you. 

Senator YOUNG. So it’s good to see you. I really appreciate, as I 

said, when we visited your interest in serving, Mr. Bradbury, the 

sacrifices associated with that, and I appreciate your enduring the 

scrutiny we’ve come to associate with these hearings. 

In the aftermath of the Takata incident, which has been invoked 

numerous times, you were hired as a part of an eminently qualified 

team of lawyers to bring swift resolution to the Takata airbag recall effort and the related investigation. As the legal representative 

of TK Holdings, the parent company of Takata, you played an important role in constructing a solution to one of the largest automotive safety recalls in the history of this country. As somebody 

who just practiced law for a couple of years, I want to commend 

you for your exemplary legal work as you collaborated with NHTSA 

to construct a model for addressing safety recalls of this magnitude. 

Could you please speak to the complexity of this recall and how 

it might lay the groundwork for future automotive safety recalls of 

this size? 

Mr. BRADBURY. Yes, thank you, Senator. It really is unique. It’s, 

I think, the largest, at this point, set of related automotive safety 

recalls in history, hugely complex because of all of the different 

automakers involved. And that’s why there’s a coordinated remedy 

program with a coordinated remedy order that NHTSA crafted. 

And there’s an independent monitor at the center of that to orchestrate this because I think there are 13 automakers involved and, 

as was said by Senator Nelson, tens of millions of devices that will 

need to be replaced in cars, so hugely complicated. 

And moreover, as Senator Nelson said, it’s staged because it’s a 

problem that occurs over time. And all of this needed to be worked 

out by the career lawyers and the engineers at NHTSA. And really 

what I was doing as an attorney in this case for the company was 

not really litigating against NHTSA and trying to resist and stop 

this from happening, we were very proactive from the beginning in 

terms of bringing the information together, disclosing irregularities 

and issues that were problems, producing millions of pages of documents, and then working with NHTSA to craft these consent orders 

that create these recalls and make them go forward and expand, 

obviously, a long, long way to go. And there needs to be a lot of 

work done. 

Senator YOUNG. Sure. 

Mr. BRADBURY. But that’s the kind of work that we did. I think 

it demonstrates the kind of power and effectiveness that NHTSA 

can have if it uses the tools that Congress has given it to address 

these sorts of problems. So I think it’s groundbreaking. 

211 

Senator YOUNG. I would presume over the course of preparing for 

this legal work and the course of the work itself, you acquired extensive knowledge about automotive safety, the automobile sector, 

about the legal issues surrounding auto safety. You no doubt acquired skills about related to the structure that you put in place 

and knowledge of it, right? In fact, you’re the foremost expert arguably on that. Do you think in your future role, all these things 

would help you serve effectively in that role, this background? 

Mr. BRADBURY. Well, thank you, Senator. I do. I certainly gained 

a familiarity with NHTSA and with its authorities and with the 

people who work there. So I look forward to collaborating closely 

with the Chief Counsel and with NHTSA to address safety issues 

certainly in other areas. I won’t be involved at all with Takata and 

the recalls of the airbag issues, but I have great respect for the 

people, for the process, and for the focus on the safety mission. 

Senator YOUNG. Well, thank you again for your appearance here 

today. 

And I’m actually going to yield back the balance of my time. 

The CHAIRMAN. Thank you, Senator Young. 

Senator Nelson, anything else for the good of the record? 

Senator NELSON. Yes, please, Mr. Chairman. 

I want to ask, Mr. Bradbury, since you were Counsel for Takata, 

you argued with my belief, and that was your job as the lawyer for 

Takata—that Takata put profits over safety. And now we have 

seen the hundreds and hundreds of e-mails that went on among executives in the company. And that has led to this sad tale and ultimately Takata has filed for bankruptcy. 

So with everything that you know now, do you still believe that 

Takata was a good and moral actor? 

Mr. BRADBURY. Well, Senator, I certainly have high regard for 

people at the company I came to know. I do think they care greatly 

about the product, but I’m not here to defend any client. I’m certainly not here to defend Takata. These are matters I will not be 

working on for the Department of Transportation. I appreciate your 

strong view on the issue. I respect it greatly. I came to have strong 

views, too. And I know that there are a lot of people both in 

NHTSA and in industry who are working overtime to try to address the problems that were created by the issues with the airbag 

inflators. It is a serious, serious set of problems. 

Senator NELSON. The point of my question, Mr. Bradbury, because it looks like you’re going to be confirmed with only 50 votes 

by the full Senate, is the moral frame of mind. I happen to be talking about Takata, which I think was morally bankrupt because 

they allowed this to happen, but you can look at the other things. 

Take, for example, the General Motors ignition switch and look at 

how many people have been killed or maimed as a result of that. 

And so there has to be some moral underpinning about what is 

right and wrong and the willingness to speak out, as government 

officials, against that kind of thinking. 

Mr. BRADBURY. I agree, absolutely. And there is a strong moral 

component to the safety mission of NHTSA and the Department of 

Transportation, and that has to be out front, forward leaning, the 

mission, the action, what shapes and directs the action of NHTSA 

and these issues. 

212 

I know NHTSA has been criticized in connection with some of 

the matters that you mentioned, but I do think they’re stronger 

today at NHTSA by virtue of some of the authorities they’ve exercised and the steps they’ve taken to resolve these complicated 

issues, like the airbag issues. 

And they, I think, have broken some new ground in terms of the 

framework they’ve got in place, the way they’re using their authority. And I think at least there’s a positive message in that in terms 

of the willingness and the ability of the agency to address those 

issues, which are moral issues, of public safety, which has really 

got to be the uppermost priority. 

Senator NELSON. Well, I’m talking to you because you, when 

General Counsel, one of the chief positions at the Department of 

Transportation, are going to have an influence over the administration’s appointees at NHTSA. So what is our philosophy going forward? Is it to protect the company or to protect the people? 

Mr. BRADBURY. It’s to protect the people. It’s public safety. At 

NHTSA, it’s public safety. 

Senator NELSON. That’s got to be asserted aggressively—— 

Mr. BRADBURY. I agree. 

Senator NELSON.—by the administration’s appointees. 

Mr. BRADBURY. I agree. 

Senator NELSON. All right. Ms. Walsh, I don’t want you to feel 

left out. 

[Laughter.] 

Senator NELSON. For some time, Florida fruit and vegetable 

growers have had to deal with an onslaught of subsidized agricultural imports from Mexico. This is a result of dumping by Mexican 

companies—bell peppers, tomatoes, strawberries, cucumbers—and 

Florida growers have been harmed by this anti-competitive practice, and they took advantage of NAFTA to be able to do this. 

