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TOPS~L ____________ ~~~
u.s. Department of Justice
Office of Legal Counsel
. Offia: of the Principal Deputy Assistant Attorney Geneial Washington. D.C. 20530
May 30,2005
MEMORANDuM FOR JOHN A. RIZZO
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SENIOR DEPUTY GENERAL COUNSEL, CENTRAL INTELLIGENCE A~CV'
. Re: Application oj United States Obligations Urii!er.·A·r.ticlei16·qf the.
Conventfon Aga;nst TC?rture to. Certain Techniques that May ~e
.used in the Inte"ogation of High Value al Qaeda Detainees· ..
You have. asked us to address whether certain "enhanced interrogation techniqUes"
employed by the .Central Intelligence Agency ("CIA") in the interrogation ofhig.h value aJ Qaeda
detainees are consistent with. United States obligations under Article 16 of the United Nations
(:onvention Against Torture and Other Ctuel~ Inhuman or Degrading Treatment or Punishment,
Dec. io, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered'jnto force for U.S.
·Nov.20, 1994) ("CAT"). We conclude that use of these techniqueS, subject to the CIA's careful'
screening criteria and limitations and its medical safeguards, is consistent with United States
obligatio~ under Article 16.1 .
By its tenns. Article 16 is limited to conduct within "territory under [United States]
jurisdiction." We conclude that territory under United Staies jurisdiction includes, at most. areas . .
I Our analysis and co~clusioDS are limited to the specific legal issues we address iii this memorandum. We
note that we have ~reViously concluded that use of these technlqu~. subject to the Jjmi~ and safeguardS 'required by
the interrogation progrcirn, does not violate the fedetaJ prohibition on torture, codified at ... 8 U.S.C. §§ 234()..2340A.
See Memoraildl,lOl for John A. Rizzo, Senior Deputy General CoJ.inSel, Central Intelligence Agency, from Steven G.
Bradbwy, Principal Deputy Assistant Attorney General, Office of Legal Counsel, Re: Application of ,8 u.s.c.
§§ lJ40-2340A.·to Certain TechnlqulfS that May Be Used in the ln/~rrogation of 0 High Value 01 Qaedo Detainee
.(May 10,2005); see a/sQ MemorancJumfor john A. Rizzo, Senior DepUty General Counsel, Central Intelligence
Agency. from Steven:G. Bradbury', Principal Deputy Assistant Attorney Gener.aJ, Office' orLega! CounseJ, Re:
. Application of 18 u.s. C. ii 2340-234OA to.the Comhined Use o/Certain Technique~ in the Interrogation o/High
Value 0/ Qaeda Detainees (May 10,2005) (concluding ~nbe anticipated combined ~ of these techniques would
not violate the federal prohibition on torture). The legal advice provided in this memOrandum does not represent the .
policy views of the Department of 1ustice concerning the use ~ any interro~ation methods.
Thinllemer.andtlm is ela"$sitted in its entirety.
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over which the United States exercises at least de facto authority as the government. Based on
CIA assurances, we understand' t~at the interrogations do not take plaCe in any ~ch areas. We
therefore concl\l~e ~hat Article 16 is inappljcable to the CIA' s ~lI:terr<5gation practices and that
those practiCes thus cannot violate Article 16. Further, the United States undertook Its
obligations under Article 16 subject to a Senate reservation; which, as relevant here, explicitly. .
limits those obligations to "the cruel, unusual and, ~nhumane treatment ... prohibited by the Fifth .
Amendment ... to the Constitution of.the United States.,,2 There·is a strong argument that
throu~ this reservittion the Senate intended to limit the scope ofUJ1ited Stat~ obligations under'
Article 16 to those imposed by the relevant provisions of the Constitution. As constnied ·by the
courts,:tbe Fifth' Amendment does not apply to aliens outsid~ the United S~ates. The CIA has
. assured us that the interrogation.techniques aTe not used within"the United' States or against·
United States persons, including. both· United States citizens·a~d lawful perm~ent reSidents .
. Because th~ geographic limitation on ·the race of "Article ] 6 renders .it inapplicab~e to the CIA
interrogation piog~ in any event, we need not decide in this memorandum thepr-eciSe effeCt, if .
'any, of the Senate reservation on the gc;ogiaphic reach of United Stat~ obligations under Article . l~.· For.these reasonS, we conclude in Part IT that the interrogation techniques where and as used
by the CIA·are not subject t~. and therefore do not violate, Article 16.
NotWithstanding these .conchisions, you have also asked whether the interrogation
, techiliques at issue would viol~te the sub$t~tive standards applicable to the United States under
Article 16 it: contrary to our conclusion ·in p~ n, those standards did extend to the CIA
jnt~ogation program. As detailed. below in Part m. the relevant 'constraint h~re, assuming
Arti~)e 16 did· apply,' would be th.e Fifth Amendment's prohibition :of executive. conduct that
"shocks the conscience." The Slipte~e Court 1:138 emphasized that whether conduct "sbocks the·
. conscience" is a,highly context-specific and fact-dependent question. ·The ~urt, however, has
ilot set forth With precision a specific t~t for ascertaining whether ~ndu~t can be said to "shock
the. conscien~" and has disclaimed the ability to do so. Moreover. there are few ~uprenie Court
cases addressing'whether conduct "shocks the 'conscience," and the few' caseS there are have all
arisen in very different contexts ·fro.m that which we consider here ..
