Why Not Coerce a Confession?
How New Revelations about Iraq Bear on this Question

By SHERRY F. COLB


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Tuesday, Dec. 14, 2005

According to recent news reports, a prisoner statement that formed part of the justification for our going to war with Iraq was the product of torture. The statement turns out to have been both coerced and false. It thereby demonstrates that coercion can harm its perpetrators as much as it does its victims.

The victim in this case was Ibn al Shaykh al Libbi. Reportedly, under C.I.A. authorization, al Libbi was tortured until he broke -- during a technique called "waterboarding" in which the subject is made to gag and suffocate. After waterboarding, al Libbi told his captors about the supposed Iraq/al Qaeda link.

Al Libbi's statements formed part of the basis for the current administration's claims that Iraq trained al Qaeda members to use biological weapons.  The statements thus contributed to the nation's support for a war that has led to a horrible death toll and alienated much of the international community. 

As many have already observed, evidence had mounted against the purported Saddam Hussein/Osama bin Laden link long before the Bush administration finally stopped misleading our nation with references to it.  But the new revelations about al Libbi have significance beyond refuting the Bush case for war. They provide a concrete example of how lethally unreliable coerced confessions can be.

The Fifth Amendment Bars Coerced Confessions - But Why?

As readers know, the U.S. Constitution prohibits the use of a coerced confession at the confessor's criminal trial in a civilian American court.  In the words of the Fifth Amendment, "nor shall [any person] be compelled in any criminal case to be a witness against himself." 

The purpose of this prohibition, however, is subject to debate.  When I teach about the Fifth Amendment in my criminal procedure course, for example, there is often divergence on the justifications for excluding such confessions.

Some argue that coerced confessions should never make their way into evidence because torturing people into confession is morally reprehensible, and courts should not serve as a forum for reaping the rewards of outrageous government conduct.  On this view, the introduction of coerced confessions makes the judge an accomplice to brutality, and such complicity must not occur in a free country. 

A more utilitarian form of this argument - one based on maximizing good consequences -- is that if we permit coerced confessions into evidence, that fact will motivate the police to coerce confessions more often than they already do.  On that theory, the exclusion of such confessions at a criminal trial deters police from engaging in coercion in the first place, because there will be no payoff.  If coercion is undesirable, then such a deterrent is useful.

The first argument emphasizes the courts' obligation to behave honorably, while the second depends on a factual assumption about how one might best control police behavior.  If firing all officers engaged in coercion would work better than the exclusion of confessions from evidence, proponents of the second argument might eschew exclusion, but proponents of the first would still embrace it, rejecting the notion that anticipated consequences -- however accurately predicted -- should drive the admissibility of evidence in court.

What the two arguments share is the view that torturing a suspect to obtain a confession is wrong and that the wrongness of such behavior drives the Fifth Amendment rule against admitting a coerced confession against the defendant who made that confession.

The Argument in Favor of Coerced Confessions: The Guilty Forfeit Their Rights

From time to time, someone in my class articulates a very different position.  This position holds that if a person is guilty of committing a heinous crime, then that person has no entitlement to freedom from coercion at the hands of the police.  And if torturing a brutal murderer for a confession is the only way to bring the killer to justice, then torture might indeed be defensible. 

Even on this approach, though, there remains a reason to prohibit the introduction of coerced confessions against the confessor.  It is that people who suffer torture say whatever they believe it will take to make the torture stop.  And that reality makes the use of torture extremely likely to elicit confessions from innocent people. 

Because that outcome is undesirable, coercive interrogation should generally be prohibited, even though some people might find it morally unobjectionable when used against the guilty.

Torturing a Terrorist: Is it Justified To Prevent Future Loss of Life?

Up until now, we have been considering coercive interrogation in a very specific context:  the effort to gather evidence to facilitate the prosecution of an accused criminal.  Perspectives sometimes change when the context moves from adjudicating past crimes to protecting against imminent future attacks that will otherwise claim lives. 

In the latter context -- which appears to characterize the war on terrorism -- some opponents of coercion in the evidence-gathering arena reluctantly agree with advocates of torture in the "ticking time bomb" scenario, the case in which the imminent death of innocents and the prisoner's guilt and knowledge are all virtually certain. 

In reality, the situation is almost never as clear-cut as the hypothetical scenario suggests, in terms of either the imminence and specificity of the threat or the guilt of the prisoner. That reality is worth remembering, because Bush Administration "license to torture" legal memoranda have not limited themselves to extreme situations but have instead affirmed executive power to engage in cruel, inhumane, and degrading treatment more generally.

But it is nonetheless valuable to consider extreme cases for analytical purposes. And to save a building full of innocent people, a lot of us would be prepared to authorize the torture of the aspiring detonator.

