of counterintelligence, interrogations are conducted to obtain admissions of clandestine plans or activities directed against KUBARK or PBPRIME** security are also CI interrogations. But unlike the police interroga tion, the CI interrogation is not aimed at causing the interrogatee [sic] to incriminate himself as a means of bringing him to trial. Admissions of complicity are not to a CI service, ends in themselves but merely pre
ludes to the acquisition of more information [3].
The foregoing definition clearly makes the obvious distinction between the interview and
interrogation methods we are advocating for use by police officers, security people, attor-
neys, and so on, and those that the KUBARK Intelligence Manual illustrates. For the most
part, the readers of our book are trying to solve crimes that have already occurred or are
ongoing. Counterintelligence officers, on the other hand, are trying to stop continuous hos-
tile acts against the interests of their nation and allies, as well as to prevent future hostile
actions from occurring. These are definitely far different goals for the respective interroga-
tors. One is to solve a crime, and the other is to obtain information to prevent one.
The KUBARK Intelligence Manual outlines several interrogation techniques. It divides
strategies into two major types, “Non-coercive Counterintelligence Interrogation” and
“Coercive Counterintelligence of Resistant Sources.” Because the techniques of noncoercive
interrogation are set forth in this book, we will only discuss the latter techniques for a
*KUBARK is a code word designator, which identifies the CIA.
**PRPRIME is believed to be the code word for United States citizens.
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227
“resistant subject.” We feel it is important to understand that the person being interrogated
has the key to avoid coercive methods by just truthfully answering the interrogator’s
questions.
KUBARK sets out its own caveat regarding coercive techniques. The manual is quick to
state that the discussions of the methods therein are not to be “misconstrued as constituting
the authorization for the use of the coercion at field discretion” [3]. The manual further advises that “coercive methods are only used to exploit the resistant source’s internal conflicts and induce him to wrestle with himself but also to bring a superior outside force to
bear upon the subjects’ resistance.” [3]
The manual makes reference to the work of Dr. Lawrence E. Hinkle, Jr., “The Physiolog-
ical State of the Interrogation Subject as It Affects Brain Function.” Hinkle’s research rein-
forces the theory that the interrogator’s goal is to cause regression and break down the
subject’s acquired skills to resist. Regression is defined here as the returning by an individ-
ual to a younger state of mind.
This regression is accomplished by applying “relatively small degrees of homeostatic
derangement,” such as fatigue, pain, sleep loss, or anxiety [3]. In other words, the manual suggests that if the subject is kept wet, hungry, and disoriented, eventually all the ego
defense mechanisms will break down, and he will become compliant and talk.
KUBARK’s conclusions regarding coercive interrogation are extremely interesting from
an interrogator’s viewpoint. The manual states that the “principal coercive techniques are
arrest, detention, the deprivation of sensory stimuli, threats and fear, debility, pain, height-
ened suggestibility and hypnosis, and drugs.” [3]
The manual further suggests that the specific coercive techniques employed should
be chosen based on the personality of the subject. The “usual effect of coercion is
regression.” The subject will become more “childlike” as his/her adult defenses break
down. While this is happening, the subject will feel guiltier, and the interrogators should
exploit this.
At the point where the subject’s resistance is overcome by a desire to cooperate, the inter-
rogator should provide a “face-saving rationalization.” Like the coercive techniques them-
selves, the rationalization should be tailored to the subject’s personality. The coercion/
duress should be reduced or stopped when the subject’s cooperation is at hand. This will
allow the subject’s cooperation to proceed unhindered. In contrast to the physical and men-
tal coercion advanced by KUBARK, reducing the stress on the subject after compliance with
the interrogator is a quite standard police interrogation procedure.
Interestingly, Alan Dershowitz – probably America’s best known advocate for defen-
dants’ rights – has proposed a “Torture Warrant” for use in those cases when there is an
imminent threat to life and limb, such as a ticking bomb, and the suspect or suspects are
unwilling to divulge its location. This has become known as the “ticking bomb” scenario.
Dershowitz suggests that the government either itself or through surrogates administer tor-
ture to get information concerning the ticking bomb. Mr. Dershowitz has gone so far as to
suggest the method of torture to employ: sterilized needles under the fingernail. This view
has earned him, in some circles, the sobriquet “Alan ‘the Needle’ Dershowitz.”
