Military Interrogation of Terror Suspects: Imaginative Does Not Have to Mean Unlawful

Article excerpt

What enables the wise sovereign and the good general to strike and conquer and achieve things beyond the reach of ordinary men is foreknowledge. Now this foreknowledge cannot be elicited from spirits; it cannot be obtained inductively from experience, nor by any deductive calculation. Knowledge of the enemy's disposition can only be obtained from other men. (1)

--Sun Tzu

I believe the Intelligence Community would be well-served by the creation of an organization of common concern vested with the responsibility for professionalizing the discipline of interrogation, managing a robust approach to studying the "science " of interrogation, and designing doctrine for incorporating the products of that research into field operations. (2)

--Steven M. Kleinman

THE UNITED STATES is searching for ways to lawfully glean information from persons detained during the War on Terrorism. (3) The issue is thorny and politically sensitive. While much of the debate has been about the interrogation tactics of the Central Intelligence Agency and other government agencies, there has been a strong move toward restricting the military interrogators. Some recent changes to Army and Department of Defense (DOD) interrogation policies reflect a less than intellectually rigorous approach that is neither effective nor legally sound. This article examines the Army's interrogation policy as set forth in Field Manual (FM) 2-22.3, Human Intelligence Collector Operations, from both a legal and "effects-based" perspective and offers some recommendations for change.

When formulating an interrogation policy, we must recognize and address the following:

* Human behavior is very complex, and interrogation, which involves establishing a relationship between the interrogator and the subject, requires imaginative, skilled, and trained interrogators who are free to accomplish their mission successfully and lawfully.

* Limiting DOD interrogators to an artificial list of techniques may prevent abusive and coercive interrogations, but it inhibits their ability to create relationships and manipulate them effectively.

* The Obama administration based its decision to close the DOD detention facility at Guantanamo Bay (Gitmo) and limit the scope of interrogation techniques on a blend of political, policy, and legal concerns about the treatment of detainees.

While most Americans want our intelligence officers to extract accurate, time-sensitive intelligence from dangerous terrorists in order to avert imminent attacks, the use of "enhanced interrogation methods," including waterboarding, is at the core of the debate. On an emotional level, particularly after experiencing the effects of a terror attack on our soil, many Americans might pray that there are rough Americans like the fictional TV character Jack Bauer out there protecting the flock. (4) However, no one has established that waterboarding or other enhanced interrogation techniques produce accurate or reliable intelligence. Moreover, such activities cause America to lose the moral high ground and have a corrosive effect on the morale and discipline of the interrogators themselves. This is especially true of military interrogators who are subject to more stringent guidelines than their counterparts in other government agencies. (5)

The Law

An attorney providing operational legal guidance to a commander should ensure that the commander understands the advice and that the advice is free from personal bias. While we have consistently and strongly advocated that military interrogators should be prohibited from using enhanced interrogation techniques such as waterboarding, we also believe that the rules adopted should be based on law and reason and not on emotion. Unfortunately, conjecture, ill-defined information, and emotion form the basis for much that has been written and said on this topic, both in the media and in professional circles. …