One of the reasons why Florida growers haven’t been able to file 

a trade case with the Department of Commerce is the process 

doesn’t account for seasonal differences in the market place. Growers have to show the harm Mexican imports are causing to the industry nationwide, even though northern growers are not producing these types of crops in the winter. So by the Department’s 

regulations, the southern growers are penalized. 

So what do you think you can do to help improve the process for 

our growers? 

Ms. WALSH. Thank you, Senator, for that important question. 

And I think that that is certainly a concern and probably one of 

the most important concerns of Secretary Ross. And I think, as you 

mentioned on NAFTA, Congress has received the letter for renegotiation. That’s a critical issue for this administration. When the 

President said, ‘‘America First,’’ these are just the types of issues 

that he was referring to, and it’s my understanding that this will 

continue to be a top priority in Florida, and the orange growers are 

obviously a critical market. 

So if confirmed, the Commercial Service is not involved on the 

enforcement side, but on the export side and on the FDI side, but 

definitely as a team, we will be working closely with you and your 

staff to ensure that Florida growers get what they deserve. 

213 

Senator NELSON. This isn’t orange growers. This is vegetable 

growers, this is—— 

Ms. WALSH. Agriculture. 

Senator NELSON.—this is peppers and tomatoes. This is vegetables, not oranges. Now, we’ve got our own problem with oranges, 

but it is in the form of a little insect that brings a bacteria that 

is killing the citrus tree in 5 years. That’s a whole different problem. But in this particular case, I want to know if you will be concerned about this inequity that is devastating the fresh fruit and 

vegetable market, particularly the winter vegetables. 

Ms. WALSH. Certainly, if confirmed, Senator, I will look with our 

team at that issue at the Department of Commerce. 

Senator NELSON. So you’ll look at it. That doesn’t mean that 

you’re concerned about it. 

Ms. WALSH. I’m absolutely concerned about it. If confirmed, we 

will look at that. 

Senator NELSON. Thank you. 

The CHAIRMAN. Thank you, Senator Nelson. 

And we would like to see more of those winter vegetables in 

South Dakota in the winter. 

[Laughter.] 

Senator BLUMENTHAL. Mr. Chairman, can I ask a couple more 

questions if I promise not to ask about vegetables? 

[Laughter.] 

Senator BLUMENTHAL. Just one? 

The CHAIRMAN. If we let you ask a second round, then—and we 

don’t have anybody else that’s coming back. Do we know? 

All right. Be brief. 

Senator BLUMENTHAL. I’ll be brief. Thank you. 

Ms. Walsh, I would like to ask you, I know you’ve been asked 

about the Export-Import Bank. 

Ms. WALSH. Mm-hmm. 

Senator BLUMENTHAL. I come from a state that really depends on 

this bank. Many of our large manufacturers, like General Electric 

and United Technologies, but many of our small manufacturers as 

well. Senator Cantwell asked you about the Export-Import Bank 

earlier. I would like to give you another chance to express a commitment to this bank because it is so tremendously important to 

American manufacturing and to our whole economy. Will you support the Export-Import Bank? And how will you assure that our 

trade policies through the Export-Import Bank favor small as well 

as large manufacturers? 

Ms. WALSH. Thank you, Senator, for that question. As I mentioned before, if confirmed, I personally would not be in a position 

to have impact on that particular decision. That is not within the 

Department of Commerce decisionmaking. 

Senator BLUMENTHAL. Well, what will you do to support the Export-Import Bank insofar as it does affect manufacturing, which is 

within the purview and jurisdiction of the Commerce Department? 

Ms. WALSH. Senator, if confirmed, I would take an opportunity 

to discuss with the Secretary and the Under Secretary what role 

we could play in that issue, but it’s my understanding that we are 

not directly involved in that. 

Senator BLUMENTHAL. Do you support American manufacturing? 

214 

Ms. WALSH. Absolutely. 

Senator BLUMENTHAL. Thank you. 

Thanks, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Blumenthal. 

Again, we appreciate it very much. Thank you for taking our 

questions. A special thank you to the families that are represented 

here today. Thank you for your willingness to serve and to work 

with your loved ones through the rigors of public service. We are 

grateful for that and appreciate you being here as well. 

We’re going to leave the hearing record open for a couple of 

weeks, during which time Senators are asked to submit any questions for the record. And I would ask our panelists upon receipt 

that if they would submit their written answers to the Committee 

as soon as possible, we will try and process these nominations as 

quickly as we can. So thank you again. 

And with that, this hearing is adjourned. 

Mr. BRADBURY. Thank you. 

[Whereupon, at 11:48 a.m., the hearing was adjourned.] 

(215) 

A P P E N D I X 

RESPONSE TO WRITTEN QUESTION SUBMITTED BY HON. JOHN THUNE TO

STEVEN GILL BRADBURY

Question. In your testimony before the Committee, you discussed your tenure as 

Principal Deputy Assistant Attorney General and Acting Assistant Attorney General 

at the Justice Department’s Office of Legal Counsel (OLC) from 2005–2009. Between 2001 and 2003, in the aftermath of the 9/11 terrorist attacks, OLC issued several opinions regarding enhanced interrogation techniques and the President’s war 

powers. In 2008 and 2009, you authored two separate documents, each entitled 

‘‘Memorandum for the Files.’’ These memoranda asserted that certain opinions 

issued between 2001 and 2003 no longer reflected the then-current views of OLC. 

Please explain the scope and purpose of the aforementioned memoranda you authored. 

Answer. After I became Principal Deputy Assistant Attorney General (‘‘Principal 

Deputy AAG’’) for the Office of Legal Counsel (‘‘OLC’’ or the ‘‘Office’’) in 2004, I participated in decisions to withdraw and supersede previous legal opinions addressing 

interrogation policies that had been issued by our predecessors in OLC in 2002 and 

2003. We determined that the earlier opinions were flawed, in part because they relied on overly broad interpretations of the President’s constitutional authorities in 

war time vis-a`-vis the powers of Congress. I was involved in preparing replacement 

opinions that focused much more narrowly on the specific statutory and treaty provisions necessary to provide the advice needed by senior policy makers and that did 

not rely on broad assertions of presidential power. 

After I became Acting AAG for OLC in 2005 and while I served as the senior appointed official in charge of the Office, I undertook a broader initiative to conduct 

a comprehensive review of all the post-9/11 legal opinions issued by the Office from 

2001 to 2003 relating to war powers. The two memos to files that I prepared at the 

end of the Bush administration in October 2008 and January 2009 memorialized for 

senior government officials and for the new incoming Obama team the results of 

that comprehensive review of the earlier war-power-related opinions of the Office. 

