It’s more important to interrogate terrorists than punish themby Don on Jan. 25, 2010, under Uncategorized
Ever since we started capturing enemy combatants in Iraq and Afghanistan, America has struggled to answer a tough question: what do we do with them?
Buried in the tangles of that debate is another question, one that law enforcement and national security wrestle with all the time: What’s more important—gathering information, or punishing the guilty?
That’s a tough conflict to resolve, because it pits two worthwhile objectives against each other. It’s easy to choose when your options are clear-cut, when the choice is between one obviously good option and another that’s just-as-obviously bad.
But, what if they’re both worthwhile? That’s the case here.
To better illustrate this conflict, let’s look at some hypothetical examples.
The FBI’s most valuable informant against the local mob is a loan shark. The local police want to arrest him, but the FBI wants him to stay on the street. (Surely this example has played out on at least one episode of the NCIS or CSI franchises.)
Here’s another one. The enemy is using a communications tower to send out important information. The local American commander wants to destroy the tower, but his intelligence analysts are learning a lot about the enemy’s capabilities and intent by monitoring its transmissions. They want it to keep transmitting.
Both sides of the argument have merit. On one hand, there’s value in stopping your adversary, right now. But, there’s also value in holding your fire, so you can gather information that will help you bag even bigger targets in the future.
Now, back to Iraq and Afghanistan, and the challenge we’re facing now: how best to deal with enemy combatants.
One of the hallmarks of America’s legal system is the right against self-incrimination. You can’t be forced to testify against yourself. If you are compelled to give information against your will, the authorities can’t use that information against you in legal proceedings that could deprive you of your life or liberty.
Well, interrogation by intelligence operatives often involves some form of coercion or compulsion. Even if torture isn’t involved—and before we go any farther, this blog is NOT going to debate whether American intelligence operatives have engaged in torture during the Global War on Terror—interrogations by intelligence operatives often include sleep depravation, isolation of the interrogatee (I hope that’s a real word), threats and other techniques that aren’t acceptable in America’s civil justice system.
So, if we abandon military tribunals and use our traditional civil legal system for administering justice to captured enemy combatants, we have to be ready to make some choices.
If we use the most effective interrogation methods, we will likely force the interrogatee to incriminate himself, or otherwise divulge information unwillingly. We’ll also, probably, deny him ready access to an attorney. As a result, we couldn’t use much of the information we gather against him in a traditional civil court.
If, on the other hand, we use interrogation methods that respect the primary tenets of America’s civil legal system—right against self-incrimination, right to remain silent, right to legal counsel upon demand—we run the risk of getting little or no useful intelligence information.
That leads us to the Big Question: Is it more important to gather information, or punish the guilty?
In my non-legal opinion (I’m not an attorney, which should be glaringly obvious by now), it’s more important to gather information. Even if it means that some terrorists might go free.
Here’s my rationale.
1) It’s more important to stop future attacks than punish past ones. Once a bomb is detonated, the damage is done. All you can do is clean up and tend to your wounded. It’s too late to prevent the damage or the injuries.
2) If our goal is to take terrorists off the streets, we may not need intrusive interrogations to do that. Often, when enemy combatants are captured, there’s plenty of evidence, sitting in plain view, that they were engaged in criminal or hostile activity toward US forces. We catch them with weapons, explosives, and plans to attack US troops or the civilian populations we’re protecting. Or, analyzing their laptops and cell phones provide links to other known terrorists. Often, that’s enough to convict them and imprison them.
We may not be able to convict them of crimes they committed against American citizens, if the evidence needed to convict them of those acts comes from “tainted” interrogations. But, we can still take those combatants out of circulation.
If memory serves, Al Capone didn’t go to prison for mob activities; he went for tax evasion. Nevertheless, he still went to prison.
3) If we do have to release terrorists, there’s always the chance we can catch them again. We have pretty good methods for tracking bad guys nowadays.
4) Raw information is the lifeblood of good intelligence analysis. We need as much of it as we can possibly get. The more data the analyst has, the better chance he has of finding the right answer. If the analyst has 50 data points to work with instead of 15, it’s easier to paint a more complete picture of enemy activity. It’s also easier to identify faulty, outlier reports and discard them, so they won’t skew the end analytical product.
Federal officials have claimed that the “Christmas Underwear Bomber” (what a sad way to go down in history) still provided useful information in questioning, even though he was read his Miranda rights. Chances are, he would have provided MORE useful information if intelligence operatives interrogated him instead.
Ever heard the sayings “left of boom” or “right of boom?” They’ve become popular in the Global War on Terror; the “boom” comes from an exploding IED. The intelligence analyst tries to find the IED before it goes off, to the “left” of the timeline for an IED event. If you identify it after the explosion, or to the “right,” your analytical effort is much less useful, for obvious reasons.
The best way to land to the left of the boom, as much as you humanly can: produce the best, most timely intelligence possible. Therefore, vote for information gathering over punishing the guilty.