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It’s more important to interrogate terrorists than punish them

by 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.



  • Mark B. Evans

    Welcome back Don, you’ve been missed.

    • fortbuckley

      Many thanks, Mark—hope all is well.

  • fortbuckley

    A note to commenters:

    I understand that this blog’s subject matter can lead to discussion on many different areas.  However, I’m going to focus my responses on comments that deal with the blog’s main topic: the tradeoff between information gathering and punishment in the Global War On Terror.

    So, if you want to opine on how  ChimpyMcBusHalliburton is the Anti Christ, don’t expect me to engage you very much in the comments.  (It’s more likely that I’ll delete comments like that if they get too insufferable).

    Lastly—tiponeil, you’ve worn out your welcome on this blog.  I’ve marked your account as “spam,” and plan on deleting any further posts from you the minute I see them.  Anyone who describes US troops and the contractors who work for them as murdering women and children willy-nilly—which you did—isnt’ welcome here.  It’s not that you’re a loser; you’re just not my kind of winner. 

  • mорское

    do you write from putting your boots on the gound anywhere or do you write from intel?
    you can gather intel and punish.

    • fortbuckley

      I agree with you, mopckoe—you CAN gather intel and punish. I said so in the blog; see the Al Capone example.

      We may not be able to punish an enemy combatant as much as we’d like to, if we use coercion or compulsion to gather incriminating information. If the evidence that implicates a captured enemy combatant in a very large, very serious terrorist act came through compulsion or coercion, we may not be able to use it against him in a trial in a civil court. We can do it in military tribunals, but it’s likely the White House will eliminate them.

      Here are my bona fides: retired Army LTC, nine years on active duty, DESERT STORM vet, civilian career in intelligence. But, what does that have to do with this blog? The question I’m posing is one that ALL Americans are qualified to answer: how much risk are we willing to accept, in order to try captured enemy combatants in our traditional civil court system. It’s the people at home that are most at risk if terrorists slip away to strike again—because the people at home are the most vulnerable to a terrorist attack. Who’s better prepared to respond to an attack—a soldier on patrol in Afghanistan, or a mom shopping in the Park Place Mall?

      You wouldn’t be implying that only veterans have grounds to comment on this topic, would you?

      • mорское

        “You wouldn’t be implying that only veterans have grounds to comment on this topic, would you? no. we are a nation governed by civilians not the military. this is the business of all Americans.

        just curious where someone is coming from when they start discussing such topics.

        this topic is beyond the military, especially with this slop jar president. 9/11ers in civilian courts? mission teams have their hands “officially” tied? miranda what?

        there are many levels of intel. much is gathered on the ground by the boots running the missions.  it is amazing had persuasive one can be in such an environment. milk the detainee and release if advisable or hold for the secret squirrels. 

        • leftfield

          “this topic is beyond the military, especially with this slop jar president. 9/11ers in civilian courts? mission teams have their hands “officially” tied? miranda what”

          Yeah, moppy, all that “human rights” stuff really gets in the way sometimes, doesn’t it?

          One of the prinicples that the founding fathers of your country agreed upon is that human beings have certain rights just by virtue of being human; rights that are not bestowed by any institution and that cannot be infringed upon without due process.  These rights were not a matter of national origin, but universal. 

          • radmax

            Excuse me, we fought a war against the rest of the world for those inalienable rights, they were not given up lightly, by your so called universal Monarchy’s.

          • leftfield

            OK, but I am not getting your point.  My point is that every human alive, regardless of national origin, has rights and that this principle was central to the formation of democratic states against the background of Monarchies.  This would include even the enemies of the state. 

          • radmax

            Point being that while we couldn’t stand to live under an oppressive monarchy, others embrace their own brand of oppression(i.e. muslim theocracy) and only at the end of a gun barrel do they realize the beauty of our system. Use the laws of enemy combatants country of origin on them, not ours. They are not entitled to the same rights we fought and died for, quite the opposite.

