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Olc Ltr to Rizzo Conditions of Confinement Permitted by Article 3 8-31-06

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U.S. Department of Justice
Office ofLegal Counsel
Office of the Assistant Attorney General

Washington, D.C. 2053t}

August 31, 2006

John A. Rizzo
Acting General Counsel
Centtal Intelligence Agency
Dear John:
You have asked for our opinion whether the conditions ofconfinement used by' the
Central Intelligence Agency ("CIA") in covert overseas facilities that it operates as part ofits
authorized program to capture and detain individuals who pose serious threats to the United
States or who are planning terrorist attacks are consistent with common Article 3 of the 1949
'Geneva Conventi0Il:s. On Friday, June 3D, 2006, I advised you orally that the conditions of
confinement described herein are permitt.ed by common Article 3. This letter. memorializes and
elaborates upon that advice.
Common Article 3, which appears in all fOUf of the Geneva Conventi.ons of 1949, applies
in the "case of arm'ed confli~t not of an international character oceUrring in the territory of one of
the High Contracting Parties." E.g., Geneva Convention (III) Relative to the Treatment of
Prisoners ofWar, Aug. 12, 1949,6 U.S.T. 3316, T.I.AS. 3364 ("GPW'). It had been the
longstanding position ofthe Executive Branch that the phrase "not of an inte~ational character"
limited the applicability of common Article 3 to internal conflicts akin to a civii war and thus
that the provision was not applicable to the global armed conflict against at Qaeda and its allies.
.See Memorandum of the President for the National Security Council, Re: Humane Treatment of
al Qaeda and Taliban Detainees at 2 (Feb. 7,2002) (accepting the legal conclusion of the
Department ofJustice that commori Article 3 "does not apply to either al Qaeda or Taliban
detainees, because, among.other reasons, the relevant conflicts are international in scope and
common Article 3 applies only to 'armed conflicts not of an international character"').
In Hamdan v. Rumsfeid, 126 S. Ct 2749, 2795 (2006), however, the Supreme Court, by a
5-3 vote, concluded instead that the "term' conflict not of an international character' is used here
in contradistinction to a conflict between nations." On that basis, the Court determined that
common Article 3 does apply to the armed conflict between the United States and al Qaeda. See
id at 2795-97. The Suprell?e Court's decision means that the "minimum protection" afforded by
.common Article 3,. _.
id. _....
at 2795,
hors de combat by sickness, wounds,
-- - to ."those placed
-.. _.. - _ _. .
- detention,

or any other cause" now applies, as a matter of treaty law, to detainees held by the CIA in the
Global War on Terror. GPW Art. 3. Where common Article 3 applies, the obligation to follow
it is also enforced by statute, as the War Crimes Act provides that <c any conduct" that "constitutes
a violation" of common Article 3 is a federal crime, punishable in some circumstances by the .
death penalty. 18 U.S. C. § 2441 (2000).
Common Article 3 has been described as a "Convention in miniature." 3 JCRC,

Commentary: Geneva Convention Relative to the Treatment ofPrisoners oj War 34 (Jean Pictet,
ed. 1960) ("GPW Commentary'). It establishes a set of minimum standards applicable to the·
treatment ofdetainees held in non-international conflicts. The most important aspect of common
Article 3 is its overarching requirement that detainees "shall in all circumstances be treated
humanely, without any adverse distinction based on race, color, religion or faith, sex, birth or
wealth; or any other similar criteria." 6 U.S.T. at 3318. This requirement of humane treatment is
supplemented and .focused by the enumeration offour more specific categories of acts that "are
and shall remain prohibited at any time and in a~y place whatsoeve~." fd. Those forbidden acts
(a) Viol~nce to life and person, in particular murder of all kinds, mutilation, cruel
treatment and torture;
(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular humiliating and degrading
(d) The passing of sentences.and the carrying out of executions without previous
judgment pronounced by a regularly constituted court affording all the judicial
guarantees which are recognized as indispensable by civilized peoples.

fd. As applied to the conditions of confinement used by the CIA, the prohibitions imposed by
subparagraphs (a) and (c) are clearly the most relevant.


