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TRAVIS L. SENOR
A Thesis Submitted to the Faculty of Mercyhurst College In Partial Fulfillment of the Requirements for The Degree of MASTER OF SCIENCE IN APPLIED INTELLIGENCE
DEPARTMENT OF INTELLIGENCE STUDIES MERCYHURST COLLEGE ERIE, PENNSYLVANIA MAY 2010
DEPARTMENT OF INTELLIGENCE STUDIES MERCYHURST COLLEGE ERIE, PENNSYLVANIA
MAKING THEM TALK: AN ANALYSIS OF INTERROGATION METHODS AND POLICY
A Thesis Submitted to the Faculty of Mercyhurst College In Partial Fulfillment of the Requirements for The Degree of MASTER OF SCIENCE IN APPLIED INTELLIGENCE Submitted by: TRAVIS L. SENOR
Certificate of Approval: _________________________ Stephen Marrin Assistant Professor Department of Intelligence Studies _________________________ James Breckenridge Assistant Professor Department of Intelligence Studies _________________________ Phillip J. Belfiore Vice President Office of Academic Affairs May 2010
Copyright ©2010 by Travis L. Senor All rights reserved
This work is dedicated to my family and friends, without whom I would never have had the motivation, or the continual sanity, to see this task through to the end.
I would like to thank Professors Stephen Marrin and James Breckenridge for agreeing to be my primary advisers, and for holding my work to a high standard. They also provided excellent advice on additional sourcing, without which I would have produced an inferior work. I would also like to thank previous Mercyhurst students and classmates for their advice and guidance along the way that allowed me to complete this task.
ABSTRACT OF THE THESIS Making Them Talk: An Analysis of Interrogation Methods and Policy By Travis L. Senor Master of Science in Applied Intelligence Mercyhurst College, 2009 Professor Stephen Marrin, Chair
This thesis addresses the issue of what is the most effective method of interrogating an irregular detainee, taking into account both the accuracy of information gleaned and the political feasibility of the method used. It acts under the assumption that in today’s technological environment, the guaranteed secrecy of a given policy decision cannot be assumed and thus political feasibility must be accounted for. This study draws on first-hand accounts, empirical studies, psychological evaluations, opinion polls, and historical analyses to address this issue. This study found that, among three possible options (non-coercive interrogation, enhanced interrogation, and torture), that non-coercive methods represent the best course of action for the present, as it is the most reliable and has the least potential for political fallout and creates little to no additional risk to troops and interrogators; torture should be ruled out completely, as all evidence suggests that it is wholly unreliable, is extremely divisive politically, and creates further risks for interrogators and troops in the field; and that enhanced methods (as defined in this study), warrant further investigation, as they
show promise a means for overcoming determined resistance, but as yet there is not enough information on them to make a sound judgment as to their efficacy.
TABLE OF CONTENTS Page iii iv v vi viii 1 5 23 24 25 30 31 44 44 59 64 70 74 84 86 86 88 90 93
COPYRIGHT PAGE…………………………………………………………….. DEDICATION…………………………………………………………………… ACKNOWLEDGEMENTS……………………………………………………… ABSTRACT……………………………………………………………………… TABLE OF CONTENTS………………………………………………………… CHAPTER 1 INTRODUCTION……………………………………………………… 2 POLICY NARRATIVE AND LITERATURE REVIEW……………… 3 METHODOLOGY……………………………………………………… The Policy Analysis Process……………………………………… Establishing the Evaluation Criteria……………………………… Establishing the Policy Alternatives……………………………… Policy Alternatives and Operational Definitions…………………. 4 POLICY ANALYSIS…………………………………………………… Accuracy of Information………………………………………….. Reliability of Method……………………………………………... Acceptability (Domestic)…………………………………………. Acceptability (Foreign)…………………………………………… Legality…………………………………………………………… Conclusions Summary……………………………………………. 5 CONCLUSION AND RECOMMENDATIONS………………………. Policy Recommendations…………………………………………. Implications……………………………………………………….. Recommendations for Further Study……………………………… BIBLIOGRAPHY………………………………………………………………….
CHAPTER 1 INTRODUCTION Intelligence gathering via prisoner interrogation has been a facet of warfare for much of human history. It was practiced by Julius Caesar during the Gallic War,1 specifically mentioned in military treatises by the Byzantines in the 6th century CE,2 and is practiced regularly in modern conflict. Battlefield interrogation is an expedient way of getting timely, immediate human intelligence about enemy actions. It is a fundamental element of wartime intelligence collection. However, the recent trending towards enemies being unorganized, irregular guerrillas, evidenced by the wars in Afghanistan and Iraq, have thrown traditional interrogation practices (usually of the conversational variety, practiced between soldiers of traditional armed forces), into question. The ease with which some prisoners have resisted traditional interrogation methods, coupled with a sense of urgency about the need for timely intelligence (born out of the sudden, unexpected, and catastrophic nature of the September 11th attacks), has led U.S. policy makers to revaluate existing practices. This has also led to the implementation of increasingly harsher interrogation techniques, the unexpected revelation of which has led to an intense public debate not only over their effectiveness, but also over the acceptability and morality of their use. The generally negative public reaction to these revelations and the government’s defensive, sometimes confused, response suggest that the question of political feasibility was not considered when these policies were implemented. It is evident that the enacting
Julius Caesar, The Conquest of Gaul ed. Stanley Alexander Harford, trans. Jane F. Alexander, (London: Penguin Books, 1982), 148 2 George T. Dennis, Maurice’s Strategikon: Handbook of Byzantine Military Strategy, (Philadelphia: University of Pennsylvania Press, 2001),97
2 policy makers expected these decisions to remain secret until such time as they were ready for public release, if ever, and were caught off guard by their unexpected public revelation. However, the advent of near-instant telecommunications technologies, enabling the rapid dissemination of leaked information suggest that total secrecy can no longer be presumed or assured, as these leaks attest. Leaks should be expected. As such, it is becoming evident that political feasibility should be considered in all future similar policy decisions, even in decisions where secrecy is presumed. In this particular case, which is the aim of this study, the interrogation methods chosen for implementation must not only be consistently effective in extracting accurate information, but they must also be politically acceptable, as it should be expected that their use will eventually be made public. The question this study seeks to answer then is this: What is the most reliably accurate and politically feasible method for acquiring information from detainees, through interrogation. In this debate, there are generally three competing methods of interrogation that are discussed. These are: Non-coercive interrogation, “enhanced” interrogation, and interrogation by torture. Thus, these are the three methods that will be evaluated as potential policy solutions to this problem.
To answer the research question, this study will evaluate the effectiveness of each of these three interrogation methods, as well as the political feasibility of each, using a standard set of policy analysis evaluation criteria. The evaluation criteria are derived
3 from similar, existing policy analyses. This process is enumerated in greater detail in the methodology discussion chapter of this study. It is the aim of this study to recommend an effective and politically acceptable policy solution to the present detainee interrogation problem, a solution which is ideally also applicable to any future recurrences of this issue. This research also hopes to contribute significantly to an objective discussion of effective interrogation methods. I intend to come as close to a definitive answer to this question as I am able, given the limitations of this study, and to help fill the sizeable gap in reliable, objective literature on the subject. Ideally, the findings of this study will be of use to the intelligence and national security communities, in their battlefield human intelligence (HUMINT), collection methods, and will have a continuing utility in future interrogation operations.
This study will be presented with the following structure:
First is this introductory chapter, which clearly states the research question to be answered and explains its relevance for study. It also outlines any limitations inherent in the methodology used in this study, as well as its overall structure. This introduction will be followed by a policy narrative chapter, which traces the history of the policy problem, outlining the context and development of the research question. This narrative will also detail all of the existing literature that attempts to
4 answer the research question, as well as any gaps in this literature that this study aims to fill. The following chapter will detail the methodology used to perform the study’s research. This chapter will outline the policy analysis process and its application, the evaluation criteria to be used in this analysis, and the reasoning behind the selection and development of these criteria. More importantly, it will also contain the operational definitions that will detail the three policy options being evaluated. This chapter will be followed by the actual policy analysis, in which each of the three competing policies will be comparatively judged by applying the evaluation criteria to each. Finally, a results and conclusions chapter will restate the research question, detail the findings of the policy analysis, and make a policy recommendation based on those findings. This concluding chapter will also make recommendations for further study of the issue, based on the results and limitations of the analysis.
5 CHAPTER 2 POLICY NARRATIVE AND LITERATURE REVIEW
Origins 9/11 and New Intelligence Collection Paradigm During the Cold War, intelligence collection by the United States was a methodical, almost mechanical process that required time to cultivate assets. However, the sudden, unexpected, and ferocious nature of the September 11, 2001 attacks on the World Trade Center and the Pentagon threw these long-entrenched practices into disarray. Suddenly, the intelligence community and policy makers were faced with the prospect that a devastating terrorist attack could be launched against U.S. assets, domestically or abroad, at any time, anywhere, and with an unknown level of severity. The need arose to be able to get accurate intelligence almost immediately, to prevent such attacks from ever occurring again. In the eyes of policy makers, one of the most expedient ways to do this was through the interrogation of captured terrorists and insurgents taken from the battlefields in Afghanistan and Iraq. However, unlike the monolithic, organized structure of the Soviet Union and traditional, uniformed national armies that interrogators were trained to collect against, operators were now faced with a disorganized, quasi-independent, nebulous threat made up of many cells, that could strike anywhere at any time. Traditional, conversational methods usually take a period of days or weeks, and this was felt to be too long, when an attack could conceivably be launched within 24 hours. The question then became: How was an interrogator to get accurate information from a detainee as quickly as possible?
6 Thus, it was this sense of supreme urgency and the feeling that the next major attack was, to put it colloquially, right around the corner that shaped the foundations and development of this policy problem.
Initial Detainee Resistance to Traditional Interrogation Methods As the U.S. began its military response to the September 11th attacks and suspected terrorists were captured in Afghanistan and elsewhere, interrogators quickly found that this new type of adversary was startlingly resistant to the traditional methods taught to Army interrogators. This was due, in no small part, to extensive resistance training on the part of Al-Qaeda that was particularly geared towards besting U.S. interrogation practices and knowing their limits. This was confirmed when Army Intelligence discovered an Al-Qaeda training manual detailing, in full U.S. interrogation practices and how to beat them. Al-Qaeda had obtained the Army’s interrogation manual.3 Additionally, some detainees were “true believers,” who were unwilling to reveal information due to a dedicated, fanatical, and righteous devotion to their jihadist cause. These detainees would not yield to persuasion, being unwavering in their beliefs, and unflinching in the face of any legal consequences, believing in an ultimately divine reward. For example, traditional interrogation methods, such as “love of family” (which plays off of a captive’s desire to see their loved ones again as quickly as possible), had little resonance with detainees, as many would say that they no longer cared about a life in the living world. This made them even harder to break.4
Chris Mackey and Greg Miller, The Interrogators: Inside the Secret War Against Al-Qaeda, (New York: Little, Brown, and Company, 2004), 179 4 Heather MacDonald, “How to Interrogate Terrorists,” in The Torture Debate in America, ed. Karen Greenberg (Cambridge: Cambridge University Press, 2005), 86
7 Interrogators quickly learned the scope of Al-Qaeda’s resistance training. For example, their training manual encouraged detainees to bait the American interrogator to strike or otherwise abuse them, as this would cause an international outcry against the United States. It also presented the U.S. aversion to torture as a symbol of weakness and proof that the West couldn’t handle such actions because they “are not warriors.”5 The interrogators found that their Arab prisoners were conditioned to believe, through training, that interrogation involves a degree of torture (as in places like Syria and Egypt), and when they discovered that U.S. personnel were not allowed to torture, they refused to take their interrogators seriously.6 The Al-Qaeda manual also detailed other Middle Eastern interrogation methods that proved to be much harsher than those practiced by the Americans, and in many instances constituted torture. This kind of resistance training and conditioning made U.S. interrogators realize that there might be nothing they could do to break prisoner resistance using traditional methods.7 Interrogators were stumped and policy makers did not know what to do. They began examining different methods that could be used, that went beyond those prescribed in the field manual, things that detainees might not have been expecting. The initial concern for policy makers and practitioners then became extracting accurate information and getting detainees to talk. At the policy level, no real concern was shown over how feasible these decisions might be if revealed publicly, as it was assumed that they would be, for all intents and purposes, permanently secret, or that the
Chris Mackey and Greg Miller, The Interrogators: Inside the Secret War Against Al-Qaeda, (New York: Little, Brown, and Company, 2004), 179 6 Ibid., 95 7 Ibid., 95
8 public would acquiesce to any stronger measures in the name of security in the face of the terrorist threat.
The Beginnings of a Possible Solution and the Creation of an Interrogation Policy
Some of the first attempts to circumvent this increased resistance were developed in an ad-hoc manner, on the battlefield itself, separate from the formal policy arena. A debate quickly arose among interrogators in Afghanistan over whether or not “stress techniques” were an acceptable way of overcoming this resistance. These techniques were similar to the treatment received by U.S. Army recruits at boot camp, including things like prolonged standing and sleep deprivation. According to Chris Mackey, prisoners were giving up almost no information in response to initial, traditional methods, and overcame these effortlessly. This prompted the proposal of these “stress techniques.”8 Mackey and his colleagues argued that the use of stress positions and keeping the detainee disoriented would help to recreate the shock of capture, during which time a detainee is in his or her most fragile mental state. In this state, it is difficult for a detainee to mount a cogent mental defense to an interrogator’s tactics. Furthermore, Mackey and his crew argued that this would counteract the detainees’ knowledge of the interrogators’ perceived limits. For example, if a detainee knows that an interrogator can’t touch him,
9 but then the interrogator throws a tantrum and jerks the detainee to his or her knees, there is suddenly no concrete idea of where an interrogator’s true limits are. It would create the illusion of unpredictability and foment confusion in the captive’s mind.9 An anonymous Pentagon official later mirrored this view, stating that “in reassuring the world about our limits, we have destroyed our biggest asset: detainee doubts.” This was also applied to the Iraq War, as the Iraqis already “knew the game and knew how to play” the US.10 One of Mackey’s colleagues, (Sgt.) Cavanaugh, actually put a prisoner in a stress position (using the argument that U.S. soldiers underwent the same treatment at boot camp), but was told to desist by superiors. Their argument was that army volunteers were treated under a different standard than prisoners.11 However, the interrogators sustained the argument that the use of moderate stress positions was the same treatment soldiers got in boot camp, and therefore not in violation of the Geneva Conventions, as the opposing sides thus received equal treatment. They also argued that by engaging in armed combat, the detainees also tacitly accept the risks of potential capture, captivity, and interrogation as an aspect of warfare. This is akin to the risks assumed by U.S. soldiers upon joining the Army. Whatever the interrogators were going through (deprived sleep, no food), was shared by the detainees. The opposition among Mackey’s colleagues and superiors eventually yielded to this view.12 This change in methods soon began to yield results for Mackey and his colleagues. Interrogator Mackey states that as the methods used became harsher,
Heather MacDonald, “How to Interrogate Terrorists,” in The Torture Debate in America, ed. Karen Greenberg (Cambridge: Cambridge University Press, 2005), 86 10 Ibid., 95 11 Chris Mackey and Greg Miller, The Interrogators: Inside the Secret War Against Al-Qaeda, (New York: Little, Brown, and Company, 2004), 95 12 Ibid., 95
10 information was extracted more quickly and with greater accuracy than under traditional tactics.1314 By mid-2002, these changes began to be adopted as official policy, evidenced in Office of Legal Counsel memos from the time. The Bush administration expanded upon and somewhat codified these new methods, calling them “enhanced” or coercive interrogation techniques. These included “stress positions” (such as prolonged standing and being confined spaces), but also methods such as waterboarding. Now as implied official policy (judging from Justice Department memos), the emphasis was still on their efficacy in extracting accurate information, and little heed was paid to the idea of how these decisions, if revealed, would be accepted by the public. However, the Bush administration did attempt to address and justify the legality of these methods, beginning with what is now known as the “Bybee Memo.”