Where does an extraordinary interrogation measure end and torture begin? Some believe
that if there is no irreparable mental or physical damage done, then it is not torture. The
Israelis for a long time believed that the extraordinary conditions in their country, where
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citizens are threatened on a daily basis by terrorist bombing and other attacks, justified the
use of what the Israeli General Security Service called “moderate physical pressure” when
interrogating terrorist suspects. This pressure included placing hoods over the heads of the
suspects and violently shaking them. Sometimes these methods led to the death of suspects,
and they have been condemned by international human rights organizations. By that
decision, the nine-member Israeli Supreme Court changed the rules for the Israeli General
Security Service by prohibiting the use of moderate physical force even in ticking-bomb
scenarios.
A parallel issue of importance to discuss along with confessions by torture is false con-
fessions. Many times, young persons under the duress of prolonged and vigorous interro-
gation make a false confession. At one time one of the authors was convinced that no
sane person in this country, with all its legal protections, would confess to a serious crime
that he or she did not commit, regardless of the physical or mental duress employed by the
police to get the confession. Many, including jurors, hold this belief. Because of this belief, a
confession by the defendant, if presented to the “finders of fact” (the jury), is very compel-
ling evidence of guilt.
Approximately 22 years ago, there was a breaking story in the Washington, D.C., media
that a man who had served – if memory serves – 8 years of a life imprisonment sentence
after confessing to the rape and murder of a young woman, was freed. Another man had
confessed to the crime, and DNA testing confirmed it. Needless to say, the author’s mind
on this point forever changed; yet, he still held the belief that this was a very rare
phenomenon.
Then, in 2003, five young men from New York, whose confe
ssions were videotaped and
who had been convicted for the vicious and heinous 1989 rape and beating of a young
woman now known forever as the “Central Park Jogger,” were released from prison,
vindicated, after a convicted killer admitted he had committed the crime. This confession
was corroborated by DNA evidence. From all over the United States and Canada, more
tales of false confessions elicited by overzealous investigators were, and are still, coming
to light.
In the April 5, 2005 edition of The Straits Times, the Reuters China Daily/Asia News
Network reported the story of She Xianglin, a Chinese man who spent 11 years in a Chinese
prison for murdering his wife. After Madame Zhang Zaiyu, the wife, reappeared, Mr. Xian-
glin was freed from prison. Madame Zhang had disappeared in 1994, after an argument
with her husband. A few months later the badly decomposed body of a female was discov-
ered in the region, and police suspected it was Madame Zhang. Mr. Xianglin was arrested
and interrogated for almost 2 weeks before confessing to his wife’s murder. He was sen-
tenced to death, but had his sentence commuted to life in prison. He now states that he only
confessed after a police officer placed a gun to his head and threatened to kill him if he did
not confess.
Why would someone confess to a serious crime they did not commit? Fear, threats,
intimidation, trickery, diminished mental capacity, suggestibility, and physical abuse are
just some reasons that come to mind. Lest the reader thinks this is a rarity, research con-
ducted by Joe Wheeler Dixon, PhD, JD, has offered several thoughts concerning the false
confession syndrome in juveniles. Dixon, a highly regarded psychologist, discovered that
juveniles are very suggestible, and the younger the child, 12 years old or less, the more
14. TORTURE AND FALSE CONFESSIONS
229
suggestible and more easily influenced by negative feedback from the interrogators (see
Chapter 12 on interviewing children).
Probably the world’s foremost authority on false confession, psychologist Saul M. Kassin,
believes that the interrogation tools that lead to the majority of false confessions are the mis-
representation of legal evidence by investigators, the implied understanding that a confes-
sion will allow a suspect to go home, and, perhaps most of all, time. Whereas the elapsed
time of an average interrogation is about 1 to 4 hours, most of the false confessions Kassin
studied came after an average of 16 hours of continuous questioning [4].
In his seminal paper “The Psychology of Confession,” first published online in 2008 [5],
Kassin classified false confessions into three categories: voluntary, compliant, and interna-
lized false confessions. The types of false confession are almost self-explanatory. Voluntary
false confessions are those where there is no prodding from the police or others to induce
an innocent person to admit to a crime they did not commit. These individuals usually walk
into the police station and confess to a well-publicized crime. Kassin proffers possible
explanations of this type of behavior as a “pathological need for attention or self-punish-
ment; feelings of guilt or delusions; the perception of tangible gain; or the desire to protect
a parent, child or someone else.” [5]
Compliant false confessions are a result of police interrogation where the subject con-
fesses to avoid being in a “stressful custodial situation, avoid physical or legal punish-
ment, or gain a promised or implied reward.” [5] The innocent subject may make these
compliant false confessions to get some food or sleep, to be able to go home, or to see a
loved one.
