In late 2004, the author was invited to brief the staff of the Director, Operational Test and Evaluation, Office of the Secretary of Defense. The following written version of that oral presentation was posted to MILINET and appeared on the "Center for Defense Information," "American Thinker," and other web sites. POSTSCRIPTS were added to this piece on 23 April 2009, 14 May 2011, and 14 December 2014.
31 May 2005
The Use Of "Torture" In Interrogations
Anthony F. Milavic
Major, United States Marine Corps (Retired)
INTRODUCTION
In Every War But One (1)“In every war but one that the United States has fought, the conductof those of its servicemen who were captured and held in enemy prisoncamps presented no unforeseen problems to the armed forces and gaverise to no particular concern in the country as a whole . . .
That one war was the Korean War.”
Some 50 years later, it is the conduct of U. S. servicemen and women toward those they have captured that has caused “concern in the country”: the case of LTC West firing a pistol during the interrogation of a detainee in August 2003, photographs of nude men from the Abu Ghraib prison, reports of Afghans and Iraqis dying while in U.S. custody, etc. Overarching and amplifying these events, there has been an almost worldwide accusation that: “Americans are torturing detainees!” In the arena of public opinion all these events have been called “torture” even though many of these acts were of a lesser intensity and should be categorized as coercion or physical/mental abuse. Accordingly, this essay looks at these acts as “torture” through the prisms of some legal imperatives, the effectiveness of torture, why some resort to torture, trained interrogators, and a closing comment.
The United States Congress ratified both the Third and Fourth Geneva Conventions thereby compelling the U. S. Armed Forces to comply with their strictures. The Third Geneva Convention, which covers prisoners of war, contains the following proscription within Article 17:
No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.” (2)
The Fourth Geneva Convention, which covers “the Protection of Civilian Persons in Time of War” from the occupying power has less precise rules on interrogation but Article 31 still bans all "physical or moral coercion" to obtain information. (3)
Soon after 9/11, there was some confusion as to who was a Prisoner of War and/or protected by these Conventions. That was quickly put to rest with the 7 February 2002 memorandum “Humane Treatment of al Qaeda and Taliban Detainees” from President Bush that directs, in part:
“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. As a matter of policy, the U.S. armed forces shall continue to treat detainees humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.” (4)
Regardless of where you place the threshold between torture and coercion, they are both banned by the Third and Fourth Geneva Conventions and anathema to President Bush's order to “treat detainees humanely.”
In addition to being illegal, these acts are frequently ineffective and counter-productive. The Romans threatened the early Christians with crucifixion, being burned at the stake, or being fed to wild animals if they did not reject their new religion and embrace the many gods of Rome: Thousands chose death. Joan of Arc was tried before an ecclesiastical tribunal accused of witchcraft and heresy because she claimed to be guided by divine voices. She was told to admit that she heard no such voices or be burned at the stake: She was not dissuaded by death. William Wallace, of "Braveheart" popularity, was hanged, drawn and quartered because he refused to swear allegiance to King Edward I. The threat of certain and excruciating death was ineffective in dissuading them and their deaths had effects unanticipated by their executioners: the slaughter of Christians contributed to the conversion of Rome to Christianity; Joan of Arc is widely remembered today while few remember the name of the French king she served and who contributed to her demise; and, the death of William Wallace invigorated the Scots to successively eject the English from Scotland.
Also, coercive techniques have a high probability of prompting false information and, at times, causing the unintended death of the detainee; for example:
1) "The barbarous custom of having men beaten who are suspected of having important secrets to reveal must be abolished. It has always been recognized that this way of interrogating men, by putting them to torture, produces nothing worthwhile. The poor wretches say anything that comes into their mind and what they think the interrogator wishes to know.--Napoleon Bonaparte (5)
2) Four days after the war started and two days after he was captured, an American lieutenant was heard broadcasting over Seoul radio on behalf of the Democratic People's Republic of [North] Korea. He was followed by others making similar statements and even confessions of using germ warfare weapons. It wasn't long before a journalist explained what was happening to them: “Americans are being brainwashed in Korea.” Although these men were not “tortured”--as defined at the time by the U.S. Army: “the application of pain so extreme that it causes a man to faint or lose control of his will”--they were coerced and abused into saying what the Koreans/Chinese wanted them to say. (6)
3) During the Vietnam War, Americans were, in the most profound sense of the word, tortured into making confessions of using bacteriological weapons against the North Vietnamese and other acts considered to be criminal by the world community: statements the Americans knew were false.