The Bybee Memo and Subsequent Justice Department Opinions The Bybee memo (so named after Jay Bybee, a member of the Justice Department’s Office of Legal Counsel, although the memo was officially signed by John Yoo), was a landmark policy piece in this fledgling interrogation debate. Drafted in August 2002, the memo was a response to CIA inquiries on whether or not these proposed “enhanced” techniques would violate the U.S. statute against torture (Section
Heather MacDonald, “How to Interrogate Terrorists,” in The Torture Debate in America, ed. Karen Greenberg (Cambridge: Cambridge University Press, 2005), 88 14 I have, as yet, been unable to find another first-had source mirroring Mackey’s experiences. He is, thus far, the only interrogator from either Iraq or Afghanistan to publish anything about their experience. While it may seem to overstate the effectiveness of these measures, it really one of the only first-hand accounts to go on at present. However, the fact that they are first hand experiences (and at critical locations like Bagram Air Force Base), do enhance their credibility. Additionally, his work does take into account the observations of his colleague and fellow interrogators (i.e. an entire interrogation unit), so this evidence can be viewed as a shared experience incorporating multiple observers’ viewpoints.
11 2340A of title 28 of the United States Code). Essentially the Agency was asking for an interpretation of the limits of this torture statute as it applied to suspected terrorists captured outside of the United States. Specifically, the CIA was asking for legal counsel in using these techniques during their interrogation of Abu Zubayadha, who was perceived to be a high-ranked Al-Qaeda member in possession valuable information.15 The memo concluded that these techniques (particularly the harsher ones such as waterboarding, walling, and the insect method),16 did not constitute torture under 18 U.S.C. 2340-2340A. The Office of Legal Counsel interpreted torture to mean acts that inflicted severe pain and suffering, either physical or mental. The memo stated that to qualify as torture, physical pain must be equivalent in severity to pain normally accompanying severe trauma such as organ failure, serious physical injury (i.e. broken bones), the impediment of bodily functions, and even death. To fit the definition of mental pain and suffering, an act must, according to the memo, “result in significant psychological harm of a significant duration, e.g. lasting months or even years,” and must also be the result of specific causes mentioned in 18 U.S.C. 2340-2340A, which include threats of imminent death, threats of pain that constitute physical torture, and the use of drugs threatening to permanently alter a detainee’s personality. 17
Memorandum for Alberto R. Gonzales, Counsel to the President, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Standards of Conduct for Interrogation under 18 U.S.C. §§23402340A, August 1 2002, http://news.findlaw.com/nytimes/docs/doj/bybee80102mem.pdf 16 The waterboarding technique is a kind of simulated drowning, in which the detainee is immobilized, placed on his or her back, and the head is covered. The detainee is laid on an incline so that the head is below the level of the feet. Water is then poured over the detainee’s head to simulate the sensation of drowning. Walling involves slamming a detainee against a slightly flexible wall, more to create noise than to inflict serious pain, and the insect method involves placing the detainee in a small, confined space with one or more frightening insects, or an animal that the detainee has a phobia of. 17 Memorandum for Alberto R. Gonzales, Counsel to the President, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Standards of Conduct for Interrogation under 18 U.S.C. §§23402340A, August 1 2002, http://news.findlaw.com/nytimes/docs/doj/bybee80102mem.pdf
12 Even more significantly, as it would prove when this and subsequent memos were leaked to the press and public, the first Bybee memo stated that even though some treatment may be cruel, degrading, or inhuman, it did not necessarily violate the U.S. statute against torture. It also stated that the necessity of defense, or self-defense, justified the use of increasingly harsher interrogation techniques.18 The Bybee memo was followed by a further three memos, each again dealing with the legality of these techniques. These subsequent memos upheld the initial findings of the original OLC opinion, though expanded on them slightly. A second memo, dated 10 May 2005, examined the issue under the possibility that the combined use of these techniques could constitute torture, as the use of one may cause a detainee to become predisposed to severe physical or mental pain and suffering, should further techniques be applied. However, based upon information provided by the CIA as to the combined use of these techniques, the OLC again did not judge that the combined use of these techniques would generate the severe mental and physical pain to be considered torture. Furthermore, they judged that in some rare instances, the use of certain techniques could conceivably create a heightened susceptibility to extreme pain, but due to CIA oversight and safeguards, this was not likely. Additionally, any such instances would not be resulting from a specific intent on the part of the interrogators to cause this level of pain. Their goal was information and defense, not pain. As such, the OLC ruled that even in combination, these methods were legally justified.19
Ibid. Memorandum for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, 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, http://www.globalsecurity.org/intell/library/policy/national/olc_050510_bradbury_20pg.htm
13 This particular memo also made the telling caveat that torture and its use is universally abhorrent, and is repudiated almost worldwide. It then stated that the President (then George W. Bush), would not permit such acts.20 In this statement can be seen a nebulous understanding that a policy must be acceptable to the public, should the decision ever be made public. However, no further action was taken on the point to plan for the possibility of these decisions becoming declassified, and no further reference to public opinion was made in this memo. A further two memos, both dated 30 May 2005, applied the techniques to the definition of torture set forth by the UN Convention Against Torture. This opinion held that these “enhanced” techniques did not violate UN sanctions because they were not constitutionally arbitrary (they were performed in the service of a direct government interest), they were performed under controlled circumstances so that interrogators would not go too far, and that they were not performed under U.S. jurisdiction. On this last point, the memo stated that for acts to qualify as torture, the acts must take place under the jurisdiction of the convention signatory performing these acts. In this case, it means that the interrogations would have to be conducted by U.S. personnel in territory under U.S. jurisdiction. The OLC’s opinion was that “territory under U.S. jurisdiction” meant that the United States must have defacto governing power in a given location to qualify as having jurisdiction. Since these interrogations were conducted in places such as Afghanistan, Iraq, or various third countries (which came to be known as “black sites”), where the U.S. did not have governing power, the OLC determined that these techniques could not violate the convention on this count.21
Ibid. Memorandum for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, Re: Application of United States Obligations Under Article 16 of the Convention Against Torture to Certain Techniques that May Be Used in the interrogation of High Value al Qaeda Detainees, May 30 2005,
14 The 30 May memo also makes note that acts of torture “shock the conscience,” meaning that they are universally reprehensible and engender an attitude of disgust and moral outrage among the public. Here is seen a brief mention of a criteria which would have a place in a formal policy analysis of these techniques. The memo finds, however, that these techniques would not sufficiently “shock the conscience” because they would be conducted under close CIA supervision that would provide safeguards for the detainee. Additionally, as they would be performed in furthering a “paramount Government interest in protecting the Nation,” it cannot be said to shock the public conscience, as they are being performed in the name of the public’s security, to meet a specific aim, and not as an aimless operation.22 These memos all shared the common theme that the proposed “enhanced” techniques did not meet the legal definition of torture. Much of this reasoning stemmed from the supposition that they were performed in controlled circumstances, under CIA supervision. This reasoning presupposed that interrogators, if supervised, would not have allowed severe pain to be inflicted. The memos also contained an implicit belief that these techniques would, in fact, be successful in getting recalcitrant, high-value detainees to provide information. The techniques themselves were derived from Navy Survival, Evasion, Resistance and Escape (SERE), training techniques. However, the caveat was that the SERE training was designed not to elicit information from captured soldiers, but it was designed to teach U.S. troops how to resist severe enemy interrogation techniques, some that crossed into the realm of torture.23
http://www.globalsecurity.org/intell/library/policy/national/olc_050530_bradbury.htm 22 Ibid. 23 Senate Armed Services Committee Inquiry Into the Treatment of Detainees in U.S. Custody, December 11 2008, http://levin.senate.gov/newsroom/supporting/2008/Detainees.121108.pdf
15 However, as policy makers and the public were soon to discover, these legal opinions did not reflect the generally accepted view of what constitutes acceptable forms of interrogation, what defines torture, and just what the public is willing to tolerate in the name of security. Yet these memos were a definite step towards determining the feasibility of these policy decisions, insofar as protecting practitioners from prosecution, but they never approached the level of evaluation that would ultimately determine if these techniques were a politically viable policy option. Only passing reference was made to the effectiveness of techniques, based on what amounts to hearsay, and the legal findings made no attempt to reconcile themselves with alternative interpretations. They lack the rigorous evaluation necessary when examining policy options. This ultimately resulted in one-sided, politically serving documents, which would soon serve to help create a firestorm of controversy.
Interrogation Policy Becomes Public
Throughout 2003, various civil liberties groups (such as the ACLU), and the Red Cross began making determined inquiries into the treatment of detainees in Afghanistan, Iraq, and elsewhere.24 However, it was not until 2004-2005, that the entire paradigm surrounding the interrogation problem changed, as several events occurred near simultaneously. In March 2004, three British detainees were repatriated to the UK after being held at Guantanamo Bay. They immediately made a public statement claiming that they were
Foreign Policy, “The Torture Timeline,” http://www.foreignpolicy.com/story/cms.php?story_id=4891
16 the victims of deliberate abuse while in U.S. custody.25 In late April 2004, the first news of the Abu Grahib prisoner abuse and torture scandal broke in the New Yorker.26 The disintegration of discipline that resulted in these acts stemmed directly from the loosening of the rules on conducting interrogations (trending towards the harsher, “enhanced” techniques). Several prisoners died as a result of the improper and/or unsupervised use of some of these techniques.27 The public outcry was extensive and immediate. Domestic and international media outlets expressed shock and outrage at the abuses, with many calls for the resignation of then-Secretary of Defense Donald Rumsfeld (perhaps most famously on the cover of The Economist).28 These sentiments extended to a shocked Congress. Just two months later, in June, the Washington Post broke the first story regarding the OLC interrogation memos, or what quickly became known as the “torture memos.”29 They’re findings were derided by legal scholars, military analysts, and human rights groups as sloppy, poorly reasoned, and politically self-serving.30 Many saw the memo as a contrived justification for acts that, by most other definitions, were tantamount to torture (particular emphasis was placed on waterboarding). By August, the head of the Office of Legal Counsel, Jack Goldsmith, had rescinded the Bybee memo and resigned due to the fallout from the growing scandal.31 As a further response, on 10 December
Tania Branigan and Vikram Dodd “Afghanistan to Guantánamo Bay - the story of three British detainees,” The Guardian, August 4 2004, http://www.guardian.co.uk/world/2004/aug/04/afghanistan.usa 26 Seymour M. Hersh, “Annals of National Security: Torture at Abu Grahib,” The New Yorker, May 10 2004, http://www.newyorker.com/archive/2004/05/10/040510fa_fact 27 Senate Armed Services Committee Inquiry Into the Treatment of Detainees in U.S. Custody, December 11 2008, http://levin.senate.gov/newsroom/supporting/2008/Detainees.121108.pdf 28 The Economist, “Resign, Rumsfeld,” The Economist, May 6 2004 29 Dana Priest and R. Jeffrey Smith, “Memo Offered Justification for Use of Torture,” Washington Post, June 8 2004, Page A01 30 Foreign Policy, “The Torture Timeline,” April 24 2009, http://www.foreignpolicy.com/story/cms.php? story_id=4891 31 Ibid.
17 2004 the OLC issued another memo universally condemning torture and expanding the definition of the term. However, unbeknownst to the public and Congress, the OLC continued to issue memos, well into 2005, in response to CIA inquiries and maintained the original Bybee memo finding that “enhanced” techniques did not fit the criteria that defines torture.32 Bush administration officials rapidly began to engage in further damage control due to these events. President Bush was obligated to state repeatedly, and publicly, that the United States “does not torture.”33 Vice President Cheney later, in late 2006, defended the use of waterboarding, calling it not torture and was a “no-brainer,” citing the interrogation of Khalid Sheikh Muhammad as an example of its effectiveness.34 Additionally, the CIA quickly destroyed any and all videotapes of the interrogations of high-value detainees.35 Things only became more complicated, however, as in 2005 the existence of CIA “black sites” was revealed. These black sites were located in countries other than the United States and other than the location where a detainee was captured. The understanding was that detainees were frequently sent to black sites in Egypt. Interrogations were conducted at these black sites by the personnel of the host country, who were not necessarily beholden to the guidelines of the Geneva Conventions or the UN Convention Against Torture. As such, much of what occurred at these black sites was perceived as torture by proxy. While U.S. personnel were not necessarily conducting it
Foreign Policy, “The Torture Timeline,” April 24 2009, http://www.foreignpolicy.com/story/cms.php? story_id=4891 33 BBC News, “US Does Not Torture, Bush Insists,” November 7 2005, http://news.bbc.co.uk/2/hi/americas/4415132.stm 34 Dan Eggen, “Cheney’s Remarks Fuel Torture Debate,” Washington Post, October 27 2006 35 Mark Mazetti and Scott Shane, “CIA Destroyed Tapes as Judges Sought Interrogation Data,” New York Times, February 7 2008, http://www.nytimes.com/2008/02/07/washington/07intel.html
18 themselves, by allowing a third party to conduct interrogations in such a way, the U.S. was viewed to be just as culpable.36 37 In response, later that year, in December 2005, Congress passed the Detainee Treatment Act, which outlawed “cruel, degrading, or inhuman” treatment of detainees held in U.S. custody anywhere in the world. However, Congress was not aware that techniques such as waterboarding were still legal as per secret OLC memos on the subject. Philip Zelikow, an advisor to the Secretary of State at the time, had, earlier in the year, circulated his own memo that attempted to repudiate the newer OLC memos that continued to validate the findings of the original Bybee memo. However, according to Zelikow, the White House attempted to find and destroy all copies of this memo.38 In 2007, the Supreme Court ruled that the U.S. must comply with the Geneva Conventions in its treatment of detainees, but that same year President Bush signed an executive order officially allowing the CIA to use harsher, “enhanced” methods in conducting its interrogations. However, a Senate report the following year showed that “enhanced” techniques had already been put into effect even before the findings of the original Bybee memo had been generated.39 Ultimately, in the waning days of the Bush administration, the OLC issued a final memo, invalidating all of the previous “torture memos’” findings.40 Upon assuming office in January 2009, President Barack Obama and his administration reversed the previous
Dana Priest, “CIA Holds Terror Suspects in Secret Prisons,” Washington Post, November 2 2005 While the practice of rendition (bringing wanted persons and suspects back to the U.S. for legal proceedings), has been in use since the 1980’s, and was given presidential consent in 1995, extraordinary rendition (in which persons of value were brought to these “black sites”), was not implemented until after 2001, and the presence of these black sites was officially acknowledged in 2006. 38 Foreign Policy, “The Torture Timeline,” http://www.foreignpolicy.com/story/cms.php?story_id=4891 39 Senate Armed Services Committee Inquiry Into the Treatment of Detainees in U.S. Custody, December 11, 2008, http://levin.senate.gov/newsroom/supporting/2008/Detainees.121108.pdf 40 Memorandum for the Files, Re: Status of Certain OLC Memos Issued in the Aftermath of the Terrorist Attacks of September 11, 2001, January 15 2009 http://www.usdoj.gov/olc/docs/memostatusolcopinions01152009.pdf
19 policy on interrogation implemented by the Bush administration, officially banning these “enhanced” techniques.41 What became apparent in all of this is that not once did policy makers ever plan for the contingency that their secret decisions might be made public. Apart from a cursory legal evaluation of the interrogation techniques, there was no effort made to seriously vet them as a viable policy option, and no attempt to judge how they would be received if their use became widely known. The decision was reached under the assumption that the public would be accepting of their use in the name of their own, and the Nation’s, security. Judging from the fervent outcry that sprang up as their use was revealed, this was an erroneous assumption that undermined the entire policy decision.
