Chapter 7

Detention and Interrogation Operations

I.  FRAMEWORK

A.   Throughout the 20th century, U.S. forces have engaged adversaries in numerous conflicts across the spectrum of conflict.  From the Banana Wars to World War II and Operation Iraqi Freedom U.S. forces have captured personnel and treated them as criminals, insurgents, and prisoners of war (POWs).  U.S. forces continue to detain individuals during conflicts.

B.    The United States has been at the forefront of legally defining and treating its enemies since the inception of the Lieber Code in 1863.^[1]  The Hague Conventions of 1907 provided the first international attempt to codify treatment of captured individuals.^[2]  The first substantive treatment of captured personnel, however, was codified in the 1929 Geneva Conventions Relative to Prisoners of War.^[3]  Following World War II, the international community came together to improve the 1929 POW Conventions to address significant shortcomings that arose during World War II.  The 1949 Geneva Conventions became the preeminent international standard for treatment of POWs.^[4]

1.    The full body of customary international law, as well as the Geneva Conventions of 1949, is triggered when an international armed conflict arises between two high contracting parties to the convention.^[5]  Referred to as Common Article 2 conflicts, international armed conflict occurs during declared war or de facto conflicts between two contracting states.  The easiest example to describe a recent international armed conflict is Operation Iraqi Freedom in which the United States and its coalition partners fought against the country of Iraq.

2.    Partial or total occupation of the territory of a high contracting party also triggers the full body of customary international law as well as the Geneva Conventions of 1949.^[6]

C.    The United States has also participated in various non-international armed conflicts.^[7]  Common Article 3 of the Geneva Conventions defines this type of conflict as an “[a]rmed conflict not of an international character occurring in the territory of one of the High Contracting Parties . . . .”^[8]  These types of conflicts make up the vast bulk of ongoing conflicts.  Whereas the existence of an international armed conflict triggers the entire body of the law of armed conflict, the existence of a non-international armed conflict only triggers application of Common Article 3’s “mini convention” protections.

1.    Non-international armed conflicts are traditionally known as civil wars.  They do not involve two belligerent states fighting each other.  Rather, they involve one nation fighting indigenous forces, and may involve another state assisting the current government’s attempt to retain its sovereignty.  The scope of these conflicts has expanded to include conflicts not contained within the boundaries of a single state.^[9]  Non-international armed conflicts are deemed to be those armed conflicts between a state and an organized armed group that is not a recognized state (i.e., any armed conflict that is not between nations). ^[10]

2.    Non-international armed conflicts have significantly less international protections for its combatants than are provided by international law to combatants in international armed conflicts; the primary protections afforded to those involved in internal armed conflict derive from domestic law.  Common Article 3 of the Geneva Conventions affords a minimal amount of protections for belligerents involved in internal armed conflicts.^[11]  These protections are generally accepted as so basic to fundamental human rights that their universality is rarely questioned.  The United States’ ongoing operations against Al Qaida and ISIS are examples of American forces in non-international armed conflicts.

D.   Within the historical framework of the Global War on Terrorism are examples of both international and internal armed conflicts.

1.    The United States characterized military operations conducted against the Taliban in Afghanistan during Operation Enduring Freedom (OEF) as international armed conflict, even though there was some question as to whether the Taliban constituted a government of that nation or was more appropriately characterized as one of a number of warring factions in a failed state.  The United States also characterized military operations against the armed forces of Iraq in Operation Iraqi Freedom (OIF) as an international armed conflict.

2.    The nature of the conflicts in both Afghanistan and Iraq evolved over time.  In both cases, the continued U.S. / Coalition presence was based on our status as an invitee to the country as reflected in the either respective United Nations Security Council Resolutions (UNSCR) or the Security Agreement with Iraq.

3.    Other coalition partners, nations, international organizations, and commentators have asserted that while U.S. forces were engaged in international armed conflict initially in Afghanistan and Iraq, U.S. forces became engaged in internal armed conflicts in support of the nascent Afghan and Iraqi governments as they endeavored to defeat opposition groups.    For U.S. legal advisors, this required analysis of applicable policy related to the conduct of military operations ―specifically DOD policy related to compliance with the law of war is established in DOD Directive 2311.01.^[12] The clear policy mandate of that directive is that the armed forces of the United States will comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations.^[13]   The Army doctrine for specific treatment of detainees and the internment or resettlement of civilians is contained in JP 3-31,^[14]FM 3-63, and AR 190-8, all of which are drafted with Geneva Conventions III and IV as the standard.  These standards of treatment are the default standards for detainee operations, unless directed otherwise by competent authority (usually the Combatant Commander or higher).

4.    The main take-away for legal advisors involved in detainee operations is that there will likely be some uncertainty related to the nature of armed conflicts.   Even when the nature of the conflict seems relatively apparent, each conflict will likely include new policy changes.  With respect to detainee issues, it is essential to emphasize the basic mandate to treat all detainees humanely; to treat captured personnel consistently with the GPW until a more precise determination is made regarding status; and to raise specific issues on a case-by-case and provide effective guidance to the operational decision-makers.

