[Congressional Record: April 22, 2009 (Senate)]
[Page S4561-S4566]
(At the request of Mr. Reid, the following statement was ordered to
be printed in the Record.)
DEPARTMENT OF JUSTICE OPINIONS ON CIA'S DETENTION AND INTERROGATION
PROGRAM
Mr. ROCKEFELLER. Mr. President, today Chairman Dianne
Feinstein and I, with the agreement of Vice Chairman Kit Bond, have
posted on the Web site of the Senate Select Committee on Intelligence,
a document newly declassified by the Obama administration. I ask that
this document be printed in the Record at the end of my remarks.
In so doing we conclude an effort that I began as chairman of the
committee in the last Congress to provide to the public an initial
narrative of the history of the interrogation and detention opinions of
the Department of Justice's--DOJ--Office of Legal Counsel, OLC.
I applaud President Obama's decisive action last week not only to
release four of the OLC opinions discussed in our narrative but also to
state firmly our Nation's support for the front-line intelligence
professionals who relied on that legal advice in good faith. I couldn't
agree more.
Three of these OLC documents are among those that I sought for the
committee starting as far back as 2005, when it became increasingly
clear to me that Congress had not been given complete information
regarding the Bush administration's interrogation policies and
practices.
I said publicly in July of 2005 and still firmly believe today that
secret legal opinions that are kept even from oversight by the Congress
can lead to great error. In the years since then I--together with
Chairman Feinstein and others--have sought within the committee, on the
Senate floor, and in
[[Page S4562]]
written demands to the Bush administration to launch a comprehensive
investigation of these issues and to advance legislation to end
coercive interrogation practices.
Now, thanks to President Obama's wise decision and to the ongoing
work of the Senate Intelligence Committee, we have at last begun the
task of fully setting the record straight, holding our government
accountable, and learning from past errors in order to protect our
country into the future.
Let me be clear--in the wake of 9/11 we all wanted to leave no stone
unturned in our pursuit of terrorists to prevent future attacks. At
that time and since, the Senate Intelligence Committee sought to work
in partnership with the administration to keep America safe. But we now
know that essential information was withheld from the Congress on many
matters and decisions were made in secret by senior Bush administration
officials to obscure the complete picture.
It is my hope and intention that the document we release today helps
to fill in some of the facts, even as many other pieces of the puzzle
are brought forth.
The genesis of this document is as follows:
Last year, I sought declassification of the August 1, 2002, OLC
opinion, along with a short contextual narrative to accompany it. While
declassification of that opinion was resisted, we engaged instead in a
joint effort with Attorney General Michael B. Mukasey to declassify a
broader narrative surrounding all of the OLC's opinions on these
matters.
The objective was to produce a text that describes the key elements
of the opinions and sets forth facts that provide a context for those
opinions, within the boundaries of what the DOJ and the Intelligence
Community would recommend in 2008 for declassification.
By late 2008, the DOJ, the Director of National Intelligence--DNI--
and the Central Intelligence Agency--CIA--all had approved the public
release of this narrative, but the Bush Administration National
Security Council--NSC--held it and would not agree to its
declassification.
I renewed the declassification effort as soon as Attorney General
Eric Holder took office in early February 2009, and I am pleased to
have received the support again of the DOJ, DNI and CIA, and now also
of the NSC, for its release as a contextual description of the OLC
memos.
Readers of the narrative should bear in mind that its text is current
through President Obama's Executive orders of January 22, 2009, but has
not been revised following the release of the four OLC opinions on
April 16, 2009. While there is now more public information available
about those four opinions, the narrative adds important facts about the
approval of the interrogation program beginning in 2002 and about
opinions subsequent to the four that have been released.
For the moment, I would like to note three points that emerge from
the narrative: First, the records of the CIA demonstrate that the
lawyers at the Office of Legal Counsel--OLC--did not operate in a
vacuum. Key legal officials at the CIA, NSC, DOJ's Criminal Division,
the Office of White House Counsel, all participated in meetings leading
to the approval of methods used by the CIA. The then Vice President and
the National Security Adviser are at the center of the discussions.
But, strikingly, unless there is a further story in records not yet
shown to us, the Secretary of State and the Secretary of Defense, were
not involved in the decision making process despite the high stakes for
U.S. foreign policy and for the treatment of the U.S. military.
Second, the narrative and the May 30, 2005, opinion demonstrate that
the Detainee Treatment Act of December 2005, was substantially
undermined by the May 30, 2005, OLC opinion. The Bush administration
had already construed the main provisions of the act to authorize its
full gamut of coercive techniques.
Third, the narrative demonstrates that the job of declassifying the
interrogation and detention opinions of the OLC is not complete. There
were important opinions in 2006 and 2007 that will, among other things,
show how OLC interpreted the Detainee Treatment Act and the war crimes
amendments of the Military Commissions Act of 2006, and Common Article
3 of the Geneva Conventions. The prompt declassification of those
opinions, accompanied by their withdrawal as valid OLC opinions, is
essential to completing the progress achieved by the President's
declassification and the Attorney General's withdrawal of four opinions
last week.
