"Improving the fighting position": a practitioner's guide to operational law support to the interrogation process.
The purpose of this article is to share with military practitioners the product of a recent effort spearheaded by The Judge Advocate General's Legal Center and School (TJAGLCS) to better synchronize training efforts related to legal support of the most visible area of operational law practice in the Global War on Terror (GWOT)--interrogation operations. This article summarizes the actions taken to achieve this objective, as well as a discussion of some fundamental concepts that provide the foundation for future training and legal support activities.
The International and Operational Law Department recently hosted a conference spotlighting many months of hard work by judge advocates (JA) throughout the Judge Advocate General's Corps (the Corps) related to legal support of interrogation operations. The goal of the conference was to bring these parties together to allow them to share their products and exchange ideas and expertise on interrogation operations and intelligence law. The recognized need to have comprehensive and coordinated training packages for the training of interrogators, commanders of units with interrogation or collection missions, human intelligence (HUMINT) collection teams, and the JA population in general drove an ambitious agenda and spirited discussion. Representatives from the Intelligence and Security Command (INSCOM), Office of The Judge Advocate General, International and Operation Law Division (OTJAG ILAW), the U.S. Army Intelligence Center and School (USAIC), Center for Law and Military Operations (CLAMO), the Chairman of the Joint Chiefs' Legal Staff, and practitioners fresh from the field shared their collective expertise and recent experiences. The issues, however, are complicated and much hard work is left to be done.
It is not the authors' intent to provide authoritative guidance for dealing with issues related to this area of operational law practice. Indeed, the major motivation behind the efforts summarized below was the recognition that the recent scrutiny of interrogation practice, and the accordant ongoing efforts to review, refine, and publish more comprehensive and effective directives, instructions, doctrine, tactics (techniques), and procedures, has resulted in disparate and sometimes conflicting training resources. This article will not summarize the training package developed as the result of the collective efforts of military practitioners. Instead, it is intended to summarize the efforts to leverage the collective expertise of the Corps to develop an effective and synchronized resource for training both JAs and interrogators, and to discuss some of the cornerstones of this training resource.
A Doctrinal "Twilight Zone"
Critical reviews of interrogation efforts in Guantanamo Bay (GTMO), Cuba, Afghanistan, and Iraq have highlighted the many significant challenges faced by personnel participating in intelligence collection and interrogation missions. One of the most fundamental and significant of those challenges still exists--personnel performing these missions often did so in what many believed to be a "doctrinal twilight zone."
This is not to deny that doctrine did and does exist. Clearly a version of Field Manual 34-52, Intelligence Interrogations, (2) was in effect and utilized by personnel in Afghanistan, Iraq, and, initially, at GTMO. However, due to initial confusion regarding the status of al Qaeda and Taliban personnel taken captive in Afghanistan, and a follow-on decision that such personnel were unlawful combatants and, thus, not entitled to prisoner of war (POW) status, (3) a determination was made that the doctrinal guidance contained in Field Manual (FM) 34-52 regarding the treatment and interrogation of the individuals detained at GTMO would not apply. (4) This determination led to an apparent misunderstanding concerning the continued applicability of this doctrine to the ongoing conflict in Afghanistan. The triggering events leading to this confusion unfolded at GTMO.
In the fall of 2002, during interrogations at GTMO, it became apparent that many detainees were capable of offering a greater degree of resistance to established interrogation approaches and techniques than that which had been anticipated. In response to this development, the Director of Intelligence operations for Combined Joint Task Force 170, in charge of interrogation operations, authored a memo stating that, because many of the detainees had shown great resistance to the doctrinally-sanctioned interrogation techniques in FM 34-52, the command was seeking approval to employ non-doctrinal counter-resistance procedures. (5)
The request was then forwarded to the Combined Joint Task Force (CJTF) Staff Judge Advocate (SJA) for a legal review. The CJTF SJA made the following determinations: international law (and therefore the Geneva Conventions) did not apply to the situation, (6) military necessity required more stringent counter-measures, (7) and the requested counter-measures did not violate applicable federal law. (8) Also, significantly, the CJTF SJA requested a further legal review of certain categories of the proposed techniques by higher headquarters. (9)
The legal review prepared by the CJTF SJA (a seven-page comprehensive document) relied on several significant premises. First, the Geneva Conventions did not apply--the President determined in a 7 February 2002 directive (10) that detainees were not enemy prisoners of war. (11) Despite this, however, the SJA opined that detainees "must be treated humanely and, subject to military necessity, in accordance with the principles of GC." (12) Second, the SJA noted that Army FM 34-52 was based upon the Geneva Conventions and since the detainees were not prisoners of war and the Geneva Conventions did not apply to them, the FM was not binding. (13) After a lengthy discussion of many bodies and facets of international law, the SJA determined that "no international body of law directly applies." (14) Finally, the CJTF SJA considered extensively the application of domestic law, concluding ultimately that "the proposed strategies did not violate applicable federal law." (15)
Clearly, much of this analysis is subject to dispute. The analysis, for example, provides a debatable interpretation of the applicability of the Convention Against Torture (16) and the implementing U.S. Torture Statute (17) in opining that none of the requested techniques constituted torture or cruel, inhumane, or degrading treatment in violation of these laws. Neither, unfortunately, did the analysis include consideration of what is generally deemed to be the baseline "humane treatment standard" reflected in the provisions of Common Article 3 of the Geneva Conventions. (18) The opinion's proposal to immunize interrogators, given that a number of the proposed techniques in issue constituted violations of the UCMJ, was not only unprecedented, but lacked any basis in law. The opinion's reasoning, however, is not the point of this reference. Rather, this historical anecdote is used to illustrate the more significant point--when the doctrinal foundation of interrogation operations--FM 34-52--was removed from the equation--interrogators conducting operations at GTMO were left with a void of guidance that was filled in an ad hoc basis.
Even with the assistance of the FM 34-52, there remains a void. Tactics, techniques, and procedures (TTPs), standing operating procedures (SOPs), and other resources that distill doctrine into usable nuggets for those in the field were simply not available. This problem was related primarily to the individuals associated with al Qaeda and detained at GTMO, and was derivative of the overall issue of uncertainty as to the status and accordant standards applicable to these personnel. While the status and standards issue was far less complex with regard to individuals presumptively qualifying as POWs or civilian internees (CI) in Iraq, the underlying importance of developing and disseminating comprehensive standards and TTPs related to the interrogation of such individuals cannot be overemphasized. Although FM 34-52 is currently under review, soon to be re-published as FM 2-22.3, and is likely to be a more complete and functional document, there remains an apparent need for what might best be described as a "commentary" on the overall issue of interrogation operations conducted within the context of the GWOT.
Consider as proof of this requirement a dynamic cited in many of the investigations of interrogation activities: the informal migration of policies and procedures from one theater to another. The well-documented problem with this migration was that no one-size-fits-all approach could be taken when the status of the detainee in each of those theaters was often dramatically different. Certainly, if interrogators had fully complied with the existing doctrinal guidance, AR 190-8 (19) and FM 34-52, (20) the abuses in issue would have probably been averted. In many ways, failure to comprehend the pervasive applicability of these sources of authority, rather than a genuine lack of doctrine, led to the abusive behavior. (21) Unfortunately, a comprehensive understanding of applicable standards at the tactical level was lacking, causing well- intentioned persons charged with important missions to seek assistance wherever they could find it. As a result, individuals who had served in Afghanistan and the documents that had been used t/here were exported to GTMO, or vice versa.