These memos to files set forth with specificity my conclusions for OLC about the 

flawed reasoning of the 2001–2003 opinions and advised policy makers across the 

government as to which opinions and which specific propositions of law had been 

withdrawn or superseded by OLC and no longer represented the views of the Office. 

I believe these memos to files were helpful to the new OLC leadership at the beginning of the Obama administration. Among other things, the Obama team decided 

to post my memos to files on the OLC Website, where they remain publicly available today. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. BILL NELSON TO

STEVEN GILL BRADBURY

Question 1. A priority for me in last year’s Federal Aviation Administration extension law was to include consumer protections pertaining to refunds for delayed baggage and family seating. 

Specifically, the Department of Transportation (DOT) is statutorily mandated to 

issue final regulations by July 15, 2017 that will require airlines to promptly refund 

fees paid for checked baggage that is delayed. Unfortunately, I have not seen much 

progress on this. 

The law also required DOT to review and, if appropriate, establish policies to ensure that children 13 years old and under can sit with an adult in their party. Similarly, DOT does not appear to have taken any action on this provision. 

If confirmed, will you commit to addressing the statutory mandates set by Congress for these and other consumer protection rules? 

Answer. If confirmed, I do commit that, consistent with ethics requirements on 

matters where I may be recused, I will address relevant statutory mandates conVerDate Nov 24 2008 06:50 Jul 25, 2018 Jkt 075679 PO 00000 Frm 00219 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\30769.TXT JACKIE
216 

cerning DOT rules and other actions and will assist in advising DOT leadership and 

policy makers on compliance with applicable mandates. Please note that certain 

aviation matters pending before DOT are one area where I may have recusals because of my recent work representing an airline client. 

Question 2. Developing autonomous vehicle technology could mean that driverless 

trucks are regularly on our roads in the near future. This raises both safety concerns and employment questions for the millions of truck drivers in the U.S. 

How do you plan to balance the industry’s push for autonomous vehicles with the 

potentially significant safety and employment impacts? 

Answer. It is a top priority that the autonomous vehicles developed for use on 

America’s highways will be safe for operation. Therefore, the number one question 

in approaching the regulation of autonomous vehicles must be whether the regulation is necessary and appropriate to ensure the safe operation of the vehicles. At 

the same time, the development of autonomous vehicle technology has the promise 

to be transformational, including in advancing the overall goal of motor vehicle and 

motor carrier safety, since the vast majority of motor vehicle accidents today are 

caused by human error. For that reason, we must take care to ensure that regulatory mandates do not unnecessarily stifle incentives for investment and innovation 

in this new technology. I believe these competing objectives can be harmonized, consistent with the requirements of law. 

Question 3. The Southeastern Legal Foundation is not listed among significant 

representations as part of the resume submitted in response to Question A.9 of the 

Commerce Committee Questionnaire. 

Please explain this omission and detail the nature and extent of all work you have 

performed for the Southeastern Legal Foundation. 

Answer. I did not list the work I did for Southeastern Legal Foundation (‘‘SLF’’) 

on my resume because, in my judgment, it was not among my most significant client 

work within the usual focus areas of my private practice. I have represented SLF 

in three projects, as follows: (1) In 2012, I prepared an amicus brief for SLF and 

two other public interest organizations in a Supreme Court case involving an interpretation of the U.S. Tax Code (PPL Corp. v. IRS, No. 12–43 (U.S.)); (2) in 2013– 

2014, I assisted SLF with its cert. petition and merits briefs in the Supreme Court 

in cases brought by several industry petitioners and organizations, including SLF, 

challenging the EPA’s greenhouse gas rules for stationary-source permits under the 

Clean Air Act (grouped together as Utility Air Regulatory Group v. EPA, No. 12– 

1146 (U.S.)); and (3) in 2016, I prepared an amicus brief for SLF in the U.S. Court 

of Appeals for the D.C. Circuit in a case challenging the EPA’s Clean Power Plan 

under the Clean Air Act (State of West Virginia v. EPA, No. 15–1363 (D.C. Cir.)). 

Question 4. Please identify all persons, organizations, and entities that provided 

the funding in support of the work you performed for the Southeastern Legal Foundation. 

Answer. The only persons, organizations, or entities that provided funding in support of my work for SLF were SLF and my law firm Dechert LLP. SLF was a pro 

bono client of Dechert, and Dechert did not receive payment for my services in connection with the first two projects listed in response to Question 1. In reviewing 

records in response to this Question, I was reminded that in connection with the 

third project listed in response to Question 1 (the amicus brief filed in the D.C. Circuit in case No. 15–1363), SLF offered to and did pay Dechert a modest flat fee exceeding $5,000. I had forgotten about this payment, and because SLF had been a 

pro bono client, I inadvertently omitted reference to SLF in part 4 of my initial 

OGE–278e nominee financial disclosure report, submitted to this Committee on 

June 8, 2017. I have now corrected my OGE–278e report by adding Southeastern 

Legal Foundation to the clients listed in part 4 of the report (those clients from 

which my law firm received at least $5,000 for my services during the reporting period). I thank the Senator for raising this question, which led me to identify and 

correct this error in my disclosure report. 

Question 5. Pursuant to your association with the Southeastern Legal Foundation, 

the following questions relate to the Petition for Certiorari, Southeastern Legal 

Foundation, Inc. v. United States Environmental Protection Agency (online at 

https://www.edf.org/sites/default/files/SLF%20Petition%20for%20Cert.pdf). 

Please explain the following statement: 

In making the Endangerment Finding, EPA simply adopted the conclusions of the 

Intergovernmental Panel on Climate Change (‘‘IPCC’’) that not only were human 

GHG emissions a cause of atmospheric warming in the second half of the twentieth 

century, but that it is ‘‘90–99 percent certain’’ that humans caused ‘‘most’’ of that 

warming. The legal deficiency in this conclusion is that, given the current state of 

217 

science, it is irrational (and therefore reversible) to make this conclusion with such 

certitude. (p. 10) 

Answer. The quoted statement reflected the position of the client, SLF. This position was developed and supported in submissions filed by SLF and other parties in 

the underlying proceedings before the EPA and the D.C. Circuit. The cert. petition 

cited to the record evidence that supported this position and briefly summarized 

that support in the discussion following the quoted language. I did not participate 

in the underlying proceedings and was not involved in developing support for this 

argument. The position reflected in the quoted statement was not among the issues 

addressed on the merits in this case by the Supreme Court, which limited its grant 

of cert. review to a narrower question of statutory interpretation. 