II.  LEGALLY Protected PERSONS

A.   Under international law, JAs must analyze both the type of conflict and the type of person to determine the protections afforded to an individual by law.  Since this is an evolving area of law and policy, JAs must be familiar with the doctrinal terminology.  Military doctrine is grounded in the United States international treaties and judge advocates must be familiar with the terms found in the Geneva Conventions.

1.    The following definitions are found in DoDD 2310.01E, DoD Detainee Program, and Joint Publication 3-31, Joint Land Operations. ^[15]

a.    Detainee.  Any individual captured by, or transferred to the custody or control of, DoD personnel pursuant to the law of war. This does not include persons being held solely for law enforcement purposes, except where the United States is the occupying power. Detainees who are U.S. citizens or U.S. resident aliens will continue to enjoy all applicable rights and privileges under U.S. law and DoD regulations.  As a matter of policy, all detainees will be treated as Enemy Prisoner of War (EPWs) until the appropriate legal status is determined and granted by competent authority IAW the criteria enumerated in the GPW. Detaining officials must recognize that detained belligerents who have not satisfied the applicable criteria in the GPW are still entitled to humane treatment, IAW Common Article 3 of the GPW during non-international armed conflicts, and the principles set forth in Article 75 of Additional Protocol I to the Geneva Conventions during international armed conflicts. The inhumane treatment of detainees is prohibited and is not justified by the stress of combat or deep provocation.^[16]

b.    Belligerent.^[17]  In general, a person who is engaged in hostilities against the US or its multinational partners during an armed conflict. The term belligerent includes both privileged belligerent and unprivileged enemy belligerent.

(1)  Privileged Belligerent.^[18]  Privileged belligerents are EPWs upon capture, and are entitled to combatant immunity for their lawful pre-capture war-like acts. They may be prosecuted for violations of the law of war. If so prosecuted, they still retain their status as EPWs.

(2)  Unprivileged Enemy Belligerent.^[19]  Unprivileged enemy belligerents are belligerents who do not qualify for the distinct privileges of combatant status (e.g., combatant immunity). Examples of unprivileged belligerents are:

(a)   Individuals who have forfeited the protections of civilian status by joining or substantially supporting an enemy non-state armed group in the conduct of hostilities, and

(b)  Combatants who have forfeited the privileges of combatant status by engaging in spying, sabotage, or other similar acts behind enemy lines.

c.    Prisoner of War.^[20]  An individual who is described by Articles 4 and 5 of GPW and who is in the custody or control of DoD.

d.    Retained Person.^[21]  An individual who is described by Article 28 of GWS^[22] and Article 33 GPW and who is in the custody or control of DoD.

.      Civilian Internee.^[23]  Any civilian, including any person described by Article 4 of GC, who is in the custody or control of DoD during an armed conflict or case of occupation, such as those held for imperative reasons of security or protection.^[24]

2.    The following are defined persons found in Geneva Conventions III (GPW) and IV (GC).

a.    Prisoner of War (POW).  A detained person as defined in Article 4 of GPW.  Traditionally these are members of the armed forces of a party or militias forming a part of an armed force who comply with criteria set out in Article 4(a)(2) of GPW.  The term Enemy Prisoner of War (EPW) is also used by U.S. forces.^[25]  There is no legal difference between POWs and EPWs.  As a matter of practice, EPW refers to POWs that Americans capture in international armed conflict.  POW is the term for US service members captured by our enemy.  POW is also the international name of choice for armed forces captured on the battlefield.

b.    Protected Person.  A person protected under GC is any person who at a given moment and in any manner whatsoever finds himself or herself in case of conflict or occupation, in the hands of a Party to the conflict or Occupying Power, of which he or she is not a national.^[26]  Furthermore, if an individual falls into one of the following four categories, they are excluded from the protections given to a “protected person” under the GC:  a) nationals of a State not bound by the GC; b) nationals of a neutral State with normal diplomatic relations with the Detaining Power; c) nationals of a co-belligerent State with normal diplomatic relations with the Detaining Power; or d) individuals covered by another Geneva Convention.^[27]

c.    Detainee.  This term is not specifically defined in the Geneva Conventions.^[28]  However, this term is used in some articles discussing the due process rights of civilians being held by an Occupying Power.

d.    Civilian Internee.  A civilian internee is a civilian who is interned during international armed conflict or occupation for imperative reasons of security or for committing an offense against the detaining power.^[29]

3.    Other terms for Detainees.   The following names have been used to describe persons detained by U.S. forces since 2001.  Some of the terms have no legal background while others are used to describe persons who did not appear to fit neatly into the recognized framework of the Geneva Conventions.  Since the adoption of various definitions in DoD Directive 2310.01E, JAs should work to categorizing detainees in accordance with the DoD Detainee Program or Geneva Conventions at the lowest possible level.

a.    Unlawful Enemy Combatant

b.    Person of Interest / Person Under US Control (PUC)

c.    Terrorist

d.    Security Detainee

B.    Status v. Treatment.   The key for JAs is to ensure that service members treat all detainees humanely.^[30]  Judge Advocates can look to Common Article 3 as a minimum yardstick for humane treatment.^[31]  Although individuals defined as a person protected in the Geneva Conventions during international armed conflict may be entitled to greater protections as a matter of law, all individuals initially are entitled to humane treatment.

