The Ethics of Interrogation: Professional Responsibility in an Age of Terror

Chapter Nine: Lessons Learned: Dignity and the Rule of Law

Nine Lessons Learned Dignity and the Rule of Law How we interrogate “post-9/11” detainees is the fundamental question in balancing the inherent tension of national security considerations against individual civil and political rights. More significantly, the interrogation measures we adopt define who we are as a society. —Amos Guiora, Constitutional Limits on Coercive Interrogation, ix Americans, believing themselves to stand proudly for the rule of law and human rights, have become for the rest of the world a symbol of something quite opposite: a society in which lawbreaking, approved by its highest elected officials, goes unpunished. —Mark Danner, “After September 11: Our State of Exception,” New York Review of Books, October 13, 2011 I began this study by noting the threat that terrorism poses to democratic institutions and by asking how the United States has fared in responding to that threat. The concrete example for approaching these matters has been the issue of coercive interrogations, for as Amos Guiora suggests, how a society handles interrogation in the face of terrorist threats tells us a lot about the moral compass of that society. When suspected terrorists are in custody, at least two values may be deeply at odds. We have a moral responsibility to safeguard the lives of innocent civilians by maintaining national security, and we have an obligation not to reduce fellow human beings to nonhuman status, even if we would describe what they have done as inhuman. If the question of how a democratic society handles issues of interrogation is a barometer of its success in responding to terrorism, how is the United States doing? Lessons Learned 181 I believe the answer to this question is that the US response has been decidedly mixed. To explain why I draw this conclusion it is useful to have a schema of interrogation techniques. Following Guiora, I suggest that harsh interrogation techniques can be divided into three kinds: coercive, abusive, and torturous.1 The point of distinguishing three categories of interrogation is, of course, to provide an answer to the question of how to balance human rights and national security when interrogating suspected terrorists. In my view, coercive interrogation is a morally and legally acceptable form of interrogation; abusive interrogation and interrogation that involves torture are not. Here it is useful to be concrete. Suppose we turn to the techniques set out in Army Field Manual (FM) 34-52, the 1992 army document that spells out guidelines for “intelligence interrogation,” and to the ten EITs that the classified Bybee memorandum addressed in August 2002. How should these various techniques be categorized? We can begin with FM 34-52. The manual covers interrogation in great detail, with chapters on everything from the general mission of military intelligence units and the structure of such units to the handling of documents produced through intelligence operations, including interrogation. Chapter 3 of the manual covers the actual techniques of interrogation. It identifies roughly a dozen general interrogation strategies, with some variations within each category. The categories are direct, incentive, emotional, fear, pride and ego, futility, we know all, file and dossier, establish your identity, repetition, rapid fire, silence, and change of scene. The coercive nature of all interrogation can be seen in the fact that even in the most innocuous of these techniques—namely, a direct approach in which the interrogator simply asks for the information he wants—the subject being interrogated is powerless and vulnerable. The detainee does not necessarily know where he is; he does not know what will happen if he refuses to answer; and even if he answers questions truthfully, he may not be believed. Nevertheless, not all techniques are the same. Asking a detainee a direct question is very different from what the manual refers to as a “Fear-Up (Harsh)” approach. According to the manual, “in this approach, the interrogator behaves in an overpowering manner with a loud and threatening voice. The interrogator may even feel the need to throw objects across the room to heighten the source’s implanted feelings of fear. . . . This technique is 182 Chapter Nine to convince the source he does indeed have something to fear; that he has no option but to cooperate.”2 The fact that questioning a detainee is coercive and may be harsh, however, does not mean it is morally or legally prohibited. Indeed, all the techniques set out in FM 34-52 are approved by the military in...