U.S. Careful of Legalities on Prisoners

As more and more prisoners are taken into U.S. custody in Afghanistan, American authorities are encountering difficulties gathering the bounty of crucial intelligence information they believe the captured fighters possess.

Authorities acknowledge that they are struggling to figure out how much pressure they can place on Al Qaeda and Taliban prisoners without violating their limited legal protections. And they are trying to sort out how to best handle a tricky job of interrogation that is complicated by the fighters’ stubbornness and the fact that a number of U.S. government agencies are competing for access to them.

“We need to figure out who will do what and in what order, and still stay within [U.S.] law,” said FBI agent Tom Knowles, who leads a team of eight agents who arrived this week at the U.S. military detention center at the airport in the former Taliban stronghold of Kandahar in southern Afghanistan. “That’s what makes it very difficult.”

Knowles said agents who will conduct the interviews have been briefed on the subtleties of Islamic culture in an effort to help them get better information.

“You have to sit down and relate to people, and if you don’t know their culture and you sit down and expect them to open up, you’ll fail,” he said.

U.S. officials have been predicting that the captured fighters would yield a trove of secrets on such diverse topics as the worldwide terrorist network, the locations of land mines and booby traps, the state of Al Qaeda’s chemical and biological weapons arsenal and the whereabouts of their leaders, starting with Osama bin Laden.

But as the number of captives has grown this week, U.S. officials have increasingly acknowledged their frustration with the resistance they have met. They noted that enemy leaders have tried to pass themselves off as ordinary soldiers and that others have artfully changed stories when they have been challenged on the details.

“These guys are very skilled liars,” Deputy Defense Secretary Paul D. Wolfowitz said Tuesday. “They lie shamelessly; when you catch them in a lie, they go on to another lie.”

Officials Likely to Use ‘Intimidation Factor’

Battlefield interrogation is tricky in the best of times, experts say, because of the need to exert maximum psychological pressure, at the same time ensuring that the prisoner doesn’t become so confused or frightened that he begins to give erroneous information.

U.S. officials have indicated that although they won’t abuse prisoners, they want to use as much psychological pressure on the captives as they can. One military official acknowledged that questioners will feel free to use “the intimidation factor.”

Interrogators have already suggested, for example, that prisoners who don’t cooperate will probably be turned over to Afghan opposition fighters, who would treat them far more harshly, one official said.

“You’re going to bring to bear whatever psychological leverage you have that is appropriate,” said Louis Caldera, former secretary of the Army. That includes “the tremendous stress they feel and the ambiguity of their situation.”

Yet officials also acknowledged that they may lose that leverage as more and more officials question the suspects.

David Sheldon, a former Navy lawyer, said the first questioner would have the best opportunity because the prisoner would feel the most pressure and perhaps have the clearest memory. But after multiple questionings, the captives may begin to see through the techniques, or they may just be confused, he said. “They’re no longer that blank slate.”

FBI agent Knowles and other U.S. officials acknowledge that they are charting new territory in deciding how to treat the prisoners in Afghanistan.

Because the United States considers Al Qaeda responsible for the Sept. 11 attacks, its members--and the Taliban leaders who sheltered them--are being viewed as criminal defendants rather than prisoners of war.

A large group of Pentagon lawyers is drafting rules for the military tribunals that President Bush has ordered. Those rules will help U.S. military leaders decide how to treat various categories of prisoners.

Although the U.S. military hasn’t made an official judgment on the legal status of any prisoners, experts predict that many will be treated as “battlefield detainees” and few as prisoners of war.

As detainees, they are allowed very limited rights under the Geneva Conventions. They are supposed to be fed, protected from abuse and permitted to practice their religion. But they aren’t allowed legal representation during interrogation, for example, Sheldon said. And they can be charged with war crimes.

Under the conventions, captives can be considered prisoners of war if they are part of an organized unit with a chain of command, wear an emblem identifying them as such and follow the conventions’ rules against brutality.

Prisoners of war are not provided lawyers during battlefield interrogations, either, but they are entitled to representation during courts-martial, Sheldon said. They cannot be tortured, starved or forced to answer questions. When hostilities have ended, they are to be repatriated to their home countries.

Perry reported from Kandahar and Richter from Washington. Times staff writer David Savage in Washington contributed to this report.