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USDOJ Seal U.S. Department of Justice Office of Legal Counsel Office of thePrincipalDeputy Assistant Attorney General Washington. D.C. 20530 July 20, 2007 MEMORANDUM FOR JOHN A. RIZZO ACTING GENERAL COUNSEL, CENTRAL INTELLIGENCE AGENCY Re: Application of the War Crimes Act, the Detainee Treatment Act, and Common Article 3 of the Geneva Conventions to Certain Techniques that May Be Used by the CIA in the Interrogation ofHigh Value al Qaeda Detainees You have asked whether the Central Intelligence Agency may lawfully employ six "enhanced interrogation techniques" in the interrogation of high value detainees who are members of al Qaeda and associated groups. Addressing this question requires us to determine whether the proposed techniques are consistent with (1) the War Crimes Act, as amended by the, Military Commissions Act of 2006; (2) the Detainee Treatment Act of 2005; and (3) the requirements of Common Article 3 of the Geneva Conventions. As the President announced on September 6,2006, the CIA has operated a detention and interrogation program since the months after the attacks of September 11,2001. The CIA has detained in this program several dozen high value terrorists who were believed to possess critical information that could assist in. preventing future terrorist attacks, including by leading to the capture of other senior al Qaeda operatives. In interrogating a small number of these terrorists, the CIA applied what the President described as an "alternative set of procedures"—and what the Executive Branch internally has referred to as "enhanced interrogation techniques." These techniques were developed by professionals in the CIA, were approved by the Director of the CIA, and were employed under strict conditions, including careful supervision and monitoring, in a manner that was determined to be safe, effective, and lawful. The President has stated that the use of such techniques has saved American lives by revealing information about planned terrorist plots. They have been recommended for approval by the Principals Committee of the National Security Council and briefed to the full membership of the congressional intelligence committees. Prior to the President's announcement on September 6,2006, fourteen detainees in CIA custody were movedfromthe secret location or locations where they had been held and were transferred to the custody of the Department of Defense at the U.S. Naval Base at Guantanamo Bay, Cuba; no detainees then remained in CIA custody under this program. Now, however, the CIA expects to detain further high value detainees who meet the requirements for the program, and it proposes to have six interrogation techniques available for use, as appropriate. The CIA has determined that these six techniques are the minimum necessary to maintain an effective program designed to obtain critical intelligence. The past eighteen months have witnessed significant changes in the legal framework applicable to the armed conflict with al Qaeda. The Detainee Treatment Act ("DTA"), which the President signed on December 30, 2005, bars the imposition of "the cruel, unusual, [or] inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments; to the United States Constitution" on anyone in the custody of the United States Government, ; regardless of location or nationality. The President had required United States personnel to follow that standard throughout the world as a matter of polity prior to the enactment of the DTA; the DTA requires compliance as a matter of law/1 On June 29,2006, the Supreme Court decided Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), holding that the military commissions established by the President to try unlawful enemy combatants were not consistent with the law of war, which at thetimewas a general requirement of the Uniform Code of Military Justice. Common Article 3 of the Geneva Conventions was a part of the applicable law of war, the Court stated, because the armed conflict with al Qaeda constituted a "conflict not of an international character." The Court's ruling was contrary to the President's prior determination that Common Article 3 does not apply to an armed conflict across national boundaries with an international terrorist organization such as al Qaeda. See Memorandum of the President for the National Security Council, Re: Humane Treatmentofal Qaeda and Taliban Detainees at 2 (Feb. 7, 2002). The Supreme Court's decision concerning the applicability of Common Article 3 introduced a legal standard that had not previously applied to this conflict and had only rarely been interpreted in past conflicts. While directed at conduct that is egregious and universally condemned, Common Article 3 contains several vague and ill-defined terms that some could have interpreted in a manner that might subject United States intelligence personnel to unexpected, post hoc standards for their conduct. The War Crimes Act magnified the significance of any disagreement over the meaning of these terms by making a violation of Common Article 3 a federal crime. 1 Reflecting this policy, this Office concluded seven months before enactment of the DTA that the six enhanced interrogation techniques discussed herein complied with the substance of U.S. obligations under Article 16 of the Convention Against Torture and Other Inhuman or Degrading Treatment, 1465 U.N.T.S. 85 ("CAT"). See Memorandum for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency,fromSteven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, Re: Application of United States Obligations Under Article 16 ofthe Convention Against Torture to Certain Techniques that May Be Used in the Interrogation of High Value al Qaeda Detainees (May 30,2005). The President worked with Congress in the wake of the Hamdan decision to provide clear legal standards for U.S. personnel detaining and interrogating terrorists in the armed conflict with al Qaeda, an objective that was achieved in the enactment of the Military Commissions Act of 2006 ("MCA"). Of most relevance here, the MCA amended the War Crimes Act, 18 U.S.C. § 2441, to specify nine discrete offenses that would constitute grave breaches of Common Article 3. See MCA § 6(b). The MCA further implemented Common Article 3 by stating that the prohibition on cruel, inhuman, and degrading treatment in theDTA reaches conduct, outside of the grave breaches detailed in the War Crimes Act, barred by Common Article 3. See id § 6(c). The MCA left responsibility for interpreting the meaning and application of Common Article 3, except for the grave breaches defined in the amended War Crimes Act, to the President. To this end, the MCA declared the Geneva Conventions judicially unenforceable, see, id § 5(a), and expressly provided that the President may issue an interpretation of the Geneva j Conventions by executive order that is "authoritative . . . as a matter of United States law. in the same manner as other administrative regulations." Id § 6(a). This memorandum applies these new legal developments to the six interrogation techniques that the CIA proposes to use with high value al Qaeda detainees.2 Part I provides a brief history of the CIA detention program as well as a description of the program's procedures, safeguards, and the six enhanced techniques now proposed for use by the CIA. Part II addresses the newly amended War Crimes Act and concludes that none of its nine specific criminal 2 This memorandum addresses the compliance of the six proposed interrogation techniques with the two statutes and one treaty provision at issue. We previously have concluded that these techniques do not violate the federal prohibition on torture, codified at 18 U.S.C. §§ 2340-2340 A. See Memorandum for John A. Rizzo, Senior. Deputy General Counsel, Central Intelligence Agency,fromSteven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, Re: Application of 18 U.S.C. §§ 2340-2340A to Certain Techniques that May Be Used