Finally, I am gratified that the release of the August 2002 and May
2005 opinions, followed by the release of this narrative of the history
of OLC opinions from 2002 to 2007, are themselves but first steps.
In this new environment, and with the shared determination of our new
chairman, the Senate Intelligence Committee is undertaking a major
review not only of the origin of the detention and interrogation
program but also of its actual implementation. We will be asking
probing questions about what took place during interrogations and what
intelligence was gained from detainees. We will also be examining what
was told to the Congress, including both the content and the
limitations on the briefings that were provided.
It is long overdue but certainly not too late. As we enter a new
period committed to openness and change, and bid farewell to the former
administration's obscurity and dishonesty, there is the potential for
great progress in our intelligence and national security activities.
The trust between the executive branch and the Congress was breached,
and the trust and confidence of the American people has been eroded.
But I remain confident that if we restore the vital role of the
Congress in overseeing our intelligence activities, we can bridge the
divide, restore integrity, and get back to the business of lawfully and
effectively securing this great Nation.
The material follows:
There being no objection, the material was ordered to be printed in
the Record, as follows:
Office of the Attorney General,
Washington, DC, April 17, 2009.
Hon. John D. Rockefeller IV,
Senate. Select Committee on Intelligence,
Washington, DC.
Dear Senator Rockefeller: This responds to your letter of
February 3, 2009, which requested declassification and
release of a narrative regarding advice provided by the
Department to the Central Intelligence Agency on the legality
of the CIA's use of certain interrogation techniques.
As you know, we have worked with Committee staff in
reviewing the narrative for this purpose and we are pleased
to advise you that this process has now been completed. We
are transmitting the now declassified narrative to you with
this letter for the further action necessary in order to
disclose the document.
We appreciate the leadership that you and the Senate Select
Committee on Intelligence have demonstrated on these
important issues. We also are grateful for your patience as
we have worked through the process leading to this
declassification.
Sincerely,
Eric H. Holder, Jr.,
Attorney General.
Enclosure.
____
Release of Declassified Narrative Describing the Department of Justice
Office of Legal Counsel's Opinions on the CIA's Detention and
Interrogation Program
(Senator John D. Rockefeller IV, April 22, 2009)
PREFACE
The release of the following declassified narrative
completes an effort that I began last year as Chairman of the
Select Committee on Intelligence. The document is an effort
to provide to the public an initial narrative of the history
of the opinions of the Department of Justice's Office of
Legal Counsel (OLC), from 2002 to 2007, on the legality of
the Central Intelligence Agency's detention and interrogation
program.
In August 2008, I asked Attorney General Michael B. Mukasey
to join the effort to create such an unclassified narrative.
The Attorney General committed himself to the endeavor,
saying that if we failed it would not be for want of effort.
Over the next months, Committee counsel and representatives
of the Department of Justice, CIA, Office of the Director of
National Intelligence, and the office of the Counsel to the
President discussed potential text. The shared objective was
to produce a text that, putting aside debate about the merits
of the OLC opinions, describes key elements of the opinions
and sets forth facts that provide a useful context for those
opinions, within the boundaries of what the Department of
Justice (DOJ) and the Intelligence Community would recommend
in 2008 for declassification.
The understanding of the participants was that while the
final product would be a Legislative Branch document, the
collaborative nature of this process would provide the
Executive Branch participants with the opportunity to ensure
its accuracy. Before the end
[[Page S4563]]
of the year, this process produced a narrative whose
declassification DOJ, the DNI and the CIA supported. However,
the prior Administration's National Security Council did not
agree to declassify the narrative.
I renewed this effort in early February as soon as Attorney
General Eric H. Holder, Jr., took office. Except for this
preface, some minor edits, and the addition of a final
paragraph to bring the narrative up to date as of President
Obama's Executive Orders of January 22, 2009, this document
is the same as the one that secured support for
declassification last year. This declassification, which
National Security Adviser James L. Jones effected on April
16, 2009 and Attorney General Holder transmitted to the
Committee on April 17, 2009, is supported again by the DOJ,
the DNI, and the CIA. Because the text of the narrative was
settled prior to the release on April 16, 2009 of the
declassified OLC opinions from August 2002 and May 2005, the
narrative does not include additional information from those
opinions that is now in the public domain.
John D. Rockefeller IV.
____
OLC Opinions on the CIA Detention and Interrogation Program
Submitted by Senator John D. Rockefeller IV for Classification Review
On May 19, 2008, the Department of Justice and the Central
Intelligence Agency (CIA) provided the Committee with access
to all opinions and a number of other documents prepared by
the Office of Legal Counsel of the Department of Justice
(OLC) concerning the legality of the CIA's detention and
interrogation program. Five of the documents provided
addressed the use of waterboarding. Committee Members and
staff reviewed these documents over the course of several
weeks; however, the Committee was not allowed to retain
copies of the OLC documents about the CIA's interrogation and
detention program.
