Draft. Not to be quoted without the authors permission.

The Baha Mousa Inquirys Recommendations on Interrogation Guidelines Samantha Newbery ISA/BISA Joint Annual Conference, Edinburgh, 20-22 June 2012 The Baha Mousa Inquiry was set up in July 2008, and published its report in September of last year. The events at the centre of the inquirys investigations took place in September 2003 when ten Iraqi civilians were arrested and held for three days at the Temporary Detention Facility at a British military base in Basra, Iraq. One of the detainees, Baha Mousa, died during this time as a result of the treatment he received.1 Also controversial was that all ten of these detainees were subject to a group of five interrogation techniques that were banned from all future use in March 1972. The Inquirys report ends with 73 recommendations for change. All bar one have been accepted by the government. The recommendations concern the training of interrogators and others who will come into contact with captured personnel, and interrogation guidelines. What Ill be focusing on in this paper is the recommendations made about interrogation guidelines, which focus on these five techniques and re-instituting the 1972 ban on their use. The reason for this focus is that the Baha Mousa Inquirys chairman, Sir William Gage, a former Court of Appeal judge, considered many of the same issues as the policymakers who were involved in discussing changes to interrogation guidelines in 1971and 1972. Both episodes resulted in banning the five techniques. The aim of this paper is to highlight the similarities and differences between these two episodes. The main area of comparison is views on how to strike the right balance between respecting human rights and collecting intelligence quickly. A good place to start is with some background to the 1972 ban on the five techniques. In the autumn of 1971, soon after the outbreak of the troubles in Northern Ireland, fourteen terror suspects were detained, conditioned using the five techniques, and interrogated. The uproar that this caused in the UK and abroad led to the British governments 1972 decision to ban these techniques from all future use by British forces, and the encapsulation

1 He was made vulnerable by injuries and exhaustion, then violent assault. Baha Mousa Inquiry Report, Part XVIII, paragraph 143.

Draft. Not to be quoted without the authors permission. of this ban in new interrogation guidelines. These interrogation guidelines listed each of the five banned techniques: Techniques such as the following are prohibited a. any form of blindfold or hood; b. the forcing of a subject to stand or to adopt any position of stress for long periods to induce physical exhaustion; [stress positions] c. the use of noise producing equipment; d. deliberate deprivation of sleep; e. the use of a restricted diet to weaken a subjects resistance.2 These are the five techniques: hooding, stress positions, loud continuous noise, limited sleep, and limited diet. The Baha Mousa Inquiry recommended that the interrogation guidelines in place when it published its report last year be amended to include much more detail about precisely which interrogation techniques are prohibited and which are permitted. This is the first of the two main points of comparison between the 2011 changes and the 1972 changes to interrogation guidelines: being much more specific about what is prohibited and what is permitted. The second of the two major points of comparison concerns purpose, and well look at this one first.

The Five Techniques: Purpose

Both the Baha Mousa Inquiry and the policymakers involved in discussing the five techniques in the early 1970s considered whether the techniques should be permitted when used for certain purposes. Both periods saw consideration of whether some of the five techniques were necessary, not for aiding interrogation, but for security. What is key here is that in both periods there were discussions about how to balance preparing captured personnel for interrogation in order to make them more likely to cooperate with their interrogators, respect for those captured personnel, and security concerns like concealing the location of the detention centre.

2 JIC(72)21, Directive on Interrogation by the Armed Forces in Internal Security Operations, 29 Jun. 1972, CAB 164/1329, paragraph 7, TNA.