Clearly, a more effective understanding of both the interrogation process, and the applicability of authorities related thereto, is required by both interrogation operations specialists and the JAs charged with legal support for these activities. Doctrine plays a vital role in warfighting and in the many missions that contribute to operational success. Our Army is doctrine-based (i.e., doctrine is the authoritative guide to how forces fight wars and conduct operations). (22) While doctrine reflects a shared vision and serves as the basis for planning operations, training, and leading, it cannot be the end point. To perform their missions effectively, leaders, trainers, and practitioners need TTPs, mission essential tasks lists, and training plans to establish conditions, standards, and training objectives. In short, doctrine must be distilled in a manner that assists practitioners at the lowest tactical levels, enabling practitioners to identify what "right" looks like.
Synchronization Is Critical
All of the factors cited above clarify the requirement that the efforts of all participants in the interrogation mission must be synchronized. Indeed, the United States military has seen the effects resulting from either a lack of guidance or absolute clarity of standards. In this critical transitory time when the training mission continues at many levels involving many players, and many echelons of command continue to debate, draft, and refine doctrine, there can be no greater concern than uniformity and coordination. This is precisely why the International and Operational Law Department thought the school houses and centers most critically involved must adopt a proactive approach to reviewing, and when appropriate, contributing to, training efforts.
Another reason necessitating the involvement of JAs is their role in the legal support process, which may take several forms. The first form is that of a general operational law attorney--in essence, all JAs deployed with or serving their units. Operational law attorneys will be involved in the training of units within their sphere of influence and will assist the commander in his oversight responsibilities. A good example is the Brigade Operational Law Team (BOLT) that supports a divisional military intelligence (MI) battalion. Sometimes, however, JAs will directly support units tasked with intelligence collection or interrogation missions. These JAs will require specialized training to provide such support. The information provided below is intended to assist all JAs to execute their respective responsibilities.
Command and Control of the Interrogation Process
Judge advocates providing legal support to interrogation operations must understand their client's mission--the interrogation process--and how that mission is executed. The unique nature of the "art" of interrogation makes this understanding essential to providing effective legal advice and effectively executing the legal support process, as this process is unlike any other activity normally associated with operational law tasks. It is the fluid nature of this process, which targets the mind and in which the battle is psychological, that renders it so unique.
Events related to recent U.S. military operations have revealed the danger of failing to identify and disseminate clear and well-defined standards--those derived from either international law or military doctrine--to regulate every approach or method that might pry critical information from detainees. This problem is compounded because what occurs in an interrogation booth causes great concern to national political leaders and the American public. Although the vast majority of interrogators conduct their activities within appropriate bounds, it is still a "dark art" in which misconduct or errors in judgment by a few can have long-lasting implications for future intelligence collection efforts.
Because of these realities, JAs must be prepared to assist interrogators in developing interrogation policy and to provide comprehensive legal support to interrogation operations. Supervising JAs need to provide on-site legal resources to interrogation facilities to ensure that interrogators and senior intelligence leaders have access to timely, competent legal advice. A small number of JAs assigned to interrogation-related units and specializing in the relevant authorities should continue to perform this function. Recent events have highlighted, however, that every operational legal advisor must be familiar with the interrogation process in order to effectively perform the much more common legal support mission.
Traditional interrogations take place in an interrogation facility. These are usually small operations located inside detention facilities. It is critical to note that an interrogation facility is not a detention facility. Doctrinally, the care, feeding, and maintenance of detainees are the responsibility of the capturing unit or, once the detainee is transferred to the first detention facility, the detention facility commander. Detainee questioning takes place within the interrogation facility, utilizing space located within the main detention facility. The physical set up of an interrogation facility will include administrative areas, life-support areas, and interrogation booths. Normally, the interrogation facility is physically separate from detention facility workspaces and is accessible only to a limited number of personnel within the intelligence community.
The following example serves to illustrate the system by which a detention or interrogation facility processes a captured detainee. A detainee is captured during a cordon and search operation based on information provided by his neighbors that he has been building improvised explosive devices (IEDs). Because the shock effect of capture is greatest at the moment of capture, the infantry unit that conducted the operation had been accompanied by an interrogator from its local interrogation facility to assist in the initial detainee questioning. If the capturing unit did not have an interrogator available, a designated Soldier, probably a senior noncommissioned officer, would have conducted the tactical questioning (TQ) of the detainee. (23)
The TQ is not interrogation, but rather an expedient method of questioning conducted by non-interrogators seeking information of immediate value. (24) It is not a method of answering a higher echelon's priority intelligence requirements (PIR), but is intended to provide the operational unit with a method of gathering current battlefield information important to that particular patrolling or raiding unit. (25) Rather than formal questioning, TQ occurs more in the form of a conversation between the tactical unit and the detainee. (26) Because this initial questioning can set the stage for further interrogation and exploitation, however, leaders are advised to provide specific guidance for TQ in the operations orders issued for their missions. (27) Currently, in both Operation Iraqi Freedom (OIF) and Operation Enduring Freedom (OEF), only the direct approach (discussed below) may be used in TQ.
Once captured, the detainee is evacuated to the capturing unit's forward operating base in accordance with established timelines. Under most task force and echelon above corps detainee and enlisted prisoner of war (EPW) policies, the detainee would subsequently be evacuated quickly to the brigade detention facility, normally administered by the brigade's military police (MP) unit. (28) The brigade's MI company will conduct the initial interrogation based on the brigade's PIR, usually for a period of twenty-four to forty-eight hours. It should be noted that only trained interrogators interrogate. In the Army, a trained interrogator is a Soldier who holds the military occupational skill, 97E, Human Intelligence Collector. The detainee will then be evacuated to the division detention facility and be similarly processed by the division's MI cadre. In most cases, he will be transferred to an echelon above corps or to a joint interrogation facility. Traditionally, these latter facilities were known as either theater intelligence facilities (TIF) or joint intelligence facilities. Recent joint doctrinal changes to HUMINT collection policies, however, have created the joint interrogation and debriefing centers (JIDC), which are the final holding facilities where long term interrogations take place. Regardless of the nomenclature, this is the location at which deeper level--and inherently more risk-prone--interrogations are conducted.
The command and control structure of the JIDC can be traced to the old TIF structure, as outlined in FM 34-52, but which is now also found in Joint Publication 2-01. (29) Doctrinally, the JIDC is "managed" by the joint force's HUMINT staff (known as the HUMINT Operations Center (HOC)), (30) usually utilizing an 0-5 staff officer as the officer-in-charge (OIC), rather than a commander. Manpower for the JIDC is provided by various service intelligence units, which place their interrogators under the operational control of the JIDC, but which retain command and administrative authority. (31) For instance, in the Army, the corps or theater intelligence brigade commander assigns an interrogation and exploitation battalion commander responsible for exercising administrative control over the JIDC's Soldiers; however, the JIDC OIC would effect the day-to-day management of the interrogators.
Ongoing revisions to joint doctrine will likely result in vesting the JIDC commander with full control, including disciplinary control, over JIDC personnel, to include interrogators. In addition, this will provide the JIDC commander with the full complement of staff officers and command resources necessary to better accomplish the interrogation mission. It is also possible that these revisions will require both the JIDC commander and the detention facility commander to answer to a flag officer joint task force or joint detention operations commander, who will act as the intermediary between the disparate and conflicting interrogation and detention operations being conducted in the joint operational area.
An important variant to this organizational structure is the potential role of civilian contract personnel. Operational legal advisors must be prepared to encounter contract support personnel, performing both analysis and interrogation functions. These personnel will normally be "procured" through the Army service component command responsible for providing administrative control (ADCOM) over Army personnel in the joint operational environment, and, more specifically, by the intelligence staff for that command. As a result, it is probable that the contracting officer's representative for such personnel will be associated with an intelligence staff agency. Regardless of the source of the procurement of this support, however, these contract personnel are subject to the direction and control of the commander responsible for the interrogation operation. Furthermore, pending revisions to Army and Department of Defense (DOD) doctrine will emphasize the obligation of these individuals to fully comply with the law of war and all other applicable law and policy related to interrogation operations.
