Torture and Institutional Design
abstract. This Essay discusses the creation, rise, and decline of the High-Value Detainee Interrogation Group (HIG) as a case study for how institutional design affects the implementation of international commitments. The Obama Administration created the HIG to utilize noncoercive interrogation methods that comply with international-law norms against torture while demonstrating the effectiveness of such methods to the rest of the U.S. government. But the HIG’s placement within the Federal Bureau of Investigation and its dependence on other agencies in the national-security space rendered it unable to effectively promote policy change without direct support from the President. Agencies with counterterrorism as their core mission rely on coercive interrogation methods because they are more likely to produce information regarding threats—even when such information is inaccurate. This strong resistance among agencies in national security to abandoning the use of coercive methods caused the HIG to lose all its influence when the Obama Administration ended.
Institutional design—the strategic placement of a new entity within a nation’s bureaucracy—plays a crucial role in establishing the entity’s mission and influence.1 But institutional design has its limits. When the goal is to substantially alter policies that are long entrenched in the existing bureaucracy, institutional design alone will rarely suffice. Direct intervention by the chief executive and the legislature are necessary for lasting, meaningful change.
This Essay uses the United States’s High-Value Detainee Interrogation Group (HIG) as a case study for this phenomenon. In 2010, the Obama administration created the HIG, an interagency group housed within the Federal Bureau of Investigation (FBI), to utilize noncoercive methods while demonstrating the effectiveness of such methods to the rest of the U.S. government.2 The HIG’s creation was part of an effort to shift interrogation policy away from traditional, coercive practices that had led to the use of torture—a profound violation of U.S. international legal obligations.3
Examining the HIG’s fate is especially useful because it was established with a single purpose—to reverse longstanding policy—and its efforts to do so manifestly foundered when Congress failed to fully write the new policy into law and the President who had championed it was no longer in office.
The HIG dispatched teams to conduct interrogations of special importance to the U.S. intelligence community.4 The HIG also conducted research to establish best practices on effective and lawful interrogation, and disseminated those practices to the rest of the intelligence community. The HIG was created to help ensure that national-security interrogations comply with U.S. obligations under the law of armed conflict and international human rights law. In particular, it was designed to deploy noncoercive interrogation methods and encourage their use throughout the U.S. government, while supporting research that furthers their effectiveness.5
Since 2017, however, the HIG has been sidelined.6 It is no longer deployed to interrogate high-value detainees and its research component has been starved of support and resources. The HIG’s attempts to establish noncoercive techniques as the standard for interrogation have encountered strong resistance from those in the intelligence community who insist that the traditional, more coercive techniques are necessary and effective.7
Part I of this Essay explains the importance of the U.S. international-law obligation to refrain from the use of torture, the Enhanced Interrogation Program that violated this obligation, and the persistence of coercive interrogation techniques that typically pave the road to torture’s use. This part also recounts why and how the HIG was created, its brief success, and its precipitous fall at the end of the Obama administration. Part II then seeks to explain why, in the case of the HIG, bureaucratic culture revealed the limits of institutional design—limits which may also frustrate similar efforts to ensure compliance with international law.
