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Monday, November 21, 2005

O'Connell on Coercive Interrogation

My friend and colleague, Prof. Mary Ellen O'Connell, has posted on SSRN a new paper, "Affirming the Ban on Coercive Interrogation," that will likely be of interest.  Here is the abstract:

Beginning in 2002, lawyers for the Bush Administration began producing the now infamous legal memoranda on the subject of interrogation. The memoranda advise interrogators that they can torture people without fear of prosecution in connection with the so-called "global war on terror." Much has been and will be written about the expedient and erroneous legal analysis of the memos. One issue at risk of being overlooked, however, because the memos emphasize torture, is that the United States must respect limits far short of torture in the conduct of interrogations. The United States may not use any form of coercion against persons detained in an armed conflict, nor may it engage in cruel, inhuman and degrading treatment at any time. The great effort of the memo writers to restrict torture to the most extreme conduct imaginable obscures the fact that the United States has wider obligations. Avoiding torture is not enough. Interrogators must also respect the broader restrictions on coercive, cruel, inhuman, and degrading treatment.

The legal prohibition has, first, moral, but also pragmatic underpinnings. Apparently some in the Bush Administration have become persuaded that torture, coercion, cruelty and abuse can be effective methods of interrogation and that the need for information outweighs the illegality and immorality of using such means. The weight of the evidence is firmly against the conclusion, however, that forceful interrogation is as reliable as non-forceful methods. Using unlawful means has been counter-productive in effectively responding to terrorism. The evidence on information gathering supports international law's absolute prohibition on torture, cruelty, and coercion.

I am not an expert in the law of armed confict, but I do teach Constitutional Criminal Procedure.  The claim that "[t]he United States may not use any form of coercion against persons detained in an armed conflict, nor may it engage in cruel, inhuman and degrading treatment at any time" is, therefore, particularly intriguing to me.  Putting aside the definitional challenges, I am quite comfortable with the idea that governments may not -- ever -- engage in "torture" or "cruel, inhuman and degrading treatment."  I'm not so sure, though, about a ban on "coercion," if that term means more than "forceful [i.e., physical] interrogation."  After all, I suppose an interrogator's moral appeals -- e.g., appeals to conscience, of the kind involved in the famous "Christian Burial case" -- might well be perceived by a detainee, and be intended by the interrogator, to have "coercive" force.  What do others think?

Posted by Rick Garnett on November 21, 2005 at 11:42 AM in Rick Garnett | Permalink


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Barring some truly convoluted definition of "coerced," that term cannot be in any rationale interrogation policy. Otherwise the policy is simply that we will not interrogate. All interrogation is necessarily coercive, otherwise we would call it confession. I believe very strongly that we need good policies that reject torture, but I also understand that detainees in armed conflict are not criminal defendants.

Posted by: Tom | Nov 22, 2005 2:17:15 PM

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