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1 0 UNCLASSFED // FOR PUBLC RELEASE... Date: 'TO: SUBJBCT: EYES ONLY - FORMAL APPROVAL FOR THE NEXT PHASE TOT: 031JS7Z AUG 02 ORECTORl.,, j ~~ ~--- -" ~---- -&-El e 1l B-r TO: Z DRECTORj '-~~~~~~~~~~~~~! '-----~- FROM j SUBJECT: REF: EYES ONLY - FORMAL APPROVAL FOR THE NBXT PHASB TEXT: l. ACTON RBQURBD: AUTHORZATON TO EMPLOY THB WATER BOARD, AS DESCRBED BB~, N. ADDTON TO 'l'he TEC~QUES PREVOUSLY AUTHORZED l PLEASE SEE ~BLOW GUDANCE N PARA NNE REGARDNG DECSON AUTHORTY. 2. SUMMARY: AS REFLECTED MORE COMPLETELY._ CA PLANS TO MPLEMENT MORE AGGRESSVE TECHNQUES N OUR NTERROGATON OF ((ABO.ZUBAYDAH)), N ORDER TO OBTAN ACTONABLE NTELLGENCE ABOUT AL-QA'D~ OPERATVES N THE UNTED STATES AND PLANNED AL-~' DA LETHAL ATTACKS AGANST U.S. CTZ~NS AND U.S. NTERESTS. THE AGENCY'S ATTORNBYS HAVE CONDUCTED EXTENSVE DSCUSSONS WTH THE DEPAR~BNT OF JUSTCE, ~D WTH.THE' f:egal ADVSER TC? THB NATONAL SECURTY COUNCL, AND HAVE CONFRMED THAT THE USE OF THESE ', j ' Salm v. Mtchell - Unted States Bates Stamp #001760

2 UNCLASSFED // FOR PUBLC RELEASE TECHNQUES S LAWFUL. ADDTONALLY, THE DC DSCUSSED THESE PROPOSALS WTH THE NATONAL SE,CURTy ADVSER ON 17 JULY 2002 ' AND HAS ADVSED US THAT WE MAY PROCEED.. WE RECEVED FORMAL WRTTEN APPROVAL FROM THE DEPARTMENT OF JUSTCE ' S OFFCE OP LEGAL COUNSEL ON 1 AUGUST 2002 AT 2230L THAT EACH OF THE. TECHNQUES DESCRBED N REP AND NCLUDNG THE USB OF WA~ER BOARD ARE,LEGAL, 3.. THE LEGAL CONCLUSONS ARE PREDCATED UPON THE DETERMNATONS BY THE NTERROGATON TEAM THAT ABU ZUBAYDAH CONTNUES TO WTHHOLD CRTCAL TH~EAT NFORMATON, NCLUD~ THE DENTTBS OF AL~QA'DA OPERATVES N. THE UNTED STATES1 THAT N 'ORDER Tb PERSUADE HM TO PROVDE THOSE DENTTES, THE USE OF MORE AGGRESSVE TECHNQUES S REQURED; AND THAT THE.USE OF THOSE TECHNQUES WLL NOT ENGENDER LASTNG ANO SEVERE MENTAL OR PHYSCAL HARM. 4. BACKGROUND. AS MORE FOLLY DESCRBED \THE NEXT PHASB OF THE NTERROGATON MAY BMPLOY VAROUS METHODS NCLUDNG THE ATTENTOfl! GRASP; WALLNG; THE FACAL HOLD; THE FAC~AL SLAP. {NSULT SLAP); CRAMPED C:ONFNEMENT; WALL STANDNG; STRESS POSTONS; SLEEP.DEPRVATON; THE WATER BOARD; THE USE OF DAPERS; AND/OR THE USE OF HARMLESS NSECTS, THE TEAM MAY DETERMNE THAT T WSHES TO DRAW FROM ANY OR ALL OF THE TECHNQUES DESCRBED ABOVE, AS WBLL