Question 6. Please explain the following statement: 

As to the first line of evidence, EPA claimed that the twentieth century had witnessed an ‘‘unusual’’ rise in average global temperature, one that supposedly could 

not be explained by natural variability, and one that therefore demanded an anthropogenic explanation. The scientific evidence, however, shows otherwise[.] (p. 11) 

Answer. The quoted statement reflected the position of the client, SLF. This position was developed and supported in submissions filed by SLF and other parties in 

the underlying proceedings before the EPA and the D.C. Circuit. The cert. petition 

cited to the record evidence that supported this position and briefly summarized 

that support in the discussion following the quoted language. I did not participate 

in the underlying proceedings and was not involved in developing support for this 

argument. The position reflected in the quoted statement was not among the issues 

addressed on the merits in this case by the Supreme Court, which limited its grant 

of cert. review to a narrower question of statutory interpretation. 

Question 7. Please explain the following statement: 

[T]he regional warming that did occur in various areas of the globe during the 

last documented warming period was not anomalous in climate history and was well 

within the normal range of historical variability. (p. 12) 

Answer. The quoted statement reflected the position of the client, SLF. This position was developed and supported in submissions filed by SLF and other parties in 

the underlying proceedings before the EPA and the D.C. Circuit. The cert. petition 

cited to the record evidence that supported this position and briefly summarized 

that support in the discussion following the quoted language. I did not participate 

in the underlying proceedings and was not involved in developing support for this 

argument. The position reflected in the quoted statement was not among the issues 

addressed on the merits in this case by the Supreme Court, which limited its grant 

of cert. review to a narrower question of statutory interpretation. 

Question 8. Please explain the following statement: 

There was no consistent trend of ‘‘global’’ warming in the second half of the twentieth century, nor any global warming in the last 16 years, and the regional warming that did occur was not anomalous. EPA’s supposed physical understanding of 

GHG effects in the atmosphere is contradicted by copious empirical evidence, and 

the models on which EPA relies have proven to be wrong in many of their most important predictions, including current temperatures. (p. 15) 

Answer. The quoted statement reflected the position of the client, SLF. This position was developed and supported in submissions filed by SLF and other parties in 

the underlying proceedings before the EPA and the D.C. Circuit. The cert. petition 

cited to the record evidence that supported this position and briefly summarized 

that support in the discussion following the quoted language. I did not participate 

in the underlying proceedings and was not involved in developing support for this 

argument. The position reflected in the quoted statement was not among the issues 

addressed on the merits in this case by the Supreme Court, which limited its grant 

of cert. review to a narrower question of statutory interpretation. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. AMY KLOBUCHAR TO

STEVEN GILL BRADBURY

Question 1. Last Congress, I introduced the Torture Victims Relief Reauthorization Act to authorize increased funding for the Office of Refugee Resettlement to 

support treatment centers and services for torture victims. In the House, Representative Chris Smith has introduced a companion bill. The Center for Victims of Torture, based in St. Paul, has been a pioneer in providing support to victims of torture 

who are resettled in the United States. 

I am pleased that the issue of prohibiting torture, and providing services for its 

victims, has largely been a bipartisan one. 

218 

Mr. Bradbury, I understand that during the Bush administration, you were one 

of the principal authors of the legal opinions that later became known as the ‘‘torture memos.’’ Knowing what we know now, do you still agree with the views expressed in those memos? 

Answer. As I testified in my nomination hearing, I support the McCain-Feinstein 

Amendment, enacted by Congress in 2015, which mandates that all agencies of the 

U.S. Government are limited to use of the Army Field Manual in the interrogation 

of detainees and which prohibits the use of physical coercion. I believe the McCainFeinstein Amendment represents a historic policy decision and a moral judgment for 

the United States, and it reaffirms America’s leadership on interrogation policy and 

practice. The clear mandate of the McCain-Feinstein Amendment appropriately elevates and vindicates the compelling principle of reciprocity in the treatment of captured U.S. service men and women. 

Twelve years ago, when I was called upon to advise on the legality of proposed 

interrogation policies for use by intelligence officers, the McCain-Feinstein Amendment had not been enacted, and it was understood at that time that intelligence 

agencies operated under a different, less well defined, legal regime from the U.S. 

Armed Services. I did my best to pull back previous OLC opinions that were overly 

broad or otherwise flawed; to limit OLC’s advice to the narrowest grounds necessary 

and avoid reliance on expansive interpretations of presidential power; to spell out 

very clearly the specific factual assumptions on which the advice depended, including the particular conditions, limitations, and safeguards that were required as part 

of the policies; and to describe in detail the specifics of those policies so that the 

senior decision makers on the Principals Committee of the National Security Council would be fully apprised of precisely what they were being asked to approve. The 

OLC opinions I prepared on these issues are no longer operative, and the law has 

changed. I welcome the statutory changes enacted by Congress. 

Question 2. Mr. Bradbury, I also understand that the Justice Department’s Office 

of Professional Responsibility raised questions about the objectivity and reasonableness of your analyses in these memos. How would you respond to those statements? 

Answer. While the Office of Professional Responsibility (‘‘OPR’’) at the Justice Department later took issue with aspects of my opinions, OPR did not conclude that 

my work failed in any way to meet professional standards—in contrast to the earlier, superseded opinions issued by my predecessors. On page 259 of its final report 

dated July 29, 2009, OPR found that my opinions were ‘‘careful, thorough, lawyerly’’ 

and ‘‘fell within the professional standards that apply to Department attorneys.’’ 

Moreover, OPR noted that I ‘‘explicitly qualified [my] conclusions and explained the 

assumptions and limitations that underlay [my] analysis,’’ and that I had properly 

‘‘distributed drafts of the memoranda widely, within and without the Department 

[of Justice], for comments.’’ And on page 260 of its report, OPR stated, ‘‘We commend the Best Practices [for OLC opinions] as laid out [in a memo to the attorneys 

of OLC authored] by Bradbury and urge the OLC to adhere to them.’’ 

The final OPR report was rejected by the Justice Department in a January 5, 

2010 opinion by Associate Deputy Attorney General David Margolis, DOJ’s most 

senior career official. By tradition and DOJ protocol, all OPR recommendations were 

presented to Mr. Margolis as the senior career Associate in the Deputy Attorney 

General’s Office. As a result of the Margolis decision, the OPR report has no continuing force or effect. 