Attempts at Addressing the Issue and the Persistence of Old Problems
The upshot of all of this was an effort on the part of policy makers and the public to try and figure out what went wrong, and how to correct it for the future. A dialogue finally opened between what policy makers were suggesting and what the public was willing to accept. Already by late 2007, the Intelligence Science Board released a comprehensive report, Educing Information: Interrogation, Science and Art, evaluating interrogation techniques, both in military and domestic police operation. The report evaluated the effectiveness of various methods of interrogation, drawing on existing manuals and training, psychological explanations, and previous intelligence community and law
Vanessa Buschschluter, “The Obama Approach to Interrogation,” BBC News, January 29 2009, http://news.bbc.co.uk/2/hi/europe/7847405.stm
20 enforcement studies. It was the first such comprehensive study of interrogation techniques for several decades. However, it was not a policy analysis. It focused solely on the effectiveness of various techniques, irrespective of their feasibility for implementation or reception by a given constituency. It does, however, provide a solid basis as a piece of evaluative criteria in conducting a fully policy analysis of this issue. These inquiries continued, as in 2008 the Senate Armed Services Committee conducted an ex post facto review of the Bush administration’s interrogation policy. They found fault at every stage of the policy process, stating that the initial OLC findings on “enhanced” techniques were sloppy and hastily arrived at. Additionally, they found that this initial oversight led directly to the subsequent abuses at Abu Grahib, Guantanamo Bay, and elsewhere. Essentially, a shoddy, incomplete, and virtually non-existent policy analysis led to the implementation of a policy decision that created an enormous wealth of controversy and problems for the Bush administration. However, this Senate report did not address any alternative policies or seek to provide future recommendations. It was essentially an historical narrative pieced together after-the-fact, with only minimal value as a policy analysis.42 Apart from these two formal reviews, there has been little in the way of an actual policy analysis of interrogation policy. Much of the interrogation debate remains within the media. The debate itself is highly politically charged, making a truly objective analysis difficult. Additionally, there has yet to be any truly comprehensive review of the problem, one that incorporates all of the factors in play in this debate (effectiveness, legality, and public acceptability). Certain works, such as Educing Information, focus
Senate Armed Services Committee Inquiry Into the Treatment of Detainees in U.S. Custody, December 11 2008, http://levin.senate.gov/newsroom/supporting/2008/Detainees.121108.pdf
21 exclusively on the effectiveness question. Another example is former-Vice President Dick Cheney’s presence in the media, still justifying the use of enhanced techniques based solely on the claims of their effectiveness (though, to date no actual interrogation data from the use of these techniques has been fully declassified; a 2004 CIA Inspector General’s report on the matter is heavily redacted). Additionally, many of these works and arguments focus on proving or disproving the effectiveness of a specific technique, rather than judging several different options against each other. Other studies, particularly any reports put forth by human rights groups, focus solely on the morality of the question, and to a lesser extent, how interrogation techniques are viewed at home and abroad. Then there are works, such as Constitutional Limits on Coercive Interrogation, that focus primarily on the legal aspects of the debate. However, to be fair, these legal studies are far more robust than the findings put forth in the original OLC memos on the subject. By themselves, each of these works represents an aspect necessary to conducting a policy analysis of this issue. However, there has yet to be any comprehensive review that incorporates all of these key factors and applies them to the whole spectrum of interrogation techniques. As such, it is difficult to make a recommendation as to what would be a viable policy solution for future situations based on the existing disjointed and incomplete attempts to solve the problem. It is the aim of this study then, to address this serious shortfall in the interrogation debate. By examining the entire spectrum of interrogation methods, and applying all of the necessary factors at play in this debate, this study will attempt to undertake a
22 comprehensive policy review of the problem, and formulate a suggested solution for future use.
23 CHAPTER 3 METHODOLOGY
This study will take the form of a policy analysis. The analysis will examine both the accuracy and reliability of the three contending interrogation policies as well as their political feasibility, and then make a policy recommendation based on how the contending policies meet these criteria. Additionally, it should be noted that while there are certainly knowledge gaps surrounding this issue, the real question to address is how to make the best policy with the knowledge that is currently available. As such, this study and methodology is designed to address this policy question, not the knowledge question.
Policy Analysis Justification
It is the very public nature of the debate on this issue that makes it a policy problem, and therefore a problem best resolved via a policy analysis. While the initial debate on interrogation practices was secret and internal to the federal government, this is no longer the case. What was once an internal discussion among Bush administration officials has now become a public debate and a genuine national policy issue. The problem of the most effective and acceptable way to interrogate detainees is complex. Had this problem been a question of simply what method most effectively extracted accurate information from detainees, irrelevant of all other external factors, it could have been addressed with a simple comparative study, or perhaps even an experiment (assuming ethical guidelines would allow this). However, the nature of the
24 problem is not so one-dimensional. It seeks to address the number of peripheral issues surrounding the debate, evidenced in the preceding policy narrative chapter, dealing with the public reaction to the use of these techniques and their perceived legality and legitimacy. Furthermore, this policy problem has several competing, potential solutions (addressed later in this chapter), that must be judged against each other using a uniform set of objective, unambiguous criteria to determine which proposed solution is actually the most applicable. It is the presence of these factors that help frame question as one of policy. The policy analysis process is designed to confront issues like the one presented here, and thus is the best-suited methodology for the task at hand.
The Policy Analysis Process
Policy analysis is most easily understood as a six-step process. These steps are:43 1) Define the problem 2) Establish evaluation criteria 3) Identify alternative policies 4) Evaluate alternative policies 5) Distinguish between alternative policies 6) Monitor the implemented policy*
*The sixth step does not apply to this study, as implementation is beyond its scope
Carl Patton and David S. Sawicki, Basic Methods of Policy Analysis and Planning, (New Jersey: Prentice Hall, 1993).
The policy analysis process is designed to evaluate competing potential solutions to a clearly defined policy problem. The competing options are evaluated against each other under a set of criteria that can be universally applied to all of the policy options being considered. This evaluation and analysis then produces a recommendation as to which option best solves the policy problem. In this particular case, the policies to be examined are intended to implement a set of interrogation methods that consistently yields accurate information from insurgent detainees, while at the same time being politically feasible. These two aspects will be discussed more in depth momentarily.
Establishing the Evaluation Criteria
The evaluation criteria used to compare competing policy solutions can be most easily derived by using 1) general policy evaluation criteria, as found in academic templates and in general use in existing policy analyses, and 2) the specific goals of a given policy problem. These criteria should be easily understood, clearly defined, unbiased, and sufficiently broad so as to be applicable to all of the competing policy options. For example, if one is evaluating policy options for building a new local school in one of several locations, it would be intentionally misleading to create overly-nuanced evaluation criteria that would ultimately favor one location over the others. Such an action undermines the policy analysis process and ultimately leads to confusion, incomplete analysis, and an inaccurate policy recommendation. Evaluation criteria should
26 be kept sufficiently clear and broad so that all of the applicable data can be utilized, producing a more complete analysis. In this study, the first set of evaluative criteria is derived from the central issue of this policy problem, which is how to implement an interrogation method that reliably obtains accurate information from irregular, unorganized, insurgent detainees. By breaking down this aim into its component parts, the necessary criteria become evident. The first necessary criteria must be the accuracy of a given method, and the second the reliability of a given method to yield accurate information. As such, the first set of evaluative criteria is as follows:
Accuracy of information. This criterion will measure the accuracy and truthfulness of information garnered via each of the competing methods. As there is no quantitative metric to measure this criterion, results will be based on a number of qualitative factors. These include: psychological studies of interrogation and their effect on a detainee, firsthand battlefield accounts from practitioners and professional interrogators, and appropriate historical examples (other cases of interrogations against irregular, insurgent detainees, such as Afghanistan, Iraq, Algeria, and Vietnam)
Reliability of method. This criterion will measure how consistently a given method yields accurate information. This is essential, because a method may yield accurate information once out of every one hundred uses, but by yielding nothing the other ninetynine times (whether by getting flat wrong information or the detainee refusing to talk, for example), it is not terribly reliable. As there is also no quantitative metric to measure this
27 criterion, this evaluation will again draw upon qualitative sources, such as practitioner and firsthand testimony, as well as applicable historical examples, again drawn from similar instances of irregular, insurgent interrogations. The second set of evaluative criteria is derived from a standard set of basic criteria applied in policy analyses that examine the political acceptability of potential policy options. These then, are the criteria that will be used to evaluate the political feasibility aspect of this study. Political feasibility is being evaluated because in the modern world the government can no longer assume that policy decisions will remain secret until they are ready to be released, if ever, to the public. This is specifically due to the advent of nearimmediate telecommunications technologies, and the rapid dissemination of information via the internet. This new paradigm (discussed in greater detail in the preceding chapter), was readily apparent numerous times during the George W. Bush administration, evidenced by the leaking of the Jay Bybee “torture memo” in 2004, rumors and eventual confirmation of CIA interrogation “Black Sites” between 2002 and 2006, rumors of torture and prisoner mistreatment at Guantanamo Bay beginning in 2004, and the speed with which news of the Abu Grahib prisoner abuse scandal broke in 2004. In each of these instances, the government was caught off guard by the sudden exposure of, and public reaction to, what were then-secret policy issues (or in some cases loss of control over policy implementation). These events made it clear that complete secrecy surrounding policy decisions can likely no longer be expected, and that policy decisions are likely to be made public well before the government is ready to disseminate them. As
28 such, a policy’s potential reception by the public, and thus political feasibility, must be accounted for. Political feasibility can be defined as how acceptable a given policy is to officials, policy makers, the nation as a whole, the policy’s targeted demographic (whether foreign or domestic), and its legality, both under domestic and international law, depending on the policy target. The criteria used to evaluate the policies being considered in this study were extrapolated from the above definition of political feasibility, by breaking it down to its simplest component parts (foreign and domestic acceptability, and legality), while keeping these parts as clearly defined and broadly applicable as possible. These elements were then corroborated with existing policy analysis models and a standardized academic policy analysis framework.44 They were further verified via their explicit use by the RAND Corporation in a 2009 analysis of the political feasibility of potential U.S. intelligence initiatives,45 lending credence to their practical applicability. As such, the remaining evaluative criteria are as follows:
Acceptability (Domestic). This criterion will measure how favorably these policies are received, or are likely to be received, within the United States, with regard to public officials, policy makers, and the general public. Evaluations will be gauged based on qualitative and pseudo-quantitative information, including gauging press reaction to a particular policy option, evidence of public controversy or support, domestic public
Chicago State University, “The Policy Analysis Process,” http://www.csulb.edu/~msaintg/ppa670/670steps.htm#SIX%20STEP%20POLICY%20ANALYSIS 45 RAND Corporation, “The Challenge of Domestic Intelligence in a Free Society: A Multidisciplinary Look at the Creation of a U.S. Domestic Counterterrorism Intelligence Agency,” http://www.rand.org/pubs/monographs/2009/RAND_MG804.pdf
29 opinion polls and approval ratings, reaction from other policy makers, and any applicable historical examples (such as instances where a particular method has been publicly debated previously in the U.S. or in a similar, Western-style liberal democracy).
Acceptability (Foreign). This criterion will measure how favorably these policies are received, or are likely to be received, internationally, and specifically in the regions where they are to be implemented (Afghanistan, for example, if the data is available), using qualitative and pseudo-quantitative measurements. These will again include: local press reaction, foreign opinion polls of U.S. actions and opinion of the U.S. generally, particularly in the policy’s target region, any perceived increase or decrease in risk to U.S. troops implementing these policies, and any applicable, similar historical examples.
Legality. This criterion will evaluate the legality of each of the three policy options, both under domestic and international law. This is important because a perceived or actual, indefensible illegality undermines the legitimacy of a given policy choice, and potentially puts policy makers and implementers at risk of domestic (as we have seen with President Obama leaving the door open to the investigation of lawyers who approved the “torture memos,” and practitioners who implemented their techniques),46 or foreign (as we have seen with the Italian government trying CIA operatives in absentia for conducting questionable interrogations and renditions)47 prosecution. Because of this potential risk for the policy makers themselves, it is an integral element in evaluating political feasibility.
“Will Obama really prosecute CIA interrogators?,” Christian Science Monitor, September 28 2009, http://www.csmonitor.com/2009/0928/p08s01-comv.html 47 “Italy orders CIA kidnapping trial,” BBC News, February 16 2007, http://news.bbc.co.uk/2/hi/europe/6368269.stm
30 The above evaluative criteria have been deliberately kept broad, clear, and simple to avoid any misunderstanding over definitions that arise from semantics or too much nuance. They are also designed to incorporate a variety of different sources and types of data for use in evaluating the contending policies, without being structured to specifically favor one particular policy option above all others. Furthermore, the second set of criteria have a proven usage history in academia and professional circles, indicating that it is a practical and effective model for evaluating political feasibility.
Establishing the Policy Alternatives
The possible policy alternatives can be grouped into three competing ideas, as will be defined below: Non-Coercive Interrogation, Enhanced Interrogation, and Torture. These three are the most oft-discussed options in the public debate over this issue. Their legitimacy is reinforced by drawing upon U.S. Army field manuals, CIA operational manuals, U.S. Department of Justice opinions, UN guidelines, practitioner accounts, the opinions of legal scholars, and the public debate that has arisen over this policy problem. All of these sources touch on the entire range of interrogation techniques, but classify them into categories much like those presented here. They serve to corroborate the three separate classifications used in this study. The alternatives presented here still cover the entire spectrum of interrogation techniques, but divide it into its three most distinct parts, with each part recognizably escalating in harshness over the one before it.
31 Policy Alternatives and Operational Definitions
For the purposes of this study, the three competing policy options are defined as follows, and drawn from existing definitions and practices:
Non-Coercive Interrogation. These tactics generally focus on psychological ploys and utilize deception as a means of tricking the detainee into revealing information. Oftentimes the interrogator appears omnipotent, or surreptitiously goads the prisoner into revealing vital information by playing on pride or ego. Sometimes the interrogator attempts to establish a congenial rapport with the detainee, gaining his trust, treating him humanely and with respect, so that eventually the prisoner divulges information as if he was conversing with a trusted friend. This was the type of interrogation method practiced by the Luftwaffe’s Hans Scharff48 and in the United States’ MIS:Y strategic interrogation program during World War II.49 Little-to-no physical or mental stress is placed on the captive, other than simple mental tricks or playing upon minor, pre-existing grievances. Many of the interrogation tactics detailed in the U.S. Army Field Manual FM 34-52 fall under this category.50 These methods include: • • Direct Approach: simple, direct questioning Incentive Approach: in which the interrogator rewards positive behavior and responses,
Raymond F. Tolliver and Hans-Joachim Scharff, The Interrogator: The Story of Hanns Scharff, the Luftwaffe’s Master Interrogator, (Atglen, PA: Schiffer Publishing Ltd., 1997) 49 S.M. Kleinman, The History of MIS-Y: U.S. Strategic Interrogation During World War II, (Master’s thesis, Joint Military Intelligence College, Washington DC, 2002) 50 US Army Field Manual FM 34-52, Human Intelligence Collector Operations, September 2006, http://www.army.mil/institution/armypublicaffairs/pdf/fm2-22-3.pdf
32 • but never promises incentives that cannot be met. This aims to build trust
between the detainee and the interrogator, so the detainee feels that the interrogator does have his best interests in mind. • Emotional Love/Hate Approach: in which the interrogator convinced the detainee that • talking will either save or harm his comrades’ lives, depending on how the
detainee feels towards those comrades. It offers the chance either for salvation (where there is great comradeship), or revenge (where the detainee feels slighted by his or her former comrades) • Pride and Ego Approach: in which the interrogator either appeals to the detainee’s pride • as a soldier, praising his competence in the hopes that the detainee will
reveal information out of personal arrogance, or where the interrogator insults the detainees soldierly competence, in an effort to trick the detainee into revealing information as a means of defending his own ego • Futility Approach: in which the interrogator plays on pre-existing doubts in the detainee’s mind as to the outcome of the conflict, or the belief that everyone will talk sooner or later • • “We Know All” Approach: in which the interrogator appears
omnipotent and treats the • • detainee’s interrogation as perfunctory
33 • “Establish Your Identity” Approach: in which the interrogator
accuses the detainee of being a particular individual, in order to get the detainee to confirm or deny these • • • Repetition: in which the interrogator repeats the same questions accusations
and answers over and over, to get the detainee to succumb as a means of breaking the monotony of the • • • Dossier Approach: in which the interrogator acts as if he or she has line of questioning
a substantial file on • • all of the detainee’s information, often used with the “We Know All” approach Good Cop/Bad Cop: in which two interrogators display opposite personality traits, one • hostile, one soothing, in order to get the detainee to open up to one or the
other of the interrogators • • Rapid Fire Approach: in which the interrogator ceaselessly asks
questions, often cutting
34 • off the detainee or not allowing him a chance to answer. This acts on the
principle that everyone likes to hear themselves speak and drives the detainee to interrupt out of pride and agitation, unwittingly divulging information. • Silence Approach: in which the interrogator says nothing, and the detainee is driven to • • begin talking as a way to break an increasingly uncomfortable and nerve-inducing silence
None of these tactics place the detainee in any physical danger, temporary or otherwise, nor do they place any undue psychological strain on the detainee (where he may fear for his life, for example). The only psychological aspect present is an attempt to trick and outwit the detainee.