The JIDC, apart from administrative support, normally consists of two sections: operations and analysis. The interrogation operations section, normally headed by a senior warrant officer and interrogator, is the heart of JIDC activity. The interrogation operations OIC is responsible for overseeing the screening process and the assignment and management of interrogators and their interrogation priorities, effecting liaison with the detention facility guards and other agencies, the approval of interrogation plans, and the general supervision of interrogation collection activities.
Analysts are also becoming more closely associated with the execution of interrogations. Unlike the traditional interrogation practice, when experienced analysts were located in the interrogation facility, but well removed from actual collection activities, analysts, today, are often integral to the execution of interrogations. Much of this shift in practice has resulted from the changing emphasis of intelligence analysis. In past operations, the focus of such analysis has been "order of battle" (OB) development--knowing the enemy's capabilities and location at any given time. In current operations against an asymmetric enemy, OB has given way to "link analysis," the identification of individuals, networks, terrorist cells, and associations and the determination where these fit into the overall global terrorism or local insurgency landscape. The immediate analysis of interrogation collection has become critical, as many detainees today possess information related to critical PIRs--such as the locations of IEDs or IED-manufacturing facilities, the location of insurgent cells or their leadership, or knowledge of ongoing anti-U.S. or anti-coalition operations.
The newest organization to evolve from this analysis enhancement effort is the HUMINT Analysis and Research Center (HARC). Another important development to emerge from this enhanced process is the concept of "tiger teams"--the pairing of interrogators and analysts in the interrogation booth, with the analyst providing real-time support to the interrogator so that information might be culled in a more timely and accurate manner. None of these developments, however, justifies any deviation from the legal and doctrinal detainee treatment requirements, or alters the basic legal support requirement to be performed by JAs.
Finally, experience indicates that, in addition to the regular cadre of staff officers, most JIDCs should be staffed with a legal advisor. Designating a legal advisor to support the JIDC is consistent with the concept of METT-TC (mission, enemy, troops, terrain and weather, time available, and civilian considerations) based "tailored" operational legal support described in FM 27-100. (32) The JIDC operations are legally intensive, and the JA is responsible for assisting in the interrogation planning process, effecting liaison with the MP community, and exercising intelligence activities oversight under AR 381-10. (33) The JA might be assigned to the staff of the JTF-detention operations commander and provide legal support to both interrogation and detention operations. Alternatively, he could be specifically assigned to the JIDC and provide legal support in a specific intelligence community context. Currently, there are two JA billets on the JIDC joint manning document in OIF--one Air Force and one Army billet. The Army position is filled by a captain; the Air Force billet has not been staffed.
The Interrogation Process
With an understanding of the command and control of the interrogation process, it is important to understand the interrogation process. For purposes of interrogation execution, any subject of interrogation can be regarded simply as a detainee--even if the detainee actually qualifies for a more specific status under the law of war. When a detainee is transferred to a JTF detention facility, he will be in-processed by the facility's MP personnel. This will include a medical screening and the establishment of an administrative record. The detainee will also undergo an initial intelligence screening. At every echelon, detainees are screened to determine both their level of cooperation and knowledge, as well as who among them might best satisfy the commander's PIR. (34) Not only is the detainee questioned; anything found on him at the time of capture will be reviewed. This includes "pocket litter", such as photos, identification cards, or letters. These items might later be used as possible tools in exploiting a particular need of a detainee, or used to build trust or to provide the detainee with an incentive to provide information.
From the moment the detainee is transferred to a facility, he is observed by various facility personnel, to include the facility guards. What the MPs passively observe is noted and may prove to be helpful in building a profile of the detainee that an interrogator can use in formulating an interrogation plan. The use of MPs to observe and note detainee behavior is permissible and encouraged; (35) however, they cannot engage in active intelligence activities.
Once the detainee has been screened, the OIC or senior interrogator will assign an interrogator possessing the commensurate skills dictated by the detainee's profile and the interrogation process will be initiated. This process is a five-phase sequence that enables the interrogator to effectively approach and question the detainee and serves to ensure that built-in protections are utilized. These phases are:
(1) Planning and Preparation Phase;
(2) Approach Phase;
(3) Questioning Phase;
(4) Termination Phase; and,
(5) Reporting Phase. (36)
In our example, an Army interrogator, Specialist (SPC) Interrogator, has been assigned to interrogate a detainee. In the planning and preparation phase, prior to the subject being transferred from the detainee holding area to the interrogation facility, SPC Interrogator will obtain the detainee's file and review the capture data noted by the capturing unit, the circumstances surrounding the capture, the pocket litter found on the detainee, and any notes made by previous interrogators at subordinate interrogation facilities. She may talk to the MPs who guard the detainee in order to discuss his behavior and demeanor. She may also contact other intelligence support elements, such as the HARC, the analytical control element, or the information dominance center (IDC), and review information previously collected and data-based. With this in mind, she will then draft her interrogation plan, a document describing her interrogation objective, her observations of the detainee, her primary and alternate approach plans, and the questioning techniques she plans to use.
Once she has designed her plan, she will staff it with the operations OIC or the senior interrogator, who reviews it and authorizes her to proceed. (37) If the interrogation plan involves any methods or techniques that are questionable, "nondoctrinal," or which require higher-level approval, the operations OIC will prepare the plan to be reviewed and approved by higher echelons and call upon legal support to assist in the planning process or provide legal support during the execution of the plan.
Once the interrogation plan is approved, SPC interrogator will request the MPs to escort the detainee to her interrogation booth, usually a small room with a table and chairs for the detainee, the interrogator, and, possibly, an analyst or an interpreter. Once the detainee is present, the interrogation begins, and the interrogator executes her planned approach.
The approach is the key to a successful interrogation. When the detainee is prepared to talk, the interrogator simply has to listen and to ask appropriate follow-up questions. Judge advocates can easily liken it to the ultimate cross- examination in trial. The challenge is to have the detainee divulge information that he is inclined to withhold. The laws and policies on interrogation proscribe torture and coercive questioning (tactics which will be addressed later in this article); therefore, the approach phase must take into account these boundaries, while still providing the result that the detainee reveals information that he or she is determined to withhold.
The underlying philosophy is to make these approaches both legal and effective. The interrogator must avoid "outer" pressures and, instead, create "internal" pressures that have the effect of manipulating the detainee. For example, an interrogator cannot place the proverbial dagger on the table--which would create fear in the mind of the subject that his refusal to cooperate will result in physical harm. (38) The interrogator, however, can certainly exploit the inherent fear associated with the "unknown" in the mind of the detainee. The difference may appear insignificant, but it is enough of a distinction to effect a differentiation between a legal and an illegal interrogation.
The Army has identified eighteen different ways in which an interrogator may approach an interrogation subject and apply subtle psychological pressure, without crossing over impermissible boundaries such as torture or coercion. (39) The interrogator will select one of these approaches, identify it in the interrogation plan, and engage the detainee. Once the detainee is willing to enter into a dialogue, the interrogation moves to the questioning phase, in which the interrogator poses questions seeking specific information. (40) Like the move from combat operations to sustainment operations in battle, there is no bright line between the approach and questioning phases, and frequently the process moves back and forth between the two as the subject provides small amounts of information. If the subject ceases to cooperate, the interrogator must re- engage the subject and look for exploitation opportunities that will either reestablish trust or convince the subject to continue providing information. In addition to asking direct questions regarding information the command deems important, the interrogator might also pose "order of battle" questions. He will do this in order to build a picture of enemy forces and networks using maps and map tracking to determine the location of enemy or insurgent forces.
