[Congressional Record Volume 155, Number 59 (Wednesday, April 22, 2009)]
[Senate]
[Pages S4561-S4566]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



  (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

[[Page S4566]]

     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.

                          ____________________