in the Interrogation of a High Value al Qaeda Detainee (May 10,2005) ^Section 2340 Opinion"); ste also Memorandum for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, from Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, Re: Application of 18 U.S.C §§ 2340-2340A to the Combined Use of Certain Techniques in the Interrogation of High Value al Qaeda Detainees (May 10, 2005) ('Combined Use'1) (concluding that the combined use of these techniques would not j violate the federal prohibition on torture). In addition, we have determined that the conditions of confinement in the CIA program fully comply with the DTA and Common Article 3, and we do not address those conditions again here. See Memorandum for John A. Rizzo, Acting General Counsel, Central Intelligence Agency, from Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, Re: Application of the Detainee TreatmentAct to Conditions of Confinement of Central Intelligence Agency Facilities (Aug. 31,2006); Letter to John A. Rizzo, Acting General Counsel, Central Intelligence Agency, from Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, Re: Application of Common Article 3 to Conditions of Confinement at CIA Facilities (Aug. 31, 2006). Together with our prior opinions, the questions we discuss in this memorandum fully address the potentially relevant sources of United States law that are applicable to the lawfulness of the CIA detention and interrogation program. We understand that the CIA proposes to detain these persons al sites outside the territory of the United States and outside the Special Maritime and Territorial Jurisdiction of the United States ("SMTJ"). as defined in IS U.S.C. § 7, and therefore other provisions in tide 18 are not applicable. In addition, we understand that the CIA will not detain in this program any person who is a prisoner of war under Article 4 of the Third Geneva Convention Relative to the Protection of Prisoners of War, 6 U.S.T. 3316 (Aug. 12,1945) ("GPW") or a person covered by Article 4 of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 6 U.S.T. 3516 (Aug. 12,1949) C'GCV"), and thus the provisions of the Geneva Conventions other than Common Article 3 also do not apply here. offenses prohibits the sixtechniquesas proposed to be employed by the CIA. In Part HI, we consider the DTA and conclude that the six techniques as proposed to be employed would satisfy its requirements. The War Crimes Act and the DTA cover a substantial measure of the conduct prohibited by Common Article 3; with the assistance of our conclusions in Parts II and III, Part IV explains that the proper interpretation of Common Article 3 does not prohibit the United Statesfromemploying the CIA's proposed interrogation techniques. To make that determination conclusive under United States law, the President may exercise his authority under the Constitution and the Military Commissions Act to issue an executive order adopting this interpretation of Common Article 3. We understand that the President intends to exercise this authority. We have reviewed his proposed executive order: The executive order is wholly consistent with the interpretation of Common Article 3 provided herein, and the six proposed interrogation techniques comply with each of the executive order's terms. The CIA now proposes to operate a limited detention and interrogation program pursuant to the authority granted by the President The C I A does not intend for this program to involve long-term detention, or to serve a purpose similar to that of the U.S. Naval Base at Guantanamo Bay, Cuba, which is in part to detain dangerous enemy combatants, who continue to pose a threat to the United States, until the end of the armed conflict with al Qaeda or until other satisfactory arrangements can be made. To the contrary, the CIA currently intends for persons introduced into the program to be detained only so long as is necessary to obtain the vital intelligence they may possess. Once that end is accomplished, the CIA intends to transfer the detainee to the custody of other entities, including in some cases the United States Department of Defense.3 3 This formula has been followed with regard to one person held in CIA custody since the President's September 6,2006 remarks during which he announced that the program was empty at that time. The CIA took thegroupofpersonstowhomtheCIAmayapplyinterrogationtechniquesalso limited detainees who meet that standard, however, the ClAdoesnotproposedtouseenhanced interrogation techniques unless the CIA has made three additional determinations. First, the CIA must conclude that the detainee is a member or agent of al Qaeda or its affiliates and is likely to possess critical intelligence of high value to the United States in the Global War on Terror, as further described below. Second, the Director of the CIA must determine that enhanced interrogation methods are needed to obtain this crucial information because the detainee is withholding or manipulating intelligence or the threat of imminent attack leaves insufficient time . for the use of standard questioning. Third, the enhanced techniques may be used with a particular detainee only if, in the professional judgment of qualified medical personnel, there are no significant medical or psychological contraindications for their use with that detainee. i. The program is limited to persons whom the Director of the CIA determines to be a member of or a part of or supporting al Qaeda, the Taliban, or associated terrorist organizations and likely to possess information that could prevent terrorist attacks against the United States or its interests or that could help locate the senior leadership of al Qaeda who are conducting its campaign of terror against the United States,4 Over the history of its detention and interrogation program,fromMarch 2002 until today, the CIA has had custody of a total of 98 detainees in the program. Of those 98 detainees, the CIA has only used enhanced techniques with a total of 30. The CIA has told us that it believes many, if not all, of those 30 detainees had received training in the resistance of interrogation methods and that al Qaeda actively seeks information regarding U.S. interrogation methods in order to enhance that training. 2. The CIA has informed us that, even with regard to detainees who are believed to possess high value information, enhanced techniques would not be used unless normal debriefing methods have been ineffective or unless the imminence of a potential attack is believed not to allow sufficient time for the use of other methods. Even under the latter circumstance, the detainee will be afforded the opportunity to answer questions before the use of any enhanced techniques. In either case, the on-scene interrogation team must determine that the detainee is withholding or manipulating information. The interrogation team then develops a written interrogation plan. Any interrogation plan that would involve the use of enhanced techniques 2007, the CIA placed al-Hadi in the custody of the Department of Defense. 