Once the interrogator has gathered all of the information within the subject's knowledge, the interrogation moves into the termination phase. In this phase, the interrogator will reinforce successful approach strategies and advise the detainee that the accuracy or veracity of the information that he has provided will be assessed--providing the detainee with an opportunity to make amendments to his statements. (41)
Termination does not end the interrogation process. The interrogator must return to the administrative area and prepare an interrogation report. (42) This report may include PIR information, the location of enemy forces using a SALUTE (43) report, or the status of the interrogation process. This can be used for planning future approaches and interrogations by identifying the weaknesses and "hot buttons" inherent in the particular subject.
Operational legal advisors must be prepared to perform the legal support mission at all phases of the interrogation process. This primer will hopefully facilitate this important function. While the extensive efforts of the JAs assigned to intelligence organizations will remain critical to the legally sound execution of the interrogation mission, it is impossible for these legal advisors to provide comprehensive operational legal support during large scale joint operations. Their efforts must be augmented by operational legal advisors at every level of command, and an understanding of both the relevant law and policy, and the "client," is essential to an execution of this critical responsibility.
Regulation of Interrogation: The Relationship Between Law and Policy
How to best identify and articulate the source or sources of regulation of interrogation operations is an important aspect of legal support to these operations. There is little dispute that the baseline standard of humane treatment--traditionally understood as the prohibition against any treatment that can be reasonably regarded as creel, inhumane, or degrading--is the "umbrella" concept under which the more specifically prohibited interrogation techniques fall. Furthermore, as noted above, this humane treatment standard is regarded as a baseline standard applicable to the armed forces of the United States by operation of Departmental policy, and potentially as a matter of domestic law (44) and customary international law. (45) This mandate operates to shield all individuals detained by U.S. armed forces from any act or omission considered inhumane. A more complicated matter is the identification of the existing prohibitions against specific interrogation techniques.
As noted above, law and policy establish humane treatment as a baseline standard applicable during all interrogations. The National Command Authorities and subordinate commanders, however, retain the prerogative to impose more restrictive policies on the conduct of interrogation. When such policy based restrictions are imposed by competent authority, military necessity provides no basis for subordinate commanders to authorize deviation. Because policy considerations may result in restricting the utilization of certain techniques not prohibited by law, however, it would be potentially overly broad to characterize all "prohibited" interrogation techniques as "illegal." Although engaging in techniques prohibited by policy could certainly result in an interrogator facing criminal liability (for disobedience or dereliction), characterizing such techniques as illegal blurs the distinction between legal and policy-based constraints. Judge advocates must be able to understand and articulate the nature of the specific constraints placed on interrogation tactics. Some constraints, such as the prohibition against physical abuse of detainees, falls within the category of legal constraints; whereas others, such as the withholding of certain non-legally mandated privileges, are of a policy-based nature. Because policy-based constraints are subject to modification (as long as such modification comports with the applicable law), this blurring carries with it the risk that individuals involved in the interrogation process may lack an appreciation for why authorized techniques may be modified, or may vary, among different commands. A potential consequence of this risk is a perception that what is, or is not, "legal" is malleable. This is a perception that must be vigorously guarded against, as it not only diminishes the credibility of the law, but also bolsters the view that the concept of "military necessity" should be available to override any constraint on interrogation techniques.
Humane Treatment: The Umbrella Concept under Which Legal Constraints on Specific Interrogation Techniques Fall
It is not uncommon for the term "the Geneva Conventions" to be used in the context of issues related to detention and interrogation. Judge advocates must understand that the use of this reference is often technically overly broad. Referring to "the Geneva Conventions" suggests that the provisions of these four treaties apply only collectively. While this may be true in certain situations, these treaties, and specific provisions of these treaties, may (and often do) apply individually. A specific Geneva Convention provision may be the controlling authority for an interrogation tactic in issue, based on the nature of the armed conflict or the status of the individual detainee. Additionally, principles reflected in many of these treaty provisions may also apply as a matter of customary international law.
Combat operations related to the GWOT may, as a matter of international law, fluctuate between international armed conflict and non-international armed conflict, depending upon the nature of the particular military operation in issue. For example, operations directed against former regime armed forces should fall into the category of international armed conflict; whereas, operations directed against dissident groups opposing the interim government, even when conducted contemporaneously with operations directed against former regime elements, might fall into the category of a non- international armed conflict. Fortunately, from a legal support perspective, this fluctuation does not impact the obligation to treat those detained in the course of the conflict "humanely." This obligation applies across the entire spectrum of conflict.
Policy constraints on interrogation techniques may vary, based on time, location, and mission. It is also clear, however, that certain core constraints fall into the category of legal prohibitions--binding at all times and locations. The basic source of authority for these prohibitions is derived from the "humane treatment" principle reflected in Common Article 3 of the four Geneva Conventions, (46) and emphasized throughout other specific provisions of the Geneva Conventions (and Additional Protocols I (47) and II (48)). The Commentary to the four Geneva Conventions, (49) established the DOD policy, (50) and domestic and international jurisprudence (51) all support the conclusion that this humane treatment principle forms a baseline standard of treatment for any person affected by armed conflict who is not, or is no longer, taking part in hostilities.
Judge advocates, and the clients they advise, must recognize the applicability, scope, and significance of this baseline "benefit package" granted to all detainees or any other individual subject to interrogation. Based on the nature of an operation and the status of a detainee, it is certainly possible that individual detainees may be vested with additional "benefits" derived from other treaty or customary international law provisions specifically applicable to them as a matter of law. It is critical to recognize, however, that the baseline standard of humane treatment, and the accordant prohibition against cruel, inhumane, or degrading treatment, is the umbrella principle under which such additional legally-based constraints fall. Accordingly, the fact that a detainee may be determined "not eligible" for additional "benefit packages" derived from the law of war in no way undermines the binding nature of prohibited interrogation techniques derived from this baseline principle.
The Distinction Between Manipulation and Coercion: Implementing the Humane Treatment Obligation
Since the initiation of the GWOT, there has been substantial debate regarding the issue of "coercion" in relation to interrogation. (52) While it is difficult, if not impossible, to define with precision the exact parameters of what constitutes coercion, there are several important reference points for use by JAs involved in interrogation planning, execution, or other support.
As a preliminary matter, however, the source of the prohibition against coercive measures must be determined. Detainees who qualify for status as prisoners of war under the provisions of the GPW, (53) or as "protected persons" under the provisions of the GC, (54) benefit from the express prohibition against coercion contained in those respective treaties. While there is no analogous express prohibition reflected in Common Article 3, it is appropriate to presume that interrogation tactics that would violate these express prohibitions vis a vis prisoners of war or protected civilians would also constitute cruel, inhumane, or degrading treatment, and therefore be prohibited vis a vis all detainees. It must also be noted that the approaches set forth in FM 34-52 have been determined to comply with the law of war prohibition against coercion during interrogation, (55) and, as a result, compliance with this doctrinal authority would almost always translate into compliance with the law of war.
The concept of coercion implies the use of physical or mental pain or intimidation to compel an unwilling detainee to provide information. (56) While certain tactics fall squarely within this implied definition--such as beating a detainee or threatening to execute a detainee--the legality of other less severe tactics and techniques will invariably require case-by-case analysis. In conducting this analysis, the following two considerations may be useful.
