torture memo: interrogation of an al qaeda operative

8/14/2019 Torture Memo: Interrogation of an al Qaeda Operative

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O!Yk-e of the Assist.:mlAttorney GenerJl

T'pn ( ' ~ C R C T u ~ t l ; \1-1U.S. Department of JusticeOffice of Legal COllilseJ

Washington. D.C. 1(J5JO

August 1, 2002l'vfemorandum fo r John Rizzo

Acting General Counsel of the Central intelligence AgencylHterrogatiOl1 ofal Qaelia Operative

You have asked for this Office's views on whether certain proposed conduct wouldviolate the prohibition against torture found at Section 2340A of title 18 of the United StatesCode. You have asked for this advice in the course of conducting imenogations of AbuZubaydah. As we understGlld it, Zubaydah is one of the highest rar.i.king members of the ?i. Qaedate:-rorist organizat ion, with which the United States is cUlTently engaged in an intemational armedconflict foUo\:vlng the attacks on the World Trade Center an.a the Pentagon on September 1 I,2001. This letter memorial izes our previous oral advice, given on July 24, 2002 and July 26,2002, that the proposed conduct would not violate this prohibition.

LOur advice is based upon the foIlo"\1,ring facts, '.vhich you have provided to us. \Ve also

understand that you do not have any ~ c t s in your possession contrary to the facts outlined here,and tius opinion is limited to these facts. If these facts were to change. illlS advice would notnecessariiy apply. Z u b a y d a . ~ is currently being held by the United States. The interrogation teamis certain that he has additional infom1ation that he refuses to divulge. Specifically, he isv!ithholding information regarding terrorist networks in the United States or in Saudi Arabia andinfof1nation regard ing plans to conduct attacks within the Unite.d States or against Our interestsoverseas. Zubaydah has become accustomed to a certain level of treatment and displays no signsof wiUingness to disclose Ulrtiler infonnatioh. Moreover, your intelligence indicates that t4ere iscurrently a level of "chatter" equal to that which preceded the September 11 attacks. In light ofthe infonnation you bel.ieve Zubaydah has and the high lC'lel of hreat you beLieve no w exists,you \vish to move the interrogations into what YOll have described. as an "increased pressurephase.'"

As part of this increased pressme phase, Zubaydah will have CO!ltact only with a newinterrogation specialist, whOii he has noi met previously, and the Survival, Eva'5ion, Resistance,Escape ("SERE") training psychologist ;,;vilo has been involved '.vilh the inter rogations since. theybegan. This phase will likely last no more than several days but CDuld last up to thi rty days. IntillS phase, you would like to employ ten techniqlies that you believe will dislocate his


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T ~ l 1 E T expe.ctations regarding the tre


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T O ~ T Tbe duration of confinement varies based upon the size of the container. For the targel' confinedspace, the individual can stand up OI sit do\vn; the smaller space is iarge enough for the subject to 'sit down. Confiilement in the larger space can last up.. to e L g ~ t e e n hours: for the smaller space,confin&:ment lasts for no more than two houIs,

Wall standing is used to induce muscle fatigue. The individual stands about four to .fivefeel [rom a wall, with his feet spread approximately to shoulder width His arms are stretchedout in front of him, vlith his fingers resting on'the walL His fingers support all of his bodyweight. The individual is not permitted to move or reposition his hauds or feet.

A variety of stress positions may be used. You have informed us that these positions arenot designed to produce the pain associated with contortions or nvisting of the bodr Rather,somewhat like walling, they are designed to produce the physical discomfort associated withmuscle iatigue. Two particular stress positions are likely to be used OD Zubaydah: (1 ) sitting onthe floor with legs extended straigbt out in front of him with his arrus raised above his head; and(2) kneeling on the floor while lerming back at a 45 degree fu"1gie. You have also orally infofl11edus that through observing Zubaydah in captivity, you have noted that he appears to be quiteflexible despite his wound.