How might proponents of this position reconcile their views with the embrace of the Fifth Amendment right against the introduction of compelled confessions at criminal trials of confessors? 

The answer depends on people's basis for supporting the evidentiary ban.  If one believes that torture is simply never justified, then she cannot reconcile the two views, regardless of whether she supports the suppression of tainted confessions as a deterrent or whether she believes instead that courts should not sully themselves by utilizing the fruits of unconscionable behavior. 

For full consequentialists, however, reconciliation is possible: They can maintain that the successful prosecution of a murderer (or other criminal) after the crime has already taken place is not an important enough objective to justify the use of torture, given its costs (including the real possibility of producing a false confession).  When we are protecting existing people from a terrorist's bomb, however, the calculus changes, and torture, on that view, becomes less offensive.

On this consequentialist theory, if we are reasonably certain that the torture of a guilty person can save the lives of innocents, then torture may not only be acceptable but even morally required.  Charles Krauthammer recently made a version of this argument in the Weekly Standard.  The theory resembles that of self-defense or defense of others, in that the very person posing the threat gives rise to a concomitant right on the part of those threatened and their protectors to use whatever force is necessary to foil the attack. 

For someone faced with a killer's gun, the use of deadly force -- even given the small risk that it may all be a big misunderstanding -- would seem eminently justified.

But What If Torture Doesn't Work?

Return now to one of the reasons that people opposed coerced confessions in the criminal context:  the likelihood that a person faced with the threat of torture will say anything.  Specifically, he will say whatever he believes his interrogators want to hear.  And with this set of incentives in place for a prisoner, the risk that he will falsely confess is great indeed. 

The interrogators, moreover, ordinarily know what they want to hear -- they have, after all, arrested a suspect on the basis of suspicion that he committed a particular crime.  Whether guilty or innocent, then, the tortured person knows what to say to implicate himself and placate his interrogators.

In preventing terrorism, though, the situation may feel quite different to many readers. The investigators may no longer know what facts they want to hear, other than that they want the truth.  If investigators already knew these facts, they would not need to torture anyone to find them out.  Rather than confirming what they already have in mind, then, the person under interrogation must tell his torturers new information that could assist in preventing a successful attack from unfolding. 

This distinct setting might appear to reduce the risk that the prisoner will give a false statement to his interrogators. If he has no useful information, the only risk is that he will be unjustifiably subjected to inhumane treatment, a risk to be weighed against the benefits to be gleaned.  In the absence of a scripted interrogation agenda, in other words, there is no risk that he will falsely tell interrogators what they want to hear.

The recent revelations about al Libbi and the trumped-up link between Iraq and anti-U.S. terrorism, however, suggest otherwise.  As it turns out, "war on terrorism" interrogators often do have a theory about what is going on, and what they wish for the prisoner under interrogation to confirm, just as might occur during a police investigation of a homicide. 

Al Libbi's False Confession as a Cautionary Tale

In the case of Ibn al Shaykh al Libbi, the Bush Administration was by many accounts committed to an invasion of Iraq even before the attacks of September 11 and, once the attacks took place, was evidently prepared to use the tragic events of that day to promote and facilitate its previously chosen course of action in the Persian Gulf. 

Thus, rather than trying to diffuse a ticking time bomb, the interrogators were trying to confirm a story that would permit them to do with impunity what they were planning to do already.  Described thus, the use of torture in interrogating suspected terrorists begins to look very much like the use of torture to extract a confession from a suspect in the criminal context.  If one is against it in one area, then one might reconsider one's support for it in the other.

In light of revelations about the reason for al Libbi's false statements, we must look quite skeptically and even cynically at the Bush Administration's efforts to preserve the torture option for terrorism-related interrogations.  The American people have become disaffected with the war in Iraq and suspect that the President may have deliberately misled the nation with false claims linking 9/11 to Saddam Hussein. 

Like a jury in a criminal case, Americans had initially believed the "intelligence" that purported to establish such a link and assumed that suspected terrorists had drawn the connection on their own and that it must have therefore been accurate. 

For those of us concerned about the truth, the story of Ibn al Shaykh al Libbi is a cautionary tale.  Interrogators authorized to use torture against their prisoners will often have in mind the outlines of a script in the statement they wish to extract.  Whether that statement is "I confess to betraying Christianity by secretly practicing Judaism," as it was during the Spanish Inquisition; "I raped the white woman that day," as it was in the post-Civil War United States; or "I attended meetings at which links between Saddam Hussein and Osama Bin Laden became evident," we must accordingly worry that with the use of torture, we sell our souls only to learn too late that we have received nothing in return.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her columns on criminal law and procedure, among other subjects, may be found in the archive of her work on this site.

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