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Center for Ethics and the Rule of Law

 


interrogation and torture, The Méndez Principles • June 01, 2021

The Méndez Principles: Leadership to Transform Interrogation via Science, Law, and Ethics

by Steven J. Barela and Mark Fallon

 

CERL is pleased to present this article (and the entire Just Security series) based on the newly-released Principles on Effective Interviewing for Investigations and Information Gathering, also known as The Méndez Principles. Named for Juan Méndez, the former UN Special Rapporteur on Torture who in 2016 called for the creation of a universal protocol for lawful and humane interviewing standards, the principles provide guidance on conducting non-coercive and rapport-based interviews with legal and procedural safeguards. CERL has been an advocate of Mr. Méndez’s call for the protocol and welcomed him as the keynote speaker at CERL’s 2018 conference on interrogation and torture.–Claire O. Finkelstein, CERL Academic Director

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The Méndez Principles: Leadership to Transform Interrogation via Science, Law, and Ethics,” by Steven J. Barela and Mark Fallon, was originally published on Just Security.

 

(Editor’s note: This article is part of a Just Security series on the newly released “Principles on Effective Interviewing for Investigations and Information Gathering,” an expert-led initiative responding to a 2016 appeal to the U.N. General Assembly by then- U.N. Special Rapporteur Juan E. Méndez to develop such standards. The series outlines the origins and the scientific, legal, and ethical underpinnings of the guidelines, also known as the “Méndez Principles” in honor of its co-chair.)

As a young Argentine lawyer in the 1970s, Juan E. Méndez defended political prisoners under the violent military junta ruling his country. He knew his clients were being carted off for torture and thus put himself at great personal risk. Soon it was Méndez who was detained. Held for more than 1 ½ years, his jailers subjected him to the same torturous fate, using high-voltage electrocution.

Knowing that the ruthlessness wrought upon him and thousands of others was never about discovering any sort of truth, Méndez has spent the last 4 ½ decades campaigning against torture. In 2016, toward the end of his six-year term as United Nations Special Rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment, he submitted a report to the secretary-general calling for the development of universal standards for non-coercive interviewing alongside procedural safeguards. The aim was to make respect for the presumption of innocence operational and improve the effectiveness of information gathering.

For the past four years, Méndez has been the inspiration and co-chair of a project to accomplish that goal. Last month, the Geneva-based Association for the Prevention of Torture (APT), together with his Anti-Torture Initiative at the American University Washington College of Law and the Norwegian Centre for Human Rights, released the “Principles on Effective Interviewing for Investigations and Information Gathering,” also known as the “Méndez Principles.”

The principles reflect what Méndez wrote in his 2016 report: “The sophisticated normative frameworks in place often do not translate into a reduction in practices of torture, ill treatment or coercion during questioning.” But remarkable efforts over the previous decades coming from an unexpected quarter — science — could fortify the fields of legality and ethics, and provided an opportunity and path forward.

Along with practical experience, science has an enormous amount to say about what actually works to elicit accurate and reliable information from someone — even if that person is uncooperative and accused of the worst crimes. That research shows that building rapport and trust (the opposite of ill-treatment) is most effective for the task.

Yet, the understandable abhorrence of torture has paradoxically stifled cross-disciplinary dialogue, as lawyers and ethicists fear opening the door to discussions on efficacy. This is changing, however, as experts in law, ethics, and science increasingly understand that these disciplines reinforce each other and can be integrated.

Distinguishing “Us From Our Enemies”

In 2014, the U.S. Senate was debating an unclassified summary of a secret 6,700-page investigative report into the CIA Rendition, Detention and Interrogation program, when then-Senator and former presidential nominee John McCain rose to give an impassioned speech. “I know from personal experience that the abuse of prisoners will produce more bad than good intelligence […and] I know the use of torture compromises that which most distinguishes us from our enemies: our belief that all people, even captured enemies, possess basic human rights, which are protected by international conventions.”

The late senator “knew,” of course, because as a U.S. Naval aviator captured during the Vietnam War, he was tortured by the Vietnamese military during 5 ½ years as a prisoner of war. As an elected leader decades later, McCain (R-AZ) maintained that clarity in opposing prisoner abuses committed by the United States in the aftermath of the 9/11 al-Qaeda attacks.

So did his Senate colleague, Intelligence Committee Chair Dianne Feinstein (D-CA), whose panel conducted the probe into the CIA’s practices. The report confirmed the indefensible descent into cruelty in the name of the American people, the full scale of which will remain unknowable until the other 92 percent of the document is released. In 2015, the McCain-Feinstein amendment — Section 1045 of the 2016 National Defense Authorization Act — codified President Barack Obama’s Executive Order 13491 into legislation to bring the country’s interrogation techniques back from the abyss.

The 2015 U.S. legislation was a genuine step forward, in that it required all interrogations carried out by U.S. agents to comply with Army Field Manual 2-22.3, which explicitly prohibits waterboarding, beatings, sexual humiliation, and the use of nakedness and military dogs. However, the manual still includes “separation” tactics — a euphemism for isolation that can be tantamount to psychological torture — which are authorized under its Appendix M.

The amendment also supported the High Value Detainee Interrogation Group (HIG) Research Program. This three-agency entity — FBI, CIA and DoD — was born of the original Obama Executive Order and established the first federally funded research program in more than 50 years into the most effective and lawful interrogation techniques. With this landmark advancement, the United States joined other countries around the globe in the scientific pursuit of effective and legal methods to reduce threats to public safety.

Following the Science and Effective Practice

The McCain-Feinstein Amendment and the Méndez Principles seek similar outcomes. Both reinforce the absolute prohibition against interrogational torture. They also recognize that abusive questioning and coercion occur not only in law enforcement but in any context of a suspected security threat. And both sets of norms promote scientifically sound, lawful, human rights-compliant, and effective practices.

The Méndez Principles have been led by a 15-member Steering Committee of experts in the fields of interviewing, law enforcement, criminal investigations, national security, military, intelligence, psychology, criminology and human rights from around the world (including co-author Fallon). The committee has been chaired by Méndez and Mark Thomson, former secretary general of the APT, and supported by 20 specialists in the drafting groups, a Chairperson’s Editorial Group (led by co-author Barela as editor), and an 80-member Advisory Council. (Full participation is listed in the document.)

Moreover, a volume we recently co-edited with Gloria Gaggioli and Jens David Ohlin, “Interrogation and Torture: Integrating Efficacy with Law and Morality,” shares a great deal of DNA with the Méndez Principles as numerous contributors directly participated in the process. Each demonstrates a growing confidence among scholars in different disciplines, practitioners in the field, and those dedicated to human rights that following the science can help transform interrogation.

Even as we are reminded repeatedly that torture destroys justice, leaders such as Méndez, McCain and Feinstein, remind us that despair is not an option. In doing so, they illuminate a way out of the confusion and noise that has been propagated to “justify” the unjustifiable.

(For co-author Mark Fallon, the views expressed in this article are those of the author and do not reflect the official policy or position of the Department of Defense or the U.S. government.)

 

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