First, coercion must be distinguished from the use of incentives, whereby a detainee can improve his or her comfort through cooperation. In the first instance, physical pain or mental suffering is inflicted with the objective of compelling cooperation as the result of a desire to obtain relief from the pain or suffering. In the second instance, even if a privilege is withdrawn, the consequence will be a return to a baseline standard of care and treatment, which cannot be equated to the infliction of pain or suffering.
Second, while the prohibition against inhumane treatment prohibits tactics that fall within the meaning of coercion, as this term is used in the GPW and the GC, there is no prohibition against manipulation, so long as the manipulation does not involve inhumane tactics. Indeed, interrogators should be skilled in the art of manipulating the subject of an interrogation into providing information that he may have been initially determined to withhold. Vigilance in protecting detainees against inhumane coercive tactics must be balanced against the legitimate interests of obtaining valuable information through the use of "humane manipulation." The instinct of interrogators to develop creative manipulation techniques should be encouraged, so long as such techniques are monitored to ensure that they remain within the bounds of humane treatment.
This analysis may be aided by considering the effect of the manipulation. If the manipulation deprives or jeopardizes an obligation owed to a detainee, it probably crosses the line into the realm of coercion. In contrast, if the manipulation deprives or jeopardizes a privilege granted to a detainee, it probably does not cross this line. Certainly, physical abuse could be categorized as a form of manipulation. As noted above, however, the humane treatment obligation vests detainees with a right to be protected from physical abuse. Therefore, such abuse would not be permissible, even if characterized as a form of manipulation. A more relevant example involves rations. It is clear that adequate nutrition is an element of the humane treatment obligation owed to detainees. (57) Deprivation of such rations, or even the threat to deprive a detainee of adequate nutrition, would be impermissible as a form of manipulation, as it would result in inhumane treatment. (58) It is conceivable, however, that extra rations, in the form of an award, may be provided to detainees as a privilege that supplements the obligatory rations. The issuance or deprivation of such extra rations, if used as a form of manipulation, would not violate the humane treatment obligation. (59) Additionally, no detainee has a right to be protected against trickery, deception, or manipulation through the issuance of incentives, all of which are traditional techniques utilized by interrogators to obtain cooperation.
This balance between legitimate manipulation and inhumane treatment in the form of physical or mental abuse or coercion is articulated as a key principle of interrogation operations in FM 34-52:
The GWS, GPW, GC, and US policy expressly prohibit acts of violence or intimidation, including physical or mental torture, threats, insults, or exposure to inhumane treatment as a means of or aid to interrogation. Experience indicates that the use of prohibited techniques is not necessary to gain the cooperation of interrogation sources. Use of torture and other illegal methods is a poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the interrogator wants to hear. Limitations on the use of methods identified herein as expressly prohibited should not be confused with psychological ploys, verbal trickery, or other nonviolent or noncoercive ruses used by the interrogator in the successful interrogation of hesitant or uncooperative sources. The psychological techniques and principles in this manual should neither be confused with, nor construed to be synonymous with, unauthorized techniques such as brainwashing, physical or mental torture, or any other form of mental coercion.... (60)
In summary, the obligation of humane treatment, and the more specific prohibition against coercion derived from this obligation does not operate to deprive interrogators from practicing their craft, but only to prohibit abusive tactics that are inherently inhumane. This point is emphasized in the GPW Commentary discussion of the prohibition against using coercion to obtain information from prisoners of war:
The authors of the new Convention were not content to confirm the 1929 text: they made it more categorical by prohibiting not only "coercion" but also "physical or mental torture ... Be this as it may, a State which has captured prisoners of war will always try to obtain military information from them. Such attempts are not forbidden; the present paragraph covers only the methods to which it expressly refers [coercion]. (61)
The Relationship Between Component Authorities and the Joint Operational Command (62)
The analysis offered thus far in this article has continually emphasized the importance of understanding and applying Army regulatory and doctrinal authorities. However, one of the most perplexing issues confronting service JA's called upon to provide legal support to operations conducted within the context of a joint operation is determining the force and effect of such service-specific regulations, policies, doctrine, tactics (techniques), and procedures. There is no definitive statutory, DOD, or Army-controlling authority that speaks to this issue. As a result, the absence of a unified and controlling position has forced legal advisors at all levels of command to resolve this issue on an ad hoc basis.
At its most elemental level, this issue requires a determination of whether service-specific authorities remain in effect once a service provides forces to a combatant commander for the execution of operations in accordance with the statutory command and control structure established by the Goldwater-Nichols Act, (63) and derivative implementing authorities.
It is doctrinally established that the command authority over service forces provided to the combatant commander for the execution of military operations vests, in that commander, the authority to issue lawful orders, directives, policies, or any other authorities that supersede and take precedence over service-specific authorities. (64) While it is not uncommon for such authorities to be promulgated by the combatant command or subordinate joint commands, it would be misleading to suggest that such authorities provide comprehensive coverage of all issues related to the execution of operations.
The logical effect of the situation created is that the customary practice of the services becomes a valid source of evidence from which to derive the "implied intent" of the joint command concerning a particular subject. This justifies the conclusion that, absent an express directive from the joint command controlling any specific issue, legal advisors must presume that the authorities that the component forces "bring with them to the fight" remain in effect, and retain the same force and effect as they did prior to the force being placed under the operational control of the joint command. This presumption is the logical extension of the relationship between the service component commander and the combatant commander, whereby the service component commander is responsible for providing, to the combatant commander a trained, equipped, and ready force for the execution of the operational mission. This relationship requires the combatant commander to presume that the regulations, doctrine, training, and equipment that the service forces bring to the fight are effective, and remain effective once the forces fall under combatant command (COCOM). (65) This presumption is clearly rebuttable, as noted above, but it allows the DOD, a COCOM, or any subordinate joint command to focus on those issues determined to be in particular need of "joint" controlling authority, without the necessity of providing for the "regulation" of every aspect of force activities.
This construct is reflected in the doctrinal relationship of COCOM and administrative control (ADCON). (66) The COCOM reflects the ultimate authority of the joint command to promulgate any lawful directive determined necessary for the effective execution of the operational mission. Administrative control, however, reflects the continuing responsibility of the service component commander to ensure his or her forces remain fully capable of executing the mission. For Army forces, this ADCON responsibility is often referred to as "Title 10" responsibility--a characterization apparently derived from the U.S. Code statutory obligation imposed upon the Army to establish forces prepared to fight and win the nation's wars. (67) This results in the necessary inference that, in order to satisfy this statutory obligation, Army commanders must ensure forces are properly constituted, resourced, and trained. The doctrinal concept of ADCON more precisely establishes the continuing responsibility of the Army service component commander to ensure that component forces are well prepared to accomplish all tasks imposed upon Army forces in the joint operational area--by statute, or any other source of controlling authority. (68) One aspect of satisfying this responsibility is the requirement to promulgate regulations, policies, doctrine, and other authorities to facilitate mission execution. Thus, execution of the ADCON responsibility requires that Army commanders presume the continued validity and applicability of such pre-deployment "green" authorities in the absence of superceding "purple" authorities. In the specific context of interrogation operations, this construct supports reliance on multiple sources of authority requiring adherence to the humane treatment standard.
