Effective Interviewing Techniques for Police and Prosecutors in Terrorism Investigations By: Florence Akurut, Victoria DeSimone & Bernie Siler SCHOOL OF INTERNATIONAL SERVICE -­‐ AMERICAN UNIVERSITY i Table of Contents
Executive Summary Statement of the Problem The Evolution of Interrogations Introduction of Torture Why Torture? Is the torture of a terrorist ever legitimate? Exercise #1* What is the ticking time bomb scenario? Legal Aspects Does Torture work? Country Profiles Albania Bosnia and Herzegovina Kosovo Macedonia Serbia International Norms and Domestic Law Governing Interrogations International Law Peacetime International Law and Domestic Law Consequences of Misconduct Criminal Procedure in the Balkans Introduction to Interviews Features of Interviews Characteristics of Effective Interviewers Exercise #2* Police Interviews Questioning Types of Questions that Should Be Avoided Exercises #3-­‐6* Consequences of Unethical Interviews False Confessions Case Study: Consequences of False Confessions* Comparative Analysis of Interviews and Interrogations Military and Law Enforcement Interviews and Interrogations Types of Interview Styles 1
1 1 2 5 19 22 22 26 ii PEACE Model Cognitive Interviewing Technique Conversation Management Interviewing Technique Mutt and Jeff Interviewing Technique Statement Analysis Exercise #7* Polygraph Rationalizing, Projecting, Minimizing Reid Interviewing Technique Kinesic Interviewing Technique Importance of Preparation in Interviews Importance of Rapport Building Benefits of Recording Interviews Using an Interpreter in Interviews Introduction of Interrogations Third Degree Interrogation Techniques Exercise #8* Are EITs Effective? Counter-­‐Interrogation Techniques Exercises #9-­‐11* Role Play* Recommendations Conclusion Bibliography 39 40 41 42 42 46 50 51 52 53 *Identifies exercises and scenarios that were created to facilitate teaching. iii Executive Summary
The United States has a national security interest in the Balkans, which recently
experienced an increase in terrorist related activities. It is essential that the Balkan region
effectively manage these types of threats. The intelligence gained from suspected terrorists is
central to counterterrorism objectives. Interviews of suspected terrorists is crucial for successful
investigations. As such, the individuals that conduct said interviews must be held to the highest
standards. It is crucial that law enforcement officials, along with prosecutors, adapt and manage
an effective interview process, in order to neutralize terrorist threats in an efficient manner.
The International Criminal Investigative Training Assistance Program (ICITAP)
recognizes the United States national security interests in the Balkan region, specifically Albania,
Bosnia and Herzegovina, Kosovo, Macedonia, and Serbia. With the recent legislation in the
Balkan region against foreign fighters, and the surge in Syrian refugees, ICITAP seeks to
develop a course tailored to each of the identified countries. It will help train law enforcement
officials and prosecutors in effective interview styles. Additionally, this project aims to inform
ICITAP officials on various aspects interrogation methods. The project will provide background
information on the identified countries, and the legal norms they follow. It will also lay the
foundation for a course that ICITAP will create that will potentially have lasting impacts on the
countries and the Balkan region at large.
Statement of the Problem
Terrorist operations continue to threaten the national security of the United States and its
allies throughout the world. This necessitates well-trained law enforcement officers and
prosecutors who are able to conduct professional and ethical interviews without violating the rule
of law and human rights.
The Evolution of Interrogations
Gaining information has been a human quest for millennia. The need for such has been
related to military campaigns, crime fighting and national security. As such, various means have
been used to exact information and confessions. There has been progress from grossly inhumane
practices to a professed prohibition of inhumane methods and torture. But this problem still
exists in some countries throughout the world, including the west.
During ancient and medieval times, infernal devices and methods like bamboo shoots
under the fingernails, knee splitters and placement on the rack, a device that essentially pulled an
individual's body apart, were used to exact information and/or punish wrongdoers.1 In ancient
America, the Incas would dangle adulterers over the edge of cliffs by their hair until the roots
gave way.2 By the late eighteenth century the modern world experienced the Age of
Enlightenment, themes included equality and the rights of the governed rather than of the
government. The extreme inhumane methods that marked medieval times gave way to
theoretical principles that would contraindicate employment of those methods. The constitutions
of identified countries also reflect these principles.3
1
Gifford, Clive. Killer History. New York: Buster Books, 2012. 2
Jones, David. Everyday Life of the Ancient Incas. London: Annes Publishing Ltd., 2010. 109-111. 3
Constitution of Bosnia and Herzegovina, PREAMBLE, PARAGRAPH II, SECTION A, ARTICLE 2,
JANUARY 1994.
1 Though society’s norms regarding torture had progressed from earlier times, remnants of
the old methods of obtaining information persisted. For example, in the case of the conspirators
charged in the assassination of President Lincoln several interrogation sessions were had with
them. Updated methods such as observing involuntary body movements and the use of nonaggressive and innocuous questions began to be employed. However, evidence that the use of
torturous methods had not totally gone by the wayside was the fact that cotton hoods were placed
over the heads of the conspirators with openings only at the mouth.4 This tactic was used during
a hot humid Washington spring and summer. Interrogators noticed the body language in the case
of Dr. Samuel Mudd, who would turn pale and blue about the lips whenever questions got closer
to the truth.5
In the 1940s Russia tortured suspected foreign spies and disloyal soldiers. During that
same era a new trend seemed to emerge from World War II. Two of the most successful
interrogators in history used methods of subtle inquiry instead of torture. Hanns Scharff, a
German soldier, would question captured Allied aviators where he made them feel at ease and
refrained from torture. His success resulted from creating the illusion that his government
already knew certain facts which removed the prisoners’ incentive to withhold information. He
was also adept at concealing whether information that he received from "small talk" with the
prisoner was of any value.6
An American interrogator named William Moran worked in the Pacific Theatre and
interrogated Japanese prisoners. His techniques were similar to Scharff's with the added tactic of
using his familiarity with Japanese culture. He used this advantage by pointing out that failure of
a prisoner to cooperate with a person who had been treating him as gentlemen is contrary to the
spirit of their society.7
The common thread between those two interrogators was the ability to humanize
prisoners and get them to let their guards down. The result was to give the prisoner the
impression that little or no valuable information had been given when in fact it had been.8
In the 1950s and 1960s, United States spies were given poison pills to commit suicide
rather than face torture. The international community has been fairly consistent in proscribing
torture as reflected in treaties and other international agreements.9 Accordingly, the international
community still condemns these methods. Cases in point are the peace accords which ended the
fighting in the newly created Balkan states in the 1990s, and their newly created constitutions.10
Introduction of Torture
According to the UN Convention Against Torture (CAT) torture is defined as “any act by
which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person
4
Swanson, James. Manhunt. New York: Harper Collins Publishers, 2006. 235.
Swanson, James. 238.
6
Kristoffersen, LTC Ronnie. "Learning From History: What is Successful Interrogation?" CTX Journal
Vol. 2 No. 2, May 2012.
7
Ibid.
8
Ibid.
9
Geneva Convention Relative to the Protection of Civilian Persons, 12 August 1949. United States
Department of the Army Field Manual 27-10.
10
Constitution of Bosnia and Herzegovina, PARAGRAPH II, SECTION A, ARTICLE 2, JANUARY 1994.
5
2 for such purposes as obtaining from him or a third person information or a confession… with the
consent or acquiescence of a public official or other person acting in an official capacity.”11
The definition encompasses things like discrimination, coercion, and punishment. This umbrella
definition is used as a “catch all” to violations in human rights with regards to torture.
Several of the countries who ratified this treaty have been accused of using torture in
interrogations. States have also been accused of sending terrorism suspects overseas to countries
who have not signed the treaty. This also violates the UN Convention because the ratified
agreement prohibits a signatory country from sending prisoners to other countries where torture
is more likely to occur.12
Why Torture?
The purpose of torture is to extract information and gain social control. Often times there
are three actors that play vital roles. The state (democratic or authoritarian), the torturer
(professional, zealot), and the victim.13 The state needs information and believes that the victim
has it. The torturer choses the amount of force used in torturing the victim. The victim has no
choice but to give up information. Below is a list of the three primary arguments that many use
to rationalize the use of torture.14
• Interrogational Argument: Law enforcement assumes that the suspect knows the
information and the only way they can obtain it is by using torture. This also
carries low financial cost to interrogator. Torture is also argued to yield results
faster
• Routine Activities/ Obedience Argument: The Routine Activities Theory states
that a motivated offender, suitable target, and lack of oversight will make torture
more likely to occur. Other arguments that fall in this category is the principalagent issue. This means that the agent breaks the law but the principal fails to
make them take responsibility. Usually they deny knowledge of the action. There
is also the obedience argument. This argument states that if an order is explicitly
given, law enforcement will be likely to obey the order.
• Punitive Argument: When an individual commits a crime they need to be
punished. Therefore, torture is an avenue to punish, dehumanize, and humiliate
an individual who broke the law.
Is the torture of a terrorist ever legitimate?
After a terrorist attack, many feel the need to do “whatever they can” to prevent another
attack from happening. How far are these people willing to go to prevent another attack? Some
argue that policymakers and normal citizens alike will have moral lapses. This means in stressful
situations, average people are likely to agree to torture if it would safeguard them from another
attack.15
11
United Nations. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment. (2000). http://www.state.gov/documents/organization/100296.pdf.
12
Levinson, Sandord. “The Debate on Torture: War Against Virtual States.” University of Pennsylvania
Press (2003).
13
Wantchekon, Leonard & Andrew Healy. “The ‘Game’ of Torture.” Journal of Conflict Resolution (1999).
14
Ibid.
15
Levinson, Standord. 3 Exercise: France used torture during the Algerian struggle from 1954 to 1962 to obtain
information from prisoners. They said the use of torture was effective because they were able to
gain information about future terrorist attacks and other crucial information in dismantling the
network as a whole. What do you think? Is torture acceptable to use in these types of situations?
If not, what is your argument?
Hypothetical:
On 18 March 2015 Karim Ahmed, a Syrian-born French engineer, was changing planes
in London as he was returning from a trip in Tunisia. He was detained once he landed because
he had been photographed with a suspected terrorist at a family member's home. He was held
for 20 days without being charged. Karim denied having any connection with terrorism or
knowing the individual on a personal level. He also had no past criminal record and no history
of being a jihadist. The individual he was photographed with was detained soon after when he
attempted to blow up an embassy in Belgium. Is the use of torture acceptable for Karim because
of his perceived association with the individual suspected of terrorism?
What is the ticking time bomb scenario?
Slavoj Zizek stated, “imagine that in a specific situation, confronted with the proverbial
prisoner who knows’ and whose words can save thousands”. This type of situation arises when
an attack has been planned and the interrogator believes that the suspect knows information that
would prevent the attack from happening. Because of this the interrogator uses harsher
interrogation techniques hoping to obtain the information about the attack earlier so they can
prevent it from happening.16
Legal Aspects
The use of torture is forbidden in most human rights conventions, including the
Convention Against Torture (CAT) and in Article 37 of the Convention of the Rights of the
Child. Its use is usually considered to be a “crime against humanity.” It is clear that torture is
understood as an illegal act. The legal question is not whether the use of torture is illegal but
rather if psychological and non-life threatening techniques should be considered acts of
persecution. These types of methods include sleep deprivation, stress positions, continuous
monotonous noise, etc.17 Some individuals categorize these methods as ill-treatment instead of
torture because they cause no physical pain. In the CAT, psychological torture is prohibited as
well. These types of methods constitute “cruel and degrading treatment” which is still believed to
be wrong by many in the international community. Alex Bellay says “torture thrives when it is
placed beyond the law: when basic rights such as habeas corpus are suspended; where judicial
16
Bellamy, Alex. “No Pain, no gain? Torture and Ethics in the War on Terror.” International Affairs 82.1
(2006).
17
Ibid. 4 authorities and defense lawyers are unable to oversee imprisonment and interrogation; where the
hierarchy of judiciary, executive and military/ police authority becomes blurred. ”18
Does Torture Work?
There are mixed results in the claim that torture is effective in obtaining reliable, lifesaving information from suspects. A former FBI interrogator stated that a “naked Muslim
fundamentalist [is] difficult because he’s going to be ashamed, and humiliated, and cold. He’ll
tell you anything you want to hear to get his clothes back. There’s no value in it.”19 There are
also large amounts of cases that pertain to terrorism suspects giving false confessions under
torturous interrogations. Overall, it is not considered to be an effective practice by most scholars
and even law enforcement personnel.20
The use of torture can have detrimental consequences on governments, and the
individuals conducting it. This includes human rights abuse charges, depression in interrogators,
an increase in refugee status, corruption, social isolation, impunity among law enforcement
personnel, and mistrust and suspicion in government systems.21 Individuals in all parts of society
are impacted by these factors. Additionally, there have been numerous reports that terrorist
organizations have used accounts of torture as propaganda for vulnerable populations.22
Country Profiles
Albania
Statement of the Problem
There are many issues in Albania that pertain to law enforcement and the judiciary. This
includes a lack of accountability among law enforcement officers. Officers are unable to enforce
the law equally because of political and criminal connections. Corruption continues to negatively
impact the ability for law enforcement officers to conduct civilian policing. The low salaries that
officers receive also has an impact on professional behavior which contributes to corrupt
practices.
Country Summary
The Republic of Albania is located in Southeastern Europe, bordered by Montenegro to
the northwest, Kosovo to the northeast, the Republic of Macedonia to the East, and Greece to the
south and southeast. It has a coast on the Adriatic Sea to the west and on the Ionian Sea to the
southwest.
The languages spoken include, Albanian (Tosk and Gheg dialects), Greek, English, Italian and
German. The religions present include Muslim, Greek Orthodox and Roman Catholic.23
Albania gained its independence from the Ottoman Empire in 1912. It was then occupied
by Italy from 1939 to 1943, and by Germany from 1943 to 1944 during World War II. After the
18
Ibid.
Bellamy, Alex.
20
Ibid.
21
Crelinsten, Ronald. D. “The World of Torture: A constructed reality.” Theoretical Criminology (2003).
22
Human Rights First. “Guantanamo Bay: A Terrorists’ Propaganda Tool.”
http://www.humanrightsfirst.org/guantanamo-bay-terrorists-propaganda-tool.