The five conditions you have asked us to consider are standard in the covert overseas
facilities that the CIA uses to detain individuals
You have advised us that those conditions are used to
address the unique an slgnl leant securIty concerns associated 'with holding extremely.
dangerous terrorist-detainees in the kinds of cov.ert facilities' used by the CIA. The facilities in
which the CIA .fJouse~ these high-value detainees were not built as ordinary prisons, much less as
high-security detention centers for violent and sophisticated terrorists. In order to keep their
This letter is limited to evaluating the specific conditions of confinement discussed herein, as descnbed
to us by the CIA. We understand that the CIA is not currently using any interrogation practices at its overseas
facilities that wou!~.. r~~~~u~i0t.l~ .~d~r..~,?m~o~_~i_cle} ... _., ._._......... .... ._


lmltatJons, In turn, requrre t at specIa security measures be used inside the facllities to maJ;:e up
for the buildings'architectural shortcomings. It is in this unique context that the CIA has
imposed the conditions of confinement described herein.
To be sure, the nature and location of these'facilities, which prevent more elaborate and
conspicuous external security measures, is due to a choice that the United States made to hold
these persons secretly. As explained below, however, such secret d~tention is a condition
expressly countenanced by the Conventions themselves for the detention of some persons. And
accomplishing such secret detention' has required increasingly discreet methods given the
advances in intelligence technology since 1949. There is some evidence that common Article 3
establishes certain. "minimum" requirements for the treatment of detainees that cannot be
loosened by sale reference to the purpose ofthe condition of confinement. See, e.g., GPW Art.
3(1}(providing that "~the following acts [subsections (a)-(d)] are and shall remain prohibited at
any time and any place whatsoever"); 3 Pictet, Commentary, at 140 ("The requirements of
humane treatment and the prohibition of certain acts inconsistent with it are general and absolute
in character."). That does not mean, however; that the purpose underlying the conditions' is
irrelevant to evaluating the nature ofits prohibitions. Rather, some specific prohibitions in
common Article 3 specifying the overarching requirement of humane treatment, however, may
very well turn on an evaluation.ofnecessity and purpose. See GPW Art. 3(1)(a) (prohibiting
. "cruel treatme~t"); see also Hope v. Pelzer, 536 U.S. 730," 737 (2002) (holding the "unnecessary
and wanton infliction afpain" to be "cruel" under the Eighth Amendment). As explained below.
we believe the conditions of confinement imposed in these secret detention facilities meet those
minimum standards oftreatment. And we make reference to the challenges posed by the secret
and unfortified nature ofthe$e facilities to underscore that the United States is not imposing
wantonly whatever discomfort that these conditions might cause.
Before specifically evaluating each of the conditions of confinement under common.
Article 3, we offer some general <;>bservations on the scope ofthat provision. In doing so, we
begin with the text of the treaty. See Societe Nationale lndustrielle Aerospatiale v. United States
Dist. Court, 482 U.S. 522,534 (1987). There are other resources relevant here, including
Pictet's Commentaries; which were prepared on behalf of the International Committee ofthe Red
Cross shortly after the treaties were signed and on which the Supreme Court relied in Hamdan in
its·interpretat.ion of ~ommon Article 3. In addition, the Supreme Court has held that the
decisions of foreign tribunals charged with adjudicating disputes between signatories should be
given "respectful consideration." Sanchez-Llamas v. Oregon, slip op. at 21 (June 28,2006); see
alsoBreardv. Greene,.523 U.S. 371,375 (1998). While not a tribunal given authority by the·
treaty to resolve such disputes, the International Criminal Tribunal for the former Yugoslavia
("ICTY") has adjudicated war crimes prosecutions under common Article 3, and we address

.. __._-..:.:..._..--'-.'-._-_ _




_- -





certain decisions of that tribu~al below. 2
First, common Article 3's overarching requirement of "humane" treatment clearly would
forbid housing detainees in conditions of confinement that are inhumane. That term suggests
conditions that are "not worthy of or confonning to the needs of human beings." Webster's
Third New International Dictionary 1163 (1967) (defining "inhuman"). Conditions that fail to'
satisfy the basic needs of all human beings-to food and water, to shelter from extremes ofheat
or cold, to reasonable protections from disease and infection-are thus obvious candidates for
violating common Article 3. This focus on the basic necessities oflife in the requiren:tent of
humane treatment is further emphasized by GPW Article 20, which includes its own humane
treatment requirement for prisoners ofwar under trailsport and explicates that requirement with
minimum standards offood, clothing, and shelter.- There is no'indication, however, that the
CIA's facilities fall short on this score. To the contrary; we understand that all CIA detainees are
given adequate food and water., The cells in which those detainees live are kept at nomial
temperatures and are dean, hygienic, and protected from the element~. In addition, you have'
informed us, and we consider it significant for purposes ofcommon Article 3, that the CIA
provides regular medical care to all detainees in its custody. Please take careful note that to the
extent these basic obligations are inel uded in common Article 3 they are binding as a matter of
. domestic criminal law through the additi~nal basis of the War Crimes Act, 18 U.S.c. § 244i.