Question 3. The National Transportation Safety Board includes reducing fatiguerelated accidents on its 2017 Most Wanted List of Transportation Safety Improvements. I recently introduced the Safe Skies Act, which I worked on with Senator 

Boxer for many years. This commonsense bill would take the rest requirements put 

into place for passenger pilots after the tragic crash of Colgan Flight 3407 and apply 

them to cargo pilots who—despite using the same runways and airspace as passenger pilots—currently have looser rest requirements. 

Mr. Bradbury, if confirmed, would dealing with pilot fatigue be a priority for you 

at the Department of Transportation? 

Answer. If confirmed, I look forward to working with the Secretary and the FAA 

to make all aviation safety issues, including issues of pilot fatigue, a top priority, 

consistent with ethics requirements on matters where I may be recused. As I noted 

in my nomination hearing, certain aviation matters pending before DOT are one 

area where I may have recusals because of my recent work representing one of the 

major U.S. passenger airlines. 

219 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. RICHARD BLUMENTHAL TO

STEVEN GILL BRADBURY

Question 1. Forthrightness and honesty are extremely important qualities for lawyers, especially those who work for the public in government service. Do you agree 

that, especially for government lawyers, forthrightness and transparency are extremely valuable qualities? 

Answer. Yes. 

Question 2. Did you receive the Senate Committee’s questionnaire? 

Answer. Yes. 

Question 3. Did you answer that questionnaire? 

Answer. Yes. 

Question 4. Did you read question C(1) on page 25, which asks: ‘‘Have you ever 

been . . . the subject of a complaint to, any . . . professional association . . . or 

other professional group?’’ 

Answer. Yes. 

Question 5. How did you answer this question? 

Answer. I answered ‘‘No.’’ 

Question 6. Are you aware that this question does not concern the merits of any 

complaint filed concerning you, but rather the fact that a complaint had been filed? 

Answer. I am aware that the question does not turn on whether a bar complaint 

proceeding, once initiated, has resulted in any disciplinary action. 

Question 7. At the time you answered this question, were you aware of a New 

York Times article on May 19, 2009 with the headline ‘‘Ethics Complaint Is Filed 

Against Lawyers for Bush Over Torture Policy,’’ which reported that a coalition of 

advocacy groups filed legal ethics complaints about you with the D.C. Bar? 

Answer. I recall being aware of news articles in the spring of 2009 reporting that 

certain persons had announced the intention to submit information or allegations 

concerning my work at the Department of Justice, along with the work of other senior Justice Department officials, including former Attorney General Mukasey, to relevant state bars in an effort to initiate disciplinary proceedings. I did recall those 

news reports when I prepared my responses to the Committee’s questionnaire. 

Question 8. Did anyone inform you of the existence of this article? 

Answer. I was aware of the news articles. 

Question 9. Did you ever receive, read, or view the complaint discussed in the 

above-referenced article? 

Answer. No, not that I recall. 

Question 10. Does your testimony to the Committee contradict this article? 

Answer. I believe my testimony is accurate. 

Question 11. What steps did you take to make yourself aware of whether this complaint had been filed concerning you? 

Answer. In preparing my responses to the Committee’s questionnaire, I contacted 

the Office of Disciplinary Counsel of the D.C. Bar to inquire if any disciplinary complaints had ever been filed against me, and I was advised that the Bar had no 

record of any complaints. 

Question 12. Did you ever contact the D.C. Bar as to whether a complaint had 

been filed concerning you? 

Answer. Yes, three times. 

Question 13. When and how did you contact the D.C. Bar as to whether a complaint had been filed concerning you? 

Answer. Once by phone when preparing my responses to the Committee’s questionnaire; a second time by phone following my nomination hearing; and a third 

time, in response to the Senator’s question, by submitting by mail a sworn affidavit 

seeking a Certificate from the D.C. Bar’s Office of Disciplinary Counsel. 

Question 14. What response did the DC Bar give you in response to any inquiry 

you made as to the presence of a complaint? 

Answer. Twice by phone the D.C. Bar’s Office of Disciplinary Counsel advised me 

that it had no record of a bar complaint against me. In response to my written request, the D.C. Bar’s Office of Disciplinary Counsel mailed me a Certificate Concerning Discipline and/or Administrative Suspension, a copy of which has been provided to the Committee to be included as part of the record of my nomination hearing. The Certificate, dated July 6, 2017, states in relevant part: ‘‘No discipline has 

been imposed upon this attorney nor has Disciplinary Counsel filed a petition seeking discipline against this attorney. No complaint has been filed, upon which basis, 

220 

this attorney has been required to respond to a formal investigation by Disciplinary 

Counsel.’’ 

Question 15. Do you stand by your response to the Committee? 

Answer. Yes. 

Question 16. Is your answer to the Committee’s questionnaire regarding past complaints an accurate statement? 

Answer. Yes, I believe it is accurate. Section 6 of Rule XI of the D.C. Bar provides 

that the Disciplinary Counsel shall have the power and duty ‘‘[t]o investigate all 

matters involving alleged misconduct by an attorney subject to the disciplinary jurisdiction of this Court which may come to the attention of Disciplinary Counsel or 

the Board [on Professional Responsibility of the D.C. Bar] from any source whatsoever, where the apparent facts, if true, may warrant discipline,’’ and it further provides that ‘‘[e]xcept in matters requiring dismissal because the complaint is clearly 

unfounded on its face or falls outside the disciplinary jurisdiction of the Court, no 

disposition shall be recommended or undertaken by Disciplinary Counsel [including 

both formal disciplinary petitions and informal admonitions] until the accused attorney shall have been afforded an opportunity to respond to the allegations.’’ I never 

received notice from the Bar’s Disciplinary Counsel that allegations had been received against me, and the Disciplinary Counsel never sought a response from me 

as to any allegations that may have been submitted to the Bar by any person. 

Therefore, if any allegations concerning me were submitted to the D.C. Bar, it appears evident that the Office of Disciplinary Counsel must have concluded that such 

allegations were ‘‘clearly unfounded on [their] face’’ or that they fell ‘‘outside the disciplinary jurisdiction’’ of the Bar. Moreover, the confidentiality requirements of Section 17 of Rule XI of the D.C. Bar prohibit the Disciplinary Counsel from disclosing 

to me any allegations or materials that did not result in a docketed complaint. 

Question 17. What plans do you have to amend your answer to the questionnaire? 

Answer. For the reasons described above, I do not plan to amend my answer to 

the questionnaire. 