First, the requirement to provide humane treatment for all detainees is established by multiple sources. The National Defense Authorization Act of 2005 emphasizes the responsibility of all DOD elements to comply with this standard. (69) This standard is also derived from the international law of war in the form of the principles reflected in Common Article 3 to the four Geneva Conventions. (70) Whether applicable as a matter of binding treaty obligation, customary international law, or through the conduit of the DOD Law of War Program, (71) however, this baseline treatment standard is perhaps the most clear cut example of a "fundamental principle" of the law of war. The requirement to comply with this "fundamental principle" is reinforced by instruction promulgated by the Chairman, Joint Chiefs of Staff instruction implementing the DOD Law of War Program, (72) and, with regard to the GWOT, presidential policy statements. (73)
Second, service regulation, AR 190-8, imposes an obligation to comply with this standard of humane treatment. (74) This regulation is a multi-service regulation promulgated by the Army pursuant to its executive agent authority for EPW and detainee affairs. (75) The multi-service nature of this regulation certainly enhances its force and effect, and promulgation pursuant to executive agent authority renders AR 190-8 binding in the operational realm. This conclusion is supported by the delegation of executive agent authority contained in Department of Defense Directive 2310. 01, DoD Enemy PO W Detainee Program, (76) which establishes the scope of this authority as follows:
4.2. The Secretary of the Army, as the DoD Executive Agent for the administration of the DoD EPOW Detainee Program, shall act on behalf of the Department of Defense in the administration of the DoD EPOW Detainee Program to:
4.2.1. Develop and provide policy and planning guidance for the treatment, care, accountability, legal status, and administrative procedures to be followed about personnel captured or detained by, or transferred from the care, custody, and control of, the U.S. Military Services. (77)
The binding character of AR 190-8 is buttressed by the terms of the Regulation itself, which indicates that
This regulation provides policy, procedures, and responsibilities for the administration, treatment, employment, and compensation of enemy prisoners of war (EPW), retained personnel (RP), civilian internees (CI) and other detainees (OD) in the custody of U.S. Armed Forces. (78)
Because the regulation includes mandates directed towards the COCOMs (as noted above with regard to humane treatment), there is little doubt regarding the force and effect of AR 190-8. It is binding during all military operations, requiring the humane treatment of all detainees. Thus, the humane treatment mandate of AR 190-8 would appear to be binding authority in the joint operational environment not as a matter of inference, but as an express consequence of the executive agency vested upon the Army by the DOD.
Finally, as noted above, the presumption of applicability also applies to Army doctrine and tactics (techniques) and procedures. Legal advisors providing legal support to interrogation operations planned and executed by Army forces should continue to refer to FM 34-52 as authoritative doctrine (until this FM is superseded).
The Way Ahead
While the JA community continues to make great progress toward the goal of standardized detainee interrogation legal support training packages, pending revisions to regulations and field manuals, and the prospect of the publication of TTPs and other guidance in this area, render it difficult, if not impossible, to provide definitive guidance at this time. In the interim, however, the training requirement persists. Our Solders still deploy; they will capture and detain the enemy, and interrogations will take place. The Corps must, therefore, continue to ensure that JAs receive the best preparation possible, guided by the azimuth points derived from current law and policy, and a common sense understanding of the relationship between the interrogation process and operational legal support. This will facilitate legal support to both training and execution.
Surely, the Corps cannot attempt to "legislate" success. The key to success is training, which combines initiative and judgment, the legal advisors "stock in trade." With this in mind, training packages will be published as soon as it is prudent. All legal personnel will be trained as they rotate through TJAGLCS. The INSCOM and USAIC will continue to effect their training mission. The CLAMO (79) will continue its efforts to obtain and post all related materials for retrieval from the field. For example, a copy of the training package that evolved from the meeting that generated this article may be accessed from the CLAMO website. (80) Finally, practitioners in the field must continue to advise those responsible for formulating doctrine, guidance, and training materials in this area of what they have learned, and what they require.
In the final analysis, however, the lessons of the past four years have validated several truisms related to effective legal support to interrogation operations. First, JAs must remain vigilant in ensuring understanding of and compliance with the principle of humane treatment. Second, all detainees are vested with the "benefit" of human treatment, even when they don't qualify for a more favorable "benefit package" under the Geneva Conventions. Third, JAs must understand, and ensure their clients understand, the force and effect of "purple" and "green" authorities in the joint operational environment. Reliance on these truisms when training for or executing interrogations should minimize the risk of detainee abuse in the future.
(1) U.S. DEP'T OF ARMY, FIELD MANUAL 34-52, INTELLIGENCE INTERROGATION 1-8 (Sept. 1992) [hereinafter FM 34-52]. Field Manual 34-53 is currently under revision and will be superseded by FM 2-22.3.
(3) Memorandum, Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Department of Justice, to Alberto R. Gonzales, Counsel to the President, and William J. Haynes I1, General Counsel of the Department of Defense, subject: Application of Treaties and Laws to al Qaeda and Taliban Detainees (22 January 2002), available at http://washingtonpost.com/wp-srv/ nation/documents/012202bybee.pdf [hereinafter Bybee Memo].
(4) Memorandum, Staff Judge Advocate, JTF-170, to Commander JTF-I70, subject: Legal Review of Aggressive Interrogation Techniques (Oct. 11, 2002), available at http://www.defenselink.mil/news/Jun2004/d20040622doc3.pdf [hereinafter JTF 170 Legal Review]; Memorandum, Staff Judge Advocate, JTF170, to Commander JTF-170, subject: Legal Brief on Proposed Counter-Resistance Strategies (Oct. 11,2002), available at http://www.defenselink.mil/news/Jun2004/d20040622doc3.pdf [hereinafter JTF 170 Legal Brief].
(5) Memorandum, Lieutenant Colonel Jerald Phifer, J2, to Commander, JTF 170, subject: Request for Approval of Counter-Resistance Strategies (Oct. 11, 2002), available at http://www.defenselink.mil/news/ Jun2004/d20040622doc3.pdf [hereinafter J2 Interrogation Request].
(6) JTF 170 Legal Brief, supra note 4.
(9) Id.; JTF 170 Legal Review, supra note 4.
(10) Memorandum, President of the United States, to Vice President, et al., subject: Humane Treatment of al Qaeda and Taliban Detainees (Feb. 7, 2002), available at http://www2.gwu.edu/-nsarchiv/NSAEBB/NSAEBB127/02.02.07.pdf [hereinafter President Bush Memo].
(11) JTF 170 Legal Briel. supra note 4.
(16) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 113.
(17) 18 U.S.C. [section] 2340A (2000).
(18) Common Article 3 provides protection from, inter alia, murder, mutilation, torture, hostage-taking, summary executions, and irregular trial proceedings. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, art. 3, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter GWS]; Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea, Aug. 12, 1949, art. 3, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter GWSS]; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art. 3, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GPW]; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 3, 6.U.S.T. 3516, 75 U.N.T.S. 287 (GC) [hereinafter GC I-IV]. Article 3 is common in all four Conventions.
(19) U.S. DEP'T OF ARMY, REG. 190-8, ENEMY PRISONERS OF WAR, RETAINED PERSONNEL, CIVILIAN INTERNEES AND OTHER DETAINEES (1 Oct. 1997) [hereinafter AR 190-8] (Army Regulation 190-8 is a multi-service publication and is designated as OPNA VINST 3461.6 (Navy), AFJI 31-304 (Air Force), and MCO 3461.1 (Marine Corps).).
(20) FM 34-52, supra note 1.
(21) The only uncertainty with respect to applicable doctrine that should have arisen was that in play at GTMO--where all detainees had been classified as unlawful combatants. See President Bush Memo, supra note 10. With respect to this category of detainees, military practitioners do need to formulate doctrinal guidance concerning treatment and interrogation- based not on the GC, but on other clearly applicable international and domestic law.
(22) See generally U.S. DEP'T OF ARMY, FIELD MANUAL 2%100, LEGAL SUPPORT TO OPERATIONS (1 Mar. 2000) [hereinafter FM 27- 100].
(23) See FM 34-52, supra note 1, at 2-13.
(24) See id. at 2-2, 2-13.