C.    Detainee Treatment Act.   On December 30, 2005, President Bush signed the Department of Defense Appropriations Act of 2006 that included the “Detainee Treatment Act of 2005.”^[32]

1.    Section 1002 directly relates to the treatment of detainees under DoD custody or effective control.  No detainee in custody shall be subject to any treatment not authorized by the Army Field Manual on Intelligence Interrogation.  The FM was re-released as FM 2-22.3, Human Intelligence Collector Operations, on September 6, 2006.  By Executive Order, President Obama extended the coverage of section 1002 to ALL agencies in the US Government.  After January 22, 2009, “any individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2-22.3 (Manual).”^[33]  The requirements of President Obama’s executive order were subsequently codified in section 1045 of the NDAA for FY 2016.

2.    Section 1003 states that no individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhumane, or degrading treatment or punishment.^[34]  Note this section goes beyond DoD to the entire USG.  This should be of special emphasis to JAs when dealing with agencies and personnel outside of DoD.

D.   The Detainee Treatment Act, along with numerous DoD publications recently published or revised, are the guidance for commanders and JAs as U.S. forces continue to participate in conflicts across the globe.

III.  PRACTICAL CONSIDERATION OF DETAINEE OPERATIONS

A.   In any operation, there should be a system in place “for the capture, evidence collection, processing, questioning, tracking, internment, prosecution, and subsequent release of captured individuals”.^[35]  While some of the specific details and procedures will be classified, the basic requirements for compiling a detainee packet are likely to remain the same.

B.    The JA must be familiar with the specific authority authorizing detention of the individual.  Detention authority may come from the Geneva Conventions, a United Nations Security Council Resolution, or the host nation domestic criminal law.  The specific authority to detain individuals will likely impact some of the due process owed to an individual detainee.  However, at a minimum, all detainees should receive humane treatment.

C.    To ensure that an individual is properly detained, the unit must complete the correct administrative paperwork, provide evidence linking the detainee to the reason for detention (e.g., attack on US Forces), and provide evidence linking the detainee to the witnesses.  Evidence linking the detainee to the basis for detention includes photographs, sworn statements, diagrams, and physical evidence.^[36]  However, the legal basis for which you are detaining the individual will play a significant role in what type of evidence is collected and how much risk and time will be allocated to the evidence collection effort.  For example, if the detainee is a prisoner of war captured with the rest of his or her unit, the on-scene commander will likely be more concerned with properly completing the capture tag than with collecting evidence for use in a criminal trial.  Conversely, if the theater of operations has evolved to evidence based targeting operations, the collection of evidence at the point of capture may be the decisive point of the operation.

1.    Photographs.  Units should use photographs to connect the individual detained to the basis for detention.  These photographs can be and frequently are presented to host nation judges or magistrates who review files to determine if continued detention is appropriate.  Individuals from the unit should take photographs of all potentially relevant evidence, such as weapons, ammunition, money, detonators, etc.^[37]  Taking photographs helps maintain the integrity of the evidence.  “In documenting your evidence at the site, you have not only shown the evidence exists, but what it looked like when you found it and where it was when you found it.”^[38]  Therefore, take photographs before the evidence is moved.^[39]  Attempt to capture photographs covering 360 degrees around the site.^[40]  Furthermore, the photographs should include any notable landmarks or reference points which may be helpful to put the scene into context for the judge or other reviewer.^[41]  A series of photographs of the site, building, or area will help establish the view so that the judge can formulate an idea of what the site looked like to Soldiers on the day of the operation.^[42]  It is important to mark the photographs with a date time stamp.

2.    Statements.  At least two, preferably three, Soldiers who were at the scene must write a detailed account of why the individual is being detained.^[43]  Each sworn statement should cover the “who, what, when, where, why, and how” of the detention.^[44]  These statements provide much of the information used to conduct the initial magistrate’s review and should support the potentially higher legal standard applied during the potential future criminal prosecution.  Operational concerns make it is unlikely that the unit will make an additional trip to the point of detention to collect additional information.  It is important to collect as much information in the initial sworn statements as possible to fully describe the circumstances of detention.  Remember, it is the content of the statement that is key.  Therefore, even if the Soldiers do not have a DA Form 2823 (Sworn Statement) available at the point of capture, they should record the information on any piece of paper and transfer the information to a DA Form 2823 as soon as the security situation permits.  A common mistake is that a Soldier without firsthand knowledge relates a statement about what they heard happened leading to the detention.  Often, the statement is written down by a detainee escort who had no involvement in the actual detention of the individual.  These statements are unreliable and lack credibility when presented to host nation judges or magistrates.