4 The CIA informs us that it currently views possession of information regarding the location of Osama bin Laden or Ayman al-Zawahiri as warranting application of enhanced techniques, if other conditions are met must be personally reviewed and approved by the Director of the Central Intelligence Agency. Each approval would last for no more than 30 days. 3. The third significant precondition for use of any of the enhanced techniques is a careful evaluation of the detainee by medical and psychological professionals from the CIA's Office of Medical Services ("OMS"). The purpose of these evaluations is to ensure the detainee's safety at all times and to protect himfromphysical or mental harm. OMS personnel are not involved in the work of the interrogation itself and are present solely to ensure the health and the safety of the detainee. The intake evaluation includes "a thorough initial medical assessment... with a complete, documented history and a physical [examination] addressing in depth any chronic or previous medical problems." OMSGuidelineson Medical and Psychological Support to Detainee Rendition, Interrogation and Detention at 9 (Dec. 2004) ("OMS Guidelines"). In addition, OMS personnel monitor the detainee's condition throughout the application of enhanced techniques, and the interrogation team would stop the use of particular techniques or halt the interrogation altogether if the detainee's medical or psychological condition were to indicate that the detainee might suffer significant physical or mental harm. See Section 2340 Opinion at 5-6. Every CIA officer present at an interrogation, including OMS personnel, has the authority and responsibility to stop a technique if such harm is observed. B. The proposed interrogation techniques are only one part of an integrated detention and interrogation program operated by the CIA. The foundation of the program is the CIA's knowledge of the beliefs and psychological traits of al Qaeda members. Specifically, members of al Qaeda expect that they will be subject to no more than verbal questioning in the hands of the United States, and thus are trained patiently to wait out U.S. interrogators, confident that they can withstand U.S. interrogation techniques. At the same time, al Qaeda operatives believe that they are morally permitted to reveal information once they have reached a certain limit of discomfort. The program is designed to dislodge the detainee's expectations about how he will! be treated in U.S. custody, to create a situation in which he feels that he is not in control, and to establish a relationship of dependence on the part of the detainee. Accordingly, the program's intended effect is psychological; it is not intended to extract information through the imposition _of_physical pain. The CIA has designed the techniques to be safe. Importantly, the CIA did not create the proposed interrogation techniquesfromwhole cloth. Instead, the CIA adapted each of the techniquesfromthose used in the United States military's Survival, Evasion, Resistance, and Escape ("SERE") training. The SERE program is designed to familiarize U.S. troops with interrogation techniques they might experience in enemy custody and to train these troops to resist such techniques. The SERE program provided empirical evidence that the techniques as used in'the SERE program were safe. As a result of subjecting hundreds of thousands of military personnel to variations of the six techniques at issue here over decades, the military has a long experience with the medical and psychological effects of such techniques. The CIA reviewed the military's extensive reports concerning SERE training. Recognizing that a detainee in CIA custody will be in a very different situationfromU.S. military personnel who experienced SERE training, the CIA nonetheless found it important that no significant or lasting medical or psychological harm had resultedfromthe use of these techniques on U.S. military personnel over many years in SERE training. All ofthe techniques we discuss below would be applied only by CIA personnel who are highly trained in carrying out the techniques within the limits set by the CIA and described in this memorandum. This training is crucial—the proposed techniques are not for wide application, or for use by young and untrained personnel who might be more likely to misuse or abuse them. The average age of a CIA interrogator authorized to apply these techniques is 43, and many possess advanced degrees in psychology. Every interrogator who would apply these enhanced techniques is trained and certified in a course that lasts approximately four weeks, which includes mandatory knowledge of the detailed interrogation guidelines that the CIA has developed for this program. This course entails for each interrogator more than 250 hours of training in the techniques and their limits. An interrogator works under the direct supervision of experienced personnel before he is permitted principally to direct an interrogation. Each interrogator has been psychologically screened to minimize theriskthat an interrogator might misuse any technique. We understandfromyou that these procedures ensure that all interrogators understand the design and purpose of the interrogation techniques, and that they will apply the techniques in accordance with their authorized and intended use.s „ The CIA proposes to use two categories of enhanced interrogation techniques: conditioning techniques and corrective techniques. The CIA has determined that the six techniques we describe below are the minimum necessary to maintain an effective program for obtaining the type of critical intelligencefroma high value detainee that the program is designee to elicit. s In describing and evaluating the proposed techniques in this Memorandum, we are assisted by the experience that CIA interrogators and medical personnel have gained through the past administration of enhanced interrogation techniques prior to the enactment of the DTA. At that time, those techniques were designed by CIA personnel to be safe, and this Office found them to be lawful under the then-applicable legal regimes {i.e., before the enactment of the DTA and the MCA and the Supreme Cam's decision in Hamdon). See supra atn.2. You have informed us that the CIA's subsequent experience in conducting the program has confirmed that judgment. 1. Conditioning techniques You have informed us that the proposed conditioning techniques are integral to the program's foundational objective—to convince the detainee that he does not have control over . his basic human needs and to bring the detainee to the point where he finds it permissible, consistent with his beliefs and values, todisclosethe information he is protecting. You have also told us that this approach is grounded i o B ^ B o i o w l e d g e of al Qaeda training, which authorizes the disclosure of information at such a point. The specific conditioning techniques at issue here are dietary manipulation and extended sleep deprivation. Dietary manipulation would involve substituting a bland, commercial liquid meal for a detainee's normal diet. As a guideline, the CIA would use a formula for calorie intake that depends on a detainee's body weight and expected level of activity. This formula would ensure that calorie intake will always be at least 1,000 kcal/day, and that it usually would be significantly higher.* By comparison, commercial weight-loss programs used within the United; States commonly limit intake to 1,000 kcal/day regardless of body weight. CIA medical officers ensure that the detainee is provided and accepts adequate fluid and nutrition, and frequent monitoring by medical personnel takes place while any detainee is undergoing dietary manipulation. Detainees would be monitored at all times to ensure that they do not lose more than ten percent of their starting body weight, and if such weight loss were to occur, application of the technique would be discontinued. The CIA also would ensure that detainees, at a minimum, drink 35 rmVkg/day of fluids, but a detainee undergoing dietary manipulation may drink as much water as he reasonably pleases. Extended sleep deprivation would involve keeping the detainee awake continuously for up to 96 hours. Although the application of this technique may be reinitiated after the detainee is allowed an opportunity for at least eight uninterrupted hours of sleep, CIA guidelines provide that a detainee would not be subjected to more than 180 hours of total sleep deprivation during one 30-day period.7 Interrogators would employ extended sleep deprivation primarily to weaken a detainee's resistance to interrogation. The CIA knows from statements made by al Qaeda members who have been interrogated that al Qaeda operatives are taught in training that it is consistent with their beliefs and values to cooperate with interrogators and to disclose information once they have met the limits of their ability to resist. Sleep deprivation is effective in safely inducing fatigue as one means to bring such operatives to that point. 