On Prisoner Treatment and Interrogation
Matthew Alexander, former senior military interrogator in Iraq, says the abuse and torture of prisoners hurt the U.S. by giving up the moral high ground. He says the policy also helped al-Qaeda recruit and very likely slowed the effort to find bin Laden.
‘The Dumbest Terrorist In the World’?
Businessweek has a story quoting a former federal prosecutor in Brooklyn, Michael Wildes, speculating that Faisal Shahzad, the would-be Times Square bomber, made so many mistakes (leaving his house keys in the car, not knowing about the vehicle identification number, making calls from his cellphone, getting filmed, buying the car himself) that he may be the “dumbest terrorist in the world.” But Wildes can’t accept the idea that an al Qaeda type terrorist would be so incompetent and suggests that Shahzad was “purposefully hapless” to generate intelligence about the police reaction for the edification of his buddies back in Pakistan.
Give me a break. This incompetence is hardly unprecedented. Three years ago Bruce Schneier wrote an article titled “Portrait of the Modern Terrorist as an Idiot,” describing the incompetence of several would-be al Qaeda plots in the United States and castigating commentators for clinging to image of these guys as Bond-style villains that rarely err. It’s been six or seven years since people, including me, started pointing out that al Qaeda was wildly overrated. Back then, most people used to say that the reason al Qaeda hadn’t managed a major attack here since September 11 was because they were biding their time and wouldn’t settle for conventional bombings after that success. We are always explaining away our enemies’ failure.
The point here is not that all terrorists are incompetent — no one would call Mohammed Atta that — or that we have nothing to worry about. Even if all terrorists were amateurs like Shahzad, vulnerability to terrorism is inescapable. There are too many propane tanks, cars, and would-be terrorists to be perfectly safe from this sort of attack. The same goes for Fort Hood.
The point is that we are fortunate to have such weak enemies. We are told to expect nuclear weapons attacks, but we get faulty car bombs. We should acknowledge that our enemies, while vicious, are scattered and weak. If we paint them as the globe-trotting super-villains that they dream of being, we give them power to terrorize us that they otherwise lack. As I must have said a thousand times now, they are called terrorists for a reason. They kill as a means to frighten us into giving them something.
Strategic Terrorist Interrogation
The cover story of this month’s National Interest focuses on different approaches to terrorist interrogation. Matthew Alexander, former senior military interrogator and author of How to Break a Terrorist: The U.S. Interrogators Who Used Brains, Not Brutality, to Take Down the Deadliest Man in Iraq, profiles Colonel Tito Karnavian, the chief of intelligence for Detachment 88, Indonesia’s premier counterterrorist force. Karnavian’s approach to interrogation is strategic, as opposed to the tactical scenarios that dominate the debate in America.
The goal of the interrogators is not intelligence information that can prevent future terrorist attacks, but the conversion of the extremists into advocates against violent jihad. Interrogators have, de facto, become the primary facilitators of rehabilitation. In this manner, Karnavian has turned a tactical weapon into strategic leverage, and the results speak for themselves.
Following the implementation of Karnavian’s interrogation strategy, Indonesia did not have a terrorist bombing for almost the entire three years between 2006 and 2009, no doubt chalked up to the cooperation of numerous imprisoned extremists. Two former senior JI members captured by Detachment 88 have since written books admitting their erroneous violent beliefs. One book was a national best seller in Indonesia. In comparison, U.S. interrogation strategy, although improved since the revelations of torture and abuse at Abu Ghraib in 2005, is in the Stone Age.
Wars, Crimes, and Underpants Bombers
I’ve been meaning to follow up on Gene Healy’s post from last week on the interrogation and prosecution of terror suspects. I share Gene’s bemusement at the howls emanating from Republicans who have abruptly decided that George Bush’s longstanding policy of dealing with terrorism cases through the criminal justice system is unacceptable with a Democrat in the White House. But I also think it’s worth stressing that the arguments being offered — both in the specific case of Umar Farouk Abdulmutallab and more generally — aren’t very persuasive even if we suppose that they’re not politically motivated.
Two caveats. First, folks on both sides would do well to take initial reports about the degree of cooperation terror suspects are providing with a grain of salt. For reasons too obvious to bother rehearsing, investigators won’t always want to broadcast accurately or in detail the precise degree of cooperation a suspect is providing. Second, as Gene noted, given that it seems unlikely we’ll need to use Abdulmutallab’s statements against him at trial, the question of whether the civilian or military system is to be preferred can be separated from the argument about the wisdom of Mirandizing him. That said, the facts we have just don’t seem to provide a great deal of support for the conclusion that, warning or no, criminal investigators are somehow incapable of effectively questioning terrorists.
