LETTER TO JACK L. GOLDSMITH, III FROM SCOTT W. MULLER RE LETTER ENTITLED "LEGAL PRINCIPLES APPLICABLE TO CIA DETENTION AND INTERROGATION OF CAPTURE AL-QA'IDA PERSONNEL"

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 06063776
• Release Decision: RIPPUB
• Original Classification: U
• Document Page Count: 4
• Document Creation Date: March 9, 2023
• Document Release Date: February 27, 2020
• Case Number: F-2009-01030
• Publication Date: June 14, 2004

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TerP--S-BeREFT4
General Counsel
Counsel
CENTRAL INTELLIGENCE AGENCY
Washington, D.C. 20505
14 June 2004
The Honorable Jack L. Goldsmith, III
Assistant Attorney General
Office of Legal Counsel
Department of Justice
Washington, D.C. 20530
Dear Mr. Goldsmith:
This is in response to your letter of 10 June 2004
The document referenced in your letter entitled, "Legal
Principles Applicable to CIA Detention and Interrogation of
Capture Al-Qa'ida Personnel", contains what we have understood to
be a shorthand summary of the legal principles applicable to the
Central Intelligence Agency's (CIA) treatment of captured Al
Qa'ida personnel. Representatives of the Department of Justice's
Office of Legal Counsel (OLC) and CIA's Office of General Counsel
(OGC) jointly prepared the Legal Principles document during May
and June 2003 based principally on legal research, opinions, and
advice from OLC. With OLC's knowledge, the document was created
for use by the CIA's Inspector General in its review of CIA
interrogations practices in the counterterrorism arena. The
inter-office coordination of the document included substantial
drafting efforts by then Deputy Assistant Attorney General John
Yoo and other OLC staff. The Legal Principles document also
served as a basis for the "Legal Authorities" briefing slide used
at a 29 July 2003 meeting attended by the Vice President, the
National Security Advisor, the Attorney General, who was
accompanied by Patrick Philbin, the Director of Central
Intelligence, and others. The "Legal Authorities" slide was
independently coordinated by OGC with OLC and the White House
Counsel's office prior to the July meeting. That meeting and a
follow-on briefing of the Secretaries of Defense and State using
the same slide resulted in a reaffirmation of the policy and
legal bases of CIA's detention and interrogation program.
"160?-6EC-14A-Ta
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The Honorable Jack L Goldsmith, III
Given the provenance of the Legal Principles document, which
is reflected in contemporaneous CIA documentation, the statement
in your letter that the document's contents "did not and do not
represent an opinion or a statement of the views of this Office"
raises concerns. On its face the document itself is, of course,
not in the form of an official opinion of the Department. Your
current characterization, however, goes further and requires that
I ask you to formally address the following question: If the �
Legal Principles document does not represent OLC's "views" and
CIA cannot rely on its substance as representing authoritative
legal guidance from OLC, for what purposes may the document and
all or any of its principles be used? I would appreciate your
promptly answering this question in a form upon which the CIA may
rely.
Since, as you know, CIA often seeks Department of Justice
guidance on a wide variety of activities, your answer to the
question set forth above will have broader implications for the
daily interactions between CIA and the Department. As a general
matter, CIA's leaders need to fully understand the extent to
which they may rely in good faith on guidance from Department of
Justice representatives when that guidance is not contained
within signed legal opinions. My attorneys in particular need to
understand what significance, if any, they should attach to legal
guidance provided to them by Department representatives when the
guidance is provided orally or in documents that are not signed
legal opinions.
You also asked that OGC provide OLC with our views in
writing on the question of whether certain interrogation
techniques could be applied to captured Al Qa'ida personnel
consistent with the "shock the conscience" standards of the Fifth
Amendment to the Constitution. Our understanding, which was
consistent with the penultimate principle set forth in the Legal
Principles document that was coordinated with OLC and briefed to
the National Security Council Principals and others in July and
September 2003, had been that the interrogation techniques
described in OLC's 1 August 2002 signed legal opinion concerning
the interrogation of Abu Zubaydah legally could be applied to
other captured Al Qa'ida personnel consistent with a merits
analysis of the "shock the conscience" standards of the Fifth
Amendment to the Constitution. To the extent your office needs
particular facts and descriptions of interrogation techniques to
draft a formal legal opinion on this question, please use those
provided in OLC's August 2002 opinion to CIA.
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The Honorable Jack L. Goldsmith, III
Finally, in connection with your description of OLC's
preferred procedures for rendering signed legal opinions, it is
worth emphasizing that CIA's detention and interrogation
activities are part of a covert action program authorized by the
President�a program as to which, in addition, senior White House
personnel have sought Department of Justice advice. In late May
2004, CIA suspended the use of authorized interrogation
techniques pending reaffirmation of the policy and legal bases
for its interrogation program. Accordingly, there is now or
likely soon will be, an "operational need" for a response to our
written March 2004 request that OLC reaffirm its legal analyses
contained in the documents identified in our request.
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Sincerely
ott W. Muller
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The Honorable Jack L. Goldsmith, III
DCl/OGC/GC/
(14 Jun 04)
OGC-F0-2004-50061
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