6 The CIA generally follows as a guideline a calorie requirement of 900 kcal/day + 10 kcal/kg/day. This quantity is multiplied by 1.2 for a sedentary activity level or 1.4 for a moderate activity level. Regardless of this formula, the recommended minimum calorie intake is 1500 kcal/day, and in no event is the detainee allowed to receive less than 1000 kcal/day. The guideline caloric intakefora detainee who weighs 150 pounds (approximately 68 kilograms) would therefore be nearly 1.900 kcal/day for sedentary activity and would be more than 2,200 kcal/day for moderate activity. In this memorandum we address only the lawfulness of a period of continuous sleep deprivation of no more than 96 hours. Should the CIA determinettiatit would be necessary for the Director of the CIA to approve an extension of that period with respect to a particular detainee, this Office would provide additional guidance on the application of the applicable legal standards to the facts of that particular case. t h e CIA uses physical restraints to prevent the detainee from falling asleep. The detainee is shackled in a standing position with his hands in front of his body, which prevents him from falling asleep but allows him to move around within a two- to three-foot diameter area The detainee's hands are generally positioned below his chin and above his heart.8 Standing for. such an extended period of time can cause the physical effects that we describe below. We are told, and we understand that medical studies confirm, that clinically significant edema (an excessive swelling of the legs and feet due to the building up of excess fluid) may occur after an extended period of standing. Due to the swelling, this condition is easily diagnosed, and medical personnel would stop the forced standing when clinically significant symptoms of edema were recognized. In addition, standing for extended periods of time produces muscle stress. Though this condition can be uncomfortable, CIA medical personnel report that the muscle stress associated with the extended sleep deprivation technique is not harmful to the detainee and that detainees in the past have not reported pain. The detainee would not be allowed to hang by his wrists from the chains during the administration of the technique. If the detainee were no longer able to stand, the standing component of the technique would be immediately discontinued. The detainee would be monitored at all times through closed circuit television. Also, medical personnel will conduct frequent physical and psychological examinations of the detainee during application of the technique.9 We understand that detainees undergoing extended sleep deprivation might experience "unpleasant physical sensations from prolonged fatigue, including a slight drop in body temperature, difficulty with coordinated body movement and with speech, nausea, and blurred vision." Section 2340 Opinion at 37; see also id. at 37-38; Why We Sleep: The Functions of Sleep in Humans and Other Mammals 23-24 (1998). Extended sleep deprivation may cause diminished cognitive functioning and, in a few isolated cases, has caused the detainee to experience hallucinations. Medical personnel, and indeed all interrogation team members, are instructed to stop the use of this technique if the detainee is observed to suffer from significant impairment of his mental functions, including hallucinations. We understand that subjects deprived of sleep in scientific studies for significantly longer than the CIA's 96-hour limit on continuous sleep deprivation generally return to normal neurological functioning with one night of normal sleep. See Section 2340 Opinion at 40. Because releasing a detainee from the shackles to utilize toilet facilities would present a significant security risk and would interfere with the effectiveness of the technique, a detainee * The CIA regards this shackling procedure as stalling the dock on the 96-hour limitforthe proposed sleep deprivation techniqne. Similarly, withregardto the overall sleep deprivation limit of 180 hours, the CIA does not apply the shackling procedures for more than a total of 180 hours in one 30-day period. 9 If medical personnel determine, based on their professional judgment, that the detainee's physical condition does not permit him to stand for an extended period, or if a detainee develops physical complications from extended standing, such as clinically significant edema or muscle stress, then interrogators may use an alternative method of sleep deprivation. Under that method, the detainee would be shackled to a small stool, effective for supporting his weight, but of insufficient width for him to keep his balance during rest. undergoing extended sleep deprivationfrequentlywears a disposable undergarment designed for adults with incontinence or enuresis. The undergarments are checked and changed regularly, and the detainee's skin condition is monitored. You have informed us that undergarments are used solely for sanitary and health reasons and not to humiliate the detainee, and that the detainee will wear clothing, such as a pair of shorts, over the under-garment during appl ication of the technique. 2. Corrective techniques Corrective techniques entail some degree of physical contact with the detainee. Importantly, these techniques are not designed to inflict pain on the detainee, or to use pain to obtain information. Rather, they are used "to correct [or] startle." Background Paper at 5. This category of techniques, as well, is premised on an observed feature of al Qaeda training and mentality—the belief that they will not be touched in U.S. custody. Accordingly, these techniques "condition a detainee to pay attention to the interrogator's questions and . . . dislodge expectations that the detainee will not be touched" or that a detainee can frustrate the interrogation by simply outlasting or ignoring the questioner. Section 2340 Opinion at 9. There are four techniques in this category. The "facial hold" is used to hold a detainee's head temporarily immobile during interrogation. One open palm is placed on either side of the individual's face. The fingertips are kept well away from the individual's eyes. The facial hold is typically applied for a period of only a few seconds. The "attention grasp" consists of grasping the individual with both hands, one hand on each side of the collar opening, in a controlled and quick motion. In the same motion as the grasp, the individual is drawn toward the interrogator. The interrogator uses a towel or other collaring device around the back of the detainee's neck to prevent any whiplash from the sudden motion. Like the facial hold, the attention grasp is typically applied for a period of only a few seconds. The "abdominal slap" involves the interrogator's striking the abdomen of the detainee with the back of his open hand. The interrogator must have no rings or other jewelry on his hand or wrist. The interrogator is positioned directly in front of the detainee, no more than 18 inches from the detainee. With his ringers held tightly together and fully extended, and with his palm toward his own body, using his elbow as a fixed pivot point, the interrogator slaps the detainee in the detainee's abdomen. The interrogator may not use a fist, and the slap must be delivered above the navel and below the sternum. With the "insult (or facial) slap," the interrogator slaps the individuals face with fingers slightly spread. The hand makes contact with the area directly between the tip of the individual's chiii and the bottom of the corresponding earlobe. The interrogator thus "invades" the individual's "personal space." We understand that the purpose of the facial slap is to induce shock or surprise. Neither the abdominal slap nor the fecial slap is used with an intensity or frequency that would cause significant