  • Ferraribubba

    Did we give the Nazi butchers all the rights that you and I have as American citizens have under the constitution? Were they read their Miranda Rights and told that “anything that you say, may and will be used against you in a court of law? You have the RIGHT to remain silent and be provided with an attorney at no cost to you?”
    Get serious!
    With the trials coming up in Nerw York, of all places, I just wonder whose side our beloved POTUS Obama and his Attorney General, Eric Holder are REALLY on?
    Yer pal, Ferrari Bubba

    • leftfield

      I doubt that, FB, as Miranda rights came long after the end of WWII.  As an ex-cop, I would have thought you’d have the date of the Miranda decision marked in black on your calendar.

      Provocative and thoughtful questions, Don.  I don’t have any answers, but those in charge might want to give some thought to this.  I think it will come up another time or two. 

      • Ferraribubba

        Hey Lefty: I gave you enough credit to recognize  retorical question when presented.
        If I were talking to your pal Dion, with his self professed ‘world class education,’ I never would have used it. <g>
        I talked to some Phoenix cops who came in contact with Miranda and they agreed that Mother Nature has a wonderful way of evening the score, so to speak.
        Him being stabbed to death in a drunken pool-hall fight and All. It was just her way of culling the herd in her infinite wisdom.
        Yer pal, Ferrari Bubba

        • leftfield

          I get your point FB.  My mistake.  I just don’t expect sophisticated devices like rhetorical questions coming with a return address of Arkansas, USA.   

          Alcohol is a very dangerous drug that makes people behave stupidly.  Since I don’t drink I am all in favor of allowing people to carry weapons into bars.  Nature’s way of culling the herd and so on. 

          I think we’d all be better off if people would smoke more pot and stop drinking.

          • radmax

            Ha! Just think of how the economy would improve with all these potheads runnin’ out for burgers and tacos…

          • Ferraribubba

            Hey Lefty: Don’t sell these Hillbillies short just because of their zip-code, although like the Old Pueblo, we have more than our share of losers too.
            Der Frau and I attended a Valentine’s Day dinner/dance last year, and were seated at a table of eight.
            I looked around the table, only to discover that my dinner partners were comprised if two who were Doctors of Education,  three with Masters degrees, two with undergraduate degrees, and me, the poor shumck who quit college to play beach volleyball on Waikiki Beach. <g>
            I guess it depends on who you associate with, don’t y’all think?
            Yer pal, Ferrari Bubba  –  Zip-code, 71929.

  • http://www.myspace.com/jester636 jester

    I understand your point in that we detain to  many and don’t develop as setts the way we used to. we have become a tech based Intel community and in this we have injured our ability to draw out networks and the true key players . they have learned this and gone silent only speaking face to face old school ways in a new school world . having humped the dusty trails of Nowshak and the wakhan corridor I found its easier to share some tea and read between the lines then to cause Paine and expect the truth . besides if ya send them on their way with a bit of hearsay and some action results from the info then ya know ya have a player not a prisoner .
    Just an old 0231  Semper Fi .

    • fortbuckley

      jester, I agree that the soft approach works best when trying to get information from a local farmer.  Not so sure it works as well on a Khalid Sheikh Muhammad, who’s been trained to resist interrogation.

      I think you’ll find we’re much, much better at developing networks and speaking face-to-face with locals than we were just a few years ago.  The American military has a repuation for adapting quickly.  Rommell made that observation in WWII, and it’s still true today.

      Just an old 35D.  First To Fight—Victory!

  • http://pointmantucson.yuku.com/ mike_brewer

    Right on Jester. Far too much of our Intel is still stuck in a 9-5 world.  Not to mention the stove pipe problems have yet to be resolved.
    How quickly we forget that Chalabi and his phony defectors in the I.N.C.,  led by “Curve Ball,” waltzed us down a path of total distraction and deception. We bought the whole show and invited others to the opening act.  All national media outlets had to retract their stories!  We got information alright- Fort Buckley….it just happened to be from a confabulated “Fort!”
     
    As a footnote to the place and protocol of the trials, The U.S. criminal courts have a far superior conviction record then Military Tribunals. Far superior. In fact, I believe they have a conviction ratio of nearly 7 times the military.   I guess that is why you mention Capone and the mob as examples of our superior civilian prosecutorial system.
     