23
CIA: The World Factbook. “Albania.” https://www.cia.gov/library/publications/the-worldfactbook/geos/al.html. 19
5 war, it was under communist rule. The United States established diplomatic relationship with
Albania in 1922, which ended in 1939 after the occupation of Italy. In 1991, the U.S reinstated
diplomatic relations with Albania.24
Albania is a strong U.S partner in the fight against terrorism. In 2014, it joined the Global
Coalition to Counter the Islamic State in Iraq and the Levant. Albanian laws criminalize the acts
and financing of terrorism.25 Also in 2014, the Albanian parliament added three new statutes to
the Criminal Code directed at strengthening the government’s capability to address the problem
of Albanian nationals traveling to fight Syria. Albania is one of the major sources of foreign
terrorist fighters going to Syria and Iraq.26
According to the U.S State Department, the government of Albania does not have the
capability to collect biometric information to monitor terrorist suspects at the border. The
Department of Justice’s International Criminal Investigative Training Assistance Program
(ICITAP) has provided a new information technology component to Albania that will provide it
with the capability to integrate online fingerprint identification functions. Additionally, ICITAP
is in the process of providing fingerprint equipment to all the twenty-six border posts. The border
control module will allow Albanians to collect information of international travelers at border
crossings.27
Since 2012, Albania has cooperated with the Financial Action Task Force on Money
Laundering (FATF) and the Evaluation of Anti-Money Laundering Measures and the Financing
of Terrorism (MONEYVAL) to resolve challenges identified in Anti-Money Laundering/
Combating the Financing of Terrorism. In 2013, Albania adopted a new law against financing
terrorism to comply with the FATF and MONEYVAL recommendations. The law was
implemented in 2014, and has resulted into the seizure of approximately 10 million euros
(approximately US $11,189,000), a large increase from the 213,000 euros (approximately US
$241,712) confiscated in 2013.28
The Albanian constitution and rule of law prohibits torture, cruel, inhumane, or degrading
treatment or punishment of persons. The law created the Ombudsman office and mandated that it
prevent torture, monitor and report on prisons and detention centers. Albania has instruments
that investigate and punish abuse and corruption. The Internal Control Service conducted audits,
responded to complaints, and conducted investigations with increased emphasis on human rights,
prison conditions, and compliance to standard operating procedures. In 2014, the Ombudsman
office processed complaints against police officers, mainly with problems associated with arrests
and detention.29
The constitution requires that police inform suspects of their charges and rights. The law
requires the police to inform the prosecutor immediately of any arrest. The prosecutor may
release the suspect or petition the court within 48 hours to hold the individual further. A court
must decide within 48 hours whether to place a suspect in detention, require bail, prohibit travel,
or require the defendant to report regularly to the police. Law enforcement authorities do not
respect this requirement.30
24
United States Department of State. Country Reports on Human Rights Practices form 2015: Albania.
(2015). http://www.state.gov/documents/organization/253027.pdf.
25
Ibid.
26
Ibid.
27
Ibid.
28
Ibid.
29
Ibid.
30
Ibid. 6 Police impunity remains a serious problem. The Albanian police do not enforce the law
equally due to low salaries, poor motivation and leadership, personal associations, political or
criminal connections, poor infrastructure, and lack of equipment. On the other side, inadequate
supervision has negatively influenced the enforcement of laws and a lack of diversity in the
workforce. It has contributed to continued corruption and unprofessional behavior.31
The police have been accused of mistreating and torturing suspects during detention and
interrogation to obtain confessions. They prolong detention without charges and the prison
conditions are substandard. The Albanian Helsinki Committee (AHC) reported that police use
excessive force, harsh and poor conditions which constitutes inhumane treatment. The majority
of complaints accused the police of stopping persons without justification, detaining persons past
legal deadlines and delaying their transfer to detention facilities. The complaints also included
failure of the police to make suspects aware of their rights and denying them access to a lawyer.
There were also complaints of overcrowding in prisons. The AHC stated that police often
reported that detainees who claimed abuse arrived in police custody with pre-existing injuries.
Authorities did not keep proper medical records which made it difficult for detainees to prove
that their injuries occurred during detention.
The former general police director, Hysni Burgaj, and former deputy, Agron Kulicaj,
were charged with abuse of office after police refused to execute arrest orders for Republican
Guard officers. They were wanted in connection with the killing of protesters in 2011. There are
also ongoing investigations that Albanian officials were involved in organ trafficking after the
conflict with Kosovo in early 2000. Additionally, there were reports of societal killings that
included both “blood feud” and revenge killings.32
The local police are responsible for internal security, and work under the directive of the
Ministry of Interior. Although improvements have been made on how the local police performed
its duties, the Ombudsman office reported that there are still issues surrounding equal police
enforcement. The reports indicated that police and prosecutors continued to be influenced by
political or criminal connections.33
Bosnia
Statement of the Problem
The need to study law enforcement techniques and rule of law for Bosnia and
Herzegovina is centered around two primary problems. They are the presence of members of
terrorist organizations and a system of criminal procedure that is mired in deficiencies and
irregularities.
Country Summary
The Republic of Bosnia and Herzegovina (BiH) is in South-Central Europe, east of the
Adriatic Sea. It is also east and south of Croatia which borders the Adriatic but has access to the
sea in the far southwestern tip. BiH is bordered on the east by Serbia and on the southeast by
Montenegro.
31
Ibid.
Ibid.
33
Ibid.
32
7 At the Constitutional Assembly session held on June 24, 1994, The Federation of Bosnia
and Herzegovina ratified its constitution. Its preamble portended substantive portions of the
document that mirrored many of the democratic and human rights values found in the
constitutions of many of the well-established western democracies. The preamble specifically
cites the United Nations Charter and the Peace Accord that ended the Balkan Wars as a
framework for a government that would be run by democratic institutions that would respect
human rights and freedoms.
Since the Balkan wars, a jihadist attachment of the Army of the Republic of Bosnia and
Herzegovina has been in operation. Operating under the Saudi High Commission (SHC), they
carried out a car bombing attack in Mostar in 1997. It turned out that the SHC was a Saudi
government sponsored organization that financed terrorist activities under the guise of being a
charitable organization. The National Security Agency (NSA) discovered through wiretapping
that similar "charitable" organizations operating in Saudi Arabia, Pakistan and Kuwait helped
support terrorist operations in Bosnia and Herzegovina. Under the pretense of giving
humanitarian aid, these groups were actively developing islamisation of Bosnian youth.34
The current situation on the ground in BiH is that radical Islamic groups are fairly small
and not unified insofar as Bosnian citizens are concerned. Incidents of violence have been
largely perpetrated by foreigners or persons with criminal records.35 An example of the violence
that has taken place is the December 2012 shooting into the United States Embassy in
Sarajevo. Earlier that same year a naturalized American citizen who was from Bosnia was
sentenced to life in prison for plotting terrorist attacks in New York in 2009. It does appear,
however, that members of the domestic Islamic community have not been the primary source of
the threat of terrorist acts. In fact many Islamic religious leaders have joined with clergy of the
other religions represented in the region to educate and promote tolerance in an effort prevent
radicalism.36 However, the presence of these extremist organizations, though disjointed, still
creates a situation that bears watching.
The police in Bosnia are a fragmented agency with respect to function as well as
jurisdiction. Local departments have jurisdiction in their particular canton while the Federation
police are national. Also having national jurisdiction and serving also as an investigative agency
is the State Investigative and Protective Agency.37
The substantive part of the rule of law is found in Paragraph II, Section A, Article 2 of
the Constitution. The rights to life, equal protection under the laws without regard to race, color,
religion, political opinion or national origin are guaranteed. Also, deprivation of liberty is
authorized only by fair judicial proceedings.38 A striking component of Article 2 is the clause
stating that "All persons within the territory of the federation shall enjoy these rights." A
reasonable interpretation of that language is that persons who are within the boundaries of the
country are afforded these protections. By extension this would include foreign born persons
who are in the country and who are suspected of criminal activity including terrorism. The other
democratic ideals that are specifically laid out in the constitution are free speech, assembly,
association and movement.39 The most pertinent language in Article 2 with respect to the subject
34
"Bosnia's Dangerous Tango." Crisis Group, February, 2013.
Ibid.
36
Ibid.
37
Ibid.
38
Constitution of Bosnia and Herzegovina, PARAGRAPH II, SECTION A, ARTICLE 2, JANUARY 1994. 39
Ibid. 35
8 of this study is the general prohibition against "torture and cruel or inhuman treatment or
punishment."40
In order to help enforce the rule of law, Section B of Paragraph II authorizes three
Ombudsmen to protect the guarantees outlined in the Constitution. Their authority includes
examination of activities of government or individuals that appear to deprive persons in the
country of their constitutional rights.41
Although the above-mentioned values have been set forth in the Constitution of Bosnia
and Herzegovina, the theory and the practice do not always coincide. In some cases, the practice
of the government appears to be in direct defiance of the rule of law. In February 2014
protesters against the political and economic state of the country were met with police brutality
while exercising their rights as propounded by the Constitution. The protesters' primary
dissatisfaction was the government's failure to adequately facilitate the election of members of
diverse ethnic groups and women to political office.42
A study of Bosnia reveals that citizens are still concerned about corruption. Studies
indicate that the actual incidence of corrupt acts involving government may differ from the
perception of citizens. The significance of this dichotomy is that the perception of corruption is
the bigger problem. Currently, the perception starts a vicious cycle that perpetuates the actual
problem. As long as it is widely believed that nothing will get done without corruption, offers
and demands for favors involving public officials will continue. In BiH for example, citizens see
corruption as the fourth major problem behind unemployment, poverty and lack of government
services. Citizens of other Balkan states rate corruption anywhere between second and fourth
among the issues mentioned.43 Studies also show the level of corruption that specific areas of
government are involved. Local government, political parties, public hospitals, law courts and
police round out the top five. Public prosecutors are ranked tenth and public utilities, NGOs and
military at number 17 round out the bottom of the list. 44
Within the study there is a breakdown of the types of corruption that take place. For
example, the citizens believe that among public officials, the first two areas of concern are the
facilitating of friends and relatives being placed in positions and the granting of contracts to
companies that the officials may be affiliated with. These concerns are followed by the
presentation of gifts to officials in exchange for public services and bribery and kickbacks.45
Kosovo
Statement of the problem
The major issues in Kosovo include corruption and poor functioning of the judicial
systems which continues to hinder law enforcement and their ability to fight terrorism. There is a
continuous flow of foreign terrorist fighters from Kosovo joining ISIL in Syria and Iraq. Also in
Kosovo, there is an increase in lone offender attacks and their targeting of civilians, religious
pilgrims and other communities. Inadequate and poor investigative techniques have led to a loss
40
Ibid. Constitution of Bosnia and Herzegovina, PARAGRAPH II, SECTION A, ARTICLE 2, JANUARY 1994.
42
"World Report 2015: Bosnia and Herzegovina." Human Rights Watch, 2015.
43
"Business, Corruption and Crime in the Western Balkans." United Nations Office on Drugs and Crime,
2013.
44
Ibid. 45
Ibid. 41
9 of court cases regarding terrorism and other major crimes as a whole.46 Another issue in Kosovo
is the inconsistency of language translation of official documents, including the constitution
which contributes to confusion among civilians and law enforcement officials.
Country Summary
The Republic of Kosovo is located in Southeastern Europe, bordered by Macedonia,
Serbia, Montenegro and Albania. It obtained its independence from Serbia on February 17, 2008.
The major languages spoken are Albanian and Serbian which have equal standing under the law.
The religions are comprised of Islam and Orthodox Christianity.
Kosovo continues to experience a growing threat of violent Islamist extremism. This rise
is associated with the increased funding from foreign organizations that preach extremist
ideologies. The country is not a member of the UN and not an official party to the UNSC
Resolutions 2170 and 2178, however, they have pledged to implement these resolutions
unilaterally.47
The government of Serbia and Bosnia and Herzegovina do not recognize the
independence of Kosovo. This lack of recognition has hindered their cooperation on many issues
in Kosovo, including counterterrorism. In return the government of Kosovo is facing challenges
in participating in regional counterterrorism initiatives. 48
According to the U.S. State Department, 150 to 200 foreign terrorist fighters from
Kosovo have traveled to Syria and Iraq to fight for the Islamic State in Iraq and the Levant (ISIL)
or al-Nusrah Front. Although no terrorist incidents have taken place inside Kosovo, these violent
extremist groups aggressively use social media to spread propaganda and recruit followers.
Kosovo is a member of the Global Coalition to Counter ISIL and has taken steps to
support various activities within its capabilities. It has focused on reducing the flow of foreign
terrorist fighters, tracking and restricting the financing for terrorist groups and has provided
humanitarian assistance to refugees from Syria.49
In 2014, the government authorities arrested approximately seventy individuals suspected
of terrorism, forty of whom were suspected to have been returning foreign terrorist fighters. The
Financial Intelligence Unit (FIU) continues to track the finances of individuals and NGOs
suspected of connections to terrorism. The Government of Kosovo is beginning to discuss ways
to counter ISIL-related propaganda, but has taken no concrete steps.50
According to the US State Department, the government of Kosovo conducted one of its
largest counterterrorism operations in in the summer of 2014. It arrested fifty-nine terrorist
suspects. The authorities continued to conduct investigations, without filing any indictments.
However, most of the suspects remained under house arrest at the end of 2014. The prosecution
and the police worked together to collect evidence to charge the terrorist suspects. The
authorities worked closely with European Union Rule of Law Mission in Kosovo (EULEX) to
prosecute the six suspects arrested in June in connection with a separate case. At the end of the
46
United States Department of State. Country Reports on Human Rights Practices form 2015: Kosovo.
http://www.state.gov/documents/organization/253075.pdf
47
Security Council Adopts Resolution 2170. Condemning Gross, Widespread Abuse of Human Rights by
Extremist Groups in Iraq, Syria, (2014) http://www.un.org/press/en/2014/sc11520.doc.htm
48
Ibid.
49
Ibid.
50
Ibid.
10 year, all six suspects remained in police custody. Six terrorism suspects arrested in a November
sting operation also remained in custody while authorities investigated their case.51
Kosovo Serbs complained that, translation into Serbian laws, official documents and
government websites were inadequate. The commissioner received a wide range of complaints,
including that pharmaceutical packaging was not available in Albanian and tax forms were not
available in Serbian. Most government institutions, including ministries, failed to provide equal
amounts of information online in languages other than Albanian. The Kosovo law provides fines
for not respecting the language requirements. However, there were no reports of fines. The
commissioner recommended some institutions to respect all languages, but these institutions
often failed to address the issue. The commissioner lack direct enforcement powers.52
The constitution of the Republic of Kosovo does not use jury trials and all trials are
public. The law entitles defendants to the presumption of innocence, and the right to be informed
promptly of charges against them. They also have the right to be present at their trials, to remain
silent and not to be compelled to testify or confess guilt. The constitution also grants the ability
to confront an adverse witness, to see evidence and to have legal representation. Defendants have
the right to appeal and the law stipulates for a fair and impartial trial and for the judiciary to
uphold the law.53
The laws require the police to arrest any suspect with a warrant based on the evidence
issued by a prosecutor or judge. The prosecutor must charge the suspect within six hours using
the language they understand. The suspect is brought before a judge within 48-hours otherwise
he or she must be release. The law does not allow the police to hold suspects without allowing
outside communication. The suspect must have access to a lawyer of his or her own choice or the
state has to provide one. Suspects have the right to remain silent except answer questions
regarding his or her identity. The law provides suspects to obtain free assistance of an interpreter
and to receive medical and psychiatric treatment.