Second, the text, structure, and purpose ofcommon Article 3 suggest that its strictures are
aimed at treatment that rises to a·certain level of gravity and severity. After all, the provision
"reflects the fundamental humanitarian principles which underlie international humanitarian ,
law." Prosecutorv. DeJa/ie, ICTY-96-21-A (App.) (Feb. 20, 2001) ~ 143. It protects against
treatment that is widely, ifnot universally. condemned as inconsistent with basic human values.
See id. (observing that common Article 3 incorporates the "most universally recognised
humanitarian principles"); GPW Commentary at 35 (cOmmon Article 3 "at least ensures the
application of the rules ofhumanity which are recognized as essen'tiaJ by civilized nations").
Only' conduct that is sufficiently severe Can properly be characterized as warranting and
receiving such widespread condemnation. This severity requirement is illustrated by ~e specific
examples that common Article 3 gives of acts that are "prohibited at any time and in any place,"
particularly those found in subparagraphs (a) and (c). As the ICRC ,Commentaries explain,
. "[i)tems (a) and (e) concern acts which world public opinion finds particularly revolting-acts
which were committed frequently during the Second World War." Id at 39.
More specifically, the prohibition in subparagraph (a) on "violence to life and person" .
sugge'sts that not all physical contact'with detainees is banned; the word "violence'"connotes "an

_ _:..


2 The analysis set forth in this letter represents our best interpretation of common Article 3 based on a
rigorous examination of the text, history, and structure ofthe Conventions, as well as other interpretive resources.·
As we have stressed on numerous occasions, however; there are vague tenus in common Article 3 that the United
States has had little or no opportunity previously to apply in an actual conflict, that are potentially malleable, 'and
that could be interpreted
different results,
__ ._.__ to reach



exertion ofphysical force so as to injure 'or abuse." Webster's Third New. International
Dictionary 2554; see also id (defining "violent" as "characterized by extreme' force"). The
tex1's examples offorbidden forms of violence only reinforce this meaning: "m~rder ofall
kinds, mutilation, cruel treatment and torture." This list suggests that, although the use of
physical force certainly need not rise to the level of torture to be forbidden, it does need to be'
more than incidental or de minimis and must at least have the potential to cause a d~gree of
actual harm to the detainee. See, e.g., Delalic, supra, ~ 443 ("[C]ruel treatment is trealment
which causes serious menta) or physical suffering or constituted a serious attack ~pon human'
dignity, which i's equivalent-to the offense of inhuman treatment in the framework ofthe grave
breaches of the Geneva Conventions.~'); cf 'Whitley v. Albers, 475 US. 312,319 (1986)
(observing that the term "cruel" in the Eighth Amendment, requires «unnecessary or wanton
infliction ofpain"). What murder, mutilation, cruel treatment, and torture have in common is an
element of depravity and viciol,lsness; that common element suggests. the kinds of force that
common Article 3 seeks to prohibit. See generallyDole v. United Steelworkers ofAm., 494 U. S.
26, 36 (I 990) ("The traditional 'canon ofconstruction, noscitur a sociis, dictates that words
grouped in a list should be given related meaning."). Also, the structure of the Geneva
Conventions makes clear that violence necessary to effect detention is permitted. See GPW Art.
42 (permitting the use of force against prisoners of war attempting to escape).
, Similarly, subparagraph (c)'s use of the phrase "outrages upon personal dignity" should

be understood to mean a relatively significant form of ill-treatment. In this context, "outrage"
appears to carry the meaning of "an act or condition that violates accepted standards." Webster's
Third at I603; see also id. (defining "outrageous" as conduct that "is so flagrantly bad that one's'
'sense of decency or one's power to suffer or tolerate is violated" and giving as synonyms
"monstrous; heinous, [and] atrocious"); cf Knut Dormann, Elements ofWar Crimes'under the
Rome Statute ofthe International Criminal Court 315-16 (2002) ("Elements of War Crimd')
(Qbserving that the Cambridge International Dictionary ofEnglish (1995) defines "outrage" as
"shocking, morally unacceptable and usuallyvioJent action"). Under these definitions,
constitute an "outrage upon personal dignity" within the meaning of common Artic~e 3, an act
must violate some relatively clear and objective standard ofbehavior or acceptable treatment; it
must be something that does not merely insult the dignity of the victim, but that does so in an
obvious or particulady significant manner.


