Introduction: Legal, Moral and Effective Interrogation
Steven J. Barela and Jens David Ohlin
Torture is illegal. Beyond the pure human torment that was inflicted in the wake of the 9/11 attacks, the law against torture was another dreadful casualty in the “war on terror.” Every knowledgeable reading of the codified and customary law recognizes the use of severe pain and suffering as a patently unlawful act for every nation today. The duplicitous (and at times amateurish) manufacturing of legal loopholes for the United States, in fact, shows the need to deceive when it comes to the legality of state-sponsored cruelty. One merely needs to remember the fact that the Office of Legal Counsel (OLC) Memos meant to excuse brutality by the U.S. government survived only as long as they were kept secret. This point of legality has also been sharply made by our co-editor Mark Fallon who witnessed, and struggled to stop, the introduction of ill-treatment at the U.S. Naval Station in Guantánamo Bay, Cuba. His firsthand account of the dismantling of the law against torture is vivid:
…for all the fervor that so colored events in the aftermath of 9/11, the series of legal decisions that would ultimately be used to justify torture unfolded more like an avalanche seen in extra-slow motion: a boulder comes loose at the top of the mountain and begins rolling downhill, leisurely picking up more rocks and stones and boulders as it goes along until the whole mass—which in slow motion looked so much like a geological ballet when it began—suddenly ends up crashing into the valley below in a deafening roar. That’s where I was standing, in the valley at the bottom of the mountain, when the onslaught arrived.
Even as some feigned otherwise, the law on this count has remained unambiguous.
Torture is also immoral. Over the previous two decades there have also been efforts to promote the only ethical paradigm—utilitarianism—that might find the meting out of severe abuse as the lesser of two evils and thus the superior moral choice. Such writings have often glossed over and distorted central facts through the use of the highly implausible hypothetical ticking bomb scenario on the way to becoming “the most effective propaganda device ever devised on behalf of torture in the modern world.” The idea of using torture to save many lives bends public opinion towards the thought that such ill-treatment might just be acceptable. But even in this model, for torture to be moral it must work. In other words, honest utilitarians would agree that afflicting the ignorant or innocent with ineffective or inferior methods of violent interrogation cannot be considered ethical (see Chapter 16, Reclaiming Bentham on Torture).
Yet the most effective techniques for discovering the truth from a detained suspect have remained scientifically (and frustratingly) unstudied—until now. Over the last three decades, scientists and professional investigators have been working together to collect, systematically organize, and analyze data on how to best engage someone to learn what they might know about a previous or future crime. The results from the research are unsurprising to those familiar with the anecdotal historical evidence: non-coercive methods are more successful than their coercive or cruel alternatives.
But before we endeavor to integrate the insights from the new science, it is first important to clarify the scope of this academic project. In this volume we have limited our attention to the use of torture for interrogational purposes. Of course, ill-treatment can be imposed on individuals for reasons of pure cruelty, to force them to recant beliefs, or to intimidate the population at large. Experience has woefully shown that imposing such suffering can indeed be “effective” to meet the “ends” of sadism or pure power. Recognizing this wider application of torture and its victims was addressed on multiple occasions as we met with contributors to construct this volume. Despite this concern it has been a conscious analytical choice to limit the reach of this volume, because the contemporary debate over torture’s effectiveness relates more to interrogational tactics than it does to these other nefarious purposes. However, we understand that reducing our purview to an interrogational setting by no means tackles the abhorrence of this practice in all its forms, which remains an important question of academic study for others.
Our volume’s distinct contribution is to draw attention to this unique moment in history as science, law, and morals become interwoven on the subject of interrogation. In order to illuminate the integration occurring we can identify two key developments that undergird this book project. One is the emergence of transformative scientific research and the second is a proposal to incorporate this budding knowledge into international law and global policing initiatives. We believe these interdisciplinary advancements portend an important shift in conversations over interrogation and torture for all fields of study, and we hope to spark those discussions with the contributions of 36 participants from 14 countries in this edited book.