The Committee had previously received one classified OLC
opinion--an August 1, 2002, OLC opinion--in May 2004 as an
attachment to a special review issued by the CIA's Inspector
General on the CIA's detention and interrogation program. The
opinion is marked as ``Top Secret.'' The Executive Branch
initially provided access to this review and its attachments
to the Committee Chairman and Vice Chairman and staff
directors. On September 6, 2006, all Members of the Committee
obtained access to the Inspector General's review. The August
1, 2002, opinion is currently the only classified OLC opinion
in the Committee's possession as to the legality of the CIA's
interrogation techniques.
The capture of Abu Zubaydah and the initiation of the CIA detention and
interrogation program
In late March 2002, senior Al-Qa'ida operative Abu Zubaydah
was captured. Abu Zubaydah was badly injured during the
firefight that brought him into custody. The CIA arranged for
his medical care, and, in conjunction with two FBI agents,
began interrogating him. At that time, the CIA assessed that
Abu Zubaydah had specific information concerning future Al-
Qa'ida attacks against the United States.
CIA records indicate that members of the National Security
Council (NSC) and other senior Administration officials were
briefed on the CIA's detention and interrogation program
throughout the course of the program. In April 2002,
attorneys from the CIA's Office of General Counsel began
discussions with the Legal Adviser to the National Security
Council and OLC concerning the CIA's proposed interrogation
plan for Abu Zubaydah and legal restrictions on that
interrogation. CIA records indicate that the Legal Adviser to
the National Security Council briefed the National Security
Adviser, Deputy National Security Adviser, and Counsel to the
President, as well as the Attorney General and the head of
the Criminal Division of the Department of Justice.
According to CIA records, because the CIA believed that Abu
Zubaydah was withholding imminent threat information during
the initial interrogation sessions, attorneys from the CIA's
Office of General Counsel met with the Attorney General, the
National Security Adviser, the Deputy National Security
Adviser, the Legal Adviser to the National Security Council,
and the Counsel to the President in mid-May 2002 to discuss
the possible use of alternative interrogation methods that
differed from the traditional methods used by the U.S.
military and intelligence community. At this meeting, the CIA
proposed particular alternative interrogation methods,
including waterboarding.
The CIA's Office of General Counsel subsequently asked OLC
to prepare an opinion about the legality of its proposed
techniques. To enable OLC to review the legality of the
techniques, the CIA provided OLC with written and oral
descriptions of the proposed techniques. The CIA also
provided OLC with information about any medical and
psychological effects of DoD's Survival, Evasion, Resistance
and Escape (SERE) School, which is a military training
program during which military personnel receive counter-
interrogation training.
On July 13, 2002, according to CIA records, attorneys from
the CIA's Office of General Counsel met with the Legal
Adviser to the National Security Council, a Deputy Assistant
Attorney General from OLC, the head of the Criminal Division
of the Department of Justice, the chief of staff to the
Director of the Federal Bureau of Investigation, and the
Counsel to the President to provide an overview of the
proposed interrogation plan for Abu Zubaydah.
On July 17, 2002, according to CIA records, the Director of
Central Intelligence (DCI) met with the National Security
Adviser, who advised that the CIA could proceed with its
proposed interrogation of Abu Zubaydah. This advice, which
authorized CIA to proceed as a policy matter, was subject to
a determination of legality by OLC.
On July 24, 2002, according to CIA records, OLC orally
advised the CIA that the Attorney General had concluded that
certain proposed interrogation techniques were lawful and, on
July 26, that the use of waterboarding was lawful. OLC issued
two written opinions and a fetter memorializing those
conclusions on August 1, 2002.
August 1, 2002 OLC Opinions
On August 1, 2002, OLC issued three documents analyzing
U.S. obligations with respect to the treatment of detainees.
Two of these three documents were unclassified: an
unclassified opinion interpreting the federal criminal
prohibition on torture, and a letter concerning U.S.
obligations under the Convention Against Torture and the Rome
Statute. Those two documents were released in 2004 and are
publicly available.
The third document issued by OLC was a classified legal
opinion to the CIA's Acting General Counsel analyzing whether
the use of the interrogation techniques proposed by the CIA
on Abu Zubaydah was consistent with federal law. OLC had
determined that the only federal law governing the
interrogation of an alien detained outside the United States
was the federal anti-torture statute. The opinion thus
assessed whether the use of the proposed interrogation
techniques on Abu Zubaydah would violate the criminal
prohibition against torture found at Section 2340A of title
18 of the United States Code. The Department of Justice
released a highly redacted version of this opinion in July
2008 in response to a Freedom of Information Act lawsuit.