(25) See, e.g., id. at app. C (providing a guide for tactical questioning).
(26) Judge advocates must ensure that all personnel who may be involved in tactical questioning, with a particular emphasis on small unit leaders, understand that the same humane treatment based obligations applicable during interrogation apply during tactical questioning. In fact, evidence gathered during recent military operations indicates that the risk of detainee abuse is greater during the tactical questioning phase of exploitation than during the interrogation phase. See id. at 2-13. Leaders at all levels must remain vigilant in ensuring that detainees are treated consistently with law and policy from the moment of capture through every phase of custody.
(27) U.S. ARMY INTELLIGENCE CENTER, ST 2-91.6, SMALL UNIT SUPPORT TO INTELLIGENCE (2 Mar. 2004). The INSCOM has taken the lead in creating training materials and providing JAG support to mobile training teams preparing deploying units and personnel at home station. Judge advocates advising maneuver units are encouraged to attend this training.
(28) See FM 34-52, supra note 1, at 2-9, 2-13.
(29) JOINT CHIEFS OF STAFF, JOINT PUB. 2-01, JOINT AND NATIONAL INTELLIGENCE SUPPORT TO MILITARY OPERATIONS app. G (7 Oct. 2004)
(31) See M.
(32) FM 27-100, supra note 22, para. 2.4.2.
(33) U.S. DEP'T OF ARMY, REG. 381-10, US ARMY INTELLIGENCE ACTIVITIES (1 July 1984).
(34) FM 34-52, supra note 1, at 2-11.
(35) Id. at 2-11.
(36) Id. at 3-7 to 3-29.
(37) Id. at 3-10.
(38) See id. at 3-16.
(39) See id. at 3-14 to 3-20. These approaches are:
a. Direct Approach. The direct approach is the basic method for interrogation and usually the first-used approach. This involves standard questioning of name, rank, unit affiliation, unit mission, etc. Past operations have shown this method to be 90-95% effective. The shock and awe of capture alone puts detainees in a state of mind where they are willing to divulge anything, However, recent anecdotal evidence suggests that detainees in current operations are savvier as to U.S. interrogation methods and have even been trained on interrogation resistance techniques, similar to our SERE training, and that the direct approach is less and less effective.
b. Incentive Approach. Traditionally, this approach involves identifying a luxury item important to the subject and either offering it in exchange for information or if they are already receiving the item, having it withdrawn. Interrogators are clearly and explicitly trained that the luxury item does not mean items or rights guaranteed by the Geneva Conventions or other applicable laws and rules. For instance, upgrading meal choices from MREs to better food, granting extra privileges, or authorizing comfort items like cigarettes in exchange for information is allowed. Withholding medical care, religious items or worship time, or withholding items the U.S. military is legally obligated to provide, however, would be unauthorized. Interrogators may also not offer incentives they deliver, such as asylum (the prerogative of the State Department) or immunity for their illegal activities (the prerogative of either the GCMCA or host-nation legal system).
c. Emotional Approach. With this approach, the intent is to identify and exploit emotional motivators, such as love, hate, revenge, etc. The key is to identify the dominant emotion and apply pressure to divulge in order to resolve the internal emotional conflict. There are two subsets of this approach: Emotional Love or Emotional Hate.
In Emotional Love approaches, the interrogator looks for something in the subject's background that implicates a love of family, comrades, or homeland. For instance, a photograph or letter from a loved-one, or an appeal to how their cooperation can save the lives of the subject's comrades or nation, combined with sincerity and genuine concern for the subject can give the subject a reason to divulge information.
In Emotional Hate, the interrogator identifies feelings of hate towards family, comrades, or country that the subject may feel. Maybe his unit or organization left him behind or gave him up. Maybe his leadership was incompetent, which led to his capture. Some subjects have built-in racial or religious prejudices that can be discussed with a view towards channeling that hate into divulging information.
d. Fear-Up. This is the approach that needs the most monitoring. This technique is used on fragile sources, such as the young or the nervous. It is frequently (although incorrectly) used on intransigent subjects who do not respond to anything but brute power. The purpose is not (nor cannot be) to create tear of harm in the subject; rather, the purpose is to identify a fear, whether real or not, and then exploit that already-existing fear. For instance, a subject may come into the facility knowing or believing that they have committed a war crime and having been caught, will be severely punished for it (which severe punishment may have occurred had they been caught by another regime). Rather than dispel that tear initially, an interrogator can allow the subject to maintain the fear (without further feeding it) and let them know that the tear can be alleviated by cooperation. As FM 34-52 explains it, "a good interrogator will implant in the source's mind that the interrogator himself is not the object to be teared, but is a possible way out of the trap." Many times, this approach utilizes yelling and banging on tables, but cannot involve touching or harm to the subject, or event the communicated threat of actual harm. Experienced interrogators are also aware that once the Fear Up approach is used, the interrogator using this method will probably never be able to go back in the booth again with that subject because of the likelihood of a complete breakdown in the ability to create trust.
e. Fear Down. This approach works best with the subject who is so frightened that they withdraw into themselves or go into a regressed state. By using a calming, soothing voice and using incentives to build trust, the interrogator can befriend the scared subject and use that relationship to extract needed information. In essence, the subject becomes dependent on the interrogator to alleviate fear and divulges information to keep the protective relationship intact. This may involve the interrogator asking her chain of command for permission to provide luxury items, secure quarters, or other emotional "safety nets."
f. Pride and Ego. Here the interrogator appeals to a subject's ego through flattery or appeal to their superiority. This is most effective with captured senior leaders who are proud of their position in life. The reverse approach is to question their superiority despite mistakes that led to their capture. Experience holds that proud subjects will divulge a great deal of information to justify their decisions. Another way to use this approach is Pride and Ego Down, or to attack the subject's sense of self-worth by exploiting capture circumstances or by exploiting real or perceived interiority issues. Like Fear Up, if an interrogator has to resort to a Pride and Ego Down approach and cannot succeed, there is little chance of ever rebuilding relations between that interrogator and the subject again.
g. Futility. This usually involves showing the subject that their resistance is futile by using logic to walk them through the consequences of their thoughts and actions, with the end state revealing that they are in no position to withhold information. Futility can exploit their captured situation, the battlefield situation, the idea that in the end everyone will eventually capitulate and talk, or that the past is the past and that they cannot change their circumstances. Like other approaches, the key is to help the subject know that resolution of the feelings of hopelessness that accompany futility comes through cooperation.
h. We Know All. By becoming familiar with all the data surrounding the subject, including statements made by other comrades and sources, the interrogator can walk into the booth armed with enough information to convince the subject that "the jig is up" and cooperation is the only choice. The interrogator can also use the information to test the veracity of the subject, ask questions they already know, and confront them when they lie.
i. File and Dossier. In this approach, the interrogator comes into the booth with a dossier built on the subject. By showing information already known about the subject or his organization, along with the illusion that the interrogator knows more than she may actually know, the interrogator can create the impression that, again, resistance is futile.
j. Establish Your Identity. Here the interrogator accuses the subject of being someone infamous or wanted by higher authorities. By forcing the detainee to deny the allegations, they are more likely to provide real information in order to clear their name.
k. Repetition. Here the interrogator uses repetitious questioning or monotony to literally bore the subject into divulging information out of a desire to end the process.