, The fact that the basic prohibition of subparagraph (c) focuses on "outrages" also must .
inform any analysis of what is covered by that provision's prohibition of "humiliating and
degrading treatment," suggesting that conduct must rise to a significant level of seriousness in
order to be forbidden. Importantly, the text is clear that "humiliating and degniding treatment" is
merely a subset of'.'outrages upon personal dignity." This text stands in contra~t to provisions in
other treaties, such as ArticIe'16 of the Convention Against Torture, in which prohibitions on '
"degrading" treatment stand'alone. As the ICTY has explained in addressing common Article 3:
[O]utrages upon personal dignity refer to acts which, without directly causing
harm to the integrity and physical and mental well-b~in'g.of persons, are aimed at

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'which is animated by contempt for the human' dignity of another person. The
corollary is that the act must cause serious humiliation or degradation to the

Prosecutor v. Aletkovski, JCTY-95-14/l, Trial Chamber J (June 25, 1999) ~~ 55-56. Similarly, in .
.discussing an identical prohibition in Article 75 ofProtocol J to the Geneva 'Conventions, the
JCRC observed that it «refers to physical acts, which, without directly causing harm to the
integrity and physical and mental well-being of persons, are aimed at humiliating and ridiculing
them, or even forcing them to perform degrading acts." JeRe, Commentary on Additional
ProtC!cols oj 8 June 1977, at 873 (1987) ("AddWonal Protocols Commentary"). In addition to
being purposive, "outrages upon personal dignity" generally must be defined in relation to an
objective standard ofunacceptable beha:vior. Thus, according to ICTY, the subjective element of
~ outrage "must be' tempered by objective fac.tors; otherwise, unfairness to the accused would
result bel;:ause 'his/her culpabiIjty ",,:ould depend nbt on the gravity of the act but wholly on the
sensitivity ofthe victim. Consequently, an objective component to the acfusreus is apposite:
the hum.iliation to the victim must be so intense that the reasonable person would be outraged."
Aletkovski, supra, ~ 56 (emphasis added).
As with subparagraph (a), therefore, subparagraph (c) is properly understood as
proscribing conductof a particularly serious nature, conduct that is characterized by hostility to
human dignity. The prohibition does not reach trivial slights or insults, but instead reaches only
those that represent a more fundamental"assault on the dignity·ofthe victim. See, e.g.) id. ~ 37
("The victims were not merely inconvenienced or made. uncomfortable~ what they had to endure,
. under the prevailing circumstances, were physical and psychological abuse and outrages that any
human being would have experienced as sucti."). At the same time, however, it seems clear from
the text that 'subparagraph (~) prohibits a broader range of conduct than does subparagraph (a).
Subparagraph (a) is focused primarily, if not exclusively, on physical violence; the actions that it
forbids are those that can be expected to impose some direct physical harm on the detainee. In
contrast, the text of subparagraph (c) does not necessarily include an element of physical for~: it
reaches actions that assault the detainee's ment~lI or psychological well-being, treatment that
amounts to a significant attack on his dignity as a human being without necessarily causing him
to suffer physically.
This element of intent and purpose also raises the relevance of context in applying
subparagraph (c). Certain activities may well be intended solely to humiliate and to degrade in
certain settings, but may be undertaken for a legitimate purpose in others. For example, a
. systematic practice of marching detainees blindfolded in public with the intent to humiliate may
so evince a "hostility to human dignity" as to run afoul of common Article 3. In-contrast,
obstructing the vision of the detainee during transport, with no needless exposure to the public,
for the purpose or maintaining the security ofthe facility would not trigger the same concerns
under subparagraph (c).
With these basic principles in mind, we turn to an evaluation of each of the conditions of
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Accordingly, detainees' vision is blocked
on y unng ose tImes when a;lIowing them to see could ermi them
as their location, the layout of the facility
_ _that could compromise the security ofthe facility. Used in this way, blindfolding is
~eral condition of confinement than a special security measure employed on the
relatively infrequent occasions when the detainee is moved into or around the detention facility.
We see nothing in common Article 3 that would forbid the CIA from taking this precaution.
Blindfolding no doubt requires minimal physical contact, but if hardly involves "violence"; none
. ofthe methods the CIA uses to prevent detainees from seeing is painful or poses any risk of
physical harm, and the d~tainees have no difficulty breathing freely while their vision is
. obstructed. Nor does this limited use of blindfolds amount to an "outrageD upon personal
dignity." Neither its purpose nor effect is to humiliate the detainees; rather, the aim is to ensure
the security of the facilities. And the use of blindfolds is carefully limited in ficope so that it
directly serves that end. Moreover, the detainee is not needlessly exposed to other persons
during this process, underscoring that the intent is not to humiliate. More generally, such
blindfolding is not inhuman; although this may still not be enough to raise problems under
common Article 3, this condition is not "sensory deprivation" aimed at weakening the detainees
psychologically and undermining their sense ofpersonality. Accordingly, we conclude that the
use ofnon-injurious means of temporarily blocking detainees' vision when allowing them to see
could jeopardize institutional'security is consistent with common Artid e 3' s requirement of
humane treatment.
2. The CIA keeps the detainees isolated from
The detainees are· house