The police have carried out most arrests using warrants, and there are no confirmed
reports of police abusing the 48-hour rule. The prosecutor provided suspects with documents
explaining reasons for their detention or released them. Law enforcement officials respected the
requirement for timely disposition of cases. However, the Kosovo Rehabilitation Center for
Torture Victims (KRCT) reported delays in processing detainees when prosecutors were
unavailable until the morning after detention.54
The courts rarely issue bail and the law requires the court to detain an individual in
pretrial detention for 30 days from the date of their arrest. The court can extend detention for up
to one year with no indictment. Before the conclusion of the trial proceedings, the judge and trial
panel can order or terminate detention. The Kosovo law allows a judge to issue house arrest,
confiscate travel documents, and extend bail as an alternative to pretrial detention. Suspects can
file a petition against their detention and challenging the legality or conditions of their detention.
Unlawfully detained defendants may also file claims for compensation.
Although Kosovo provides a disciplinary system to discipline judges and prosecutors,
reports of corruption and inefficiency in the judiciary persists. According to the Kosovo Judicial
Council, more than 100,000 civil and criminal cases were pending trial, more than 100,000
51
U.S Dept. of State: Country Report: Kosovo.
Ibid.
53
Ibid.
54
Ibid.
52
11 actions required by judicial decisions were awaiting execution, and 200,000 charges of minor
offenses were pending adjudication.55
On November 6, 2014 a mixed panel of EULEX and local judges at the Pristina District
Court acquitted three Kosovo Serbs who were retried for war crimes against two Kosovo
Albanians in 1999. Media cited EULEX Judge Vladimir Mikula as stating that the acquittal
resulted from a failure to investigate the offenses properly. Victims’ representatives announced
their intent to file an appeal with the basic court.56
Macedonia
Statement of the Problem
As with many countries in the Balkans, there are significant levels of corruption in
Macedonia. A major issue in the country is the lack of separation between the judiciary and the
government. There is a very specific culture that impacts the efficiency of the government. That
culture is how those in law enforcement feel about their role towards the government. In
Macedonia, law enforcement officials and those in the judicial branch believe that their purpose
is to serve the needs of the government, not the people. This has an obvious impact on the
amount of corruption in the country. There is also a huge gap between police and prosecutors
which impacts their ability to work together.
Another problem that plagues Macedonia, is the prevalence of foreign terrorist fighters.
In order to counter this issue, law enforcement needs to have a better understanding of the
psychological profile for foreign terrorist fighters. They should also have a clear understanding
of their characteristics and motivations. Knowing that information will help law enforcement
officials tremendously in their investigations and interrogations.
Country Summary
In 1991, Macedonia peacefully seceded from the former Yugoslavia. Macedonia can be
found in southeastern Europe, to the north of Greece. The government operates under the civil
law system. After they declared independence there were many issues from Greece about the
country’s name. Eventually there were admitted to the UN in 1993 as The Former Yugoslav
Republic of Macedonia. As of 2004, over 130 nations recognize Macedonia by its constitutional
name. The name dispute between Macedonia and Greece continues to be a problem even today.
Additionally, there is hostility between Macedonians and ethnic Albanians. These grievances
came to a boiling point in 2001 with an insurgency movement. The insurgency movement was
brought on by ethnic tensions between the two groups and inequalities to minority groups.
Relations between the two groups still remain fragile.57
Macedonia is an ethnically diverse country with 25.1% of its population identifying as
Albanian. 66.5% of the population identifying as Macedonian. Both Macedonian and Albanian
are official languages in the country. There is also a significant population of Muslims in
Macedonia. They make up 33.3% of the population.58
Foreign terrorist fighters continue to be a major focus of Macedonian policy. In recent
years, there has been a large number of Macedonian citizens going abroad to fight in foreign
55
Ibid.
Ibid.
57
CIA: The World Factbook. “Macedonia.” https://www.cia.gov/library/publications/the-worldfactbook/geos/mk.html.
58
Ibid. 56
12 conflicts. Syria and Iraq have received a large number of foreign terrorist fighters from
Macedonia. The legislation passed in September 2014 has had a huge impact in deterring
Macedonians from becoming foreign terrorist fighters. The law criminalized fighting, aiding, or
abetting foreign terrorist groups. The Ministry of Foreign Affairs is committed to furthering the
objectives of the UN Security Council Resolution 2178. This includes the development of a
counter terrorism action plan, the creation of a foreign terrorist fighters focused agency and a
conference discussing the foreign terrorist fighter threat to intelligence and law enforcement
personnel.59
Macedonia has laws in place to thwart the finance of terrorist groups. According to State
Department, their criminal code and criminal procedure code both contain counterterrorism
provisions. This has made it easier for intelligence and law enforcement officials to act
efficiently when dealing with the threat. The report by the State Department also claimed that the
Macedonian security sector has become more equipped to deal with terrorism in the country.60
There are numerous reports that state that the number of foreign terrorist fighters from
Macedonia is about 100- 150 individuals. These include Albanians who claim residency in
Macedonia.61Many of the statistics regarding foreign terrorist fighters are up for debate because
many who became foreign terrorist fighters before the September 2014 legislation were not
included in recent counts.62 In August 2015, police raided two Mosques in Skopje, which is also
reported to be a “hive for recruitment of Macedonian citizens” who become foreign terrorist
fighters.63
There are also concerns about the Syrian refugee crisis. Ten to fifteen thousand refugees
continue to pass through Macedonia to get to Austria and Germany. Many officials are
concerned that ISIL fighters are pretending to be refugees in order to gain entry into the west.64
The issue has become so prevalent that the Macedonian/ Greece border has shut down and there
have been numerous reports of Macedonian police throwing tear gas and stun grenades at
refugees.65 There has also been reports of police verbally and physically abusing migrants. The
issue continues to grow as more refugees wait at the border for their passage through
Macedonia.66
Macedonia defines terrorism by acts of violence in the country. They are usually committed by
organized crime groups or politically motivated groups from other Balkan countries.67 For
example, in May 2015 there was a shootout between Macedonian police and ethnic Albanian
“terrorist” in the border town of Kumanovo. The shootout resulted in the death of 8 police
59
United States Department of State. Country Reports on Terrorism 2014. (June 2015):125-127.
http://www.state.gov/documents/organization/239631.pdf.
60
Ibid.
61
Shtuni, Adrian. “Ethnic Albanian Foreign Fighters in Iraq and Syria.” Combating Terrorism Center
(2015). https://www.ctc.usma.edu/posts/ethnic-albanian-foreign-fighters-in-iraq-and-syria.
62
Hatler, Rick. ICITAP Macedonian Country Manager. Interview date: March 2, 2016.
63
Independent. “Operation Cell: Skopje Main Center for Foreign Fighter Recruitment.” (2015).
http://www.independent.mk/articles/20667/Operation+Cell+Skopje+Main+Center+for+Foreign+Fighter+R
ecruitment.
64
Hatler, Rick.
65
Al Jazeera. Macedonia hits Refugees with tear gas, stun grenades.” (2016).
http://www.aljazeera.com/news/2016/02/macedonian-police-fire-tear-gas-refugees160229143534348.html.
66
Human Rights Watch. “Macedonia: unchecked police abuse of migrants.” (2015).
https://www.hrw.org/news/2015/09/21/macedonia-unchecked-police-abuse-migrants.
67
Hatler, Rick. 13 officers.68 It was revealed that the group was planning to attack police stations and other civilian
locations later in the week.69
There are significant levels of corruption in the country and issues with the government
failing to respect rule of law. There were reports of interference in the judiciary by government
officials, selective prosecution, prolonged processes, corruption in the judiciary, and violations in
the right to a public trial. There continues to be issues related to the treatment of detainees by
police and other security forces. Macedonian law prohibits the abuse of prisoners, however, there
have continued to be reports of abuse and excessive force from police. In 2013 there were 177
complaints against police officers who used excessive force. There has yet to be a ruling from
the courts for officers charged with cases of this nature. Macedonian law also prohibits arbitrary
arrest and detention. This continues to be a problem in the country. In only 5% of all cases did
prosecutors’ request detention orders. Oftentimes, a detention order was granted by the courts
even though they failed to meet adequate justification standards.70 Although the government has
the resources to investigate and punish corruption in the country, there continues to be issues
regarding the implementation of these methods successfully. This situation has impacted the
government's ability to fight crime.71
The government has a tendency to create new oversight agencies to help in the fight
against corruption. However, these agencies continue to be ineffective. As one source stated,
“they are trying to put different layers in place to thwart corruption but never fixes the layers
themselves.”72 Several years ago, Macedonian police watched as CIA officials tortured a German
citizen suspected of terrorist activities. Khaled el-Masri was seized in Macedonia is September
2003 and given to the CIA where he was transferred to Afghanistan. The European Court of
Human Rights found Macedonia guilty for their involvement in the matter with the CIA in
2012.73 Macedonia was viewed as liable for the incommunicado detention, enforced
disappearance, torture and other human rights violations committed by CIA officials.74
Law enforcement in Macedonia has a very “communist” way of looking at the world.
Meaning that the purpose of the police is to serve the government, not to serve the people.
Decisions are made in a top-down fashion, resulting in very little decision making by the police.
Oftentimes, police act in a certain way to gain favor of the government. This results in a lot of
corruption with the police force and country as a whole.75
Security and military forces operate under the Ministry of Defense. National police
operate under the Ministry of Interior. Within the Ministry of Interior, there is a Professional
Standards Unit (PSU) that conducts internal investigations for police misconduct. PSU has very
limited abilities in this process. They include the ability to impose suspensions from work but
they are unable to take disciplinary measures or more serious sanctions. These actions are
68
MacCormac, Sean. “Shootout in Macedonia: Albanian Militant Cell Shut Down.” Center for Security
Policy (2015). http://www.centerforsecuritypolicy.org/2015/05/12/shootout-in-macedonia-albanian-militantcell-shut-down/.
69
Hatler, Rick.
70
United States Department of State. Country Reports on Human Rights Practices form 2014:
Macedonia. (2014). http://www.state.gov/documents/organization/236762.pdf,
71
Ibid.
72
Hatler, Rick.
73
Taylor, Richard. “CIA Tortured and Sodomized’ Terror Suspect, Human Rights Court Rules.” The
Guadrian (2012). http://www.theguardian.com/law/2012/dec/13/cia-tortured-sodomised-terror-suspect.
74
Amnesty International. “Annual Report: Macedonia 2015/2016 (2016).
https://www.amnesty.org/en/countries/europe-and-central-asia/macedonia/report-macedonia/. 75
Hatler Rick.
14 required from the courts and disciplinary commissions. There has been improvement within PSU
but there are still numerous issues in conducting and carrying forth internal investigations.76
Also within the the Ministry of Interior is the Public Safety Bureau and other support
sectors used in the transition to the recently implemented Criminal Procedure Code.77 ICITAP
has assisted the Public Safety Bureau by employing their intelligence led policing in a more
effective way.78 The Administration for Security and Counterintelligence is the department that
works primarily with terrorism cases. They also fall within the Ministry of Interior. Macedonia
also has Rapid Response Units and Special Task Units. Each unit responds to either specific
regions of the country or to different crimes. These agencies receive a lot of guidance and
support from State Department funded programs.79
Under the old Penal Code, police conducted interviews and investigations; now that the
prosecutors handle it, it has resulted in many issues between police and prosecutors. Under the
new Criminal Procedure Code, police will only do what prosecutors tell them specifically to do.
Most officers want to avoid accountability since they are no longer in charge of investigations.
Because of this change, there is a huge gap between police and prosecutors which makes it
difficult for them to help each other.80
Since 2001, ICITAP has supported police reform in Macedonia. These reforms have been
identified through the Ohrid Framework agreement established in 2001 that seeks to promote
peaceful development of Macedonian civil society and constructing a better relationship with the
European community.81 One of ICITAP’s main goals is decentralizing police forces in the
country which will help with autonomy. They also have assisted in developing the PSU which
will help to decrease corruption and human rights violations.82
The Criminal Procedure Code that was implemented in 2013 has made significant
changes to the country and how it operates.83 Under the old Penal Code police had the primary
lead in investigations. Now prosecutors take the lead in all investigations including interviews. It
was believed that if they made the prosecutor the lead in investigations there would be a decrease
in corruption. This change did not change the amount of corruption, but did have other
unintended consequences.84
There is a huge disparity between the amount of police and the amount of prosecutors in
the country. This results in prosecutors being under resourced and understaffed to handle the
amount of cases they receive. From the crime scene on, prosecutors are in charge of the case.
Since the new code was implemented in 2013, many prosecutors have still not received proper
training in conducting interviews. It is believed that prosecutors aren’t preparing enough for
interviews and not digging deep enough to understand the criminal mentality, especially the
76
U.S State Dept. Human Rights Practices.
U.S State Dept. Country Reports on Terrorism.
78
United States Department of Justice. ICITAP: Macedonia Law Enforcement Development Program
(2015).
79
U.S State Dept. Country Reports on Terrorism.
80
Hatler, Rick.
81
Ohrid Framework Agreement 13.08.2001.
http://www.ucd.ie/ibis/filestore/Ohrid%20Framework%20Agreement.pdf.
82
U.S Dept. of Justice. ICITAP: Macedonia.
83
U.S Dept. of State. Human Rights Practices.
84
Hatler, Rick. 77
15 terrorist mentality. Also the information obtained through interrogations is used for prosecution,
not intelligence.85
Serbia
Statement of the Problem
Serbia has a poor record of respecting human rights issues from past decades that the
government fails to address. This results in numerous rule of law issues on both the judicial and
law enforcement sides of the government. The recent changes in the Criminal Procedure Code,
have caused confusion amongst law enforcement personnel and contributed to corruption.
Prosecutors have not received training to effectively conduct interviews which could potentially
cause human rights violations. It is also crucial that the country try to engage police officers and
prosecutors to collaborate with each other. This collaboration will ensure effective
communications and partnerships between the two groups which allows a smoother investigative
process. The inefficiency and amount of exploitation in the judiciary also has a substantial
impact on the country’s ability to handle domestic threats as well as international ones.
