{"id":54586,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/why-not-coerce-a-confession.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"why-not-coerce-a-confession","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/why-not-coerce-a-confession.html","title":{"rendered":"Why Not Coerce a Confession?"},"content":{"rendered":"\n
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<\/a><\/td>\n

Why Not Coerce a Confession?
How New Revelations about Iraq Bear on this Question<\/span><\/h1><\/td>\n <\/tr>\n

By SHERRY F. COLB<\/h2>
<\/a>\n\n—-\n\n
Tuesday, Dec. 14, 2005<\/div><\/td>\n\n <\/tr>\n <\/table>\n

According to recent news reports,\n\na prisoner statement that formed part of the justification for our going to war\n\nwith Iraq was the product of torture. The statement turns out to have been\n\nboth coerced and false. It thereby demonstrates that coercion can harm its\n\nperpetrators as much as it does its victims.<\/p>\n\n\n\n

The victim in this case was Ibn al\n\nShaykh al Libbi. Reportedly, under C.I.A. authorization, al Libbi was tortured\n\nuntil he broke — during a technique called “waterboarding” in which\n\nthe subject is made to gag and suffocate. After waterboarding, al Libbi told\n\nhis captors about the supposed Iraq\/al Qaeda link. <\/p>\n\n\n\n\n\n\n\n\n

Al Libbi’s statements formed part\n\nof the basis for the current administration’s claims that Iraq trained al Qaeda members to use biological weapons.\u00a0 The statements thus\n\ncontributed to the nation’s support for a war that has led to a horrible death\n\ntoll and alienated much of the international community.\u00a0 <\/p>\n\n\n\n\n\n\n\n

As many have already observed,\n\nevidence had mounted against the purported Saddam Hussein\/Osama bin Laden link\n\nlong before the Bush administration finally stopped misleading our nation with\n\nreferences to it.\u00a0 But the new revelations about al Libbi have\n\nsignificance beyond refuting the Bush case for war. They provide a concrete\n\nexample of how lethally unreliable coerced confessions can be. <\/p>\n\n\n\n\n\n\n\n

The Fifth Amendment Bars\n\nCoerced Confessions – But Why? <\/b><\/p>\n\n\n\n\n\n\n\n

As readers know, the U.S.\n\nConstitution prohibits the use of a coerced confession at the confessor’s criminal\n\ntrial in a civilian American court.\u00a0 In the words of the Fifth Amendment,\n\n“nor shall [any person] be compelled in any criminal case to be a witness\n\nagainst himself.”\u00a0 <\/p>\n\n\n\n\n\n\n\n

The purpose of this prohibition,\n\nhowever, is subject to debate.\u00a0 When I teach about the Fifth Amendment in\n\nmy criminal procedure course, for example, there is often divergence on the justifications\n\nfor excluding such confessions.<\/p>\n\n\n\n\n\n\n\n

Some argue that coerced\n\nconfessions should never make their way into evidence because torturing people\n\ninto confession is morally reprehensible, and courts should not serve as a\n\nforum for reaping the rewards of outrageous government conduct.\u00a0 On this\n\nview, the introduction of coerced confessions makes the judge an accomplice to\n\nbrutality, and such complicity must not occur in a free country.\u00a0 <\/p>\n\n\n

A more utilitarian form of this\n\nargument – one based on maximizing good consequences — is that if we permit\n\ncoerced confessions into evidence, that fact will motivate the police to coerce\n\nconfessions more often than they already do.\u00a0 On that theory, the\n\nexclusion of such confessions at a criminal trial deters police from engaging\n\nin coercion in the first place, because there will be no payoff.\u00a0 If\n\ncoercion is undesirable, then such a deterrent is useful.<\/p>\n\n\n\n

The first argument emphasizes the\n\ncourts’ obligation to behave honorably, while the second depends on a factual\n\nassumption about how one might best control police behavior.\u00a0 If firing\n\nall officers engaged in coercion would work better than the exclusion of\n\nconfessions from evidence, proponents of the second argument might eschew\n\nexclusion, but proponents of the first would still embrace it, rejecting the\n\nnotion that anticipated consequences — however accurately predicted — should\n\ndrive the admissibility of evidence in court.<\/p>\n\n\n\n

What the two arguments share is\n\nthe view that torturing a suspect to obtain a confession is wrong and that the wrongness\n\nof such behavior drives the Fifth Amendment rule against admitting a coerced\n\nconfession against the defendant who made that confession.<\/p>\n\n\n\n

The Argument in Favor of\n\nCoerced Confessions: The Guilty Forfeit Their Rights<\/b><\/p>\n\n\n\n

From time\n\nto time, someone in my class articulates a very different position.\u00a0 This\n\nposition holds that if a person is guilty of committing a heinous crime, then\n\nthat person has no entitlement to freedom from coercion at the hands of the\n\npolice.\u00a0 And if torturing a brutal murderer for a confession is the only\n\nway to bring the killer to justice, then torture might indeed be defensible.\u00a0\n\n<\/p>\n\n\n\n