You also have indicated that detainees
ese practices help relieve the strain of prolonged
ave access to 00 s, mU.SIC, an movIes.
isolation by providing mental and intellectual stimulation to the detainees. We also note that
each detainee receives_psychological examination to ensure that he is suffering no
adverse effects as a result of this aspect ofhis confinement. We do not conclude that these
measures ·are necessary to satisfy common Article 3, but they do provide significant comfort that
the CIA's detention condition does not approach common Article 3 limits.
We first address whether the incommunicado nature of the detention, whereby the


Article 3. Examining the overall structure of the Geneva Conventions l11akes clear that common
Article 3 does not give detainees an absolute right of communication that would forbid detention
of the sort used by the CIA in its covert facilities. As described above, common Articl~ 3 sets
minimum level of treatment; its protections are thus clearly less robust than those afforded to
other categories of privileged persons whose treatment is regulated by the Geneva Conventions,
in particular, prisoners of war (protected by the Third Convention) and "protected persons"
(protected by the Fourth Cqnvention). Indeed, the provisions of the Conventions dealing with
POWs and protected persons demonstrate that the drafters knew how to afford communication
.rights to individuals held in detention: For example, Article 71 of the Third Convention requires
that POWs "shall be allowed to send and receive letters and ·cards." Article 107 of the Fourth
Convention gives the same right to protected persons who have been interned. Moreover, other
provisions in the Geneva Conventions expressly allow for access to detention facilities by
representatives of the International Committee of the Red Cross and other state parties, and by
family members for particular protected groups.. See GPW Art. 126 (permitting JCRC and state
party representatives to visit prisoner of war detention facilities); GCIV Art. 76 (allowing visits
. by ICRC representatives to protected persons); GCIV Art. 116 (allowing detained protected .
. persons to receive visitors). In contrast, persons protected only by common Article 3 do not
share this express right of communication or to inspection by or notification to international


Even more important to our analysis is the fact that Article 5 of the Fourth Convention
specifically provides that where in occupied territory "an individual protected per~n is detained
as a spy or saboteur. or as a person under definite suspiCion ofactivity. hostile to the security of
the Occupying Power, such person shall, in those cases where absolute military security so
requires, be regarded as having forfeited rights of communication under the present Convention.
See generally 4.rCRe, Commentary: Geneva Convention Relative to the Protection ofCivilian
Persons in Time ofWar 57 (Jean Pic~et, ed. '1958) (observing that the rights of communication
outside world"). The fact that th~
"obviously refer to [th~ detained person's] relations with
Fourt1:l Convention allows protected persons, who are afforded a panoply of rights and
protections that go well beyond the "minimum" th~t common Article 3 provides, to be stripped
of their otherwise expressly protected right to communicate with the outside world where
«absolute military ~ecurity so requires" is powerful evidence that common 'Article 3 was not
meant to tonfer on individuals ineligible for any speciaIly protected statUs under the Geneva
. Conventions a protection against incommunicado detention. Such a reading of common Article
3 would upset the structural integrity of the Conventions. That approach also would be textually
unsound. For, immediat~ly after allowing protected persons held as spies or saboteurs to be
stripped of their express right to communicate, Article 5 insists that such persons "shall
nevertheless be treated with humanity.." This proviso clearly illustrates that the Conventions do
not view incommunicado detention as incompatible with the obligation of humane treatment that
undergirds common Article 3. We therefore conclude that detainees may be prohibited from
communicating with the outside world without rendering their treatment inhumane.



Nor do we perceive a basis for a blanket conclusion that not allowing .detainees to interact

