Interrogation: Legislative Development

The Chambliss Interrogation Bill

By Benjamin Wittes
Monday, March 21, 2011, 5:08 PM

This is the final installment in my series of posts on the post-Executive Order spree of legislation emerging from Capitol Hill. It concerns the interrogation bill introduced by Sen. Saxby Chambliss as part of the Senate package of bills--the other elements of which I discussed here and here.

I have now read this bill several times, and I have to confess that I don't understand it. I don't understand quite what it is trying to do, nor do I fully understand how substantially--if at all--it would really mandate changes in current practices. It is clearly intended to precipitate a dramatic change, the creation of a new interrogation unit that would take the lead in all major counterterrorism interrogations. And in conjunction with some of the other bills introduced in the wake of the Executive Order, it might thus have a considerable impact. But for the reasons I will describe, I'm not sure its impact would be as dramatic as its sponsors intend. That's probably a good thing--since the underlying policy judgment is not, in my opinion, sound.

I'm going to describe the bill first and give some impressions of how it would interact with and change current practice. I'm not 100 percent certain that I'm right in these impressions and would welcome clarification or correction. Needless to say, it is a corrolary of my confusion as to the likely function of this bill that I believe it would require a lot of work before it would be ready for prime time.

The bill--introduced on behalf of Sens. Lindsey Graham, Kelly Ayotte, John McCain and Richard Burr--is fashioned as an amendment to the Detainee Treatment Act. It requires the development and submission to Congress of new "procedures for the interrogation of unprivileged enemy belligerents who are suspected of possessing significant information" and who are either in U.S. custody or in foreign custody with American access. It lays out certain elements which those procedures "shall" contain, though it generally does so with sufficient vagueness as to make its effects in practice a little opaque.

But don't bristle and assume that this must be some pro-waterboarding bill. It actually does not specify any new interrogation rules or tactics, nor does it include any new restrictions. Rather, these new procedures have nothing to do with the immediate manner in which interrogations are conducted and everything to do with the bureaucratic arrangements behind those interrogations.

According the bill, the procedures must include, first, the "creation of an entity composed of representatives" of the FBI, the CIA, the DIA, and "any other appropriate" intelligence or defense component. This entity "shall have primary responsibility for the interrogation of unprivileged enemy belligerents who are suspected of possessing significant information." This sounds suspiciously like the already-existing "High-Value Interrogation Group," save that the HIG does not have control over all interrogations  of anyone possessing "significant information" but is presumably more specialized and focused only on the very highest-value cases.

To understand how significant a change the bill's requirement would be from current practice, therefore, one has to know what "significant information" means. If the information in question has to be really "significant" before this new group would have primary responsibility for an interrogation, it might cause little change. On the other hand, if the information only has to be a tiny bit significant, the bill would seem to require primacy for the new group in a vast array of interrogations (and the group would have to be huge in order to do all of its work). The bill, however, gives no help on this critical question. The term is undefined in the legislation, which says only that the procedures should "specify the criteria and process by which the intelligence community determines . . . that an unprivileged enemy belligerent is suspected of possessing significant information." At least as I read the bill, therefore, the administration could theoretically respond to these requirements largely by submitting procedures describing the existing HIG and interpreting "siginificant information" narrowly enough to refer only to those detainees the HIG would interrogate anyway. I'm sure this not what Sen. Chambliss and his colleagues have in mind, but their bill is so malleably drafted that it would not do particular violence to their text to read it that way.

The bill then goes on to require "a presumption that the entity . . . shall interrogate unprivileged enemy belligerents who are suspected of possessing significant information, regardless of the place of capture." I'm not sure what the difference is between giving the entity primary responsibility for interrogations and creating a presumption that it will do key interrogations. If there is any difference, the same problem--what exactly "significant information" means--occurs again. This section contains, in any event, a loophole. If there is "a determination" by the FBI director for domestic detainees or the CIA director for detainees abroad that "specific security, operational, or logistical concerns prevent the deployment or use of such entity," it can be waived. In other words, the bill mandates that an interagency group has primary authority over certain interrogations and creates a presumption that it will conduct those interrogations, but it does not define the class of interrogations in question and is waivable in any event.

The procedures are also required to include "the process by which an individual in the custody of a Federal, State or local law enforcement agency who is suspected of possessing significant information may be designated at any time as an unprivileged enemy belligerent and transferred immediately" to military custody for interrogation under these rules. This provision only makes sense in the context of the mandatory military detention provisions of the McCain and McKeon bills. For reasons I have discussed earlier, I have strong objections to these provisions. In the absence of their passage, however, this provision does virtually nothing. It seems simply to require the Executive Branch to go through a weird hypothetical exercise of imagining that some law enforcement component had custody of a detainee with "significant information" (whatever that means) and that the military wanted custody itself to allow the interrogation group to function as the primary interrogation unit. And it requires the writing for procedures to define how the military would then obtain custody of that person.

The fifth requirement demands that the procedures give the "entity" "full and complete access" to the undefined universe of detainees in question and allow it to "request appropriate access" to detainees in foreign custody.

The sixth demands that the procedures "provide that obtaining timely and actionable intelligence shall have priority over the interests of criminal prosecution, including a strong presumption against providing access to or allowing the presence of counsel during any interrogation of an unprivileged enemy belligerent. . . ." This requirement seems like a significant departure from current practice, at least in some cases, and it is both a clumsy and ill-considered change. It ignores the fact that law enforcement interests and intelligence-gathering interests are sometimes aligned. When a detainee is talking freely to the FBI--and when his lawyer is encouraging that in an effort to win leniency--the last thing one wants to do is keep the lawyer away. But again, the provision is so vague that it would allow all sorts of exceptions. What if, for example, interrogators concluded at the time of arrest that the best way to ensure someone's cooperation--and thus garner intelligence--was to prioritize criminal process and get the subject to cop a plea? Could the administration write procedures that by prioritizing intelligence gathering over criminal process might paradoxically sometimes prioritize criminal process (for intelligence-gathering reasons) over non-criminal interrogation?

The seventh requirement is that after interrogation, the Secretary of Defense--in consultation with the attorney general and the DNI--"shall determine the status and disposition" of the interrogatio subject. Again, this section makes no sense outside of the context of the McCain or McKeon bills, which create somewhat different menus of options for the ultimate disposition of the detention cases they mandate.

Finally, the eighth requirement allows that "exceptions" to the procedures "may only be authorized" by the FBI director for domestic detentions and by the CIA director for detentions abroad. The bill gives no indication of what sort of "exceptions" it is contemplating--or whether this is simply a reference to the earlier requirement, discussed above, that the FBI and CIA directors can waive the interrogation's entity's primacy when security or logistics make it undeployable. If I were an administration lawyer, I would read this provision as a freestanding authorization to the FBI and CIA directors to make exceptions to the procedures based on any considerations that suited them. Read thus, the provision seems like it could swallow much of the rest of the bill.

There are some additional reporting requirements in the bill, but these are the substantive provisions. To say they are a bit confused seems to me understate the matter. The goal seems to be, assuming but not requiring military detention of just about everyone, to create a high-value interagency interrogation group, give it primacy, and make sure its business is not law enforcement. But the bill doesn't quite do these things. In practice, I'm not honestly sure what it would do. If anyone has a coherent read on it, please let me know.