Even on this approach, though, there\n\nremains a reason to prohibit the introduction of coerced confessions against\n\nthe confessor.\u00a0 It is that people who suffer torture say whatever they\n\nbelieve it will take to make the torture stop.\u00a0 And that reality makes the\n\nuse of torture extremely likely to elicit confessions from innocent\n\npeople.\u00a0 <\/p>\n\n\n\n

Because that outcome is\n\nundesirable, coercive interrogation should generally be prohibited, even though\n\nsome people might find it morally unobjectionable when used against the guilty.<\/p>\n\n\n\n

Torturing a Terrorist: Is it\n\nJustified To Prevent Future Loss of Life?<\/b><\/p>\n\n\n\n

Up until now, we have been\n\nconsidering coercive interrogation in a very specific context:\u00a0 the effort\n\nto gather evidence to facilitate the prosecution of an accused criminal.\u00a0\n\nPerspectives sometimes change when the context moves from adjudicating past\n\ncrimes to protecting against imminent future attacks that will otherwise claim\n\nlives.\u00a0 <\/p>\n\n\n\n\n\n\n\n

In the latter context — which\n\nappears to characterize the war on terrorism — some opponents of coercion in\n\nthe evidence-gathering arena reluctantly agree with advocates of torture in the\n\n“ticking time bomb” scenario, the case in which the imminent death of\n\ninnocents and the prisoner’s guilt and knowledge are all virtually\n\ncertain.\u00a0 <\/p>\n\n\n\n\n\n\n\n

In reality, the situation is almost\n\nnever as clear-cut as the hypothetical scenario suggests, in terms of either\n\nthe imminence and specificity of the threat or the guilt of the prisoner. That\n\nreality is worth remembering, because Bush Administration “license to torture”\n\nlegal memoranda have not limited themselves to extreme situations but have instead\n\naffirmed executive power to engage in cruel, inhumane, and degrading treatment more\n\ngenerally.<\/p>\n\n\n\n\n\n\n\n

But it is\n\nnonetheless valuable to consider extreme cases for analytical purposes. And to\n\nsave a building full of innocent people, a lot of us would be prepared to\n\nauthorize the torture of the aspiring detonator.<\/p>\n\n\n\n\n\n

How might proponents of this\n\nposition reconcile their views with the embrace of the Fifth Amendment right\n\nagainst the introduction of compelled confessions at criminal trials of confessors?\u00a0\n\n<\/p>\n\n\n\n\n\n\n\n

The answer depends on people’s basis\n\nfor supporting the evidentiary ban.\u00a0 If one believes that torture is\n\nsimply never justified, then she cannot reconcile the two views, regardless of\n\nwhether she supports the suppression of tainted confessions as a deterrent or\n\nwhether she believes instead that courts should not sully themselves by\n\nutilizing the fruits of unconscionable behavior.\u00a0 <\/p>\n\n\n\n\n\n\n\n

For full consequentialists,\n\nhowever, reconciliation is possible: They can maintain that the successful\n\nprosecution of a murderer (or other criminal) after the crime has already taken\n\nplace is not an important enough objective to justify the use of torture, given\n\nits costs (including the real possibility of producing a false\n\nconfession).\u00a0 When we are protecting existing people from a terrorist’s\n\nbomb, however, the calculus changes, and torture, on that view, becomes less\n\noffensive.<\/p>\n\n\n\n\n\n\n\n

On this consequentialist theory,\n\nif we are reasonably certain that the torture of a guilty person can save the\n\nlives of innocents, then torture may not only be acceptable but even morally\n\nrequired<\/u>.\u00a0 Charles Krauthammer recently made a version of this\n\nargument in the Weekly Standard.\u00a0 The theory resembles that of\n\nself-defense or defense of others, in that the very person posing the threat\n\ngives rise to a concomitant right on the part of those threatened and their\n\nprotectors to use whatever force is necessary to foil the attack.\u00a0 <\/p>\n\n\n\n\n\n\n\n

For someone\n\nfaced with a killer’s gun, the use of deadly force — even given the small risk\n\nthat it may all be a big misunderstanding — would seem eminently justified.<\/p>\n\n\n\n\n\n\n\n

But\n\nWhat If Torture Doesn’t Work?<\/b><\/p>\n\n\n\n\n\n\n\n

Return now to one of the reasons\n\nthat people opposed coerced confessions in the criminal context:\u00a0 the\n\nlikelihood that a person faced with the threat of torture will say\n\nanything.\u00a0 Specifically, he will say whatever he believes his\n\ninterrogators want to hear.\u00a0 And with this set of incentives in place for\n\na prisoner, the risk that he will falsely confess is great indeed.\u00a0 <\/p>\n\n\n\n\n\n\n\n