    Name for us one Military tribunal where a terrorist was nabbed and jailed.
     
    Even John Ashcroft sang songs of praise for the conviction of the “shoe bomber,” in the U.S. Courts.
    Just an old 0311. Semper Fi

    • fortbuckley

      How quickly we forget that Chalabi and his phony defectors in the I.N.C.,  led by “Curve Ball,” waltzed us down a path of total distraction and deception. We bought the whole show and invited others to the opening act.  All national media outlets had to retract their stories!  We got information alright- Fort Buckley….it just happened to be from a confabulated “Fort!”

      Umm, Mike, are you arguing for us to NOT rely so much on human intelligence in the GWOT?  What’s your point here? 

      If jester is right—which you apparently seem to think—then we shouldn’t rely too much on intelligence derived from technical sources (videos, signals intercepts, etc…)  But, if it’s foolhardy to rely on human sources, too—then, what are we supposed to use?  Ouija boards?

      The U.S. criminal courts have a far superior conviction record then Military Tribunals. Far superior.

      OK—but that’s besides the point.  If you take someone to court, you have to afford Miranda protections, right to an attorney, right to remain silent—all things that restrict the flow of intelligence. 

      Name for us one Military tribunal where a terrorist was nabbed and jailed.

      Khalid Sheikh Muhammad pled guilty at Gitmo, and was going to be sentenced, until the Obama Administration put a kibosh on the military tribunals and routed him to trial, sometime in the future, in Manhattan.

      As for “jailing” terrorists, we’ve already done that—in Gitmo.  Are you voting to keep Gitmo open?

      What’s your solution, Mike? 

  • HighlandRancher

    As one who has been in the feild and has had to interrogate an enemy and that information that was gathered help save me and my men. I’m greatful for not having to have a Marand! But then again that was 40 years ago and we did take and enemy with in most cases. As with politics when politicians stick their foot in war now Layer are doing the same.  Yes I’m old school but it worled for us. We did a lot of things that needed to be done with out any one knowing. The Press the congress. It took less time less money and yes we took some lives and most of those were those that we captured after we interrogated.  I don’t think of  them as I do for the 9 men that I lost . They were only 19 through 25 years of age. I was 25 back then and I would go back and do it all again if I could get the politicians out the war. I have Three kids in this one. Interrogate the hell out of Hold them until we’re out and send them home.
    Semper Fi

  • Ferraribubba

    To all my Marine buddies out there. You have your Semper Fi, and we Regular Army enlistees have our RA all the Way!
    We’re all ‘One Big Band of Brothers.’
    Yer pal, Ferrari Bubba

  • leftfield

    “Point being that while we couldn’t stand to live under an oppressive monarchy, others embrace their own brand of oppression(i.e. muslim theocracy) and only at the end of a gun barrel do they realize the beauty of our system. Use the laws of enemy combatants country of origin on them, not ours. They are not entitled to the same rights we fought and died for, quite the opposite”

    By this logic, Washington, Jefferson, et al, become terrorists. 
    It was their belief that human rights were rights “endowed by the creator”, not by citizenship.  Once we start picking and choosing to whom we are going to grant the privilege of human rights, it’s all downhill from there.  Of course, it is still denied to many within these borders.  Even bourgeois democracy has some institutions worth preserving.
      
    “Only at the end of a gun barrel do they realize the beauty of our system”.  I’m not sure the dead of Vietnam, El Salvador, Nicaragua, etc, saw “the beauty of our system” .

  • radmax

    Washington, Jefferson, Adams…all terrorists-in the eyes of Mad George the III, and would have duly swung from the nearest tree for their subversion. There comes a time when the thinking man chooses a path of right towards fellow men, or their own self determined path of victory at all costs, masquerading as ‘the will of God’. The difference between the two is apparent, but apparently not obvious to the zealot. The beauty of our system of justice Lefty, becomes apparent when faced with extradition to say, Saudi Arabia or Egypt….maybe a few of the Balkan countries….you bomb throwing Trotskyite :) Sorry FB, love that line.