“Enhanced” Interrogation. The term “Enhanced Interrogation” comes from a Bush-era policy of interrogation techniques that covered a wide-range of tactics, sometimes delving into the realm of actual torture. For the purposes of this study, the term “Enhanced Interrogation” exists solely to encompass a middle-ground of interrogation tactics that lie between non-coercive methods and torture. This definition does not hold to the Bush administration definition of enhanced interrogation for two reasons: 1) several of the Bush-era tactics did, by all other definitions of the word, cross into the realm of torture (this will be discussed here and in the following definition of torture), and 2) the Bush administration definition was formulated to grant credibility and legality to a specific policy decision (namely the use of these tactics), despite being at odds with every other international standard of
35 interrogation. In this respect, to use the Bush-era definition of enhanced interrogation would be to accept a predominantly subjective and politically motivated description, which would, conceivably, result in a flawed analysis. The definition presented here more closely resembles that presented by law professor Amos N. Guiora, in that it represents a true middle ground and does not enter into the impermissible.51
For the purposes of this study, then, “enhanced” interrogation tactics are those that utilize a higher degree of psychological manipulation than non-coercive tactics, coupled with physical manipulation of a detainee. They do incorporate the use of fear, but not an explicit fear of imminent death, dismemberment, or severe bodily harm. These techniques create a fear of the unknown, and seek to continuously recreate the feeling of disorientation and confusion present when a detainee is first captured (a ‘Where am I?” “What’s happening?” “What’s going to happen to me now?” feeling). For example, an interrogator may say “Well, if you don’t talk, we’ll send to you Location X, and who knows what they’ll do to you there.” This type of psychological ploy does not imply any impending physical harm, but plays on a detainee’s uncertainty about the future, allowing him to believe that anything can possibly happen. An interrogator who yells at a detainee or throws furniture about the room is another version of this tactic. It puts the detainee on edge about what the interrogator is likely to do next, and causes him to question whether or not the interrogator will cross the line and directly assault the detainee. While the interrogator never actually crosses this line, these actions create the illusion that such an action is possible, again putting the detainee in a state of uncertainty and anxiety. Yet
Amos N. Guiora, “Why Torture Doesn’t Work”, Paper presented at Mercyhurst College, October 24 2008
36 another version of this is known as the Fear Up Approach, in which the interrogator suggests (with varying degrees of aggressiveness), that the detainee could be subject to severe reprisals, either by his or her own people or by the international legal system if he or she does not talk, again playing on a fear of the unknown.52 “Enhanced” tactics also have a physical element, in that they attempt to wear down a detainee’s capacity to resist through what is essentially exhaustion. This can include prolonged standing, exposure to changes in temperature, periods of sleep deprivation, and the like. These tactics aim at eliminating a detainee’s ability to resist by forcing his attentions to focus on the physical aspects of his well-being, rather than on formulating a strong mental defense to the interrogation. In theory, a detainee is too exhausted, cold, hot, stressed, etc. to be able to mount a strong psychological defense against an interrogator’s questioning. The detainee will, ideally, yield to the interrogator so that he can recuperate physically, much like how an exhausted spouse will concede an argument at the end of the day just so he can obtain a bit of rest. What sets these tactics firmly in the middle ground between non-coercive interrogation and torture is that, while they are certainly a step above non-coercive tactics in their use of fear and physical manipulation, they never cross the line between engendering fear and uncertainty about the prospect of severe physical harm and actually causing severe physical harm. At times, these tactics can come very close to the line drawn by the Geneva Conventions governing what is and what is not permissible treatment of wartime prisoners, but do not cross it. It is a very fine line to toe, and thus does involve a modicum of risk and the need for precise control over interrogators.
US Army Field Manual FM 34-52, , Human Intelligence Collector Operations, September 2006, http://www.army.mil/institution/armypublicaffairs/pdf/fm2-22-3.pdf
37 Perhaps the best rationale for the legitimacy of these tactics and what separates them from torture is put forth by Chris Mackey in The Interrogators. In this work, he explains that many of these techniques are used on U.S. Army soldiers while in basic training. Recruits are constantly yelled at, denied sleep, made to function in all extremes of weather, and threatened with uncertain punishment when breaking discipline. Yet never is it suggested that U.S. Army recruits are tortured as a part of basic training. Under these tactics, detainees are treated under essentially the same standards as U.S. Army recruits.53 This is the same logic also espoused by noted expert on the legal aspects of counterterrorism, including former Israeli Defense Forces Judge Advocate General Amos N. Guiora.54
Torture. There is no universally agreed-upon definition of what does, and what does not, constitute torture. Merriam-Webster defines torture as the infliction of intense pain (as from burning, crushing, or wounding) to punish, coerce, or afford sadistic pleasure.55
According to the United Nations, torture is defined as: “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a male or female person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or
Chris Mackey and Greg Miller, The Interrogators: Inside the Secret War Against Al-Qaeda, (New York: Little, Brown, and Company, 2004), 282-89 54 Amos N. Guiora, “Why Torture Doesn’t Work”, Paper presented at Mercyhurst College, October 24 2008 55 Merriam-Webster Online, http://www.merriam-webster.com/dictionary/torture
38 intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.” 56
The United States Justice Department, after 2001, formulated its own definition of torture as: an act committed by a person acting under the color of law 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; “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from— (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering
United Nations Convention Against Torture and Other Cruel, Inhumane, or Degrading Treatment or Punishment, December 10 1984, http://www.un.org/documents/ga/res/39/a39r046.htm
39 substances or other procedures calculated to disrupt profoundly the senses or personality; 57
In each of these definitions, two things stand out. The first is that each definition explicitly mentions the presence of severe mental or physical pain, to the point where it can be considered completely debilitating. Generally, the severity of this pain is also immediate, as torture is generally designed to break a resistant detainee as quickly as possible (a key element of the Ticking Bomb Scenario).58 Thus there is a clear difference between a detainee’s legs becoming sore from standing for several hours, versus a detainee being suddenly subjected to a fierce beating or electroshock. Part of the aim of torture is to apply sudden, severe, and disorienting shock to a prisoner, something that cannot be achieved through a long, slow process. The second thing that stands out is that in the case of threatened severe harm, this harm is explicitly stated and not left up to the detainee’s imagination. For example, there is a distinct difference between an interrogator stating that, “If you don’t talk, we’re going to break your fingers one by one until you give us information,” versus “If you don’t talk, we’re going to send you to Location X, and we don’t know what will happen there.” In the first instance, the threat of severe physical pain is clear and explicit, leaving no room for ambiguity. In the second instance, the interrogator is simply trying to engender an almost natural fear of the unknown. There is not any direct implication of severe pain, leaving the detainee to form their own assessment of the situation. This tactic simply makes the detainee play a guessing game in their own mind. It is a psychological
U.S. Dept. of Justice, Office of Legal Council, Memorandum For James B. Comey, Deputy Attorney General, December 30 2004, http://news.findlaw.com/cnn/docs/terrorism/dojtorture123004mem.pdf 58 Alan Dershowitz, “Tortured Reasoning,” in Torture: A Collection, ed. Sanford Levinson, (New York: Oxford University Press, 2004), 257
40 trick, whereas the first instance is a deliberate threat. By not explicitly stating what the consequence may be, the detainee maintains a significant amount of control over how this tactic affects him or her, unlike in the first instance. Several methods that were considered “enhanced” techniques under the Bush administration realistically fall under the umbrella of torture. Among these are techniques such as: • -Waterboarding: in which a detainee is strapped to a board and undergoes simulated drowning • -Walling: in which a detainee is repeatedly slammed against a false wall to create sound and shock • -The Insect method: in which a detainee is placed in a small box with an insect and is told • • • it will sting, though ultimately the insect is harmless. This is often used to play off of a detainee’s phobias, such as of certain insects or spiders, similar to the “rat in a box” tactic most famously envisioned in Room 101 in George Orwell’s 198459
Other methods of torture include such well-known practices as electro-shock, the removal of fingernails, reverse hanging, and general beatings. In all of these instances, physical pain is immediately severe and potentially prolonged, depending on how long the detainee resists. As the physical pain builds, so does the mental strain, to the point in which the detainee’s mind breaks along with his body, out of a sense of hopelessness and
1984 by George Orwell: Summary, Pt. 3 Chp. 5, http://www.online-literature.com/orwell/1984/23/
41 a perceived hope of relief from pain. With regard to the insect method, the aim is to create severe psychological trauma, particular if preying on a detainee’s phobias.60
The difference, therefore, between torture and “enhanced” interrogation is one of severity, action, and explicitness. While many detractors argued that “enhanced” techniques are tantamount to torture, they do not, in actuality, even begin to approach the level of cruelty and pain inherent in actual torture. Ultimately, “enhanced” techniques are certainly uncomfortable, both physically and psychologically, but torture crosses into a whole other realm of severity that leaves with it lasting physical and mental debilitations. Additionally, as stated earlier, many of these enhanced techniques are similar to what soldiers undergo as part of Basic Training, where they are routinely judged as acceptable (these detainees are also soldiers, albeit of an irregular variety).61 For an act to be considered torture, the physical and psychological pain inflicted must be severe and usually prolonged (depending on how long the detainee resists), and any threats or implications of severe pain must be made explicit and not left up to the detainee’s imagination, to reject or modify if he or she so chooses.
Producing the Policy Recommendation
This study will apply the available relevant data pertaining to the above-listed evaluation criteria (culled from media sources, academic studies and journals, research journals, public and private studies, firsthand accounts and testimonies, historical
As a person with one or two considerably strong phobias, I can attest to the extreme fear and terror engendered when they are roused. 61 Chris Mackey and Greg Miller, The Interrogators: Inside the Secret War Against Al-Qaeda, (New York: Little, Brown, and Company, 2004), 282-89
42 analyses, psychological studies, opinion polls, etc.), for each of the three possible policy options defined above. The results will then be compared against each other to produce a descriptive analysis, on which a policy recommendation that best solves the research question will be made.
It should be noted that there are certain limitations to the policy analysis process and this particular research question that will affect the conduct of this study. Being a policy analysis, this study must operate under a constrained timeframe so that the analysis remains relevant. As such, there is an incentive to arrive at the first “good” answer to the problem, rather than the absolute best solution to the policy problem. Furthermore, this time constraint necessitates the examination of only a small, finite number of policy alternatives, even though there could conceivably be an infinite number of minutelynuanced policy alternatives. This study attempts to overcome that problem by creating the three, somewhat catch-all policy propositions, which are outlined previously in this chapter. Lastly, while this process aims to arrive at the most acceptable solution to the problem, there is no universally agreed upon set of social values, and thus the final recommendation will likely not be appealing to everyone, but can simply hope to be appealing to as much of a majority as possible. With regard to the research question, there is presently little to no empirical or quantitative measure of the effectiveness or reliability of the three methods being evaluated (addressed previously in this chapter). Additionally, some relevant evidence,
43 specifically regarding the harsher forms of interrogation, still remains classified and is unlikely to be declassified before the completion of this study. Some reports have been released, but they are heavily redacted (such as the 2004 CIA Inspector General Report on detainee interrogation). The future revelation of this data could, conceivably, alter the final analysis and recommendation presented by this project. However, in spite of these limitations (particularly regarding the availability of relevant information), there are still enough resources available to engage in an in-depth discussion of the interrogation issue. While the findings of this study will not be the final word on this issue, they will provide as full a discussion of the topic as is possible and will hopefully spur on further investigation of the interrogation issue, as well as foster a better informed public debate on the topic. This study will also be one of the few (if any, judging from my research), that approaches the interrogation question from a formal policy analysis perspective. This unique approach makes such a study further worthwhile, despite existing limitations.
44 CHAPTER 4 POLICY ANALYSIS
This chapter will analyze each of the three suggested policies against each other, using the determined comparative criteria. The format will be as follows:
Criteria 1: Policy A: Policy B: Policy C:
This allows for a straightforward comparative judgment on each of the criteria as they apply to the three policies being considered.
Accuracy of Information
Non-coercive, rapport-building interrogation is, in recent history, the method most commonly propagated by official U.S. policy. It appears as standard training the U.S. Army Field Manual, and is favored over harsher methods in the 1963 CIA KUBARK interrogation manual.62 In this latter manual, the CIA states that prisoner screening, rapport building, and personality typing are key to getting good information from a
Darius Rejali, Torture and Democracy, (Princeton: Princeton University Press, 2009), 416
45 detainee. The KUBARK manual emphasizes this technique over more coercive methods of eliciting information, arguing that each interrogation is unique and must be tailored to fit the personality of both the interrogator and the detainee.63 There are few quantitative statistics supporting the use of these techniques, but according to the U.S. Army, simple, direct- questioning interrogation was 85-95% effective during the Second World War, and 90-95% effective in Vietnam (where the U.S. was fighting loose affiliations of guerillas, much like in Iraq and Afghanistan).64 However, the remainder of the evidence supporting non-coercive interrogation is mostly anecdotal, based on practitioner experience.65 There is little empirical evidence to support these statistics, though this is also the case for the other policies being considered in this study. The available qualitative evidence must be relied upon instead. Initial practitioner testimony of the effectiveness of U.S. use of non-coercive interrogation comes from experiences in the Second World War. While the nature of that conflict and the enemies faced are different from those of today, some generalities regarding non-coercive methods can still be extracted from these accounts. The model of non-coercive interrogation at this time was manifest in a Luftwaffe officer named Hans Scharff. His methods were so subtle that he was able to get captured Allied airmen to reveal key information without them even realizing it. The U.S. took a similar approach in their interrogations of captured high-ranking German officers at a
Steven M. Kleinman, “KUBARK Counterintelligence Interrogation Review: Observations of an Interrogator – Lessons Learned and Avenues for Further Research,” in Educing Information: Interrogation-Science and Art: Foundations for the Future: Phase 1 Report, ed. United States Intelligence Science Board and Federation of American Scientists, (Washington DC: Center for Strategic Intelligence Research, National Defense Intelligence College, 2006), 134 64 This refers to the Vietcong operation in South Vietnam. They were a loosely organized guerrilla force much like Iraqi insurgents and Taliban/Al-Qaeda fighters in Afghanistan 65 Darius Rejali, Torture and Democracy, (Princeton: Princeton University Press, 2009), 514
46 secret camp located in Fort Hunt, Virginia.66 According to L. St. Clare Grondona, former commander of this Combined Services Detailed Interrogation Center, non-coercive methods worked wonders against the Germans and yielded intelligence of inestimable value. Harsher techniques were viewed as unprofessional, unreliable, and would have led to ridicule by colleagues.67 U.S. Marine Major Sherwood Moran, who served as an interrogator in the Pacific Theater, provides further testimonial support for the accuracy of non-coercive interrogation. He interrogated many Japanese prisoners (arguably a more fanatical enemy than the Germans, and closer to the kind of enemies the U.S. faces today),68 using rapport-building and cultural understanding. He found this technique to be far more successful than those who used humiliation and stress, which only resulted in the prisoners resisting more fiercely.69 These experiences were mirrored by many other interrogators in the Pacific Theater. In each case, non-coercive, rapport-building, culturally-adaptive methods proved to be the most effective in extracting accurate information from Japanese captives.70 Almost sixty years later, these non-coercive methods yielded similar results when used in Iraq and Afghanistan. Matthew Alexander,71 a military interrogator stationed in Iraq, taught his interrogation team these same rapport-building methods used by interrogators during
S.M. Kleinman, The History of MIS-Y: U.S. Strategic Interrogation During World War II, (Master’s thesis, Joint Military Intelligence College, Washington DC, 2002) 67 John Conroy, Unspeakable Acts, Ordinary People: The Dynamics of Torture, (Berkley: University of California Press, 2001), 43-44 68 The Japanese warrior code of Bushido taught soldiers to fight to never surrender and view the enemy as subhuman. 69 Darius Rejali, Torture and Democracy, (Princeton: Princeton University Press, 2009), 549 70 William Spracher, ed., Interrogation: World War II, Vietnam, and Iraq, (Washington DC: National Defense Intelligence College, 2008) 71 This is a pseudonym, used by the interrogator for security reasons
47 World War II. Using non-coercive methods, cultural understanding, and “good oldfashioned brainpower,” in conducting over 300 interrogations and supervising over 1,000, Alexander was able to understand the insurgent enemy. He also adapted criminal investigative techniques, permitted by the Army Field Manual as “ruses and trickery,” to elicit information from captives. Eventually these methods led to critical information that resulted in the death of Abu Musab al-Zarqawi.72 Alexander was also able to use these methods to get information from supremely resistant detainees, though they still never abandoned their jihadist cause. According to one detainee, he decided to cooperate because he thought he would be tortured, and when he was not, he decided that to yield information because everything he thought he knew about Americans was wrong.73 A similar situation occurred in Afghanistan when a prisoner was treated in a non-coercive, rapport-building manner and, realizing he would not be tortured, he decided to become a cooperative ally.74 In late 2006, the FBI decided to conduct its own evaluation of non-coercive techniques, in a case against a suspected 9/11 terrorist (name unknown). The detainee had already been treated very harshly by the CIA and was eventually coerced into revealing information. The FBI aimed to uncover this same information (acting on no prior knowledge of it), using non-coercive techniques. The detainees were given food when they were hungry and treated with a certain degree of humanity and dignity. The FBI’s
Zarqawi was the leader of Al-Qaeda in Iraq, believed to be a major driving force behind the insurgent violence in Iraq following the 2003 U.S. invasion. 73 Matthew Alexander, “I’m Still Tortured by What I Saw in Iraq,” Washington Post, November 30 2008, http://www.washingtonpost.com/wp-dyn/content/article/2008/11/28/AR2008112802242.html 74 Chris Mackey and Greg Miller, The Interrogators: Inside the Secret War Against Al-Qaeda, (New York: Little, Brown, and Company, 2004), xxii
48 “Clean Team,” was eventually able to elicit the same information obtained by the CIA, albeit with much less intrusive techniques.75 Outside of practitioner testimony and the odd federal agency experiment, there is some social science literature dealing with the nature of persuasion and influence in eliciting information. Of particular note is “Approaching Truth: Behavioral Science Lessons on Educing Information from Human Sources,” by Randy Borum. This particular study states that there a six factors that most consistently affect cultivating influence with an individual. These six are: reciprocity (giving a little to get a little back), scarcity, liking (showing sensitivity to a captive, in this case), authority (establishing oneself as a legitimate source of authority, usually by following through on promises made), commitment/consistency (stemming from establishing authority), and social validation. These six factors are all present and practiced in non-coercive interrogation.76 They seek to build a certain level of trust and rapport with another individual, in an attempt to get them to do what the other wants. The literature also states that when individuals believe they are being coerced, they are likely to feel disrespected and are less likely to cooperate.77 This evidence suggests then, that due to its very nature and from observable results from practitioners, non-coercive interrogation methods can be effective in extracting accurate information from captives.