The United States is bound under international law to refrain from, and to outlaw, the use of torture. This prohibition is one of America’s strongest legal obligations. Many courts and scholars have concluded that the prohibition against torture enjoys jus cogens status: as a “peremptory” norm, it applies universally and without exception.8 The prohibition has long been recognized as a customary principle of the Law of Armed Conflict.9 It has been repeatedly codified in that body of law, most recently in the Geneva Conventions10 and Additional Protocols,11 which also prohibit cruel, inhuman, and degrading treatment (CIDT) that does not rise to the level of torture.12 The United States is a party to the Geneva Conventions and has recognized the torture and CIDT prohibitions in the Protocols to the extent they reflect customary international law.13 Moreover, in the realm of international human rights law, the United States has ratified the Convention Against Torture (CAT),14 enacted statutes imposing criminal penalties for torture and CIDT, and provided a right of action for victims.15
These conventions and statutes reflect the reality that torture and CIDT often manifest in the interrogation context. Coercion in various forms has been a staple—if not the guiding principle—of interrogation since Ancient Greece and Rome.16 Military and law enforcement at every level in the United States continue to rely heavily on “accusatorial” approaches, which are inherently coercive.17 Fred Inbau and John Reid formalized one still-influential version of the accusatorial approach in 1962.18 The Reid Method is “guilt-presumptive and confession-focused.” The goal is to “establish control over the suspect, use questions that confirm what [the interrogators] believe to be true, and assess credibility based upon nonverbal indicators and the suspect’s level of anxiety.”19 Establishing control over the suspect is usually accomplished by isolating him and inducing his total reliance on the interrogator.20
Although the Reid Method and similar approaches do not prescribe the use of torture or CIDT, the prisoner’s vulnerability creates a temptation to resort to ever more coercive methods. This is especially so when the stakes are high—such as during wartime or when terrorist attacks are anticipated.21 The Geneva Conventions take this temptation into account by prohibiting the use of any type of coercion on detainees with prisoner-of-war status.22 Whenever the military and law enforcement rely on coercive measures to obtain information, they walk a path that has frequently led to CIDT and torture.23
Indeed, many U.S. government officials hold the view that interrogation methods widely considered to be torture or CIDT are indispensable—even as they disavow the use of torture or CIDT per se.24 From approximately 2002 to 2007, the CIA implemented this view as policy through the deployment of so-called “enhanced interrogation techniques” (EITs).25 These EITs included waterboarding, walling, stress positions, dietary manipulation, and sleep deprivation, among others. The CIA’s Enhanced Interrogation Program was essentially an extreme version of the Reid Method. Because the Al Qaeda prisoners were especially resistant to interrogation, it was believed, the requisite isolation and control could only be achieved through extremely coercive methods that would break down a prisoner’s will to resist and possibly, in the process, his personality as well.26
President George W. Bush and Vice President Dick Cheney, among others, both simultaneously denied that EITs constituted torture and claimed that their use was necessary to save American lives.27 Ultimately, however, the U.S. government—through the findings of the Senate Select Committee on Intelligence and in remarks by President Obama—seemed to have reached a general consensus that some of the EITs at least—waterboarding in particular—are torture.28
By 2005, when it became clear that EITs and related coercive treatment were deployed well beyond the context of the CIA program, Congress moved to limit their use. The Detainee Treatment Act (DTA) provided that “[n]o individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.”29 The DTA also provided that Army Field Manual 2-22.3 (AFM) delimits the complete range of lawful coercive techniques to be used on any person detained by the Department of Defense (DoD).30
Nonetheless, the DTA left considerable uncertainty about the scope of these restrictions—at least as a matter of statutory command. The boundaries of what constitutes CIDT are porous.31 And Congress, by referencing the AFM, appeared to delegate to the Department of Defense the discretion to determine which interrogation methods were lawful: after all, the Army Field Manual could be revised.32 Moreover, the AFM reference did not apply to the CIA at all.
President Obama eliminated much of this uncertainty by repudiating the Bush interrogation policy and, among other things, applying the AFM limits to the CIA and all other U.S. government agencies.33 Congress enacted most of these changes into law in 2015.34 It also imposed significant constraints on DoD discretion by requiring the Secretary of Defense, “in consultation with the Attorney General, FBI Director, and Director of National Intelligence,” to ensure that future amendments to the Army Field Manual “compl[y] with the legal obligations of the United States” and therefore “do not involve the use or threat of use of force.”35 Depending on how one defines the “use or threat of use of force” in the interrogation context, this language seems to foreclose the revival of EITs and many other highly coercive methods as well.36
Nonetheless, the version of the AFM still in effect authorizes a set of coercive interrogation methods for use “to meet unique and critical operational requirements.”37 When utilized in combination and to the fullest extent permitted, these methods could easily fall within the definition of CIDT,38 and possibly torture as well.39 One AFM technique is called “separation”—the isolation of the detainee from others, which, with periodic approval from the combatant commander, could go on for months.40 In shorter increments when physical separation is not feasible, the detainee can be further isolated through the use of “goggles or blindfolds and earmuffs” to “generate a perception of separation.”41 A detainee may also be deprived of sleep for up to forty hours at a time.42 Like isolation, there is no apparent limit to the amount of time sleep deprivation may be used, so long as there is periodic re-approval.
