CERL is pleased to present this article (and the entire Just Security series) based on the newly-released Principles on Effective Interviewing for Investigations and Information Gathering, also known as The Méndez Principles. Named for Juan Méndez, the former UN Special Rapporteur on Torture who in 2016 called for the creation of a universal protocol for lawful and humane interviewing standards, the principles provide guidance on conducting non-coercive and rapport-based interviews with legal and procedural safeguards. CERL has been an advocate of Mr. Méndez’s call for the protocol and welcomed him as the keynote speaker at CERL’s 2018 conference on interrogation and torture.–Claire O. Finkelstein, CERL Academic Director

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The Méndez Principles: The Need to Update the Army Field Manual on Interrogation for the 21st Century, by Susan Brandon and Mark Fallon, was originally published in Just Security.

 

(Editor’s note: This article is part of a Just Security series on the newly released “Principles on Effective Interviewing for Investigations and Information Gathering,” an expert-led initiative responding to a 2016 appeal to the U.N. General Assembly by then-U.N. Special Rapporteur Juan E. Méndez to develop such standards. The series outlines the origins and the scientific, legal, and ethical underpinnings of the guidelines, also known as the “Méndez Principles” in honor of its co-chair.)

It was the perceived ineffectiveness of U.S. military interrogations at Guantanamo Bay, Cuba, in 2002 that led then-Secretary of Defense Donald Rumsfeld to justify the adoption of “enhanced interrogation techniques” that the CIA had been using on detainees at its secret “Black Sites” after the Sept. 11 attacks. The experiment failed, with enduring tactical and strategic consequences. While some policy changes have been made since then to prevent a similar descent into cruelty, U.S. military procedures still need major updates to account for the latest research, rather than relying on anecdotes or faulty intuition about what works to elicit vital, truthful information.

A growing body of results from psychological studies available now can help improve the practice of interrogation to ensure that methods employed are lawful, effective, and grounded in science. One significant source of this research stems from Executive Order 13491, signed by then-President Barack Obama on his second day in office to ensure lawful interrogations after post-9/11 revelations of interrogational abuse of detainees by U.S. personnel at Guantanamo, in Iraq, and beyond. An interagency task force was established to review the relevant policies. It quickly concluded that “the United States should engage in a concerted effort to study the effectiveness and propriety of existing interrogation practices, techniques, and strategies and should try to develop new ones that meet the requirements of domestic law and the United States obligations under international law.”

As a result, the U.S. government set up a research program under the auspices of the High-Value Detainee Interrogation Group (HIG), bringing together trained professionals from the FBI, the CIA, and the Defense Department to study and conduct lawful, non-coercive interrogations. The research program, in which we served as the first director (Brandon) and research committee chair (Fallon), has been central to disseminating relevant science. The program was made up of specialists in the areas of cognitive interviewing, social influence, negotiation, cognitive task analysis methods, credibility assessment, strategic use of evidence, and analyses of U.S. police interrogation methods. As a result, today we know much more about what works to elicit accurate and reliable information from both cooperative and reluctant interviewees.

The HIG also worked to disseminate this empirically-based knowledge, and in 2012 designed a one-week training course incorporating the research into several decades of psychological science. It offers instruction on decision-making and cognitive biases, building and maintaining rapport, tactics to elicit valid information and make strategic use of evidence or information, and strategies on how to evaluate a narrative for indicators of truthfulness. This training, although initially constructed for HIG personnel, has also been offered to many federal agencies and some local law enforcement units.

Now, it’s time to take a critical step forward to solidify the emergence of the United States from illegal, immoral, and ineffective techniques that constitute torture.

Next Step: Revise the Army Field Manual

The United States is just emerging from a deeply disturbing time in which science and truth were both under attack, and the same pertains to the issue of interrogations. Former President Donald Trump declared, “We must fight fire with fire,” and condoned the use of waterboarding as an interrogation tactic. Fortunately, the 2006 Army Field Manual (AFM) 2-22.3 on “Human Intelligence Collector Operations” specifically prohibits that kind of abuse and became the law of the land before Trump took office.

The 2016 Congressional National Defense Authorization Act (NDAA) included what is known as the McCain-Feinstein Amendment. It stated that anyone who is in the “effective control” of any agent of the U.S. government or detained within a facility that is “owned, operated, or controlled” by it must not be “subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in the Army Field Manual.”