Josh White, Dan Eggen, and Joby Warrick, “U.S. to Try 6 On Capital Charges Over 9/11 Attacks: New Evidence Gained Without Coercive Tactics,” Washington Post, February 12 2008 http://www.washingtonpost.com/wp-dyn/content/article/2008/02/11/AR2008021100572_pf.htm 76 Randy Borum, “Approaching Truth: Behavioral Science Lessons on Educing Information from Human Sources,” in Educing Information: Interrogation-Science and Art: Foundations for the Future: Phase 1 Report, ed. United States Intelligence Science Board and Federation of American Scientists, (Washington DC: Center for Strategic Intelligence Research, National Defense Intelligence College, 2006), 22-24 77 Ibid.,25
49 Enhanced Interrogation
The use of “enhanced interrogation,” is a relatively recent development, at least in public knowledge, coming to the forefront of public debate during post-9/11 wars in Afghanistan and Iraq and the greater war against terrorism. As such, much of the evidence for its effectiveness is, again, anecdotal. Chris Mackey, an interrogator in Afghanistan, is one of the most prominent sources of this testimony. He saw first-hand prisoner resistance to the non-coercive methods taught at the interrogator training school at Fort Huachuca, and according to Mackey, detainees overcame these techniques “almost effortlessly.”78 In response, Mackey and his colleagues began developing their own “enhanced” version of existing techniques, incorporating methods such as sleep deprivation and temperature changes, but all within the bounds of what the interrogators themselves experienced in regular working conditions. These methods played up the element of fear, fear of the unknown, on the detainees. The interrogators found that this change in techniques began to pay immediate dividends, as detainees who previously put forth stalwart resistance were suddenly succumbing to these techniques and yielding accurate information. Mackey and his team consistently enjoyed these results over the course of his deployment to Afghanistan, lasting approximately one year.79 80
Chris Mackey and Greg Miller, The Interrogators: Inside the Secret War Against Al-Qaeda, (New York: Little, Brown, and Company, 2004), 89 79 Ibid. 80 I have, as yet, been unable to find another first-had source mirroring Mackey’s experiences. He is, thus far, the only interrogator from either Iraq or Afghanistan to publish anything about their experience. While it may seem to overstate the effectiveness of these measures, it really one of the only first-hand accounts to go on at present. However, the fact that they are first hand experiences (and a critical locations like Bagram Air Force Base), do enhance their credibility. Additionally, his work does take into account the observations and experiences of his colleague and fellow interrogators (i.e. an entire interrogation unit), so this evidence can be viewed as a shared experience incorporating multiple observers’ viewpoints.
50 Colonel John Rothrock, a retired Air Force interrogator who served in Vietnam, provides a more distant example of “enhanced” techniques. His enhanced techniques consisted of psychological manipulation (revolving around maintaining the shock of capture and creating the unexpected), and minor amounts of physical stress (standing, sleep and deprivation, for example). In his experience, these enhanced techniques, or “not nice” as he calls them, were used against captured Vietcong fighters and resulted in the extraction of quality information, oftentimes on a short time constraint (a “ticking bomb” scenario if you will).81 However, enhanced interrogation is not without its detractors. According to Educing Information, a study commissioned by the Intelligence Sciences Board, the practice of using coercive or “enhanced” methods for interrogation is very complex and there is no research to indicate the effectiveness of such methods, apart from the anecdotal evidence (though such is the case for all of the methods being considered here). The Board also states that a preponderance of these reports (despite claims made by Mackey and his colleagues), cast the effectiveness of these techniques in an unfavorable light, particularly from a psychological perspective. Specifically, the study states that, “The effects of many common stress and duress techniques are known to impair various aspects of a person’s cognitive functioning, including those functions necessary to retrieve and produce accurate, useful information.”82 It is important to consider the effect that increased stress and even mild coercion might have on a person’s ability to reason and remember clearly. Studies of false
Anne Applebaum, “The Torture Myth,” Washington Post, January 12 2005, http://www.washingtonpost.com/wp-dyn/articles/A2302-2005Jan11.html 82 Randy Borum, “Approaching Truth: Behavioral Science Lessons on Educing Information from Human Sources,” in Educing Information: Interrogation-Science and Art: Foundations for the Future: Phase 1 Report, ed. United States Intelligence Science Board and Federation of American Scientists, (Washington DC: Center for Strategic Intelligence Research, National Defense Intelligence College, 2006), 35
51 confessions (which, to be fair, are taken from the perspective of a police interrogation aimed at eliciting a confession to a crime), find that as detained persons are subjected to increasing amounts of confusion, fatigue, and coercion, they become more susceptible to suggestive lines of questioning and are more likely to give desired answers in order to escape an increasingly adverse situation. In this state, a person’s memory can often become confused, muddled and inaccurate.83 This is why, in criminal cases at least, confessions obtained under stress and coercion are inadmissible. Furthermore, a particular study of false confessions, by Richard P. Conti, a psychology professor at Boise State University, cites reports of the treatment of Prisoners of War and foreign prisoners in China that documented the use of physical abuse and coercive methods in interrogations. These reports revealed these methods to be ineffective, and that belief change and compliance were more likely when physical abuse was totally absent, or at least kept to a minimum (However, this may actually lend credibility to the minor stress techniques implemented by Mackey’s limited-stress approach).84 It would seem then that, at best, “enhanced” techniques, as defined in this paper, are a mixed-bag. There is not enough evidence available, either in the form of practitioner testimony or scientific study, to definitively say one way or another that enhanced techniques do or do not yield accurate information. While there is some practitioner testimony that supports its effectiveness in extracting accurate information, there is also an equal amount of psychological evidence to suggest that it is ineffective. From the
Richard P. Conti, “The Psychology of False Confessions,” The Journal of Credibility Assessment and Witness Psychology, Vol 2. No. 1 (1999) http://truth.boisestate.edu/jcaawp/9901/9901.pdf 84 Ibid.
52 available data, however, it would seem that enhanced techniques are equally capable of producing both forms of information.
The majority of current literature and testimony regarding interrogation methods revolves around torture. This is owing to the heated public debate on the subject that has arisen over the past several years. The evidence and testimony on the accuracy of torture, although again mostly anecdotal in nature, is overwhelmingly negative. Officially, professional interrogators are taught to avoid the use of torture. Not only is it perceived to be illegal and immoral, but is also thought to be supremely ineffective, as the consensus is that a detainee will say anything to avoid or end being tortured.85 It also hardens the enemy against the interrogator.86 According to the U.S. Army Field Manual, the use of force is a poor technique, as it may induce the subject to tell what he thinks the interrogator wants to hear. The subject may not possess the information sought, but he will fabricate information to please the interrogator and bring an end to the force being applied.87 The CIA supports this idea, in its KUBARK manual, stating that intense pain is quite likely to produce false confessions, concocted as a means of escaping from distress.88 There is also psychological research that indicates that coercion or pressure can actually increase a detainee’s resistance and determination to resist (these are, again, the
Chris Mackey and Greg Miller, The Interrogators: Inside the Secret War Against Al-Qaeda, (New York: Little, Brown, and Company, 2004), 282-9 86 Ibid., 31 87 US Army Field Manual FM 34-52, Human Intelligence Collector Operations, September 2006, http://www.army.mil/institution/armypublicaffairs/pdf/fm2-22-3.pdf 88 Darius Rejali, Torture and Democracy, (Princeton: Princeton University Press, 2009), 102
53 studies on false confessions mentioned in the previous section on enhanced interrogation). These studies also state that there is no scientific research to suggest that coercion and pain can, will, or has provided accurate or useful information from resistant sources.89 In general, direct physical brutality creates only resentment, hostility, and further defiance on the part of the detainee.90 Additionally, increased stress and duress releases chemicals in the brain that impede normal functioning and memory recall. While it might still certainly be able to get a detainee to talk, with increasing coercion it becomes increasingly likely that the truth behind what is said will be suspect, owing to this chemical reaction within the brain.91 Furthermore, according to a study conducted by Fairleigh Dickinson University, torture does not work under real-world conditions, outside of a hypothetical environment.92 The study finds that physical methods offer very little advantage under time constraints, as interrogators are more prone to deception than usual when pressed for time. This is contrary to the argument that torture is necessary for expediting interrogations. The study also takes issue with the notion that torture is necessary to break hardcore resistance, finding that “interrogation is more likely to yield good information if the person is an opportunist, not a hardcore believer.”93
Robert Coulam, “Approaches to Interrogation in the Struggle against Terrorism: Considerations of Cost and Benefit,” in Educing Information: Interrogation-Science and Art: Foundations for the Future: Phase 1 Report, ed. United States Intelligence Science Board and Federation of American Scientists, (Washington DC: Center for Strategic Intelligence Research, National Defense Intelligence College, 2006), 9 90 Steven M. Kleinman, “KUBARK Counterintelligence Interrogation Review: Observations of an Interrogator – Lessons Learned and Avenues for Further Research,” in Educing Information: Interrogation-Science and Art: Foundations for the Future: Phase 1 Report, ed. United States Intelligence Science Board and Federation of American Scientists, (Washington DC: Center for Strategic Intelligence Research, National Defense Intelligence College, 2006), 132-3 91 BBC News, “Torturing Does Not Get Truth,” BBC News, September 22 2009, http://news.bbc.co.uk/2/hi/health/8267633.stm 92 Roger Koppel, “Epistemic Systems,” Epistime: Journal of Social Epistemology, 2005 2(2), http://alpha.fdu.edu/~koppl/epistemics.doc 93 Darius Rejali, Torture and Democracy, (Princeton: Princeton University Press, 2009), 478
54 Outside of these more formal findings, practitioner testimony again provides arguments as to the ineffectiveness of torture in acquiring accurate information. Much of this information comes from the U.S. conflict in Vietnam, as it is sorely lacking from the current conflict, owing to much of that information being classified. Orrin Forrest, a CIA operative in South Vietnam at the time, cited his experience where prisoners’ decisions whether or not to yield information and give in were made well before any interrogation began. In many cases, even as methods got harsher, prisoners simply refused to break. Furthermore, the highest-ranking Vietcong intelligence officer captured during the war only responded to non-coercive, rapport-building interrogation. He was completely unresponsive to torture.94 Don Dzagulones, an interrogator with the 23rd Infantry Division (colloquially known as the “Americal Division”), of the US Army in Vietnam, provides a more detailed account. In a 1995 interview, he stated that he could not recall a single instance where torture yielded any accurate information: “If it happened, I am certainly not aware of it. Like prisoner X comes in, you beat the living snot out of him. He tells you about a Viet Cong ambush that is going to happen tomorrow, you relay this information to the infantry guys, and they counter-ambush and the good guys win and the bad guys lose, all because you tortured a prisoner. Never happened. Not to my knowledge. And you don’t get any more functional as an interrogator than I was. I mean I was the bottom rung, you don’t get any lower, this is it, this is the front line for interrogators, that’s
55 where I was. So my experiences aren’t universal, but they were at the nitty-gritty level, down at the base. We started the ball rolling.”95 This is not to say that Dzagulones believed that torture did not yield any information at all. He states very clearly that it did produce a multitude of intelligence reports. However, these reports contained little to no accurate information and resulted in, as he puts it, “dropping bombs on empty jungle.” Dzagulones attests that he was able to glean far more accurate information through the use of simple misdirection (a non-coercive method), than he ever did through the use of torture.96 Additional judgments on the accuracy of information gleaned through torture come directly from the intelligence community itself, most notably in the CIA’s KUBARK manual on interrogation. According to KUBARK, “persons of considerable moral or intellectual stature often find in pain inflicted by others a confirmation of the belief that they are in the hands of inferiors, and their resolve not to submit is strengthened.” Therefore, those who are more educated or those who posit themselves as intellectuals are less likely to yield under torture.97 Furthermore, according to a 1983 CIA interrogation manual, “most people underestimate their capacity to withstand pain” and “strong fear of anything vague, when sustained long enough, is enough to induce regression.” But a materialization of this fear, meaning the actual use of torture, is likely to come as a relief and the subject finds that he or she can hold out, thus strengthening his or her resistance. In this regard, the use of torture is actually counterproductive.98
John Conroy, Unspeakable Acts, Ordinary People: The Dynamics of Torture, (Berkley: University of California Press, 2001), 113 96 Ibid. 97 Darius Rejali, Torture and Democracy, (Princeton: Princeton University Press, 2009), 476 98 Chris Mackey and Greg Miller, The Interrogators: Inside the Secret War Against Al-Qaeda, (New York: Little, Brown, and Company, 2004), pg 282-9
56 Furthermore intelligence successes usually credited to the use to torture are actually oftentimes misleading. In a recent example, interrogation conducted at Abu Grahib (which was very coercive in nature, bordering on or crossing over into torture), did not lead to the capture of Saddam Hussein. In actuality, a link-analysis team utilizing an in-house link chart nicknamed “The Mongo Link,” led to the capture of Hussein. Furthermore, military officials stated that these harsh Abu Grahib interrogations were counterproductive, and that the most useful battlefield intelligence was extracted via lesscoercive means before the prisoners even arrived.99 However, it is important to consider past incidents where great intelligence and military successes have been credited to the extensive use of torture. Perhaps the most oft-cited instance of the effectiveness of torture is the Battle of Algiers, in which French forces defeated the National Liberation Front, or FLN, within the city of Algiers. This was supposedly due to the extensive use of torture as a means of gathering intelligence, leading to the elimination of the FLN’s leadership. However, this may not have been the case after all. There is no doubt that the French military was able to thoroughly crush the FLN in the Battle of Algiers, and that the widespread use of torture played a large role in this, in some form. However, the idea that the victory came directly as a result of the intelligence generated by torture, leading to the capture and elimination of top FLN members, is being reassessed. New examinations of the conflict have shown that the intelligence which led to these top FLN members came from vast informant networks in and around the city, not from information gleaned in torture interrogations. Mass arrests, persistent surveillance, and overwhelming concentration of force, and a robust local
Darius Rejali, Torture and Democracy, (Princeton: Princeton University Press, 2009), 509
57 informant network turned the tide of the battle, not torture. For example, the final capture of Yacef and Ali LaPointe (the ringleaders of the FLN in Algiers), was, in fact, achieved through the informant network created by General Massu, commander of the French forces in Algiers.100 This contradicts the idea that torture was a critical tool for intelligence gathering during the battle.101 The information that Massu and his subordinates gained through torture was tainted at best, and usually completely fabricated. Prisoners often said anything they thought the torturer wanted to hear to stop the torture.102 According to Alistair Horne, historian of the Algerian War, the French intelligence services were, more often than not, overwhelmed by mountains of false information that was extracted via torture, provided by prisoners desperate to do anything to stop further torture.103 Thus, from an intelligence standpoint, the use of torture was utterly ineffectual, time-consuming, and ultimately counterproductive. When asked in 2000 about his use of torture during the Battle of Algiers, Gen Massu, said that “No, when I think back about Algeria, it grieves me. We could have done things differently.” This sentiment is mirrored by Yves Goddard, Massu’s chief lieutenant at the time, who also said that there was “no need to torture” for information, as informants did the same job better and more efficiently.104 However, there are U.S. officials (such as Dick Cheney, Dennis C. Blair, Michael Hayden, and other Bush-era administrators), who maintain that the coercive interrogation program,105 “yielded critical information.” According to officials, including former CIA
Ibid., 483 Ibid., 487 102 John Conroy, Unspeakable Acts, Ordinary People: The Dynamics of Torture, (Berkley: University of California Press, 2001), 112 103 Darius Rejali, Torture and Democracy, (Princeton: Princeton University Press, 2009), 489 104 Ibid., 490 105 This program actually tilted more into the realm of torture. See: Methodology
58 Director Michael Hayden, the program was particularly effective in the questioning of Abu Zubayadah and Khalid Sheik Mohammed. It is claimed that their interrogations yielded information leading to the uncovering of various terrorist plots within the United States, including attacks on West Coast skyscrapers, New York City’s Financial District, and a radiological bomb plot. Unfortunately, the existing documentation does not state which specific methods were used and to what effect. A 2005 Justice Department memorandum only states that Mr. Mohammaed was waterboarded a total of 183 times in March 2003 alone. However, for the purposes of this study, waterboarding is regarded as torture.106 As recently as April 2009, Admiral Dennis C. Blair, the Director of National Intelligence, reiterated Hayden’s sentiment in an official memo. According to his sources, the pervasive use of waterboarding (estimated at over 266 instances between Abu Zubayadah and Khalid Sheik Mohammed), yielded information critical to understanding the threat posed by Al-Qaeda.107 The issue is further complicated by the judgment of a 2004 CIA Inspector General’s report evaluating the Bush administration’s enhanced program (released in August 2009). Though heavily redacted, the best judgment the document can make on these methods is that there is insufficient evidence to suggest if the methods used in the program were actually effective or not. The report states that the lack of differentiation between what results stemmed from what methods, and a very small, almost anecdotal set of evaluative cases (namely only Abu Zubayadah and Khalid Sheik Mohammed), make it impossible to judge whether they worked or not.108
Scott Shane, “Interrogation’ Effectiveness May Prove Elusive,” New York Times, April 22 2009 http://www.nytimes.com/2009/04/23/us/politics/23detain.html 107 Peter Baker, “Banned Techniques Yielded ‘High Value Information,’ Memo Says,” New York Times, April 21 2009, http://www.nytimes.com/2009/04/22/us/politics/22blair.html?_r=3 108 Special Review, Counterterrorism Detention and Interrogation Activities (September 2001-October 2003), Central Intelligence Agency, Office of the Inspector General, May 7 2004, 100-105
59 In the aggregate, the evidence suggests that torture does not yield accurate information. It puts the detainee in such a debilitated mental state, either through fear, exhaustion, or pain, that he either cannot function enough for convey information, or will say anything to end the pain of torture. Furthermore, the most oft-cited example of the effectiveness of torture, the Battle of Algiers, is not borne out after a reexamination of the available evidence. The best possible judgment on these methods, as per the 2005 CIA Inspector General’s report, is that their effectiveness in inconclusive.