The classified opinion described the interrogation
techniques proposed by the CIA. Only one of these
techniques--waterboarding--has been publicly acknowledged. In
addition to describing the form of waterboarding that the CIA
proposed to use, the opinion discusses procedures the CIA
identified as limitations as well as procedures to stop the
use of interrogation techniques if deemed necessary to
prevent severe mental or physical harm. Although a form of
``waterboarding'' has been employed on U.S. military
personnel as part of the SERE training program, the Executive
Branch considers classified the precise operational details
concerning the CIA's form of the technique.
The opinion also outlined the factual predicates for the
legal analysis, including the CIA's background research on
the proposed techniques and their possible effect on the
mental health of Abu Zubaydah. The opinion described the
information provided by the CIA concerning whether
``prolonged mental harm'' would be likely to result from the
use of those proposed procedures. Because the military's SERE
training program, like the CIA program, involved a series of
stressful interrogation techniques (including a form of
waterboarding) the opinion discussed inquiries and statistics
relating to possible adverse psychological reactions to SERE
training.
The anti-torture statute prohibits an act ``specifically
intended'' to inflict ``severe physical or mental pain or
suffering.'' The opinion separately considered whether each
of the proposed interrogation techniques, individually or in
combination, would inflict ``severe physical pain or
suffering'' or ``severe mental pain or suffering.'' The
opinion also considered whether individuals using the
techniques would have the mental state necessary to violate
the statute.
The opinion concluded that none of the techniques
individually was likely to cause ``severe physical pain or
suffering'' under the statute. With respect to waterboarding,
the OLC opinion concluded that the technique would not
inflict ``severe physical pain or suffering'' because it does
not inflict actual physical harm or physical pain. The
opinion concluded that, although OLC did not then believe
physical suffering to be a concept under the statute distinct
from physical pain, waterboarding would not inflict severe
suffering, because any physical effects of waterboarding did
not extend for the protracted period of time generally
required by the term ``suffering.''
The OLC opinion also concluded that none of the techniques
would constitute ``severe mental pain or suffering'' as that
term is defined under the anti-torture statute. The opinion
concluded that under the anti-torture statute, ``severe
mental pain or suffering'' requires the occurrence of one of
four specified predicate acts, as well as ``prolonged mental
harm.'' The opinion interpreted ``prolonged mental harm'' to
require harm of some lasting duration, such as mental harm
lasting months or years.
With respect to waterboarding, based on information
provided by the CIA, the OLC opinion assessed whether it
constituted, as a legal matter, one of the four predicate
acts under the mental harm component of the anti-torture
statute. The opinion concluded that the technique would not
cause ``severe mental pain or suffering'' because, based on
the U.S. military's experience with the form of 5
waterboarding used in its SERE program, the CIA did not
anticipate that
[[Page S4564]]
waterboarding would cause prolonged mental harm.
After evaluating the proposed techniques individually, the
OLC opinion considered whether the combined use of the
proposed interrogation techniques would cause ``severe
physical pain or suffering'' or ``severe mental pain or
suffering.'' OLC concluded that the combined use of the
interrogation techniques would not constitute severe physical
pain or suffering, because individually the techniques fell
short of and would not be combined in such a way as to reach
that threshold. The opinion concluded that OLC lacked
sufficient information concerning the proposed use of the
techniques to assess whether their combined use might inflict
one of the predicate conditions for severe mental pain or
suffering. The opinion concluded, however, that even if a
predicate condition would be satisfied, it would not violate
the prohibition because there was no evidence that the
proposed course of conduct would produce any prolonged mental
harm.
Finally, the opinion addressed whether an individual
carrying out the proposed interrogation procedures would have
the specific intent to inflict severe physical or mental pain
or suffering required by the statute. It concluded that the
interrogator would not have the requisite intent because of
the circumstances surrounding the use of the techniques,
including the interrogator's expectation that the techniques
would not cause severe physical or mental pain or suffering,
and the CIA's intent to include specific precautions to
prevent serious physical harm.
For those reasons, the classified opinion concluded that
none of the proposed interrogation techniques, used
individually or in combination, would violate the criminal
prohibition against torture found at section 2340A of title
18 of the United States Code.
Events after issuance of August 1, 2002 OLC opinion
According to CIA records, after receiving the legal
approval of the Department of Justice and approval from the
National Security Adviser, the CIA went forward with the
interrogation of Abu Zubaydah and with the interrogation of
other high-value Al-Qa'ida detainees who were then in, or
later came into, U.S. custody. Waterboarding was used on
three detainees: Abu Zubaydah, Abd alRahim al-Nashiri, and
Khalid Sheikh Muhammad. The application of waterboarding to
these detainees occurred during the 2002 and 2003 timeframe.
In the fall of 2002, after the use of interrogation
techniques on Abu Zubaydah, CIA records indicate that the CIA
briefed the Chairman and Vice Chairman of the Committee on
the interrogation. After the change in leadership of the
Committee in January of 2003, CIA records indicate that the
new Chairman of the Committee was briefed on the CIA's
program in early 2003. Although the new Vice-Chairman did not
attend that briefing, it was attended by both the staff
director and minority staff director of the Committee.
