Progress and Pitfalls: Legislation After the CIA Torture Report

by Charles Mink

The fig leaf has fallen. The mask has disappeared. And it turns out that the Wizards of Oz who were torturing prisoners on our behalf really had no idea what they were doing, whatever their motive was for doing it. Following last month’s release of what media sources have dubbed the “CIA torture report,” Americans finally got a look behind the curtain, and it was not a pretty site.

“I thought I knew most of what they did,” one former colleague told me. “But I never heard about rectal rehydration!” Yes, we did force-feed prisoners through the anus and then expected them to answer questions. To say that it “worked” by any metric to get information – if I may quote a recent article by Doug Pryer – is pure “hogwash.” And so I’m convinced that it is now a matter of time before a shell-shocked American people collectively adopt a new narrative on torture, swapping out the comfortable mantra: “They did it to keep us safe” for “They did it and now we’re much less safe” – a sobering admission indeed.

For obvious reasons, most champions of the CIA’s techniques will never make such an admission. After the SSCI’s report hit the Senate floor last December, torture supporters quickly retreated to familiar trenches and dug in along defensive lines hardly modified by the unusual experience of having their project scrutinized so publicly. Many seized the media spotlight to remind us that torture was both legal and necessary after 9/11, and they did their best to itemize its many successes, even though CIA Director John Brennan ultimately conceded that the superiority of torture over non-coercive techniques is, and forever will be, simply “unknowable.”

Regardless of one’s pre-December 2014 opinion on torture, it seems, neither its defenders nor its advocates seem to have let the CIA report – much less an opponent’s reaction thereto – change his or her mind on the subject. In short, most Americans who had a strong opinion before the report came out still maintain that opinion, and they likely always will.

Fortunately, however, the report was never meant to sway those already wedded to one extreme or the other. It was meant for the vast majority of Americans whose pre-existing thoughts on torture were not nearly so entrenched. It was meant to transport the American people away from an erroneous conviction that CIA interrogators were torturing for all those years with scientific precision, and towards an awareness that for all their patriotism and energy, CIA torturers were relying on the faux-expertise of two former SERE instructors using a Cold War-era interrogation manual in lieu of actual experience. Now that this fact is part of the public record, I believe the American people will shed their blissful ignorance about torture and welcome political initiatives to banish it once and for all.

For opponents of torture determined to pass that kind of legislation, the coming popular support translates to one thing: momentum. Speaking physics, it is raw kinetic energy for the next phase. And that is precisely what makes the coming months and years a drawn-out moment of reckoning, so to speak. The next phase will require two simultaneous maneuvers – one external, aimed at persuading Congress to sign off on an interrogation doctrine that excludes torture; and another internal, aimed at compiling input from a coterie of experienced interrogators who want to improve that very doctrine.

For better or worse, one major difference between 2001 and today is that our country now has an abundance of interrogators with practical experience from which to draw. The overwhelming majority of interrogators never tortured a single person, and many at the top of the industry have become outspoken advocates for non-coercive techniques. Those who interrogated for the DoD relied on the Army Field Manual (FM 2-22.3), with varying degrees of personal interpretation. But while the Detainee Treatment Act of 2005 crowned the FM as the exclusive standard for interrogators dealing with DoD prisoners, it still contains a dangerous ambiguity – namely appendix M, which some have called “a wolf in sheep’s clothing” for flirting with the idea of sensory and sleep deprivation, while unjustly maligning the otherwise humane “separation” approach.

Aside from the Appendix M, the FM leaves much to be desired. In my humble opinion, the FM could benefit from an introduction of social psychology, something that is categorically absent from the present revision. What come to mind are Dr. Cialdini’s principles of acquiescence, which he famously presented in his 1984 book, Influence: The Psychology of Persuasion. An experienced interrogator will recognize Cialdini’s book as a virtual “secret manual” on interrogation approaches. Of course, there are many sources with a similar message, some of them academic, some of them anecdotal. But if it is the destiny of the Army FM to become the law of the land for interrogation, its next revision must be open to all of them.

The Hurdles

One thing that can defeat the non-torture agenda now is the non-torturers themselves. Accompanying the historic opportunity to influence legislation, there is a very real possibility that experienced interrogators, who completely agree on what doesn’t work, will disagree to the point of gridlock over what does work.

The reason I mention Dr. Cialdini’s book, Influence, for example, is not to suggest that a revised FM should be informed by Cialdini’s principles of social psychology to the exclusion of any others. His is simply one great source of information that should go into the information repository. There are many other fantastic sources for how to acquire accurate and timely information without torture, many of which come in the form of memoirs and other personal accounts from some of the best interrogators in the War on Terror. All of them have something valuable to contribute.

What the non-torturers must avoid is the temptation to speak above one another. Doing so would create so much noise that the real message gets lost, and the people who most need to hear that message never do. Just as it is encouraging to learn how many interrogators scored such great victories with non-coercive approaches over the last decade, the interrogation craft is never so rigid that one approach works at the expense of another. The formula is additive, in other words, not zero-sum. But with everybody speaking and nobody listening, an information repository like this website can quickly become an information bone yard. That is certainly something to avoid.

Secondly, questions remain as to the scope of the would-be anti-torture legislation. Will it apply to CIA interrogators? Let’s hope so. Will it apply to law enforcement? The FBI? If so, in which jurisdictions? These are relevant questions considering the fact that so many detainee operations these days are joint ops, and the interrogation booth might be a battleship in the Mediterranean Sea, for example. An industry sin is conflating intelligence interrogation with interviews for law enforcement purposes, but while most of us know the goals of each are different, it’s not obvious whether or not the approach manuals should be the same.

In the end, the latter issue is for people at the highest levels of the government to decide, and the anti-torture camp shouldn’t be afraid to accept an incremental victory if the alternative is nothing at all. It wouldn’t be productive to demand that the FBI, for example, follow the Army FM for interrogation, since the goals of a criminal interrogation are different, and the need to prosecute – if not for a moral objection as well – pretty well ensures that FBI agents won’t be torturing their interviewees. In the meantime, interrogators against torture shouldn’t let a potential hang-up with implementation dampen their efforts to create a doctrine worthy of implementing when the time comes.

About the Essayist:

Charles Mink is a former Army interrogator and Arabic linguist. He conducted over 1,000 interrogations in support of tactical operations at the highest level of US Special Ops Command in Iraq from 2007 to 2008. He holds an MA in Middle Eastern Studies from the University of Arizona and is currently researching extremist rehabilitation programs in the Middle East for his PhD. He has instructed the Army’s interrogation course at Ft. Huachuca, and taught Arabic at the University of Arizona and the US Naval Academy. He is currently an instructor of the Arabic language and Middle Eastern culture at the Defense Intelligence Agency’s Center for Language, Regional Expertise and Culture.