Country Summary
Serbia was originally a part of the former Yugoslavia. When the country was divided,
Serbia and Montenegro declared itself a new Federal Republic of Yugoslavia (FRY). In 2003,
FRY renamed itself the State Union of Serbia and Montenegro. Serbia gained its independence
in 2006 after Montenegro seceded from the state. The country has a long history of ethnic
tensions and in 2008 Kosovo declared itself independent from Serbia. Since 2014, they have
been in negotiations with the European Union about their accession to the union.86
The country is located in the southeastern part of Europe, specifically between
Macedonia and Hungary. 83.3% of the population is made up of Serbs, followed by 3.5%
identifying as Hungarian. The official language is Serbian which is spoken by 88.1% of the
population.87 Serbia is working bilaterally with the United States to fight terrorism in the region. The
US specifically works with two police organizations the Special Anti-Terrorist Unit and the
Counter-Terrorist Unit. The development of their own counterterrorism center has continued to
make progress in the country. The center will focus on creating coordination amongst the
different agencies in Serbia. The government recently sent a delegation to the US to work with
numerous government agencies to better Serbia’s practice of analysis and implementing methods
to counter prospective terrorist plots and suspects.88 Suspects of terrorism are treated as criminals
and given the same rights as criminal suspects. They are not referred to as enemy combatants,
which is a theme in US laws and policy. There is differentiation between extremism and
terrorism in the country. They define extremists as a member of ISIL or its associated groups and
a terrorist as a homegrown radical. For example, someone who has gone to Crimea to fight under
Russian leadership.89
85
Hatler, Rick.
CIA: The World Factbook. “Serbia.” (2015). https://www.cia.gov/library/publications/the-worldfactbook/geos/ri.html.
87
Ibid.
88
United States Department of State. Country Reports on Terrorism 2014. (June 2015):140-142.
http://www.state.gov/documents/organization/239631.pdf. 89
Madden, Doug. ICITAP Serbia Country Manager. Interview date: March 1,2016.
86
16 The Syrian refugee crisis continues to be of concern for Serbia. They have already
experienced two attacks from ISIL fighters posing as Syrian refugees. Serbia is still unable to
screen people as they come into the country. They also have strict data collection laws which
makes it very difficult to detect potential threats through the use of databases.90 Overall, they have continued to improve their legislative capabilities to fight terrorism,
especially their response to foreign terrorist fighters. But they are still unequipped to handle
matters related to terrorism.91 The new legislation for foreign terrorist fighters was ratified in
October of 2015 and was added as an amendment to the criminal code. The law prohibits Serbian
citizens from participating in foreign conflicts.92 There are large numbers of foreign terrorist
fighters coming out of the Sandzak and Presevo regions in Serbia. The Western Baltic states
have long been a transit route between the Middle East and Western Europe.93 There have been
five indictments under the new foreign terrorist fighter legislation but there has not been any
convictions thus far.94 Because of this, authorities need to establish more efficient and sensitive
ways in determining foreign terrorist fighter threats. Serbia has also improved its capacity to
share information with its bordering countries to help in the fight against these types of threats.
Border control continues to be an area that needs improvement to help thwart the passage of
foreign terrorist fighters. Serbian authorities have continued to work with the US’s Export
Control and Related Border Security program for guidance in these issues.95 Serbia has approximately 43,000 police officers that are under the authority of the
Ministry of the Interior. Police corruption and impunity have continued to be problematic. There
have also been reports of police mistreatment of detainees. Serbia has improved their ability to
prosecute individuals in authority. However, it is still believed that most of these cases have
continued to go unreported.96According to the State Department's Human Rights Report, they
have reason to believe that the use of torture has been tolerated by authorities in obtaining
information from suspects. The deputy ombudsman identified numerous cases of abuse that were
not properly handled by the responsible authorities.97 Under the new Serbian Criminal Procedure Code, there have been improvements in the
quality of police investigations, specifically inter-agency investigations. The Ministry of the
Interior also established a hotline that citizens could use to report law enforcement corruption.
They also sponsored training events dealing with anticorruption in law enforcement. Prosecutors
were included in these.98 The Serbian constitution requires that law enforcement officers gain approval from either
a preliminary proceeding judge or by an investigative judge, prior to to the detention of persons
lasting longer than 48 hours. Usually this time is used to question suspects. The law also states
that law enforcement must notify arrested persons of their rights. It is unlawful for law
enforcement officers to questions suspects without informing them of their rights. This includes
90
Madden, Doug.
U.S Dept. of State. Country Reports on Terrorism.
92
The UN Refugee Agency. “Country Reports on Terrorism 2014- Serbia.” (2015)
http://www.refworld.org/docid/5587c74028.html.
93
U.S Dept. of State. Country Reports on Terrorism.
94
Madden, Doug.
95
U.S Dept. of State. Country Reports on Terrorism.
96
United States Department of State. Country Reports on Human Rights Practices for 2015: Serbia
(2015). http://www.state.gov/documents/organization/253109.pdf.
97
Ibid.
98
Ibid. 91
17 the right to have counsel. If they cannot afford an attorney, they will be given one at the
government's expense. Excessive delays by authorities to file formal charges against suspects in
investigations are prohibited by the constitution. For cases pertaining to terrorism, the law states
that investigations should be concluded twelve months after the crime.99
According to the constitution, Serbia has an independent judiciary but has remained
susceptible to political influence and corruption.100 An EU commission commended Serbia’s
commitment in fighting corruption in the country. The commission did state that Serbia needed
to enhance their legal framework to guarantee an independent judiciary. They also must focus on
the country’s human rights obligations.101 Serbia’s main police force is the Serbian National Police (SNP). When carrying out
intelligence led investigations, they rely on the Operational Analysis Network for funding and
other forms of support. Within the SNP is a division focused on anti-corruption development.
The unit is called the Anti-corruption and Internal Control Unit. This unit works closely with
ICITAP and the Overseas Prosecutorial Development Assistance and Training (OPDAT)
department to ensure improvement in anti-corruption developments. The Internal Control Unit
also investigates corruption, misconduct, and other illegal acts within the Ministry of the Interior.
There are two units within the SNP that handle terrorism cases specifically. They are the AntiTerrorism Investigations Unit and the Special Anti-Terrorism Response Police. These units have
received training from ICITAP to handle terrorism cases more efficiently.102 Terrorism police
units can be trained by US agencies but patrolmen in certain areas are not eligible because of
past human rights violations. There are 27 police districts and 11 of them cannot receive
assistance.103 Serbia also has an Anti-corruption Agency (ACA) which is supposed to be an
independent body accountable to parliament. The main goal of this agency is to combat
corruption. They oversee the implementation of Serbia’s strategy against corruption in all its
forms. In 2014, they failed to perform all of its duties because of loopholes in the legislature. The
agency continues to face a number of challenges including being under-resourced and
understaffed.104 Law enforcement officers are responsible for informing suspects of their rights. However,
they are not responsible for conducting investigations or interrogations. If the prosecutor orders
the police to conduct a pre-investigation they are allowed to participate in the investigative
process to some extent. When the investigation becomes official, it changes hands to the
prosecutor.105 From previous forms of government, there is a mindset in the country that unless
an act is specifically authorized by statue, it is considered to be illegal. This contributes to
inconsistencies in law enforcement.106 The Republic Public Prosecutor's Office is the agency that prosecutors are housed
107
under. Prosecutors have a more hands on way in the investigative process in Serbia. Under the
99
Ibid.
Ibid.
101
Human Rights Watch. World Report 2015: Serbia (2015). https://www.hrw.org/worldreport/2015/country-chapters/serbia/kosovo.
102
United States Department of Justice. ICITAP: Serbia Law Enforcement Development Program (2015).
103
Ibid.
104
U.S Dept. of State. Human Rights Practices.
105
Madden, Doug.
106
Ibid. 107
U.S Dept. of Justice. ICITAP: Serbia.
100
18 Serbian Criminal Procedure Code (CPC), prosecutors handle suspect interrogations. All
information the suspect declares to the police officer is not permissible in court. Many of the
prosecutors have not yet received training in interrogation methods. Prior to 2013, investigative
judges were charged with interrogating suspects and handling investigations. Prosecutors now
lead all criminal investigations.108
Large amounts of corruption and inefficiency in the judiciary cause significant case
backlogs. The result of this backlog is that many cases get dismissed. Unlike the US system, a
suspect cannot be charged multiple times in a single case. If they are not convicted for one crime,
the entire case is overturned. Prosecutors are also unable to make agreements with suspects. For
example, they are not allowed to negotiate a deal in which the suspect would avoid jail if he acts
as an informant to the prosecutor. Prosecutors also have limited use of the plea bargain. This is a
fairly new practice in Serbia and there are no criteria or rules that apply to its use. This results in
a lack of leverage between prosecutors and suspects. Additionally, there is no best practice in
using case law in the country for criminal cases.109
The recent changes in the Criminal Procedure Code has resulted in additional tensions
between the law enforcement community and prosecutors. These tensions have resulted in a lack
of cooperation between the two groups. Often times, prosecutors believe that they cannot learn
from police officers and vice versa.110 ICITAP and OPDAT are working collaboratively to bring
prosecutors and police together to improve the efficiency of the government.111
International Norms and Domestic Laws Governing Interrogations
When addressing the question of how to obtain information from suspected terrorists we
start with the premise that whatever methods used are calculated to curb future violence and
thereby save lives. The threshold question then becomes whether the suspects are to be treated
as enemy combatants or merely perpetrators of organized crime. The international norms and
customs and the domestic law of various countries that dictate acceptable methods in this process
vary depending on the classification the suspects are placed in. Accordingly, the following
discussion covers both situations.
International Law
If captured terrorist suspects are treated as combatants, then international customary and
treaty law would apply. The various conventions signed at Geneva in 1949 regarding the
treatment of prisoners of war and captured civilians would control. Under that guideline, persons
falling into the hands of an opposing government are to be protected from "murder, torture,
corporal punishment" or any form of brutality.112 In accordance with the 1949 convention and
the Convention Against Torture there is no circumstance under which an exception is authorized,
even in the face of potential mass deaths. As further evidence that no exception for exigent
circumstances was contemplated by the international conventions, it should be pointed out that
this very issue was debated during the negotiation of the treaty. However, all signatories still
108
Madden, Doug.
Ibid.
110
Ibid.
111
U.S Dept. of Justice. ICITAP: Serbia.
112
Geneva Convention Relative to the Protection of Civilian Persons, 12 August 1949, United States
Department of the Army Field Manual 27-10.
109
19 affirmed it without making any exception for any extenuating circumstances.113There is sound
rationale for this interpretation of the law as evidenced by the philosophical objectives of the
international law of war. It has been clearly posited in the various controlling documents that
govern the conduct of nations and individuals during time of war that the objective of these
regulations is the expeditious restoration of peace. The capturing of prisoners contributes to that
objective by weakening the opponent possibly to the point where they no longer have the ability
to fight and the war ends. However, if prisoners or civilians in occupied territory are mistreated,
which include subjection to torture, hostilities may continue. At that point the continued fighting
may be based largely on personal animosity and desire for revenge.
Therefore, assuming captured terrorists are deemed combatants under the international
law of war, the proper treatment would be to hold them for the purpose of taking them out of
combat and thereby weakening the opponent's military strength. It would not be beneficial to
engage in torture, whatever the purpose.
Peacetime International Law and Domestic Law
The other scenario involves the declaration that the suspected terrorists are not part of a
state sponsored military operation but are no more than organized criminals. In this
circumstance, international law is even more settled with respect to not only torture but any
inhumane treatment that may not amount to torture. To properly dissect this issue a fundamental
understanding of the source of authority of international law is required. The sources of this area
of law are customary international law and treaty law. Customary law supersedes treaty law and
is derived from long standing customs and practices by nations and may or may not also be
codified by way of statute or treaty. As evidence of the superior status of customary
international law it should be noted that its enforcement has universal jurisdiction. It can
therefore be enforced by any country irrespective of where the offense took place or the
nationality of the parties.114 Treaty law, on the other hand, is derived from written agreements
between nations and/or domestic statutes that reflect international agreements. After ratification
of a treaty, it is then up to the signatory states to write it into law by whatever procedure the
legislature uses to create law. Once done, the criminal procedure for signatories comes into play.
It is fair to say that perhaps the most unequivocal area of all of the mandates found in
international or domestic law is the prohibition against torture and other forms of inhumane
treatment. In international treaty law we may start with the 1948 United Nations General
Assembly's Universal Declaration of Human Rights at Article 5 which states that, "No one shall
be subjected to torture or to cruel, inhuman or degrading treatment or punishment." This
mandate has been later incorporated into the 1992 International Covenant on Civil and Political
Rights (ICCPR) and the 1994 Convention Against Torture (CAT).115
As noted above in the analysis of the law of war, conspicuously absent from any of cases
based on customary law or any conventions or treaties, is any exception for exigent
circumstances. The circumstances that would form the basis of any argument for an exception to
the rule would be where imminent danger exists and the potential harm to many people
outweighs the rights of a single terrorists. Though this has been debated and argued for by
nations that have been hard hit by terrorist activities, there is no authority to be found that would
make an exception to the prohibition against torture. The most compelling argument against
113
"The Legal Prohibition Against Torture." Human Rights Watch, March, 2003. 114
115
Ibid.
Ibid.
20 making an exception for torture would be the question of where to draw the line. There would be
no clarity as to how much torture is to be applied if this exception were implemented.
Additionally, countries could subjectively determine which situations are exigent and therefore
use torture arbitrarily.116
Consequences of Misconduct
When the law against torture is violated there are several scenarios that result in
outcomes that would illustrate the drawbacks of such tactics. One negative result is common to
both wartime/international situations and domestic criminal law, when suspected terrorists are
prosecuted locally. That negative outcome is that information obtained under physical or mental
duress is likely very unreliable. This concept can be simplified by saying a suspect would say
anything in order to stop the pain. Joan of Arc is said to have stated, "If you hurt me I'll say
anything you want to hear. But when you stop, I'll take it all back."117 Another consideration is
that humans have varying degrees of pain tolerance and what they consider pain.
Aside from the immorality and ineffectiveness in using torture there are legal and
procedural consequences to its use. From the standpoint of international law, the conventions
penalize perpetrators by excluding any evidence or confessions in court proceedings, elicited
from a person who experienced torture.118 Akin to this consequence in international law is the
protection against self-incrimination.119 While the ICCPR does not specifically say, "do not
torture," that prohibition is inferred as part of an argument that one's right against selfincrimination was violated and that torture was used to elicit the self-incriminating evidence.
That evidence is then excluded from the record.
From the standpoint of domestic law, the United States prohibits forced confessions in its
constitution. The United States Constitution implicitly prohibits torture through it's Fourth, Fifth
and Eighth Amendments.
The Fourth amendment’s prohibition of unreasonable search and seizure, the Fifth amendment’s
right against self-incrimination and the Eighth amendment’s prohibition against cruel and
unusual punishment implicitly outlaw torture. These same principles are found in constitutions
of many democratic states.120
There are other consequences in violating the laws that prohibit torture that are more ideological
in nature. The United States and many other countries, have taken a strong stand against torture
both by way of official policy statements and that they are signatories to several treaties that
prohibit torture.121
Accordingly, a significant consequence in violating those stated principles is a loss of credibility
in the international community. A more concrete consequence of this failure is the subjection of
that country's citizens to similar treatment by another country that declares that exigent
circumstances exist.