Two Developments Unfurl: New Science and Its Integration into Law & Practice
While the legal requirement introduced in the 1980s of recording all police interviews in England and Wales already opened the door to scientific study by creating comparable data, the initiation of a torture program by the U.S. was, in fact, an eventual catalyst for funding federal research into the most effective interrogation techniques. That is, while in early stages of the “war on terror” the media and the public were cautious about even using the term “torture” to describe the techniques being employed,some insiders were so deeply disturbed by the program they sacrificed their careers and dedicated themselves to seeking a solution.
Here again it is beneficial to call attention to Mark Fallon’s role at Guantánamo as the deputy commander of the Criminal Investigation Task Force (CITF). Their job was to assemble evidence to use before a military tribunal, in other words, “CITF would be in charge of bringing terrorists to justice.” In this capacity the team was directly confronted with the migration of the CIA torture program to the naval station on the island, and it was an email sent by Fallon in October 2002 that set in motion the events that would shine a bright light on this sordid history. For our purposes, it is particularly important to note that members of the CITF team were profoundly affected by the experience as they were unable to garner scientific evidence to back their practical experience of successful interrogation techniques.
Consequently, the vital step of researching what was known—and unknown—about effective questioning began while the torture program was still underway and included at least four members of the CITF team. A study was launched in 2004 by a panel that was chartered to advise the Office of the Director of National Intelligence and senior Intelligence Community leaders of the U.S. government and the reasoning for doing so was explicit in the first of two publications: “Concerns about recent U.S. interrogation activities, subsequent investigations, and the efficacy of contemporary tactics, techniques, and procedures have led the Intelligence Science Board (ISB) to explore the current state of scientific knowledge regarding interrogation and related forms of human intelligence gathering.”
This landmark study, Educing Information, proved pivotal. Participants in the ISB project brought together widely-respected, award-winning academics and senior business leaders who carefully chose the term educe—“to draw out or bring out”—to steer the investigation; the word “interrogation” had reached the point in public discourse where it had taken on a highly pejorative connotation, and they wished to focus on the legitimate intelligence-gathering function of interviewing a person in custody to discover reliable information about possibly serious matters. They pursued their research through two primary methods. First, they carried out an extensive literature review into the applicable behavioral and social sciences, examined the historical accounts of military, intelligence, investigative and law enforcement professionals, and studied training manuals in use within the intelligence community. Second, they conducted interviews and consultations with experts, both inside and outside of government, in military intelligence, history, intelligence analysis, law enforcement, medicine, engineering, law, public policy, and those versed in the workings of the intelligence community.
While there are a host of valuable insights in this work, perhaps the most precious item found in this study was an intriguing and disturbing epistemological vacuum. Namely, for decades methods of interrogation have been largely shaped by anecdotal experiences, intuition, and even myth—all while remarkable bounds forward have been driven by studied scientific enquiry in the 20th century. As a result, an essential gap in knowledge had accumulated. Many authors in the project underscored this dearth and it is worth spotlighting the void with multiple aspects of the findings as the study has served to guide much of the subsequent research:
• “most important, little rigorous information exists about the relative effectiveness of different techniques for educing information…”
• “U.S. personnel have used a limited number of interrogation techniques over the past half-century, but virtually none of them—or their underlying assumptions—are based on scientific research or have even been subjected to scientific or systematic inquiry or evaluation.
• “The potential mechanisms and effects of using coercive techniques or torture for gaining accurate, useful information from an uncooperative source are much more complex than is commonly assumed. There is little or no research to indicate whether such techniques succeed in the manner and contexts in which they are applied. Anecdotal accounts and opinions based on personal experiences are mixed, but the preponderance of reports seems to weigh against their effectiveness.”
• “Psychological theory and some (indirectly) related research suggest that coercion or pressure can actually increase a source’s resistance and determination not to comply. Although pain is commonly assumed to facilitate compliance, there is no available scientific or systematic research to suggest that coercion can, will, or has provided accurate useful information from otherwise uncooperative sources.”
• “A moderately strong body of social science research provides a potential road map to a new generation of strategies and approaches for overcoming resistance without the use of high-pressure, coercive techniques.”