The rationales for authorizing many of these techniques mirror the Reid Method’s and follow the accusatory tradition that ultimately led to the creation of the Enhanced Interrogation Program.43 One stated objective of using separation is to “foster a feeling of futility.”44 The initial “field-expedient separation” also serves to “[p]rolong the shock of capture.”45 The AFM prescribes combining separation with forms of emotional manipulation, including “Futility” (to “engender a feeling of hopelessness and helplessness,” so that cooperation is a “way out”), and “Fear Up and Down,” in which the interrogator induces fear and offers to assuage it if the detainee cooperates.46 At one point the AFM indicates that the goal of using these “emotional approaches” is to “hasten the source’s reaching the breaking point.”47
The AFM’s approval of these coercive techniques presaged just how difficult it would be for the military and the intelligence community to abandon the well-entrenched accusatory tradition. Plenty of evidence already existed that coercive methods frequently produced false confessions.48 Internal CIA reports determined that its own use of coercive techniques had been ineffective,49 a view shared by many interrogation officials in the military.50 And in 2006, the same year the coercive techniques were detailed in the AFM for the first time, the now-defunct U.S. Intelligence Science Board produced a “landmark” report concluding that accusatorial methods were “devoid of any scientific evaluation or validity,” and “recommended that the U.S. government initiate a program of research to develop effective, evidence-based approaches that meet both ethical and legal standards.”51
President Obama—or President Trump, for that matter—could have ordered the removal of all coercive interrogation techniques from the AFM and, in doing so, prohibited their use.52 But President Obama chose instead to use institutional design to steer the military and the intelligence community away from the use of coercive techniques. He created the HIG.
The Obama administration apparently took notice of the evidence that coercive interrogation techniques were ineffective. In the same Executive Order banning the use of EITs, President Obama created the Special Task Force on Interrogations and Transfer Policies to “establish a specialized interrogation group to bring together officials from law enforcement, the U.S. Intelligence Community and the Department of Defense to conduct interrogations in a manner that will strengthen national security consistent with the rule of law.”53 The Task Force recommended the creation of the HIG, which was set up in early 2010.54
The HIG is an interagency group whose charter established an interrogation arm and a research arm, with the two intended to operate in a positive feedback loop.55 The HIG’s charter described its mission as bringing to bear “the nation’s best available interrogation resources against terrorism detainees identified as having access to information with the greatest potential to prevent terrorist attacks against the United States and its allies.”56 The interrogation arm would deploy mobile interrogation teams to serve the intelligence community, law enforcement, and the military in the most delicate cases. And on the research side, the HIG would “serve as the locus for interrogation best practices, lessons learned, and research for the federal government.”57 The interrogation arm would operate mostly in secret, but the research arm would operate in public, engaging with the scientific community and commissioning research with the general goal of establishing the effectiveness of noncoercive methods.58
Although the internal deliberations concerning the HIG’s creation remain shrouded in secrecy, one can infer from the HIG’s structure what Obama administration officials evidently believed would be most effective in furthering this goal. The HIG was housed within the FBI, a nonmilitary agency with a traditional focus on, and reputation for effectiveness in, interviewing suspects and witnesses.59 FBI agents’ traditional investigative tasks, moreover, typically allowed them to avoid relying on “displays of personal dominance, physical strength, or identification with the victims.”60 The HIG Director is an FBI official appointed by, and reporting directly to, the FBI Director.61
At the same time, the White House anticipated the need for buy-in from other federal agencies involved in interrogations. Accordingly, the HIG’s leadership would also include experts drawn from the CIA, law enforcement, and the Defense Intelligence Agency, a DoD component.62
Nonetheless, it appears that what the HIG lacked in formal authority over sister agencies it made up for with clout, at least for a time. High-level White House officials, including the Homeland Security Advisor and President Obama himself, touted the HIGs importance.63 In any event, for about six years, from 2010 to 2016, the HIG seems to have functioned more or less as intended. It had a staff of about fifty. Its interrogation teams were reportedly deployed about thirty-four times.64 And according to the HIG’s own 2016 report, the research it commissioned “led to over 100 publications in peer-reviewed journals” and was “incorporated into HIG best practices via a continuous cycle of research advising training, training informing operations, and operational experience identifying research gaps and updating training models.”65 One of its directors, Frazier Thompson, pointedly declared in early 2016 that coercive methods do not work.66