The United States passed legislation in compliance with the United Nations Convention
Against Torture. In 1996 it passed the War Crimes Act which made it a felony for United States
116
Ibid.
Ibid.
118
"Initial Report of the United States of America to the United Nations Committee Against Torture,
October 1999.
119
United States War Crimes, 18 U.S.C. SECTION 2441(D)(1)(A)(B)
120
Constitution of Bosnia and Herzegovina, PARAGRAPH II, SECTION A, ARTICLE 2, JANUARY 1994
121
American Bar Association. "Comparative Analysis of Criminal Defense Advocacy in Bosnia and
Herzegovina, Kosovo and Albania." American Bar Association Rule of Law Initiative, February 2014.
117
21 citizens to engage in torture or inhuman treatment.122 Similarly, in 2009, the United States
Congress passed an anti-torture statute which allows for criminal prosecution with penalties of
up to twenty years in prison or execution if a victim of torture dies or suffers serious bodily
injury. This statute also provides for a civil remedy by victims for damages resulting from mental
suffering.123
All of the information previously cited leads to a reasonable conclusion that any
perceived benefit from torture is far outweighed by its drawbacks. This is especially made clear
in consideration of various interview and interrogation techniques that are effective but that do
not violate international or domestic law. These methods will be more fully discussed
subsequently.
Criminal Procedure in the Balkans
Traditionally, all of the states in the Balkan region shared similar legal
backgrounds. They operated under the Civil Law system as does much of the European Union.
The Civil system's primary feature is that it is inquisitorial in nature whereby the Judges/Courts
are primarily responsible for gathering evidence. This is done by way of conducting an initial
investigation and then ruling on the case based on the evidence that it has gathered.124 A
prominent feature of this system is the limited input the parties, i.e. prosecutor and defense
lawyer, have. They are allowed to propose evidence to be considered as opposed to having
regulatory authority to do so. While the proponents of the Civil Law system may argue that it is a
fair system it is also fair to say that it was calculated more to curb crime than anything else.
The other legal system is the Common Law system. It is of widespread use in those
countries whose law derives from England and its former colonies. The Common Law's primary
feature is that it is an adversarial system rather than an inquisitorial one. The parties are in
opposition to each other and strive to place evidence before a neutral judge with the objective of
receiving a favorable decision. The parties, who in the case of criminal matters are prosecutors
and defense attorneys, have an absolute right, indeed a duty, to present evidence based on
authority granted by the rules of evidence of the particular court or court system that the case is
in. The prosecutor represents the government and the defense attorney represents the accused and
are required to do so zealously.
Introduction to Interviews
Features of Interviews
Interview strategies can be classified differently based on province, country or region. This can
cause confusion amongst practitioners in learning and organizing different interview styles.
According to one source, strategies for interviewing can be broken up into four broad types.
Within these four broad categories there are two subcategories that divide practices by coercive
and non-coercive means.125
1) Legalistic
122
Ibid.
Ibid.
124
American Bar Association. "Comparative Analysis of Criminal Defense Advocacy in Bosnia and
Herzegovina, Kosovo and Albania." American Bar Association Rule of Law Initiative, February 2014.
125
Delahunty, Jane., Martschuk, Natalie., Dhami, Mandeep. “Interviewing High Value Detainees:
Securing Cooperation and Disclosures. “Applied Cognitive Psychology 28(2014).
123
22 a) Uses methods of power and law to influence a detainee. Oftentimes the interviewer will
mention legal incentives like punitive leniency if the suspect gives the interviewer
information.
i) Coercive practice
(1) Accusatorial and guild presumption
ii) Non-coercive practice
(1) Avoid prejudgment and use of open ended questions
2) Physical
a) This category includes when the interview takes place, how long the interview may last,
and the amount of physical comfort or discomfort the suspect feels.
i) Coercive practices
(1) The use of physical restraints, physical threats, and torture
ii) Non-coercive practices
(1) The use of breaks and providing food/ beverages during the interview
3) Cognitive
a) This strategy seeks to influence cognitive capabilities of the suspect including memory.
i) Coercive practices
(1) Deception about evidence against them and secrecy
ii) Non-Coercive practices
(1) Transparency in the interview process and sharing information/ evidence
4) Social
a) This includes how many people are present during the interview and the use of relational
interviewing strategies like rapport building and the use of social persuasion methods.
i) Coercive practices
(1) Intimidation and threats
ii) Non-Coercive practices
(1) Rapport, considerations, and respect
In this study, they found that social strategies in interviews have a positive effect on the amount
of information received, its validity, and the time it took to be provided to them. Coercive
techniques that were used were actually counterproductive to the interview process. With
coercive means they found that the interviewer received less reliable information and fewer
disclosures.126
Another study, conducted by Christopher Kelly, Jeanee Miller and Alison Redlick,
identified over seventy-one interview and interrogation techniques from which they then broke
up into six smaller categories. These categories are rapport and relationship building, context
manipulation, emotion provocation, collaboration, confrontation, and presentation of evidence.127
Kelly, Miller, and Redlick say that one of the broadest categories of interview techniques is the
minimization and maximization dichotomy. Minimization refers to expressing sympathy and
maximization refers to directly accusing the subject. The second major category identified by
these researchers is humane versus dominate techniques. The final category is the informationgathering model versus the accusatorial model.128
126
Ibid.
Kelly, Chritopher., Miller, Jeanee., Redlich, Allison., Kleinman, Steven. “A Taxonomy of Interrogation
Methods.” Psychology, Public Policy, and Law 19.2 (2013). 128
Ibid.
127
23 Under this framework, the researchers continue to break up the six subcategories.
Rapport and relationship building was broken up into fourteen smaller categories that include
active listening, patience, active listening, and other techniques notorious to rapport building.
Context manipulation was broken down to eleven techniques. This included techniques, like
changing the scenery of the interview, and altering the time of the day that the interview is done.
Forty techniques were identified for emotion provocation. These techniques were classified
separate from rapport building and included appealing to the suspect’s self-interest or religion.
This is also known as “fear up” “fear down” or “ego up” “ego down”.129 Here the interviewer
wants an emotional outburst from the suspect so they play on the suspect's personality and
beliefs. The category, confrontation has nineteen techniques under this framework. All of which
seek to establish authority over the suspect. Collaboration is essentially the opposite of the
confrontation strategy. Here the suspect and interviewer are on level playing fields. Usually
rewards are used in exchange for information. Lastly, the presentation of evidence focusing on
showing the source that the officials already know everything they want to know. eight
techniques were identified under this category.130
There is a stark difference between the two examples of classification models of
interview and interrogation techniques. Yet there is much overlap between the different models.
It is important to note that the many of the techniques mentioned above can also be named
differently and have various frameworks. This have a major impact of interview training and the
inconsistency among methods being used. This was included to display that we are aware of the
diversity and amount of techniques that are being used, however, for the sake of this project, this
project will focus on prominent and internationally accepted methods that will be defined and
explained in detail.131
Characteristics of Effective Interviewers
There are three traits that are considered to be the most important characteristics for
interviewers. They are empathy, communication and professionalism. An empathetic person has
the ability to participate and understand another person’s feelings. This allows the interviewer to
help identify with the interviewee. When this is displayed to the suspect, it gives them a sense
that the two individuals are on equal footing. Interviewers should be sincere in their comments
toward the suspect. When the interviewer is insincere it could become more difficult to obtain a
confession or any information at all.132
An interview is a conversation between two people, which requires an interviewer who is
an effective communicator. Para-communication involves inflection in someone's voice, tone,
and volume. These are also important aspects to be aware of. Communication isn’t just about
what is being said. Nonverbal communication plays a key role. Everything from gestures, eye
contact, hand movement, and posture play a role in effective communication. Interviewers
should be aware of these physiological responses in suspects. But they should also be aware of
129
Ibid.
Ibid.
131
Ibid.
132
Hoffman, Christopher. “Investigative Interviewing: Strategies and Techniques.” International
Foundation for Protection Officers (2005). http://www.ifpo.org/wpcontent/uploads/2013/08/interviewing.pdf. 130
24 what their verbal and nonverbal cues are that they are sending to the suspect because they may
be having an impact on how the interview is going.133
The last trait for an interviewer to possess is professionalism. This deals primarily with
how the interviewer carries himself and treats the suspect. People are more likely to divulge
sensitive information if they feel like the individual is trustworthy. Professionalism will also help
the interviewer organize the case file. Attention to detail during the interview will play a
substantial role when the interview is complete. Documenting the interview will be beneficial for
many reasons especially for future reference.134
Exercise:
1. Christopher is a police officer interviewing a murder suspect. As he asks questions,
he continuously raises his voice to an almost yelling state. His tone is harsh and
aggressive to the suspect. Christopher also has his hands in fists. How is Christopher
being perceived by the interviewee? Would you say he is communicating effectively?
Why or why not.
2. Marie is a prosecutor interviewing a suspected terrorist. During the interview she
makes eye contact with the suspect and has her hands placed in a neutral position on
the table. Marie continues to make demeaning comments about the suspect and his
religion. She also sounds annoyed during the interview. How is Marie being perceived
by the interviewee? Would you say she is communicating effectively and acting
professionally? Why or why not.
3. Michael is a prosecutor interviewing a suspect found at the border. Throughout the
interview, Michael is calm and mindful of his tone and his inflection. He seems
relaxed at the table, carrying out the interview like a normal conversation. How is
Michael being perceived by the interviewee? Would you say he is communicating
effectively and acting professional? Why or why not.
Police Interviews
Suspect interviews are the most fundamental stage in case processing and disposition in
criminal proceedings.135 Suspect and witness interviews account for the largest number of police
investigations roles.136 Although the word “interrogation” is commonly used in reference to
questioning of suspects, in this project the word “interview” will be used to mean the process of
questioning suspects without coercion. It is also important to note that police interviews are
usually done with the intention of obtaining a confession. In cases with suspected terrorists,
interviews are conducted for a confession but also to gain intelligence.
133
Ibid.
Ibid.
135
Baldwin, J. “Video Taping Police Interviews with Suspects: An Evaluation.” Great Britain Home Office
(1992).
136
McGork, Barry., Carr, Michael., McGork, Debra. Investigative Interviewing Courses For Police Officers:
An Evaluation. Police Research Group (1993).
http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.603.4361&rep=rep1&type=pdf. 134
25 Questioning
Interviewers must have a good understanding of the basic rules of questioning, the types of
questions that are useful in the interview and when to use them.137
Types of Questions:
1) Open Ended Questions138
a) According to Milne, 2004, open ended questions are encouraged because they give
suspects longer time to answer questions. It also engages the intellectual ability, actively
on how the interview should progress.
Probing Questions: The use of the five W’s and and one H (5WH).139
a) Who
b) Where
c) When
d) Were
e) Why
f) What
g) How
The Types of Questions that should be Avoided
Leading Questions: Questions like these are directed in such a way that suggests a desired
answer. Most times these questions can be answered with a “yes” or “no” response.140 Negatively Phrased Questions: Questions like these suggest that the response should be “no” and
Exercise:
Question for the student: Star the leading questions.
Answers have a * next to them.
“Did you see a blue car?”*
“Was the victim a woman?”*
“What happened at the embassy?”
“What color was the car?”
“Did that comment make you angry?”*
“You said you saw him on Monday, or was it Tuesday?*
137
FIFRA Interviewing Techniques. Appendix B: FIFRA Inspection Manual (2002).
Ibid.
139
Ibid. 140
FIFRA Interviewing Techniques. Appendix B: FIFRA Inspection Manual (2002).
138
26 “no” is also the correct answer to the question.141
Exercise:
Question for the student: Star the negatively phrased questions.
Answers have a * next to them.
“You didn’t see him, did you?”*
“Did you see him?”
“You don’t remember what he looked like, do you?”*
“Did she leave?”
“You didn’t see her leave, did you?*
Compound Questions: These question have two or more questions in the same sequence. This
also includes rephrasing a question before the suspect answers the original question.142 Exercise:
Question for the student: Star the compound questions.
Answers have a * next to them.
“Did you go alone and what time did you leave?”*
“There were hundreds of people in the plaza, weren't there?”
“Did this happen yesterday and was it in the morning?”*
“Can you describe the man you saw and did he look Muslim?”*
“You didn’t want to go, did you?”
141
142
Ibid.
Ibid. 27 Complex Questions: These types of questions are complicated. Questions like these are often
confuse the suspect or lead to false answers.143
Exercise:
Question for the student: Star the leading questions.
Answers have a * next to them.
“Based on what we already know of the circumstances leading up to the incident and the
reactions of others indicated by their testimony, what would have been the suspect's
actions throughout this period?”*
“When you mentioned the victim's appearance, it was obvious to see that you had an
initial bias towards them, would you agree?”*
“Was he Muslim and did he speak Arabic?”
“Did you see the woman go inside the building?
Consequences of Unethical Investigative Interviews
1. The guilty are released and the innocent are convicted
2. Affects the way society perceives the criminal justice system
3. It wastes resources such as time and money
4. Leads to civil suits and loss of police credibility due to civil suits
5. It erodes relations between the community and the police
False Confessions
According to Gisli Gudjonsson, false confessions have led to the conviction of many
innocent persons. Oftentimes false confessions can be obtained through the use of duress or
coercive interview methods. Recent advances in DNA testing has helped to expose false
confessions.144
Case Study: Consequences of False Confessions
False confessions led to exoneration of five men in New York City. These men were
wrongfully convicted of a brutal attack in Central Park. DNA testing corroborated the confession
of Matias Reyes. Reyes stated that he acted alone and that he did not know the five men that
were convicted in the Central Park Jogger Case. The five men were picked up by police
following a chaotic night in Central Park, marked by violence and what was termed “wilding”.
Their statements to authorities were quite damning. Each gave a detailed videotaped statement
after twenty-four hours of being interrogated, minimizing his own involvement in the crime but
implicating the rest. However, the jury was not aware that the confessions were obtained after
143
Ibid.