• “Social science research on persuasion and interpersonal influence could provide a foundation for creating an elegant, elaborate, and powerful U.S. approach for educing information in intelligence gathering contexts.”
• “A major stumbling block to the study of interrogation, and especially to the conduct of interrogation in field operations, has been the all-too-common misunderstanding of the nature and scope of the discipline.”
• “Findings indicate that federal and local organizations provide little training specifically on interrogation; moreover, agencies do not collect data to establish whether their operatives actually apply the training they do receive, nor to evaluate the effectiveness of different interrogation approaches.”
• “The effectiveness of standard interrogation techniques has never been validated by empirical research.”
• “Surprisingly, the last forty years have seen almost no scientific research examining eduction practices. Rather, our current knowledge is based on feedback and lessons learned from field experience. The “interrogation approaches” taught in standard interrogation training (e.g., Army Field Manual 34-52) have remained largely unchanged since World War II.”
• “This paper argues two points: first, that scientific investigation of eduction practices is needed to supplement lessons learned from field experience, and second, that various research venues are available to examine these practices. Research approaches could include both retrospective analyses of data about past interrogations (including those that used harsh methods) and new studies that relate different eduction practices to the value of information obtained.”
• “Experience and lessons learned offer a necessary, but insufficient, basis for determining the effectiveness of eduction practices. A program of scientific research on eduction practices is both necessary and highly feasible.”
An important distinction must be drawn here. It is not a unique observation that the effectiveness of interrogation techniques has gone unstudied. For example, Darius Rejali found in his incredibly comprehensive study that, “[t]here may be secret, thorough reports of torture’s effectiveness, but historians have yet to uncover them for any government. Those who believe in torture’s effectiveness seem to need no proof and prefer to leave no reports.” There are entirely valid reasons why studying the question of effectiveness has been considered taboo, and human testing tops the list. Additionally, it can distract from the suffering of victims, its manifest unlawfulness, and perhaps suggest or imply that effective torture would be ethical. Nevertheless, even if these concerns are wholly legitimate, this does not automatically translate into a general and complete eschewal of studying all information-gathering methods. Torture and interrogation have frequently been commingled. This volume demonstrates that research on the latter can be—and has been—carried out legally, ethically, and to great effect.
President Barack Obama chose to address this astonishing void and laid the groundwork with Executive Order 13491, signed on his second day in office. The High-Value Detainee Interrogation Group (HIG) emerged from this executive order and had two sections, one for research and the other focused on operational concerns. The former is directly relevant to this volume and was meant to “build upon a proposal developed by the Intelligence Science Board” as the Obama administration took the historic step of establishing a scientific research program for interrogation.
The HIG Research Program was officially created in 2010 and led by Dr. Susan Brandon for its initial seven years, and it represented the first federally funded research program on interrogation in the U.S. since the 1950s. This program commissioned unclassified basic and applied research that complied with international law and U.S. federal code with regard to the protection of human subjects. Furthermore, the funded researchers were encouraged to publish their findings in professional journals so as to spur dialogue and testing of results among scientists, while also informing the general population. As a result there is now a growing body of peer-reviewed studies found in over 120 journal articles and book chapters produced by renowned psychologists both in the U.S. and abroad (including Australia, the United Kingdom, South Africa, Sweden, and parts of the Middle East).
To offer an incisive overview of the work coming from the HIG we can look into one significant article from central authors in the program. In it there is an extensive analysis of three key components that define a successful interrogation: 1) overcoming resistance and achieving cooperation; 2) facilitating the retrieval of information from memory; and 3) assessing deception vs truth. The authors flesh out how and why the growing scientific research on these essential elements steer us away from abuse, and in the direction of methods that focus on gathering information rather than confessions. They conclude:
Psychological theory and research show that harsh interrogation methods (including torture and accusatorial methods) are ineffective as a strategy for eliciting accurate and complete information. […] Evidence is accumulating for the effectiveness of information-gathering approaches as an effective alternative to harsh interrogations. Such methods promote cooperation, enhance recall of relevant and reliable information, and facilitate assessments of credibility.