Certainly if you ask veteran FBI interrogators, they don’t seem to share this concern that they won’t be able to extract intelligence their military counterparts would obtain. You might put that assessment down to institutional pride, but it’s consistent with the evidence, as the FBI has had impressive successes on this front already. And if you don’t want to take their word for it, you can always ask Judge Michael Mukasey who, before becoming attorney general under George W. Bush, ruled that military detainees were entitled to “lawyer up” — as critics of the Bush/Obama approach are wont to put it — explicitly concluding that “the interference with interrogation would be minimal or nonexistent.”
Holder on the Hot Seat
Today Politico Arena asks:
Terror suspects: Eric Holder’s defense (nothing new here)–agree or disagree?
My response:
Manhattan Says No to Terror Trials
Today, Politico Arena asks:
Terror trials: Is it time for the administration to retreat and rethink? Is it generally mishandling the terrorism issue?
My response:
On no issue is President Obama getting acquainted with reality more clearly than terrorism, or so it seems. He blazed into office, guns holstered, as the anti-Bush, putting Eric Holder’s Justice Department in charge, not of the War on Terror, a phrase he banished from his administration’s lexicon, but of “bringing those who planned and plotted the [9/11] attacks to justice,” as Holder put it in November when he announced that Khalid Sheikh Mohammed and four others would be given civilian trials in downtown Manhattan. But as the manifold costs of such a trial became increasingly apparent, and as even New York Democrats have grown increasingly restive, the White House, it seems, has backed down. We await the line of congressmen saying “Bring the trial to my district.”
How could it be otherwise? The administration’s law-enforcement approach to terrorism has been unserious and folly from the start. In an understated yet devastating piece in yesterday’s Washington Post, former CIA director Michael V. Hayden cataloged that folly, nowhere more evident than in the FBI’s handling of the would-be Christmas Day bomber, who was Mirandized and lawyered up long before he could be seriously interrogated by agents with the background to elicit the intelligence we need — not to prosecute terrorists, but to prevent future terrorist attacks. The most telling revelation in Hayden’s piece came at the end, however. In August, the government unveiled its High Value Detainee Interrogation Group (HIG) designed to interrogate people like the Christmas Day bomber, and it announced also that the FBI would begin questioning CIA officers about alleged abuses in the 2004 inspector general’s report. Was the HIG called in to interrogate the Christmas Day bomber? No — it has yet to be formed. But the interrogations of CIA officers are proceeding apace. So much for the administration’s priorities. Is it any wonder that Scott Brown’s pollsters report that terrorism, and the administration’s mishandling of the issue, polled better even than Brown’s opposition to ObamaCare?
State Secrets, State Secrets Are No Fun
Despite Barack Obama’s frequent paeans to the value of transparency during the presidential campaign, his Justice Department has incensed civil liberties advocates by parroting the Bush administration’s broad invocations of the “state secrets privilege” in an effort to torpedo lawsuits challenging controversial interrogation and surveillance policies. Though in many cases the underlying facts have already been widely reported, DOJ lawyers implausibly claimed, not merely that particular classified information should not be aired in open court, but that any discussion of the CIA’s “extraordinary rendition” of detainees to torture-friendly regimes, or of the NSA’s warrantless wiretapping, would imperil national security.
That may—emphasis on may—finally begin to change as of October 1st, when new guidelines for the invocation of the privilege issued by Attorney General Eric Holder kick in. Part of the change is procedural: state secrets claims will need to go through a review board and secure the personal approval of the Attorney General. Substantively, the new rules raise the bar for assertions of privilege by requiring attorneys to provide courts with specific evidence showing reason to expect disclosure would result in “significant harm” to national security. Moreover, those assertions would have to be narrowly tailored so as to allow cases to proceed on the basis of as much information as can safely be disclosed.
That’s the theory, at any rate. The ACLU is skeptical, and argues that relying on AG guidelines to curb state secrets overreach is like relying on the fox to guard the hen house. And indeed, hours after the announcement of the new guidelines—admittedly not yet in effect—government attorneys were singing the state secrets song in a continuing effort to get a suit over allegations of illegal wiretapping tossed. The cynical read here is that the new guidelines are meant to mollify legislators contemplating statutory limits on state secrets claims while preserving executive discretion to continue making precisely the same arguments, so long as they add the word “significant” and jump through a few extra hoops. Presumably we’ll start to see how serious they are come October. And as for those proposed statutory limits, if the new administration’s commitment to greater accountability is genuine, they should now have no objection to formal rules that simply reinforce the procedures and principles they’ve voluntarily embraced.