According to CIA records, the Chairman and Vice Chairman of
the Committee were also briefed on aspects of the program
later in 2003, after the use of interrogation techniques on
Khalid Sheikh Muhammad.
In the spring of 2003, the DCI asked for a reaffirmation of
the policies and practices in the interrogation program. In
July 2003, according to CIA records, the NSC Principals met
to discuss the interrogation techniques employed in the CIA
program. According to CIA records, the DCI and the CIA's
General Counsel attended a meeting with the Vice President,
the National Security Adviser, the Attorney General, the
Acting Assistant Attorney General for the Office of Legal
Counsel, a Deputy Assistant Attorney General, the Counsel to
the President, and the Legal Adviser to the National Security
Council to describe the CIA's interrogation techniques,
including waterboarding. According to CIA records, at the
conclusion of that meeting, the Principals reaffirmed that
the CIA program was lawful and reflected administration
policy.
According to CIA records, pursuant to a request from the
National Security Adviser, the Director of Central
Intelligence subsequently briefed the Secretary of State and
the Secretary of Defense on the CIA's interrogation
techniques on September 16, 2003.
In May 2004, the CIA's Inspector General issued a
classified special review of the CIA's detention and
interrogation program, a copy of which was provided to the
Committee Chairman and Vice Chairman and staff directors in
June of 2004. The classified August 1, 2002, OLC opinion was
included as an attachment to the Inspector General's review.
That review included information about the CIA's use of
waterboarding on the three detainees.
After the issuance of that review, the CIA requested that
OLC prepare an updated legal opinion that incorporated actual
CIA experiences and practice in the use of the techniques to
date included in the Inspector General review, as well as
legal analysis as to whether the interrogation techniques
were consistent with the substantive standards contained in
the Senate reservation to Article 16 of the Convention
Against Torture.
Article 16 of the Convention Against Torture requires
signatories to ``undertake to prevent in any territory under
its jurisdiction other acts of cruel, inhuman and degrading
treatment which do not amount to torture.'' The Senate
reservation to that treaty defines the phrase ``cruel,
inhuman and degrading treatment'' as the treatment prohibited
by the Fifth, Eighth, and Fourteenth Amendments to the
Constitution. Thus, the CIA requested that OLC assess whether
the interrogation techniques were consistent with the
substantive provisions of the due process clause, as well as
the constitutional requirement that the government not
inflict cruel or unusual punishment.
In May 2004, after the issuance of the Inspector General
review, CIA records indicate that the CIA's General Counsel
met with the Counsel to the President, the Counsel to the
Vice President, the NSC Legal Adviser, and senior Department
of Justice officials about the CIA's program and the
Inspector General review.
In June 2004, OLC withdrew its unclassified August 1, 2002,
opinion on the anti-torture statute. OLC did not, however,
withdraw the classified August 1, 2002 opinion, because it
concluded that the classified opinion was narrower in scope
than the unclassified opinion that was withdrawn. The
classified opinion applied the anti-torture statute to the
CIA's specific interrogation methods, but, unlike the
unclassified August 1, 2002, opinion, it did not rely on or
interpret the President's Commander in Chief power or
consider whether torture could be lawful under any
circumstances.
In July 2004, the CIA briefed the Chairman and Vice
Chairman of the Committee on the facts and conclusions of the
Inspector General special review. The CIA indicated at that
time that it was seeking OLC's legal analysis on whether the
program was consistent with the substantive provisions of
Article 16 of the Convention Against Torture.
According to CIA records, subsequent to the meeting with
the Committee Chairman and Vice Chairman in July 2004, the
CIA met with the NSC Principals to discuss the CIA's program.
At the conclusion of that meeting, it was agreed that the CIA
would formally request that OLC prepare a written opinion
addressing whether the CIA's proposed interrogation
techniques would violate substantive constitutional
standards, including those of the Fifth, Eighth and
Fourteenth Amendments regardless of whether or not those
standards were deemed applicable to aliens detained abroad.
DOJ Advice from June 2004 to May 2005
Following the withdrawal of the unclassified August 1,
2002, opinion in June 2004, OLC began work on preparing an
unclassified opinion concerning its interpretation of the
anti-torture statute. At the same time, in accord with the
request described above, OLC worked on classified opinions
that would evaluate the specific techniques of the CIA
program, individually and in combination, under its revised
interpretation of the anti-torture statute, as well as an
opinion that would evaluate whether the program was
consistent with the substantive provisions of Article 16 of
the Convention Against Torture.
On July 14, 2004, in unclassified written testimony before
the House Permanent Select Committee on Intelligence, an
Associate Deputy Attorney General explained the Department of
Justice's understanding of the substantive constitutional
standards embodied in the Senate reservation to Article 16 of
the Convention Against Torture. The official's written
testimony stated that under Supreme Court precedent, the
substantive due process component of the Fifth Amendment
protects against treatment that ``shocks the conscience.'' In
addition, his testimony stated that under Supreme Court
precedent, the Eighth Amendment protection against Cruel and
Unusual Punishment has no application to the treatment of
detainees where there has been no formal adjudication of
guilt.