Sleep deprivation may be used. You have indicated that your pu-tpose in using tillStechnique is to reduce the individual's abiiity to think on his feet and. through the discomfortassoctate:dwith'lack Qf;:;leep; to mvtiYatehim-tO'''cooperate: The efi:edDfsneh-sleep' depdYationwill generally remit after one or two nightsofunimerrupte-


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1 ~ R E T is then applied to lhe cloth in a wmroUed manner. As this is done, the cloth is !o\vered until itcoveTS both the nose r,.nd 1110Uth. Once the cloth is saturated and compietdy covers the mouthand nose, air now is slightly resuic.ted for 20 to 40 seconds due to the presence of he cloth. Thiscauses an increase in carbon dioxide level in the individual's blood. This inc.rease in the carbondioxide level stimulates increased effort to breathe. This e f f O I ~ L plus the doth produces theperception of "suffocation and incipient panic," i.e., the perception of drowning. Tl;l.e individualdoes not breathe uny water into his lungs. During those 20 LO 40 seconds, waxer is continuouslyapplied from a beight of twelve to t \ . : v e n t y ~ f o u r inches. After this period, the cloth is lifted, andthe individual is allowed to breathe unimpeded for three or four n!l1 breaths. The sensation ofdrovming is il1Ul1ediate!y relieved by the removal ofthe cloth. The procedure may then berepeated. The water is usually applied [rom a canteen cup or small watering can ,vith a SlJDut.You have orally informed us that this procedure triggers an automatic physiological sensation ofdrov'


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T ~ R E T confinement box. The other inquiry involved claims that the SERE training caused twoindividu81s to engage in criminal behavior, namely, fciony shoplifting and do\v111oading childpornography onto a military computer. According 1.0 this official, these claims were. he has indicated {hat during the three and a half years he spent

the SERE program, he trained 10,000 studen.ts. Of thase students, only twodropped out of the training foHowi:1g the use of these techniques. Although on rare occasionssome students temporarily postponed the rer.n3incier oftl1eir training and received psychologicalcouDseiing, those sl.lldems v;ere able to finisll the program. withem any indicalion of subsequerllmemal health effects.

, u ~ , , , , , , , , , , , , , the program suffered anyadverse rnental health effects. He infonned yuu that there was oU'Z person v:ho did n.ot completethe training. That person experienced an adverse mental health reaction that lasted only twoliOHTS. After those two hours, the individual's symptoms spontaneously dissipated withoutrequiring treatm.ent or counseling and no other syr.nptoms were ever reported by this individuaLAccording to the inforrnation you have provided to us, this assessment of the use of theseprocedures includes the use of the waterboard.

v"' ' ' .u ~ . . , m a course of conduc1, wiof the insect in the confinement box a'ld the waterboarcl. This memonmdwl1 confimls that theuse of these procedures has not re.suilcci in any reported instances of prolonged mental hann, and. of imiilediate and temporary adverse psychological. responses to the trainillg.

lied that a sm.al! minority of students have had tempora.-y adversereactions during training. Of the 26,829 stude.nts trained from 1992 througb 2001in the Alr Force SERE training, 4.3 percem of those students had contact with ps'ychologyservices. Of those 4.3 percent, only 3.2 percent were pulled from the program for psychologicalreasons. Thus, Out ofthe students trained overall, only O. i from theprogl'am for psychological r i ~ a S Q n s . FUlthermore, altho that surveysof students having completed this training are not done, he con dence that the trainingdid not cause aB.Y long-term ps}'choiogical impact. He based his conclusion on the debriefing of::tudents that is done after the Ir;:inlng. l',1ore importantly, he based tiils assessment on the factthat although training i.s required to be extremely stressful in order to be effe.ctivl\ very fewcompiaints have been made regarding the training. During his tenure, in \)vhicb t0,000 studentswere trained, no congressional complaints have been made. While there VIas one InspectorGenera! complaint, it was not due to psychological concerns. h'oreover, he was aware of onlyone letter inquiring about the long-term impact of these tech.l1jques from an individual trained

T O ~ R E T 5


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T O ~ T over l\venty He found that it \vas impossibie to attribute this individual's symploms tohis tmiuing. uded that if there are any tong-term psychological effects of [heUnited States Air Force HUH""S using the procedures outlined above they "are certainlyminimal."

With respect to the waterboard, you have also orally infonned us rhat the Navy conril1l.lesto use it in training. You have informed us that yOi!!" on-site. psychologist'S, who have extensiveexperience with the llse oHile waterboard in Navy training, have not encountered any significantlong-term i11enta! health consequences fi'om its use. Your on-site psychologists have alsoindicated that JPRA. has lii


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~ l l i T demonstrate that he is really a rather,'humble and regular guy.'" He is "somewhat compulsive"in how he organizes his environment and business. He is confident, self-assured, and possessesan air of authority. \Vhile he admits to at times wrestling, \vith how to determine who is an"innocent," he has ackno\';Jedged celebrating the destructio:.1 of the World Trade Center. He isin:elligent and intellectually curions. He displays "excellent self-discipline." The assessrnen idescribes him as a perfeclionist persistent private, and highly capable in his ~ o c i a l interaction.s.He is very guarded about opening up to others and your assessment repeatcdl:,' emphasizes tha:he tends not to trust others easily. He is also "quic.k to recognize and


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S::tb:iCk. Additionilliy, yeu b e ! j e \ ' ( ~ be' may be \\'illing to d i s c i o ~ : ( : some information, particularlyinfornntioll he deems to nOl b,:; criticaL but which may ultin12.te:y be useful to us v"hen pieced:.:>gether with otber intelligence inform2.tion you have gained.

