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Law Enforcement and Military Intelligence: Closer & Closer

To build on one aspect of Daphne’s post, there was an interesting debate during the July 7 Senate hearing on military commissions about the degree to which it was feasible to expect soldiers on the battlefields of Afghanistan to consider the courtroom admissibility of statements they extract from detainees they take. The general consensus was that such an expectation is a category error. When a soldier raids a house, points a rifle at a suspected insurgent and asks where the IEDs are, that’s “inherently coercive,” said Vice Adm. Bruce MacDonald, the Navy’s judge advocate general, and therefore inadmissible.

But a new study wonders whether military intelligence operations in a counterinsurgency context is really so different from law enforcement. Admittedly, this isn’t about point-of-capture concerns, which the July 7 panel grappled with, but Gretchen Peters’ piece for the new edition of The CTC Sentinel, the publication of West Point’s Combating Terrorism Center, is still a case study in how applied counterinsurgency is eroding an old distinction. (Unfortunately it’s not online yet, but check out the Sentinel’s website in the coming days.)

Peters, a former Associated Press reporter with extensive experience in Afghanistan, writes that soldiers are increasingly considering the actions of the Taliban-led insurgency to “more closely resemble the mafia than a traditional military force.” And if the point of counterinsurgency is to cleave a population from a rebel faction through protecting its security, then there’s some reason to propose, as Peters does, that soldiers take cues from police work in patrolling a beat and acquiring intelligence leading to the takedown of certain insurgent targets. She suggests that soldiers study the Army Field Manual on Interrogations’ approaches to building rapport with interrogation subjects and learning through close contact with a given area about who represents reliable sources of information. Peters ends with this pungent quote:

“Soldiers don’t join the military because they want to become cops. I understand that,” said one law enforcement adviser. “But this model works. We need to retrain our troops for this model and lose the mentality that they are someday going to be landing on Omaha Beach.”

Peters doesn’t get into the legal implications of her study. But if counterinsurgency operations move soldiering closer in the direction of law enforcement, it’s worth asking what that implies for the courtroom admissibility of evidence collected from such operations.

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