AS FROM THOSE TECHNQUES EMPLOYED PREVOUSLY. A CA PHYSCAN'S ASSSTANT WTH SERE EXPERENCE WLL BE PR!SENT THROUGHOUT THB PROCESS AND A PHYSCAN S CURRENTLY ON STE. 5. DSCUSSON. ON 13 JULY 2002, ACTNG GENERAL COUNSEL JOHN RZZO. AND [):TC/LGL MET WTH.NSC LEGA.L ADVSER JOHN BELLNGER; DEPUTY NSC LEGAL ADV.SBR DEPUTY ASSSTANT ATTORNEY GENERAL JOHNY~ AN0 ATTORNEY..., OP THE OFFCE OF LEGAL COUNSEL, DBPARTMENT OF JUSTCE1 ASSSTANT ATTORNEY GENERAL MCHAEL CHERTOFF; HEAD OP TH~ CRMNAL DVSON AT THE DEPARTMENT OP JUSTCE; AND CHEF OF STAFF TO THE DRECTOR OP THE FB DAN LEVN. RZZO AND c=j PROVDED A FULL BREF TO THE GROUP ABOUT -THE VAROUS TECHNQUES SUMMARZED N PARAGRAPH 3 ABOYE, WTH PARTCULAR EMPHASS PLACBD UPON THE DETALS OP THE WATER BOARD AND MOCK BURAL PROCESSES. OUR ATTORNEYS. FURTHER ADVSBD THE GROUP THAT: THE CA AND FB STAf F EMPLOYEES ENGAGED N THE NTERROGATON OF ABU ZUBAYOAH ARE COMPLEMENTED BY EXPERT PERSONNEL WHO POSSESS EXTENSVE EXPERENCE, GANED WTHN THE DEPARTMENT OF DEFENSE, ON THE PSYCROtOGCAL AND, PHYSCAL METHODS OP NTERROGATON AND THB RESSTANCE TECHNQUES EMPLOYED AS ' COUNTERMEASURES TO SUCK NTERROGATON. ALTHOUGH THE NTERROGATON PROCESS HAS PRODUCED A.LMTBD AMOUNT OF SUCCESS TO DATE, ABU ZUBAYDAH REMANS ADROT AT APPLYNG A HOST OF RESSTANCE TECHNQUES. HB S THE AUTHOR OF A SBMNAL AL-QA'DA MANuAL <;ln 'RESSTANCE TO NTERROGA~ON METHODS, AND THAT Salm v. Mtchell - Unted States Bates Stamp #001761

3 UNCLASSFED // FOR PUBLC RELEASE THE AGENCY ASSESSES HB CONTNUES TO WTHHOLD CRT cal, ACTONABLE NFORMATON ABOtJ'l'.THE.DBNTTES OF AL-QA'DA PERSONNEL DSPATCHED TO THE UNTED STATES AND ABOUT PLANNED AL-QA'DA TERRORST ATTACKS. SMPLY STATED, COUNTLESS MORE AMBRCANS MAY DE UNLBSS WB CAN PERSUADE AZ TO TELL US WHAT HB KNOWS. -- THE NTERROGATON PROCESS PREVOUSLY HAD BEEN BREFED TO THE OFFCE OP LEGAL COUNSEL (WHO SUBSEQUENTLY BREFED THE ASSSTANT ATTORNEY GENERAL FOR THE CRMNAL DVSON), AS WELL AS TO THB ASSSTANT TO THB PRESDENT 'FOR NATONAL SECURTY AFFARS, THE LEGAL ADVSER TO THB NATONAL SECURTY COUNCL, AND THE WHTS HOUSE COUNSEL. THE PROCESS HAD BEEN THOROUGHLY REVEWED AS WELL BY CA'S ACTNG GENERAL COUNSEL AND BY THE CHEF LEGAL ADVSER TO THE COUNTBRTERRORST CENTER, AND THE NTERROGATON TEAM REMANS AUTHORZED TO EMPLOY ALL METHODS LAWFULLY PERMTTED. -- NONETHELESS, THB