III.Section 2340/\ makes i1 a criminal offense for any person "outside of tbe United States[to] ccmmit[] or attempt[] to commit torture." SectiDn 2340(l) defines torture as:an act conuniTted by a person acting under the cotor of law specifically intended toinilict severe physical or menta! pain or suffering (other than paip or sufferingincidental tc Lnvful sanctions) upon another person within his cnstody of physicalcontrol.

1g U.s ,C. 2340( 1). As v:e outlined in our opinion on standards of conduct under Section2340A, a violation of2340A requires a showing that: (1) the torture occUlTed outside the Unile


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Section 2340 is pain tbm is difficull for the individual to endure and is of 1:ll1 intensity akin to thepain accompanying sedous physical injury. See Section 2340/\ lv1emonmdum at 6. Drawingupon the TVPA precedent, vie have nOled that examples of acts inflicting severe pain that typifYtorture are, among other ti1lngs, severe beatings with We


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individual do not result in severe pain. Tbe faciai slap and wL't.lllng conlain precautions to ensuretbat no pain even approaching this Ie'lel results. The slap is delivered with fingers slightlyspread, which you have explained to us [s designed to be less painful than a closed-hand slap.The slap is also delivered to lhe fie,shy I',t[t of the face, further reducing any risk of physicalcarn.age or seriaw; pain. The facial siap does not produce pcj.n that is difficult to endure.Like\vlsc, walling involves quickly pulling the person forward and then thmsting him against aflexible false '.vall. You have informed us that the sound of hitting the wall 'will actually be farworse than any possible injury to the individual. The tL"ie of the roBed ttnvel around the neck alsoreduces any risk of injury. V/hile it may hurt to be pushed against the wall, any pain experiencedis not of the intensiFY associated with serious physical injury.

As we understand it, when the viaterboard is used, the subject' s body responds as iftbesubject \-vere drO'.\11ing--


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T " " ~ p ,. , .L"C r ) f : ' l ~ { ~ . . . , ~ . l ( ...f h ~ I S . 18 USc. 2340(2). Those: predicate acts are: (1) the imcmion:11 inDiction or thre:::.tenedinfliction 0f severe physical pain or suffering; (2) the adminislTa:iofl or application, or threatened


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T O ~ : ; ' E T Walling plainly is not a pr()ceciure (n!culated to disrupt profoundly the senses or

personality. While walling involves vJlial1.night be characterized as rough handling, it does notinvolve the threat of imminent dcaih or, as discussed above, the intliClion of severe physical pain.Moreover, once again we understand that use of this technique \l-.'iU not be accomplinied by anyspecific verbal threat that violence will ensue absenL coopermion, Thus, like. the facial slap,walling can ollly constitute a threat of severe physical pain if a reasonable persoll would infersuch;] threat from the use of the te:ci1n.ique iL,>eJL \VaHing does not in and. of itself inflict severeperin or suffering, Like the facialsiap, \valling may alter the subject's expectation as to thetreatment he believes he \viU receive. Nonetheless, the characler of the action falls so far shon ofinilicting severe pain or suffering \vithin the meaning of the statute that even ifhe inferred thatgreater aggressiveness was to follow, the type of actions that could be reasonably be anticipatedviould still fall bela\v anything sufficient to inflict severe physical pain or suffering under thestatute, Thus, we conclude that (his technique falls oUtside the proscribed predicate acts,

Like waIling, stress posi:ions and wall-standing are noi pwceJures calculated to disruptprofotUldly the senses, nor arc they threats of imminent death. These procedures, as discusseda'tKlve, involve the use of muscle f


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T O ~ Z E T both stand and sit, he may be placed ir; tbis box tOfUP to eighteen hons at a time, whi.le you haveinformed us that he will never spend more thq1 an lIour a't time in the smaller box. These timelimits further ensure that no profound disruption of ;fie senses or personality, were it evenpossible, ,vauld result. As such, the use cfthe confinement boxes does not constitute aprocedure calculated to disn.:pt profoundly the senses or personality.

