The task force charged with fleshing out President Obama’s ban on torture in interrogations is likely to recommend the creation of small, mixed-agency teams for interviewing the most important terrorist targets. Representing an implicit demotion of the CIA, which currently has responsibility for interrogating high-level terrorists, the teams would report jointly to the attorney general and the director of national intelligence, according to officials familiar with the proposal.
The teams are the brainchild of three members of the Intelligence Science Board, a panel that reports to the director of national intelligence: forensic psychologist Robert Fein, former Deputy Attorney General Philip Heymann and former CIA official John MacGaffin. About five years ago, the three security experts began researching the available social science literature concerning interrogations in a variety of nations, including the United States, France, the United Kingdom and Japan, in order to inform a humane and effective interrogation regimen. A two-volume report the panel produced — the first phase was released in December 2006; the second, completed last month, is still classified — both repudiated torture and attributed interrogation-related abuses in part to a “shortfall in advanced, research-based interrogation methods at a time of intense pressure from operational commanders to produce actionable intelligence from high-value targets,” Fein wrote in the first volume, ‘Educing Information,’ which The Washington Independent reported on last year.
Last month, J. Douglas Wilson, the Justice Department official who leads the Obama administration’s Special Task Force on Interrogation and Transfer Policies — a panel created by President Obama’s January 22 executive order banning torture — invited the Intelligence Science Board members to Washington to brief the task force on their recommendations. In an oral presentation and a five-page summary of hundreds of pages of work, Heymann said, he and his colleagues recommended the creation of “an organizational structure that could draw” on the experience of a small corps of the best interrogators currently working for the government who “could produce what would very likely be the best non-coercive interrogation or interviewing capacity in the world.” That corps would serve as the first wave of interrogators under the new structure while preparing a syllabus on proper interrogation guidelines for new recruits to the teams.
“The group would be mobile, and go where it needed to go,” said Heymann, now a Harvard law professor, envisioning teams of three to five interrogators at a time who would “only deal with major interviews and major occasions to get information from a terror suspect” of the order of Abu Zubaydah or Khalid Shaikh Mohammed, two of the most senior al-Qaeda captives held by the CIA and later the Defense Department. While emphasizing that the task force might not adopt every detail of his proposal and that modifications were likely, Heymann said that the teams would “report both to the Justice Department and to the intelligence world,” a move intended to ensure that interrogations do not compromise prosecutions of detainees, a significant departure from the Bush administration.
The task force — officially chaired by Attorney General Eric Holder and co-vice-chaired by Director of National Intelligence Dennis Blair and Secretary of Defense Robert Gates — has embraced the proposal, according to an official familiar with its work. “It’s highly thought out and sophisticated,” the official said. “This is going to be part of the draft recommendations. It may or may not make the final cut, but I’d be very surprised if it did not.” The task force is scheduled to deliver its recommendations to the White House by July 21. Spokespeople for Holder and Blair declined to comment on the task force’s recommendations while its work was ongoing.
Heymann said that interrogators from across the military, CIA, and FBI, would be charged with creating a “syllabus” of best interrogation practices that fall within the boundaries of the U.S. Army Field Manual on Interrogations, which complies with the Geneva Conventions. Heymann said that the social science research supporting the Intelligence Science Board’s work ruled out all forms of physical and psychological torture as methods for soliciting information. “What I mean by ‘non-coercive’ is in line with what our major allies do — Britain, France, other European nations — and not out of line with what’s accepted by western nations,” Heymann said. “We would not do anything to other people that we would complain about if done to Americans abroad in other circumstances, we wouldn’t do something we wouldn’t do to an American in the U.S., and we would be pretty well in line with the views of our major allies,” a perspective adopted in order to ensure robust intelligence cooperation with U.S. allies concerned about torture can continue.
Additionally, the Intelligence Science Board recommended that ahead of the deployment of the interrogation teams, senior administration officials should decide whether or not the substance of the interrogation ought to be used as evidence for a criminal prosecution. “There would have to be an early decision, presumably made in Washington by people with a high level of responsibility, as to whether to take whatever steps necessary to ensure any statements could be used at a trial, or to go ahead and get as much information as possible, without worrying about convicting on that basis,” Heymann said. The decision would impact whether to immediately provide a detainee with a lawyer in preparation of seeking a conviction or whether to proceed with an interrogation in order to collect intelligence about a broad picture of a terrorist organization or specific plot.
“That doesn’t mean we torture them,” Heymann said. “It means to forget about offering a lawyer, if that’s required, even though that means we would not use any statement at trial.” Acquiring information intended for use when trying a detainee would have to meet standards for admissibility in criminal court. “If you want to admit it in American court, it’s going to have to be noncoercive and perhaps comply with the Miranda rules,” Heymann said.