a.    Who:  Clearly identify the detainee by name and capture tag number.  If multiple individuals are detained in the same operation, list all individuals who are detained together.  It is important to link potential co-defendants together in both the sworn statement and on the apprehension form.^[45]  Furthermore, the statement should also identify other members of the unit who were present for the operation by full name and rank.^[46]

b.    What:  Explain what happened and the events leading up to the detainee’s capture.^[47]  This description should include what the overall mission of the unit was that day, such as, patrol, convoy, or raid.  Furthermore, this explanation should include what the unit found in terms of contraband, if anything.

c.    When:  Record the date and time of the incident.^[48]  Include the time and location of all significant events that occurred during the mission.  For example, if the unit took small arms fire before detaining the individual, include the time and location for both the small arms fire and the detention.

d.    Where:  The statement should include both a grid location and physical description of where the individual was detained.  While other members of the military can relate to the grid location, local judges are better able to relate to a physical description that refers to local landmarks.  Therefore, the where section of the statement should identify the nearest town, street name (local not the Main Supply Route (MSR) name given by US forces), mosque, or other notable landmark.^[49]

e.    Why:  Explain what the events and / or unclassified information that led the unit to the search or to the detention.  Furthermore, annotate whether or not the detainee made a confession or admission at the point of capture.^[50]

f.     How:  Explain how the unit accomplished the mission and how the items or detainees were found.

g.    Classification:  Attempt to ensure that the content of each statement is unclassified.  While the detainee packet itself may contain information from classified target folders, intelligence debriefings, or other classified information, the statements should contain only information that is releasable to the host nation.

3.    Diagrams.  Diagrams or sketches are essential to put the operation into context for the judge.  The diagram relates the location of the physical evidence seized by US forces to the location of the detainee in the house, on the street, or in the field.  The diagram, or sketch, “is the quickest and easiest way to document and exhibit the layout of a site.”^[51]  Ideally, Soldiers should complete the diagram “before the evidence is collected and it should be used to reaffirm the location of evidence, and the location of your site.”^[52]  The diagram should also correspond to the photographs taken at the site.^[53]  The diagram can help relate the location of landmarks or other significant points of interest to where the evidence was found.  Make sure that the diagram has a key or legend, as required.  Ensure that distances are properly marked.  Estimates of sizes and distances are acceptable if taking exact measurements is not feasible.

D.   The contents of the detainee packet supplement the physical evidence taken from the objective.  The unit may and should seize items that connect the detainee to the basis for detention. ^[54]  Examples of evidence seized by U.S. forces could include the following:  weapons, scopes, ammunition, cell phones, pagers, documents, computers,, thumb drives, fake identification documents, passports, bomb making material (such as wiring, circuit boards, blasting caps, plastic explosives, artillery rounds, copper, batteries, car alarms, garage door openers, and timers.^[55]

1.    Evidence Handling:  Attempt to maintain evidence consistent with chain of custody requirements for evidence presented in U.S. courts.  While the evidence may not be presented before a judge, the chain of custody is still important from an operational, intelligence, and legal perspective.

2.    It is important to document all property seizures with either a DD Form 2745 (Enemy Prisoner of War [EPW] Capture Tag) or DA Form 4137 (Evidence Property/Custody Document).^[56]  Make sure that the documentation clearly ties the item to one individual if multiple individuals are detained during the same operation.  If neither the DD Form 2745 nor the DA Form 4137 is available on the objective, capture the content of the information to be transferred to the proper form later in a more secure location.

3.    Note that only a Commander can order the seizure of funds.  If the unit seizes any money, account for each piece of currency by amount.  Furthermore, United States currency must be accounted for by serial number.  Thus, a key element of unit level planning is also obtaining a safe to ensure the evidence custodian has a means to secure cash and other high value items.  Such funds may be turned over to finance, but all evidence custodians should be trained and maintain records of such transactions just as would a Class A agent or armorer.

E.    Some common forms required in previous operations include:

1.    Capture Tag or Theater Specific Apprehension Form

2.    DA Form 2823 (Sworn Statement) (times two)

3.    DA Form 4137 (Evidence Property / Custody Document)

4.    DD Form 2708 Receipt for Inmate or Detained Person

5.    Theater Specific Evidence Accountability and Tracking Forms

F.    Some common errors in detainee evidence packet development include:^[57]

1.    Statements with insufficient detail;

2.    Explosive Residue test results as the sole basis for detention;

3.    Detaining groups without investigating the culpability of each member of the group (resulting in insufficient evidentiary packets);

4.    Enemy propaganda as the sole basis for detention;

5.    Statement written by Soldier without actual knowledge of content of the statement (relaying hearsay);

6.    Identical statements provided by multiple witnesses;

7.    Detainee engaged in suspicious activity (i.e., lying to or fleeing from Coalition Forces) as the sole basis for continued confinement;

8.    Only evidence supporting detention is guilt by association (i.e., phone activity with known bad guys);

9.    Lack of photos or diagrams; and,

10.  Failure to corroborate times with events.

G.   The Role of the Judge Advocate may include the following:

1.    Participating in targeting meetings and assisting in target folder development.  In some cases, the unclassified evidence in the target folder will form the basis for a host nation arrest or search warrant.  The JA may be called upon to serve as the liaison with the host nation judge to obtain warrants for unit targets.

