Author: Michael Skerker
Recent research has led to an emerging scientific consensus about best practices in interrogation. Government agencies in Norway, the US, the UK, and other commonwealth countries have begun to train personnel in scientifically-validated, rapport-based interrogation methods that are practical and moral improvements on older methods that seek to overcome or circumvent the interrogatee’s will through emotional pressure or trickery.
This essay will present four types of interrogation and assess them from practical and moral perspectives. Interrogation techniques can be largely arranged on a spectrum from the most harsh, and, as it happens, least effective techniques, at one end of the spectrum, to the least harsh and most effective at the other end.
The conversation will presuppose interrogations targeting potential criminals, including terrorists or other unlawful militants, referring to them as suspects, to the exclusion of conventional combatants or irregular militants complying with the law of war (e.g. POWs). The agents in question will simply be referred to as interrogators, without clarification of what kind of government agency they serve.
Coercive interrogation, or torture, seeks to destroy or overcome the suspect’s will through various physical or psychological measures. On one model, interrogatory torture may be applied to create an incentive for the suspect to cooperate that is so urgent as to overwhelm his desire to keep his secrets. More commonly, the purpose of torture is to induce the psychological state of regression, where the suspect’s rational, autonomous self is degraded to the point where he regresses to a pliable childlike or animalistic state in which he responds to commands and questions without the ability to resist.
Confession-based non-coercive interrogation techniques, widely practiced by American law enforcement agencies, are designed to overwhelm a suspect’s will to resist confession through emotional pressure or to make confession seem like the only rational response to the information the interrogator presents. As exemplified by the widely-taught proprietary Reid method, the interrogator seeks to convince the suspect that resistance is futile because he, the interrogator, already has enough evidence to indict the suspect. Depending on the interrogator’s assessment of the suspect’s personality, a confession is presented to the suspect as way of bargaining with the state, perhaps giving him the opportunity to contextualize a crime in such a way as to mitigate its nature or cast the blame on a confederate. The interrogator may seek to trick the suspect by overstating the strength of the evidence the police have against him. Alternatively, confession is presented to suspects as a way of releasing the emotional pressure the suspect may feel following commission of a crime and which the interrogator has in any event labored to create, heighten, and shape.
The last two decades have seen the development of information-gathering and strategic interviewing techniques, which unlike the above-mentioned models are based on contemporary psychological research and verified through experimental trials. Both aim to establish rapport with the suspect and to a large extent, respect his autonomy, drawing him into a quasi-cooperative process with the interrogator.
The information-gathering model sees the goal of interrogation as developing an accurate understanding of the event in question, rather than garnering a confession. To that end, the model draws on techniques also used to help crime witnesses or victims accurately recall details of an incident in order to encourage a suspect to present his version of events. This is a major contrast with the confession-based approach in which the interrogator initially asserts his own version of events in an accusatory fashion. With an information-based approach, the interrogator challenges inconsistencies as he might with a witness, though for the guilty suspect, the source of the inconsistency is likely the guilty suspect’s mendacity rather than the confusion a witness might suffer.
Strategic interviewing takes into account that both interrogator and suspect (be he innocent or guilty) are engaging in certain strategies in an interrogation—and so, the suspect is in a different frame of mind than that of a witness trying to recall details of a crime. Strategic interviewing shares a basic approach with information-based methods in that the suspect is invited to narrate his account of the incident in question, but the interrogator then engages in certain behaviors that will prompt dishonest suspects to give away flagrant indications of their deception. Studies have shown that detecting deception based on passive observation of a suspect’s behavioral cues (such as eye movements, twitches, sweating, etc.) are unreliable so the strategic interviewer attempts to prompt abnormal behavioral responses or inconsistent accounts of an incident (the identification of which by the interrogator causes more stress for the suspect) by increasing the suspect’s cognitive load. The interrogator might ask the suspect to maintain eye contact while narrating his account; describe events in reverse order; or draw a picture of the place he claims to have visited. Liars have a harder time doing these things than truth-tellers since maintaining a fictional narrative is already cognitively taxing.