pain or harm to the detainee. Medical and psychological personnel are physically present or otherwise observing whenever these techniques are applied, and either they or any other member of the interrogation team will intervene if the use of any of these techniques has an unexpectedly painful or harmful psychological effect on the detainee. * * * In the analysis to follow, we consider the lawfulness of these six techniques both individually and in combination. You have informed us, however, that one of the techniques— sleep deprivation—has proven to be the most indispensable to the effectiveness of the interrogation program, and its absence would, in all likelihood, render the remaining techniques of little value. The effectiveness of the program depends upon persuading the detainee, early in the application of the techniques, that he is dependent on the interrogators and that he lacks control over his situation. Sleep deprivation, you have explained, is crucial to reinforcing that the detainee can improve his situation only by cooperating and providing accurate information. The four corrective techniques are employed for their shock effect; because they are so carefull) limited, these corrective techniques startle but cause no significant pain. When used alone, they quickly lose their value. If the detainee does not immediately cooperate in response to these techniques, the detainee will quickly learn their limits and know that he can resist them. The CIA. informs us that the corrective techniques are effective only when the detainee is first placet in a baseline state, in which he does not believe that he is in control of his surroundings. The conditioning technique of sleep deprivation, the CIA informs us, is the least intrusive means available to this end and therefore critical to the effectiveness of the interrogation program. II The War Crimes Act proscribes nine criminal offenses in an armed conflict covered by Common Article 3 of the Geneva Conventions.10 See 18 U.S.C. § 2441(c)(3). To list the prohibited practices is to underscore their gravity: torture, cruel and inhuman treatment, performing biological experiments, murder, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, and the taking of hostages. We need not undertake in the present memorandum to interpret all of the offenses set forth in the War Crimes Act. The CIA's proposed techniques do not even arguably implicate six of these offenses—performing biological experiments, murder, mutilation or maiming, rape, sexual assault or abuse, and the taking of hostages. See 18 U.S.C. §§ 2441(d)(l)(C), (D), (E), (G), (H), and (I). Those six offenses borrow from existing federal criminal law; they have well-; defined meanings, and we will not explore them in depth here.'' 10 The Assistant Attorneys General for National Security and fortheCriminal Division have reviewed and concur with Part II's interpretation of the general legal standards applicable to the relevant War Crimes Act offenses. 1 ' Although the War Crimes Act defines offenses under the Geneva Conventions, it is our domestic law that guides the interpretation of the Act's statutory terms. Congress has provided that "no foreign or international source of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the" prohibitions Some features of the three remaining offenses—torture, cruel and inhuman treatment, anc intentionally causing serious bodily injury—may be implicated by the proposed techniques and so it is necessary for us to examine them. Even with respect to these offenses, however, we conclude that only one technique—extended sleep deprivation—requires significant discussion, although we briefly address the other five techniques as appropriate.1 First, the War Crimes Act prohibits torture, in a manner virtually identical to the previously existing federal prohibition on torture in 18 U.S.C. §§ 2340-2340A. See 18 U.S.C. § 2441(d)(1)(A). This Office previously concluded that each of the currently proposed six techniques, including extended sleep deprivation—subject to the strict conditions, safeguards, and monitoring applied by the CIA—does not violate the federal torture statute. See Memorandum for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency. from Steven G. Bradbury. Principal Deputy Assistant Attorney General, Office of Legal Counsel, Application of18 U.S.C. §§ 2340-2340A to Certain Techniques That May Be Used in the Interrogation of a High Value al Qaeda Detainee ("Section 2340 Opinion") (May 10, 2005). As we explain below, our prior interpretation of the torture statute resolves not only the proper interpretation of the torture prohibition in the War Crimes Act, but also several of the issues presented by the two other War Crimes Act offenses at issue. Second, Congress created a new offense of "cruel and inhuman treatment" in the War Crimes Act (the "CIT offense"). This offense is directed at proscribing the "cruel treatment" anc inhumane treatment prohibited by Common Article 3 of the Geneva Conventions. See GPW An. 3 1fl| 1, 1(a). In addition to the "severe physicaLor mental pain or suffering" prohibited by the torture statute, the CIT offense reaches the new category of "serious physical or mental pain or suffering." The offense's separate definitions of mental and physical pain or suffering extend to a wider scope of conduct than the torture statute and raise two previously unresolved questions when applied to the CIA's proposed techniques. The first issue is whether, under the definition of "serious physical pain or suffering," the sleep deprivation technique intentionally inflicts a "bodily injury that involves . . . a significant impairment of the function of a bodily member... or mental faculty," 18 U.S.C. § 2441(d)(2)(D), due to the mental and physical conditions that can be expected to accompany the CIA's proposed technique. The second question is whether, under the definition of "serious mental pain or suffering," the likely mental effects of the sleep deprivation technique constitute "serious and non-transitory mental harm." Under the procedures and safeguards proposed to be applied, we answer both questions in the negative. enumerating grave breaches of Common Article 3 in the War Crimes Act. MCA § 6(a)(2). fa the context of construing Common Article 3, however, we dofindthat Congress has set forth definitions under the War Crimes Act thai are fully consistent with the understanding of the same terms reflected in such international sources. See , infra at 51-52,61-64. '2 For example, because the corrective techniques involve some physical contact with the detainee, the extent to which those techniques implicate the War Crimes Act merits some consideration. As we explain at varioiis points below, however, the mildness of these techniques and the procedures under which they are used leave them outside the scope of the War Crimes Act Third, the War Crimes Act prohibits intentionally causing "serious bodily injury" (the "SBI offense"). The SBI offense raises only one additional question with regard to the sleep deprivation technique—whether the mental and physical conditions that may arise during that technique, even if not "significant impairment[s] under the CIT offense, are "protracted impairments" under the SBI offense. Compare 18 U.S.C. § 2441(d)(2)(iv), with id. § 1365(h)(3)(D). Consistent with our prior analysis of the similar requirement of "prolonged mental harm" in the torture statute, we conclude that these conditions would not trigger the apphcability of the SBI offense.13 13 In the debate over the Military Commissions Act, Members of Congress expressed widely differing views as to how the terms of the War Crimes Act would apply to interrogation techniques. In light of these divergent views, we do not regard the legislative history of the War Crimes Act amendments as particularly illuminating, although we note that several of those most closely involved in drafting the Act stated that the terms did not address any particular techniques. As Rep. Duncan Hunter, the Chairman of the House Armed Services Committee and the Act's leading sponsor in the House, explained: Let me be clear: The bill defines the specific conduct that is prohibited under Common Article 3, but it does not purport to identify interrogation practices to the enemy or to take any parlicular means of interrogation off the table. Rather, this legislation properly leaves the decisions as to the me&cds of interrogation to me Presided and to me imeUigentt they may carry forward this vital program that, as the President explained, serves to gather the critical intelligence necessary to protect the country from another catastrophic terrorist attack. 