Steven G. Bradbury

“ This "creates . . . a mindset in which [the detainee] learns to perceive and value his personal welfare, comfort, and immediate needs more than the information he is protecting." Id. Conditioning techniques are not designed to bring about immediate results. Rather, these techniques are useful in view of their "cumulative effect . . . , used over time and in combination with other interrogation techniques and intelligence exploitation methods." Id. at 5. The specific conditioning techniques are nudity, dietary manipulation, and sleep deprivation. ”

“ A United States foreign relations tradition of condemning torture, the indiscriminate use of force, the use of force against the governments' political opponents, or the use of force to obtain confessions in ordinary criminal cases says little about the propriety of the CIA's interrogation practices. The CIA's careful screening procedures are designed to ensure that enhanced techniques are used in the relatively few interrogations of terrorists who are believed to possess vital, actionable intelligence that might avert an attack against the United States or its interests. ”

“ When enhanced techniques are used, OMS closely monitors the detainee's condition to ensure that he does not, in fact, experience severe pain or suffering or sustain any significant or lasting harm.
This facet of our analysis bears emphasis. We do not conclude that any conduct, no matter how extreme, could be justified by a sufficiently weighty government interest coupled with appropriate tailoring. Rather, our inquiry is limited to the program under consideration, in which the techniques do not amount to torture considered independently or in combination. ”

“ Although, pursuant the Senate's reservation, United States obligations under Article 16 extend to "the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth.Amendments.to the Constitution of the United States," only the Fifth Amendment is potentially relevant here. The Fourteenth Amendment provides, in relevant part: "No State shall . . . deprive any person of life, liberty, or property, without due process of law." ”

“ Dietary manipulation involves substituting a bland, commercial liquid meal for a detainee's normal diet. We understand that its use can increase the effectiveness of other techniques, such as sleep deprivation. As a guideline, the CIA uses a formula for caloric intake that depends on a detainee's body weight and expected level of activity and that ensures that caloric intake will always be set at or above 1,000 kcal/day. ”

“ Certain of the techniques the United States has condemned appear to bear some resemblance to some of the CIA interrogation techniques. In their discussion of Indonesia, for example, the reports list as " [p] sychological torture" conduct that involves "food and sleep deprivation," but give no specific information as to what these techniques involve. In their discussion of Egypt, the reports list as "methods of torture" "stripping and blindfolding victims; suspending victims from a ceiling or doorframe with feet just touching the floor, beating victims [with various objects] ”

“ Although Article 10, which as incorporated in Article 16 requires each State Party to "ensure that education and information regarding the prohibition" against cruel, inhuman, or degrading treatment or punishment is given to specified government personnel, does not expressly limit its obligation to "territory under [each State's] jurisdiction," Article 1O's reference to the "prohibition" against such treatment or punishment can only be understood to refer to the territorially limited obligation set forth in Article 16. ”

“ But where police take matters in their own hands, seize victims, beat and pound them until they confess, there cannot be the slightest doubt that the police have deprived the victim of a right under the Constitution. It is the right of the accused to be tried by a legally constituted court, not by a kangaroo court. ”

“ Moreover, enhanced techniques are considered only when the on-scene interrogation team considers them necessary because a detainee is withholding or manipulating important actionable intelligence or there is insufficient time to try other techniques. For example, as recounted above, the CIA used enhanced techniques in the interrogations of KSM and Zubaydah only after ordinary interrogation tactics had failed. Even then, CIA Headquarters must make the decision whether to use enhanced techniques in any interrogation. ”

“ Although the interpretation of Article 16 is unlikely to be subject to judicial inquiry, it is conceivable that a court might attempt to address substantive questions under the Fifth Amendment if, for example, the United States sought a criminal conviction of a high value detainee in an Article III court in the United States using evidence that had been obtained from the detainee through the use of enhanced interrogation techniques. ”

“ What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing. ”

“ Al Qaeda's demonstrated ability to launch sophisticated attacks causing mass casualties within the United States and against United States interests worldwide, as well as its. continuing efforts to plan and to such attacks, see supra p. 9, indisputably pose a grave and continuing threat. "It is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." ”

“ Furthermore, techniques can be used only if there are no medical or psychological contraindications. Thus, no technique is ever used if there is reason to believe it will cause the detainee significant mental or physical harm. ”

“ It lists a variety of interrogation techniques that generally involve only verbal and emotional tactics. In the "emotional love approach." for example, the interrogator might exploit the love a detainee feels for his fellow soldiers, and use this to motivate the detainee to cooperate. Id. at 3-15. In the "fear-up (harsh) approach," "the interrogator behaves in an overpowering manner with a loud and threatening voice [and] may even feel the need to throw objects across the room to heighten the [detainee's] implanted feelings of fear." ”

“ Because releasing a detainee from the shackles would present a security problem and would interfere with the effectiveness of the technique, a detainee undergoing sleep deprivation frequently wears an adult diaper. See Letter from ████████ Associate General Counsel, Central Intelligence Agency, to Dan Levin, Acting Assistant Attorney General, Office of Legal Counsel at 4 (Oct 12, 2004) ("October 12 ████████ Letter") . Diapers are checked and changed as needed so that no detainee would be allowed to remain in a soiled diaper, and the detainee's skin condition is monitored. See Techniques at 12. ”

“ Nudity is used to induce psychological discomfort and because it allows interrogators to reward detainees instantly with clothing for cooperation. See Techniques at 7. Although this technique might cause embarrassment, it does not involve any sexual abuse or threats of sexual abuse. See id. at 7-8. Because ambient air temperatures are kept above 68 F, the technique is at most mildly physically uncomfortable and poses no threat to the detainee's health. ”

“ Egypt "employ [s] torture to extract information, coerce opposition figures to cease their political activities, and to deter others from similar activities." There is no indication that techniques are
[30] We recognize that as a matter of diplomacy, the United States may for various reasons in various circumstances call another nation to account for practices that may in some respects resemble conduct in which the United States might in some circumstances engage, covertly or otherwise. ”

“ Its application is less a matter of rule. Asserted denial is to be tested by an appraisal of the totality of facts in a given case, That which may, in one
setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in light of other considerations,
fall short a denial.
Id. at 850 (quoting Betts v. Brady,, 316 US. 455,462 (1942) ) (alteration in Lewis) . Our task, therefore, is to apply in a novel context a highly fact-dependent test with little guidance from the Supreme Court
1. ”

“ The CIA also sets a minimum fluid intake, but a detainee undergoing dietary manipulation may drink as much water as he pleases. See id.
Sleep deprivation involves subjecting a detainee to an extended period of sleeplessness. Interrogators employ sleep deprivation in order to weaken a detainee's resistance, Although up to 180 hours may be authorized, the CIA has in fact subjected only three detainees to more than
[8] As we explained in Techniques "The CIA generally follows as a guideline a calorie requirement of 900 kcal/day + 10 kcal/kg/day. ”

“ Coercive techniques "place the detainee, in more physical and psychological 'stress" than the other techniques and are generally "considered to be more effective tools in persuading a resistant [detainee] to participate with CIA interrogators." Background Paper at 7. These techniques are typically not used simultaneously. The Background Paper lists walling, water dousing, stress positions, wall standing, and cramped confinement in this category, We will also treat the waterboard as a coercive technique. ”