Nor docs the use oj" the boxeS threaten Zubaydah with Severe pbysical pain or suffering.\Vhi le 2,dditionui time spent in the boxes may be threatened, their use is no t accompnnied by anyc


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the intended result. His mere reduced ability to evade your questions and resist answering cloesnot, however, rise to the level of disruption required by the statute. As 'we explained above, adisruption within the meaning of the statute is an extreme one, substantially interfering wilh anindividual' s cogni tive abilities, for exam.pte, inducing hallucinations, or driving him to engage inuncharacteristic seif-destructive behavior. See infra 13; Section 2340A M.emorandum at ! l.Therefore, the limited US t of sleep deprivation does not cOllstitme Olie orthe required predicate

Vie tind that the use ofthe waterboard constitutes t: threar of lrnminent death. As youhayc explained the waterboard procedure to us, it creates in the subject the u n c O l l ~ r o H a b l e physiological sensation that the subject is drowning. Although the p::ocedure will be m.onitoredb;-' personnel with medical training and extensive SERE s,:hool experience with this procedure\vbo win ensure the subject's menta] and physical safety, the SU!:0ect is no t aware of any of theseprf:C(lutions. From the vanL:lge point of any reasonable person undergoing this procedure in suchc:rcUIllst:;mces, he would feel as ifhe is drov-/ning at very rnoment of the procedure due to theuncontroliable physiological senscJiol1 he is experiencing. T l 1 U ~ . (hi:; procedure cannot bevic'..vec as too uncertain to s[i1:1siy the irn.!1iinence requirement. A.ccordingly, it constitutes athreat of imminent d';;alh aEd rJlfiHs the predicate act requircment under the statute.

Although tbe \vaterboard constitutes a threat of imminent dealh, prolonged mentaL harmmust nonetheless result to violate the statutory prohibition on infliction of severe mental pain orsuffering. See Section 2340li. Memotandum at 7. \Ve have previously concluded .that prolongedmenJai hann is mental hann of some lasting duration, e.g., mental harm lasting months or years.See id. Pro] onged men:tal harm is not simply the stress experienced in, for example, aninterrogation by state police. See id. Based on your research imo the use ofthese methods at theSEFE school and consultation with others with expertise in the field ofps:yc!:loIogy andinterrogation, you do not anticipate that any prc.longed mental harm would result trom the use ofthe \\'aterboard. Indeed, you have advised us that the relief is almost immediate when the cloth isrt'moved from the nose and mouth. In the absence of prolonged mental harm, no severe mentalr;,in or c.l1ffr.rinc, WOllIn hr,vi': h t ~ ( ~ n inflicted, and the use ofth'::sc p r ( \ C , e . d ~ l r e s wQu.ldn.ot c.onstiwu;tortu;-e within the memling of the statute.

\Tihen these acts are con.sidered as a ('ourse of conduct, we arc unsure whether these actsmay constitute a threat of severe physical pain or suffering. YOll have indicated to us that youhave not determined either the o;der or the precise timing for imp\crneming tbese procedures, Itis conceivable that these procedures could be used in a course of escal.aling conduct, movingincrementally and rapidly [rom least pbysically intrusive, e.g., facia! hold, to the most physicalcontact, e.g., walling or the \vmerboa:-d. As we understand it, ba5cd. on his lreatment So far,Zubaydah has come t(1 expect tbat no physical ham] will be done to him. By using theseted1J:1iques in increasing intensity and in rapid succession, the goal 'NoLld be to dislodge thiscxpectation. Based on the facts you have provided to us, we cannot say definitively that theentire course of conduct \vould cause a reasonable person to believe that he is being threatened

T O ~ R E T IS


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T ~ T \ , , i j ( j ~ severe p3in or suffering \l,'ithin the mcmling of section :340. On the other hand, however.i.mder certain circurnstances-fGf eXJJ:lple, rapid escalalion i:, the use of these r.echniquesculn,inaling in the waterboard (',,;,'jlich we acknowledge constitutes a thr.eat of imluinent death)3ccompanied by verbal. or other suggestions that physical violence wiii [oHow-might cause areasonable person to believe that they arc faced with such a threat. Without more infonnation,we are uncertain \vheiher the course of conduct would constitute a predicate act under Section2340(2).

Even ifrhe course of conduct were thought to pose a thr


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T O ~ R E T whipiash and he will be permitted w rebound from the flexible wail to reduce the li.kelihood ofinjury. Similarly, in the "facial hold;' the fingertips will be kept well a'Nay from the his eyes toensure that there is no injury to them. The purpose of that facial hold is not injure him but tohold the head imrnobile. Additionally, vlihile: the stress positions and waH sl2.rlciing willundoubtedly result in physical discomfort by tiring tbe muscles, it is obvious that these positions, ~ t e nOt 111iende;d to produce the kind of e:\Lreme pain required by the statute.