152 Cong. Rec. H7938 (Sept. 29,2006). Senator McCain, who led Senate negotiations over the Act's text, similarly stated that "it is unreasonable to suggest that any legislation could provide an explicit and all-inclusive list of what specific activities are illegal and which are permitted," although he did state that the Act "will criminalize certain . interrogation techniques, like waterboarding and other techniques that cause serious pain or suffering that need not be prolonged." Id at S10.413 (Sept. 28,2006). Other Members, who both supported and opposed the Act, agreed that the statute itself established general standards, rather than proscribing specific techniques. See, e.g., id. at S 10,416 (statement of Sen. Leahy) (the bill "saddles the War Crimes Act with a definition of cruel and inhuman treatment so oblique that it appears to permit aD manner of cruel and extreme interrogation techniques"); id at S10.260 (Sept. 27,2006) (statement of Sen. Bingaman) (stating that the bill "retroactively revises the War Crimes Act so that criminal liability does not resultfromtechniques that the United States may have employed, such as , simulated drowning, exposure to hypothermia, and prolonged sleep deprivation"); id. at S10.381-82 (Sept 28, 2006) (statement of Sea Clinton) (recognizing mat the ambiguity of the text "suggests that those who employ techniques such as waterboarding, long-time standing and hypothermia on Americans cannot be charged for war 010165"). At the same time, other Members, including Senator Warner, the Chairman of the Senate Aimed Services Committee who also was closely involved in negotiations over the bill's text, suggested that the bill might criminalize certain interrogation techniques, including variations of certain of those proposed by the CIA (although these Members did not discuss die detailed safeguards within the CIA program). See, e.g., id. at S10.378 (statement of Sen. Warner) (staring that the conduct in the Kennedy Amendment, which would have prohibited "waterboarding techniques, stress positions, including prolonged standing... sleep deprivation, and other similar acts," is "in my opinion... clearly prohibited by the bill."). But see id. at S10,390 (statement of Sen. Warner) (opposing the Kennedy Amendment on the ground that "Congress should not try to provide a specific list of techniques" because "[wje don't know what the future holds."). See also id at S10.384 (statement of Sen. Levin) (agreeing with Sen. Warner as to the prohibited techniques); id at S10.235-36 (Sept 27,2006); id. at S10,235-36 (statement of Sen. Durbin) CTTlhe bill would make it a crime to use abusive interrogation techniques tike waterboarding, induced hypothermia, painful stress positions, and prolonged sleep.deprivation"); id at H7553 (Sept, 27,2006) (statement of Rep. Shays) (stating that "any reasonable person would conclude" that "the so-called enhanced or harsh techniques that have been implemented in the past by the CIA" "would still be criminal offenses under tie War Crimes Act because they clearly cause 'serious mental and physical suffering'"). A. The War Crimes Act prohibits torture in a manner virtually identical to the general federal anti-torture statute, 18 U.S.C. §§ 2340-2340A: The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind. 18 U.S.C. § 2441(dXlXA) (emphasis added). The War Crimes Act incorporates by reference the definition of the term "severe mental pain or suffering" in 18 U.S.C. § 2340(2). See 18 U.S.C. § 2441(d)(2)(A).14 This Office previously concluded that the CIA's six proposed interrogation techniques would not constitute torture under 18 U.S.C. §§ 2340-2340A. See Section 2340 Opinion. On the basis of new information obtained regarding the techniques in question, we have reevaluated that analysis, stand by its conclusion, and incorporate it herein. Therefore, we conclude that none of the techniques in question, as proposed to be used by the CIA, constitutes torture under the War Crimes Act. B. The War Crimes Act defines the offense of "cruel or inhuman treatment" as follows: The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another person within his custody or control. 18 U.S.C. § 2441(d)(1)(B). Although this offense extends to more conduct than the torture offense, we conclude for the reasons that follow that it does not prohibit the six proposed techniques as they are designed to be used by the CIA. The CIT offense, in addition to prohibiting the "severe physical or mental pain or suffering" covered by the torture offense, also reaches "serious physical or mental pain or 14 The torture offense in the War Crimes Act differs from section 2340 in two ways immaterial here. First, section 2340 applies only outside the territorial boundaries of the United Stales. The prohibition on torture in the War Crimes Act, by contrast, would apply to activities, regardless of location, that occur in "the context of or association with" an armed conflict "not of an international character." Second, to constitute torture under the War Crimes Act, an activity must be "for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind." See 18 U.S.C. § 2441(d)(1)(A); see also CAT Art (imposing a similar requirement for the treaty's definition oftorture).The activities diat we describe herein are "for the purpose of obtaining information" and are undertaken "m the context of or association with a Common Articled conflict," so these new requirements would be satisfied here. suffering." In contrast to the torture offense, the CIT offense explicitly defines both of the two key terms—"seriousphysical pain or suffering" and "serious menial pain or suffering." Before: turning to those specific definitions, we consider the general structure of the offense, as that structure informs the interpretation of those specific terms. First, the context of the CIT offense in the War Crimes Act indicates that the term "serious" in the statute is generally directed at a less grave category of conditions than falls within the scope of the torture offense. The terms are used sequentially, and cruel and inhuman treatment is generally understood to constitute a lesser evil than torture. See, e.g., CAT Art. 16 (prohibiting "other cruel, inhuman, or degrading treatment or punishment which do not amount to torture") (emphases added). Accordingly, as a general matter, a condition would not constitute "severe physical or mental pain or suffering" if it were not also to constitute "serious physical or mental pain or suffering." Although it implies something less extreme than the term "severe," the term "serious" still refers to grave conduct. As with the term "severe," dictionary definitions of the term "serious" underscore that it refers to a condition "of a great degree or an undesirable or harmful' element." Webster's Third Int'l Dictionary at 2081. When specifically describing physical pain, "serious" has been defined as "inflicting a pain or distress [that is] grievous." Id. (explaining that, with regard to pain, "serious" is the opposite of "mild"). That the term "serious" limits the CIT offense to grave conduct is reinforced by the purpose of the War Crimes Act. The International Committee of the Red Cross ("ICRC") Commentaries describe the conduct prohibited by Common Article 3 as "acts