4) According to the Innocence Project at the Benjamin N. Cardozo School of Law, Yeshiva University, duress, coercion, and violence (threatened or performed) have led innocent Americans to confess to crimes they did not perpetrate. The Project reports that, “33 of the first 123 postconviction DNA exonerations involve false confessions or admissions.” (7)
5) On 27 May 2004, The New York Times reported that on 30 August 2003, LTC Alvin B. West, an artillery battalion commander, detained an Iraqi police officer named Yehiya Kadoori Hamoodi for interrogation because West believed the officer knew about a “plot to ambush him and his men.” West “made a calculated decision to intimidate the Iraqi officer with a show of force . . . [even though he previously] had never conducted or witnessed an interrogation.” The Interrogation of Hamoodi, that included hitting him and threatening his life, failed to produce the desired answers. West then fired his pistol next to his head. Hamoodi gave West the names of several men who were purportedly involved in an effort to kill him. One man was picked up and shortly thereafter released; none of the named men were determined to be involved in the so-called plot. Later, “Mr. Hamoodi said that he was not sure what he told the Americans, but that it was meaningless information induced by fear and pain.”
6) According to a 12 June 2004 Navy Times story, two Marines, during “motion hearings” held on 28 & 29 June 2004, faced charges in connection with the death of Nagem Sadoon Hatab, a 52-year-old Baath party member who was being held in a makeshift detention center outside Nasiriya. Allegedly, Hatab had been struck and kicked on 4 June 2003 and the following day was lethargic and had defecated on himself. On 6 June, he was found dead.
As these examples show, the use of torture and/or abusive techniques frequently fails to elicit the desired response, at times produces a false response, and can result in the death of a potential source of information: A dead source is no source of information!
Practitioners of torture have frequently been described as being antisocial, bullies or products of a culture of violence. There is evidence supporting the assertion that even “normal” persons will, under certain circumstances, resort to the torture or abuse of others; for example:
1) In the summer of 1991, Stanford University conducted a psychology experiment in prison life. College students that had been screened for normalcy were broken down into two groups--one of prisoners and the other guards--and placed in a prison environment for a scheduled two weeks. According to Stanford University, the experiment “had to be ended prematurely after only six days because of what the situation was doing to the college students who participated. In only a few days, our guards became sadistic and our prisoners became depressed and showed signs of extreme stress.” In other words, people given extraordinary power quickly turn sadistic. (8)2) On 1 June 2004, the Washington Post reported that: “On May 1, a U.S. Army investigator took the stand in a criminal proceeding in Baghdad against one of the seven military police soldiers charged in the Abu Ghraib prison scandal. There was, he said, 'absolutely no evidence' that military intelligence officers or the military police chain of command had authorized the abuse to aid interrogations. 'These individuals were acting on their own,' said Army special agent Tyler Pieron, who investigated the case for the Criminal Investigation Division. 'The photos I saw, and the totality of our interviews, show that certain individuals were just having fun at the expense of the prisoners. Taking pictures of sexual positions, the assaults and things along that nature were done simply because they could.'”