Internalized false confessions are found with innocent and vulnerable individuals; young
people; children; the mentally disabled or weak-minded; or others who are easily suggest-
ible. Strong interrogation methods can lead such individuals to believe they actually com-
mitted the crime, and, according to Kassin, this belief may even be accompanied by false
memories. We sometimes see this same phenomenon when there are allegations of sexual
molestation and overly suggestive parents, police, or social workers convince very young
children they have indeed been victimized when in fact they have not been.
Kassin often looks to the work of British psychologists Gisli Gudjonsson and James
MacKeith, † who have extensively researched the phenomenon of false confession. They
are of the opinion that the coerced internalized false confession can come from a lack of
confidence in one’s own memory of the events. And, therefore, a subject can be made to
actually believe that he or she may have in fact committed the crime in question.
Another explanation may be found in the conclusions of the KUBARK manual. The goals
of the coercive interrogation are to get the subject to regress to a childlike mental state, so
that he becomes compliant with the interrogator. We would maintain that with young,
immature, or mentally impaired subjects, regressive behavior already exists. These popula-
tions are already mentality compliant and lack the strong social and ego-defending skills
acquired by adults through socialization.
These horror stories have presented law enforcement with many problems, lawsuits, and
botched investigations resulting in public mistrust. Many departments have adopted new
†Gudjonsson and MacKeith, from the Institute of Psychiatry, London, have researched many aspects of lie
detection and other aspects of confessions.
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14. TORTURE AND FALSE CONFESSIONS
guidelines for interrogating young people and those with diminished mental capacity. The
authors believe this is a first step in the right direction and that further efforts to safeguard
against false confessions should be continued. However, we also recognize that obtaining a
confession is not as simple as telling a suspect, later confirmed as the perpetrator, that we
know he or she did the crime.
During the interview of any suspect, especially one of young or diminished mental
capacity, any admission should be suspect unless verified by independent facts or physical
evidence. We therefore recommend that whenever possible, the investigator hold back crit-
ical crime information or “keys” that only the perpetrator, victim, or police would actually
know. This key information, when freely provided by the suspect and corroborated by the
investigators, then ensures the veracity of the confession and guilt of the confessor.
We all know that “ethics” is the standards by which all individuals should conduct their
activities. Often, institutions and organizations establish ethical conduct, such as the legal
ethics for attorneys prescribed by the Bar Association. By what code of ethics should inter-
rogators conduct their activities? Is there any circumstance in which the normal standard of
ethics in interrogation should be abrogated?
Ethical behavior is, in our view, independent of laws, rules, and policy, because some of
these may be immoral in or of themselves. For example, most of the racial crimes perpe-
trated by the Third Reich were codified by the Reichstag and therefore “legal.” In the
Republic of South Africa, apartheid was also legal, as were the Jim Crow laws of the United
&nbs
p; States. Behaving in an immoral way just because it is acceptable under the law is still uneth-
ical. Violating a law because you deem it immoral is still illegal. The question becomes,
“How do I conduct myself when there is a conflict between what is legal and what is ethi-
cal?” It is not enough to always “do the right thing.” Sometimes, there is no right thing.
We believe that a person’s conscience is a pretty good guide to how to conduct oneself.
If you are ashamed of what you did to get that confession, you most probably crossed that
ethical line.
Today the world faces an unprecedented enemy in the form of the international terrorist.
This enemy is capable of taking innocent human beings hostage in airplanes and crashing
those airplanes into buildings full of other innocent human beings; walking into a restau-
rant full of people and blowing himself up; or killing thirteen fellow soldiers with gunfire.
This enemy is a state of mind that may be found in anyone who lives among us. It is a fanat-
icism that cannot be reasoned with or cajoled into compliance.
Although the authors are adamant that unnecessary duress or torture that causes irrepa-
rable physical or mental harm should never be used in a law enforcement situation, we rec-
ognize that in certain counterintelligence situations, such as the “ticking bomb” scenarios
that our military and intelligence services face in the war against terror, sometimes extraor-
dinary interrogation measures must be undertaken “for the greater good.”
Post-9/11, the most criticized and discussed enhanced interrogation methods employed
by U.S. interrogators and their agents has been “waterboarding.” In waterboarding, the per-
son being interrogated is strapped to a slightly tilted board – head down – with a cloth
hood affixed over the nose and mouth. Water is then poured by bucket or hose over the
head, giving the sensation of drowning. The water is poured for anywhere from 30 seconds
to a minute or two. This is repeated until the subject answers the questions or the interro-
gators determine there is a danger to the physical well-being of the person. Waterboarding
14. TORTURE AND FALSE CONFESSIONS
231
is often repeated over a long period of time. The employers of this technique claim that it is
Nathan J Gordon, William L Fleisher Page 33