TORTURE: ITS USE, PROHIBITION, AND FUTILITY

By: Melissa Palermo

INTRODUCTION

Torture is prohibited both internationally and domestically by nations throughout the

world.1 Yet there is strong evidence that many countries, including the United States, use torture

during interrogations of suspected terrorists.2 The threat of global terrorism has increased the use

of torture by nations as a means of procuring information concerning terrorist attacks.3

Although many nations are implementing torture in their interrogation techniques, torture should

not be used because it is illegal and futile.4 Psychological empirical research indicates that the

use of torture as an interrogation tool causes false confessions and interrogative suggestibility.5

This paper will discuss how international and domestic laws dealing with torture affect

the United States. Moreover, arguments both for and against the use of torture will be proffered

in this paper. Finally, as support for the arguments against the use of torture, this paper will

1
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46,
U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984) (entered into force June 26, 1987),
available at http://www.un.org/Depts/dhl/res/resa39.htm (last visited Jan. 14, 2008) [hereinafter Convention against
Torture]; Mirko Bagaric & Julie Clarke, Not Enough Official Torture in the World? The Circumstances in which
Torture is Morally Justifiable, 39 U.S.F. L. REV. 581, 581 (2005).
2
U.N. Gen. Assembly, Report of the Human Rights Committee, ¶ 84, U.N. Doc A/61/40 (July 10-28, 2006);
Bagaric & Clarke, supra note 1; Human Rights Watch, Torture Worldwide,
http://hrw.org/english/docs/2005/04/27/china10549.htm (last visited Jan. 14, 2008) [hereinafter Torture Worldwide];
Brett Murphy, Ex-Guantanamo Bay Detainee Describes Systematic Torture, JURIST, Nov. 14, 2006, available at
http://jurist.law.pitt.edu/paperchase/2006/11/ex-guantanamo-bay-detainee-describes.php (last visited Jan. 14, 2008).
3
Marcy Strauss, Torture, 48 N.Y.L. SCH. L. REV. 201, 201 (2003/2004); Bagaric & Clarke, supra note 1, at 581.
4
See Saul M. Kassin & Katherine L. Kiechel, The Social Psychology of False Confessions: Compliance,
Internalization, and Confabulation, 7 PSYCHOL. SCI. 125 (1996); Mark Blagrove, Effects of Length of Sleep
Deprivation on Interrogative Suggestibility, 2 J. OF EXPERIMENTAL PSCYHOL: APPLIED 48 (1996); Saul M. Kassin et al.,
Behavioral Confirmation in the Interrogation Room: on the Dangers of Presuming Guilt, 27 LAW & HUM. BEHAV.
187 (2003).
5
See Kassin & Kiechel, supra note 4; Blagrove, supra note 4; Kassin et al., supra note 4; Melissa B. Russano et al.,
Investigating True and False Confessions within a Novel Experimental Paradigm, 16 PSYCHOL. SCI. 481 (2005);
Richard A Leo & Richard J. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and
Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. CRIM. L. & CRIMINOLOGY 429 (1998).

1
argue that the use of torture is ineffective due to its likelihood to create false confessions and

interrogative suggestibility.

I. LEGISLATION IN RESPONSE TO TERRORISM

Terrorism poses a threat to nations around the world.6 In response to the fear of terrorist

attacks, countries have taken steps to protect their citizens, such as passing anti-terrorism

legislation.7 Moreover, in the United States, new terrorism laws were created following the

World Trade Center bombing in 1993, the Oklahoma City bombing in 1995, and the September

11, 2001 attacks.8 Similarly, Great Britain enacted new criminal laws against terrorism

following the IRA bombings of 1974.9 Unfortunately, however, in the midst of thwarting

potential terrorist attacks, some governments have overstepped the bounds of human decency.10

Specifically, the threat of terrorism has been used by countries as justification for implementing

the use of torture during interrogation.11

II. TORTURE TODAY

6
Kent Roach & Gary Trotter, Miscarriages of Justice in the War against Terror, 109 PENN ST. L. REV. 967, 973
(2005).
7
PDD 39: U.S. Policy on Counter-Terrorism, http://www.emergency-management.net/laws_pdd39.htm (last visited
Jan. 14, 2008) [hereinafter PDD 39]; Authorization for the Use of Military Force (AUMF), Pub. L No. 107-40, 115
Stat. 224 (2001); Privacy International, UK Prevention of Terrorism Act 2005, Mar. 11, 2005, ch. 2, available at
http://www.privacyinternational.org/article.shtml?cmd%5B347%5D=x-347-159871 (last visited Jan. 14, 2008);
Roach & Trotter, supra note 6, at 974.
8
PDD 39, supra note 7; see generally AUMF, 115 Stat. 224; see Roach & Trotter, supra note 6, at 974.
9
CAIN: HSMO, Prevention of Terrorism (Temporary Provisions) Act 1974, http://cain.ulst.ac.uk/hmso/pta1974.htm
(last visited Mar. 4, 2007); Roach & Trotter, supra note 6, at 974.
10
Roach & Trotter, supra note 6, at 974.
11
Australian Human Rights & Equal Opportunity Commission, Seventh International Conference for National
Human Rights Institutions, John von Doussa, President, Conflict and Countering Terrorism: Civil and Political
Rights and the Rule of Law (Sept. 14-17, 2004),
http://www.humanrights.gov.au/about/media/speeches_president/2004/koreaterrorismworkshop.html (last visited
Jan. 14, 2008); Torture Worldwide, supra note 2; see Bagaric & Clarke, supra note 1.