Reliability of Method
It would appear that the evidence points to non-coercive interrogation as being particularly reliable at eliciting accurate information. As stated earlier, the U.S. Army Field Manual posits that simple, non-coercive interrogation was between 85-95% effective in both World War II and Vietnam.109 Again, first-hand testimony supports this judgment. Matthew Alexander, the U.S. interrogator in Iraq mentioned in the previous section on accuracy, states that in his experience the most effective means of conducting interrogations, by which he means the method that achieves the most consistent success in extracting accurate and timely information, is the non-coercive, “relationship-based” method. According to him, this involves more than simply establishing a rapport, as it also involves employing methods
http://luxmedia.vo.llnwd.net/o10/clients/aclu/IG_Report.pdf 109 Darius Rejali, Torture and Democracy, (Princeton: Princeton University Press, 2009), 514
60 of persuasion and cultural sensitivity, where the captive becomes convinced that it is in his/her best interest to cooperate.110 Army Colonel Stuart Herrington, a military intelligence specialist who served as an interrogator in Vietnam, Panama, and Desert Storm, provides further testimony to this effect. In 2003, he was sent to Iraq to evaluate interrogation practices. He found that, in his experience, approximately nine out of every ten detainees could be persuaded to talk via simple non-coercive methods, and employing no “stress techniques” at all. Though, he did add the caveat that with true believers the chances of success are lower, approximated “six out of ten,” as he puts it.111 This raises the more nuanced issue of the reliability of non-coercive methods when used against “true believers” and hardcore resistors. While it would appear that non-coercive interrogation is reliable in a general sense, it is less-so when applied to these hardcore believers. As Chris Mackey and his colleagues attest, detainees in Afghanistan overcame traditional interrogation methods with little effort, and proved to be virtually unbreakable using relationship-based methods. Additionally, Al-Qaeda operatives had obtained copies of the U.S. Army Field Manual and thus knew beforehand what techniques were going to be used in an interrogation, and were able to develop counter-interrogation strategies accordingly.112 In these instances, against this kind of hardened, tough-to-break enemy (which is predominant in the current conflict), non-coercive interrogation does not appear to be
Steven M. Kleinman, “Interrogation: Then and Now,” paper presented before the Senate Select Committee on Intelligence, September 25 2007, (cached version) http://18.104.22.168/search? q=cache:http://www.voiceseducation.org/node/551 111 Anne Applebaum, “The Torture Myth,” Washington Post, January 12 2005, http://www.washingtonpost.com/wp-dyn/articles/A2302-2005Jan11.html 112 Chris Mackey and Greg Miller, The Interrogators: Inside the Secret War Against Al-Qaeda, (New York: Little, Brown, and Company, 2004), 179
61 nearly as reliable, specifically in the current climate, unlike in more conventional conflicts like the Second World War.
Unfortunately, evidence for the reliability of enhanced interrogation is even more scant than the evidence for its individual accuracy. Again this is owing to its recent appearance as a distinct method. Its use is not well-documented enough to either understand the scope of its use, or to make a judgment as to its overall reliability in eliciting accurate information. However, the little testimony that there is, again coming from Chris Mackey and his colleagues in Afghanistan, does suggest a hint of promise that the method could prove to be reliable if tested in a widespread manner. According to Mackey, once their enhanced techniques were implemented in Afghanistan, quality information began to flow almost freely from the detainees, and their resistance became easily overcome.113 Again though, while these methods may appear promising, there is not enough evidence to make a conclusive judgment as to their reliability.
There does exist a great deal of testimony regarding the reliability of torture in extracting useful information. However, it is essentially all negative.
62 As stated previously, an example of the effective and reliable use of torture is the Battle of Algiers. However, again, this is not necessarily the case, as it was actually an informant network and extreme force concentration that led to victory in the battle.
Additionally, and again to reiterate, French intelligence collectors were inundated with mountains of false reports that were elicited through torture.114 According to interrogator testimony, no soldier could recall any time where torture produced accurate and timely information. A former interrogator, Jean-Pierre Vittori, stated that, “As the pain of interrogation began, they talked abundantly, citing the names of the dead or militants on the run, indicating locations of old hiding places in which we didn’t find anything but some documents without interest.” In this regard, the interrogations did, at times, yield some technically accurate information, but little of it was useful to French forces as it had ceased to be timely and relevant.115
Another use of widespread torture, being The Phoenix program, implemented during Vietnam, also utilized torture as a means of extracting intelligence. However, evaluations of the program suggest that information elicited was unreliable, given the way individuals were chosen for interrogation (via personal vendettas, etc.). The database constructed from these interrogations provided no evidence that the Phoenix program was able to elicit accurate information, let alone reliably do so.116
Darius Rejali, Torture and Democracy, (Princeton: Princeton University Press, 2009), 489 Darius Rejali, “Does Torture Work?” Salon, June 21 2004, http://dir.salon.com/story/opinion/feature/2004/06/21/torture_algiers/index.html 116 Darius Rejali, Torture and Democracy, (Princeton: Princeton University Press, 2009), 472
63 Present-day interrogators also judge that torture tactics have been wholly ineffective and unreliable, as they have yielded no real results in current conflicts in Iraq, Afghanistan, or against terrorism globally. According to these practitioners, we should be seeing a multitude of arrests stemming from this supposedly accurate information. However, this is not the case.117 For example, Abu Zubaydah, often cited as a current example of the efficacy of torture,118 took over two months to speak under torture. This can hardly be considered timely. Additionally, the information he yielded was all-over the map (he named members of the Saudi royal family, false dirty bomb plots, etc.),119 and increased his own derangement (during his captivity, he kept a diary that showed strong signs of schizophrenia) .120 In no way did this method prove to be reliable in this case. Interrogations of other Al Qaeda operatives also yielded farcical information such as plots to destroy the Brooklyn Bridge with a blowtorch.121 Part of the problem is that an interrogator cannot know fully what information the detainee actually has, and the use of torture often distorts the detainee’s own cognitive abilities. According to the KUBARK manual, severe stress and duress can cause subjects to yield, but it also greatly impairs their ability to recall or communicate information in an accurate manner.122
Ibid., 504 In official Justice Department memos, notably the Bybee memo 119 Darius Rejali, Torture and Democracy, (Princeton: Princeton University Press, 2009), 504 120 Justin Vogt. “Zubaydah’s Sanity, Bybee’s Clarity.” The New Yorker, April 17 2009 http://www.newyorker.com/online/blogs/newsdesk/2009/04/justin-vogt-zubaydahs-sanity-bybeesclarity.html#Replay 121 Darius Rejali, “Does Torture Work?” Salon, June 21 2004, http://dir.salon.com/story/opinion/feature/2004/06/21/torture_algiers/index.html 122 Steven M. Kleinman, “KUBARK Counterintelligence Interrogation Review: Observations of an Interrogator – Lessons Learned and Avenues for Further Research,” in Educing Information: Interrogation-Science and Art: Foundations for the Future: Phase 1 Report, ed. United States Intelligence Science Board and Federation of American Scientists, (Washington DC: Center for Strategic Intelligence Research, National Defense Intelligence College, 2006), 132-3
64 Based on the available evidence then, it can be judged that torture has thus far proven to not only be inaccurate, but unreliable. In those rare instances where it might provide accurate information, it is exceedingly difficult to confirm, given the low likelihood of corroborating it through additional interrogations. If it can be considered reliable, it is only reliable in producing great inaccuracy.
Acceptability (Domestic) Non-Coercive Interrogation There is little to no public debate or outcry over the use of non-coercive, rapportbuilding methods. It’s moral and ethical standing is a non-issue. Enhanced Interrogation Gauging domestic opinion on “enhanced” interrogation techniques is trickier. The current public debate over interrogation is mainly divided into two camps: non-coercive vs. torture. Middle-ground techniques, the “enhanced” techniques defined here, get lost in the outcry over torture techniques like waterboarding. It should be noted that there is a vocal opposition which considers techniques such as prolonged standing and sleep deprivation to be reprehensible. Various human rights groups such as Amnesty International hold that all measures beyond simple, direct questioning qualify as inhumane and should be outlawed.123 Additionally (due in large part to the Bush administration’s definition of “enhanced” techniques), many of the enhanced techniques defined here have been lumped in with waterboarding and other
Amnesty International, “USA: Torture in black and white, but impunity continues: Department of Justice releases interrogation memorandums,” April 17 2009, http://www.amnesty.org/en/library/asset/AMR51/055/2009/en/2119b5de-68b7-4f51-82a885e24fc125fe/amr510552009en.html
65 forms of actual torture.124 This, coupled with flippant comments from senior Bush officials (such as former Defense Secretary Rumsfeld’s “standing” comment),125 helped to color public perception against some of these techniques.126 As such, these techniques are often opposed because, to this portion of the public conscience, they still exist in the same plane as waterboarding. This issue is reflected in public opinion polls, such as a 2009 CNN poll in which approximately 60% of respondents believed that some of the Bush-era enhanced techniques constituted torture (However, it should be noted that in this same poll, 50% of respondents supported their use against detainees, suggesting a willingness on the part of the general public to accept harsher treatment of detainees).127 However, as evidenced by writings such as “The Dark Art of Interrogation” and the growing support of constitutional scholars, 128 it appears that these enhanced techniques are being distanced from waterboarding and other forms of torture. Additionally, the argument has been made many times that enhanced techniques (as defined in this paper), are equivalent with the same treatment experienced by military recruits in boot camp, and mirror the working conditions of interrogators. This is leading to a reassessment of these middle-ground techniques in the public eye.129 Unfortunately, due to the still somewhat confused nature of the debate on this particular range of interrogation methods, it is difficult to make an outright judgment as
Brian Ross and Richard Esposito, “CIA's Harsh Interrogation Techniques Described,” ABC News, November 18 2005, http://abcnews.go.com/WNT/Investigation/story?id=1322866# 125 In 2004, Rumsfeld notably remarked that he “stands for 8-10 hours a day, why is [detainee] standing limited to only four hours?” John Diamond, “Rumsfeld OK’d Harsh Treatment,” USA Today, June 22 2004, http://www.usatoday.com/news/washington/2004-06-22-rumsfeld-abuse-usat_x.htm 126 Ibid. 127 Paul Steinhauser, “Poll finds lack of support for 'torture' investigations,” CNN, May 6 2009 http://www.cnn.com/2009/POLITICS/05/06/bush.torture/index.html?eref=rss_topstories 128 Mark Bowden, “The Dark Art of Interrogation,” The Atlantic, October 2003, http://www.theatlantic.com/doc/200310/bowden 129 Amos N. Guiora, “Why Torture Doesn’t Work”, Paper presented at Mercyhurst College, October 24 2008
66 to whether or not they would be acceptable to a large majority of the domestic public. At best, based on the current evidence, opinion on these techniques could be considered mixed. However, the scant poll data and professional opinions may indicate a potential movement towards the acceptance of these methods.
Domestic response to the use of, or the perceived use of, torture is heated. Widespread media coverage of the issue and its accompanying scandals were a large factor in informing this debate. The initial rumors of torture tactics in 2003-04 launched a media firestorm that eventually came to dominate the news, particularly as it related to the war on terrorism. A full 76% of Americans reported being exposed to at least some substantial coverage of the Abu Grahib scandal.130 In the last two years alone, news relating to the torture debate has made up, on average, 10% of weekly reporting on terrorism. At one point, in early 2009, it even surpassed all news reports relating to the widespread global recession.131 A Google News trend analysis reveals that the coverage of the torture debate was steady and prominent (albeit with a few spikes and one or two dropping-off points), from early 2004 to mid-2009. The majority of this coverage presented a negative view on torture.132
“Iraq Prison Scandal Hits Home, But Most Reject Troop Pullout,” The Pew Research Center for People & the Press, May 12 2004, http://people-press.org/report/213/iraq-prison-scandal-hits-home-but-mostreject-troop-pullout 131 “Torture Tactics Top News,” Journalism.org, April 30 2009 http://www.journalism.org/numbers_report/biggest_week_terrorism_coverage 132 Google News Trends on Torture, 2003-2008 http://news.google.com/archivesearch? um=1&ned=us&hl=en&q=torture&cf=all&sugg=d&sa=N&lnav=d1&as_ldate=2003&as_hdate=2008&ldra nge=1970%2C1999&hdrange=2009%2C2009
67 This negative view was reflected in public opinion. The breaking of the Abu Grahib abuse scandal saw an immediate fall in approval ratings for the Bush administration by over 10 points, across all political affiliations, according to the Pew Research Center. This represents the sharpest, quickest, most universal single fall in administration approval from the entire period between 2003 and 2008.133 Additionally, Abu Grahib, for the first time, led directly to a majority of the public (51%), viewing the Iraq war unfavorably. For the first time, Americans felt that the war was not going well at all. It also marked the first time where belief that the U.S. made the right decision to launch the war became a minority opinion.134
However, these negative poll numbers are not fully reflective of the public’s opinion on torture. Despite the apparent universal outrage over the use of torture, if one is to believe media reports and approval ratings, an April 2009 Pew research poll found that 49% of Americans still believe that the use of torture135 is often or sometimes justified, as opposed to 47% of Americans believing that torture is rarely or never justified. When split along political lines, there is more of a noticeable divide, as 42% of those identifying as Republicans state that torture is often or sometimes justified, as opposed to 24% of self-identified Democrats. It should be noted, however, that among independents, 54% subscribe to the idea of torture as sometimes or often justified, compared to 44%
“Bush and Public Opinion,” The Pew Research Center for People & the Press, December 18 2008 http://people-press.org/report/?pageid=1444 134 “Iraq Prison Scandal Hits Home, But Most Reject Troop Pullout,” The Pew Research Center for People & the Press, May 12 2004, http://people-press.org/report/213/iraq-prison-scandal-hits-home-but-mostreject-troop-pullout 135 It should be noted that the poll does not state a clear definition of torture, like much of the literature exists on the topic. However, by simply using the word torture, we can gauge public reaction to even the idea of torture and all connotations attached to the word, regardless of what the methods the study would define as torture.