3) Lastly, MG Antonio Taguba, USA, was tasked with investigating reports of improprieties at detention facilities in Iraq. Conclusion #1 of his report entitled, “ARTICLE 15-6 INVESTIGATION OF THE 800th MILITARY POLICE BRIGADE,” reads:
“Several US Army Soldiers have committed egregiousgrave breaches of international law at Abu Ghraib/BCC andCamp Bucca, Iraq. Furthermore, key senior leaders in both the800th MP Brigade and the 205th MI Brigade failed to complywith established regulations, policies, and command directivesin preventing detainee abuses at Abu Ghraib (BCCF) and atCamp Bucca during the period August 2003 to February 2004.”
During his appearance before the Senate Armed Services Committee on 8 June 2004, MG Taguba said the root of the problem was, “Lack of discipline, no training whatsoever and no supervision.”
Certainly, torture is not the sole property of loose canons. This technique is also advocated by those who believe it is the right thing to do. On 21 Oct. 2001, Walter Pincus reported in the Washington Post that FBI agents were becoming frustrated in their efforts to glean information from terrorist suspects and said, “it could get to the spot where we could go to pressure.” On 23 Jan. 2002, CBS' “60 Minutes” aired two Mike Wallace interviews for a segment on torturing terrorists during interrogation-1) French Maj. Gen. Paul Aussaresses and 2) Harvard law professor Alan M. Dershowitz:
1) Aussaresses was asked whether he would use torture to force al Qaeda suspects to talk. He answered in English and without hesitation: “It seems to me that it is obvious.” He is the author of the book, The Battle of the Casbah: Terrorism and Counter-Terrorism in Algeria 1955-1957 where he describes his use of torture against Algerian insurgents. Aussaresses had no intelligence training and his instruction in interrogation came from the Algerian Gendarmerie: "They quickly informed me that the best way to force a terrorist who refused to disclose what he knew was to torture him." Ironically, he admits, “It was the first time that I tortured anyone. But . . . the man died without talking.” The book is also replete with stories of summary executions of those who admitted to being involved with the Algerian insurgency or those who were fingered by tortured Algerians; he doesn't mention any effort to confirm an accusation before he executed the accused. Nevertheless, he justifies the use of torture by saying that it was instrumental in defeating the insurgents by 1957 even though he admits many merely withdrew to the Atlas Mountains only to return later to expedite the withdrawal of France from Algeria in 1962.
2) The self-described civil libertarian, Alan Dershowitz, published a book in 2002 entitled, Why Terrorism Works: Understanding the Threat, Responding to the Challenge. In Chapter Four, he calls for the use of “nonlethal” torture in “ticking bomb” situations. Unfortunately, he neither tells us how we can be sure that an event is imminent nor how we can be sure that the torture applied will not have a fatal result. On the surface, his recommendation of pushing needles under someone's fingernails appears to be a nonfatal technique. But, can we be sure of that in the case of an older source with a heart problem? As evidence that torture works, Dershowitz describes an event that took place in the Philippines in 1995. It seems the police captured one Abdul Hakim Murad after finding a bomb-making factory in his apartment in Manila. They beat him and broke his ribs, burned him with cigarettes, forced water down his throat, then threatened to turn him over to the Israelis. Sixty-seven days later he broke and told of terror plots to blow up 11 airliners, crash another into the headquarters of the CIA and to assassinate the Pope. Unsaid here is which of these purported plots were subsequently confirmed. Also, I find it curious that Dershowitz would argue for the use of torture in a “ticking bomb” situation based on a torture-interrogation example that took sixty-seven days to bring to fruition. According to WO Brian Copeland of the Navy/Marine Intelligence Training Course (NMITC), Dam Neck, Va., current Marine Corps interrogation doctrine is that detainee information is highly perishable and, in a tactical environment, has a shelf life of 24 to 48 hours.