Gudjonsson, Gisli. & Sigurdsson, Jon. “False confessions: The relative importance of psychological,
criminological and substance abuse variables.” Psychology, Crime & Law 7.1 (2001). 144
28 extensive interrogations. Despite other factors, the confessions were used to convict all five men
who all served out their sentences (Innocence Project, 2001). After several years of
imprisonment, a federal judge approved a $41 million civil rights settlement to the men
wrongfully convicted in the beating and rape of a female jogger in New York's Central Park in
1989.145
Comparative analysis of interview and interrogation
Interview
•
•
•
•
•
•
•
•
•
Non-accusatory
The goal is to obtain the truth
Non-coercive methods are used
Obtain behavioral information
Obtain a confession or gain
intelligence
Dialogue: questioning and answer
format
There is note taking
Conversation with a purpose
Interviewee does all the talking
Interrogation
•
•
•
•
•
•
•
Accusatory
The goal is to obtain the truth
Associated with using coercion
Obtain a confession or gain intelligence
There is no note taking until the suspect is ready to
confess or provide intelligence
Questioning in order to obtain incriminating
information
The interrogator is in control of the dialogue
confess
Military and Law Enforcement Interviews/ Interrogations
With the mounting threat of terrorism, there has been a growing overlap in what types of
interrogations law enforcement officials do and what types of interrogations military officials do.
Usually, military officials want to gather information about upcoming events. Military officials
are looking for intelligence rather than obtaining a confession. Law enforcement officials on the
other hand usually want information that will elicit a confession from the suspect. This once
distinctive difference is no longer the case. Law enforcement officers who interrogate suspected
terrorists now also seek to obtain intelligence from the suspect.146 Units who have not
traditionally sought out intelligence will now need to become more acquainted with obtaining
this type of information.
Literature has also found that law enforcement officers who have conducted
interrogations, have a tendency to be overly confident in their ability to detect deception. The
training most law enforcement officers attend have appeared to have very little effect on
deception detection but the training the officers receive does have an impact on their confidence
in detecting lies.147 It was found in a study that surveyed 132 U.S military interrogators that the
145
Ibid.
Semel, Matthew. “Military Interrogation: Best Practices and Beliefs.” Perspectives on Terrorism 7.2
(2013).
147
Ibid. 146
29 same applies to them. The study found that the most frequent answer was in the participant’s
ability to detect deception was an 80% confidence rate. Out of the seventy-two participants who
answered this question fifty-five said they rated their ability to detect deception at a confidence
level over 50%.148
So what exactly does that mean? It essentially means that an interrogators confidence level in
detecting deception is not correlated to the whether they can actually detect deception in
suspects. Interrogators need to be extremely careful and aware of this fallacy. Detecting a
suspect's lie is only a small part in interrogations.149
The same study found that rapport building was believed to be the best way to obtain both
intelligence and confessions from suspects. Participants said that “basic rapport building is most
effective. This is in part because many of the ‘hardened terrorists’ we capture expect physical
and verbal abuse. When we offer a cup of tea instead it takes them out of their comfort zone.”150
Participants believed that this technique was the best way to get detainees to cooperate and give
accurate information.151 This is important to both military and law enforcement interrogators.
Types of Interviewing Styles152
1. PEACE Model (UK, England, Wales, New Zealand)*
2. Cognitive Interviewing Techniques*
3. Conversation Management Interviewing technique (CMIT)*
4. Mutt and Jeff Techniques
5. Statement Analysis
6. Polygraph
7. Rationalizing, Projecting and Minimizing (RPMS)
8. Reid Interviewing Techniques
9. Kinesic Interviewing
Styles internationally recognized have an asterisk next to it (*)
1. PEACE Model
The word PEACE stands for Planning, Engaging, Account, Closure and Evaluation. It is
widely used by most European police department to conduct interviews for suspects and
witnesses. It has gained more approval and attention as the best interviewing technique so far.
The goals of the PEACE Model include increasing applicability, comprehensiveness and
consistency of information obtained in interviews. It also seeks to obtain accurate and reliable
information from the suspect and increase the opportunities for the presentation of the best
evidence.153
148
Semel, Matthew.
Ibid.
150
Ibid.
151
Ibid.
152
For this section we use the word interrogation instead of interview because the source specifically
uses the word interrogation.
153
Clarke, Colin. National Evaluation of the of the PEACE Investigative Interviewing Course. Police
Research Award Scheme, Report No: PRAS/149.
149
30 P = Planning:154
•
•
•
•
•
•
•
•
Understand the purpose of the interview
Obtain as much background information as possible on the incident under investigation,
including (for suspects) information on the person to be interviewed
Define the aims and objectives of the interview
Understand and recognize the points to prove
Assess what evidence is available and from where it was obtained
Assess what evidence is needed and how it can be obtained
Understand the legislation, associated guidelines and considerations
Prepare the mechanics of the interview (attending to exhibits, logistics, venue, equipment
functioning, seating, and so on).
E = Engage and Explain:155
•
•
•
•
•
•
It is also known as establishing rapport
o Most influential factor in ensuring the success of an interview
Establish ground rules
o Reassure the suspect that what they have to say is important so they need to report
everything they can and try their hardest not to leave anything out
Investigator should not edit as they go even if they believe some information has no
relevance to the matter being investigated
Reassure the suspect that they will be working hard, because they are the ones with the
information
Reassure the suspect that once they have given their account the officer may ask
questions to clarify some things
Reassure the suspect that they should feel free to ask the officer for clarification
throughout the interview
A = Account:156
https://www.researchgate.net/profile/Colin_Clarke3/publication/263127370_National_Evaluation_of_the_
PEACE_Investigative_Interviewing_Course/links/53da3b620cf2e38c63366507.pdf.
154
Short, J.C. “Interviewing Using The PEACE Method. Investigative Articles. (2012)
http://www.jcshort.com/Articles/PEACE-Method.htm.
155
Ibid. 31 •
•
•
•
•
•
•
•
This is where the investigator obtains the suspects full account of events.
Obtain the suspect's own account without interruption
Expand and clarify the information given in the account
Challenge the suspect's account if necessary
Being concerned for the suspects’ welfare for instance, (do you need any water, food
or use the bathroom
Asking how they want to be addressed either by first name, or by title and surname
Check how much time they have got, and if they have to be somewhere by a certain time,
or check with their parking meter
Give reassurance if the person seems nervous of the process.
C = Closure:157
•
•
•
Make sure that there is mutual understanding about what has taken place by reviewing
and summarizing the account
Confirm that all aspects have been sufficiently covered by checking that interviewees
have given all the information they are able and willing to provide
Clarify what will happen in the future by giving the interviewee appropriate information
on the next stages of the process such as telling witnesses whether or not they will have
to attend court
E = Evaluation:158
•
•
•
During this stage, the interviewer examines whether the purpose and objective for the
interview has been achieved
The investigator reviews the investigation in comparison to information obtained during
the interview
The investigator reflects upon how well he or she conducted the interview and considers
what improvements can be made in the future
2. Cognitive Interviewing Techniques
This method of information gathering departs from the traditional way that interviews
and/or interrogations are conducted. The first factor that sets it apart from the others is the fact
that it is most effective in interviewing cooperative witnesses. However, as further discussion of
this method will bear out it can also be effective with non-cooperative witnesses. The second
factor that distinguishes this method from others is that it employs the use of open-ended
questions as opposed to narrowly focused questions calling for strictly responsive answers. The
theory behind the use of open ended questions is that it allows the interviewee to recall events as
they come to mind while the original question is still pending. A key action on the part of the
interviewer is to refrain from interrupting as well as from going on to the next question just
because the suspect has stopped talking temporarily. In other words, a little silence before the
next question is posed facilitates the ability of the suspect to recall facts that he or she may be
156
Ibid.
Ibid.
158
Ibid. 157
32 distracted from. This distraction can result from the interviewer asking a new question as soon as
the suspect pauses.159
The reason that cooperative witnesses may be the better subject for this method of
interviewing is that the method focuses on the ability to help a person who is trying to be helpful
to remember facts that they would like to recall. This is in contrast to the witness or suspect
whose objective is to conceal or misrepresent certain facts. However, this method is not
completely ineffective with the uncooperative suspect because one of the other keys to the
success of this method is the ability to create a comfortable, non-threatening environment for the
interview to take place in. Accordingly, when that environment is created and the open-ended
questions are posed, even a hostile interviewee is likely to reveal more information than would
otherwise be the case.160
A factor specific to this course is the fact that the students that will participate are from
the Balkan countries. As indicated previously in this project, those countries had traditionally
operated under the Civil Law system. One of the key features of that system is that police,
prosecutors and lawyers were not the primary evidence gatherers in court cases. Because of that
they are not likely to have been indoctrinated to the adversarial method of questioning. Like the
Common Law system, the traditional interviewing method that the cognitive method departs
from is calculated to extract information and is, accordingly, adversarial in nature. This method
may be easier for students to adapt than law enforcement officers and prosecutors who are
indoctrinated in the Common Law system.161
Finally, somewhere between 75 and 100 studies have been done in the United States and
western European countries. The results are that 35 to 60 percent more information is gained by
using the cognitive method as opposed to other adversarial tactics methods.162
3. Conversation Management Interviewing Technique
This method is a sub-method of the PEACE model. In the account gathering phase of
that model, conversation management is used to get at the facts by a fairly direct
approach. Because this method is best employed with uncooperative or elusive suspects this
method can be described as adversarial. The interviewer's approach is very similar to the
approach to cross-examination of a witness in court by the opposing attorney. As in crossexamination, the goal is to control the witness by minimizing the narrative responses by the
suspect. The suspect is "reeled back in" from taking focus away from the main issue by way of
unresponsive answers. Once the interviewer has determined that additional questions are not
helpful, he or she summarizes the suspect's statements. At this point, inconsistencies are pointed
out as they would be to an opposing witness in court. However, though this is an adversarial
process, the difference between it and more confrontational methods is the maintenance of a
courteous and respectful demeanor as opposed to a hostile one.163
159
"The Cognitive Interview," The National Safety Board Academy. November 2005.
Ibid.
161
Ibid.
162
Ibid. 163
Vancouver Police Department. "Summary of November 2010 PEACE Mode Interview Training Memo,
160
33 5. Mutt and Jeff Techniques
This technique is an act between two interviewers. Wherein the interviewers create a
dynamic that pushes the suspect to create a relationship with one of the interviewers over the
other. One of the interviewers will play the stricter role, the “bad cop”. In doing this they will
display an unsympathetic attitude.164 This role can also be called “Mutt”, the relentless
interviewer who believes the suspect is guilty.165 The performance starts with this role ranting
and cutting the suspect off as they speak. They also sometimes accuse the suspect of crimes they
didn’t commit.166 Throughout the interview this interviewer is careful not to threaten or coerce
the suspect.167
The other interviewer plays a more sympathetic role causing the suspect to naturally be
more inclined to open up to him/her.168 During the start of the performance, the interviewer who
plays this role tries to calm “Mutt” down and apologizes for their behavior. Because of this
dynamic, the suspect develops a feeling of gratitude toward the “good cop”.169 This role also can
be known as “Jeff”, who is supposed to act the opposite of the “Mutt” role.170 Sometimes this
technique can be done with just one interviewer. He/she will switch between the strict role and
the sympathetic one throughout the session.171
6. Statement Analysis
This technique is used in the collection of both recorded and oral statements. Statement
analysis is using language as a tool to figure out deception. During this technique, the
interviewer should look at the language being used. The interviewer should also be aware of
unique words and phrases used by the suspect and their use of pronouns.172 The following
paragraph refers to the recorded method of statement analysis.
In order to obtain successful results in the recorded style, a statement has to be written in
the actual words of the suspect and not a written interpretation. This method is taught in many
police academies and widely used by various police jurisdictions. According to Schollum,
statement analysis is widely used in the UK and broken down into five psychological cues. SE3R
January, 2011.
164
New Republic Staff. “Mutt and Jeff.” New Republic (2009). https://newrepublic.com/article/47247/muttand-jeff.
165
Levine, Robert. The Power of Persuasion.” Wiley (2013).
https://books.google.com/books?id=Rgt0yAFUvCcC&dq=mutt+and+jeff+technique+of+interrogation.
166
New Republic Staff.
167
Army Field Manuel. Chapter 8: Approach Techniques and Termination Strategies.
https://rdl.train.army.mil/catalog-ws/view/100.ATSC/10492372-71C5-4DA5-8E6E-649C85E1A2801300688170771/2-22.3/chap8.htm.
168
New Republic Staff.
169
Levine, Robert.
170
Ibid.
171
Army Field Manuel.
172
Levesque, Roger. “The Psychology and Law of Criminal Justice Processes.” Nova Publishers (2006).
https://books.google.com/books?id=f7T7td6wfIC&dq=mutt+and+jeff+technique+of+interrogation&source=gbs_navlinks_s.
34 is the acronym used to guide an investigator during the interview. SE3R stands for Survey,
Extract, Systematically, Read, Review and Recall.173
There are two major theories in the verbal style of statement analysis. They are Scientific
Content Analysis (SCAN) and Criterion Based Statement Analysis (CBSA). Both were
developed from psychological methods. The creators believed that fabricated statements required
a larger cognitive effort to maintain. During the interview, the interviewer should consider what
is called the “zero hypothesis”. The “zero hypothesis” is based on the belief that every statement
is untrue until there are enough indicators to prove otherwise.174
When this method is used, it is recommended that the statements being analyzed are
made of long sequences that have not been interrupted by questions. This provides more reliable
information than short statements. The criteria for the evaluation of statements is listed here.
1. General characteristics
a. Structure is logical
b. Unstructured production
c. Quality of details
2. Specific contents
a. Contextual embedding
b. Descriptions of interactions
c. Reproduction of conversation
d. Unexpected complications during the incident
3. Peculiarities of content
a. Unusual details
b. Admitting lack of memory
c. Raising doubts about their own testimony
d. Self-deprecation
e. Pardoning of perpetrator
4. Offense specific elements
a. Details are characteristic of the offense
The nineteen criteria listed above do not need to be present in every statement. However,
the more criteria that the statements meet provides more support to the validity of the statement.
In this method, there is no scoring or other cut-offs. The purpose of this method is not to
determine if something happened or not and it doesn’t determine whether or not the suspect is
honest. The purpose is to evaluate the statement itself.175
Oftentimes, the SCAN method will identify when a suspect is being deceptive. Such
deception is revealed when the suspect tries to minimize the facts of the case or ignore them in
general. The suspect will try to tell the interviewer what he thinks is important for them to know.
Honesty is associated with the use of first person statements and a direct connect between the
173
Schollum, Mary. “Investigative Interviewing: The Literature.” Wellington: Police National Headquarters
(2005).
174
Levesque, Roger.
175
Ibid.
35 person and the statement by using the word “I”.176 Pronouns are useful in indicating who else
was involved. Words like “we” “us” and “they” display that other people were present or
involved.177
The flow of the story is also an important indicator of deceptiveness. A logical and
sequential flow in the storyline will indicate truthfulness. A story that is difficult to follow and
has an incorrect flow will likely be untruthful.178 There are also certain phrases that indicate
untruthfulness. In order to get the interviewer to believe the suspects answer, sometimes they
will use phrases to emphasize the truthfulness of their statement. Examples include, “to be
honest,” “believe me” and “I swear to God.”179 Another indicator is the suspect answering the
interviewer's questions with a question. This strategy gives the suspect time to think of an answer
to the original question. For instance, the interviewer asks, “Did you take the money?” and the
suspect responds, “Did I take the money? No.”180
Exercise:
Question for the student: Which of the following characteristics are truthful and
which are deceptive? Star the ones that are associated with honesty.