2.    Reviewing the initial packet for completeness and conducting a magistrate’s review.

3.    Ensuring accuracy of the forms submitted in the packet and assisting the unit in identifying relevant evidence or information that could support continued detention.

4.    Be the counselor who is willing to advise the Commander when the evidence does not support continued detention.

5.    Be prepared to answer requests for assistance from higher headquarters prosecuting the detainee in the host nation legal system.

6.    Provide an advocacy memorandum for select detainees being processed for early release.

7.    Participate in regular inspections of detention facilities.

8.    Help prepare unit witnesses to testify before a host nation court.

H.   Point of Capture (POC) Processing.  The Appendix that accompanies this Chapter lists steps for processing detainees using the “5 S’s and T” standard.  The new FM 3-63, Detainee Operations (2 Jan. 2020) contains a wealth of information on conducting tactical detention operations, including from the initial POC; however, because of the “Distribution Restriction” of the manual, public distribution of information in the manual, while unclassified, is restricted.^[58]

IV. INTERROGATION OPERATIONS

A.   Army Field Manual (FM) 2-22.3 provides doctrinal guidance, techniques, and procedures for interrogators^[59] to support a commander’s intelligence needs.  Field Manual 2-22.3 was effectively incorporated into federal law through the Detainee Treatment Act of 2005 (DTA 2005).  Operational JAs working with units involved in HUMINT collection, particularly interrogations, must be familiar with DTA 2005; Chapters 5 and 8, and Appendices K and M, of FM 2-22.3; Department of Defense Directive (DoDD) 3115.09, Department of Defense Intelligence Interrogations, Detainee Debriefings, and Tactical Questioning, dated 11 October 2012, with Change 2 27 April 2018; and DoDD 2310.01E, DoD Detainee Program, dated 19 August 2014, with Change 1 24 May 2017, which requires that all detainees be treated humanely.  All persons subject to the directive shall apply “the standards articulated in Common Article 3 to the Geneva Conventions of 1949.”

1.    Interrogation.  Defined by FM 2-22.3 as “the systematic effort to procure information to answer specific collection requirements by direct and indirect questioning techniques of a person who is in the custody of the forces conducting the questioning.”  The only personnel who may conduct interrogations are trained and certified interrogators.  There are specific courses that train and certify interrogators.  These courses are run exclusively by USAIC or the Navy-Marine Corps Intelligence Training Center, and are approved by DIA.

2.    Tactical Questioning.  According to FM 2-22.3, tactical questioning (often times referred to as “TQ”) is “the expedient initial questioning for information of immediate tactical value.”  DoDD 3115.09 defines TQ as “direct questioning by any DoD personnel of a captured or detained person to obtain time-sensitive tactical intelligence, at or near the point of capture or detention.”  This is the only type of questioning that a non-trained, non-certified person may conduct with a detainee (note that DoDD 3115.09 requires “DoD personnel who conduct, support, or participate in tactical questioning shall be trained, at a minimum in the law of war and humane treatment standards”).

3.    Detainee Treatment Act of 2005 (DTA of 2005) (part of the 2006 Department of Defense Appropriations Act, Pub. Law No. 109-163 and PL 109-148).

a.    § 1002(a):  No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.

b.    § 1003(a):  No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

c.    § 1005:  Includes provisions for status review of detainees outside the U.S.

d.    Based on enactment of the DTA of 2005, only those approach techniques contained in Chapter 8 and Appendix M of FM 2-22.3 are legal.  Unlike most doctrine, this is not merely a recommendation for how to conduct operations; rather, FM 2-22.3 literally defines the legal limits of interrogation operations.

e.    The DTA of 2005 applies to all DoD personnel, both military and civilian, at all times, in all locations, and to all others conducting interrogation operations in DoD facilities.

4.    Field Manual 2-22.3 offers two tests that an interrogator should consider before submitting an interrogation plan for approval:

a.    If the proposed approach technique were used by the enemy against one of your fellow Soldiers, would you believe the Soldier had been abused?

b.    Could your conduct in carrying out the proposed technique violate a law or regulation?  Keep in mind that even if you personally would not consider your actions to constitute abuse, the law may be more restrictive.

c.    If you answer yes to either of these tests, the contemplated action should not be conducted.

