January 15, 2010
The following article, “A Question of Interrogation,” appeared in the Winter 2010 Harvard Law Bulletin.
On Jan. 22, 2009, President Barack Obama ’91 signed an executive order mandating that individuals detained in armed conflict will “be treated humanely and shall not be subjected to violence to life and person.” The order also established a task force to determine, after years of debate over the treatment of detainees since the Sept. 11 terrorist attacks, the most appropriate way to acquire intelligence that would protect the nation.
Harvard Law School Professor Philip Heymann ’60 had an answer. And his proposal may soon become the standard for the how the United States handles interrogations to prevent future terrorist attacks.
Last summer, Heymann met with the heads of the CIA, the FBI and the Special Task Force on Interrogations and Transfer Policies to present his idea: that the government should establish “the world’s best noncoercive interrogation body,” he says. It would bring together top interrogators from the FBI, the CIA and the military who would mobilize anywhere in the world to question high-value detainees while following the standards set forth in Obama’s executive order. In addition to their own experience, the members of the interrogation teams would rely on information gleaned from our democratic allies, social science and detailed case studies. They would share what they learn by helping to train other government interviewers and those recruiting sources of information—serving as a model for how to elicit cooperation in a way that does not violate the law.
“If you wanted to credibly step away from coercion,” Heymann says, “you had to build something that was noncoercive but combined the best knowledge and the most skilled interrogators.”
Government officials agreed. In August, the Department of Justice announced plans for a High-Value Detainee Interrogation Group, whose framework reflects Heymann’s recommendation. FBI Director Robert Mueller, testifying in September before the Senate Judiciary Committee, said that he expects the group, which will be administratively housed at the FBI, will be operational by the beginning of 2010. In the meantime, he said, “there’s outreach to other persons,” including Philip Heymann, “who have done research in this area to try to bring in early the lessons learned.”
Heymann says it was the right time to consider the proposal, as the new administration seeks to forge its own path in the fight against terrorism. And, it would seem, Heymann was the right person to make the case.
A deputy attorney general in the Clinton administration and assistant attorney general in the Carter administration, Heymann has been steeped in issues surrounding terrorism for many years. His books include “Terrorism, Freedom, and Security” (2003), and “Protecting Liberty in an Age of Terror” (2005), co-written with Juliette Kayyem ’95, now assistant secretary in the U.S. Department of Homeland Security. And with Kayyem and HLS Assistant Professor Gabriella Blum LL.M. ’01 S.J.D. ’ 03, he has written “The ‘No-Law’ War: Lessons from the War On Terror,” forthcoming from MIT Press. As director of Harvard Law School’s International Center for Criminal Justice, Heymann has led an initiative focused on preserving national security and protecting civil liberties in the war on terrorism.
He points to examples of noncoercive U.S. interrogations that were successful. One was the case of the bombings of the U.S. embassies in Tanzania and Kenya, which was solved through humane and legal interrogation by the FBI, according to Heymann. In contrast, he cites the case of Mohammed al-Qahtani, who allegedly planned to be part of the Sept. 11 attacks. The convening authority of military commissions declined to refer al-Qahtani’s case for prosecution because of the harsh treatment he faced as a Guantánamo detainee.
Under the Obama administration’s plan for the High-Value Detainee Interrogation Group, priority will be given to intelligence gathering rather than law enforcement. Statements made during interrogations could still be used for prosecution as long as applicable requirements for admissibility—such as perhaps the Miranda warning—were followed.
In making a proposal for a specialized interrogation unit, the Special Task Force on Interrogations and Transfer Policies determined that the noncoercive interrogation practices outlined in the Army Field Manual are appropriate to guide the teams. Of course, some people, notably former Vice President Dick Cheney, have criticized the notion of relying on only noncoercive techniques to gain information from those intent on killing Americans, contending it heightens the threat of a future terrorist attack. The argument to employ coercion is most pronounced in “ticking bomb” scenarios, when information is needed immediately in order to save lives. Yet Heymann notes that the U.S. has not confronted such a scenario, and, even if it did, he questions whether the use of abusive techniques, such as those approved in opinions from the Bush Justice Department, would garner prompt cooperation. “They are intended to break the will over time,” says Heymann.
Juan Zarate ’97, deputy national security adviser for combating terrorism in the Bush administration and now a senior adviser at the Center for Strategic and International Studies, agrees that a ticking bomb scenario is unlikely. But while calling the concept of elite interrogation teams “an important innovation,” he says that questions remain about whether coercive interrogation short of torture should be employed in certain circumstances.
“In scenarios where you have a heightened threat environment or you have a high-value detainee who may have critical information where the Army Field Manual techniques just aren’t working in a timely fashion,” Zarate says, “the policymakers are still going to be faced with the question that the policymakers were faced with soon after Sept. 11, which is: Are there other techniques that still can be considered lawful that could be applied? I think that’s still the fundamental question that’s left unanswered even within this construct.”
In the book “Protecting Liberty in an Age of Terror,” Heymann did consider the possibility of using what he says are “somewhat coercive techniques”—short of torture or cruel, inhuman or degrading treatment—under limited circumstances. While emphasizing that the United States should always abide by its statutory and treaty obligations, he recommended an emergency exception that would allow the president to authorize lesser coercive techniques whose use would have be reported to Congress. Furthermore, these techniques could be practiced only when the president personally determined them necessary and likely to obtain information that would save lives and could not be obtained in any other way.
The exception is not tacit support for coercive interrogation, Heymann says, but would force a president to take responsibility should he choose that option—the opposite of what occurred in the Bush administration, he adds. At the same time, he does not favor prosecuting those who authorized coercive interrogations after 9/11. “I think it’s very dangerous for members of one administration to prosecute members of a prior administration for something that the supporters of the prior administration believe was proper,” he says.
Zarate notes that the environment has changed since the aftermath of the terrorist attacks—and not only because of a new president. He recalls the concern at the time that standard ways of operating were not sufficient to protect the country. As government officials attempt to set standards on detainee treatment now and into the future, they will have to decide how to preserve both our safety and the Constitution.
“Our recalibration now is not just a function of the political winds changing but also the reality that we are in a different place in terms of what we know about the enemy and the nature of the threat,” Zarate says. “I think we feel much less vulnerable in 2009 than we did on September 12, 2001, and that [reduced] sense of vulnerability and sense of knowledge of the enemy all play into our ability to competently set baselines as to how we’re going to treat these detainees and how we’re going to interrogate.”
– Lewis I. Rice