2
 Today, torture is still used by many countries throughout the world.12 Human Rights

Watch, an independent organization devoted to protecting the rights of humans throughout the

world, has published information detailing the use of torture by several governments.13

Specifically, according to one Human Rights Watch report, countries such as China, Egypt, Iran,

Iraq, Israel, Nepal, and others commonly engage in torture to procure information from detainees

and prisoners.14 For example, this report suggests that in Xinjiang, China “[d]etainees have

reported beatings with shackles, electric shocks, and being kicked to the point of

unconsciousness.”15

There is also evidence that the United States government has used torture in response to

terrorism and the September 11, 2001 attacks.16 For instance, there is strong evidence suggesting

that the United States government tortured Iraqi prisoners and Guantanamo Bay detainees. 17 In

particular, following interviews with former detainees and officials from the United States, the

United Nations recently reported that the United States violated the detainees’ rights, and

perhaps practiced torture, during their detentions at Guantanamo.18 Additionally, an ex-

Guantanamo Bay detainee, Murat Kurnaz, reported to a Turkish website (CNN Turk.com) that

12
Torture Worldwide, supra note 2; Bagaric & Clarke, supra note 1, at 582.
13
Human Rights Watch, Defending Human Rights Worldwide, http://hrw.org/campaigns/torture.htm (last visited
Jan. 14, 2008).
14
Torture Worldwide, supra note 2.
15
Id.
16
The "Taguba Report" On Treatment of Abu Ghraib Prisoners In Iraq, Article 15-6 Investigation
of the 800th Military Police Brigade, available at http://news.findlaw.com/hdocs/docs/iraq/tagubarpt.html (last
visited Jan. 14, 2008) [hereinafter Taguba Report]; Report of the Human Rights Committee, supra note 2, ¶ 84, at
13.
17
Taguba Report, supra note 16; Report of the Human Rights Committee, supra note 2, ¶ 84, at 13; Murphy, supra
note 2.
18
U.N. Econ. & Soc. Council [ECOSOC], Commission on Human Rights, Economic, Social and Cultural Rights
Civil and Political Rights, E/CN.4/2006/120, ¶ 91 (Feb. 27, 2006), http://documents-dds-
ny.un.org/doc/UNDOC/GEN/G06/112/76/pdf/G0611276.pdf?OpenElement (last visited Jan. 14, 2008).

3
he was tortured by American soldiers during his detention at the military base.19 The report

indicates that Americans refused to give Kurnaz food and subjected him to electric shocks.20

Reports have also uncovered a secret CIA rendition program.21 According to these

reports, suspected terrorists are captured by the United States government, sent to other

countries, such as Egypt and Syria, and subjected to torture and other forms of violence during

interrogations.22

For example, a recent United Nations’ ruling, Agiza v. Sweden, stated that Sweden

violated the Convention against Torture treaty by assisting the United States in transferring

individuals from Sweden to Egypt.23 In late 2001, CIA operatives transferred Mohammed al-

Zari and Ahmed Agiza, individuals suspected of terrorist activities, from Sweden to Egypt with

the assistance of Swedish officials.24 The United Nations Human Rights Committee “held in this

landmark decision that ... the State party’s expulsion of the complainant was in breach of article

3 of the Convention. The procurement of diplomatic assurances, which provided no mechanism

for their enforcement, did not suffice to protect against this manifest risk.”25
19
Murphy, supra note 2.
20
Id.
21
Human Rights Watch, Sweden Violated Torture Ban in CIA Rendition: Diplomatic Assurances against Torture
offer No Protection from Abuse CIA Rendition (Nov. 10, 2006), available at
http://hrw.org/english/docs/2006/11/09/sweden14548.htm (last visited Jan. 14, 2008) [hereinafter Sweden Violated
Torture Ban].
22
U.N. Gen. Assembly, Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Report of the
Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 42-45, U.N.
Doc. A/60/316 (Aug. 30, 2005) [hereinafter Report on Torture]; Bernard Hibbits, Guantanamo Detainees Claim US
Prisoner Transfers Exposed Them to Torture, JURIST, Apr. 26, 2006, available at
http://jurist.law.pitt.edu/paperchase/2006/04/guantanamo-detainees-claim-us-prisoner.php (last visited Jan. 14,
2008).
23
Report on Torture, supra note 22; Sweden Violated Torture Ban, supra note 21.
24
Id.
25
Report on Torture, supra note 22, ¶ 44. The Convention against Torture provides that: “No State Party shall
expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that
he would be in danger of being subjected to torture.” Convention against Torture, supra note 1, art. 3, ¶ 1.