NTERROGATON TEAM NOW HAD CONCLUDBD THAT THE USE OF MORE AGGRESSVE MBTHODS S REQURED TO PERSUADE ABU ZUBAYDAH TO PROVDE THE CRTCAL NFORMATON NEEDED TO SAFEGUARD THE LVBS OF NNUMERABLE NNOCENT MEN, WOMBN, ~D CHLDREN WTHN THE UNTED STATES AND ABROAD. N LGHT OF THE EXCEPTONALLY GRAVE, LETHAL, AND MMNENT RSKS TO THE CTZENS OF THE UNTED STATES, AND THE AGENCY'S ASSESSMENT THAT ABU ZUBAYDAH.CONTNUES TO WTHHOLD CRTCAL NFORMATON TjAT WOULD PBR?<T THB UNTED STATES TO AVERT THOSE RSKS, CA HAD REVEWED THE TEAM'S PROPOSALS AND WSHED TO SECURE CONCURRENCE FROM THE NSC AND THE DEPARTMENT'OP JUSTCE. WE ALSO WSHED TO PRESENT THE PROPOSALS TO THE FB CHEF OF STAPF SO THAT THE FB COULD DETERMNE WHETHER TO PARTCPATE N THE NEXT PHASE AS WELL. WB EMPHASZED THAT CL"EARLY T S NOT OUR NTENT TO PERMT ABU ZUBAYDAH TO DE N THE COURSE OF SUCH ACTVTES, AND THAT WE WOULD HAVE APPROPRATELY TRANED MEDCAL PERSONNEL ON-STE TO. ENSURE THB AVALABLTY OF EMERGENC.Y RESPONSE SHOULD HE SOFFER A POTENTALLY LETHAL CONSEQUBNCE. NONETHELESS, WB NOTED THAT THB RS~ S EVER-PRESENT THAT ABU ZUBAYDAH M.>.Y SUFFER A HEART ATTACK, STROKE, OR OTHER ADVERSE EVENT REGARDLESS OF THB CONDTONS OF HS DETENTON AND QUESTONNG; NDBED, THAT POTENTAL S ALWAYS PRESENT WHENEVER AN NDV DUAL S UNDER DETENTON. 6. THE CA LAWYERS 'THEN ASKED THE GROUP TO CONSDER THE PROVSONS OF 18 U.S.C. SECTONS (ASDE FROM THE LEGAL DOCTRNES OP NECESSTY OR OF SELF-DEFENSE), AS WELL AS ANl: OTHER APPLCABLE U.S. LAN. - - AS NOTED,,.THOSE SECTONS GENERALLY PROVDE THAT T S A FEDERAL CRME SUBJECT TO SEVERE PENALTES FOR ANY PERSON ACTNG "UNDER COLOR OF LAW" (WHCH WOULD NCLUDE, OP COURSE, ALL MEMBERS OF THE NTERROGATON TBAM AND OTHER PERSONNEL AS NELL) TO ENGAGE N CONDUCT THAT S "SPECFCA.LLY NTENDED TO NFLCT.SEVERE PHYSCAL OR MENTAL ~AN OR SUFFERNG... UPON. ANOTHER PERSON WTHN HS CUSTODY OR PHYSCAL CONTROL. 1.! Salm v. Mtchell - Unted States Bates Stamp #001762

4 UNCLASSFED // FOR PUBLC RELEASE -- THE STATUTE DEPNES "SEVERE MENTAL PAN OR SUPPERNG" AS NTHB PROLONGED MENTAL HARM CAUSED BY OR RESULTNG FROM: (A) THE NTENTONAL NPLCTON OR THREATENBO NFLCTON OF SEVERE PHYSCAL PAN OR SUFFERNG;.