A type of strategic interviewing, the Strategic Use of Evidence (SUE) technique, similarly invites suspects to provide accounts of incidents without revealing how much information the interrogator already knows. This information is parceled out to the suspect after he has articulated contradictory accounts and takes advantage of the fact that truth-tellers and liars engage in different degrees of specificity in their counter-interrogation strategies. Another type of strategic interviewing, the Scharff technique, takes into account that a guilty suspect will seek to understand what information the interrogator already knows and what he is seeking and then reveal as little new information as possible without denying information the interrogator already knows. The Scharff interrogator accordingly seeks to mislead the suspect about what he actually knows and wants to know. Following extensive research and an initial friendly, rapport-building engagement with the suspect, the interrogator presents a nearly comprehensive picture of the suspect’s biography, suspected actions, or network, making slight intentional errors, which the relaxed suspect usually hastens to correct, or states suspected truths which the suspect then confirms or disconfirms.
Interrogation ethics can be thought of as a triangular balancing of the interests and rights of three stakeholding groups: the community at large (including potential victims of crime), interrogators, and suspects. Members of a political entity have collective rights to security and justice as well as a collective responsibility to work toward both ends. (Collective rights and responsibilities attach to individuals but only when they are members of groups.) Laypeople can meet this responsibility by supporting just institutions designed to deliver security and criminal justice. The collective responsibility of laypeople is then largely transferred to law enforcement professionals in the form of a professional duty to provide security and justice to the community.
Generally, it is immoral to use ineffective or relatively ineffective means of pursuing morally vital ends when one has the duty to provide those ends; knows the means are ineffective; and has other, more effective means at her disposal. In this case, one is culpably failing to perform one’s duty. One may be culpable for causing harm if one employs ineffective means that also cause serious harm when one knows of the short-coming. Thus, it is morally wrong for state agents, tasked with the morally important duty of providing security and justice to a community, to knowingly use ineffective or relatively ineffective interrogation techniques on criminal suspects. There are two gross practical deficiencies in particular that can make an interrogation method morally wrong to use. An interrogation method might produce extremely unreliable information and particular unreliable techniques may risk producing false confessions. At minimum, interrogators with bad methods are failing to meet their positive duty to provide security and justice and also potentially harming suspects for no good end. Both innocent and guilty suspects are wronged by unnecessarily onerous tactics and innocent suspects are wronged if compelled to falsely confess.
Regarding the interrogators themselves, it would be a betrayal of the egalitarian values on which liberal democracies are based to demand that state agents expose themselves to dangers private citizens would be unwilling to face, provided the same training, physical abilities, and emotional make-up. Private citizens cannot look at their state agents as disposable. This caution should extend to professional duties that would damage state agents’ psyches or characters. Since research has shown that committing serious moral infractions can cause PTSD and moral injury (a similar condition to PTSD triggered by perpetrating immoral actions), state agents cannot be asked to perform immoral actions in the interrogation booth.
Finally, interrogation practices must not violate suspects’ rights. The rights in question are harder to identify than may first appear. People have a natural right to privacy and silence (a right to refuse to answer other’s personal questions) in order to foster and protect their autonomy. One cannot develop a sense of self and personal plans if one has to constantly reveal one’s thoughts, half-formed opinions, and immature views. One would inevitably conform one’s thoughts to popular opinions in order to avoid censure. Further, revealing one’s private thoughts to others can give them power to anticipate one’s actions or damage one’s reputation. Yet criminal secrets do not have this privileged status. While one’s feelings about one’s crime might contribute to one’s self of sense, the bare facts of the case do not, and one’s duties to others trumps the value of keeping one’s feelings to oneself in any event. So people who are concealing criminal information after committing serious human rights violations do not have a right to hold on to secrets about the incident in the sense that they have a right to keep their religious or political views to themselves.