Answers have an asterisk (*) next to them.
•
•
•
•
•
The statement is rich in details*
Deviates from use of the first person
Introduction of victim that is specific and possessive*
Missing gaps in time
Incorrect flow of the story
Exercise:
Question for the student: Which of the following statements has incorrect flow?
Answer have an asterisk (*) next to them.
a. I woke up at 8:00 a.m. I went to the bathroom and brushed my teeth. I then got
dressed and went downstairs. My wife had already made breakfast for me. When I
finished, I got into my car and drove to work. I was stuck in traffic for 30 minutes. I
arrived at work at 10:15 a.m. I worked until 12:00 p.m when I went to lunch with a
colleague. After lunch, I worked until 5:30 p.m. and went directly home.
b. I woke up at 8:00 a.m. and got ready in about 30 minutes. I left for work and had
breakfast before I left. During the day I worked until about 1:30. I don’t remember
what time I got back from lunch. I left work at around 5:00 or 5:30 p.m.*
176
McClish, Mark. “Statement Analysis: Techniques for Detecting Truth and Deception.” Advanced
Interviewing Concepts (2008).
http://www.ncids.org/Defender%20Training/2008%20Spring%20Conference/McClish%20handout.pdf.
177
Ibid.
178
Adams, Susan. “Statement Analysis: What do Suspects Words Really Reveal?” Federal Bureau of
Investigation (1996). https://www2.fbi.gov/publications/leb/1996/oct964.txt. 179
McCLish, Mark.
180
Ibid. 36 7. Polygraph
The purpose of the polygraph style of interview is to make the suspect believe that the polygraph
machine will detect his or her lie. Therefore, the suspect decides to speak the truth instead of
being deceptive. However, polygraphs are not admissible in most courts. The use of this
technique could possibly lead to confession of a crime. According to McCarthy, the most recent
case where polygraphs were used to convict a suspect was in 1995. This occurred in South
Carolina where the police had no evidence in connection to a female suspect, Susan Smith, in the
death of her two sons. Three polygraph tests were conducted which consistently showed signs of
deception. The police kept focus on her and she later admitted having let her car roll into a lake,
drowning her two sons. Although McCarthy describes polygraphs as “junk science”, it is still
used by many police jurisdictions in the United States and the FBI.181
8.Rationalizing, Projecting and Minimizing (RPM)
This method of interviewing focuses on "saving face." In this regard it is similar to
conflict resolution methods used in international crises. The principal theme here is based on the
fact that human nature is such that people seek to minimize their wrongdoing. Along with that
comes placing the blame on others as well as minimizing the gravity of any wrong that they have
done. This method of interviewing starts by exploring which of those tendencies are most
prevalent in the suspect being questioned by use of innocuous, non-threatening questions. Once
this is determined, the three components of this method of questioning are employed.
First comes rationalizing, where the interviewer empathizes with the suspects plight by
indicating that what the suspect did under those circumstances is understandable. Second, the
interviewer focuses on how the victim contributed to the problem thereby projecting the blame
on something other than the suspect. Third, is the minimizing of the impact of the alleged
crime. It is important to note here that this is not done by suggesting that it is not a crime.
Instead the interviewer adeptly stays away from the legal consequences and focuses on the
morality and associated feelings of guilt on the part of the suspect.
The final phase of this method is not part of the abbreviation, RPM. It is the process of
providing the suspect an incentive to confess. After the previously mentioned methods have
helped remove vehement denials by the suspects, some motivation to provide full disclosure as
to what happened is required. Examples of such motivations would be a chance to receive
needed treatment for serial criminals, the chance for the suspect to tell his or her side of the story
before the media runs with a less favorable version and relieving the conscience of a guilt-ridden
suspect. If this process is followed it is likely that a confession will be forthcoming.182
9. Reid Interviewing Techniques
181
The National Academic Press. “Lie Detection and Polygraph.” (2003)
http://www.nap.edu/read/10420/chapter/2.
182
Napier and Adams. "Magic Words to Obtain Confessions." FBI Law Enforcement Bulletin, October,
1998.
37 The Reid Interview Technique, based on intimidation and coercion, consists of two main phases,
the behavioral analysis interview (BAI) and the nine step interrogation process which include:
Step One: The Positive Confrontation
The investigator stands directly in front of the suspect in a confident manner and confronts the
suspect with a statement of guilt. The confrontation statement is brief, exact and clear. For
instance, “I have in this file the results of our investigation which include evidence of your
funding into terrorist training in Kosovo. The results of our investigation clearly indicate that you
are the person responsible for providing money for this training.” This type of accusation is made
only in cases where the suspect seems guilty. 183
Step Two: Theme Development
The investigator presents some type of moral justification for the actions of the suspect by
placing the moral blame on other circumstances. For instance, the reason why he sent the money
to train the terrorists in Kosovo was because the government was corrupt and violating human
rights.184
Step Three: Handling Denials
Almost all suspects, innocent or guilty, will attempt to deny their involvement in the act under
investigation. When the suspect denies involvement in an act, the more difficult it becomes for
him to eventually tell the truth. During this step, the investigator closely observes the suspect to
predict when the suspect is about to deny the accusation.185
Step Four: Overcoming Objections
In this step, when the suspect realizes their attempts to deny involvement are unsuccessful, the
suspect assumes some control over the interrogation. The suspect makes objections that they
believe will support the claim of innocence. For instance, “I would never do anything like that”
or “I love my people and country.”186
Step Five: Procurement and Retention of Suspect's Attention
The suspect will insist that irrespective of what the investigator has to say, he or she did not
commit the act in question. In order to gain suspect’s attention, they try to close the physical
distance between them and the suspect.187
Step Six: Handling the Suspect's Passive Mood
After the investigator gains the attention of the suspect, she or he continues to emphasis on the
essential theme elements. At this point, the interviewer faces the suspect who will be listening to
what is being said, and feels a sense of defeat. The suspect recognizes his or her previous
ineffective effort to deny the offense. At this point the suspect starts telling the truth.188
183
John E. Reid & Associates. “The Reid Technique”
http://www.reid.com/educational_info/critictechnique.html
184
Ibid. 185
Ibid.
186
Ibid.
187
Ibid.
188
Ibid.
38 Step Seven: Presenting an Alternative Question
In this step of the interview, the investigator presents to the suspect two incriminatory
suggestions to the crime. For instance, “did you plan this thing out or did it just happen at that
particular moment?” In this type of question, either choice is an admission of guilt. The
components of the alternative question contrast a desirable action with an inexcusable,
undesirable action. Once the suspect chooses between the two options then the interviewer
immediately responds with a statement of reinforcement.189
Step Eight: Having the Suspect Orally Relate Various Details of the Offense
After the suspect chooses a statement (step seven), the interviewer immediately answers with a
statement of reinforcement. This statement acknowledges the admission of guilt.190
Step Nine: Converting an Oral Confession to a Written Confession
As soon as the investigator is satisfied, she or he obtains an accurate verbal account of the crime
with sufficient supporting details. At this point, the oral confession is diverted into a written
document. Another person is called to witness the oral confession before a written statement is
obtained. The investigator advises the suspect that they are stepping out of the room for a few
minutes. They then locate a second person to serve as a witness. When the investigator and
witness return to the room where the suspect is, the witness introduces him or herself as someone
who has been involved in the investigation. Then the investigator repeats the details of the
confession to the witness, and the witness asks the suspect a few confirming questions. If there are any changes, the suspect must initial each part.191
10. Kinesic Interviewing
This interview method involves analyzing an individual’s behavior and body movements
to access deception. Kinesics is defined as the study of non-verbal communication.192 Body
movement is used congruently when we speak. Human beings send signals to one another
unintentionally.193 There are two steps to this technique. The first step is called the “practical
kinesic analysis phase.” This is characterized by observance and analysis of a suspect’s behavior
to gain an understanding of their deceptive and truthful behaviors. It is also the chance for
interviewers to see what the suspect is sensitive to. The information gained during this phase will
help the interviewer construct how the interview will go. The second step in this technique is the
“practical kinesic interview phase”. This step is how the interrogation is generally carried out.
The fundamental stages in this phase of the interrogation include orientation, narration, cross
examination, and resolution. The interrogator also confronts the suspects negative response
states.194 With this method, there are several similarities to the Reid method.
189
Ibid.
Ibid. 191
Ibid.
192
FIFRA Interviewing Techniques.
193
Ibid.
194
Orlando, James. “Interrogation Techniques.” ORL Research Report.
https://www.cga.ct.gov/2014/rpt/2014-R-0071.htm.
190
39 Categories of nonverbal behavior are different throughout cultures and in different people.
Ekman classifies non-verbal communication into 5 categories195
•
•
•
•
•
Emblems- Gestures that replace verbal communication
Illustrations- The kinds of gestures that help verbal communication
Regulators- Movements that are used to show a change in subject matter. For example,
agreeing with someone might result in another person nodding their head.
Affect- Behavior that shows emotion. Posture tells a lot about an individual’s emotions
Adaptors- Usually unconscious behaviors that people do when they are stressed. Like
when someone taps their leg when they are nervous.
The Importance of Preparation for Interviews
A key stage in conducting successful interviews is the preparation process. When in this stage,
the following questions should be asked:196
• Where and when will the interview be conducted?
• What is the objective of the interview?
• Who is participating in the interview?
• What are your main questions for the interviewee?
Reviewing the case file is also a crucial component in this stage. The interviewer should be
familiar with victim and witness statements, officer reports, source information, evidence,
agency information (criminal history, intelligence reports, licensing, identification, other case
files), and photos (crime scene/ surveillance). They should also have a clear understanding of
what the suspect is being charged with or why they are being questioned in the first place.197
The questions that the interviewer plans to ask should be direct in eliciting incriminating
statements or intelligence. Questions should be designed to:198
•
•
•
•
•
Determine the facts of the case
Break the suspect's alibi
Fill in missing information
Identify other conspirators
Uncover information that establishes guilty knowledge or covers elements of the offense
The Importance of Rapport Building
Rapport building for this course will be defined as a positive interpersonal interaction,
that increases trust, produces cooperation, and improves the amount of information obtained
from conversation between a suspect and an interviewer.199 Research has shown that rapport
building during interviews yields more positive results than alternative methods. An issue with
FIFRA Interviewing Techniques. Balen, Mark & Patrick White. “Preparation for Interviews.” United States Department of Justice (2015).
197
Ibid.
198
Ibid.
199
Abbe, Allison & Susan Brandon. “Building and maintaining rapport in Investigative interviews.” Police
Practice and Research 15.3 (2014).
195
196
40 rapport building is that there is not a consensus among practitioners. In one research study,
Allison Abbe and Susan Brandon identify seven methods of building rapport with suspects.200
•
•
•
•
•
•
•
Immediacy behavior
o Behaviors that include leaning forward, reducing physical distance between the
suspect and the source, making eye contact, and facing the suspect.
§ Cultural norms should be considered
Active listening
o This includes backchannel responding like affirmative responses ( “ok”, “uhhuh”, etc.)
o This can also include paraphrasing back to the suspect
Mimicry
o This is key to rapport building. These types of behaviors include mirroring
nonverbal behavior, and speech rate. Mimicry is found to improve trust between
the suspect and interviewer.
o Cultural norms should be considered
Contrast
o This is the opposite of mimicry. Contrast and Mimicry can be used at different
points of the interview to achieve different goals. The interviewer can also use
emotional contract. For example, an interviewer who displays a transition from
anger to happiness.
Self-disclosure
o It has been found that sharing personal information can increase positivity during
the interview. The personalization of the interaction can also enhance trust
between the suspect and the interviewer.
Common Ground
o This characteristic includes overlapping interest and identities between the
suspect and the interviewer. Depending on the amount of information on the
suspect this may be harder to do in some situations.
Contact and persistence
o Research shows that consistent exposure among individuals increases their
likelihood of building a relationship. However, just because an individual has
more exposure to another individual does not mean that they will like each other
any more or less.
There are several challenges to building rapport with a suspect.201
•
•
Interviewer personality
o Some people have an easier time establishing rapport than others. Empathetic
interviewers have been found to be more successful in building rapport than nonempathetic interviewers.
Risks associated with mutuality
200
Ibid. 201
Ibid.
41 •
•
o When the interviewer is more likely to be influenced by the source than vice
versa.
Over-Rapport
o The interviewer over identifies with the suspect.
Source Resistance
o Resistance can arise sporadically from the suspect during an interview. This is
regardless of what the relationship is between the interviewer and the suspect.
Benefits of recording interviews
According to Zulawki and Wicklander, the use technology allows officers or other
individuals to consult previous interviews for clarification of information and to view the
behavior of the interviewers. Furthermore, U.S police jurisdictions have used electronic
recording for the past two decades. The U.S. courts have accepted electronic recording as an
accurate means of documenting police interviews with suspects. However, most US agencies
permit the recording decision to the discretion of the officer in charge. The introduction of
videotaping has helped open police interview rooms to public scrutiny.202
The U.S public has gotten used to being recorded in both public and private buildings
including government offices, courts, police stations, prison and airports. Also recordings of cell
phone conversations and traffic stops are common place as well. The public and the police rely
on these cameras to resolve disputes, identify the suspects and memorialize important occasions.
This is done because the recordings enable people to replay past events.203
Most agencies use video while others use audio recordings. However, videos are
preferred to audio. Some jurisdictions use multiple cameras from different angles while others
use one camera for the whole room. Others position the camera behind the investigator and focus
directly on the suspect. The electronic recording of suspect interviews is an efficient and
powerful tool for law enforcement. Many police jurisdictions are moving to digital technology to
improve the picture quality resolution and lessen storage challenges.204
Benefits of recording interviews include being a resource for training and self-evaluation of
police officers as well as monitoring activity in court, police custody and prisons. Appellate and
trial judges have criticized police agencies that demonstrate low interest in recording suspects’
interviews and yet they have suitable equipment to do so. Some police jurisdictions allow
recording of suspects interviews without informing them, while others obtain consent first. Some
police jurisdictions have no written rules and regulations to govern how, who and when the
recordings are conducted. This is left to the discretion of the officers. Most police jurisdictions
record only interviews for suspects of major and serious felony cases.205
Using an Interpreter in Interviews
A major component of successful interviews with interpreters is the language ability of
the interpreter. The interpreter must be fluent in the exact dialect that the suspect speaks. They
should also be proficient in the official language of the home country to ensure that the
202
Schollum, Mary.
Ibid.
204
Ibid.
205
Ibid.