In Section II, researchers and seasoned investigators from the HIG will impart the foundations and scope of this pioneering work, as well as move it forward with novel studies on the pivotal element of rapport-building. Of course, scientific research into constructive (and destructive) methods for interviewing is certainly not the exclusive domain of the HIG. Unsurprisingly, such scientific enquiry has been taking place in other parts of the world as the investigative tool of questioning suspects, witnesses, and victims is within the remit of all security services. In this volume, criminal investigators and psychologists will also offer insights from important developments over the previous decades in the United Kingdom and Norway, and they will also discuss their work outside their own jurisdictions to promote scientifically proven methods. Additionally, readers will find a keen contribution from an Irish neuroscientist whose research demonstrates the deleterious effects on the brain of abusive interrogation methods; he will discuss how this damage renders victims of torture useless for providing veridical information even if they once had it in their memory.
All of this scientific work represents a keystone of the volume, and suggests that an “elegant, elaborate, and powerful” approach based on research is indeed emerging. One might even say that this is an idea whose time has come. Nevertheless, it is important to point out that the chapters in Section II of the volume offer only a glimpse of the burgeoning science. The researchers themselves continue to indicate further avenues to explore in order to improve our understanding of a complex human interaction that can enhance our security—without any need for compromising our values or committing grave crimes. We have put these exemplary chapters forward here for the important purpose of offering an entry point into the scientific literature for those lawyers, philosophers, students—along with makers and implementers of policy—who might not have previously come across it.
While throughout the volume contributors will note and engage, to varying degrees, the impact of this new science on the conversations over interrogation and torture, there is another key development to highlight that will be presented in the final chapter of the volume. That is, these scientific studies and effective practice in the field are now influencing the international legal community. Specifically, a proposal was introduced in 2016 to create a Universal Protocol identifying a set of standards and procedural safeguards for interviewing subjects without coercion. The initiative to create such a soft law instrument borne of the new science was put forward by the (now former) Unite Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Professor Juan Méndez. In his Interim Report that launched this proposal it was explained that the protocol “ought, as a matter of law and policy, to be applied at a minimum to all interviews by law enforcement officials, military, and intelligence personnel and other bodies with investigative mandates.”
What is particularly worth presenting in this Introduction is the manner in which these two separate disciplines that might normally travel on parallel paths came to intersect. As to what set this in motion, Prof. Méndez has explained that while pursuing his work as the Special Rapporteur on Torture there was a concern that the use of torture after the attacks of 9/11 by one of the world’s great powers, and often a defender of human rights, had demonstrated that the concrete, undisputed, and non-derogable illegality of ill-treatment was not enough in the face of crisis. He was thus receptive to the suggestion that came in early 2016 from Rupert Skilbeck, Litigation Director at Open Society Justice Initiative at that time, who recommended looking into the non-coercive investigative interviewing model that had been created in England and Wales, and was migrating to other parts of the world. Essentially, it was important—and possible—to provide an effective alternative to torture.
The suggestion sparked work by Prof. Méndez on the coming thematic report to the UN General Assembly in his capacity as Special Rapporteur due in August of that year. He saw the need and opportunity for normative development in this direction, and as he began his research a network of experts emerged. The substantive step in the process was the Expert Consultation held at American University, Washington College of Law, on July 7-8, 2016. This meeting was jointly convened by the Anti-Torture Initiative (a project of the Center for Human Rights and Humanitarian Law) and the Office of the High Commissioner of Human Rights support staff of the Rapporteurship on Torture. This conference was notably made possible by a grant from the Open Society Foundations, assembling nearly 30 experts on non-coercive interviewing. Along with some of the central scientists and investigators from the HIG program and the contingent of Irish, British and Norwegian contributors to this volume, a host of other global experts were invited to participate in the development of this thematic; they came from Argentina, Brazil, Germany, Sri Lanka, Ukraine, as well as investigators from the International Criminal Court. The consultation with worldwide experts was extensive.