Funhermore: no fpeeiftc intent to cause severe menta'! pain or s:Jfiering appears to bepresent. As \,ve explained in our recent opinion, an individual must helVe the specific intent tocause prolonged mental harm in order to have the specitlc intent LU inflicl severe mental pain orsuffering. See Section 2340A i\1emGfc.nduDl al 8. Prolonged mental ham) is substantial mentaln3nn of a sustained duration, e.g., harm lasting months or even years after the acts were inflictedupon the prisoner. As \,ve indicated above, a good faith belief can negate this element.Accordingly, if an individual conducting the interrogation has a good faith belief that theprocedures he will apply, separately or together, would not re.Sl1it in prolonged menta! harm, thatin ..iividuallacks the requisite specific intent. This conclusion concerning specific intent is furtherbolstered by the due diligence that ha.s been conducted conccming the effects of theseinterrogation procedures.

The mental health experts '(hat you have consulted have indicated that the psychologicalim.pact of a course of conduct must be assessed \-vith reference to the subject's psychologicalhistory and CUlTeUL mental hec.lth statllS. The healthier th.e individual: the iess likely that the useof anyone procedure or set of procedUres as a course of conduct will restill in prolonged mentalharm. A. comprehensive psychological profile of Zubaydah has been cremed. In creating thisprofile, your personl1ci drev./ 011 direct interviews, Zubaydah's diaries, observation of Zubaydah

and

!\ s we indicated above, you have informed llS that your proposed lnterrogatiollll1cthodshave been used and continue tQ be used in SERE training. It is our understanding that thesekc.hniolJCs are not used one by one in isolation, but as a ill!! course { I f conduct m resemble a reali n t ' ~ r r o g a t i o n . Thus: the information derived from SERE tralning bears both upon the in1pact ofthe use of the individual techniques and upon their use. as a course ofcollducL YOLl have foundthat the use of these methods together or separately, i.ncluding the use of the waterboard, has Dotresulted in any negative long-term mental health consequences. TbeGontiuued use of thesemethods without met1ml hc.alLh C()Hsequenc:e


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tkt such consequences would result here, Because you have conducted the due diligence todet.e:mine that these procedures: eil.her alone or in combination, do not produce prolonged meEtalhiHm, \\le believe that you de not meet the specific intent rcquiremcnl necessary to violRt:eSection 2340A,

You have also informed us that you have: revie'Ned the relevant literature on the subject,and consulted with uutside psycho!ogtsts. Your review of the literature uncovered tlO empiricaldata on the use of these procedures, with the cxcepti.on of sleep deprivarion for 'Nhich no l o n g ~ rernl health consequences resulted. The outside psychologists 'I';(t11 'whom you consultedindicated \\'Crc un8.v-;arC of any cases where long-term problems have occurred as a result ofttlesetechniques.

As described above, it appears you have conducted [c,n extensive inquiry to ascertain whatimpact, if any, these procedures individually and as a course of conduct would have onZubaydah. You have cOIisulteD witb interrogation experts, including those with substantialSERE school experience, consulted with outside psychologists, comple(cd a psychQlogical2.Ssessment and reviewed the relevam literature on this topic. Based on this inquiry, you believethat the use of the procedures, including the waterboard, and as a course of c.onduct would notresult in prolonged mental harm. Reliance on tbjs infol1nation aboq Zubaydah and about theeffect of the use of these techniques more generaHy demonstrates tbe presence of a good faithbelief tbat no prolonged mental barm will result from using these methods in the i11terrogatioll ofZubaydah. Moreover, we think that lhis represents not only an honest bel ief but also areasonable belief based on the infor:nationthat you have supp:ied to LlS. Thu.s, \VC believe thatthe specific intent to inflict prolonged mental is not preserJt, arlG consequently, there is nospecific intent to inflict severe mentai pain or sufiertug. Accordingly, we conclude that on thefacts in this case the USt ofthese methods separately or a course of conduct woutd not viOlateSection 2340A.

Based on the foregoing, and based on the facts that you have provided, we conclude thatthe interrogation procedures tlmt you propose would nOT violate Section 2340A. We wish toemphasize that this is our best reading of the la\\.; however, you should be aware that there are nocases construing this statll'le; just as there have been no prosecutions brought under i t

Pkase let us know if'vve can be of rurther assistance.

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torture memo: interrogation of an al qaeda operative

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