But even by 2016, there were signs that the HIG was encountering resistance to its efforts to displace traditional accusatory interrogation methods—both from within the FBI and without. One red flag was that the HIG, in its statutorily-mandated report, declined to evaluate the effectiveness of the AFM-authorized coercive methods and failed to propose changes to the AFM, “despite explicit statutory authorization to do so.”67 The resistance to HIG’s mission had become strong even—perhaps especially—within its parent agency, the FBI. HIG Director Thompson was “quietly pushed out” early in 2016 after clashing with FBI leadership over the HIG’s mission; and unlike for his predecessors, Thompson’s HIG role did not give him a career boost.68 In 2017, the HIG’s supporters described “an increasingly dismissive attitude at the FBI,” which failed “to advocate for” the HIG’s deployment for interrogations or its role in revising the AFM. The FBI was also seen as “disregarding” and “actively undermining” the HIG’s research, and it refused to adopt the non-coercive approach in its own interrogation groups or at its academy, instead clinging to the Reid Method.69
In the Trump administration, the HIG’s decline into obscurity accelerated. It seems not to have been deployed for interrogations at all.70 And the research arm has been neglected: its funding has been cut, new research projects have not been approved, and the original director resigned in protest in 2017 without immediate replacement.71
What went wrong? Scholars of the administrative state and regulation will recognize design flaws that sowed the seeds of the HIG’s decline and ultimately prevented it from fulfilling its mission to encourage the use of non-coercive interrogation methods.
There is evidence that interagency groups can perform crucial coordination functions that enable the government to carry out policies more efficiently—including the implementation of international-law obligations.72 But there is little evidence that interagency groups are capable of implementing significant policy shifts without the direct and persistent involvement of high-level White House officials.73
Bureaucrats in national security possess the same motivations as other bureaucrats—they seek increased budgets, autonomy, and prestige.74 They can rarely obtain those goals by reporting that all is well in the world; if they fail to identify a catastrophic threat, their agency will suffer serious reputational damage, as the CIA did after 9/11.75 Instead, these bureaucrats are rationally motivated to obtain as much information as possible from as many sources as possible, and to identify national security threats in the information they obtain. Aggressive intelligence-gathering and threat inflation are therefore most likely to be rewarded.76 Changing course is typically regarded as an admission of failure.77 And pervasive secrecy allows agencies in the national security space to hide inaccurate results, so long as those results do not lead to a public scandal.
These incentives help explain why the HIG was bound to encounter resistance and why it cannot succeed without strong support from the White House. An interagency group inevitably risks creating resentment among the agencies it interacts with when it performs functions once carried out exclusively or independently by those agencies. Deploying the HIG meant “sidelining each respective agencies’ own internal interrogation personnel.”78 And these personnel were heavily invested in using traditional coercive interrogation methods. After 9/11, counterterrorism became central to the mission of nearly every major federal government entity in the national security realm, including the FBI.79 Even with the best intentions, interrogators in these federal agencies are looking for information about serious threats—that is their core mission. Coercive methods are more likely to produce that type of result, even if the information is often inaccurate. Agencies whose agendas conflict with their parent agency’s will typically find themselves without much influence.80 The HIG’s fate is not an unusual one in this respect.
What can be done? The HIG’s story suggests that only direct presidential intervention can force agencies in the national security space to alter long-entrenched practices. Yet altering such practices will often be necessary to honor commitments to other nations and comply with international law. The clear mandate from President Obama gave the HIG the clout it needed to get buy-in from the other agencies, at least for a time. But the President cannot personally oversee every aspect of the national security state’s operations and provide the constant pressure necessary to keep reforms in place. Congressional oversight, which is usually scant when it comes to the operational side of national security functions, would help. And so would less secrecy and more public accountability.81 These are the traditional means by which the administrative state has been kept in check, and they should be applied to national security interrogation as well.
Associate Professor, University of Baltimore School of Law. I am grateful for the valuable feedback I received from John Bessler, Jeremy Telman, and Harlan Cohen.