B.    Training provides interrogators with the basic standards for interrogations in detainee operations.  This is the “THINK” model:

1.    Treat all detainees with the same standard. (This is a baseline standard, some detainees such as POWs will receive additional rights.)

a.    DoDD 2311.01, DoD Law of War Program, 2 July 2020: DoD personnel will “comply with the Law of War during all armed conflicts, however such conflicts are characterized, and in all other military operations.”

b.    DoDD 2310.01E, DoD Detainee Program, 19 August 2014 (incorporating Change 1 of 24 May 2017: “All detainees shall be treated humanely, and in accordance with U.S. Law, the Law of War, and applicable U.S. policy.”

c.    From an interrogator’s perspective, status may matter in the following situations:

(1)  Use of the separation approach technique:  not authorized for use against individuals protected by GC III (POWs)^[60]; and

2.    Humane treatment is the standard.   DoDD 2310.01E provides the minimum standards of humane treatment for all detainees and applies to detainees from the point of capture on.  This policy requires that:

a.    Adequate food, drinking water, shelter, clothing, and medical treatment be given;

b.    Free exercise of religion, consistent with the requirements for detention, be allowed;

c.    All detainees be respected as human beings.  They will be protected against threats or acts of violence including rape, forced prostitution, assault, theft, public curiosity, bodily injury, and reprisals.  They will not be subjected to medical or scientific experiments.  They will not be subjected to sensory deprivation.  This list is not exclusive.

3.    Interrogators interrogate.

a.    Pursuant to DoDD 3115.09:

(1)  Only trained and certified interrogators may interrogate;

(2)  Non-interrogators and non-trained/non-certified interrogators may only ask direct questions, may not use any other approach/technique, and may not “set the conditions” for an interrogation.

b.    Non-interrogators and non-trained/certified interrogators may provide passively obtained information to trained and certified interrogators for use during interrogations.  For example, an MP may tell the interrogator about leaders in the facility, habits of a detainee, groups that have formed in the facility, and other information that the MP has observed during the normal performance of his or her duties.

4.    Need to report abuses.

a.    Pursuant to DoDD 3115.09, all DoD personnel (including contractors) must report any “suspected or alleged violation of DoD policy, procedures, or applicable law relating to intelligence interrogations, detainee debriefings or tactical questioning, for which there is credible information.”

b.    FM 2-22.3 requires “all persons who have knowledge of suspected or alleged violations of the Geneva Conventions . . . to report such matters.”

c.    Reports should be made to the chain of command unless the chain of command is involved, in which case the report should be made to one of the following:  SJA, IG, Chaplain, or Provost Marshal.

d.    Failure to report may be a UCMJ violation (either Article 92, dereliction of duty, or Article 134, misprision of a serious offense).

e.    Individuals must report violations by anyone, including, but not limited to: another interrogator, interpreter, host nation personnel, coalition personnel, or representatives of other government agencies (OGAs).

5.    Know the approved techniques.  Only those techniques listed in Chapter 8 (and appendix M) of FM 2-22.3 are approved, and therefore lawful, techniques pursuant to the Detainee Treatment Act of 2005.

a.    Approved Techniques.

 (1) Direct Approach.  Interrogator asks direct questions, which are basic questions generally beginning with an interrogative (who, what, where, when, how, or why) and requiring a narrative answer.  These questions are brief, concise, and simply worded to avoid confusion.

(2)  Incentive Approach.  Interrogator trades something that the detainee wants in exchange for information.  Incentives do not include anything to which a detainee is already entitled by law or policy.

(3)  Emotional Love Approach.  In this approach, the interrogator focuses on the anxiety felt by the detainee about the circumstances, isolation from loved ones, and feelings of helplessness.  The interrogator directs that love towards the appropriate object, focusing the detainee on what the detainee can do to help, such as being able to see family sooner, help comrades, help a particular ethnic group, or help the country.

(4)  Emotional Hate Approach.  The emotional hate approach focuses on any genuine hate, or possibly a desire for revenge, the detainee may feel.

(5)  Emotional Fear-Up Approach.  In the fear-up approach, the interrogator identifies a preexisting fear or creates a fear within the detainee, then links the elimination or reduction of the fear to cooperation on the part of the detainee.

(6)  Emotional Fear-Down Approach.  In the fear-down approach, the interrogator mitigates existing fear in exchange for cooperation on the part of the detainee.

(7)  Emotional-Pride and Ego-Up Approach.  This approach exploits a detainee’s low self-esteem.  The detainee is flattered into providing certain information to gain credit and build his or her ego.

(8)  Emotional-Pride and Ego-Down Approach.  The emotional pride and ego-down approach is based on attacking the detainee’s ego or self-image.  The detainee, in defending his or her ego, reveals information to justify or rationalize his or her actions.

(9)  Emotional-Futility.  In the emotional-futility approach, the interrogator convinces the detainee that resistance to questioning is futile.  This engenders a feeling of hopelessness and helplessness on the part of the detainee.