While OLC worked on drafting new opinions with respect to
the CIA program, the CIA continued its interrogation of high-
value Al-Qa'ida detainees in U.S. custody. On July 22, 2004,
the Attorney General confirmed in writing to the Acting
Director of Central Intelligence that the use of the
interrogation techniques addressed by the August 1, 2002,
classified opinion, other than waterboarding, would not
violate the U.S. Constitution or any statute or treaty
obligation of the United States, including Article 16 of the
Convention Against Torture. On August 6, 2004, the Acting
Assistant Attorney General for OLC advised in writing that,
subject to the CIA's proposed limitations, conditions and
safeguards, the CIA's use of waterboarding would not violate
any of those legal restrictions. The letter noted that a
formal written opinion would follow explaining the basis for
those conclusions. According to the CIA, the CIA nonetheless
chose not to use waterboarding in 2004. Waterboarding was not
subsequently used on any detainee, and was removed from CIA's
authorized list of techniques sometime after 2005.
On December 30, 2004, the Office of Legal Counsel issued an
unclassified opinion interpreting the federal criminal
prohibition against torture, 18 USC 2340-2340A, superseding
in its entirety the withdrawn August 1, 2002, unclassified
opinion. That December 30, 2004, opinion included a footnote
stating ``While we have identified various disagreements with
the August 2002 Memorandum, we have reviewed this Office's
prior opinions addressing issues involving treatment of
detainees and do not believe that any of their conclusions
would be different under the standards set forth in this
memorandum.''
In January of 2005, in response to a question for the
record following his confirmation hearing, Attorney General
Gonzales indicated that ``the Administration . . . wants
[[Page S4565]]
to be in compliance with the relevant substantive
constitutional standard incorporated in Article 16 [of the
Convention Against Torture], even if such compliance is not
legally required.'' Attorney General Gonzales further
indicated that ``the Administration has undertaken a
comprehensive legal review of all interrogation prac-
tices. . . . The analysis of practices under the standards of
Article 16 is still under way.''
The CIA briefed the Chairman and Vice Chairman of the
Committee on the CIA's interrogation program again in March
2005. At that time, the CIA indicated that it was waiting for
a revised opinion from OLC.
May 2005 Opinions
In May 2005, OLC issued three classified legal opinions
analyzing the legality of particular interrogation
techniques. The first legal opinion analyzed the legality of
particular interrogation techniques, including waterboarding,
under the interpretation of the federal criminal prohibition
against torture set forth in the December 30, 2004,
unclassified opinion. The May 2005 opinion includes
additional facts about the proposed techniques and a more
extensive description of the applicable legal standards than
the August 1, 2002, opinion.
With respect to waterboarding, the opinion concluded that
while the technique presented a substantial question under
the statute, the authorized use of waterboarding, when
conducted with measures identified by the CIA as
safeguards and limitations, would not violate the federal
criminal prohibition against torture. To understand the
possible effects of waterboarding, the May 2005 opinion
relied on the military's experience in the administration
of its form of the technique on American military
personnel who had undergone SERE training, while
recognizing some limitations with that reliance, such as
the expectations of the individual going through the
practice. The opinion also relied on the CIA's experience
with the use of its form of waterboarding on the three
detainees in 2002 and 2003.
The opinion concluded that waterboarding does not cause
``severe physical pain'' because it is not physically
painful. It further reasoned that the CIA's form of
waterboarding could not reasonably be considered specifically
intended to cause ``severe physical pain.'' The opinion also
concluded that under the limitations and conditions adopted
by the CIA, the technique would not be expected to cause
distress of a sufficient intensity and duration to constitute
``severe physical suffering,'' which the December 30, 2004
unclassified opinion had recognized to be a separate element
under the federal anti-torture statute. The opinion concluded
that waterboarding would not cause ``severe mental pain or
suffering'' because OLC understood from the CIA that any
mental harm from waterboarding would not be ``prolonged,''
even if it met a predicate condition under the statute.
OLC's second legal opinion issued in May 2005 addressed the
legality of the combined use of particular techniques,
including waterboarding, under the criminal prohibition
against torture. That opinion relied on information provided
by the CIA concerning the manner in which the individual
techniques were proposed to be combined in the CIA program.
After considering the combined use of techniques as described
by the CIA, OLC concluded that the combined use of the
proposed techniques by trained interrogators would not be
expected to cause the severe mental or physical pain or
suffering required by the criminal prohibition against
torture.
OLC's third legal opinion in May 2005 assessed the legality
of particular interrogation techniques under Article 16 of
the Convention Against Torture. The Executive Branch had
previously concluded that Article 16 does not apply to
detainees, such as those in CIA custody, who were held
outside territory under U.S. jurisdiction. Nonetheless, as
articulated in the January 2005 testimony of the Attorney
General, the Executive Branch had decided to comply, as a
matter of policy, with the relevant substantive
constitutional standards incorporated in Article 16. Because
of that policy determination, and because of the CIA's
request that OLC address the substantive ``cruel, inhuman or
degrading'' standard, OLC analyzed whether a number of
interrogation techniques, including waterboarding, would
violate the substantive constitutional standards contained in
the Senate reservation to CAT.