(B) THE ADMNSTRATON OR APPLCATON, OR THRBATBNED ADMNSTRATON OR APPLCATON, OF MND-.ALTBRNG SUBSTANCES OR OTH~R PROCEDURES CALCULATED TO DSRUPT PROFOUNDLY THE SENSES OR PERSONALTY; (C) THE THREAT OF MM NENT DEATH; OR (D) THE THREAT T!f.AT ANOTHER PERSON WLL l'lmlnbntly BE SUBJECTED TO DEATH, SEVERE PHYSCAL PAN OR SUFFERNG, OR THB ADMNSTRATON OR APPLCATON OP MND-~TERNG SUBSTANCES OR OTHER PROCED'QRES CALCULATED TO DSRUPT PROFOUNDLY THE SENSES OR PERSONALTY. " AM0NG OUR PRMARY CONCERNS,.' OF COURSE, S THE FEAR THAT THE SUBJECT MAY SUFFER A HEART ATTACK, FOR EXAMPLE, AND DE N THE COURSE OF HS DETENTON ATl THE FEDERAL CRMNAL STATUTES PROVDE THAT ANY PERSON WHO VOLATES THE PROHBTONS QUOTED ABOVE "SHALL BE FNED UNDER (THE U.S. CRMNAL CODE) OR MPRSOl\"ED NOT MORE THAN 20 YEARS, OR BOTH, ANO P DEATH RESULTS TO ANY PERSON PROM CONDUCT PROHBTED BY THS SUBSECTON (.E., THAT QUOTED ABOVE), ~HALL BE PUNSHED BY DEATH OR MPRSONED FOR ANY TERM OF YEARS OR FOR LFE." 7. THE NSC-CONVENBD GROUP CAREFULLY CONSDERED THESE PROVSONS AND THE PROPOSED NTERROGATON PROCEDURES AS DBSCRBBD THE RBPRESENTATVES FROM THE OFFCE OF LEGAL COJNSEL ("OLC") AT JUSTCE ADVSED THAT THE STATUTE WOULD NOT RPT NOT PROHBT THE METHODS PROllOSED BY THB NTERROGATON TEAM., N LGHT OF THE SPECFC FACTS AND CRCUMSTANCES OF THE NTERROGATON PROCESS. THE LEGAL CONCLUSON TURNS UPON THB FOLLOWNG FACTORS: THE ABSENCE OF ANY SPECFC NTENT TO NFLCT SEVERE PHYSCAL OR MENTA~ PAN OR SUFFERNG. N A LETTER DATED 13 JOLY 2002, OLC ADVSED CA THAT "SPBCPC NTENT CAN BE NEGATED BY A SHOWNG OP GOOD FATH... F, FOR EXAMPL~, EFFORTS WERB MADE TO DETERMNE WHAT LONG- TERM MPACT, F ANY, SPECFC CONDUCT WOULD. HAVB AND :T WAS LBARN!D THAT THE CONDUCT WOULD"NOT RESULT N PROLONGED MENTAL HARM, ANY ACTONS TA<BN RELY:NG ON THAT ADVCE WOULD HAVE TO BE UNDERTAKEN N GOOD FATH. DUE DLGENCE TO MEET THS STANDARD MGHT NCLUDE SUCH ACTONS AS SURVEYNG PROFESSONAL L:TERATURE, CONSULTNG WTH EXPERTS, OR EVDENCE GANED FROM PAST EXPBRBNCE." WE UNDERSTAND PROM orc=j OMS. AND THE SERB PSYCHOLOGSTS ON THE NTERROGATON TEAM THAT THE PROCEDORBS DESCRBED ABOVE SHOULD NOT RPT. NOT PRODUCE SEVERE MENTAL. OR PHYSCAL PAN OR SUFFERNG: 1 FOR EXAMPLE, NO SEVERE PHYSCAL NJURY (SUCH AS THE LOSS OF A LMB OR ORGAN) OR DEATH SHOULD RESULT FROM THE PROCEDURES;.NOR WOULD THEY BB EXPECTED TO PRODUCE PROLONGED MENTAL HARM CONTNUNG FOR A PEROD OF MONTHS OR YEARS (SUCH AS THE CREATON OF PERSSTENT POSTTRAUM1.TC STRBSS DSORDER), GVEN Salm v. Mtchell - Unted States Bates Stamp #001763

