My colleague, Amos Guiora, director of the Institute for Global Security Law and Policy at Case thinks that too little attention has been paid to the precise limits of interrogation techniques that can be used on terrorist suspects. "Elusive concepts are a recipe for disaster," he argues, so it is necessary to engage in a difficult (and unpleasant) line-drawing effort. This issue is not only a question of morality, but also has practical legal implications for those on the front-line of counter-terror efforts.
Amos had an op-ed in yesterday's Cleveland Plain Dealer outlining his view of the proper boundaries for the interrogation of terrorist suspects. Here's an excerpt:
So what is coercion in the context of interrogating terrorists? On one extreme, it precludes torturing the terrorist. Torture is illegal, immoral and does not lead to actionable intelligence.Amos' perspective is no-doubt influenced by his 19 years in the Israeli Defense Forces, where he had far more direct experience with counter-terrorism operations than anyone else I have seen expound on this topic. He has devoted years to thinking about these issues, and understands (in away that most academics do not) the practical implications of different policies and approaches. These are not just abstract moral questions, and the answers have real-world consequences.
On the other hand, interrogators must be able to obtain critically needed intelligence to be given to commanders whose mission it is to prevent future attacks. Furthermore, interrogation is necessary as admissible evidence; the result of a lawful interrogation is required for trying terrorists.
To that end, interrogators may subject terrorist suspects in the interrogation setting to the following lawful measures: 1) disruption of the sleep cycle; 2) sitting in uncomfortable positions; 3) playing loud, annoying music; 4) placing a hood, for disorientation purposes, over their heads; 5) modulating the room temperature.
Implementation of these five measures requires both written guidelines and authorization by senior officials. Accountability and command responsibility are absolute requirements.
As I understand Amos' view, he believes techniques that disorient a suspect are acceptable (if done pursuant to clear guidelines), but anything that would cause actual physical or psychological harm is off limits. Does Amos strike the right balance? I am not sure. On the one hand, I do not believe foreign terrorist suspects are entitled to the same treatment as criminal suspects. On the other hand, I am uncomfortable with the prospect of subjecting innocents who are wrongly detained to such techniques -- which can be significantly more severe than the above description might suggest. It is easy to proclaim one's opposition to "torture." It is more difficult to delineate those interrogation techniques that should or should not be allowed in the counter-terrorism context, especially once one gets beyond the extreme hypotheticals (ticking bombs, etc.) found more often on the set of "24" than in the real world. I find this to be a difficult question (as, I gather, do those who make broad pronouncements on the issue without engaging in the particulars), so I appreciate the perspectives of those, like Amos, who have wrestled with these questions in a real-life context.