It is not the purpose of this essay to demonstrate the U.S. Armed Forces' doctrinal techniques of interrogation that have been honed over the years and are known and used by both military and law enforcement agencies worldwide. But, I do feel obliged to shine a little light on some alternatives to torturing and/or abusing detainees. For the curious, I invite you to read the basic reference for trained U.S. military intelligence interrogators, FM 2-22.3 (FM 34-52) HUMAN INTELLIGENCE COLLECTOR OPERATIONS. You would also find illuminating the book: The Interrogator: The Story of Hanns Joachim Scharff Master Interrogator of the Luftwaffe. This German interrogator purportedly gleaned information from every one of the American and British fighter pilots he interrogated without ever resorting to violence. This is not surprising when you consider: FM 2-22.3 states that direct questioning “works 90 to 95 percent of the time” an observation which is consistent with my own experience. Even Gen Aussaresses admits in his book, “most of the time I didn't need to resort to torture, but only talk to people.” Trained interrogators, of course, know this--the operant words here are, “trained interrogators.”
Another precept that is foremost in the mind of a trained interrogator is that: the interrogator does not know what the source knows. Think about it! Isn't that the reason the interrogation is being conducted in the first place? This point has profound implications for those who are untrained and/or inclined to use coercion. The following is a partial extract from the 11 July 2004, New York Times Magazine article entitled, “Memoir: Interrogation Unbound,” By Hyder Akbar, as told to Susan Burton. (10) This narrative demonstrates what can happen when someone untrained in interrogation--especially this interrogation precept--attempts to interrogate a detainee:
It was a Wednesday afternoon in June 2003, and Abdul Wali was being interrogated by three Americans at their base near Asadabad, Afghanistan. I was interpreting. At the time, Wali's family guessed his age to be 28; he was 10 years older than I was. I'm 19 now. I grew up mostly in the Bay Area suburbs, but since the fall of the Taliban, I've been spending summers in Afghanistan, working alongside my father, Said Fazel Akbar, the governor of Kunar, a rural province in the eastern part of the country. It's a strange double life. I sometimes stumble into situations in which I'm called upon to act as a kind of cultural translator. It's a role that can leave me tense and frustrated, or far worse: I came away from Wali's interrogation feeling something close to despair.
On June 18, 2003, Abdul Wali visited my father's office. He knew that the Americans wanted to question him about some recent rocket attacks. He told us he was innocent, and he said he was terrified of going to the U.S. base, because there were pervasive rumors that prisoners were tortured there. My father told him that he needed to go, and he sent me along to reassure him.
A half-hour later, Wali and I were sitting across from three men I then knew only by their first names: Steve, Brian and Dave, who proved to be David A. Passaro. It was more than 100 degrees in the small room, and above us, a fan whirred wildly.
The interrogation started casually enough. In his friendly Southern accent, Brian dispensed with the nuts and bolts: have you been in contact with Taliban? Were you Taliban? Then the subject turned to Wali's recent visit to Pakistan.
“How long ago were you in Pakistan?” Brian asked.
Wali looked confused, and I doubted he'd be able to answer. People in Kunar don't have calendars; most of them don't even know how old they are.
“You don't have to give a specific date,” Brian said. “Was it two, three days ago? Two, three weeks ago? Two, three months ago?”
“I don't know,” Wali responded. “It's really hard for me to say.”
The Americans exchanged glances. I prodded him: “Can you at least say a week or two weeks or a month or two months, or something?” But he couldn't. For him, as for many of his countrymen, time unfolded forward-there was no way to go back later and try to fix it in a structure.
“I just, I go to sleep, I wake up and there's a next day,” he explained.
“I feed myself, I go to sleep and there's a next day.”
The Americans weren't buying it. Dave took over the questioning.
He asked Wali where he had been 14 days earlier, on a night when three rockets were fired at the American base. “How could you not know where you were on the night three rockets were fired?” he said. Wali explained that his nights were often punctuated by explosions.
Even seated, Dave seemed enlarged by anger. His demeanor felt put on, as if he were acting the role of a fearsome interrogator (especially in comparison to Brian, whose Southern hospitality softened even his grilling of this suspected terrorist). Dave fixed Wali with an unrelenting stare. Wali returned a nervous smile.
“Translate this to him!” Dave exploded: “This is not a joking matter! Don't smile!”