Yet a state agent cannot assume a suspect is guilty and concealing criminal information. A liberal state by definition grants broad deference to the autonomy of its inhabitants and cannot strip people of significant rights based on a state agent’s fallible suspicion. The rights associated with a state agent’s observance of due process can be understood as mediating the following tension: the state needs to infringe on a person’s rights in order to investigate her but must also respect the fact that she might be innocent. These infringements—arrest, interrogation, detention, dwelling search, etc.—are not rights violations when they come as part of an enterprise meant to protect the rights of all inhabitants and are mediated by due process protections.
This claim requires further explanation. A suspect cannot refuse state agents the rights necessary to engage in an investigation (e.g. the right to arrest and interrogate suspects) when competent and morally upright state agents collect a significant amount of evidence implicating her in a crime. The suspect has to permit state agents the rights necessary to investigate her as an observance of her duties to support just institutions and thereby protect the rights of other inhabitants since they, just as she, enjoy rights to security. This right is protected by police investigating suspicious people through consent-worthy measures (people would not endorse cures that are worse than the disease). The suspect cannot demand a right of suspects to shut down investigations even if she is innocent—imagine if all suspects had this right—but can insist on due process rights permitting suspects to protect many of their rights during an investigation and to take steps to prove their innocence. Due process rights protect a suspect from undue rights infringements during a criminal justice process but still permit authorities to engage in investigations.
In order to protect a suspect’s rights, interrogation techniques have to be the most effective, efficient, proportional, reliable, and rights-respecting available to the relevant state agents. Any suspect could object to techniques that carry a significant risk of generating false confessions; fail to identify innocent suspects; or that inconvenience and frighten a suspect without a good chance of producing accurate information. Since effective interrogation techniques might involve the inducement of fear or stress or involve deception, a suspect could fairly demand that techniques minimize these objectionable aspects; only be used in the absence of effective but less offensive techniques; and that unavoidable objectionable aspects be offset by the positive benefits of effective interrogation techniques. Finally, a suspect can demand that interrogation techniques avoid treating suspects as if they were guilty. This standard precludes violence, threats, bribes, or refusals to defer to a right to silence (for example, penalizing silence during interrogation during sentencing). Threat and bribes presuppose that the target has criminal information he lacks a right to retain. Suspects can demand a right to counsel during interrogation in order to protect their rights.
Triangulating the rights of the three stake-holding groups involves a balancing of each group’s interests and rights. Privileging community safety might involve erring on the side of caution, and summarily jailing suspects, and restricting their rights in such a way as to make it difficult for them to challenge their incarceration or refuse cooperation with interrogators. Privileging community safety might also commend ordering state agents to engage in effective but morally or emotionally taxing behaviors, regardless of the effects on interrogators. Balancing the interests and rights of the three groups is easier if it is born in mind that a single person might occupy all three groups in the course of a life. So a person might think that she wants authorities engaging in effective crime control measures but not ones she would be willing to tolerate if she was an innocent suspect or if she was an interrogator ordered to implement them.
Intelligence collection is often more of a pressing interest than the elicitation of a suspect’s confession in counter-terror or counter-insurgent contexts. Intelligence is not merely information but information plus an assessment of the information’s reliability. An analyst who sends an intelligence consumer a page of mere information has failed that consumer since she may now make decisions based on bogus information she believes to be accurate. Clearly a detective who has procured an unreliable confession or unreliable information from a suspect has failed as well.
Torture is a counter-productive means of gathering intelligence since no information procured through torture, or any kind of harsh, coercive treatment can be considered reliable. Torture provides the suspect a profound reason to lie: to make his mistreatment stop. Further, the pain, stress, fear, and fatigue associated with coercive measures makes it physiologically harder for the suspect to accurately remember or cogently communicate valuable details.