Draft. Not to be quoted without the authors permission. Today, the prohibition on all five of the techniques is absolute and applies in all circumstances. But security is still a concern. Blacked out goggles and blindfolds can be used to restrict sight when the need for this is unavoidable.3 But whats meant by unavoidable? In what circumstances is it still permissible to restrict sight? Sight can be restricted to stop captured personnel from seeing genuinely sensitive facilities or equipment.4 So it can be restricted on the journey5 to a detention facility to protect its location, and whilst at a detention facility to prevent the captured personnel from seeing things that could be used to harm the security forces after their release from detention. To give another example, Sir William Gage, the Chairman of the Baha Mousa Inquiry, asked that the doctrine document addressing captured personnel be amended to include the specification that it is not legitimate deliberately to increase the noise in the vicinity of [Captured Personnel] even for security purposes.6 But again, security was still a consideration. Gage said that measures could still be taken to stop captured personnel from overhearing sensitive information, by using ear defenders (just never noise). What is significant here is that the concern for security is still being given attention, but the welfare of captured personnel is also given weight. Just how much weight is highlighted by comparing the balance struck here between security and welfare, with that adopted in the early 1970s. In 1971-2, similar concerns about achieving a balance between security, welfare, and successful interrogation were voiced by the Intelligence Coordinator and the Ministry of Defence. Importantly, they were keen on continuing to use the five techniques as they believed they were essential to the collection of intelligence. The Intelligence Coordinator and those representatives of the Ministry of Defence who were party to these discussions believed the best way to get the wider government to support the continued use of the techniques was to emphasise their value as security measures.7 Using noise prevents
3 Individual Aide Memoire , issued down to soldier level, to cascade down the information in the main theatre instruction. See Baha Mousa Report, Part XVI, pp.1218-19. 4 Baha Mousa Report, Part XVI, Paragraph 16.96. 5 Individual Aide Memoire , issued down to soldier level, to cascade down the information in the main theatre instruction. See Baha Mousa Report, Part XVI, pp.1218-19. 6 Baha Mousa Report, Recommendation 5. 7 Note of a meeting held by PUS on 23 November 1971 to discuss a draft historical paper on interrogation techniques for the Parker Committee, 25 Nov. 1971, WO 32/21776, TNA.

Draft. Not to be quoted without the authors permission. captured personnel from knowing where they are by eliminating sounds from outside the detention centre they may recognise; it prevents them from communicating with other subjects; and stops others from recognising their voices.8 The use of hoods to restrict sight also helped prevent captured personnel from being identified by other prisoners,9 and can be used on the journey to the detention centre to protect the security of its location.10 The use of wall-standing as a stress position when captured personnel are in the holding area, rather than being held in individual cells, protects guards and interrogators from sudden attempts to lash out at them.11 The Intelligence Coordinator and members of the Ministry of Defence also noted the value that these techniques had in preparing captured personnel for interrogation. Hooding, for instance, maintains a prisoners sense of isolation, which is often believed to aid interrogation.12 Nonetheless, the British Government reached the conclusion that it was best to ban the five techniques from all future use. As we will see shortly, exactly what was banned was more limited than what is banned today. The over-riding reason why the five techniques were banned by the British in both cases was concern for the well-being of prisoners. So in both cases, interrogation methods, including those that increased security of detention centres and their personnel, were limited by concerns for prisoners. While the 1972 interrogation guidelines improved the welfare of prisoners, they did not go as far as the changes made since Baha Mousa died in British custody in Basra. Indeed, this is one of the key findings of this paper. Although the five techniques were banned in 1972, this ban consisted of the short descriptions of each quoted earlier in the paper. On noise, they
8 Campbell (Director of Management and Support of Intelligence) to JIC Secretary, 18 Oct. 1971, CJ 4/97, TNA. 9 Note of a meeting held by PUS to discuss interrogation procedures at 15.50 on 26 October 1971, 28 Oct. 1971, DEFE 23/108, TNA. 10 Prisoner Handling in Interrogation Centres in Northern Ireland: Report by the Intelligence Coordinator, White, 2 Dec. 1971, WO 32/21776, TNA. 11 Ibid. 12 Note of a meeting held by PUS to discuss interrogation procedures at 15.50 on 26 October 1971, 28 Oct. 1971, DEFE 23/108, TNA.