How Much for a Schlub?
Over at The Corner, Rich Lowry put up a post on detainee interrogations that I responded to. Follow-up posts are available here and here.
Jay Nordlinger steps in to offer the view that, with terrorists, the difference between a “schlub” and a “monster” isn’t much. A pathetic radical can cause a lot of damage with just a little bit of luck.
This may be true, but there is a valuable ends-means calculation that must be considered (also addressed in Julian Sanchez’s post here).
How many times must we use coercive interrogation and get nothing, suffering the inevitable backlash in public opinion and enemy recruiting, for each intelligence success? If you are willing to torture a dozen/hundred/thousand men for each schlub, you will motivate a sufficient number of monsters to make a small tactical victory a pyrrhic one at best, and a strategic debacle at worst.
The big picture trends against torture, or any use of force that crosses the line between mutual combat and violating human rights, or the use of indiscriminate force. The attack on September 11, 2001 crossed that line, and we justifiably responded with military action. The use of “enhanced interrogation techniques” (EIT’s) crossed that line, and the enemy used it as propaganda fodder.
The British faced a parallel situation in Northern Ireland in 1971. After employing mass arrests that stoked the fires behind the IRA, the Brits employed “special interrogation techniques.” Former FBI Special Agent and successful terrorist group infiltrator Mike German covers this in his book, Thinking Like a Terrorist (citing Armed Struggle: The History of the IRA):
Among the methods used on the internees were the “five techniques”: placing a hood over the head; forcing the internee to stand spreadeagled against a wall for long periods; denying regular sleep patterns; providing irregular and limited food and water; and subjecting people to white noise in the form of a constant humming sound.
Sound familiar? Violence in Northern Ireland increased as a result of these practices. The Brits crossed the line again on Bloody Sunday when they fired into a crowd of peaceful protestors (possibly a response to IRA gunfire at British paratroopers). The tide shifted in favor of the IRA until they broke the unwritten rules of the game on Bloody Friday, detonating twenty-two bombs in Belfast that killed nine people. Tactically masterful, but a political disaster.
The Bush administration changed tactics in its second term in office, discarding EIT’s and moving away from physical coercion of detainees. This was a sensible decision, and there is no reason for the Obama administration to change course.
Lowry and Interrogation
Veronique de Rugy put up a post at The Corner referencing Rich Lowry’s defense of “enhanced interrogation techniques” and my response. Rich has since responded.
With regard to the apprehension of Uzair Paracha, an Al Qaeda facilitator in New York, it seems likely that the apprehension of Majid Khan in Pakistan four days after Khalid Sheikh Mohammed’s (KSM) apprehension came from material picked up with KSM and not from interrogation. The key here is that when Majid Khan was in Pakistan, Paracha was pretending to be Majid Khan in communications with immigration officials. Detective work was probably what brought this guy under the microscope.
However, I’m willing to lay that aside because, as Rich points out, there is probably more to the story that shouldn’t be declassified. As I said on Bill O’Reilly’s show, we cannot end this argument until we have declassified all of the dead ends we pursued, which has some serious strategic drawbacks. The CIA recently asserted in court that it cannot reveal any more without compromising sources and methods.
Rich also says that my preferred method of interrogation is “dangling the promise of reduced sentences.”
This is not my preferred method, but it is one that ought to be available to interrogators. Under the Army Field Manual, an interrogator cannot promise anything in the court system. As Matthew Alexander points out in his book, the Iraqi Central Criminal Court has the death penalty attached to almost all of what we consider “material support of terrorism.” I am saying that the Prisoner’s Dilemma is an effective tool if a lesser included offense is on the table so that the first to squeal gets a few years and the others get the noose.
But let’s not discount the lawful interrogation techniques. When I attended SERE, the psychological techniques were far more compelling than the physical ones. We were all young and tough, but the mind tricks that turned brothers in arms against each other were downright disturbing.
A Transparent Inquiry: The Only Way Forward
How could a country that claims to abide by principles like constitutional government and the rule of law do anything other than investigate credible claims of official abuse?