For a practice meant to reveal the truth, torture instead leaves the interrogator and his government in a worse situation than when they were ignorant of their targets’ plans. The interrogator using torture should not trust anything a torture victim says and yet he is likely to do just that because torture confirms the interrogator’s bias that his victim is guilty. Torture invariably changes denials, even from innocent people, into confessions. Further, the interrogator is prone to confirming any suspicions he had about specific aspects of the suspect’s actions or networks because he will keep pressing a suspect until he verifies the information the interrogator suspected all along—regardless of whether it is true.
Further, the interrogator is not in a position to know what he does not know. Coercive or disrespectful treatment creates resistance rather than cooperation on the part of a suspect. At best, the interrogator will “succeed” at inducing compliance: the suspect will tersely respond to specific questions. Yet then the interrogator is limited to getting confirmation of things he already suspected (again, regardless of whether the confirmation is accurate); the suspect does not provide a full narrative of his network and operations. The interrogator also will never know if he would have gotten better information using non-coercive methods.
Unreliable information may waste state resources as agents are sent to chase down errant leads. Falsely implicated people may be arrested, all while the real criminals or militants are still on the loose. Investigators grow lazy and incompetent since they can just beat a confession out of a suspect. Information produced through torture cannot be used in trial in a liberal-democracy, meaning that the torture victim has to be released, held indefinitely incommunicado, or secretly executed. If he is released, he may make public what happened to him, bringing discredit to the government. Secret executions or secret prisons invite scandal, obviously, and, at the minimum, invite all manner of corruption and deception since the enterprises are illegal and have to be kept in the shadows.
Torture is a moral horror, involving a fundamental assault on human dignity. The purpose of most coercive interrogation is to produce regression, a corruption of adult human faculties. Torture exceeds any kind of just use of violence as it involves an assault on a defenseless person. While violence can be justified under certain very limited circumstances to punish people, it is not an interrogator’s job to punish even guilty suspects. The fact that state agents in law enforcement or counter-terror contexts are dealing with suspects provides another reason that torture violates its victim’s rights. A suspect may be an innocent person, who cannot be modeled as consenting to being exposed to extreme violence as part of an enterprise meant to separate the innocent from the guilty. The practice treats the innocent as if they were guilty—and then treats them in a way no civilized country treats even its worst convicted criminals. Also, since torture is not a reliable interrogation method, its use fails to provide inhabitants of a state security and justice. Finally, the infliction of torture tends to cause moral injury to torturers, leaving them nearly as shattered as its victims.
While there are no comprehensive studies to the effect, experience shows that confession-based approaches have a high rate of efficacy. Yet studies have also linked the approaches to an indeterminate rate of false confessions. Again, it is impossible to count exact numbers, but one troubling indication is that false confessions have been shown to be involved in around 20% of post-conviction DNA-based exonerations in the US.
Confession-based approaches rely on manipulating the suspect’s perception of his crime and the associated cost of confessing or revealing incriminating information through minimization and maximization strategies. The interrogator may engage in various deceptive stratagems, manipulating his own affect in order to produce a desired impression on the suspect, misrepresenting the seriousness of the crime, feigning sympathy, and suggesting face-saving explanations for the suspect’s actions the interrogator does not actually believe. Generally, the approaches are designed to take the suspect on an emotional journey, beginning with an accusation of guilt, eliminating the suspect’s confidence that he can explain or lie his way out of trouble, and building to a crescendo of interrogator-provoked stress and guilt that only a confession can relieve. The Reid method in particular, allows for blatant lying, particularly with the introduction of fake incriminating evidence. There is a risk of moral injury to interrogators engaging in manipulative and deceptive stratagems since these actions are contrary to non-professional morality and can be easily and subtly exported into the interrogator’s private life.
Regarding suspects’ rights, at one point in time, confession-based approaches were perhaps the best candidates for the most practically efficacious and rights-respecting techniques available to secure intelligence and confessions. Yet the approaches contain morally problematic aspects that should prompt the search for alternatives. The confession-based approaches’ indeterminate, but significant, risk of false confessions is a major concern. Neither the suspect nor the community is served by unreliable methods resulting in innocent people being put behind bars. Even if an innocent person refuses to confess, the interrogator’s manipulative and deceptive ploys may be upsetting, confusing, or harrowing to the suspect. The moral risk to interrogators is a further strike against the approaches.
