Intelligence interrogation, U.S., review

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United States intelligence interrogation methods have been under review for some time, well before the George W. Bush Administration. Not only the methods of interrogation, but the broader area of voluntary and involuntary contacts have been controversial. For example, during the Carter Administration, there were policies that U.S. intelligence personnel should have no involvement with foreign nationals accused of human rights violations; this produced the problem of cutting off access to the people with most knowledge of governments that routinely committed human rights violations, such as torture. There was also increased emphasis on highly technical means of intelligence collection, and large numbers of Central Intelligence Agency human-source intelligence personnel were involuntarily retired. Unfortunately, no satellite has been built that can look into the human mind.

Intelligence experts increasingly questioned the emphasis on coercive approaches. One conference concluded "Non-coercive, traditional, rapport-based interviewing approaches provide the best possibility for obtaining accurate and complete intelligence." The participants described the proper approach as analogous to seduction. "For anyone who has been involved in a seduction, it will be immediately clear that coercion simply will not work. What works is the exact opposite – a careful and thoughtful exchange of ideas and attitudes that will help the interrogator find a path to the desired intelligence."[1] This differs with the policies from 2002-2007. Such feedback, along with court decisions, led the Bush Administration to modify some policies, and, just before the end of the Administration, to disavow some.

Second World War

Another indication of how nations regard torture is how military forces train their personnel to resist acts expected if captured by enemies. During the Second World War, there was training on how to resist interrogation, especially for personnel assigned to secret operations. In such cases, the goal was for them to resist until their comrades would detect their absence and disperse. The OSS, among other organizations, taught the use of cover stories, but they also gave their agents "L-pills", or quick-acting poison to give them a choice of suicide rather than facing torture. [2]

Truman administration

According to a 1975 CIA memorandum, some of the earliest experiments with the use of drugs and hypnosis began in 1949-1950, under Projects BLUEBIRD and ARTICHOKE, although the bulk of this work was in the Eisenhower administration. [3]

Eisenhower administration

BLUEBIRD and ARTICHOKE became the larger MKULTRA program, with most work between 1952 and 1957. The methods were found ineffective for interrogation, and the emphasis given to psychological methods.

Very much in the Administration's concern were the techniques that had been used on Allied prisoners of war by North Korea. [4] While there remained fears of "mind control", the demonstrated reality was that the Korean methods could coerce confessions useful for propaganda, but not necessarily for intelligence information.

Indeed, there was a great deal of North Korean interest in eliciting confessions that the U.S. had used biological weapons, even though the U.S. did not have weapons, of the type described, in its inventory of the time. The attempts to gain propaganda became the basis of the later survival, evasion, resistance and escape (SERE) techniques, in which the waterboarding interrogation technique was demonstrated as a means the enemy might use.

Johnson administration

Soviet-related

Yuri Nosenko was brought to the U.S. in February 1964, as a Soviet defector, using the special authority of the Director of Central Intelligence to bring aliens into the country. By April, questions had been raised about his bona fides, and, with permission of the United States Attorney General Nicholas Katzenbach, originally for a short time.[5] He was put in solitary confinement by April, and subjected to "hostile interrogation...psychological intimidation and physical hardship, but never to physical abuse." This continued for several years.[6]

Nosenko was a key part of a "wilderness of mirrors" involving finding the elusive truth between two ostensible KGB defectors, the other being Anatoly Golitsyn. Each suggested the other was a double agent; both said there had been major penetrations of the CIA by the KGB. While opinion today leans toward Nosenko telling the truth, there is still much disagreement. It is clear that the "molehunt" nearly paralyzed the CIA for several years, and had ramifications for British intelligence.

Latin America

It has been reported that an American trainer, Dan Mitrione (who was later killed by Uruguyan insurgents) taught torture techniques, but it is possible that he did so on his own initiative. [7] However, the American historian William Blum assumes that this was a matter of policy. [8] although he agrees that Uruguayan police tortured prisoners before there were any U.S. advisers. He quotes the former Uruguayan Chief of Police Intelligence, Alejandro Otero, as saying "US advisers, and in particular Mitrione, had instituted torture as a more routine measure; to the means of inflicting pain they had added scientific refinement; and to that a psychology to create despair, such as playing a tape in the next room of women and children screaming and telling the prisoners that it was his family being tortured."