Question 18. In your public testimony before the Senate Commerce Committee on 

June 28, 2017, did I ask you about your work representing airlines? 

Answer. I believe the question may have come up. 

Question 19. What airlines did you mention as clients? 

Answer. If asked, I would have mentioned American Airlines. 

Question 20. Did you mention United Air Lines? 

Answer. I would not have mentioned United Air Lines. 

Question 21. I note this representation is mentioned in your written disclosures, 

but why did you fail to mention your representation of United at the hearing? 

Answer. Although listed on my resume as a former client, United Air Lines is not 

a current client of mine, and I have not represented United Air Lines since approximately 2002. Moreover, the matters I handled for United at that time are no longer 

active; they involved a potential merger that was abandoned in 2001 and a 

codeshare alliance that has since been terminated. Since the time I represented it, 

United Air Lines has passed through bankruptcy, had several changes in management, and underwent a merger with Continental Airlines; in short, United Continental is not the same entity I last represented 15 years ago. 

Question 22. What message should the Committee take from a witness’ failure to 

mention a client as notable and pertinent to the question as United Air Lines? 

Answer. I believe my representation of a different United Air Lines so many years 

ago is highly unlikely to raise (indeed, practically certain not to raise) any conflictof-interest issue with my potential work for the United States, in the event I am 

confirmed as General Counsel of DOT. 

Question 23. Are there any clients that you forgot to include or chose to exclude 

from your responses to any inquiries from the Committee? 

Answer. Yes. I inadvertently omitted reference to Southeastern Legal Foundation 

in part 4 of my OGE–278e nominee financial disclosure report, which was submitted 

to the Committee on June 8, 2016, as explained above in response to Question 2 

from Senator Nelson. 

Question 24. Please list any clients you have failed to disclose. 

Answer. Southeastern Legal Foundation. 

Question 25. Will you recuse yourself from all issues affecting your current and 

former clients during your tenure at the U.S. Department of Transportation? 

Answer. If confirmed, I will follow the requirements of the ethics laws and the 

ethics pledge in the President’s executive order with regard to potential recusals 

from matters at DOT stemming from my recent work on behalf of clients in private 

221 

practice. These will include my recusal from Takata-related matters, as I confirmed 

to Senator Nelson. In considering recusal questions and the requirements of the ethics laws and regulations, I will consult with the senior career ethics officer at DOT. 

Question 26. Lawyers must verify the information on which they rely to make 

legal distinctions. Law schools teach their first-year students the importance of facts 

when putting together a legal argument. Without the correct facts and evidence, 

even incredibly intelligent legal theories will fall apart. My reading of the Justice 

Department’s Office of Professional Responsibility’s report on the Office of Legal 

Counsel’s torture memos leads me to conclude you did not attempt to verify or question the information the CIA gave you regarding torture techniques because you did 

not consider that to be your role. 

Should a lawyer rely entirely on representations of fact made by clients or other 

parties? 

Answer. In providing legal advice in some instances, attorneys must rely on the 

factual representations provided by clients. 

Question 27. Do you agree that lawyers are expected to practice at least a minimum amount of factual due diligence? 

Answer. Yes, attorneys should ask questions and gain an understanding of the 

relevant factual basis on which they are providing a legal opinion. 

Question 28. Do you agree that scientific research is important to support regulations, especially at the Department of Transportation, which considers extremely 

complicated technical innovations? 

Answer. Yes. 

Question 29. Did you rely on a study by Professor James Horne in a memo that 

justified extended sleep deprivation because it did not cause physical pain or even 

severe physical pain? 

Answer. Our opinion did cite this study in analyzing the application of the specific 

provisions of the anti-torture statute to sleep deprivation. The opinion did not purport to ‘‘justify’’ sleep deprivation and did not cite this study for the purpose of ‘‘justifying’’ any interrogation policy. 

Question 30. Did you read that study in its entirety? 

Answer. I don’t recall; I know that attorneys in our Office did review the book. 

Question 31. Are you aware that Professor Horne responded to your memo by saying that: ‘‘I thought it was totally inappropriate to cite my book as being evidence 

that you can do this and there’s not much harm. With additional stress, these people are suffering. I just find it absurd. [The memo] distorts what I really meant.’’? 

Answer. I have read these statements. 

Question 32. What is your response to Professor Horne’s statement? 

Answer. I understand and accept that the professor’s study involved very different 

circumstances. 

Question 33. If you are confirmed as General Counsel, who will you ask for assistance when making legal determinations that depend on important, complex scientific findings? 

Answer. If confirmed, I will seek input on complex scientific matters from the engineers and other subject-matter experts within DOT (or elsewhere in government, 

if necessary) who have the best knowledge regarding those matters. 

Question 34. How can the Committee rest assured you won’t let others dictate 

your conclusions? 

Answer. I have never let anyone dictate my conclusions as a legal adviser. 

Question 35. I take the issue of ‘‘regulatory capture’’ quite seriously. This occurs 

when an industry ‘‘takes over’’ or ‘‘captures’’ its regulator, exercising undue influence on the regulator’s efforts. It has been demonstrated throughout the transportation sector and the U.S. Department of Transportation in recent years. 

Are you familiar with the concept of ‘‘regulatory capture’’? 

Answer. Yes. 

Question 36. What does this concept mean to you? 

Answer. In my understanding, the concept refers to a situation where government 

regulators allow their regulatory actions to be directed by the interests and objectives of the private industry they are responsible for regulating, rather than by the 

public interest and the terms and policy goals of the laws they are charged with 

implementing. 

Question 37. Do you think that regulatory capture is a problem in the Department 

of Transportation? 

Answer. In my experience with attorneys and engineers at DOT, I have not observed examples of what I would consider regulatory capture. 

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Question 38. How would you combat regulatory capture as General Counsel for 

the Department of Transportation? 

Answer. By serving only one client, the United States; by upholding the objective 

requirements of the law and remaining faithful to the legal mandates enacted by 

Congress and the requirements of the rules and regulations governing the actions 

of DOT; by acting in all matters according to the public interest and in accordance 

with the highest standards and principles of public service; by collaborating closely 

with experienced career attorneys and other career employees of DOT; and by keeping an open door policy and an atmosphere of relaxed collegiality, so that career 

staff feel free to be candid and to bring to my attention (or the attention of the Department’s Inspector General) any instance where it is perceived that actions are 

being taken for improper reasons. 

Question 39. How would you help protect the Department of Transportation from 

regulatory capture? 

Answer. By staying true to the commitments laid out in response to Question 4. 