203
42 translation is accurate. They should also be able to convey the manner in which the information
is presented. Since the interpreter oftentimes plays a key but subordinate role in the interview, it
is crucial that they do not expound on any questions or answers. The translation should be as
close to the original statement as possible.206
Before entering the interview, the interpreter should be briefed and advised of the
questions and overall plan for the interview. There must not be any additional conversation
between the suspect and the interpreter to avoid confusion and other intelligence issues. It is also
recommended that the interpreter sit either next to the interviewer or between the suspect and the
interviewer. This will ensure no additional distractions to the interview. The interviewer should
address the suspect directly throughout the remainder of the interview.207
Introduction to Interrogations
Third Degree Interrogation Techniques
This method is defined as “the employment of methods which inflict suffering, physical
or mental, upon a person in order to obtain information about a crime.” This method gained its
popularity in the 1920’s but overtime would become less popular and most would condemn it.208
Typical features of this method include the use of physical force and psychological duress.209
There are three subcategories of this method and they are blatant physical abuse, deniable
physical abuse, and orchestrated physical abuse. Blatant physical force included suspects being
whipped, beaten, and being hit with pistol butts and baseball bats. Sometimes these methods
resulted in suspects needing medical aid immediately. Deniable physical abuse left very little
evidence behind. Interrogators often hit suspects with rubber hoses because they do not typically
break the skin. The last subcategory is orchestrated physical abuse which resembles “downright
torture.”210
Interrogators using this technique also used various psychological tactics like prolonged
questioning under extreme conditions. They also would deprive suspects of food, sleep and other
necessities until they made a confession. Interrogators also threatened the suspect or his or her
family.211 Solitary confinement was another method often employed by interrogators.212
The Third Degree is ineffective because it doesn’t produce the truth. If a man or woman
is under a significant amount of torture he will likely make a false confession in order to make
the torture stop. The evidence obtained through these means are usually not admissible in court.
The use of these means have long ranging consequences. These types of methods usually result
in mistrust of the police by members of society. Oftentimes the publicity that accompanies these
types of crimes is more damaging to the police department than anything else.213
206
FIFRA Interviewing Techniques.
Ibid.
208
Leo, Richard. Police Interrogation and American Justice. Harvard University Press (2008).
http://www.jstor.org/stable/j.ctt13x0ht7?_=1459029451434.
209
Ibid.
210
Ibid.
211
Ibid.
212
Harvard Law Review. The Third Degree. The Harvard Law Review Association 43.4 (1930).
http://www.jstor.org/stable/pdf/1330289.pdf?seq=1#page_scan_tab_contents.
213
Ibid. 207
43 Exercise:
Question for students: Use the next 3 minutes to work in your small groups to
come up with a list of as many coercive interrogation techniques as you can.
Possible answers are italicized.
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Sexual humiliation
Sleep deprivation
Mock executions
Threatening family members and friends
Physical beatings
Waterboarding
Abdominal slap
Stress positions
Confinement
Dietary manipulation
Forced nudity
Water dousing
Rectal feeding
Prolonged standing
Chaining
Solitary confinement
Sensory deprivation
Wall standing
Music torture
Constant light at all hours of the day
Are EITs Effective?
There are numerous perspectives on whether or not enhanced interrogation techniques
(EIT) are effective in obtaining valuable and accurate information from suspected terrorists. The
perspectives of military officials and academics seem to be mixed. According to SSCI Study
findings, EITs are not effective in gaining accurate information or obtaining a detainee’s
cooperation. American Senator, John McCain stated from his experience as a prisoner of war that
“abuse of prisoners will produce more bad than good intelligence. I know victims of torture will
offer intentionally misleading information if they think their captors will believe it. I know they
will say whatever they think their torturers want them to say if they believe it will stop their
suffering”.214 Shane O’Mara a neuroscientist, has done extensive research on the effects of
torture on the brain. He says that these enhanced techniques are often counterproductive to the
goals of interrogations. The use of EITs causes impairment in the brain which result in inaccurate
214
Congressional Research Service. “Perspectives on EITs and Effectiveness.” Perspectives on
Enhanced Interrogation Techniques.
44 information. The manipulation of sleep, food, temperature and sound also have serious impacts
on memory which again impact the quality of intelligence.215
The perspectives of others in support of EITs are that intelligence and information
obtained enabled the identification of other terrorists and notified officers of upcoming terrorist
plots. EITs also confirmed information found through other detainee interrogations and provided
information about the terrorist organization as a whole. However, these individuals found that
EITs did not reveal any information about imminent threats and were still unsure if the criteria
met was sufficient enough to use EITs.216
Counter-interrogation Techniques (CITs)
Just as interrogators employ various methods to interrogate a suspect, suspects also
employ methods to resist cooperation with the interrogator. CITs are the strategies used by
suspected terrorists to contest cooperation in providing information to the interrogator. These
characteristics can be classified into 5 categories.
Passive
o Refusing to look at interviewers
o Silence
• Passive verbal
o Monosyllabic response
o Claiming lack of memory
• Verbal
o Providing known information
o Scripted responses
o Talking about unrelated topics
• Retraction of previous statements
• No comment
Interrogators should be aware of these strategies so they can prepare for them. These are
likely to be many of the counter-interrogation strategies they will experience when interviewing
terrorist suspects.217
Research has proven that the rapport building interview method is the most effective in
responding to CITs. There are two dimensions in rapport based skills that directly impacts CITs.
They are motivational interviewing skills (MI) and interpersonal competence. MI is derived from
the therapeutic community of psychology. This method is direct, client centered and used to
elicit behavior change. The UK has made a shift to these types of interviewing styles. A major
component of MI is understanding that the suspect has control over the extent to which they
participate in the interrogation. Successful interrogators should be empathetic, possess positive
communication skills, be flexible and open minded and professional.218
•
215
O’Mara, Shane. “Why Torture Doesn’t Work: The Neuroscience of Interrogation” Harvard University
Press (2015).
216
Congressional Research Service.
217
Alison, Laurence., Alison, Emily., Noone, Geraldine., Stamatis, Elntib., Waring, Sara., & Christiansen,
Paul. “The Efficacy of Rapport Based Techniques for Minimizing Counter-Interrogation Tactics amongst a
Field Sample of Terrorists.” American Psychological Association (2014). 218
Ibid.
45 Interpersonal competence is the second dimension of rapport based skills that impact
CITs. With this skill, the interrogator should be versatile and have the ability to adapt to a range
of personalities. Interrogators should engage in adaptive and flexible behaviors rather than
maladaptive behaviors like coercion. Maladaptive behaviors often make the interrogation worse
and less likely to obtain accurate information.219
In a study that measured these two skill sets in response to CITs, the researcher used 181
video and audio recordings of interrogations with 49 terrorists. They found that MI skills had a
significant impact on reducing the amount of CITs in interrogations. It specifically decreased
passive, verbal, and no comment responding. Interpersonal competence had little influence on
verbal, retraction, or non-comment strategies. The study found that MI skills promoted an open
environment in which the suspect was able to speak. However, the use of MI skills also increased
the probability of retractions during interrogations. The use of these skills helps to increase
adaptive behavior of the suspect and decrease maladaptive behavior. Interpersonal competence
did, however, have effects on suspects during interrogations. These skills helped in moving the
suspect from an unwillingness to speak to some sort of response. These two skills need to be
used together in order to yield the most positive results.220
Exercise:
Question for students: What should the interrogator do if the suspect is being sarcastic,
punitive, attacking and unfriendly (maladaptive confrontation)?
The interrogator should be frank, forthright, and critical (adaptive confrontation)
219
220
Ibid.
Ibid. 46 Exercise:
Question for students: MI skills generally promote an open environment for the suspect to
speak in. Which of the following questions is more likely to invite an explanation? Why?
Answer is in italics.
a. “I have a forensic report here from Dr. Phillips, a forensic scientist. I’m going to take a
moment to read a segment from that statement. In it he says, “The swabs taken from Jamal
Al-Jabarti’s hands tested positive for antimony and barium residue consistent with having
handled and fired live weapons. Antimony is a common ingredient in gunpowder and
barium is present in the primer used for the firearm.” Jamal, can you think of any reason
why your hands might have antimony present?”
b. “Dr. Phillips’ report indicates that you have fired a live weapon. That’s what really
happened isn’t it Jamal— you have used a firearm haven’t you?”
-A. The question is an open ended and non-accusatory. B is accusatory and the challenge
could be off target, incorrect, or misinterpreted.
47 Exercise:
Question for students: Based on the scenarios below, which CITs are the suspects using in each
example.
Answers are in italics.
1. Suspect A refuses to look at the interrogator and has not answered any of his questions.
-Passive
2. Suspect B responds to each of the interrogators questions with a yes or no response.
-Passive verbal
3. Suspect C tells his interrogator that he must have hit his head and doesn’t remember what
happened.
-Passive verbal
4. Suspect D stares at the table while he is being interrogated and continues to say no-comment
to every question.
-Passive and no-comment
5. Suspect E has this exchange with his interrogator:
Interrogator: For the purposes of the tape can you please tell me your name?
Suspect E: I have been waiting in that cell for over an hour without access to my mobile. I need
to phone my girlfriend.
Interrogator: That is no problem. I can definitely enable access to a phone to enable you to ring
your girlfriend but I’m afraid I’m unable to give you your actual phone as it is currently being
examined for evidential purposes. Would you like to phone your girlfriend now? I’m happy to
stop the interview and enable that.
Suspect E: No, I just want to phone her on that phone. Anyway, the point is, why is my name
relevant? You know my name. Why do I need to tell you it?
-Verbal (unrelated topic)
6. Suspect F is asked a question about an attempted terrorist plot on a local city. He responds
with a scripted response about how his Jihadist group plans to attack the west and will not stop
until they are destroyed.
-Verbal (scripted response)
48 Role Playing Exercise:
From what you have learned thus far, please read each scenario carefully. The background
information’s purpose is only to provide context for both scenarios. Answer the questions at the
end of each scenario. Select which scenario will yield more successful results in the end and
why.
Background information:
In the past year a terrorist organization by the name of Radical Islamic Front (RIF) has
started to grow in popularity in Country Y and Z. The group wants to create a caliphate in the
region and enact sharia law. As the group has grown in popularity, Christians and Muslims alike
have sought asylum in neighboring countries. Both the countries are unequipped to deal with the
growing threat and have seen an influx in foreigners wanting to fight for the RIF cause.
RIF has declared war against the west and has already attacked major cities around the
world. They have proved to be brutal in their methods. The group has a vast reach on social
media and through this has been able to recruit foreign terrorist fighters from all over the world.
After an attack in the capital of Country X the government has decided to take a stronger
approach to the group. They have established an elaborate system that will allow them to better
monitor citizens who might be interested in joining or are already involved with the RIF
movement. Any individual who meets the criteria, previously established by the government,
will be detained and questioned by the appropriate law enforcement agencies. Currently, Country
X has already detained over 250 individuals. Country X just received intelligence that another
attack could be planned in the country. They are hoping they will gain useful intelligence from
detainees to prevent another attack. Country X has a non-disclosed holding facility outside of the
country. With the influx in detainees the holding facility is short staffed and under resourced.
Prosecutors are in charge of all interrogations taking place in the holding facility.
Scenario 1:
The individuals in charge of the camp have set up an interrogation schedule. Each
detainee will be interrogated twice a day. Interrogations can last up to 12 hours in extreme cases.
Detainees are not allowed to eat in that time. The interrogation methods used include but are not
limited to: sensory deprivation, forced nudity, threatening family members of the detainees,
stress positions, wall standing, sleep deprivation, cramped confinement and other psychological
techniques.
Detainees have responded differently to the varying degree of techniques used. Some
detainees continue to not talk to interrogators, others have provided false information about the
coming attack and their interest in RIF in general. They have also received credible information
that is useful in other investigations.
Questions for students
1) What is the problem in the scenario, if any?
2) Were coercive interrogation techniques used?
a) If there were, what were they?
b) Why do you consider them coercive?
3) What can be done differently?
4) What can be done to counter the CITs being used by the suspects?
49 Scenario 2:
Upon arriving at the facility, each detainee is interviewed and based on their responses
given a classification that gauges their “threat level.” Based on the classification they are
segregated into communities with other detainees of the same classification. Low risk detainees
are given more freedom than high risk detainees. Low to medium risk detainees are allowed to
eat, pray and spend recreational time with each other. High risk detainees are allowed
community access based on case by case evaluations.
Detainees who were screened and believed to be uninvolved or uninterested in RIF were
sent to another facility. This reduced the number of detainees to 213. The remaining detainees
were not formally interviewed until they were held for one week. During this time, interviewers
were assigned detainees and were charged with finding out as much information about them as
possible in preparing for their interview. This preparation time allowed the interviewer to review
evidence, background information, witness statements and other agency information.
Once interviewers began, they tried to build rapport with each detainee. They created a
non-threatening common ground, identified common background information or interests, placed
the detainee at ease and familiarized them with interview process.
The results thus far have been inconclusive. The interviewers have received some
valuable information and as of now, the information has been reliable. There have been a large
number of detainees who have continued to provide false information or not respond at all to the
interrogator.
Questions for students
1) What is the problem in the scenario, if any?
2) Were coercive interrogation techniques used?
a) If any, what were they?
b) Why do you consider them coercive?
3) What can be done differently?
4) What can be done to counter the CITs being used by the suspects
Recommendations
Through the research we have conducted this semester, we feel that the use of the
PEACE Model and Rapport Building approach are the most efficient and reliable techniques
when interviewing suspected terrorists. The use of these techniques will lower the amount of
false confessions and we will believe, will yield more reliable information than other methods.
The training course should also focus on the importance of the preparation stage of the interview.
Research has shown that this stage tremendously impacts the success of an interview. It will also
give the interviewer time to understand what motivates the suspect. The understanding of this
motivation is incredibly important for interviewing suspected terrorists specifically.
Additionally, the training should emphasis the major provisions in the Convention Against
Torture, of which each county has ratified. Prosecutors and law enforcement officer should be
aware of the consequences that face them if they choose to violate the CAT. In order to facilitate
50 efficient investigations, it is also crucial that the training focus on the collaboration of police and
prosecutors in preparing for the interview and conducting the interview.
Conclusion
In conclusion, we find that corruption, lack of police and prosecutorial training, and
inconsistencies in the investigative process plague each of the identified countries. The growing
threat of terrorism in the region continues to undermine the national security interests of the U.S.
It is therefore essential that law enforcement officers and prosecutors are able to conduct
professional and ethical interviews to obtain intelligence that can counter these growing threats.
The training that these individuals receive should be consistent throughout the identified
countries and focus on non-coercive interview methods. The training should also describe what
torture is and how to avoid it by establishing clear definitions to avoid its use. Overall, we
believe that this training will have a positive impact on the investigative process in the Balkan
region and will help thwart future human rights abuses.
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