. '. For these r~ons, we c8:Mot set forth or appJya precise test for ascertaining whether
condUct C8n:be sai CQ~cience" c~ do' provide some s~$nposts that can guide .our inquiry. In'particular, on
"bat~c,e the :caSes'.ar~ ~st read t.o require a determination whether th~ Conduct is '''arbitrary in
. the e~iistitutiollaJ sense,'" CountY o/Sacramento. v. Lewis, 523 U.S. 833, 846 (1998) (citation
. 2 The·~ivation provides in full:
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. ~~~,or de~ding trea~ent or punis~~ " only insofar ~ the t~~,:c.!Uel,.J!thuman9i..=~~~~,~=~ ... _~,'_~' .~ .• - .... . .. _.' ~lDg treatou:ntbr. .. pUllJsbment~eans11iei::ruel4ii'imuiDaruriiifiumane tteatment or . -" -"."-"'~ .~.:.-:---.-.-.~- puriiSfunent prohibited by the Fifth..Eighth. and/or FoUrteenth Amendments to the Constitution of . the UilitCd States. .
136 Congo Rec. 36198 (1990). As we explain below. the Eighth and Fourteenth Amendments are not applicable In
this context
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omitted); thaOs, whether it involves the "exercise of power without any reasonable justification:
in t~e service ofa legitimate govemment~1 objective," id. "[C]oilduct intended ,to injure in some
, way unjustifiable by any,government interest is the, sort of official a~ion mostlikeJy to rise to
the eonscitmce-shocking level." Id. at 849. Far from beiqg con~titutionaJJy arbitrary, the,
interrogation techniques at issue here ate employed by the CIA only a~ reasonably deemed
necessary to protect again~t grave threats to United States interests, a determination that is made
at CIA Headquarters, with input from th~ on-scene interroglUion team, pursuant to Careful
screening procedul:"eS,thate~ure that the t~hniqueswill be used as 1ittte as .. possibIe on as few
detainees as possible. 'Moreover, the techniques have been'carefully designed to minimize the'
risk of suffering or injQJY and to avoid inflicting any serious or lasting physical or psychological
, ,harm. ' Medical screening, monitonng, and ongoing evaluations further lower such risk.
Significantly, you have informed us that the' CIA, believes that this program;is largely responsible
for preventipg a ~bsequent attack within the United, ~lates. Because the CIA interrogation
program.is carefully limited to further a v~ial government interest and designed to avoid
unnecessary or serious h~ we conclude that it cannot. b,e said to be constitutionally arbitrary.
The ~upreine Court;s decisions atso sugg~t that it is appropriate to consider whether, in
light of"traditional, executive behavior, of CQnte~porary practice, and the standards of blame
generally applied to them," use of the techniques in the' CIA interrogation program "is so
, , ,egregious, so outrageous; that it may fairly be said to shock the contemporary conscience." Id. at
"847 n.S. ,We have'~ot found evidence of~ditional ex~ive behavior or <;ontemporary practice
either condemning or condoning an interrogation program carefully limited to further a vital
governme~t interest and designed to avoid unnecessary or serious harm. We recognize,
, however, that use, of Coercive interrogation techniques in oth~ context&-in different settings. •
for other purposes, or absent the CIA's safeguards ....... might be: thought to "shock the conscience."
Cf. e,g.~ Rochin v. Califomia~ 342 U.S. 165, 172 (1952) (finding that pumping the stomach of a
criminal defendant to obtain evidence "sb~ks the conscience"); U.S. ArmY Field Manual 34-52: ,
Intelligence Inte"ogation (1992) r'Field,ManuaI34-52~') (detailing guidelines for interrogations
,in the context.oftraditional warfare); Department of State; Country Reports on Human Rights
Practices (describing human-rights abuses condemned by the United States). We believe,
howev,er. 'Jhat each of these other conteXts, which we describe more fully below, differs critically
from the CIA interrogation program in ways that would be Unreasonable 10 ignore in examining
whether the conduct involved in, the CIA program "shock[s] the contemporary conscience.'~
Ordinary ~i:ninal investigations within W'e United States,' fot example, involve nmdamentalJy
different government interests and implicate specific constitiitional guarantees, such as the
privilege against self-incCim.natio~ that are not at issue bere. Furthermore, the CIA
inte.,.ogatio~ techniques have all been adapted from military Survival, Evasion, R~sistance,
Escape ("SERE") training. 'Although there are obvious differences between training exercises
and actual interrogations, the fact tbat the United States uses simila~ techniques on its own ~roops
fer training purposes strongly sugg~lHhat these teslmiques are not eategoriGaUy beyood=th1tlc~,==:::=;::=:::::;
,'pale. '
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Given that the CIA interrogation program is carefully limited to further the Government's '
paramount interest in protecting the Nation while avoiding unnecessa'ry or serious harm, we '
conclude that the in~errogation program cannot "be said to shock the contemporary conscien~e"
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