Vietnam

While South Vietnamese interrogators used physical torture against Nguyen Thi, the CIA assessment is that the most important information gained was from principally psychological methods.
While the South Vietnamese use of torture did result (eventually) in Tai's admission of his true identity, it did not provide any other usable information. The South Vietnamese played the key role in cracking Tai's cover story, but it was their investigation and analysis that put the pieces together to make a solid and incontrovertible identification of Tai, not their use of torture, that scored this success. A sensitive, adept line of questioning that confronted Tai with this evidence and offered him a deal--like the offer by his torturers to exchange admission of his identity for consideration in a notional prisoner exchange--would almost certainly have achieved the same result. Without doubt, the South Vietnamese torture gave Tai the incentive for the limited cooperation he gave to his American interrogators, but it was the skillful questions and psychological ploys of the Americans, and not any physical infliction of pain, that produced the only useful (albeit limited) information that Tai ever provided.[9]

In 1968, U.S. troops in the Vietnam War were under orders to report all war crimes, specifically including torture, whether by enemy or friendly troops. Previously, they had only been required to report enemy actions, so the use of torture came under much greater scrutiny.[10] This was an impetus to the use of "clean" electrical torture, often administered using a hand-cranked generator on a prisoner, often immersed in water; this was reported by LTC Anthony Herbert in the 1968-1969 period. [11] Herbert's allegations, described in his book, Soldier, were disputed by Army Criminal Investigation Division.[12]

These measures were carried out by both South Vietnamese and American troops. [13]

Nixon administration

In 1967, after being given three years to establish Yuri Nosenko was a double agent, Director of Central Intelligence gave the CIA Soviet Bloc Division 60 days to make its case. Gordon Stewart, who later became inspector general, agreed that there were ambiguities and errors in his count, but were not adequate to prove Soviet control. "Stewart concluded that SB Division had not proved its case against Nosenko, that certain proof might never be available, and that the time had come for the CIA to start to 'distance' itself from the matter. Whether or not Nosenko was a Soviet agent, he had to be removed from solitary confinement, gradually rehabilitated, and eventually given his freedom to settle in the United States."

Not until March 1969, however, was Nosenko released from confinement and put on the CIA payroll as a consultant. The matter continued to be reexamined, eventually in seven major reports, an August 1981 report concluded Nosenko was probably genuine.

Carter administration

Carter, in 2005, stated what he considered to be general principles.
Well, first of all, it's against a basic human rights commitment that was made 50 years ago when the United Nations were first formed, and every country has agreed to abide by this restraint, including every president who served for the last 50 years.

It also besmirches America position as the so-called former champion of human rights. There's not a single major human rights organization in the world that's not now condemning America as one of the foremost violators of basic human rights.

And it's not only just overseas in prisons for torture, but we have also done the same thing at home in doing away with civil liberties and incarcerating about 1,200 people after 9/11 who were not ever accused of a crime, who couldn't have access to a lawyer, who couldn't see their own family. They were finally — some of them secretly released.

But these kind of secret things that have been, I guess, excluded from the knowledge of even the overwhelming members of the Congress has now been revealed, and I think it brings about a lot of knowledge about what this administration has done that we didn't know before. [14]

Reagan Administration

Victoria Toensing developed, in the early 1980s, some of the first U.S. Department of Justice guidelines for interrogating suspects. She wrote that there was little guidance, but she relied on a decades-old Supreme Court standard: Our capture and treatment could not "shock the conscience" of the court." She points out that this was not what the George W. Bush administration lawyers were asked, "not asked what treatment was legal to preserve a prosecution. They were asked what treatment was legal for a detainee who they were told had knowledge of future attacks on Americans." [15]