5 UNCLASSFED // FOR PUBLC RELEASE THE EXPERENCE WTH 1:ffBSB.PROCBDURES AND THE SUBJECT ' S RBSLBNCE TO DATB. -- ACCORDNGLY, THE TEAM LAWFULLY MAY EMPLOY THOSE PROCEDURES CONTANED N REF ANO MAY ALSO EMPLOY USE OF THE WATER BOARD. PLEASE NOTE THAT "THB "MOCK BURAL" TECHNQUE HAS WT/NOT BEEN APPROVED FOR LEGAL AND POLCY REASONS WATER BOARD: WTH THS PROCEDURE, NDVDUALS ARE BOUND SBCUR.ELY TO AN NCLNED BENCH. NTlALLY A CLOTH S PLACED OVER THE SUBJECT'S PORB~BAD AND EYES. AS WATER S APPL.BD N A CONTROLLED.MANNER, THE CLOTH S SLOWLY LOWERED UNTlL T ALSO COVBRS THE MOUTH AND NOSE. ONCE THE CLOTH S SATURATED Al-'D COMPLETELY COVERNG THE MOUTH AND NOSE, SUBJECT WOULD BE,BXPOSBD TO 20 TO 40 SECONDS OF RESTRCTED ARFLOW. WATER S APPLED TO.. l<eep THE CLOTH SATURATED. AFTER THE 20 TO 40 SECONDS OF RESTRCTED ARFLOW,. THB CLOTH S REMOVED AND THE SUBJECT ls ALLOWED TO BRBATHB UNMPEDED. APTER 3 OR 4 FULL BREATHS, THE PROCEDURE MAY BE REPEATED. WATER S USUALLY APPLED FROM A CANTEEN COP. OR SMALL WATERNG CAN W.TH A SPOUT. 8. WHLE DOJ/OLC FOUND THAT USE OF THE WATER BOARD POSES AN MMNENT THREAT OF DEATH AS USBO N THE STATUTE, T ALSO FOUND THAT NO PROLONGED MENTAL HARM ATTACHES TO TS USE AND TS USE DOES NOT HAVE THE SPECFC NTENT TO NFLCT SEVERE PAlN OR SUFFERNG; THEREFORE, USE OF THE WATER BOARD DOBB NOT. VOLATE THE STATUTE.. 9. AS WE ANTCPATE THAT ABU ZUBAYDAH WLL PROTEST VGOROUSLY AS A RBSULT OF TRS NEW PHASE, WE WOULD LKE TO EXPAND ON PREVOUS GUDANCE ABO~ DECSON AUTHORTY (ALEC. STANDARD GUDANCE S THAT HQS SHOULD BE CONSULTED (VA (===:J F NECESSARY) SHOULD ANY MEMBER OF THE TEAM OR ON-STE PERSO~"NEL SUGGEST/REQUEST THAT THE NTERROGATON BE HALTED FOR ANY REASON". HOWEVER, SHOULD A STUATON ARSE THAT WOULD NECESSTATE AN MMEDATE DECSON BY BASE, THE FNAL DECSON MUST REST WTH BOTH COB AND THE. SENOR. CTC OFFCER, AFTER CONSULTATONS WTH ALL MEMBERS OF THE TEAM. BOTH COB AND THE SENOR CTC OFFCER MUST BE N AGREEMENT BEFORE ANY ACTON S TAKEN,. AGAN, WE ANTCPATE THAT THS WLL BB N ONLY THB MOST EXTREME CASES. 10. GOOD LUCK.. -. Salm v. Mtchell - Unted States Bates Stamp #001764

6 UNCLASSFED // FOR PUBLC RELEASE.! :L END OF MBSSAGE.! '!.! Salm v. Mtchell - Unted States Bates Stamp #001765