Draft. Not to be quoted without the authors permission. prohibited the use of noise producing equipment, but not other forms of noise. Baha Mousa and the other detainees held with him were exposed to continuous noise in the form of soldiers banging an iron bar against the floor, and one of the detainees was placed up against a noisy generator for nearly two hours.13 This use of noise is not against the wording of the 1972 interrogation guidelines, which only prohibit noise producing equipment, though using noise to prepare detainees for interrogation is still against the spirit of the 1972 interrogation guidelines. Since the Baha Mousa Inquirys recommendations were adopted, the use of any kind of loud noise, for any period of time, is now prohibited. Since Baha Mosuas death in 2003, the welfare of prisoners has featured much more prominently in decisions on interrogation guidelines. By contrast, in the early 1970s, security and preparing captured personnel for interrogation was given much more weight in relation to the importance of prisoner welfare than in recent years. In other words, welfare is now given more weight relative to security and preparing prisoners for interrogation.

The Five Techniques: Specificity

The second of the two main areas for comparing the 1972 and 2011 recommendations on interrogation guidelines is their specificity. Generally speaking, the 2011 recommendations are much more detailed than the 1970s set, and called for a much more detailed (and specific) set of interrogation guidelines to be established than was the case in 1972. The motivation for this increased specificity is a concern that it be made as clear as possible to personnel handling prisoners which conditioning techniques are prohibited and which are allowed. For example there has been much more effort to set time limits on the use of the five techniques in the last ten years than there was in the 1970s. Setting time limits received very little attention in the 1970s, and werent mentioned in the interrogation guidelines published in June 1972. The Ministry of Defence, who were in favour of keeping the five techniques, briefly considered this matter, and argued that it was difficult to set a time limit on the use of noise as it might be required for security to stop prisoners from overhearing each other. They were concerned about the welfare of the prisoners subjected to noise all the same, as they

13 See Baha Mousa Report, Part XVIII, paragraph 118.

Draft. Not to be quoted without the authors permission. noted that the level of the noise was checked by Medical Officers, and by the staff who were also subject to it, who were instructed to complain if it was too loud.14 By contrast, the Baha Mousa Inquiry recommended, and the Ministry of Defence agreed, that interrogation guidelines should be updated so that they do not specify what type of noise is prohibited [just noise in general],15 and that there should be no time limit in connection with the prohibition on noise.16 In other words, unnecessary noise, no matter how it was generated, should not be used for any length of time. Weve moved then from a decision not to include any comment on time limits in interrogation guidelines, to guidelines that explicitly state noise should not be used for any time period, however long or short. Interrogation guidelines today then are much more specific than those dating from 1972. Current guidelines specify that captured personnel should get three meals per 24 hours, not closer than four hours apart or more than ten hours apart, so long as operational circumstances allow this. They also state that prisoners should have at least eight hours rest per 24 hour period, and must be allowed to sleep for at least four hours in one go in each 24 hour period.17 This is much more prescriptive than the 1972 interrogation guidelines, that simply prohibited deliberate deprivation of sleep and the use of a restricted diet to weaken a subjects resistance. There was no discussion of length of time for sleep and between meals in the early 1970s. I suggest that the motivations for this increase in detail include making it clearer to personnel handling prisoners precisely what they ought to be doing, and to make it easier to establish when someone has failed to comply with what is expected of them. Sir William Gage, Chairman of the Baha Mousa Inquiry, was concerned that setting limits could be too prescriptive. In his words, I remain convinced that it is inappropriate for this Inquiry to make recommendations that are highly prescriptive at the level of fine doctrinal detail.18 He wanted to avoid introducing a raft of bureaucratic regulations, and to make
14 Possible further safeguards on the use of interrogation in depth, unsigned (MoD), undated (discussed at MoD Northern Ireland Policy Group Meeting on 7 Jan. 1972. See WO 296/25, TNA), CJ 4/118, TNA. 15 Baha Mousa Report, Part XVI, paragraph 16.73. 16 Baha Mousa Report, Part XVI, paragraphs 16.72-16.83. 17 Aide Memoire, November 2008, MOD042380-409, paragraph 7, http://www.bahamousainquiry.org/f_report/vol%20iii/Part%20XVI/ch2/MOD042380.pdf. Gage supports the continuation of these guidelines on sleep and meals (see Baha Mousa Report, Part XVII). 18 Baha Mousa Report, Part XVI, paragraph 16.4.

