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
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Nick Catrantzos + Tom Goff
- All Secure
- NICK CATRANTZOS is the lead author of the All Secure website and is the emeritus security director for a large public organization. He has also managed security aspects of corporate takeovers, response to international hostage situations, and finding and keeping secrets. He has been board certified in security management, licensed as a private investigator, and certified as an incident commander. He worked as a case officer for a discreet branch of public service. He protected stealth technology at Lockheed and, later, as a consulting security director for both Kroll and Control Risks, he assisted executives with workplace violence cases and with protecting VIPs and critical assets globally in volatile areas. Nick's partner, TOM GOFF, was a captain in the Military Police Corps, U.S. Army Reserve and has a law degree from the University of California at Davis. He is a former reporter for Fortune Magazine, was senior editor at New York Magazine and Esquire, and has provided crisis and communications counsel to senior executives at Fortune 500 companies, including Lockheed, ARCO, Microsoft, Nissan, and Sony Pictures.