George W. Bush Administration

Legal opinions after the 9-11 Attack were directed, from the White House, at the problem of getting information from terrorists, not from the requirements of prosecution. The Administration position that certain individuals captured, in what it termed the war on terror were not entitled to prisoner of war status, which, in turn, allowed the use of interrogation techniques outside the scope of the Third Geneva Convention and other relevant agreements. The legal and political context evolved since the 9-11 attack, partially due to a shortage of trained interrogators and a demand for immediate tactical information, starting in Afghanistan. On February 7, 2002, George W. Bush wrote
"I determined.... that members of al Qaeda, the Taliban, and associated forces are unlawful enemy combatants who are not entitled to the protections that the Third Geneva Convention provides to prisoners of war." [16]

Before the Obama Administration took office, the Justice Department rescinded a number of the main legal opinions written by the Office of Legal Counsel (OLC).[17]

After reviewing the OLC opinions declassified on April 16, Steven Aftergood, of the Federation of American Scientists' Project on Government Secrecy, commented that "it appears that the OLC authors proceeded not out of sadism or indifference, but out of desperation."[18] See Pressure for results. According to Michael Hayden, former Bush administration Director of the Central Intelligence Agency and Michael Mukasey, former Attorney General, "The release of these opinions was unnecessary as a legal matter, and is unsound as a matter of policy. Its effect will be to invite the kind of institutional timidity and fear of recrimination that weakened intelligence gathering in the past, and that we came sorely to regret on Sept. 11, 2001..." [19] Hayden and Mukasey made the argument "public disclosure of the OLC opinions, and thus of the techniques themselves, assures that terrorists are now aware of the absolute limit of what the U.S. government could do to extract information from them." That argument is not trivial, and needs to be examined in the overall context of interrogation theory. They said "fully half of the government's knowledge about the structure and activities of al Qaeda came from those interrogations...Details of these successes, and the methods used to obtain them, were disclosed repeatedly in more than 30 congressional briefings and hearings beginning in 2002, and open to all members of the Intelligence Committees of both Houses of Congress beginning in September 2006. Any protestation of ignorance of those details, particularly by members of those committees, is pretense."[19]

Mukasey, however, did start an investigation of possible CIA improprieties. [20] It was not clear if policymakers and legal advisers were within the scope of this investigation. He made the point that this assignment was not as a special prosecutor. [21]

Obama administration

Shortly after taking office, President Obama revoked Executive Order 13440 of July 20, 2007. All executive directives, orders, and regulations inconsistent with this order, including but not limited to those issued to or by CIA from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals, are revoked to the extent of their inconsistency with this order.[22] The Obama administration has ordered the closing of the foreign sites.

The most controversial enhanced interrogation techniques authorized have been argued variously as inside or outside, or in a gray area, of U.S. and international law. President Barack Obama's decision to release documents detailing the methods was a compromise between the views of civil libertarians and intelligence officials. [23] He made the points that

  • "I prohibited the use of these interrogation techniques by the United States because they undermine our moral authority and do not make us safer.
  • "...the United States must sometimes carry out intelligence operations and protect information that is classified for purposes of national security. I have already fought for that principle in court and will do so again in the future. However, after consulting with the Attorney General, the Director of National Intelligence, and others, I believe that exceptional circumstances surround these memos and require their release.
  • "First, the interrogation techniques described in these memos have already been widely reported...
  • "...withholding these memos would only serve to deny facts that have been in the public domain for some time. This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States.

Dennis Blair, the past U.S. Director of National Intelligence, said "The information gained from these techniques was valuable in some instances, but there is no way of knowing whether the same information could have been obtained through other means. The bottom line is these techniques have hurt our image around the world, the damage they have done to our interests far outweighed whatever benefit they gave us and they are not essential to our national security."[24] This has been called a political argument by former Bush Administration officials, especially Vice President Dick Cheney. This is not, however, a U.S. argument alone; it has been argued if France lost Algeria, in part, due to the use of torture. [25]

Initial statements by the President

Obama did say that CIA personnel who had used the techniques would not be prosecuted, and the U.S. would defend any that faced personal legal action. He left open the issue of prosecutions of the legal advisers. [26]

Justice Department

United States Attorney General Eric Holder, however, has expressed some independence of the President's position; this is not inconsistent with the interpretations by past Attorneys General, who regard themselves in a dual role of chief law enforcement officer and member of the President's cabinet.