68 believing that it rarely or never is.136 Additionally, a 2008 Pew poll showed that 52% of Americans approved of the reported treatment of prisoners at Guantanamo Bay, despite the reports of torture and abuse emanating for that location.137 It would appear then, that the present public debate over the use of torture is not nearly as one-sided as one is led to believe, and that the use of torture is not universally disparaged. And yet, according to a 2009 World Public Opinion poll, 59% of Americans still support the UN Convention on torture and its general international ban.138 This near-even split of opinion among the population, and particularly the aligning of such opinions by political affiliation suggests that the issue remains highly divisive, and perhaps suggests that some of the public holds contradictory opinions on the matter. Historically, the use of torture by western democratic societies has led to negative domestic effects, outside of public opinion ratings. Again, the prime example is the Algerian War and the liberal use of torture by the French military. As rumors, and later evidence, of the use of torture filtered back to the French mainland, a vociferous opposition arose, both within the government itself and in the populace. Eventually this turned into a groundswell of hostility against the French Fourth Republic and set the public vehemently against the war, leading to the total collapse of the government in 1958.139 It also undermined the morale of the French army, thus undermining the war effort itself.140
“Public Remains Divided Over Use of Torture,” The Pew Research Center for People & the Press, April 23 2009, http://people-press.org/report/510/public-remains-divided-over-use-of-torture 137 Ibid. 138 “Majority of Americans Approve Complete Ban on Torture,” World Public Opinion.org, June 24 2009, http://www.worldpublicopinion.org/pipa/articles/brunitedstatescanadara/617.php?nid=&id=&pnt=617 139 Edward Peters, Torture, (Philadelphia: University of Pennsylvania Press, 1996), 133 140 Alistair Horne, A Savage War of Peace: Algeria 1954-1962, (New York: New York Review of Books, 2006), 232-4
69 It should also be noted that the use of torture has a tendency to undermine military discipline, and not just in the French example. In Brazil in the 1980’s, torture began to make its way into general use in the military, and led to the destabilization of the Brazilian army. The commanding authorities had to intervene and isolate and eliminate the torturers in order to save the army from total disintegration due to lack of discipline.141 The use of torture generally leads to organizational decay and spreads a lack of discipline through the ranks (This was also seen in the Abu Grahib scandals).142 So while the use of torture has the potential, as history bears out, to create strong unrest and dissent on the home front, it is not as universally repudiated in today’s domestic environment as one would be led to believe.
Again, as with the domestic response to these tactics, there is no observable foreign outcry or discontent over the use of non-coercive interrogation methods.
Darius Rejali, Torture and Democracy, (Princeton: Princeton University Press, 2009), 458 Ibid., 500
70 It is difficult to judge foreign reaction to enhanced interrogation methods, as they are described here, as the foreign debate (much like the domestic one), is generally divided into two camps: non-coercive vs. torture. In this debate, “enhanced” techniques are usually lumped in with the opinions on torture. However, this reflects “enhanced” techniques as propagated by the Bush administration, which do, in most cases, actually constitute torture. The problems that arise in judging the domestic acceptability of torture are mirrored in the attempt to judge the foreign acceptability of the use of torture. At best, the judgment is inconclusive due to the muddled, or lacking, evidence.
Torture International opinion on the use of torture appears to be clearly opposed to its use, under any circumstances. According to a 2006 BBC News poll, 60% of world opinion is strongly against the use of torture, in any circumstance.143 Allegations of torture and abuse at Guantanamo Bay turned world opinion sharply against the use of torture, and against the United States. The world consensus is that the U.S. behaved hypocritically in its treatment of detainees, holding the world to one set of treatment standards that the U.S. openly flouted. This has contributed directly to a sharp decrease in the U.S.’s world standing and reputation, according to a 2007 poll, falling as low as a 29% approval rating, down from 40% in 2005.144 A majority of world opinion also views U.S. actions at Guantanamo Bay as a violation of international law. These populations have rejected the U.S. argument that exceptions to prisoner treatment must be
“World Citizens Reject Torture, BBC Global Poll Reveals,” World Public Opinion.org, October 18 2006, http://www.worldpublicopinion.org/pipa/articles/btjusticehuman_rightsra/261.php?nid=&id=&pnt=261 144 Kevin Sullivan, “Views on U.S. Drop Sharply in Worldwide Opinion Poll,” Washington Post, January 23 2007, http://www.washingtonpost.com/wp-dyn/content/article/2007/01/22/AR2007012201300.html
71 made due to the war on terror. As a result, the U.S. is seen to have forfeited its preeminent place as a champion of human rights.145 In 2006, the United Nations turned against U.S. policy and recommended that the U.S. close down the Guantanamo Bay interrogation camps, out of a growing concern over the treatment of detainees there (namely that they were/are at risk of torture).146 In contrast to this period of falling approval ratings, President Barack Obama’s decision, in January 2009, to order the closing of Guantanamo Bay, met with overwhelming international approval.147 These polls all indicate a strong international stance against the use of torture and the mistreatment of detainees. Many sources also agree that the use of torture undermines any war effort, reduces the integrity of the military, and perhaps most significantly, sets the local populace against forces on the ground. Interrogator Matthew Alexander attests that the torture and abuse allegations at Abu Grahib and Guantanamo Bay were the number one reason that foreign fighters flocked to Afghanistan and Iraq to fight the U.S. Many of the suicide bombers in Iraq were these same foreign fighters. He states that it is “no exaggeration,” that at least half of the casualties suffered in Iraq were due to foreigners who chose to fight because of U.S. detainee abuse.148 According to Chris Mackey, the Abu Grahib torture and abuse scandal was destructive to the reputation of the intelligence corps, world opinion of the U.S. military,
“Publics in Europe and India See U.S. as Violating International Law at Guantanamo,” World Public Opinon.org, July 17 2006, http://www.worldpublicopinion.org/pipa/articles/btjusticehuman_rightsra/229.php?nid=&id=&pnt=229 146 Amy S Clark, “UN: U.S. Should Close Gitmo,” CBS News, May 19 2006, http://www.cbsnews.com/stories/2006/05/19/world/main1633209.shtml 147 “Confidence in Obama Lifts U.S. Image Around the World,” Pew Global Attitudes Project, July 23 2009, http://pewglobal.org/reports/display.php?ReportID=264 148 Matthew Alexander, “I’m Still Tortured by What I Saw in Iraq,” Washington Post, November 30 2008, http://www.washingtonpost.com/wp-dyn/content/article/2008/11/28/AR2008112802242.html
72 and to the reputation of the United States itself.149 These actions dehumanized the U.S., undermined the war effort, and over time bred more enemies of the U.S. than severe methods would ever allow the U.S. to capture.150 They eventually tipped the balance of popular support in favor of a radicalized enemy, as coverage of this scandal was very widespread, being known to, on-average, 60% of citizens in countries around the world.151 Such high-visibility, which is now almost a certainty given the speed and expansiveness of modern communications technology, further compounded these negative effects and amplified their exposure. Joshua Dartel, a New York-based criminal and civil liberties lawyer, further supports this assessment. He states that the use of torture endangers the lives of soldiers in the field by encouraging reciprocal acts by the enemy, and undermines the credibility of the battlefield mission. It makes “gratuitous enemies” and turns the local population against U.S. forces.152 The use of torture causes significant damage to the U.S.’s international reputation, and increases the risk to U.S. troops in the field.153 An historical example of these negative effects again comes from Algeria, where the use of torture in Algiers ultimately led to French defeat in the Algerian War. The concentrated use of torture and vast military pressure in and around Algiers may have eliminated the FLN from the city, but it forced the group to flee to the countryside; which in turn ended up widening the war to the entire country and ultimately made it
Chris Mackey and Greg Miller, The Interrogators: Inside the Secret War Against Al-Qaeda, (New York: Little, Brown, and Company, 2004), 477 150 Ibid.,477 151 “America’s Image in the World: Findings from the Pew Global Attitudes Project,” Pew Global Attitudes Project, March 14 2007, http://pewglobal.org/commentary/display.php?AnalysisID=1019 152 Joshua Dartel, “The Curious Debate,” in The Torture Debate in America, ed. Karen Greenberg (Cambridge: Cambridge University Press, 2005), 112 153 Ibid.
73 unwinnable for the French.154 Increasingly violent French reprisals and the use of torture also inflamed the local populace and rallied them to the cause of the FLN. This turned local public support against the French and further radicalized the population,155 as the FLN was able to use this evidence of torture as propaganda.156According to Alistair Horne, historian of the Algerian War, for each plot uncovered, the use of torture, “created fifty new terrorists who, operating in some other way and in another place, would cause the death of even more innocent people.”157 Ultimately, Massu’s use of torture may have helped win the Battle of Algiers, but ended up losing the war.158 Increased enemy propaganda is another negative repercussion of torture. For example, and in addition to the Algerian case, in Northern Ireland in the 1970’s Northern Irish and UK police forces would use torture on suspected IRA terrorists. However, these methods only served to help the IRA gain new recruits justified their anti-British propaganda, which ultimately increasing the number of IRA attacks. In the words of the UK media at the time, these methods served no purpose apart from “feeding PIRA propaganda.”159 These techniques, like the French used in Algeria, ended up only radicalizing the population,160 and served only to confirm the negative suspicions and propaganda against the police forces.161 Upon assessing the evidence then, it can be said that world opinion is definitively set against the use of torture, in any circumstance. It is viewed as universally
John Conroy, Unspeakable Acts, Ordinary People: The Dynamics of Torture, (Berkley: University of California Press, 2001), 112 155 Alistair Horne, A Savage War of Peace: Algeria 1954-1962, (New York: New York Review of Books, 2006), 174 156 Alistair Horne, A Savage War of Peace: Algeria 1954-1962, (New York: New York Review of Books, 2006), 317 157 Ibid., 205 158 Darius Rejali, Torture and Democracy, (Princeton: Princeton University Press, 2009), 493 159 Darius Rejali, Torture and Democracy, (Princeton: Princeton University Press, 2009), 245 160 Ibid., 513 161 Ibid., 548
74 reprehensible, and international opinion of the United States has fallen considerably in response to the alleged use of torture by the U.S. This reaction undermines current and potential allied support, and alienates local populations where U.S. interrogators operate, increasing the risk to operators on the ground. Furthermore, it has been shown historically, and in the present conflict, that the use of torture actually increases support for the enemy among the local population, and serves as a strong propaganda tool for enemy recruitment.
There is no present debate over the legality of non-coercive methods of interrogation. These techniques are permissible under the UN Convention on Torture, the Geneva Convention, and the U.S. Code. Non-coercive methods have been standard practice since at least the early 20th century, and are legally accepted worldwide.
It has been argued that enhanced interrogation techniques (as they are defined in this policy analysis), remain within the boundaries of what is legally permissible under the Geneva Conventions and the UN Convention Against Torture. While initial
75 justifications were formulated by practitioners themselves, almost as a matter of expediency, they eventually began to take hold among legal experts and academics. Initial justifications for the use of these enhanced techniques centered on the idea that such “stress” positions, loud noise, or sleep deprivation was analogous to what Army recruits had to experience as part of basic training. Additionally, they were equivalent to the working conditions faced by the interrogators themselves. For example, if an interrogator had to forgo sleep for 14 hours, for example, it would be justifiable for the detainee to be denied sleep for the same period of time, as he was receiving the same treatment as the interrogator. 162 Another example is the use of loud music (usually heavy metal), being blasted to detainees in Iraq and Afghanistan as equivalent to U.S. Army recruits being forced to listen to the “Barney song” for hours on end as part of their basic training.163 By engaging in armed combat, the detainees also tacitly accepted the risks of potential capture, captivity, and interrogation as fundamental aspects of warfare, akin to the risks assumed by U.S. soldiers upon joining the Army.164 This is allowable under the
Chris Mackey and Greg Miller, The Interrogators: Inside the Secret War Against Al-Qaeda, (New York: Little, Brown, and Company, 2004), 88 163 Darius Rejali, Torture and Democracy, (Princeton: Princeton University Press, 2009), 366 164 This raises this issue of whether voluntary, uniformed army service (and the risks and responsibilities associated with it), is any different from the unstated risks a detainee accepts when entering combat. In short, by voluntarily entering a battlefield situation, an insurgent detainee accepts all of the same risks and possibilities of treatment in wartime as a volunteer regular army soldier. This includes being interrogated. To claim that an insurgent cum detainee, who has entered combat voluntarily, cannot face the same treatment as a regular army soldier receives in boot camp is logically inconsistent. These two entities are one and the same, whether or not they wear a uniform. Where the dynamic could change is when conscription (i.e. the draft), becomes involved. Under that light, boot camp practices can be seen as slightly cruel or abusive, but only if the conscript involved was not privy to a social contract or law that would require such service (i.e. if they were kidnapped and forced into service vs. living in a country where a set period of military service in mandatory). Under this specific instance (being forced into service without it being a required social condition), even boot camp-like treatment appears cruel or abusive. However, the issue then raised is where the fault for this lies. Should guilt be placed on those who forced this individual into service, or does it lie with the interrogators employing these basic training tactics? I would argue that in this case, guilt lies with the party who initially forced the detainee into service, rather than with the interrogators. This is because it is most likely impossible for an interrogator to know the circumstances under which an individual entered combat or military service, and it is reasonable to assume (particularly in the case of an insurgency), that this individual is taking part of their own free will and thus tacitly accepts all the inherent risks associated with such action.
76 Geneva conventions, as it calls for prisoners to be treated on par with their capturing forces.165 Additional defenses of enhanced techniques have been posited as their being the “least bad thing to do,” wherein applying moderate amounts of pressure and stress could result in unearthing intelligence that could save lives. Many times an interrogator does not even have to resort to pressure or light coercion, as the threat of it can be enough to get the detainee to yield. It results in a psychological ploy well within legal bounds.166 These ideas, particularly those arguing for enhanced techniques being analogous to military basic training experiences, is supported in the legal and academic world as well. According to David Luban, a law and philosophy professor at Georgetown University, these methods do not approach the level of torture or even “torture-lite,” as is claimed by detractors, because they employ mostly trickery or psychological games and not severe physical trauma.167 Additional support comes from Amos N. Guiora, a constitutional law scholar and former legal counsel for the Israeli Defense Forces. He has spent much of his adult life handling issues involving the intersection of interrogation and the law. He finds that these “enhanced” techniques (his definition fits very closely with the one put forth in this policy analysis), are perfectly legal, for much the same reasons as presented by the interrogators themselves. They are no different from what domestic
Chris Mackey and Greg Miller, The Interrogators: Inside the Secret War Against Al-Qaeda, (New York: Little, Brown, and Company, 2004), 88 166 Mark Bowden, “The Dark Art of Interrogation,” The Atlantic, October 2003, http://www.theatlantic.com/doc/200310/bowden 167 David Luban, “Liberalism, Torture, and the Ticking Bomb,” in The Torture Debate in America, ed. Karen Greenberg (Cambridge: Cambridge University Press, 2005), 49
77 soldiers experience as part of regular military training, and are comparable to the working conditions of the interrogation teams.168 However, it is important to note that, while viewed by professionals and practitioners as perfectly legal methods, there is a minority that still perceives these methods as illegal and “torture-lite,” for reasons that have been outlined in the previous methodology chapter (namely, their semantic ties to Bush-era interrogation tactics). Much of this stems from the context in which these ideas were first floated, as they were taken as one and the same with much harsher methods, such as waterboarding, that do, in fact, qualify as torture. Matters were further compounded by the revealing of a statement by former Secretary of Defense Donald Rumsfeld, in which he dismissively remarked that he was often standing for many hours a day, so a detainee should be able to handle the same.169 These events helped color the public perception of enhanced techniques, painting them as extra-legal, despite professional opinions to the contrary. This perception cannot be discounted. Ultimately, although there is a vocal minority that decries anything other than rapport building as illegal, the opinion among practitioners and legal experts is growing that enhanced techniques do fall within legal bounds. But it is important to note that this vocal opposition cannot be easily discounted.
