The FBI's frustration over its inability to get material witnesses to talk has raised a disturbing question rarely debated in this country: When, if ever, is it justified to resort to unconventional techniques such as truth serum, moderate physical pressure and outright torture?
The constitutional answer to this question may surprise people who
are not familiar with the current U.S. Supreme Court interpretation
of the 5th Amendment privilege against self-incrimination: Any interrogation
technique, including the use of truth serum or even torture, is not
prohibited. All that is prohibited is the introduction into evidence
of the fruits of such techniques in a criminal trial against the person
on whom the techniques were used. But the evidence could be used against
that suspect in a non-criminal case--such as a deportation hearing--or
against someone else.
If a suspect is given "use immunity"--a judicial decree announcing
in advance that nothing the defendant says (or its fruits) can be
used against him in a criminal case--he can be compelled to answer
all proper questions. The issue then becomes what sorts of pressures
can constitutionally be used to implement that compulsion. We know
that he can be imprisoned until he talks. But what if imprisonment
is insufficient to compel him to do what he has a legal obligation
to do? Can other techniques of compulsion be attempted?
Let's start with truth serum. What right would be violated if an immunized
suspect who refused to comply with his legal obligation to answer
questions truthfully were compelled to submit to an injection that
made him do so?
Not his privilege against self-incrimination, since he has no such
privilege now that he has been given immunity.
What about his right of bodily integrity? The involuntariness of the
injection itself does not pose a constitutional barrier. No less a
civil libertarian than Justice William J. Brennan rendered a decision
that permitted an allegedly drunken driver to be involuntarily injected
to remove blood for alcohol testing. Certainly there can be no constitutional
distinction between an injection that removes a liquid and one that
injects a liquid.
What about the nature of the substance injected? If it is relatively
benign and creates no significant health risk, the only issue would
be that it compels the recipient to do something he doesn't want to
do. But he has a legal obligation to do precisely what the serum compels
him to do: answer all questions truthfully.
What if the truth serum doesn't work? Could the judge issue a "torture
warrant," authorizing the FBI to employ specified forms of non-lethal
physical pressure to compel the immunized suspect to talk?
Here we run into another provision of the Constitution--the due process
clause, which may include a general "shock the conscience" test. And
torture in general certainly shocks the conscience of most civilized
But what if it were limited to the rare "ticking bomb" case--the situation
in which a captured terrorist who knows of an imminent large-scale
threat refuses to disclose it?
Would torturing one guilty terrorist to prevent the deaths of a thousand
innocent civilians shock the conscience of all decent people?
To prove that it would not, consider a situation in which a kidnapped
child had been buried in a box with two hours of oxygen. The kidnapper
refuses to disclose its location. Should we not consider torture in
All of that said, the argument for allowing torture as an approved
technique, even in a narrowly specified range of cases, is very troubling.
We know from experience that law enforcement personnel who are given
limited authority to torture will expand its use. The cases that have
generated the current debate over torture illustrate this problem.
And, concerning the arrests made following the Sept. 11 attacks, there
is no reason to believe that the detainees know about specific future
terrorist targets. Yet there have been calls to torture these
I have no doubt that if an actual ticking bomb situation were to arise,
our law enforcement authorities would torture. The real debate is
whether such torture should take place outside of our legal system
or within it. The answer to this seems clear: If we are to have torture,
it should be authorized by the law.
Judges should have to issue a "torture warrant" in each case. Thus
we would not be winking an eye of quiet approval at torture while
publicly condemning it.
Democracy requires accountability and transparency, especially when
extraordinary steps are taken. Most important, it requires compliance
with the rule of law. And such compliance is impossible when an extraordinary
technique, such as torture, operates outside of the law.