The May 2005 opinion on Article 16 concluded that the CIA's
use of interrogation techniques, including waterboarding, on
senior members of al-Qa'ida with knowledge of, or involvement
in, terrorist threats would not be prohibited by the Fifth,
Eighth or Fourteenth Amendments under the particular
circumstances of the CIA program. OLC concluded that with
respect to the treatment of detainees in U.S. custody, who
had not been convicted of any crime, the relevant
constitutional prohibition was the ``shocks the conscience''
standard of the substantive due process component of the
Fifth Amendment. Under the ``shocks the conscience''
standard, OLC concluded that Supreme Court precedent requires
consideration as to whether the conduct is ``arbitrary in the
constitutional sense'' and whether it is objectively
``egregious'' or ``outrageous'' in light of traditional
executive behavior and contemporary practices.
To assess whether the CIA's interrogation program was
``arbitrary in the constitutional sense,'' OLC asked whether
the CIA's conduct of its interrogation program was
proportionate to the governmental interests involved.
Applying that test, OLC concluded that the CIA's
interrogation program was not ``arbitrary in the
constitutional sense'' because of the CIA's proposed use of
measures that it deemed to be ``safeguards'' and because the
techniques were to be used only as necessary to obtain
information that the CIA reasonably viewed as vital to
protecting the United States and its interests from further
terrorist attacks.
OLC also concluded that the techniques in the CIA program
were not objectively ``egregious'' or ``outrageous'' in light
of traditional executive behavior and contemporary practice.
In reaching that conclusion, OLC reviewed U.S. judicial
precedent, public military doctrine, the use of stressful
techniques in SERE training, public State Department reports
on the practices of other countries, and public domestic
criminal practices. OLC concluded that these sources
demonstrated that, in some circumstances (such as domestic
criminal investigations) there was a strong tradition against
the use of coercive interrogation practices, while in others
(such as with SERE training) stressful interrogation
techniques were deemed constitutionally permissible. OLC
therefore determined that use of such techniques was not
categorically inconsistent with traditional executive
behavior, and concluded that under the facts and
circumstances concerning the program, the use of the
techniques did not constitute government behavior so
egregious or outrageous as to shock the conscience in
violation of the Fifth Amendment.
Before the passage of the Detainee Treatment Act, in
October of 2005, the Principal Deputy Assistant Attorney
General for OLC noted in response to questions for the
record: ``[I]t is our policy to abide by the substantive
constitutional standard incorporated into Article 16 even if
such compliance is not legally required, regardless of
whether the detainee in question is held in the United States
or overseas.'' Similarly, in December of 2005, both the
Secretary of State and the National Security Adviser stated
publicly that U.S. policy was to treat detainees abroad in
accordance with the prohibition on cruel, inhuman and
degrading treatment contained in Article 16.
Subsequent Developments in the Law
In December 2005, Congress passed the Detainee Treatment
Act (DTA), and the President subsequently signed it into law
on December 30, 2005. That Act applied the substantive legal
standards contained in the Senate reservation to Article 16
to the treatment of all detainees in U.S. custody, including
those held by the CIA. At the time of the passage of the DTA,
the Administration had concluded, based on the May 2005 OLC
opinion, that the CIA's interrogation practices, including
waterboarding, were consistent with the substantive
constitutional standards embodied in the DTA.
In June 2006, in Hamdan v. Rumsfeld, the Supreme Court held
that Common Article 3 of the Geneva Convention applied to the
conflict with Al-Qa'ida, contrary to the position previously
adopted by the President. Common Article 3 of the Geneva
Conventions requires that detainees ``shall in all
circumstances be treated humanely,'' and prohibits ``outrages
upon personal dignity, in particular, humiliating and
degrading treatment'' and ``violence to life and person, in
particular murder of all kinds, mutilation, cruel treatment
and torture.'' At the time of the Hamdan decision, the War
Crimes Act defined the term ``war crime'' to include ``a
violation of Common Article 3.''
In August 2006, OLC issued two documents considering the
legality of the conditions of confinement in CIA facilities.
One of the documents was an opinion interpreting the Detainee
Treatment Act; the other document was a letter interpreting
Common Article 3 of the Geneva Conventions, as enforced by
the War Crimes Act. These documents included consideration of
U.S. constitutional law and the legal decisions of
international tribunals and other countries.
On September 6, 2006, the President publicly disclosed the
existence of the CIA's detention and interrogation program.
On the same day, the CIA briefed all Committee Members about
the CIA's detention and interrogation program, including the
CIA's use of enhanced interrogation techniques.