Amos N. Guiora, “Why Torture Doesn’t Work”, Paper presented at Mercyhurst College, October 24 2008 169 In 2004, Rumsfeld notably remarked that he “stands for 8-10 hours a day, why is [detainee] standing limited to only four hours?” John Diamond, “Rumsfeld OK’d Harsh Treatment,” USA Today, June 22 2004, http://www.usatoday.com/news/washington/2004-06-22-rumsfeld-abuse-usat_x.htm
78 Torture is, unquestioningly, illegal under almost any statute. The question then is not if torture is legal, but if it can ever be justified under supremely extenuating circumstances. For example, if a ticking bomb can be uncovered by the torture of one key suspect. The legal debate surrounding the use of torture has centered on precisely this kind of hypothetical circumstance. One of the few legal rulings on this issue originates in Israel, whose supreme court ruled that only moderate force in interrogations was permissible under the law of necessity (such as to stop a ticking bomb), but that severe coercive methods or torture were patently illegal, under any circumstance.170
However, the moral/necessity argument still continues. Michael Levin, a New York-based philosophy professor, frames the argument thusly: There are situations in which it is not merely permissible, but morally mandatory171 to torture. Suppose a terrorist has hidden an atomic bomb on Manhattan Island which will detonate at noon on July 4 unless (demands are met)…Suppose, further, that he is caught at 10am that fateful day, but preferring death to failure, won’t disclose where the bomb is….If the only way to save those lives is to subject the terrorist to the most excruciating possible pain, what grounds can there be for not doing so? I suggest there are none…Torture only the obviously guilty, and only for the sake of saving innocents, and the line between Us and Them will remain clear. There is little danger that the Western
Miriam Gur-Arye, “Can the War against Terror Justify the Use of Force in Interrogations? Reflections in light of the Israeli experience,” in Torture: A Collection, ed. Sanford Levinson, (New York: Oxford University Press, 2004), 183 171 Levin does not state what ethics dictate this mandate, but judging by the argument that one person might be tortured to save countless more, it can be supposed that this argument utilizes some form of utilitarian ethics.
79 democracies will lose their way if they choose to inflict pain as one way of preserving order.172 This is the same kind of “ticking bomb” scenario put forth by Alan Dershowitz, himself a university professor, as a rationale for the use of torture in extreme circumstances. He adds a slight change however, in arguing for the use of a “torture warrant,” which will grant investigative authorities the right to torture a particular subject, should there be convincing evidence that this subject has the necessary information to stop such a “ticking bomb.”173 On its face, this is a very persuasive argument. The problem is that it is a predominantly philosophical argument, a pure thought exercise, as the chances of reproducing such a situation in a real-world environment are scant.174 The issue with this scenario is that it presupposes the existence of a number of conditions that are extremely unlikely to converge (time, general location, person, and just the right amount of barely incomplete intelligence), and, if in the slim chance that they did, would most likely result in all of the relevant intelligence (i.e. the location of the “ticking bomb”), already being known without having to question the subject. To put it another way, what makes the ticking bomb scenario so improbable is that in a world where knowledge is ordinarily so imperfect, investigators are suddenly granted the omniscience to know that the person in front of them holds the crucial information about
Duncan Forrest, “Torture Through the Ages,” in A Glimpse of Hell: Reports on Torture Worldwide, ed. Duncan Forrest (London: Amnesty International, 1996), 25 173 Alan Dershowitz, “Tortured Reasoning,” in Torture: A Collection, ed. Sanford Levinson, (New York: Oxford University Press, 2004), 257 174 Henry Shue, “Torture”, in Torture: A Collection, ed. Sanford Levinson, (New York: Oxford University Press, 2004), 57
80 the bomb’s whereabouts. According to Harvard Professor Elaine Scarry, it is based upon an argument of selective omniscience.175 The conditions put forth in this scenario exist predominantly as a hypothetical, and will almost certainly never show themselves in the real world. Additionally, the intelligence gathered to alert authorities of the “ticking bomb” would, as Michael Walzer states in his book Just and Unjust War, likely serve as a means to uncover the source of the threat (the bomb), without having to implement torture. These intelligence methods will also rarely leave investigators at a point of last resort, as is the presupposed case in the “ticking bomb” scenario.176 So, while the “ticking bomb” scenario may be convincing on its face as a justification for the legal use of torture, albeit in extreme circumstances, it exists as too much of a hypothetical, philosophical thought exercise to be given any real-world, legal merit. The conditions required of it are too precise and myriad to be realistically met, and are of such nature that, logically, the “ticking bomb” would be uncovered long before the need to resort to torture, particularly under the necessary preconditions put forth in the hypothetical. It is unquestionably a persuasive moral and emotional argument, but it does not stand up under logical, real-world scrutiny. It cannot realistically be considered a practical legal argument or justification for the use of torture.
Elaine Scarry, “Five Errors in the Reasoning of Alan Dershowitz” in Torture: A Collection, ed. Sanford Levinson, (New York: Oxford University Press, 2004), 284 176 Ibid.
81 Based on the available evidence (practitioner testimony, historical studies, opinion polls, and, where available, scientific evidence), this study reaches the following conclusions: Non-coercive interrogation is agreed to be accurate and reliable when used against most detainees, based on both historical evidence and in more modern usage in Afghanistan and Iraq. A large factor in this is the matching of a skilled interrogator to a detainee, based on personality, cultural understanding, and other psychological factors. However, some more hardcore detainees have been able to overcome these methods in the current conflicts in Iraq and Afghanistan, owing in no small part to training specifically designed to counter known U.S. interrogation techniques. In terms of public opinion and acceptability, both domestic and foreign populations have no adverse opinion on the use non-coercive interrogation methods. No public outcry, domestic or foreign, has arisen over their use. Furthermore, these methods comply with all Geneva Conventions and do not raise any issues of morality or human rights violations. It is also clearly within all legal bounds governing the treatment of detainees and prisoners of war. At the opposite end of the spectrum, all available evidence and scientific documentation shows torture to be inaccurate and unreliable. Foreign opinion and domestic media opinion are decidedly set against the use of torture, often abhorring its use and calling for the resignation/prosecution of public officials suspected of condoning it. Domestic public opinion, on the other hand, is divided, with a 2009 Pew Poll revealing the public to be split almost 50-50 on the torture issue.
82 The use of torture has also been shown to cause strategic liabilities, such as putting ground forces in greater immediate danger, and supporting enemy propaganda and recruiting efforts. Torture is also universally illegal, and there is also no realistic scenario in which torture could be legally justified, despite the emotional and moral appeal of arguments like the ticking bomb scenario. The ticking bomb scenario, in particular, cannot be replicated under real-world conditions, thus rendering it moot as a practical legal argument. Enhanced interrogation techniques are a special case. While these methods do appear to be a promising avenue for further investigation, there is not yet enough specific information about these methods to soundly assess their effectiveness. There is also little information regarding how these methods are perceived by the public, both domestic and foreign, and the press. This is due primarily to the lack of clarity in the terminology surrounding the interrogation debate. However, these methods have attracted support from legal and constitutional scholars, but again there is not yet enough of it to assume a consensus. In comparison then, based on the available evidence, it can be reasonably concluded that non-coercive interrogation is the most effective and politically feasible of the three methods being examined, despite evidence of some resistance from hardened detainees. Torture, on the other hand, fails all tests of political feasibility and effectiveness. Enhanced interrogation shows promise as an alternative method of interrogation, but thus far there is insufficient information to make a sound assessment of its efficacy and feasibility.
Conclusions Summary: Non-Coercive Interrogation Accuracy Shown to be highly accurate and reliable, though it can be overcome by strong resistance training (as in Iraq and Afghanistan) Reliability These methods are also shown to be highly reliable, but again can be overcome by strong resistance training Acceptability (Domestic) There is no debate over the domestic acceptability of these methods
Enhanced Interrogation These methods show promise, but their limited use and documentation make a reliable judgment difficult Again, these methods show promise, but there is not enough documentation to make a sound assessment It is difficult to judge the domestic acceptability of these methods, due to the lack of sound documentation. At best they can be viewed a mixed. Again, judging foreign response to these methods is difficult to assess
Torture Based on the evidence, torture is shown to be highly inaccurate
The evidence shows torture to be highly unreliable in extracting accurate information Torture is vehemently protested in most mass/mainstream media, but opinion polls show an almost 50-50 divide among the public on the issue Torture is almost universally repudiated internationally
These methods arouse virtually no debate internationally
84 Legality These methods fall solidly within all domestic and international guidelines governing the treatment of prisoners/detainees These methods do have the support of some legal scholars and technically are permissible, but the debate over their is still in its infancy and a clear consensus does not yet exist Torture is illegal under almost any statute, and any extenuating circumstances (such as the ticking bomb), usually used to justify its use have no sound basis in a real-world situation, precluding it as a legal exception
85 CHAPTER 5 CONCLUSION AND RECOMMENDATIONS The purpose of this study was to address the policy debate on what is the best method to interrogate disorganized, insurgent, non-state detainees, specifically the kind faced in the current war against terrorism. However, this approach did not seek merely to address what method is most effective, but also what method is most political feasible as a policy option. As such, this study took into account the accuracy, reliability, domestic acceptability, foreign acceptability, and legality of the three over-arching, and most debated, methods of detainee interrogation. These methods, defined earlier in this study, are: Non-coercive interrogation, Enhanced Interrogation (different from the Bush administration version, described in the Methodology chapter), and Torture.
Policy Recommendations Based on the findings of this study, then, I would recommend the following policy action: For the immediate future, enact a policy of non-coercive interrogation. It has proven to be the most accurate and reliable of the methods discussed here. In doing this, interrogators should be matched to detainees based on numerous psychological and personality factors, and a level of language skill and cultural knowledge commensurate with each detainee’s background (CIA interrogation manuals attest to the efficacy of this).177 Additionally, resistance instructors (i.e. SERE instructors), should not be used as
Steven M. Kleinman, “KUBARK Counterintelligence Interrogation Review: Observations of an Interrogator – Lessons Learned and Avenues for Further Research,” in Educing Information: Interrogation-Science and Art: Foundations for the Future: Phase 1 Report, ed. United States Intelligence Science Board and Federation of American Scientists, (Washington DC: Center for Strategic Intelligence Research, National Defense Intelligence College, 2006), 101
86 practicing interrogators, as their training is in teaching people to resist hostile interrogations (and therefore they usually take an overly hostile, aggressive, abusive, and blunt stance as an interrogator), not in conducting interrogations. They also generally do not usually possess the cultural knowledge and language skills necessary for an effective interrogator.178 As part of this policy, operational security surrounding U.S. interrogation techniques should also be increased. Part of the reason some current detainees were able to overcome U.S. standard methods was due to a prior knowledge of U.S. techniques.179 If a detainee has no idea what is about to face them, they are more easily kept off-balance and more likely to yield to the interrogator or slip up. A key tactic of any interrogation is catching the detainee off-guard.180 The use of non-coercive techniques also has the added benefit of not creating political firestorms or strategic liabilities (such as an increased risk to troops or other operators in theater). They are politically feasible at home and abroad, and their use could help engender strategic partnerships among like-minded nations. This approach would also undermine insurgent propaganda efforts, which generally attempt to demonize and dehumanize American troops and policies. Additionally, torture should be ruled out under any conditions, as it is generally agreed to be wholly ineffective. It produces inaccurate information and cultivates numerous detrimental peripheral effects, at home and abroad. Furthermore, the conditions
Ibid., 98-99 Heather MacDonald, “How to Interrogate Terrorists,” in The Torture Debate in America, ed. Karen Greenberg (Cambridge: Cambridge University Press, 2005), 95 180 Steven M. Kleinman, “KUBARK Counterintelligence Interrogation Review: Observations of an Interrogator – Lessons Learned and Avenues for Further Research,” in Educing Information: Interrogation-Science and Art: Foundations for the Future: Phase 1 Report, ed. United States Intelligence Science Board and Federation of American Scientists, (Washington DC: Center for Strategic Intelligence Research, National Defense Intelligence College, 2006), 129
87 under which torture is argued to be morally and legally (albeit tenuously), permissible are unlikely to be replicated in a real world setting. The evidence suggests that adherence to a strategy of torture would not only create substantial political fallout domestically, but would also place troops and operators abroad at a greater risk of attack, in addition to potentially alienating allies. Such a strategy would also only help to give credence to insurgent propaganda and inflame foreign opinion against American soldiers and operators. Lastly, the possibilities of enhanced interrogation techniques (as defined in this study), should be investigated further. They present a promising solution to overcoming detainees who present hardened resistance. They carry the added benefit of having seen some successful use in the field and having garnered some backing from legal and constitutional scholars. While this is not enough to make a judgment on (as discussed in the previous chapter), it should warrant further study as this approach holds promise.
The conduct and findings of this study have the potential to cause a significant impact in the practice of intelligence collection and the formation of intelligence policy, particularly with respect to interrogation policy. Of particular significance is that it addresses the interrogation policy issue under the assumption that in a modern technological environment total secrecy cannot be assured, and it is therefore likely that any policy decision will be made public long before policymakers are ready to disclose the decision. As such, this study examined the full spectrum of issues that should be
88 considered when implementing a policy, even a supposedly secret policy. In this way, it can both act as a more complete and timely examination of the interrogation debate, and as a template for future evaluations of supposedly classified policy decisions. By addressing issues beyond just the effectiveness of a particular technique in eliciting information, this study provides a guideline for informing future potentially contentious, classified policy decisions. The study also provides a clear and thorough categorization and definition of the major, distinct interrogation methods. These could also serve to form the basis of future studies on this subject. These categorizations may also better inform the public debate on, as most previous discussions on the topic have failed to clearly define the interrogation methods being debated. By providing definitions, this study could serve to foster a clearer and better reasoned debate. In terms of this study’s findings and recommendations, it could precipitate the use of new interrogation methods that will help overcome hardened or trained resistance. If the enhanced methods described in this study are shown to be truly effective and acceptable (as they show promise), they could change the way in which the United States conducts its battlefield interrogations, while still remaining firmly within the bounds of the law and public acceptability. Additionally, the recommended adherence to a policy of only non-coercive interrogation, and the avoidance of torture, holds the possibility of shifting the approach the United States takes in combating insurgents or terrorists. These recommendations stress more than just physically eliminating an insurgent threat, they illuminate the need to combat enemy propaganda and recruitment efforts, and win the goodwill of the
89 population (as well as that of allies), in order to achieve victory. These findings and recommendations show that this occurs at all levels of a fight against an insurgency, even in the interrogation room. Adherence to a strategy that stresses these points would represent a shift to a more complex and nuanced approach to fighting counterinsurgency warfare.
Recommendations for Further Study However, despite these implications there is still much that can and should be examined within this topic, as there are still gaps that need to be addressed in order to fully address this problem. The first such task should be to establish clear and universally agreed-upon definitions of different interrogation methods, and to clearly delineate what actions fall under each method. Chief among these is developing a universal definition of what does and does not constitute torture. In order to conduct a robust examination of the issue, it is necessary for all involved to be working under the same parameters. Additionally, any potential future policies will be more easily developed if they adhere to a universal set of criteria. The next task should be to develop an expansive set of data relating to each interrogation method, in the form of first-hand accounts, case studies, and, most importantly, empirical data. There is currently a lack of robust empirical information within the interrogation debate, and such information is necessary to any truly comprehensive analysis of the issue.
90 Stemming from this, it should also be considered necessary to specifically cultivate more information regarding enhanced interrogation techniques (as they are defined in this study), as these represent a promising middle-ground of interrogation methods. Based on the available evidence, they do show potential as a solution to overcoming determined resistance by detainees. However, as shown in this study, there needs to be more data available on their use in order to fully evaluate their potential, as not enough currently exists to make a sound judgment on their merits. Any further examination of the interrogation issue will also require more complete information on the domestic and foreign opinion of different interrogation methods. This will again be made easier once a universally agreed-upon set of standards and definitions is established. At present, gauging public opinion on torture, for example, is not 100% accurate, as many surveys have a different definition of what constitutes torture, as do the people surveyed. A deeper legal analysis of the issue, particularly regarding the enhanced methods described in this study, is also required for any further comprehensive analysis. While the legal statuses of non-coercive interrogation and torture are generally accepted (again however, universal standards and definitions would further crystallize this), the status of enhanced techniques is nebulous. As they currently show some level of potential as an alternative means of interrogation and have some level of support among legal scholars, it is important to firmly establish or refute their legality, particularly before any implementation is considered. If these recommendations for further study are implemented, they should lead to a much more comprehensive evaluation of the problem addressed in this study, and
91 hopefully yield a more complete, if not total, solution than that presented here. While this study has addressed many of the issues surrounding the interrogation debate and created some baseline recommendations, there is still a great deal of research and discussion to be done before the problem can be satisfactorily solved.
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