The interrogators, moreover,\n\nordinarily know what they want to hear — they have, after all, arrested a\n\nsuspect on the basis of suspicion that he committed a particular crime.\u00a0\n\nWhether guilty or innocent, then, the tortured person knows what to say to\n\nimplicate himself and placate his interrogators. <\/p>\n\n\n\n\n\n\n\n

In preventing terrorism, though, the\n\nsituation may feel quite different to many readers. The investigators may no\n\nlonger know what facts they want to hear, other than that they want the truth.\u00a0\n\nIf investigators already knew these facts, they would not need to torture\n\nanyone to find them out.\u00a0 Rather than confirming what they already have in\n\nmind, then, the person under interrogation must tell his torturers new information\n\nthat could assist in preventing a successful attack from unfolding.\u00a0 <\/p>\n\n\n\n\n\n\n\n

This distinct setting might appear\n\nto reduce the risk that the prisoner will give a false statement to his\n\ninterrogators. If he has no useful information, the only risk is that he will\n\nbe unjustifiably subjected to inhumane treatment, a risk to be weighed against\n\nthe benefits to be gleaned.\u00a0 In the absence of a scripted interrogation\n\nagenda, in other words, there is no risk that he will falsely tell\n\ninterrogators what they want to hear.<\/p>\n\n\n\n\n\n\n\n

The recent revelations about al\n\nLibbi and the trumped-up link between Iraq and anti-U.S. terrorism, however,\n\nsuggest otherwise.\u00a0 As it turns out, “war on terrorism” interrogators\n\noften do have a theory about what is going on, and what they wish for the\n\nprisoner under interrogation to confirm, just as might occur during a police\n\ninvestigation of a homicide.\u00a0 <\/p>\n\n\n\n\n\n\n\n

Al Libbi’s False Confession as\n\na Cautionary Tale<\/b><\/p>\n\n\n\n\n\n\n\n

In the case of Ibn al Shaykh al\n\nLibbi, the Bush Administration was by many accounts committed to an invasion of\n\n Iraq even before the attacks of September 11 and, once the attacks took\n\nplace, was evidently prepared to use the tragic events of that day to promote\n\nand facilitate its previously chosen course of action in the Persian Gulf.\u00a0\n\n<\/p>\n\n\n\n\n\n\n\n

Thus, rather than trying to\n\ndiffuse a ticking time bomb, the interrogators were trying to confirm a story\n\nthat would permit them to do with impunity what they were planning to do\n\nalready.\u00a0 Described thus, the use of torture in interrogating suspected\n\nterrorists begins to look very much like the use of torture to extract a\n\nconfession from a suspect in the criminal context.\u00a0 If one is against it\n\nin one area, then one might reconsider one’s support for it in the other.<\/p>\n\n\n\n\n\n\n\n

In light of revelations about the\n\nreason for al Libbi’s false statements, we must look quite skeptically and even\n\ncynically at the Bush Administration’s efforts to preserve the torture option\n\nfor terrorism-related interrogations.\u00a0 The American people have become\n\ndisaffected with the war in Iraq and suspect that the President may have\n\ndeliberately misled the nation with false claims linking 9\/11 to Saddam Hussein.\u00a0\n\n<\/p>\n\n\n\n

Like a\n\njury in a criminal case, Americans had initially believed the\n\n“intelligence” that purported to establish such a link and assumed\n\nthat suspected terrorists had drawn the connection on their own and that it\n\nmust have therefore been accurate.\u00a0<\/p>\n\n\n\n

For those of us concerned about\n\nthe truth, the story of Ibn al Shaykh al Libbi is a cautionary tale.\u00a0\n\nInterrogators authorized to use torture against their prisoners will often have\n\nin mind the outlines of a script in the statement they wish to extract.\u00a0\n\nWhether that statement is “I confess to betraying Christianity by secretly\n\npracticing Judaism,” as it was during the Spanish Inquisition; “I\n\nraped the white woman that day,” as it was in the post-Civil War United\n\nStates; or “I attended meetings at which links between Saddam Hussein and\n\nOsama Bin Laden became evident,” we must accordingly worry that with the\n\nuse of torture, we sell our souls only to learn too late that we have received\n\nnothing in return.<\/p>\n\n\n\n<\/span>\n\n\n\n\n\n

\n\n

\n\n\n\n\n\n<\/a>\n\nSherry F. Colb, a FindLaw columnist, is Professor and\n\nFrederick B. Lacey Scholar at Rutgers Law School in Newark. Her columns on\n\ncriminal law and procedure, among other subjects, may be found in the archive\n\nof her work on this site.\n\n

\n\n\n\n<\/p>\n\n\n\n\n\n\n\n\n\n\n\n<\/div>

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