(10) We Know All.  With this technique, the interrogator subtly convinces the detainee that the questioning of the detainee is perfunctory because any information that the detainee has is already known.  When the detainee hesitates, refuses to answer, or provides an incorrect or incomplete reply, the interrogator provides the detailed answer himself.  When the detainee begins to give accurate and complete information, the interrogator interjects pertinent questions.

(11) File and Dossier.  In this approach, the interrogator prepares a dossier containing all available information concerning the detainee or the detainee’s organization.  The information is carefully arranged within a file to give the illusion that it contains more data than is actually there.  The interrogator proceeds as in the “we know all” approach, referring to the dossier from time to time for answers.  As the detainee becomes convinced that all the information that the detainee knows is contained within the dossier, the interrogator proceeds to topics on which the interrogator in fact has little or no information.

(12) Establish Your Identity.  Using this technique, the interrogator insists the detainee has been correctly identified as an infamous individual wanted by higher authorities on serious charges, and that the detainee is not the person he or she purports to be.  In an effort to clear himself or herself of this allegation, the detainee makes a genuine and detailed effort to establish or substantiate his or her true identity.

(13) Repetition.  The repetition approach is used to induce cooperation from a hostile detainee.  In one variation of this approach, the interrogator listens carefully to a detainee’s answer to a question, and then repeats the question and answer several times.  The interrogator does this with each succeeding question until the detainee becomes so thoroughly bored with the procedure that the detainee answers questions fully and candidly to satisfy the interrogator and gain relief from the monotony of this method.

(14) Rapid Fire Approach.  In this approach, the interrogator asks a series of questions in such a manner that the detainee does not have time to answer a question completely before the next one is asked.  This confuses the detainee, who will tend to contradict because of the lack of time to formulate answers.  The interrogator then confronts the detainee with the inconsistencies, causing further contradictions.  More than one interrogator may be used for this approach.

(15) Silent.  The silent technique may be successful when used against either a nervous or confident detainee.  When employing this technique, the interrogator says nothing to the detainee, but looks the detainee squarely in the eye, preferably with a slight smile on his or her face.  It is important for the interrogator to not look away from the detainee but, rather, force the detainee to break eye contact first.

(16) Change of Scenery.  Using this technique, the interrogator removes the detainee from an intimidating atmosphere such as an “interrogation” room type of setting and places the detainee in a setting where he or she feels more comfortable speaking.  Change of scenery is not environmental manipulation.

(17) Mutt and Jeff.  This technique is also known as “Good Cop, Bad Cop.”  The goal of this technique is to make the detainee identify with one of the interrogators and thereby establish rapport and cooperation with that individual.  Use of this technique requires two experienced interrogators who are convincing actors.  The two interrogators will display opposing personalities and attitudes toward the detainee.  NOTE:

(a)   This technique must be approved by first O-6 in chain of command.

(b)  No violence, threats, or impermissible or unlawful physical contact are allowed.

(c)   No threatening the removal of protections afforded by law is allowed.

(d)  This technique requires regular monitoring.

(18) False Flag.  The goal of this technique is to convince the detainee that individuals from a country other than the United States are conducting the interrogation, thus tricking the detainee into cooperating with U.S. forces.  NOTE:

(a)   This technique must be coordinated with the SJA and C/J/G/S-2X (primary staff advisor on Human Intelligence and Counterintelligence, subordinate to C/J/G/S-2).

(b)  This technique must be approved by first O-6 in chain of command.

(c)   Interrogator must identify the country to be used in the interrogation plan.

(d)  Interrogator may not imply or explicitly threaten that non-compliance will result in harsh interrogation by non-U.S. entities.

(e)   Interrogator cannot pose or portray oneself as a protected person (i.e., doctor, chaplain, etc.).

b.    Restricted Technique:  Separation. 

(1)  This is an approved technique, but the use is restricted by limitations outlined in Appendix M, FM 2-22.3.  The purpose of separation is to deny the detainee the opportunity to communicate with other detainees to keep the detainee from learning counter-resistance techniques or gathering new information to support a cover story and/or decrease the detainee’s resistance to interrogation. 

(2)  There is additional guidance for use of this technique.

(a)   Combatant Commander must approve (after SJA review) the use of the separation technique in the theater.

(b)  First General Officer/Flag Officer (GO/FO) in the chain of command must approve each specific use of separation.

(c)   Interrogation plan shall have an SJA review before submitting to the first GO/FO in the chain of command.

(d)  This technique may only be used on unlawful combatants (unprivileged enemy belligerents).  According to FM 2-22.3, an unlawful enemy combatant is a person not entitled to combatant immunity, who engages in acts against the U.S. or its coalition partners in violation of the laws and customs of war during an armed conflict.  For the purposes of the war on terrorism, the term “unlawful enemy combatant” is defined to include, but is not limited to, an individual who was part of, or supported, the Taliban, al Qaeda forces, or associated forces that are engaged in hostilities against the U.S. or its coalition partners.  Such an individual may also be referred to as an “unprivileged enemy belligerent.”

e)    Applied on a case-by-case approach when the detainee may possess important intelligence and other techniques are insufficient.

