Flaw of Prosecutorial Questioning

There is a world of difference between asking questions to establish guilt and asking questions to gain information. One approach focuses on obtaining a confession, usually for its evidentiary value. That value resides in supporting prosecution or some other action that begins with establishing guilt. The second approach, however, is less instrumental than exploratory. Its aim is to learn, not to alter the status of those questioned.

This fundamental distinction in approaches offers one look at why it matters whether an interrogation follows a "You did it" vs. "What is happening?" bias. This distinction represents the essential difference between law enforcement and intelligence questioning. The distinction also highlights why the law enforcement or prosecutorial bias remains fundamentally at odds with intelligence collection and why, on a cultural level, cops and prosecutors enter into intelligence collection with an infirmity proportional to the degree that this prosecutorial bias has infected their repertoire of interviewing skills.

The average length of time a police officer can allow a subject to speak without interruption in an interview is eight seconds. (Two separate sources corroborate this assertion: British psychologists Rebecca Milne and Ray Bull in their 1988 Investigative Interviewing, Chichester: John Wiley & Sons, 1999; retired RCMP polygraph examiner and corporate investigator for a major Canadian petroleum company, Barney Bedard, in his 2006 presentation on detecting deception before the American Society for Industrial Security in San Diego, at its annual seminar.) This penchant for interruption appears impossible to satisfy unless the questioner is aiming more for a predetermined answer than for terra incognita.

The principle flaw of prosecutorial questioning, then, is its inherent conflict with the unknown, with new information whose nuances and trajectory are anything but preordained.

The other kind of questioning comes with its own Achilles’ heel. But that is a dish to serve for another meal.

Prosecutorial questioning is purposeful, narrow, goal-oriented. It has its place as a supplement to physical evidence and can even be a godsend in the absence of any other proof of guilt. However, if one’s only approach to questioning is to establish guilt, then one becomes precisely the wrong questioner to attempt to derive perishable or strategic threat intelligence. The institutionalized myopia of questioning for prosecution is too big a hurdle to allow the majority of cops and lawyers to carry out the kind of open-ended probing necessary to find out what an interviewee knows of intelligence value. After all, the best of such material may have nothing to contribute to a conviction. Indeed, the answers to such questions may even undermine the prosecutorial objective by giving the interviewee leverage with which to seek a plea bargain or other deal in proportion to what he or she knows that we want to know. Consequently, the questioner whose main objective is a successful conviction lacks a professional incentive to ask questions that undercut this aim. And since interviewees often claim that the reason they did not supply certain answers was that they were never asked related questions, is it any surprise that a law enforcement bias continues to be precisely the wrong way to exploit captured attackers, like last year’s Christmas underwear bomber?

As a nation, we missed connecting these dots in September 2001. Significantly, in November 2001, the attorney general and FBI director acknowledged the need to move away from this prosecutorial bias. The deputy attorney general even said, "Our overriding priority is to ensure that all necessary and appropriate steps are taken to protect the American people, to prevent further attacks, and to disrupt terrorist cells before they can do more harm -- even if it means potentially compromising a criminal prosecution (per CNN, November 8, 2001, at http://www.cnn.com/2001/LAW/11/08/inv.justice.revamp )." As the events of Christmas 2009 show, however, this must be an elusive lesson to grasp – except, perhaps, for adversaries bent on our obliteration.

-- Nick Catrantzos

Internet Creating Radicals?

This question reflects our popular taste for hyperbole in all things cyber. The Internet is as helpful to terrorists as it is to other mortals. This does not mean it is itself creating radicals or terrorists.

Not every change is as instantly transformational as its advocates proclaim. The automobile may have replaced the horse-drawn carriage, but places to go remained about the same as the transition unfolded. Similarly, the Internet appears more tool of convenience than secret weapon. Dr. Abe Wagner*, a former government official tasked with exploring some arcane aspects of the terrorist threat, observed that Al Qaeda et al showed little interest in exploiting the Internet beyond the role of power user. They were not recruiting great IT talent, nor putting a premium on developing it from within. Why then assume they have cultivated extraordinary, Internet-based psychological warfare and brainwashing capabilities for a recruiting drive? Surely Madison Avenue ad agencies, PBS pledge drives, and military recruiters would be light years ahead of them by now, if such online dividends were within easy grasp.

A more likely reality is roughly akin to the migration from posting letters to using e-mail. The Internet is a tool. So is the telephone. So is the daily news. Anyone may use them to pursue an agenda, including terrorists in search of acolytes. But not every tool is necessarily a weapon. As Bill Gates mused in his book, The Road Ahead, an infusion of technology tends to accelerate the discovery of successes and flaws, without necessarily magnifying one or diminishing the other.

I suspect what we are witnessing in Sageman (who, in Leaderless Jihad, claims that the Internet is producing a fundamental change) is an impetuous exuberance that is defining as transformational a cyber phenomenon that, in reality, has been largely catalytic — so far. What will mark an actual transformation is a shift in frequencies from mere chatter to actual cases. Until we see cyber recruiting and related attacks taking place with a robust frequency to match their hype, the specter of the Internet as the driving force for radicalization will remain more chimera than danger.

-- Nick Catrantzos

* Abraham Wagner, JD, Ph D., is engaged in the private practice of law and is Adjunct Professor in the School of International and Public Affairs at Columbia University, and was Visiting Professor of International Relations at the University of Southern California. He is also engaged as a consultant on national security and intelligence matters to the Departments of Defense and Homeland Security, serving on the Defense Science Board and other advisory panels. Following 9/11 he was the Chairman of a special task force in the Department of Defense looking at technology responses to evolving terrorist threats.