Question 40. What are your views about the lack of competition in the airline industry? 

Answer. Competition in the airline industry is the policy adopted by Congress in 

the Airline Deregulation Act. Competition in airline services benefits consumers, 

and I believe the regulatory actions of DOT should preserve and promote competition. If confirmed as DOT General Counsel, I would expect to be guided by that objective, consistent with ethics requirements on matters where I may be recused. As 

noted, certain aviation matters pending before DOT are one area where I may have 

recusals because of my recent work representing American Airlines. 

Question 41. How can government help support a competitive marketplace? 

Answer. Government can help support a competitive marketplace by pursuing 

regulatory actions that preserve competition and the incentives to invest in innovation and in new facilities and increased capacity when supported by consumer demand, while addressing demonstrated instances of unfair or deceptive practices in 

the airline industry. 

Question 42. Would you support a Government Accountability Office investigation 

into airlines’ anti-competitive practices? 

Answer. I understand that DOT is or will be assessing competition in the airline 

industry. The Government Accountability Office (‘‘GAO’’) is an arm of Congress, and 

it is not for me to opine on whether GAO should undertake an investigation. If confirmed, I would expect to cooperate with GAO’s investigations and audits. 

Question 43. You’ve advised airlines [on] ways of achieving antitrust immunity for 

joint ventures with foreign carriers. This immunity exists in perpetuity. Should 

these grants ever expire? 

Answer. It is my understanding that DOT monitors and reviews all grants of antitrust immunity and reserves the right to amend or revoke these grants as circumstances warrant. Again, this area is one where I may have recusals because of 

my recent representation of American Airlines. 

Question 44. Would you support increasing the DOT’s enforcement power against 

the rail, aviation and auto industries? 

Answer. I understand that DOT has broad authority across these various transportation modes. If confirmed, I would intend to study whether DOT requires additional authority in any area, to hear from interested Members of Congress and 

stakeholders on that question, and to work with the Secretary and the modal administrators accordingly. 

Question 45. Do you support President Trump’s budget proposal, which massively 

funds an impractical, ego-driven border wall, but provides no real funding for transportation issues like upgrading real infrastructure? 

Answer. I did not participate in formulating the President’s budget proposal, and 

I have not studied the details of the proposal. If confirmed to be General Counsel 

of DOT, my primary concern regarding the budget would be to help ensure adequate 

resources for regulatory and enforcement activities and the fulfillment of all statutory requirements. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. MAGGIE HASSAN TO

STEVEN GILL BRADBURY

Question 1. During your confirmation hearing, you stated that every opinion you 

gave for the Office of Legal Counsel ‘‘represented [your] best judgment of what the 

laws in effect at the time required.’’ The American Bar Association’s Model Rules 

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of Professional Conduct begin by noting that lawyers are officers of the legal system 

and public citizens with ‘‘special responsibility for the quality of justice.’’ 

Do you believe that you fulfilled this special responsibility as an attorney in the 

legal opinions you wrote signing off on the use of tactics such as waterboarding? 

Question 2. Do you believe that those tactics are in accordance with our shared 

American values? 

Question 3. Was that a factor in your legal analysis? 

Question 4. Do you think it should have been? 

Answer. As I testified in my nomination hearing, I support the McCain-Feinstein 

Amendment, enacted by Congress in 2015, which mandates that all agencies of the 

U.S. Government are limited to use of the Army Field Manual in the interrogation 

of detainees and which prohibits the use of physical coercion. I believe the McCainFeinstein Amendment represents a historic policy decision and a moral judgment for 

the United States, and it reaffirms America’s leadership on interrogation policy and 

practice. The clear mandate of the McCain-Feinstein Amendment appropriately elevates and vindicates the compelling principle of reciprocity in the treatment of captured U.S. service men and women. 

Twelve years ago, when I was called upon to advise on the legality of proposed 

interrogation policies for use by intelligence officers, the McCain-Feinstein Amendment had not been enacted, and it was understood at that time that intelligence 

agencies operated under a different, less well defined, legal regime from the U.S. 

Armed Services. As my opinions acknowledged, I realize that reasonable people may 

disagree with the legal conclusions I reached on these difficult questions, but I did 

my best to limit OLC’s advice to the narrowest grounds necessary; to avoid reliance 

on broad interpretations of presidential power; to spell out very clearly the specific 

factual assumptions on which the advice depended, including the particular conditions, limitations, and safeguards that were required as part of the policies; and to 

describe in detail the specifics of those policies so that the senior decision makers 

on the Principals Committee of the National Security Council would be fully apprised of precisely what they were being asked to approve. As noted above, however, 

the legal landscape has changed since I authored these opinions, and I welcome 

those changes. The OLC opinions I prepared on interrogation matters are no longer 

operative, and the policies I addressed in the past would be prohibited under current law. 

Question 5. During your confirmation hearing, when referring to your memoranda 

on enhanced interrogation techniques, which many people have called torture, you 

stated, ‘‘If I had my druthers, I wouldn’t have engaged in having to address those 

issues.’’ 

Why did you seek to be the head of the Office of Legal Counsel if you did not 

want to engage in addressing those difficult legal questions? 

Question 6. Why are you now seeking another government legal position where 

you will be called on to engage in addressing difficult legal questions? 

Answer. My comment at the hearing related specifically to the uniquely difficult 

issues I was called upon to address concerning interrogation. These were not the 

only challenging issues I dealt with at OLC, but they were the most difficult. If confirmed as General Counsel of DOT, I would appreciate the challenge of addressing 

interesting and difficult legal issues, particularly in areas of regulation and complex 

statutory provisions touching on industries of critical national importance, like 

drones, self-driving vehicles, and other new technologies that are making their way 

into our transportation systems. It would be a privilege and an honor to serve in 

this position. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. DAN SULLIVAN TO

ELIZABETH ERIN WALSH

Question 1. Alaska’s seafood exports represent 55 percent of total U.S. seafood exports, and make up roughly two-thirds of the value of Alaska’s seafood—over $3 billion annually. In 2015, Alaska exported to 102 different countries. In recent years, 

we’ve experienced challenges as seafood consumption in Asian markets change, and 

U.S. exports face pressure from farmed and other low-priced alternatives sourced 

internationally. 

What specific steps will you take to promote the export of Alaskan seafood in global markets? What improvements can be made in our discussions and strategies with 

the markets in which the Foreign Commercial Service operates? 