Holder continued Mukasey's investigation and on August 24, 2009, Holder announced that he would renew the appointment of John H. Durham, a registered Republican, who is widely considered to be apolitical, as acting U.S. attorney. Durham was charged to make a preliminary investigation into possible unlawful acts carried out by CIA interrogators during the Bush administration.

In doing so, the Attorney General disagreed with President Obama's opinion that no criminal investigations of his predecessor's policies should be undertaken, but clarified that Durham task was, according to the Washington Post, "far from a full-blown criminal investigation. Rather, he said, it is unknown whether indictments or prosecutions of CIA contractors and employees will follow. Lawyers involved in similar reviews said that any possible cases could take years to build because of challenges with witnesses and evidence." Holder commented that he was aware of the controversy that would (and was indeed) created by this move but that "given all of the information currently available, it is clear to me that this review is the only responsible course of action for me to take." The president ultimately supported the decision, underscoring the independence of the Justice Department in such matters.[27]

Republican senators and former Bush administration officials criticized Holder's decision as a partisan do-over for political reasons, since a 2004 CIA report on the matter had concluded that there was insufficient evidence to prove unlawful acts. Nine Republican senators including Sen. Jon Kyl (R-Arizona), the minority whip; Sen. Christopher Bond (R-Missouri), the ranking minority member on the U.S. Senate Select Committee on Intelligence; and Sen. Jeff Sessions, (R-Alabama), the ranking minority member on the U.S. Senate Committee on the Judiciary, wrote in a letter to Holder that

It is well past time for the Obama administration to lift the cloud that has been placed over those in the intelligence community and let them return to the job of saving American lives. [This type of investigation] could leave us more vulnerable to attack.[28]

Some media commentators have echoed this sentiment. Jennifer Rubin of Pajamas Media wrote in The Weekly Standard:

Holder never mentioned that a task force (informally dubbed the "Detainee Abuse Task Force") in the Eastern District of Virginia has already considered all of the applicable information, including the CIA inspector general's 2004 report made public last week. Following standard Department of Justice procedures, the task force drafted "declination memos" setting forth the rationale for not proceeding with prosecutions.Those reasons were summed up in a letter from Principal Assistant Deputy Attorney General Brian Benczkowski to Senator Richard Durbin dated February 7, 2008. In each case, Benczkowski wrote, the decision rested on "one or more of the following reasons: insufficient evidence of criminal conduct, insufficient evidence of the subject's involvement, insufficient evidence of criminal intent, and low probability of conviction."[29]

Declination letters, however, are neither grand jury or trial documents. No "double jeopardy" applies to them and they can be reeopened whenever there is new evidence. It is entirely reasonable to say that the evidence in 2004 did not support prosecution, without saying that the evidence in 2009 may or may not do so.

In fact, there have been a number of reports since 2004, as well as current court actions against the CIA. For example, on March 2, 2009, the office of the U.S. Attorney for the Southern District of New York released a letter, sent to U.S. District Judge Alvin K. Hellerstein, acknowledging that the CIA had destroyed 92 videotapes of "enhanced interrogations". Judge Hellerstein is addressing matter of evidence, while a criminal investigation is in progress by the U.S. Attorney for the Eastern District of Virginia. [30] On March 9, the CIA said that 12 of the 92 tapes included enhanced interrogation techniques. [31]