6 Information-Gathering Approaches
Research into lie detection and non-coercive interrogation techniques over the last two decades have yielded a new generation of interrogation techniques focused more on the suspect than the interrogator. The confession-based approach leads an interrogator to structure an interrogation based on what the interrogator believes about the suspect and oriented toward the confession or intelligence the interrogator desires. By contrast, both information-gathering and strategic interviewing approaches take into account how suspect’s remember events and how they approach interrogations. The techniques are non-accusatory and rapport-based: the interrogator seeks to gather information about the incident in question rather than directly obtain a confession. To an extent, the interrogatee is treated as a partner in this truth-seeking endeavor rather than an adversary whose psychological defenses have to be overcome.
As they are fairly new, there is not a lot of broad-based research about the efficacy of the information-gathering techniques used in some Commonwealth countries. There is no convincing evidence that confession rates have dropped in the UK after police services switched from confession-based to information-gathering approaches in the 1980s. Clinical trials have shown that information gathered through this approach tends to be more reliable than that garnered though confession-based approaches.
In contrast to confession-oriented techniques, information-gathering interrogation strongly emphasizes treating the suspect with fairness and dignity, and involves acknowledging, explaining, and honoring suspects’ legal rights. Information-gathering interrogation also includes an emphasis on honesty and transparency. This means that deception in general, and false evidence ploys in particular, are not permitted. These reforms remove most of the rights-infringing concerns raised above with respect to confession-based techniques. There is still a degree of psychological pressure associated with being in police custody, but this degree of pressure would be present in any kind of police interrogation. Concerns about the interrogator’s character are also minimized with these techniques since the interrogator is not engaging in deception or manipulation.
7 Strategic Interviewing
As with information-gathering approaches, strategic interviewing has been in use for a relatively short period of time—and only by a few agencies. Indications of these approaches’ efficacy, therefore, are going to be more suggestive than definitive, but in isolation, various strategic interviewing tactics have been shown to be highly successful in clinical trials. The rapport the interrogator develops with the suspect, coupled with his open-ended questions, tends to produce more information from the suspect than alternatives. The absence of coercive, threatening, or disrespectful treatment improves the reliability of the information the suspect reveals. These practical aspects suggest strategic-interviewing ably serves the interests of the community.
Strategic interviewing is rapport-based and provides suspects a good deal of autonomy. Even though the interrogator engages in strategic behavior in order to expose deception and prompt the revelation of information, the interrogator does not engage in threatening, demeaning, psychologically coercive, or minimizing behaviors. Strategic interviewing would therefore seem preferable to confession-based interrogations, and of course, torture, for being more reliable, posing less of a danger of false confession, and by virtue of being less onerous to the suspect, being more proportionate. Let us consider two types of strategic interviewing in greater detail, paying attention to the effect of the techniques on the interrogator.
The Scharff-style interrogator affects a friendly demeanor and attempts to shape the suspect’s understanding of the interrogator’s knowledge of the alleged crime. Assuming a context of a just state, a guilty suspect does not appear to be wronged by the low level of manipulation and deception present in the Scharff interrogation. The guilty person has ceded the otherwise legitimate expectation to honest-dealing in regards to his crime by committing and concealing a crime. He can hardly complain if misled by the interrogator’s strategic behavior when that behavior is designed to counter-act the guilty suspect’s own illegitimate strategic behavior. The suspect’s understandable desire to avoid punishment is not a moral concern (others have to respect) given that he has voluntarily placed himself in jeopardy by wronging another.