Draft. Not to be quoted without the authors permission. simple recommendations, few in number and guided by common sense.19 Yet it is noteworthy that the Inquiry did make recommendations that were much more prescriptive than those made forty years earlier. What is debateable is whether giving this level of guidance is a help or a hindrance. Having detailed written guidance provides something for members of the armed forces handling captured personnel to refer to, but simultaneously provides more information for them to have to learn. If further uses of the five techniques are avoided, and they once again become a thing of the past, then we may argue that these detailed guidelines have been a success. One further point on the increase in the level of guidance, is that this may be indicative of a general proliferation of documentation, or perhaps bureaucracy, in the last forty years. But I believe one, perhaps even the, main motivation for the increase in specificity over the years is an increase in concern for respecting captured personnel and their human rights.

Balancing intelligence-gathering and human rights

This brings us back to the earlier point about how to establish a balance between collecting intelligence through interrogations and respecting prisoners human rights. Sir William Gage wrote in the Baha Mousa Inquirys final report: It is abundantly clear from the evidence I have heard that interrogation policy and practice inevitably involves difficult legal and policy judgments about where the line is to be drawn between illegitimate and/or unlawful pressures upon prisoners and legitimate and lawful means of obtaining life saving intelligence. Striking this balance is not a new challenge.20 Indeed, in November 1971, Home Secretary Reginald Maudling stated in the House of Commons that:

19 Ibid, paragraph 16.3. 20 Ibid, paragraph 16.170.

Draft. Not to be quoted without the authors permission. Very difficult issues are involved in judging what methods of interrogation are permissible in the protection of lives of the civil population and the security forces against a ruthless and deliberate campaign of terror and murder.21 The need to maintain an ability to collect intelligence was repeated in Defence Secretary Liam Foxs justification for refusing to accept one of the Baha Mousa Inquirys 73 recommendations. The rejected recommendation is that the harsh questioning approach should no longer be used in tactical questioning. Tactical questioning is the initial, brief questioning of prisoners used to gain any information of immediate value and to decide whether the prisoner is worth holding for more lengthy interrogations. The harsh approach is a questioning method in which the questioner is cynical or sarcastic, insulting the person and their organisation.22 Defence Secretary Liam Fox stated in the House of Commons on 8th September 2011, the day the Baha Mousa Report was released, The recommendation that we institute a blanket ban during tactical questioning on the use of certain verbal and nonphysical techniques I am afraid I cannot accept. The reason being, in Foxs words, that It is vital that we retain the techniques necessary to secure swiftly in appropriate circumstances the intelligence that can save lives.23

Conclusion
The value of interrogation as a method of intelligence gathering was therefore acknowledged in the discussions of what methods of interrogation are appropriate in response to the 2003 episode, and the Northern Ireland episode of the early 1970s. The five techniques of hooding to restrict sight, stress positions, loud continuous noise, limited sleep, and limited diet are now once again prohibited, and the Chairman of the Baha Mousa Inquiry is convinced that the prohibition is now firmly re-established in military doctrine.24 Both periods examined here show concern for the welfare of prisoners and security of prisoners,
21 Maudling, Hansard, House of Commons, 16 Nov. 1971, vol.826, cols.216-17. 22 Baha Mousa Report, Part XVI, paragraph 16.378, from a May 2010 slide presentation by the Interrogation Branch, http://www.bahamousainquiry.org/f_report/vol%20iii/Part%20XVI/ch5/MIV000683.pdf. 23 Liam Fox, Defence Secretary, Statement on the Report into the death of Mr Baha Mousa in Iraq in 2003, Statement delivered by Secretary of State for Defence to Parliament on Thursday 8 September 2011, http://www.mod.uk/DefenceInternet/AboutDefence/People/Speeches/SofS/20110908StatementOnTheReportInt oTheDeathOfMrBahaMousaInIraqIn2003.htm, accessed 31 May 2012. 24 Baha Mousa Report, Part XVI, paragraph 16.230.

Draft. Not to be quoted without the authors permission. staff, and the location of detention centres. The comparison has shown though that prisoner welfare is today given more weight in decisions of how to treat prisoners than forty years ago. Finally, the comparison highlights the way that present interrogation guidelines are much clearer on how prisoners are to be treated, and that this has been achieved by being much more specific than the brief list of the five techniques that comprised the 1972 ban on their use.