1. Rapid Fire. By firing a series of questions in no particular logical order, or by using two or more interrogators asking dissimilar questions, the source has no time to use the "canned" answer, but is more likely to divulge real information or contradict themselves so badly that they begin to try to explain themselves and either divulge information or open up questioning leads for further exploitation.
m. Silent. Similar to a game of "stare-down", the interrogator just sits and stares at the subject until the discomfort becomes so great that the subject is willing to at least answer some questions in order to remove the discomfort. This can lead to enough information to exploit and open up further questioning.
n. Change of Scene. Used with the Incentive approach, if the interrogator and subject have been meeting with each other over a long period of time, the interrogator can use the idea of questioning taking place in another, less-hostile environment. This builds on relationships of trust established between interrogator and subject and can also be used successfully with a Pride and Ego approach, using a softer approach on senior leaders willing to cooperate with their captors for extra privileges such as a "civilized cup of tea" with their new "friend". Change of Scene is not an approach that uses a negative change in environment such as placement in isolation or involves manipulation of environmental controls such as light or temperature. These are non-doctrinal methods that are either unauthorized or require a high level of authorization.
(40) See id. at 3-21.
(41) See id. at 3-14 to 3-28.
(42) See id. at 3-28.
(43) Size, Activity, Location, Unit, Time, and Equipment. See id. at app. E, 1-3.
(44) See Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375, [section] 1091, 115 Stat. 1811 (2004).
(45) The principle of humane treatment as reflected in Common Article 3. See GC I-IV, supra note 18, art. 3.
(46) See GC I-IV, supra note 18, art. 3.
(47) Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, adopted June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Protocol 1]. The United States is not a party to Protocol I, but recognizes certain of its provisions reflect principles of customary international law. The same is true for Protocol II.
(48) Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non- International Armed Conflicts, adopted, June 8, 1977, 1125 U.N.T.S. 609 [hereinafter Protocol II].
(49) See, e.g., COMMENTARY, III GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR (Jean S. Pictet ed., 1960) [hereinafter COMMENTARY III].
(50) See U.S. DEP'T OF DEFENSE, DIR. 5100.77, DOD LAW OF WAR PROGRAM (9 Dec. 1998) [hereinafter DOD DIR. 5100.77].
(51) See, e.g., Prosecutor v. Tadic, Case No. 1T-94-1-AR72, Appeal on Jurisdiction (Oct. 2, 1995), reprinted in 35 I.L.M. 32 (1996); Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27); Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995) (analyzing the customary international law status of Common Article 3).
(52) For example, there have been differing conclusions regarding techniques such as sleep deprivation, exposure to loud noise, diet manipulation, presence of dogs, hooding, etc.
(53) See GPW, supra note 18, art. 4.
(54) See GC, supra note 18, art. 31.
(55) See FM 34-52, supra note 1, at preface.
(56) According to FM 34-52, "Coercion is defined as actions designed to unlawfully induce another to compel an act against one's will." Examples of coercion included:
Threatening or implying physical or mental torture to the subject, his family, or others to whom he owes loyalty. Intentionally denying medical assistance or care in exchange for the information sought or other cooperation. Threatening or implying that other rights guaranteed by the GWS, GPW, or GC will not be provided unless cooperation is forthcoming.
Id. at 1-8.
(57) See. e.g., GPW, supra note 18, art. 26 ("The basic daily food rations shall be sufficient in quantity, quality and variety to keep prisoners of war in good health and prevent loss of weight or the development of nutritional deficiencies").
(58) Because the rations referenced in the text would be provided in satisfaction of the minimum legally acceptable level of nutrition and maintenance, deprivation of such rations would be prohibited by the law of war. Deprivation of such a legally mandated minimum level of nutritional maintenance would subject the subject of the interrogation to the type of physical suffering (starvation or malnutrition) expressly prohibited by the law of war.
(59) The use of the qualifier "extra" in the text necessarily infers rations that are additional to the minimum legally required. Thus, because such "extra" rations would not be legally required, deprivation of such rations would not violate a legal obligation.
(60) FM 34-52, supra note 1, at 1-8 (emphasis added).
(61) See COMMENTARY III, supra note 49, at 163-164.
(62) See JOINT CHIEFS OF STAFF, JOINT PUB. 3-0, DOCTRINE FOR JOINT OPERATIONS ch. 11 (10 Sept. 2001) [hereinafter JP 3- 0] (discussing the doctrinal relationship between combatant and component commands).
(63) Goldwater-Nichols Department of Defense Reorganization Act of 1986, Pub. k. No. 99433, 100 Star. 992, codified in scattered sections of 10 U.S.C.
(64) JP 3-0, supra note 62, at 11-6-7.
(65) Id. at II-6.
(66) Id. at II-10-11.
(67) 10 U.S.C. [section] 3062 (2000).
(68) GC I-IV, supra note 18, art. 3.
(69) Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375, [section] 1091, 115 Slat. 1811 (2004).
(70) GC I-IV, supra note 18, art. 3.
(71) See DOD DIR. 5100.77, supra note 50; see also CHAIRMAN, JOINT CHIEFS OF STAFF, INSTR. 5810.01B, IMPLEMENTATION OF THE DOD LAW OF WAR PROGRAM (25 Mar. 2002) [hereinafter CJCS INSTR. 5810.01B].
(72) See CJCS INSTR. 5810.01B, supra note 101.
(73) President Bush Memo, supra note 10. After finding that the Geneva Conventions did not apply, as a matter of law, to members of Al Qaeda, and that members of the Taliban did not qualify for status as prisoners of war, the Directive indicates: "of course, our values as a Nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment ..." Id. para. 3.
(74) See AR 190-8, supra note 19, para. 1-4g (indicating that "Commanders at all levels will ensure that all EPW, CI, RP, and ODs are accounted for and humanely treated, and that collection, evacuation, internment, transfers, release, and repatriation operations are conducted per this regulation.").
(75) See U.S. DEP'T OF DEFENSE, DIR. 2310.01, DOD PROGRAM FOR ENEMY PRISONERS OF WAR (EPOW) AND OTHER DETAINEES (SHORT TITLE DoD ENEMY POW DETAINEE PROGRAM) paras. 4.2 - 4.2.1 (18 Aug. 1994).
(76) See AR 190-8, supra note 19, para. 1-1.
(79) The CLAMO is located at the U.S. Army Judge Advocate General's Legal Center and School and serves as a resource for operational lawyers. It seeks to fulfill its mission in five ways: acting as the central repository within the JAGC for all-source data/information, memoranda, after action materials and lessons learned pertaining to legal support to operations, foreign and domestic; supporting JAs worldwide by analyzing all data and information, developing lessons learned across all military disciplines, and by disseminating those lessons learned and other operational information to the Army, Marine Corps, and Joint communities through publications, instruction, training, and databases accessible to operational forces world- wide; supporting JAs in the field by responding to requests for assistance; integrating lessons learned from operations and the Combat Training Centers into emerging doctrine and into the curricula of all relevant courses, workshops, orientations, and seminars conducted at the JAG Center and School; and, in conjunction with the center and School, sponsoring conferences and symposia on topics of interest to operational lawyers.
(80) See The Center for Law and Military Operations, at https://www.jagcnet.army.mil/JAGCNETIntranet/Databases/Operational+Law/ CLAMO.nsf/(JAGCNetDocID)/HOME?OpenDocument (last visited 11 July 05).
Lieutenant Colonel Paul Kantwill
Chair and Professor
International and Operational Law Department
The Judge Advocate General's Legal Center and School
Captain Jon D. Holdaway
Command Judge Advocate
66th Military Intelligence Brigade
Mr. Geoffrey Corn
Special Assistant to the Judge Advocate General for Law of War Matters
Office of the Judge Advocate General
(with contributions from Mr. David Graham, Executive Director, The Judge Advocate General's Legal Center and School)
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|Author:||Kantwill, Paul; Holdaway, Jon D.; Corn, Geoffrey S.|
|Date:||Jul 1, 2005|
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