(f)   Only DoD interrogators trained and certified on separation may use this technique.

(g)  Sensory deprivation is prohibited, even for field expedient separation.^[61]

(h)  There is a thirty-day limit on use of this technique (12 hours if field-expedient use).  This time limit may only be extended with SJA review and GO/FO approval.

(i)   Separation must not be confused with quarantine, confinement, or segregation:

(i)   Separation is an interrogation technique, subject to the limitations described above.

(ii)  Quarantine is directed by medical personnel in response to a detainee with a contagious medical condition, such as tuberculosis or HIV.

(iii) Confinement is punishment, generally for offenses against camp rules, directed by the camp commander following some sort of due process proceeding.

(iv) Segregation is an administrative and security provision.  Segregation is part of the “5 Ss and T” (search, silence, safeguard, segregate, speed to the rear, and tag) technique that capturing units must use to aid in controlling, sorting, and securing detainees at the point of capture.  Military Police or guards also practice segregation in detention facilities when dealing with detainees who represent an increased security risk or who need additional oversight beyond that applied to detainees in the general population.  An interrogator cannot request segregation in order to “set the conditions” for an interrogation.

Appendix

DETAINEE OPERATIONS AT THE POINT OF CAPTURE (“Five S’s and T”)

Search	Search each detainee for weapons, items of intelligence value, and items that would make escape easier or compromise US security interests. Confiscate these items. Prepare a receipt when taking property DA Form 4137 (Evidence/Property Custody Document). Detainees may keep the following items found in a search:  Protective clothing and equipment that cannot be used as a weapon (such as helmets, protective masks and clothing) for use during evacuation from the combat zone.  Retained property, once cleared by military intelligence personnel or other authority, may consist of identification (ID) cards or tags, personal property having no intelligence value and no potential value to others (such as photos, mementos, etc.), clothing, mess equipment (except knives and forks), badges of rank and nationality, decorations, religious literature, and jewelry. (Personal items, such as diaries, letters, and family pictures may be taken by MI teams for review, but are later returned to the proper owner).  Note. Initially all property is taken into custody.  Confiscate currency only on the order of a commissioned officer (AR 190-8) and provide a receipt and establish a chain of custody using DA Form 4137 or any other field expedient substitute.
Silence	Detainees should not be allowed to talk except to answer your questions.  Talk among recently captured individuals tends to center around plans to overpower their captors or to escape.  By insisting on silence, you will cut down on their ability to plan an escape.  Operational considerations may also dictate that detainees remain silent.    Muffle may be employed if necessary in extreme circumstances (ensure detainee can breathe after application).
Segregate	Segregate detainees based on perceived status and positions of authority.  Segregate leaders from the remainder for the population.  Segregate hostile elements such as religious, political, or ethnic groups hostile to one another.  For their protection, segregate minor and female detainees from adult male detainees whenever possible.  Once interned in a secure facility GC III and GC IV rules (if applicable) may require re-uniting certain groups with their leadership/head of household.
Safeguard	Safeguard the detainees.  Ensure detainees are provided adequate food, potable water, clothing, shelter, and medical attention.  Ensure detainees are not exposed to unnecessary danger and are protected (afforded the same protective measures as the capturing force) while awaiting evacuation.  Do not use coercion to obtain information from detainees.  Provide medical care to wounded and/or sick detainees equal in quality to that provided to US forces.  Report acts or allegations of abuse through command channels, to the supporting judge advocate, and to service investigative agencies.
Speed to Safe Area / Rear	Evacuate detainees from the battlefield as quickly as possible, ideally to a Detainee Control Point (DCP) or detainee holding area where MPs take custody of the detainees.  Transfer custody of all captured documents and other property to the US forces assuming responsibility for the detainees.
Tag	Use DD Form 2745 (Enemy Prisoner of War [EPW] Capture Tag).  Include the following information:  (1) Date and time of the capture; (2) Location of the capture (grid coordinates); (3) Capturing unit; and (4) Circumstances of capture.  Indicate specifically why the person has been detained.  Use additional documentation when necessary and feasible to elaborate on the details of capture:  Documentation should answer five Ws – who, what, where, why, and witnesses.  Use a form, such as a DA Form 2823 (Sworn Statement) or an appropriate field expedient method, to document this information.  List all documents and items of significance found on the detainee.  Attach Part A, DD Form 2745, to the detainee’s clothing with wire, string, or another type of durable material.  Instruct the captive not to remove or alter the tag.  Maintain a written record of the date, time, location, and personal data related to the detention.  Attach a separate identification tag to confiscated property that clearly links the property with the detainee from whom it was seized.[62]

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