For an innocent suspect, having a friendly conversation with an interrogator using the Scharff technique might not be onerous unto itself but no doubt would be alarming on another level because the interrogator’s detailed narrative makes clear the authorities have been investigating him for some time. This concern would be present in confession-based interrogations as well since they open with accusations of guilt. The positive aspect of the Scharff technique as far as an innocent person is concerned is that the interrogator lays more of his cards on the table, perhaps providing more occasions for an innocent person to correct the errors that led to him being falsely implicated in a crime. Similarly, the Scharff technique might be preferable to styles of interrogation where the interrogator reveals fewer details because the suspect can gain a picture of the interrogator’s concerns faster, thus forestalling the stress that might come from wondering why he was arrested when the interrogator is more withholding. Finally, Scharff might infringe on a suspect’s privacy to a lesser degree than other forms of interrogation since the interrogator largely presents his own view of the suspect’s network or activities rather than asking the suspect to divulge potentially sensitive information.
The interrogator might deliberately conceal his or her knowledge from the suspect with the strategic use of evidence technique. Guilty suspects likely do not have cause to complain that an interrogator is acting strategically with them for the reasons already discussed. Frustration a guilty suspect may feel when the interrogator reveals the withheld evidence could have been avoided had the suspect been truthful from the start.
Regarding innocent suspects, first, it is possible that interrogators and innocent suspects never have a confrontation where the former’s deception is revealed, because the innocent suspect simply confirms all the evidence in the detective’s possession. Moreover, neither innocent nor guilty suspects necessarily have a right to demand that investigators reveal everything they know about an investigation since complete transparency may permit criminals to escape or dispose of evidence as well as violate the privacy of suspects.
Again, any kind of interrogation is going to be at least mildly stressful and inconvenient for innocent suspects as well as infringe on their privacy, but in the abstract, people want police to investigate crimes and want them to do so using the best techniques available. Therefore, the innocent suspect should reason that she wants the police to investigate and interrogate people implicated by evidence and so should not object if competent, honest officials investigate and interrogate her using reliable and effective measures when she is implicated by evidence. She retains the right to remain silent and thereby, the ability to largely protect her privacy if the interrogator’s questions are too intimate. None of the specific tactics associated with SUE—narrating events, drawing pictures of rooms she claims to have seen, narrating events in reverse order—seem so onerous that an innocent person would not consent to doing them in order to convince the detective that she is innocent.
Regarding effects on the interrogator, the SUE interrogator engages in a more or less rational game—like chess—wherein one compares the facts one has at one’s disposal with those the suspect is presenting and engages in gambits to expose the suspect’s lies. The interrogator’s strategic withholding of information makes the practice more manipulative than the information-gathering approach. Yet it is conceivable that the discrete, factual, non-emotional nature of this process makes it separable from the interrogator’s private life—something one can “leave at the office.” Although the technique involves imposing strategic considerations onto an ostensibly friendly interaction, given the ubiquity of self-presentation in human communication, for its part, the Scharff technique may not involve much more social strategizing than people are prone to do in their everyday lives.
The scant research comparing information-gathering approaches with strategic interviewing makes it difficult to assess which is the best interrogation style for liberal democracies to use. Both are superior to confession-based approaches and torture. Information-gathering approaches would be preferable overall if they were more efficacious and reliable than strategic interviewing since information-gathering approaches are the least onerous on suspects and interrogators. Significant deficiencies in terms of efficacy and reliability of information-gathering approaches would indicate the overall superiority of strategic interviewing. This form of interrogation appears to be quite efficacious and reliable and the negative aspects regarding suspects’ and interrogators’ experiences do not appear to be severe.
This article draws on arguments made in greater length in:
Michael Skerker, An Ethics of Interrogation (Chicago: University of Chicago Press, 2010)
Michael Skerker, The Moral Status of Combatants, (forthcoming)
Maria Hartwig, Timothy Luke, and Michael Skerker, “Ethical perspectives on interrogation: An analysis of Contemporary Techniques,” in eds. Jonathan Jacobs & Jonathan Jackson, Handbook of Criminal Justice Ethics, (New York: Routledge, 2016), 326-347.
Seumas Miller, The Moral Foundations of Social Institutions, (Cambridge, UK: Cambridge University Press, 2009).