RTF(F)M.

 Posted on December 07, 2008 in Uncategorized

I try to avoid talking about the news of the day here, but sometimes the news bumps right into the Art and Science of Criminal Defense Trial Lawyering, and I can't avoid it.

You've heard about "Matthew Alexander", who led an interrogations team assigned to a Special Operations task force in Iraq in 2006 and wrote a piece for Sunday's Washington Post about his impressions and reactions to the experience:

These interrogations were based on fear and control; they often resulted in torture and abuse. I refused to participate in such practices, and a month later, I extended that prohibition to the team of interrogators I was assigned to lead. I taught the members of my unit a new methodology - one based on building rapport with suspects, showing cultural understanding and using good old-fashioned brainpower to tease out information. I personally conducted more than 300 interrogations, and I supervised more than 1,000. The methods my team used are not classified (they're listed in the unclassified Field Manual), but the way we used them was, I like to think, unique. We got to know our enemies, we learned to negotiate with them, and we adapted criminal investigative techniques to our work (something that the Field Manual permits, under the concept of "ruses and trickery"). It worked. Our efforts started a chain of successes that ultimately led to Zarqawi.

(Okay, it's no longer the news of the day, but it was when I started this post.)

The Field Manual to which Alexander refers is the U.S. Army's Field Manual on Interrogation (PDF); it contains guidelines for interrogating witnesses. Civilian and military interrogators have for many decades been getting information from people who really don't want to give it, without resorting to torture or abuse.

The problem that Alexander discovered in Iraq was that the subjects of U.S. interrogations were not being treated as witnesses, but rather as some sort of inhuman creatures. Alexander's big discovery was that terrorists are human beings too, and that interrogation techniques that work on human beings suspected of murder in Texas (for example) work also with human beings suspected of murder in Iraq. When his team started applying the methods in the Field Manual, they started getting results.

I would argue with Alexander's suggestion that "[getting] to know our enemies, [learning] to negotiate with them, and [adapting] criminal investigative techniques to our work" is a unique use of interrogation techniques - I'll bet there's at least one homicide investigator in Houston doing these very things at this moment. Modern interrogation techniques are the result of many years ofevolution. They have been tested, and they work. I advise people simplynot to talk to the police because once a competent investigator has aperson talking, it's hard for him not to reach the truth. The Army has a Field Manual describing interrogation techniques because these techniques are proven to work. Building rapport and getting the subject talking may have been a unique methodology in Iraq; if so, then this was the problem.

The art of interrogation and the art of cross-examination have a lot in common. There are much tighter limits on what can be done in the courtroom than on what can be done in the interrogation room, but a cross-examiner can learn a great deal by studying interrogation.

Getting someone who doesn't want to tell the truth to tell the truth is the problem. The same principles apply whatever the venue and whoever the subject.