Answer. If confirmed, I look forward to finding ways to address the current trade 

imbalance in fisheries so that our fishery resources create more jobs here in AmerVerDate Nov 24 2008 06:50 Jul 25, 2018 Jkt 075679 PO 00000 Frm 00227 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\30769.TXT JACKIE
224 

ica. In light of the fact that Trade Promotion Authority now includes fish and fishery products, I look forward to collaborating with colleagues throughout government—including NOAA and USTR—on a range of export issues such as this one 

where the International Trade Administration (ITA) and specifically the U.S. and 

Foreign Commercial Service can add value. To ensure efficiency and effectiveness, 

it is critical we work together and leverage each other’s capabilities to ensure the 

competitiveness of U.S. industries. 

Question 2. One of the core missions of the Commerce Department is to promote 

U.S. companies and exports. How will you improve upon the existing efforts to promote opportunities for American companies abroad? 

Answer. U.S. exports face significant challenges in many markets. The causes of 

market obstruction and closure are numerous including: high tariffs; subsidies provided to foreign producers giving them unfair advantage over their U.S. competitors; 

blocking or unreasonably restricting the flow of digital data and services; theft of 

trade secrets; as well as non-tariff barriers—such as unnecessary regulations on 

particular items—to limit competition, including in the services sector. 

If confirmed, I will work tirelessly to increase exports by breaking down longstanding trade barriers and fostering increased access for American goods in foreign 

markets. I intend to work closely with my colleagues within ITA and the Secretary 

to use all possible tools to encourage other countries to give U.S. producers fair, reciprocal access to their markets. 

Question 3. There have been widely reported examples of China denying access 

to U.S. industry and investment when Chinese companies are granted access to the 

U.S. market in similar situations. Specifically, how will you improve opportunities 

for American business in China? 

Answer. China has pursued policies that has disadvantaged American companies 

and workers. If confirmed, I will use every available tool to counter restrictive and 

unfair trade policies of those who pledge allegiance to free trade while violating its 

core principles. I believe in free and fair trade and I pledge to work with my colleagues in the Trump Administration and the U.S. Congress to restore a level playing field. 

Question 4. What specific changes or improvements will you implement in the 

mission of the Foreign Commercial Service that will create better conditions for the 

promotion of U.S. enterprise abroad? 

Answer. I support the International Trade Administration’s mission of promoting 

trade and investment, advancing the competitiveness of U.S. industries, and ensuring fair trade through the rigorous enforcement of our trade laws and agreements. 

Furthermore, I will assist with the critical role the U.S. and Foreign Commercial 

Service plays in executing our trade laws, particularly for U.S. small and mediumsized businesses. 

Question 5. Would you support an expansion of the CFIUS mandate to include 

market access and reciprocity as factors considered by the Committee? 

Answer. CFIUS is an important statute that provides a valuable tool that allows 

us to advance U.S. national security, foreign policy, and economic objectives. If confirmed, I will work within the Department of Commerce, with the Treasury Department—which leads CFIUS—and the rest of the interagency as appropriate, to support a vigorous and thorough CFIUS review process which must include consideration of market access and reciprocity as important analytics in our national security calculus. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. BILL NELSON TO

ELIZABETH ERIN WALSH

Question 1. Florida acts as a central hub for trade with Latin America. In fact, 

Latin America makes up three of the top five export market fins for Florida. However, the value of goods exported to our top South American trading partners declined from 2015 to 2016. 

Given all the anxiety and rhetoric about trade recently, how do you intend to ease 

tensions with our trade partners in Latin America and increase opportunities for 

American exports in that part of the world? 

Answer. Trade with Latin America remains vital to the prosperity of American 

businesses, farmers, ranchers, workers and service providers. The United States 

maintains comprehensive trade agreements with 11 trading partners in the region 

and is actively engaged in constructive dialogue with the rest of the region on trade 

through trade and investment framework agreements, bilateral trade councils, and 

other initiatives. The Administration’s commitment to maintaining and expanding 

225 

our commercial relationships with our Latin American trading partners is evident 

in these expansive activities. Through these efforts, the Administration seeks to 

build a trading system that holds our trading partners to a higher standard of fairness, ensures a level playing field, reduces impediments to free and fair trade, and 

creates opportunities for American businesses, farmers, ranchers, workers and service providers. I understand that the International Trade Administration’s Global 

Markets unit provides extensive support for U.S. small and medium-sized businesses through the U.S. and Foreign Commercial Service. These services are conducted through a large network of experts and offices across America and in Latin 

America. The services include cutting edge market intelligence, export counseling, 

business matchmaking and advocacy. If confirmed, I look forward to supporting 

Global Markets work in this important region. 

Question 2. Do you see statements by the President and others in the administration as counterproductive to that effort? 

Answer. The United States recognizes how critical Latin America is to the health 

and growth of the U.S. economy and maintains strong trade relations with our Latin 

American trading partners. President Trump had already met with many of his 

counterparts to discuss how the United States hopes to grow our trading relationship in ways that are fairer and more effective for both the United States and our 

Latin American trading partners. 

Question 3. The Obama Administration had a goal of doubling exports in five 

years. What sort of goal would you set for exports in the next five years? 

Answer. If confirmed, I would welcome the support of the Congress for the International Trade Administration’s mission of promoting trade and investment, advancing the competitiveness of U.S. industries, and ensuring fair trade through the 

rigorous enforcement of our trade laws and agreements. 

Question 4. What do you believe is the most important thing Congress could do 

to increase exports? 

Answer. If confirmed, I would welcome the support of the Congress for the International Trade Administration’s mission of promoting trade and investment, advancing the competitiveness of U.S. industries, and ensuring fair trade through the 

rigorous enforcement of our trade laws and agreements. In addition to Congress’ 

support of ITA’s mission, I would welcome the support of Congress for the Administration’s overall vision for creating a more vibrant, and more competitive, economy, 

including through tax reform, increased funding for infrastructure, and other legislative steps to stimulate U.S. economic growth. 

Question 5. The United States is the global leader in producing phosphate-based 

fertilizer, with Florida leading the way for the country. Florida produces 50 percent 

of the Nation’s phosphate-based fertilizer, including blended mixtures such as 

monoammonium phosphate and diammonium phosphate. Given a level playing field, 

U.S. fertilizer producers can compete with anyone, but they currently face unfair 

trade barriers in places like the European Union. 

Will you commit to working with our producers to find ways to open the E.U. to 

U.S. fertilizer? 

Answer. I share your concerns about the tariff and non-tariff trade barriers that 

inhibit our U.S. fertilizer producers’ ability to export. If confirmed, I commit to 

working with industry to ensure a level playing field in foreign markets. 

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