According to the official familiar with the task force’s work, who requested anonymity because the draft has not been finalized, the interrogation teams would “draw on the best and the brightest from the FBI, [Department of Justice], [Department of Defense] and other parts of the intelligence and law enforcement community,” and there were “some discussions” among task force members about whether “it would make the most sense for the FBI to take the lead,” given the FBI’s 100-year history with interrogating criminal suspects. Some task force members want the “FBI to lead but not dominate.” The official added that the CIA’s role in interrogations remained to be determined at this point in the task force’s work.
A U.S. intelligence official who requested anonymity insisted that “[the Defense Department] and CIA will continue to play a role in questioning suspected terrorists overseas.”
But the official familiar with the work of the task force said a benefit of the proposal to create the new interrogations corps is that it would use the Field Manual as a “left and right guideline” for the interrogators to plan their interrogations, rather than a manual spelling out precisely what techniques would be employed in every situation. Interrogators rarely think in terms of specific techniques, the official said, preferring to focus on how to craft an interview regimen that best exploits the leverage interrogators have on detainees.
Heymann agreed, citing the research his team has conducted for the past five years. “If we captured a major terrorist, we would bring quickly to bear what’s known about him, his organization and its possible plans, so that the interview or interrogation could be done with all the advantages of superior knowledge, which are big advantages,” he said.
Some Republican members of the Senate intelligence and armed services committees have expressed fear that the Army Field Manual on Interrogations could be turned into a manual for suspected terrorists to learn how to frustrate U.S. interrogators. During CIA Director Leon Panetta’s confirmation hearing, Sen. Kit Bond (R-Mo.), the vice chairman of the Senate Select Committee on Intelligence, extracted an assurance from that Panetta would request the president approve techniques outside the Army Field Manual if he felt they were necessary to protect national security. But the official said a literal reliance on the methods outlined in the field manual were mostly useful as “a linear basis for newly initiated personnel,” rather than the interrogator corps envisioned in the Intelligence Science Board proposal.
Vicki Divoll, a former legal adviser to the CIA’s Counterterrorist Center and general counsel for the Senate intelligence committee, said that a hybrid interrogation corps made sense given the divergent missions of the law enforcement and intelligence communities. “CIA analysts and case officers know what we need from an intelligence perspective to fill in the gaps to learn the plans, intentions and capabilities of foreign terrorists who wish us harm. But CIA’s skill set has been to get the information through the art of persuasion, not the art of coercion,” Divoll said. “FBI, on the other hand, has historically not been good at seeking or identifying information of intelligence value. They can spot ‘evidence’ that, linearly, might lead to an arrest and prosecution, but are not as adept at collecting vague bits of information that might, someday, prove useful when linked with information gleaned from other sources and methods throughout the intelligence community. The FBI is experienced at using nonviolent but aggressive techniques, within the rule of law, to elicit information from individuals who are hostile and uncooperative.”
The official familiar with the task force’s work said that the draft report would seek to ensure that “the need for actionable information is mutually compatible with requirements for an eventual court case.” While internal debate continues — the official conceded that task force members were “maybe not 100 percent unanimous” on the question — the emerging consensus was the “need for information that disrupts future [terrorist] operations and provides actionable intelligence to decisionmakers” takes primacy, though many on the panel believe that eliciting actionable intelligence and evidence suitable for a prosecution was “mutually compatible.”
The torture of certain high-value detainees during the Bush administration has bequeathed to the Obama administration a situation in which officials fear prosecutions of detainees who continue to “endanger the American people” would be compromised by inadmissible evidence, a problem that Obama, in a recent speech, called “the toughest single issue that we will face” in interrogations and detentions. The administration’s answer is to keep those individuals in prolonged detention, promising merely to “have clear, defensible, and lawful standards for those who fall into this category.” A separate task force on detentions is at work determining what those standards will be.
“This is perhaps the biggest wound that the Bush administration has inflicted on the structure of how to do these things,” said Karen Greenberg, executive director of the Center on Law and Security at New York University. “This category — those we can’t try, and can’t let go — is a heinous category.” Unless the Obama administration builds concern for the final dispensation of future terrorist captives into its new interrogation and detention architecture and “the intelligence guys work with and collaborate with the law enforcement guys,” the number of detainees in that category “will proliferate rather than come to end with the closing of Guantanamo.”
Despite the prospective reduction in the CIA’s role in interrogations, Divoll anticipated that agency officers might welcome the task force’s proposal, since it would place the CIA in a role better suited to its traditional strengths of intelligence gathering and analysis. “Career CIA officers are unlikely to view a second chair seat to FBI in the coercive interrogation process as a demotion,” she said. “I expect they will welcome the vital roles of, first, guiding the substance of the questioning of a detained terrorist suspect in the necessary direction, and, second, using the fruits of the interrogation to its greatest advantage in their all-source intelligence analysis for policymakers.”