“I'm sorry, I didn't mean to offend him,” Wali replied anxiously. “It's very hard for me. I can't understand anything he's saying. He was staring at me, and I didn't know what to do. What should I do?” he asked me.
I wasn't sure how to react. Dave's behavior was unpredictable. Only days earlier, he and I had a friendly conversation about his little son, who could say his ABC's and count from 1 to 20 and back down again. But now he was acting as if he was full of rage. “If you're lying, your whole family, your kids, they'll all get hurt from this,” he threatened.
As I translated, I started to feel as if Dave's words to Wali were my own, and all I wanted to do was stop saying these things to him.
“Your situation's getting worse,” Dave warned. How was I supposed to tell that to Wali, when my father had assured him that coming to the base would make everything better?
Nobody was behaving the way they would with a regular translator; both sides added comments meant only for me. In one ear, I had Wali pleading: “I'm innocent, I'm innocent.” In the other, I had Brian dismissing his account: “That is impossible.” What was I supposed to do, argue or agree?
At some point, I announced that Wali was making personal, emotional appeals to me, and that the other translator in the room-a local Afghan employed at the base-should take over. Then I quietly tried to share my largest concern with Brian. “I'm not going to translate for this guy,” I whispered. “Look how he's acting.”
“What do you mean?” Brian replied, perhaps misunderstanding. “I'm totally calm.”
“You're calm, but look at Dave,” I said.
Brian shrugged his shoulders.
As the interrogation continued, I was relieved to be on the sidelines, but still, it wasn't easy to watch Dave browbeat Wali. Finally the questions stopped, and Wali stood facing the wall as the Americans patted him down in preparation for detention. “Is there anything you want to give to your family?” Dave asked him.
The question terrified Wali. “No, no,” he stuttered.
I approached Wali and, to calm him, put my hand on his shoulder.
“Just say the truth,” I told him, trying to sound normal. “Nothing is going to happen if you just say the truth.” Then I walked out of the room, promising myself that I'd come back and check up on him.
He died before I got the chance.
On June 17 of [2004], a federal grand jury indicted C.I.A. contractor, David A. Passaro, in connection with his assault. Passaro, the first civilian to be charged in the investigation of prisoner abuse in Iraq and Afghanistan, is accused of beating Wali using his hands, his feet and a large flashlight. Also, according to the 29 July 2004 Fayetteville (NC) Observer, Passaro is a former Special Forces medic and “was working at the U.S. Army Special Operations Command as a 'medical intelligence research analyst' when he was arrested.”
The Korean War experience prompted President Dwight D. Eisenhower to promulgate the Code of Conduct for Members of the Armed Forces of the United States by executive order. Training in the Code followed and America has been proud of the conduct of its sons and daughters while in captivity ever since. Conversely, the conduct of American servicemen, women, and CIA contract personnel on the opposite side of the captivity equation have again caused "concern in the country" as evidenced by the examples cited in this essay. The common thread connecting the above examples was the lack of training in the handling and interrogation of detainees. The conduct of those untrained personnel resulted in: an apparent failure to glean valid intelligence information; potential intelligence sources dying while in their custody; and, America's citizens and their detractors being embittered with stories that Americans practice “torture.” In this information age where TV cameras broadcast warriors' every action and warriors themselves post digital photos of intimate scenes on the Internet, the untrained are an even greater liability to the United States then ever before. It is perplexing to realize that this is not a new “Lesson Learned”; it is just one that some have not yet implemented. Years ago, General Douglas MacArthur, observed:
"In no other profession are the penalties for employing untrained personnel so appalling or so irrevocable as in the military." (11)
POSTSCRIPTS
(1) Subsequent to the posting of the above, it was revealed that a technique called, "Waterboarding" was used by the CIA on three detainees. This technique, if not "torture," certainly falls into the category of a non-traditional "harsh" technique. It has also been described as having elicited "actionable intelligence" when traditional techniques failed. The following two points appeared in the 23 April 2009 issue of the New York Times by Ali Soufan an FBI supervisory special agent from 1997 to 2005:
a) It is inaccurate, however, to say that Abu Zubaydah had been uncooperative. Along with another FBI agent, and with several CIA officers present, I questioned him from March to June 2002, before the harsh techniques were introduced later in August. Under traditional interrogation methods, he provided us with important actionable intelligence.