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consistent with the requirement of humane treatment, it is appro"priate to look to cases evaluating
isolation under the Eighth Amendment of the Constitution. After all, like common Article 3, the
Eighth Amendment has been held to require "humane conditions of confinement." Farmer v.
Brennan, 511 U.S. 825,832 (1994); cf Trop v. Dulles, 356 U.S. 86, 100 (1958) ("The basic
concept underlying the Eighth Amendment is nothi~g less than the dignity of man."). Conditions
that our own courts have consistently found to be humane with regard to ordinary prisoners are
thus likely to meet the comparable standard irnposedby cominon Article 3 and applicable to
unlawful c o m b a t a n t s . ·
Accordingly, it is ofgreat significance that the federal courts have. generally held that
holding prisoners in solitary confinemeht, with little or no personal contact with their fell.ow
'inmates, does not constitute "cruel and unusual punishment" in violation of the Eighth
Amendment. See Novack v. Beto, 453 F.2d 661, 665 (5th Cit. 1972) (noting the "long line of
cases, to which we have found no exception, holding that solitary confinement is not itself
constitutionally objectionable"); cf. Hutto v. Finney; 437 U.S. 678, 686 (1978) (observing that it
is "perfectly obvious that evt?IY decision to remove a particular inmate from the general prison
population for an indeterminate period could not be characterized as cruel and unusual"). In
Jackson v. Meachum, 699 F.2d 578, 5& 1 (1 st Cir. 19&3), for instance, the First Circuit held that
even "very extended indefinite segregated confinement in a facility that provides satisfactory
shelter, clothing, food. exercise, sanitation, lighting, heat; bedding, medical an9 psychiatric
attention, and personal safety, but virtually no communication or association with fellow
inmates" is not cruel and unusual. Our courts also have rejected claims that isolation becomes
unconstitutionally cruel or inhumane merely because of its indefinite or exte~ded nature, though
they have noted that the temporal element may be a factor. See In reLong Term Administrative
Segregation ofInmates DeSignated as Five Percenters. 174 F.3d 464, 472 (4th Cir. 1999); Sweet
v. South Carolina Dep't a/Corrections, 529 F.2d 854, 861 (4th Cir. 1975). The cases illustrate
that isolating detainees and limiting their ability to communicate with other detainees, even if
psychologically taxing. is not inherently inhumane. Inpeed, as Knut Dormann, a leading
. commentator on international humanitarian law, has observed, "[s]olitary confinement, or
segregation, of persons in detention, is not itself inhuma~e treatment. It is permissible for
reasons of security or discipline or to protect the segregated prisoner from other prisoners or vice
versa." Elements o/War Crimes 68 (further suggesting that such measures should be evaluated
on a ~ase-by-case basis).
. Nevertheless, we recognize the strain that extended isolation may exact, particularly if
that isolation is not relieved by giving detainees access to other forms of mental stimulation, such
as books, writing materials, games, and music. We understand that all detainees currently have
access to such materials. We further understan(i that some of tbese detainees have been subject
to this condition for a few years. However. we do not believe that the duration ofthe isolation
exceeds the strictures of COP1mon Article 3. We view it as important that the isolation imposed is
tailored to security and intelligence purposes-that is, preventing the coordination of attacks on
facility personnel or false stories among co~conspirators. But we think that, at least at present,
the CIA's practice of keeping detainees in solitary co~finernent in which they are unable to see




3. The CIA plays white noise in the walkways of the detention facilities to prevent the
detainees from being able to-communicate with each. other while they are being moved within
the fadlity. Significantly,. the noise is not piped directly into the detainees' cells, although it is
possible that the detainees are able to hear some of that noise in their cells, as the walls that
separate the walkway from the cells are not soundproof Nevertheless, V<!e can safely assume that
the noise level in the cells is considerably lower than the level in the walkways; recent
measurements indicated that the noise level in the cells was in the range of 56-58 dB, compared
with a range of 68-72 dB in the walkways. The volume in the cells is thus comparable to that of
normal conversation, There is no risk of hearing damage or loss even from 24-hour-a-day
exposure to sound at that level. We also understand that the CIA has observed the noise to have
no effect on the detainees' ability to sleep.
Used in this very limited way you have described, white noise does not violate jommon
Article 3, There is nothing inhumane about the incidental exposure of detainees to noif that is
no louder than the level of ordinary conversation and certainly not .loud enough to cause
physical harm or to interfere with sleep. Being exposed to such relatively insignificant noise
levels ca"n in no way be described as an act ofviolence. Nor does it represent an "outrage upon
personal'dignity" within the meaning of common Article 3. Neither the purpose nor effect of the
white noise is to "cause serious humiliation or degradation" to the detainees, Aletkovski, sUpra, ~
56; instead, the noise, much like temporary blindfolding, is simply a limited measure aimed at :
. protecting the "security of the detention facility by preventing the detainees from communicating
with each other. It cannot be characterized as an affron't to human dignity.
4. The CIA also keeps the detainees' cells illuminated 24of
Confinement allows ciA staff to monitor the detainees at all times
evaluating this condition, we find it significant that the light is not unusually bright and that it
has not been observed to interfere with the detainees' ability to sleep nQrmally. Indeed, if they
wish, the detainees are permitted to cover their eyes with the blankets in their cells (or with
eyeshades) in order to block out the light while they are sleeping. Although this practice
presents a closer issue than some of the other conditions of confinement used by the CIA, we
ultimately believe that it is consistent with common Article 3.
The full-time illumination ofthe detainees' cells is not inherently inhumane~ it is not used
'in a manner that impairs the basic human needs ofthe detainees. Nor is the security surveillance
that the illumination makes po~sible inhumane'or otherwise contra to common Article 3. To
be sure, we recognize that being monitored around the clock
could result in some degree ofhUmiliation. But the very nature 0 detention, whIch common "
Article 3 certainly does not forbid, is such that one must surrender a certain"degree of privacy
. along-with one's personal freedom. See, e.g.. Bel/v. Wolfi~h, 441 U.S. 520,537 (1979)
(observing that "[1]058 of freedom of choice and privacy are inherent incidents of confinement").
This inescapable fact must infonn any analysis ofthe sorts of humiliations and degradations
forbidden by common Article 3. And where, as here, the surveillance is not undertaken
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instead for entirely legitimate security reasons, we think that it does not represent an "outrage[]