Today, several contributors here serve on the Steering Committee, Drafting Group, and Advisory Council for the current initiative detailed in Chapter 20. This meaningful legal development is presented and examined by the current, and two former, Special Rapporteurs on Torture, and represents veritable integration of science, law and morals.
The Disciplinary Structure of the Volume
We believe that an important added value of this work is the aim to move beyond a multidisciplinary approach that simply looks at a problem from the perspective of several fields of study at one time, but does not attempt to join together their insights. We have endeavored to produce a volume that not only brings together a collection of viewpoints, but that also notes the overlaps and interplay where suitable. That is, the editors of this volume have striven for the key element that distinguishes interdisciplinarity: integration. Of course, it must be remembered that the objective is to capitalize on the potential of integration, “without jeopardizing the disciplines.” Each of the disciplinary perspectives presented here is valuable in itself and we have aspired to respect their separateness and vitality.
As to be expected, there is a great deal of this work that remains multidisciplinary. Torture is an act that has plagued humanity since its inception, and consequently academia has researched this problem extensively over centuries; each discipline has its own library filled with studies investigating this scourge. “The exponential growth of scientific knowledge is intertwined with the progressive specialization of scholarship,” and interrogational torture is certainly not an exception. As a result, it was valuable to bring consummate pieces of the puzzle together in order to study the shapes and insights of their conclusions reached over long periods of time. Only then can they be integrated and pieced together properly—if they fit at all. Forcing together distinct pieces of knowledge and argumentation that are ill-suited is never advantageous. Moreover, it should be noted that many researchers are confronting this new science on interrogation for the first time, and thus it will likely take additional efforts for various disciplinary specialists and interdisciplinarians to reach what could be considered a full integration.
One important example is the dominant idea that jurists, lawyers and ethicists should not be concerned with the effectiveness of torture techniques in the least; they are illicit and wrong, so there is no need to extend the conversation further. This has often gotten conflated with researching methods of legitimate questioning. As a result, it has frequently been the case that opening the door to the question of efficacy was taboo and an irrelevant path that distracts from the real issues of law and morals. Hence we could say that even bringing these disparate voices to the table to discuss the new science has been one small step towards better communication between the disciplines.
Nevertheless, the contributors to this volume have all recognized that legality, morality, and efficacy interconnect at critical points on the issue of interrogational torture. These elements indeed comprise a weighty part of legitimate policy. Yet each approach employs different concepts, vocabularies and methods to achieve validity. The contributors have been accordingly asked to be alert to and conscious of the particularity of their own disciplinary perspective throughout the project. By urging such consciousness as a starting point, we have sought to foster productive dialogue across the academic boundaries involved.
The book editors have kept a vigilant eye on the differing methodologies and vocabularies employed, and consciously commissioned authors—and organized their contributions—in a manner meant to illuminate both differences and similarities. After opening the volume with a pair of disciplines to identify torture in the Section I, the contributions lay a methodological foundation of empirical validity (efficacy) in Section II. We will then build on this groundwork with chapters that address questions of axiological validity (morality) and formal validity (legality). In the end, there are large portions of the work that remain within only one discipline, as there are also times of overlap and mixing—we have asked authors to make explicit note of these moments. We envision the broad disciplinary interplay as such:
Simply put, we have aimed to bring the disciplinary pieces of the puzzle together in a coherent fashion and then worked to foster cross-disciplinary dialogue among contributors as the project progressed. Our assessment is that the result in the volume can be described as a multidisciplinary project that has taken the first steps towards integration.
