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Last week The Washington Post and The New York Times reported that the Justice Department and the Pentagon, fearful their prosecutions of six Guant�namo Bay detainees will be hindered by the earlier use of waterboarding and other extreme interrogation techniques, have rebuilt the cases against these men by subjecting them to a new round of less objectionable interrogations. The idea is that “clean teams” of FBI agents and military investigators have been extracting the same information from these suspected terrorists, but in a manner immune to objection in court. Some commentators argue that the taint from a tortured confession cannot be removed by a subsequent interrogation. That is a reasonable point, but we are in danger of missing a larger one: The “clean” interrogation techniques may produce information as unreliable as that obtained by the harsher, increasingly condemned physical coercion. We cannot know for sure, because the government has not disclosed the nature of the more benign techniques to which it is now resorting. Officials have said that interrogators serve the subjects Starbucks coffee and establish a rapport with them. But sweet beverages and sweet talk alone will not cause a terrorist to spill his guts and implicate himself in heinous crimes carrying severe punishment. Other techniques are employed, and the following sentence from The New York Times gives serious pause to anyone familiar with modern interrogation practice and the phenomenon of false confessions: “The investigators applied many of the same standards in Guant�namo that are commonly used in criminal cases in the United States.” That isn’t terribly reassuring. The interrogation techniques commonly used on criminal suspects in the United States, and the standards for evaluating these techniques and confessions in court, are a major problem, not the solution. INNOCENTS CONFESSING In large part due to DNA testing, we have learned that innocent people are convicted with shocking frequency. DNA testing has already exonerated more than 200 people convicted of crimes. Intriguingly, roughly one-fourth of them had confessed to the crimes, bolstering what a few social scientists had long insisted: A surprising number of innocent people confess. Spurred by the DNA exonerations, social scientists and legal scholars have done some digging to establish the prevalence of false confessions. A study published in the North Carolina Law Review in 2004 documented 125 proven false confessions. Experts are nearly unanimous that these cases represent only the tip of an iceberg. Thanks to a growing body of observational studies, laboratory experiments, and empirical analysis of actual cases, as well as the application of accepted principles of social psychology to this area, we have learned a great deal about the causes of false confessions. A leading cause is modern interrogation practice, specifically the Reid technique (named after an author of the leading manual, though competing manuals teach essentially the same method, which is widely used by law enforcement nationwide). At the heart of this method lie three tactics: isolation, confrontation, and minimization. “Isolation” means that the interrogation takes place in a small room, without the suspect’s friends, relatives, or counsel present. This unpleasant situation heightens the suspect’s anxiety and desire to escape. “Confrontation” involves interrogators expressing certainty of the suspect’s guilt and thwarting his denials. “Minimization” means introducing themes (such as accident, provocation, justification, or mitigating circumstances) that reduce the suspect’s culpability. The combination of confrontation and minimization is effective, for reasons psychologists have little trouble explaining. Confrontation brings on despair (by suggesting the futility of maintaining innocence); minimization supplies a lifeline (by implying lenient treatment if the suspect confesses). The problem is that these interrogation tactics work too well: They break down innocent as well as guilty suspects by conveying that confession is the only means of escape and will produce an acceptable outcome. The false confessions that result are not irrational. The suspect acts out of a conscious or unconscious cost-benefit analysis — albeit one often skewed by fear and fatigue. BEYOND TORTURE When people think of the old “third degree” (suspects tied to a chair, beaten with a rubber hose, with blinding strobe lights shining into their face), they can understand that an innocent person might confess to escape such nightmarish treatment. That’s one reason the public recoils from waterboarding and other overtly harsh measures. We recognize that people may tell their torturers anything — true or false — just to get them to stop. But the shift from the third degree to the psychological ploys that characterize modern interrogation replaced one dangerous practice with another. In a certain respect, the situation today is worse — the less overtly coercive methods are routinely accepted by the courts. The Supreme Court has explicitly refused to prohibit interrogators from lying about evidence to trick a suspect into confessing. In many jurisdictions, even the most egregious uses of the Reid technique do not render a confession inadmissible. And because of the widespread intuition that an innocent man would not confess (absent extreme physical coercion), juries faced with a confession, even one uncorroborated and riddled with errors, typically convict. BEING TRANSPARENT That is not to say there has been no progress in combating false confessions. A number of jurisdictions now require or strongly encourage the taping of interrogations. This measure discourages police excesses and, where such excesses do take place, allows judges and juries to see them. Such transparency is critical. When the Pentagon maintains that these new “clean teams” will use safe methods on detainees and gather only reliable information, we should ask them to show us (and the military commissions that hear these cases) these allegedly benign techniques. According to The New York Times, the new methods of interrogation are “non-confrontational.” As The Washington Post notes, FBI Director Robert Mueller III recently told the Senate that “we do not use coercive techniques of any sort in the course of our interrogations.” All this would be reassuring if it meant that federal interrogators steer clear of the Reid technique. But, more likely, “non-confrontational” and “non-coercive” are euphemisms for anything short of physical abuse. If that is the case, we should hardly rejoice. Government interrogators may now refrain from torturing detainees, but that hardly guarantees the reliability of the confessions they are trained to extract. The demise of brutal tools of interrogation like waterboarding would be most welcome. But we should not replace such methods with others that also predictably produce unreliable information. If the goal is only to sanitize the process so that judges will permit into evidence the unreliable information, the government has hardly come “clean.”
Alan Hirsch, a visiting professor of legal studies and constitutional law at Williams College, created and operates www.truthaboutfalseconfessions.com. He also serves as an expert consultant and witness on false confessions.

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