News that Attorney General Holder will appoint a prosecutor to investigate such claims will only surprise or upset people who have lost track of our national values.
CIA Director Leon Panetta doesn’t help the cause by issuing a statement to the CIA staff saying, “America is a nation at war.” Whether we are or not, that lullaby-in-reverse — reassuring CIA staff with a poke at the panic button — would seem to ratify expediency over professionalism.
A Terrorist We Should Have Prosecuted
Andy McCarthy makes a good point over at The Corner about Laith al-Khazali, a member of a Shiite militant group responsible for the deaths of American troops in Iraq. Al-Khazali has been released, allegedly as part of negotiations with terrorists holding British hostages. Senators Sessions and Kyl have questioned this action in a letter to President Obama.
McCarthy lays out the facts on al-Khazali here. Al-Khazali participated in a sophisticated attack on American troops in Karbala. The militants wore American uniforms and took American soldiers hostage. After leaving the site of the attack, the militants executed their prisoners.
Though I have disagreed with McCarthy on other issues, he makes a valid point here.
Al-Khazali is guilty of honest-to-goodness war crimes.
Wearing an enemy’s uniform for infiltration is permissible. Wearing an enemy’s uniform while shooting at them is perfidy, a prosecutable war crime.
Otto Skorzeny, head Nazi commando, was acquitted of perfidy after World War II. Skorzeny’s men had infiltrated American lines during the Battle of the Bulge while wearing American uniforms. They avoided firing at American troops while in our uniforms, though in two instances fired at American troops in self-defense. British commando Forest Frederick Edward Yeo-Thomas testified for the defense, saying that he had infiltrated German lines in a German uniform. W. Hays Parks provides an excellent discussion of special operations soldiers’ use of non-standard uniform and the legal boundaries of this issue here. Al-Khazali crossed the line by wearing an American uniform while firing at our soldiers.
Killing enemy soldiers after they are in your custody is also a prosecutable war crime. We prosecuted German soldiers for doing this in the Malmedy Massacre, and have prosecuted our own soldiers for killing prisoners. We have even prosecuted contractors for killing prisoners on the battlefield and during interrogation.
Al-Khazali deserves to be brought to justice. It is a shame we did not provide it.
Bierfeldt v. Napolitano Roundup
Back on March 29th, Campaign for Liberty employee Steven Bierfeldt was leaving the Campaign’s regional conference in St. Louis, Missouri. He was carrying $4700 in cash donations and Campaign for Liberty and Ron Paul literature. TSA personnel at the St. Louis airport felt that carrying this amount of cash was “suspicious” and detained him for interrogation. The TSA personnel intended to take Bierfeldt to the local police station for further questioning after he refused to answer the questions associated with their fishing expedition. Luckily, a plainclothes officer arrived and spoke briefly with one of the TSA officers, who told Bierfeldt that he was free to go.
Bierfeldt is now filing suit against Secretary of the Department of Homeland Security Janet Napolitano. The ACLU Blog of Rights has more on the suit, including a digital copy of the complaint. Filing suit to prove that “[c]arrying $4700 in cash poses no conceivable threat to flight safety” is a sign that airport screening is going too far.
Bierfeldt was right to be wary of airport screening while carrying Ron Paul and Campaign for Liberty literature. The Missouri Information Analysis Center, one of 70+ “fusion centers” in the nation, had just released its report on domestic terrorism and the militia movement. Libertarians are expressly targeted as potential domestic terrorists:
Cato recently held a forum on this phenomenon, Fusion Centers: Domestic Spying or Sensible Surveillance? My colleague Tim Lynch hosted, and panelists included Bruce Fein, Constitutional Attorney, The Lichfield Group; Harvey Eisenberg, Chief, National Security Section, Office of United States Attorney, District of Maryland; and Michael German, Policy Counsel, American Civil Liberties Union. Audio and video are available at the link.
Mike German has written extensively on this topic. Read his November 2007 report, What’s Wrong with Fusion Centers and July 2008 update. Mike is a former FBI agent and author of the excellent book, Thinking Like a Terrorist.
You can watch Mr. Bierfeldt giving his side of the story to Judge Andrew Napolitano (no relation to Homeland Secretary Janet Napolitano) on Fox’s Freedom Watch.
Judge Napolitano recently spoke at the Cato book forum, Dred Scott’s Revenge: A Legal History of Race and Freedom in America. Co-panelists included my colleague Jason Kuznicki and Reason‘s Damon Root.
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