In October 2006, Congress passed the Military Commissions
Act (MCA) to set forth particular violations of Common
Article 3 subject to criminal prosecution under the War
Crimes Act. Specifically, the MCA amended the War Crimes Act
to designate nine actions as grave breaches of Common Article
3, punishable under criminal law. Although only these nine
violations of Common Article 3 are subject to criminal
prosecution, Congress recognized that Common Article 3
imposes additional legal obligations on the United States.
The MCA provided that the President has the authority ``to
interpret the meaning and application of the Geneva
Conventions and to promulgate higher standards and
administrative regulations for violations of treaty
obligations which are not grave breaches of the Geneva
Conventions.''
In July 2007, the President issued Executive Order 13440,
which interpreted the additional obligations of the United
States imposed by Common Article 3 of the Geneva Conventions.
In conjunction with release of that Executive Order, OLC
issued a legal opinion analyzing the legality of the
interrogation techniques currently authorized for
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use in the CIA program under Common Article 3 of the Geneva
Conventions, the Detainee Treatment Act, and the War Crimes
Act.
The July 2007 opinion includes extensive legal analysis of
the war crimes added by the MCA, U.S. constitutional law, the
treaty obligations of the United States, and the legal
decisions of foreign and international tribunals. The July
2007 opinion does not include analysis of the anti-torture
statute but rather incorporates by reference the analysis of
the May 2005 opinions that certain proposed techniques do not
violate the anti-torture statute, either individually or
combined.
In considering ``traditional executive behavior and
contemporary practices'' under the substantive due process
standard embodied in the Detainee Treatment Act, OLC
considered similar sources to those considered in the May
2005 opinion on Article 16. In addition, OLC examined the
legislative history of the MCA, which the President had
sought, in part, to ensure that the CIA program could go
forward following Hamdan, consistent with Common Article 3
and the War Crimes Act. OLC observed that, in considering the
MCA, Congress was confronted with the question of whether the
CIA should operate an interrogation program for high value
detainees that employed techniques exceeding those used by
the U.S. military but that remained lawful under the anti-
torture statute and the War Crimes Act. OLC concluded that
while the passage of the MCA was not conclusive on the
constitutional question as to whether the program ``shocked
the conscience,'' the legislation did provide a ``relevant
measure of contemporary standards'' concerning the CIA
program and suggested that Congress had endorsed the view
that the CIA's interrogation program was consistent with
contemporary practice.
Because waterboarding was not among the authorized list of
techniques, the 2007 OLC opinion did not address the legality
of waterboarding. OLC therefore has not considered the
legality of waterboarding under either of the two provisions
that have been applied to the CIA's treatment of detainees
since the passage of the Detainee Treatment Act in December
of 2005: Common Article 3 of the Geneva Conventions and the
War Crimes Act, as amended by the MCA.
Present Circumstances
On January 30, 2008, at a hearing of the Senate Judiciary
Committee on Oversight of the Department of Justice, the
Attorney General disclosed that waterboarding was not among
the techniques currently authorized for use in the CIA
program. He therefore declined to express a view as to the
technique's legality. The Attorney General also stated that
for waterboarding to be authorized in the future, the CIA
would have to request its use, the CIA Director ``would have
to ask me, or any successor of mine, if its use would be
lawful, taking into account the particular facts and
circumstances at issue, including how and why it is to be
used, the limits of its use and the safeguards that are in
place for its use,'' and the President would have to address
the issue.
In February 2008, in testimony before this Committee, the
CIA Director publicly disclosed that waterboarding had been
used on three detainees, as previously described. At that
same hearing, the Director of National Intelligence (DNI)
testified that waterboarding was not currently a part of the
CIA's program, and that if there was a reason to use such a
technique, the Director of the CIA and the Director of
National Intelligence would have to agree whether to move
forward and ask the Attorney General for a ruling on the
legality of the specifics of the situation. The Committee
also discussed the CIA's interrogation program with those two
officials in closed session.
Although waterboarding was no longer a technique authorized
for use in the CIA program, and the Attorney General and DNI
testified in 2008 that a new legal opinion based on current
law would be required before it could be used again, the May
2005 opinions on the legality of waterboarding under the
anti-torture statute and Article 16 of the Convention Against
Torture (the legal standards subsequently embodied in the
DTA) remained precedents of the Office of Legal Counsel at
the time of the Attorney General's and DNI's 2008 testimony.
On January 22, 2009, the President issued Executive Order
13491 on ``Ensuring Lawful Interrogations.'' The Executive
Order revoked Executive Order 13440, limited the
interrogation techniques that may be used by officers,
employees, or other agents of the United States Government,
and established a Special Interagency Task Force on
Interrogation and Transfer Policies to report recommendations
to the President. With respect to prior interpretations of
law governing interrogation, section 3(c) of Executive Order
13491 directed that, unless the Attorney General provides
further guidance, officers, employees, and other agents of
the United States Government may not rely on interpretations
of the law governing interrogations issued by the Department
of Justice between September 11, 2001, and January 20,
2009.
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