References

  1. Steven Kleinman and Haviland Smith (July 29, 2008), "Abuse has no place in interrogation policy (commentary)", Nieman Watchdog
  2. Roger Hall (May 2004), You're stepping on my Cloak and Dagger, US Naval Institute Press, ISBN 1591143535
  3. Central Intelligence Agency (January 31, 1975), Memorandum for the Record, Subject: Project ARTICHOKE
  4. Albert D. Biderman (1957 September), "Communist Attempts to Elicit False Confessions from Air Force Prisoners of War", Bull N Y Acad Med. 33 (9): 616–625
  5. Tennent H. Bagley (2007), Spy wars: moles, mysteries, and deadly games, Yale University Press, ISBN 97800300121988, p. 182
  6. Richards Heuer Jr. (Fall 1987), "Nosenko: Five Paths to Judgment", Studies in Intelligence, Central Intelligence Agency: 71-101
  7. A.J. Langguth (June 11, 1979), "Torture’s Teachers", New York Times
  8. William Blum, Uruguay 1964-1970: Torture - as American as apple pie, Killing Hope
  9. Pribbenow, Merle L., "The Man in the Snow White Cell: Limits to Interrogation", Studies in Intelligence
  10. Frederic L. Borch III, Judge Advocates in Vietnam: Army Lawyers in Southeast Asia 1959-1975, U.S. Army Command and General Staff College Press, pp. 34-35
  11. Ralph R. Scott (15 March 1971), Criminal Investigation Divsion report, 4 Nov 1970 - 30 June 1971
  12. Henry H. Tufts (14 April 1973), Memorandum for the Chief of Staff, U.S. Army: Herbert's Soldier
  13. Deborah Nelson and Nick Turse (August 20, 2006), "A Tortured Past: Documents show troops who reported abuse in Vietnam were discredited even as the military was finding evidence of worse.", Los Angeles Times
  14. Chris Matthews (3 November 2005), "Jimmy Carter weighs in on CIA 'secret prisons': Former President warns of unprecedented change in basic values", msnbc.com
  15. Victoria Toensing (16 May 2009), "Critics Still Haven't Read the 'Torture' Memos", Wall Street Journal
  16. George W. Bush (July 20, 2007), Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency, Executive Order 13440
  17. Memorandum Regarding Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 11, 2001, U.S. Department of Justice, January 15, 2009
  18. Steven Aftergood (April 17, 2009), "OLC Torture Memos Declassified", Secrecy News, Federation of American Scientists
  19. 19.0 19.1 Michael Hayden and Michael Mukasey (April 17, 2009), "The President Ties His Own Hands on Terror: The point of interrogation is intelligence, not confession", Wall Street Journal
  20. Dan Eggen and Joby Warrick (January 3, 2008), "Criminal Probe on CIA Tapes Opened: Case Assigned to Career Prosecutor", Washington Post
  21. "Mukasey: Criminal inquiry begins into CIA tapes; CIA said last month it had destroyed recordings of harsh interrogations", Associated Press
  22. Barack Obama (January 22, 2009), Executive Order: Ensuring Lawful Interrogations
  23. Statement of President Barack Obama on Release of OLC Memos, Office of the Press Secretary, The White House, April 16, 2009
  24. Dennis C. Blair (April 21, 2009), Statement by the Director of National Intelligence
  25. Daniel Moran (December 2008), "Two Sides of the Same COIN: Torture and Terror in the Algerian War, 1954-62", Strategic Insights (Center for Contemporary Conflict, U.S. Naval Postgraduate School
  26. "Obama leaves door open to Bush officials' prosecution", CNN, April 21, 2009
  27. Carrie Johnson (August 25, 2009), "Holder Hires Prosecutor to Look into CIA Interrogations", Washington Post
  28. Greg Miller (August 20, 2009), "GOP senators warn Holder against CIA abuse inquiry", Los Angeles Times
  29. Jennifer Rubin (September 7, 2009), "Eric Holder's Anti-CIA Witch Hunt", Weekly Standard, vol. 14, issue 47. Retrieved on September 7, 2009.
  30. Lev L. Dassin (March 2, 2009), Letter to Hon. Alvin K. Hellerstein, Re: ACLU et al.' v. Department of Defense, No. 04-Civ-4151 (AKH)
  31. CIA Confirms 12 Destroyed Videotapes Depicted "Enhanced Interrogation Methods", American Civil Liberties Union, March 3, 2009