which world public opinion finds particularly revolting." Pictet, gen. ed., HI Commentaries on the Geneva Conventions 39 (1960); see also infra at 50 (explaining the significance of the ICRC Commentaries in interpreting Common Article 3). Of the minimum standards of treatment consistent with humanity that Common Article 3 seeks to sustain, the War Crimes Act is directed only at "grave breaches" of Common Article 3. See 18 U.S.C. § 2441(c)(3). Grave breaches of; the Conventions represent conduct of such severity that the Conventions oblige signatories to "provide effective penal sanctions" for, and to search for and to prosecute persons committing, such violations of the Conventions. See, e.g., "GPW Article 129. The Conventions themselves in defining "grave breaches" set forth unambiguously serious offenses: "willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health." GPW Art. 130. In this context, the term "serious" must not be read lightly. Accordingly, the "serious physical or mental pain or suffering" prohibited by the CIT offense does not include trivial or mild.conditions; rather, the offense refers to the grave conduct at which the term "serious" and the grave breach provision of the Geneva Conventions are directed. Second, the CIT offense's structure shapes our interpretation of its separate prohibitions against the infliction of "physical pain or suffering" and "mental pain or suffering." The CIT offense, like the anti-torture statute, envisions two separate categories of harm and, indeed, separately defines each term. As we discuss below, this separation is reflected in the requirement that "serious physical pain or suffering" involve the infliction of a "bodily injury." To permit purely mental conditions to qualify as "physical pain or suffering" would render the carefully considered definition of "serious mental pain or suffering" surplusage. Consistent with the statutory definitions provided by Congress, we therefore understand the structure of the CIT, offense to involve two distinct categories of harm. The CIT offense largely borrows the anti-torture statute' s definition of mental pain or suffering. Although the CIT offense makes two important adjustments to the definition, t h e s e ; revisions preserve the fundamental purpose of providing clearly defined circumstances under ; which mental conditions would trigger the coverage of the statute. Extending the offense's coverage to solely mental conditions outside of this careful definition would be inconsistent with this structure. Cf. Section 2340 Opinion at 23-24 (concluding that mere mental distress is not enough to cause "physical suffering" within the meaning of the anti-torture statute). We therefore conclude that, consistent with the anti-torture statute, the CIT offense separately proscribes physical and mental harm. We consider each in turn. 1 The CIT offense proscribes an act "intended to inflict... serious physical... pain or suffering." 18 U.S.C. § 2441(d)(1)(B). Unlike the torture offense, which does not provide an explicit definition of "severe physical pain or suffering," the CIT offense includes a detailed definition of "serious physical pain or suffering," as f o l l o w s : t [B]odily injury that involves— (i) a substantial risk of death; (ii) extreme physical pain; (iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or (iv) significant loss or impairment of the function of a bodily member, organ, or mental faculty." Id § 2441(d)(2)(D). In light of that definition, the physical component of the CIT offense has two core features. First, it requires that the defendant act with the intent to inflict a "bodily injury." Second, it requires that the intended "bodily injury" "involve" one of four effects or resulting conditions. a. As an initial matter, the CIT offense requires that the defendant's conduct be intended to inflict a "bodily injury." The term "injury," depending on context, can refer to a wide range of ; "harm" or discomfort. SeeVU Oxford English Dictionary at 291. This is a term that draws substantial meaning from the words that surround it. The injury must be "bodily," which requires the injury to be "of the body." II Oxford English Dictionary at 353. The term "bodily": distinguishes the "physical structure" of the human body from the mind. Dictionaries most closely relate the term "bodily" to the term "physical" and explain that the word "contrasts with- mental or spiritual." Webster's Third Int 7 Dictionary at 245. Therefore, the term "bodily injury" is most reasonably read to mean a physical injury to the body.,s As explained above, the structure of the CIT offense reinforces the interpretation of "bodily injury" to mean "physical injury to the body." The term "bodily injury" is defining "seriousphysical pain or suffering." To permit wholly mental distress to qualify would be to circumvent the careful and separate definition of the "serious mental pain or suffering" that could implicate the statute. In furtherance of this structure, Congress chose not to import definitions of "bodily injury" from other parts of title 18 (even while, as explained below, it expressly did so : for the SBI offense). This choice reflects the fact that those other definitions serve different purposes in other statutory schemes—particularly as sentencing enhancements—and they potentially could include purely mental conditions. The CIT offense differs from these other criminal offenses, which provide "bodily injury" as an element but do not have separate definitions of physical and mental harm.1* For example, the anti-tampering statute defines "bodily injury" to include conditions with no physical component, such as the "impairment of the function of a . . . mental faculty." 18 U.S.C. § 1365(h)(4). If the definition in the antitampering statute were to control here, however, die bodily injury requirement would be indistinct from the required resulting condition of a significant impairment of the function of a mental faculty. See 18 U.S.C. § 1365(h)(4)(D). Thus, "bodily injury" must be construed in a manner consistent with its plain meaning and the structure of the CIT offense. Accordingly, we; must look to whether the circumstances indicate an intent to inflict a physical injury to the body? when determining whether the conduct in question is intended to cause "serious physical pain or s u f f e r i n g . " j * Second, to qualify as serious physical pain or suffering, the intended physical injury to the body must "involve" one of four resulting conditions. Only one of the enumerated conditions merits discussion in connection with sleep deprivation, or any of the CIA's other proposed 15 At the close of the debate over the Military Commissions Act, Senator Warner introduced a written colloquy between Senator McCain and himself, wherein they stated mat they "do not believe that the term 'bodily injury' adds a separate requirement which must be met for an act to constitute serious physical pain or suffering." : 152 Cong. Rec. S10.400 (Sept 28,2006). We cannot rely on this exchange (which was not voiced on the Senate : floor) as it would render the term "bodily injury" in the statute wholly superfluous. See, e.g., Duncan v. Walker, 533 U.S. 167,174 (2001) C'[A] statute ought, upon the whole, to be so construed mat, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.")', Piatt v. Union Pacific Ry. Co., 99 U.S. 48,58 (1879) ("{Legislation is presumed to use no superfluous words. Courts are to accord meaning, if possible, to every word in a statute."). 16 Many of those other criminal statutes expressly define "bodily injury" through cross-references to 18 U.S.C. § 1365(h). See, e.g., IS U.S.C. §§ 37(a)(1), 43(dX4), 113(b)(2), UJ 1(c)(5).. 