Broader Consequences of Torture
Besides the more obvious relevance of interrogational (in)efficacy, the use of torture has had other significant impacts. In other words, while a great deal of attention is placed on the ineffectiveness of coercion for extracting reliable intelligence at a tactical level (including in this volume), there is also a wider question of its strategic efficacy from a policy perspective. For example, in the United States the use of torture in the immediate aftermath of 9/11 has had difficult consequences for the military commissions at Guantánamo Bay. As the tribunal began its operations, an obvious but difficult question reared its head: Would the prosecution be allowed to introduce into evidence coerced statements obtained by state agents through torture or other cruel and degrading treatment? The answer came in Rule 304 of the tribunal’s procedural rules, which states quite clearly that a “statement obtained by use of torture shall not be admitted into evidence against any party or witness, except against a person accused of torture as evidence that the statement was made.” However, the rule is not as categorical as it first seems. Rule 304 also declares that a statement alleged to be the product of coercion may be admitted under the following circumstances. If the statement was obtained prior to December 30, 2005:
…the military judge may admit the statement only if the military judge finds that (A) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and (B) the interests of justice would best be served by admission of the statement into evidence.
However, if the statement was obtained after December 30, 2005, the military judge:
…may admit the statement only if the military judge finds that (A) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; (B) the interests of justice would best be served by admission of the statement into evidence; and (C) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment.
Two consequences have flowed from this statutory rubric. First, the standard for the exclusion of evidence obtained from coercive interrogation is broad because it ties the admissibility question to, among other things, “the interests of justice”—a concept whose meaning is fixed in the eye of the beholder. Second, although the prosecution may forego evidence of torture in keeping with Rule 304, the defense may wish to secure access to the evidence obtained from these interrogations in order to mount a defense case before the military tribunal, for example to shine a light on government misconduct or to argue for mitigation at sentencing. Rule 304 was drafted in a way to resolve the question of when the government can introduce evidence obtained from torture or coercive interrogation, but the rule is a poor rubric for understanding questions of defense access. For these reasons, the military tribunals continue to struggle with the question of evidence obtained through torture and coercive interrogation.
Beyond that, though, the military tribunals have been ineffective in bringing trials to completion. First, there was a controversy surrounding the possible surveillance of physical locations where defense attorneys conducted meetings with tribunal defendants. Second, there was controversy regarding the withdrawal of death penalty “learned counsel”; these lawyers believed they faced a professional conflict when they were ordered not to speak with their clients about this potential surveillance but believed that they had an ethical duty to do so. After the chief defense counsel at the military tribunals allowed these outside attorneys to withdraw, a dispute arose between the military commission judge and the chief defense counsel over who had the authority to release the defense counsel from their assignments. The military commission judge went so far as to hold the chief defense counsel in contempt of court and ordered him placed under house arrest.
Finally, in a blockbuster decision in April 2019, the D.C. Circuit Court of Appeals ruled that the commission judge had a conflict of interest because at the time that he was resolving pre-trial motions—contested motions between the government and the defense—he was also seeking employment from the government as an immigration judge. For a remedy, the D.C. Circuit Court of Appeals nullified all pre-trial motions decided by the military judge since November 19, 2015—setting back the tribunal process indefinitely.
It would be an exaggeration to suggest that each of these difficulties is directly attributed to President Bush’s decision to authorize the use of torture against suspected al-Qaeda detainees after 9/11. However, that decision did have a profound effect: it led to statements whose veracity would be questioned; it diminished the United States in the eyes of its allies and enemies alike; it sparked the creation of a military justice system that was wholly distinct in procedure and substance from civilian courts. The decision to use torture was, in other words, an “original sin” from which the military tribunals have yet to recover and from which they may never recover if recent events are any indication.
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Ultimately, this volume aims to weave together multiple scholarly strands to subtly reorient the conversation on interrogation. However, the volume should not be understood as displacing traditional questions about legality or morality; these questions ought to remain at the center of the inquiry. Rather, the volume aims to integrate questions of efficacy with legality and morality, so that the insights of lawyers, ethicists, philosophers, psychologists, and interrogators are brought together into the discussion. Indeed, it is too often the case that the lawyers and philosophers are off on one side discussing the normative dimension, while psychologists and interrogators discuss descriptive questions, and the two discourses are pursued independently. With this separation, there is a risk that the interrogators have a caricatured understanding of the law and philosophy, while the lawyers and philosophers have a poor understanding of what interrogators are doing. If this volume accomplishes only one thing, it should be to cross-pollinate these discourses.