b) My CIA colleagues who balked at the [harsh] techniques, on the other hand, were instructed to continue. (It’s worth noting that when reading between the lines of the newly released memos, it seems clear that it was contractors, not CIA officers, who requested the use of these [harsh] techniques.)
This article is available at: http://www.nytimes.com/2009/04/23/opinion/23soufan.html?ref=opinion
(2) "Bin Laden informant's treatment key to torture debate."
http://www.reuters.com/article/2011/05/14/us-binladen-ghul-idustre74doej20110514
In a letter to McCain obtained by Reuters, CIA director Leon Panetta was equivocal about the role enhanced interrogation played in producing intelligence on bin Laden:
Some of the detainees who provided useful information about the facilitator/courier's role had been subjected to enhanced interrogation techniques," Panetta wrote. But he added: "Whether those techniques were the 'only timely and effective way' to obtain such information is a matter of debate and cannot be established definitively.
(3) "Waterboarding: A Tortured History"--Eric WeinerThis piece gives an historical perspective to Waterboarding.
(4) "SSCI: Committee Study of the Central Intelligence Agmcy's Detention and Interrogation Program"This study re-confirms that the idea to use the technique of Waterboarding applied by the CIA came from personnel who were neither trained nor experienced in the techniques of interrogation for the purpose of eliciting "actionable intelligence": Point #13 under "findings and conclusions" states,
The CIA contracted with two psychologists to develop, operate, and assess its interrogation operations. The psychologists' prior experience was at the U.S. Air Force Survival, Evasion, Resistance and Escape (SERE) school. Neither psychologist had any experience as an interrogator, nor did either have specialized knowledge of al-Qa'ida, a background in counterterrorism, or any relevant cultural or linguistic expertise.
END NOTES
1. Kinkead, Eugene, In Every War But One, New York 1959, p 15.
2. “Geneva Convention relative to the Treatment of Prisoners of War” adopted on 12 August 1949 by the Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War, held in Geneva from 21 April to 12 August 1949: Entry into force 21 October 1950. See entire text at: https://www.icrc.org/ihl/INTRO/375?OpenDocument
3. “Geneva Convention relative to the Protection of Civilian Persons in Time of War” adopted on 12 August 1949 by the Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War, held in Geneva from 21 April to 12 August, 1949: Entry into force 21 October 1950. See entire text at: https://www.icrc.org/ihl/INTRO/380
4. See entire text at: http://www2.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.02.07.pdf
5. Luvaas, Jay, "Napoleon on the Art of War," Chapter II, Preparations for War, New York 1999, p. 11. The original comment is from a letter Napoleon sent to Berthier, 11 November 1798, Corres, V, no. 3606, p. 128.
6. Kinkead, Eugene, In Every War But One, New York 1959.
9. See entire text at: http://www.au.af.mil/au/awc/awcgate/readings/code_of_conduct2.htm
11. FM 34-52 INTELLIGENCE INTERROGATION, APPENDIX G, 28 September 1992
THE AUTHOR
Major Milavic's 25-year U.S. Marine Corps career included service as: an instructor in Evasion, Escape, and Survival (EE&S), now called, Survival, Evasion, Resistance and Escape (SERE) at a USMC-level school; both an interrogator and supervisor of the conduct of combat and strategic interrogations; the principal intelligence officer of a Marine squadron, regiment, and division equivalent in combat; and, a briefer representing the Defense Intelligence Agency to the Chairman, Joint Chiefs of Staff, Secretary of Defense, and other senior military and civilian officials.