Our conclusion should not be understood tq suggest that concerns about security will
negate common Article 3'5 prohibitions on. inhumane treatment and outrages upon personal
dignity. Cf GPW Cqmmentary at 140 ("The requirement of humane treatment and the
prohibition of certain acts inconsistent with ·it are general and absolute in character."}. Instead,
the point, which is reflected in the international case law applyi~g common Article 3, is that in
determining whether certain forms oftreatment are in fact sufficiently outrageous to warrant
condemnation, one must consider the context in which that treatment is ~sed and the reasons for
which it was imposed. See, e.g.; Prosecutor v. Mucic, ICTY 96-12 (Nov. 16, 1998), ~.514
(holding that whether treatment is inhum~ne is a '-'question offact to" be judged in all the'
circumstances ofthe particular case'~); Aletlcovski, supra, V57 ("An Qutrage upon personal
dignity is ari act which is animated by contempt for the human dignity of another person.")
(emphasis added). Conduct, like the CIA's use of constant illumination, that' is not characterized
by a desire to humiliate or. degrade, but that instead is carefully tailored to advance a specific and'
manifestly legitimate security objective; and does so without causing unnecessary hardship, will
generaIly fall outside the proscriptions of subparagraph (c).
There is also support for this condition in other pro,visions of the Conventions. GPW
Article 92 allows the detaining authority to' subject even prisoners of war recaptured .after an
unsuccessful escape to "special surveillance." Xhis term is not further defined, except to exclude
sUlveilIance that "affects the state oftheir health" or suppresses "safeguards granted them by the
present Convention." In Pietet's Commentary, this "special surveillance" has been referred to as
uf htd . d" 3 Pictet, Commentary, at 452. Given that the illumination' and the constant
•o not threaten the health of CIA detainees,
unavailable at the time the Conventio~s were ra e , may very we
constltute permISSIble "special surveiJIance" under Article 92. As explained above, the structure
of the Conventions makes clear that treatment explicitly permitted in certain circumstances as to
prisoners 'ofwar or protected persons cannot be understood to violate the minimum protections
provided by common Article 3.



5. We next consider the practice of shackling detain.ees when they are being moved
around the detention facilities or ",:hen CIA personnel are in the room with them. You have
informed us that detainees are only shackled in situations where the CIA believes they might
pose a threat to the facility or those who work there. Detainees thus are not shackled in their
cells unless they have previously demonstrated that they are a threat while in their cells.. Like
blindfolding, therefore, shackling is less a general condition ofthe detainees' confinement than a
particularized security measure limited in its scope and duration_ Indeed, we understand that, at
present, .no detainee is shackled 24 hours per day. In addition, shackling 'is done in such a


shackled, detainees are able to walk comfortably, Used in this limited and carefully calibra'ted
way, shackling does not violate common·Article 3.
In setting minimum standards specifically intended to apply to those "placed hOTs de
co!1lbat by ... detention," common Article 3 plainly contemplates that detention may be
. effectuated by restricting the freedom of movement of dehinees.That, after all, is inherent in
the nature of detention. As SUCh. common Article 3 cannot be read ~s proscribing the use of
restraints, such as shackles. in all circumstances. Indeed, ifusing physical restraints were·
inherently inhumane, common Article 3 would effectively prohibit the involuntary detention of
anyone covered by the provision, a result that the text clearJydoes not contemplate. At the same
time. however, it seems obvious that shackles could be used in ways inconsistent with the
general obligation of humanetreatment. To restrain a detainee with shackles that injure the body
or cut otTthe flow of blood could represent "violence to life and person." ifthe resulting
sutTering or physical harm were expected to be severe. Similarly. to keep a detainee in highly··
restrictive shackles around the clock, at least where no genuine security concern justifies such .
restraint, might well raise. questions. Where no sec·urity rationale exists, and the purpose ofthe
shackling is merely to humiliate the detainee or to break his spirit, additional commori Article 3
consideratiQ,!s would be present. ·In evaluating the use of shackling, therefore, the task set by
common Article 3 is to determine whether the restraints ate b~ing used legitimately and in ways
that minimize the potential for injury or sutTering.
Judged by these standards, the CIA's use of shackling, as a limited $ecurity measure, and
as you have described it, is permi~sible. Critical to our analysis is the fact that the CIA carefully
tailors its ~hack1ing regime to the danger posed by an individual detainee, The shackles are thus
used. only when the detainee is in a situation in which he· might pose a threat" (such as when he is
being moved around the facility) or when his past conduct has clearly demonstrated his danger.
Also significant i~ our understanding that. while shackled, detainees are able to move
comfortably and that the shackles are fitted to avoid causing any bodily harm. These points
illustrate that the 'shackling here is linked to genuine and h~gitimate concerns about institutional
security, and is not imposed on detainees vindictively or in a way indifferent to their well-being.
Indeed, our conclusion might well be different were detainees routinely shackled in su·ch a way
as to .cause them physical pain or sutTering without regard to the security risks they pose. But to
shackle a demonstrably violent or escape-minded detainee while he is in close proximity to CIA
personnel. where the shackles are merely a restraint and not a source of injury, is not inconsistent
with the requirement of humane treatment.
6, The next condition we consider is the CIA's practice of shaving the head and facial
hair of each detainee with an electric razor when the detainee initially arrives at the detention
facility. The shaving is not done as a punitive measure; its primary purpose is to prevent
detainees from hiding small items in their hair or beards; as well as to ensure the hygiene of the
detainees. Importantly. mandatory shaving only occurs upon arrival; once the detainee is
situated in .the facility, he is allowed to grow his hair and beard to whatever length he desires
..<-within.limits .of.h.y-giene..and_safety}._MOLe.OY_er,_y.Q1!.b~y~iQf.QIm~Q. Yl!_.1~t !hsU::;I~_ QI.Qyl~~ . ._.
detainees with the option of shaving other parts of their bodies~cogmtlOn ofspecJtlc IslamiC



