Interrogations

• Author: Craig Forcese
• Profession: Faculty of Law, Common Law. University of Ottawa
• Pages: 591-621

591

cha Pter 15

IN TER R OG ATIONS

One of the purposes of detention may be interrogation of the detainee.

The 2006 U.S. army interrogation manual def‌ines interrogation as “the

systematic effort to procure information to answer specif‌ic collection

requirements by direct and indirect questioning techniques of a person

who is in the custody of the forces conducting the que stioning.”1 This

chapter discuss es the role and utility of inter rogation, legal limitations

on interrogation techniques and several controversies surrounding in-

terrogation in the post-9/11 era: extreme interrogation techniques; the

use in courts of interrogation information produced under potentially

problematic circumstances; and judici ally assisted i nterrogation.

Part i: interrOgatiOn and natiOnal

Secur ity

In the criminal just ice system, interrogation is generally geared toward

gleaning the tr uth concerning past events and, idea lly, in eliciting a

confession to a crime. Since the information produced through this

questioning is generally useful only to the extent it is admi ssible in

court, police interrogation is constrained by strict r ules discouraging

1 U.S. Department of t he Army, FM 2-22.3 (FM 34-52) Human Intelligence Col-

lector Operation s (September 200 6) at para. 1.20, online: www.fas.org/i rp/dod-

dir/army/fm2-22-3.pdf.

NATIONAL SECUR ITY LAW592

oppressive tactics by police investigators. These rules preserve the fun-

damental rights of the accused while at the same time enhancing the

reliability of the evidence produced by inter rogation.

The same re asons for constraining interrogation techniques — the

need to preserve fundamental right s and enhance reliability — exist in

national security investigations. However, the mechanism by which

constraints on interrogation are enforced must differ from those relied

on in the criminal law context. In national security investigations,

crimina l prosecution may be an a fterthought, and the prospect that

interrogation techniques will ever be reviewed by a court in a pros-

ecution produced by the interrogation may be remote. This context

compounds the need for careful review and oversight of security and

intelligence interrogation functions.

Interrogation in a national security context is also more prospect-

ive; that is, it extracts information concerning anticipated events, ideal-

ly in suff‌icient quantity and quality to help prevent those events. Faced

with the prospect of an imminent ter rorist attack or some other secur-

ity crisis, t he pressure on interrogators to force information from their

subjects is enormous.

Persuading uncooperative individuals to divulge information is

not, however, a simple task. Interrogation techniques have been honed

to persuade the uncooperative. A s psychologist (and former U.K. army

interrogator) I an Robbins describes, interrogation of any sort is de-

signed to “assert complete control over the victim and break down any

will they might have to resist the interrogator’s demands.”2

For thi s re ason, interrogation is “inherently controversial.” Tech-

niques ranging “from tr ickery and mind games to sleep deprivation,

intimidation and humiliation, have been honed over the years, often

by drawing on f‌indings from experimental psychology. … [These tech-

niques] can trigger long-term depression and post-traumatic stress dis-

order, which w ithout tre atment can per sist for decades.”3 In Robbins’

words:

When someone is physically tired, unsettled after days or weeks alone

in a bare cell , and ignorant of where they are, a sense of powerles s-

ness and anxiety sets in th at can quickly tu rn to disorientation and

make them more inclined to talk, confes s to something they didn’t

do, or even turn informer. The more organised forms of interrogation

and torture, such as those used by the KGB or the British in Northern

2 Ian Robbins [Head of t he Traumatic Stre ss Service at St. George’s Hospit al, Lon-

don], “We Have Ways” New Scientist (20 November 2004 Is sue 2474) at 44.

3 Ibid.