Yet, even as a new U.S. administration declares its dedication to elevating science, that Army Field Manual and other military documents that reference interrogation still often direct or recommend actions that aren’t based on scientific evidence about what works. One example is one of 19 interrogation tactics listed in the above AFM 2-22.3:

Silent. (Interrogation) The silent approach may be successful when used against either a nervous or confident source. When employing this technique, the HUMINT collector says nothing to the source, but looks him squarely in the eye, preferably with a slight smile on his face. It is important not to look away from the source but force him to break eye contact first. The source may become nervous, begin to shift in his chair, cross and re-cross his legs, and look away. He may ask questions, but the HUMINT collector should not answer until he is ready to break the silence. The source may blurt out questions such as, “Come on now, what do you want with me?” When the HUMINT collector is ready to break silence, he may do so with questions such as, “You planned this operation for a long time, didn’t you? Was it your idea?” The HUMINT collector must be patient when using this technique. It may appear the technique is not succeeding, but usually will when given a reasonable chance.

Although listening well – which includes being silent – is an interrogation tactic that is backed by science, there is nothing else about the tactic as described here that is anything other than anecdote-based.

In fact, almost none of the AFM interrogation tactics have been systematically assessed in controlled studies – the only conditions in which causal relationships may be inferred – nor have they been validated in field tests. The exceptions are two laboratory studies that compared clusters of tactics with each otheronly one of which was published). The results of these studies were relatively inconclusive, although there was some support for the proposition that positive emotion-based approaches (e.g., Emotional Love, Emotional-Pride and Ego-Up) were more successful than negative emotion-based approaches (e.g., Emotional Hate, Emotional-Pride and Ego-Down). Previous reviews of the AFM have noted that some of the approaches are inconsistent with current science, and many science-based strategies and techniques that have been shown to be effective are not offered in the manual.

A Comprehensive Review

Secretary of Defense Lloyd J. Austin III should convene a panel of independent experts to conduct a comprehensive review of the AFM to ensure that the interrogation methodologies employed are informed by current science and that they fall within the expert-led guidance put forward in the new Méndez Principles on Effective Interviewing.

Of particular concern is the “separation” technique found in Appendix M of the above AFM. The purported purpose “is to deny the detainee the opportunity to communicate with other detainees in order to keep him from learning counter-resistance techniques or gathering new information to support a cover story; decreasing the detainee’s resistance to interrogation.” However, this specifically allows for physically separating detainees for renewable 30-day periods or using blindfolds and other stimuli-blocking equipment to create a sense of separation for renewable 12-hour periods. Beyond the goals mentioned above, it is meant to “foster a feeling a futility” and “prolong the shock of capture.” The U.N. Committee Against Torture has expressed real concern over this technique, as it could be interpreted to permit illegal methods such as prolonged solitary confinement and sleep and sensory deprivation. It is time for a thorough review of this tactic.

In fact, the McCain-Feinstein Amendment included a specific directive that “the Secretary of Defense…shall complete a thorough review of Army Field Manual 2-22.3, and revise [it] as necessary to ensure that [it] complies with the legal obligations of the United States and the practices for interrogation described therein do not involve the use or threat of force.” This gives the Biden administration the authority it needs to make the changes needed.

Current U.S. leaders in office understand how essential accurate and reliable information is to the intelligence cycle. President Joe Biden has declared that “each of us has a duty and responsibility as Americans, especially as leaders, to defend the truth and defeat the lies.” We agree. It is past time to pull the AFM into the 21st century.

About the Authors

Susan Brandon

Susan E. Brandon, Ph.D., is a consultant to industry and the U.S. government on science-based investigative interviewing techniques. She served for eight years as the Research Program Manager for the U.S. government’s High-Value Detainee Interrogation Group (HIG). She previously was at the Department of Defense, the National Institutes of Health, and the White House Office of Science and Technology Policy.

Mark Fallon

Mark Fallon (@glynco) served on the Steering Committee overseeing the development of the “Principles on Effective Interviewing for Investigations and Information Gathering,” and is past-Chair of the High Value Detainee Interrogation Group (HIG) Research Committee. He is author of the book “Unjustifiable Means: The Inside Story of How the CIA, Pentagon and US Government Conspired to Torture” (Regan Arts, 2017), and co-editor and contributor for “Interrogation and Torture: Integrating Efficacy with Law and Morality” (Oxford University Press, 2020).

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CERL is grateful to Steven J. Barela, Senior Research Fellow at the University of Geneva in the Global Studies Institute, for his work in the publication of these articles on The Rule of Law Post. This work, which includes serving as Editor leading the Chairpersons’ Editorial Group of the Méndez Principles initiative, is supported by the Swiss National Science Foundation.

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