1153(a), 1347,2119(2). A provision under the United States Sentencing Guidelines, though similarly worded to the CIT offense in other respects, separately provides a specific definition of "bodily injur}"" and thus our interpretation of the term "bodily, injury" in the CIT offense does not extend to the construction of the terra in the Guidelines. SeeU.S.S.G. § 1B1.1; Application Note M. techniques: "the significant loss or impairment of the function of a bodily member, organ, or mental faculty."17 The condition requires a "loss or impairment." Standing alone, the term "loss" requires a "deprivation," and the term "impairment" a "deterioration," here of three specified objects. See Webster's Third Int'l Dictionary at 1338, 1131. Both of these terms, of their own force and without modification, carry an implication of duration; the terms do not refer to merely momentary conditions. Reinforcing this condition, Congress required that the "loss" or "impairment" be "significant." The term "significant" implies that the intended loss or impairment must be characterized by a substantial gravity or seriousness. And the term draws ; additional meaning from its context. The phrase "significant loss or impairment" is employed to define "serious physical pain or suffering" and, more generally, the extreme conduct that would constitute a "grave breach" of Common Article 3. In reaching the level of seriousness called fon in this context, it is reasonable to conclude that both duration and gravity are relevant. An extreme mental condition, even if it does not last for a long time, may be deemed a "significant i impairment" of a mental faculty. A less severe condition may become significant only if it has a longer duration. The text also makes clear that not all impairments of bodily "functions" are sufficient to i implicate the CIT offense. Instead, Congress specified that conditions affecting three importanttypes of functions could constitute a qualifying impairment: the functioning of a "bodily member," an "organ," or a "mental faculty." The meanings of "bodily member" and "organ" are straightforward. For example, the use of the arms and the legs, including the ability to walk, would clearly constitute a "function" of a "bodily member." "Mental faculty" is a term of art in= cognitive psychology: In that field, "mental faculty" refers to "one of the powers or agencies into which psychologists have divided the mind—such as will, reason, or intellect—and through the interaction of which they have endeavored to explain all mental phenomenon." Webster's ThirdInt 'I Dictionary at 844. As we explain below, the sleep deprivation technique can cause a temporary diminishment in general mental acuity, but the text of the statute requires more than : an unspecified or amorphous impairment of mental functioning. The use of the term "mental faculty" requires that we identify an important aspect of mental functioning that has been 1 ' The "substantia] risk of death" condition clearly does not apply to sleep deprivation or any of the CIA's other proposed techniques. None of the six techniques would involve an appreciably elevated risk of death. Medical personnel would determine for each detainee subject to interrogation that no contraindications exist for the application of the techniques to that detainee. Moreover, CIA procedures require termination of a technique when it leads to conditions that increase the risk of death, even slightly. Our Section 2340 Opinion makes clear that the "extreme physical pain" condition also does not apply here. See 18 U.S.C. § 2441(d)(2XD)(ii). There, we interpreted the term "severe physical pain" in the torture statute to mean "extreme physical pain." Id. at 19 ("The use of the word 'severe' in the statutory prohibition on torture cleariy denotes a sensation or condition that is extreme in intensity and difficult to endure."); id (torture involves activities "designed to inflict intense or extreme pain"). On the basis of our determination that the six techniques do not involve the imposition of "severe physical pain," see id. at 22-24,31-33,35-39. we conclude that they also do not i involve "extreme physical pain." And, because no technique involves a. visible physical alteration or bum of any kind, the condition of "a burn or disfigurement of a serious nature (other than cuts, abrasions, or bruises)" is also not implicated. i impaired, as opposed to permitting a general sense of haziness, fatigue, or discomfort to provide; one of the required conditions for "serious physical pain or suffering." Read together, we can give discernable content to how mental symptoms would come to: constitute "serious physical pain or suffering" through the fourth resulting condition. The "bodily injury" provision requires the intent to inflict physical injury to the body that would be . expected to result in a significant loss or impairment of a mental faculty." To constitute a "significant loss or impairment," that mental condition must display the combination of duration and gravity consistent with a "grave breach" of the law of war. Finally, we must identify a discrete and important mental function that is lost or impaired. The physical conditions that we understand are likely to be associated with the CIA's proposed extended sleep deprivation technique would not satisfy these requirements. As an initial matter, the extended sleep deprivation technique is designed to involve minimal physical contact with the detainee. The CIA designed the method for keeping the detainee awake— primarily by shackling the individual in a standing position—in order to avoid invasive physical; contact or confrontation between the detainee and CIA personnel. CIA medical personnel have. informed us that two physical conditions are likely to result from the application of this technique: Significant muscle fatigue associated with extended standing, and edema, that is, the; swelling of the tissues of the lower legs. CIA medical personnel, including those who have observed the effects of extended sleep deprivation as employed in past interrogations, have informed us that such conditions do not weaken the legs to the point that the detainee could no longer stand or walk Detainees subjected to extended sleep deprivation remain able to walk after the application of the technique. Moreover, if the detainee were to stop using his legs and : to try to support his weight with the shackles suspendedfromthe ceiling, the application of the technique would be adjusted or terminated. The detainee would not be left to hangfromthe shackles. By definition, therefore, the function of the detainee's legs would not be significantly: impaired—they would be expected to continue to sustain the detainee's weight and enable him to walk. Nor is simple edema alone a qualifying impairment. It is possible that clinically significant edema in the lower legs may occur during later stages of the technique, and medical; personnel would terminate application of the technique if the edema were judged to be significant, i.e., if it posed ariskto health. For example, if edema becomes sufficiently serious, it can increase the risk of a blood clot and stroke. CIA medical personnel would monitor the detainee and terminate the technique before the edema reached that level of severity. Edema subsides with only a few hours of sitting or reclining, and even persons with severe edema can walk. The limitations set by the CIA to avoid clinically significant edema, and the continued 11 To be sure, the CIT offense requires "bodily injury that involvef a significant impairment; it does not require a showing that the bodily injury necessarily cause the impairment. The term "involves," however, requires. more than a showing of mere correlation. Rather, the "bodily injuiy" eitherroustcause the impairment or have been ' necessarily associated with the impairment. This reading of the statute is necessary to preserve the statute's fundamental distinction between physical and mental harm. A bodily injury will not "involve" an impainnent merely on a showing of coincidence between the individual's impairment and an unrelated physical condition. I ability of the detainee to use his legs, demonstrate that the mild edema that can be expected to