III. Legal and Policy Considerations

The legislation which founded KUBARK specifically denied it any law-enforcement or police powers. Yet detention in a controlled environment and perhaps for a lengthy period is frequently essential to a successful counterintelligence interrogation of a recalcitrant source. [approx. three lines deleted] This necessity, obviously, should be determined as early as possible.

The legality of detaining and questioning a person, and of the methods employed, [approx. 10 lines deleted]

Detention poses the most common of the legal problems. KUBARK has no independent legal authority to detain anyone against his will, [approx. 4 lines deleted] The haste in which some KUBARK interrogations have been conducted has not always been the product of impatience. Some security services, especially those of the Sino-Soviet Bloc, may work at leisure, depending upon time as well as their own methods to melt recalcitrance. KUBARK usually cannot. Accordingly, unless it is considered that the prospective interrogatee is cooperative and will remain so indefinitely, the first step in planning an interrogation is to determine how long the source can be held. The choice of methods depends in part upon the answer to this question.

[approx. 15 lines deleted]

The handling and questioning of defectors are subject to the provisions of [one or two words deleted] Directive No. 4: to its related Chief/KUBARK Directives, principally [approx. 1/2 line deleted] Book Dispatch [one or two words deleted] and to pertinent [one or two words deleted]. Those concerned with the interrogation of defectors, escapees, refugees, or repatriates should know these references.

The kinds of counterintelligence information to be sought in a CI interrogation are stated generally in Chief/KUBARK Directive and in greater detail in Book Dispatch [approx. 1/3 line deleted].

The interrogation of PBPRIME citizens poses special problems. First, such interrogations should not be conducted for reasons lying outside the sphere of KUBARK' s responsibilities. For example, the [approx. 2/3 line deleted] but should not normally become directly involved. Clandestine activity conducted abroad on behalf of a foreign power by a private PBPRIME citizens does fall within KUBARK's investigative and interrogative responsibilities. However, any investigation, interrogation, or interview of a PBPRIME citizen which is conducted abroad because it be known or suspected that he is engaged in clandestine activities directed against PBPRIME security interests requires the prior and personal approval of Chief/KUDESK or of his deputy.

Since 4 October 1961, extraterritorial application has been given to the Espionage Act, making it henceforth possible to prosecute in the Federal Courts any PBPRIME citizen who violates the statutes of this Act in foreign countries. ODENVY has requested that it be informed, in advance if time permits, if any investigative steps are undertaken in these cases. Since KUBARK employees cannot be witnesses in court, each investigation must be conducted in such a manner that evidence obtained may be properly introduced if the case comes to trial. [approx. 1 line deleted] states policy and procedures for the conduct of investigations of PBPRIME citizens abroad.

Interrogations conducted under compulsion or duress are especially likely to involve illegality and to entail damaging consequences for KUBARK. Therefore prior Headquarters approval at the KUDOVE level must be obtained for the interrogation of any source against his will and under any of the following circumstances:

1. If bodily harm is to be inflicted.

2. If medical, chemical, or electrical methods or materials are to be used to induce acquiescence.

3. [approx. 3 lines deleted]

The CI interrogator dealing with an uncooperative interrogatee who has been well-briefed by a hostile service on the legal restrictions under which ODYOKE services operate must expect some effective delaying tactics. The interrogatee has been told that KUBARK will not hold him long, that he need only resist for a while. Nikolay KHOKHLOV, for example, reported that before he left for Frankfurt am Main on his assassination mission, the following thoughts coursed through his head: "If I should get into the hands of Western authorities, I can become reticent, silent, and deny my voluntary visit to Okolovich. I know I will not be tortured and that under the procedures of western law I can conduct myself boldly." (17) [The footnote numerals in this text are keyed to the numbered bibliography at the end.] The interrogator who encounters expert resistance should not grow flurried and press; if he does, he is likelier to commit illegal acts which the source can later use against him. Remembering that time is on his side, the interrogator should arrange to get as much of it as he needs.

Last Update 2007-11-30 | Copyright© Charles Mingus 2008 | |