practices. Although we recognize that facial hair has an important cultural and religious
dimension, and that some might perceive being involuntary shorn of their hair and beard as
degrading, we conclude that the very limited fomi ofshaving that the CIA practices is consistent
, with common Article 3. Context is important here. The shaving is a one-time measure,
performed at'the moment 'when it most clearly and directly advances the CIA's interest in the
security of its facilities. The fact that the CIA subsequently allows detainees to grow their hair
and beards in a manner dictated by cultural or religious preferences illustrates that shaving is not
used here as a form ofhumiliation or degradation, but instead as a bona fide security measure.
'The CIA does not shave detainees in order to take advantage of their cultural or'religious
sensitivities, or to exploit whatever psychological vulnerability that practice may create. To the
contrary, the agency makes every effort, consistent with its overall security objectives, to
accommodate their detainees' desires, if any, to grow their hair and thereby to avoid humiliating
them. Used as described above, therefore, shaving is not "aimed at humiliating arid ridiculing"
the detainees, Additional Protocols Commentary at 873, and dOes hot amount to the kind of
outrageous or inhumane treatment forbidden by common Article 3. Nor does the incidental force
needed to accomplish the shaving remotely rise to the level of "violence to ... person"
prohibited by subparagr~ph (a).
, Finally, we discuss whether the use of these conditions in combination complies with
common Article 3. To this,point, we have discussed whether anyone of these conditions would
violate common Article'3. We understand, however, that the collective weight ofthese
conditions may raise different questions. The detainee is isolated from companions of his
choosing, confined to his cell for much of each day, under constant surveillance, and is never
permitted a moment to rest in the dark~ess and privacy that most people seek during sleep.
These are not conditions that humans strive for. But they do reflect the realities of detention,
realities that ~he Geneva Conventions accommodate, where persons will have to sacrifice some
measure ofprivacy arid liberty while under detention. They also are justified by the
extraordinarily dangerous nature bfthese detainees, and the risk that they will conspire to
compromise the security of the detention facility.


The Third Geneva Convention strikes a different balance between security, on the one
hand, and privacy and liberty, on the other, with regard to prisoners ofwar. That Convention
also establishes a reciprocal arrangement between captor and:detaine,e under which d,etainees, in
exchange for these greater privileges, have an international law obligation, to follow the
, reasonable rules of the facility. Al Qaeda detainees, who do not follow the laws of war, are not
part of such a reciprocal arrangement. Common Article 3 rests on the premise that certain
persons, not subject to the elaborate protections of the Third or Fourth G~neva' Conventions, will
have to be detained during the course of non-international armed conflicts, and we do' not believe
that conditions in CIA facilities fall below the minimum standards-that common Article 3
mandates for such persons.



other diyersions in the form o( books, music, videos, and games, short of
interactions with their co-combatants. Other measures-()bstrueting vision and shackling-are
limited to the tImes when d.etainees pose the greatest risk to the security ofthe facility and those
who work there. We do not believe that the combination ofthese features falls below the
«minimum standard" of humanity specified in common Article 3.

For the foregoing reasons, we conclude that none of the conditions of confinement used .
by the CIA at its covert, overseas detention facilities, 'as you have described those conditions to
us, violates common Article 3.
Please let us know if we can be of further assistance.

Steven G. Bradbury
Acting Assistant Attorney General

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