4
 Furthermore, other European nations such as Poland have been accused of helping the

CIA in transferring suspected terrorists aboard.26 As a result of these allegations, the European

Parliament and the United States Senate are investigating the CIA’s secret rendition program.27

Preliminary investigations suggest that captives have been tortured abroad under the current

rendition program.28 All of this information, which includes United Nations’ findings, provides

evidence suggesting that the United States government has and continues to use torture against

alleged terrorists.29

III. INTERNATIONAL PROHIBITION AGAINST TORTURE

Although there is strong evidence suggesting that the United States and other countries

engage in the use of torture, it remains illegal under international law.30 The use of torture is

prohibited by international documents, which includes several treaties, the Third and Fourth

26
Draft Report on the Alleged use of European Countries by the CIA for the Transportation and Illegal Detention of
Prisoners, ¶ 136, EUR. PARL. DOC. PR\641327EN (2006) [hereinafter European Parliament Draft Report]; Adam
Easton, MEPs Probe Poland Rendition Claim, BBC NEWS, Nov. 8 2006, available at
http://news.bbc.co.uk/2/hi/europe/6127132.stm (last visited Jan. 14, 2008).
27
European Parliament Draft Report, supra note 26; Easton, supra note 26; James Sturcke, Senate to Investigate
Rendition Abuses, GUARDIAN UNLIMITED, Nov. 14, 2006, available at
http://www.guardian.co.uk/usa/story/0,,1947647,00.html (last visited Jan. 14, 2008).
28
See Sturcke, supra note 27.
29
See International Covenant on Civil and Political Rights, Human Rights Committee, Consideration of Reports
Submitted by States Parties Under Article 40 of the Covenant, ¶ 13, CCPR/C/USA/CO/3/Rev.1 (July 10-28 2006)
[hereinafter Consideration of Reports]. The Committee recommends that the United States ensure that their
interrogation techniques fall within Article 7 of the International Covenant on Civil and Political Rights. Id. Where
article 7 states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In
particular, no one shall be subjected without his free consent to medical or scientific experimentation.” International
Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 52, U.N.
Doc. N6316, Dec. 18, 1966, 999 U.N.T.S. 171, art. 7, available at http://www.unhchr.ch/html/menu3/b/a_ccpr.htm
(last visited Jan. 14, 2008) [hereinafter ICCPR].
30
Consideration of Reports, supra note 29; see also Third Geneva Convention, Relative to the Treatment of
Prisoners of War, 6 U.S.T. 3316, T.I.A.S. 3364 [hereinafter Geneva Convention III]; Fourth Geneva Convention,
Relative to the Protection of Civilian Persons in Time of War, 6 U.S.T. 3516, T.I.A.S. 3365 (last visited March 5,
2007) [hereinafter Geneva Convention IV].

5
Geneva Conventions, and the United Nations Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment (“Convention against Torture”).31

Specifically, the Third and Fourth Geneva Conventions and the Convention against

Torture significantly impacted the global ban on torture.32 The Third Geneva Convention

proscribes the use of torture against prisoners of war.33 Moreover, the Fourth Geneva

Convention forbids the use of torture for “protected persons,”34 which includes civilians and

detainees whose States are bound to the Conventions.35

The Convention against Torture prohibits torture “in any territory under its

jurisdiction.”36 Additionally, it requires that nations take affirmative steps to prevent torture

from occurring by enacting domestic legislation.37 Further, Article 2 states that “each State Party

shall take effective legislative, administrative, judicial or other measures to prevent acts of

torture in any territory in its jurisdiction.”38 The Article also states that there are no exceptions to

this treaty.39 Moreover, torture cannot be used in a “state of war” or “public emergency.”40

31
See Geneva Convention III, supra note 30; Geneva Convention IV, supra note 30; Convention against Torture,
supra note 1.
32
See James Park Taylor, Dancing with the Scavenger’s Daughter: Torture, Rendition, & the United States, 30
MONT. LAW. 10, 10 (2005).
33
Geneva Convention III, supra note 30, art 17.
34
Geneva Convention IV, supra note 30, art 3, ¶ 1(a).
35
Id. arts. 3-6.
36
Convention against Torture, supra note 1, art 2, ¶ 1.
37
Id.; Winston P. Nagan & Lucie Atkins, The International Law of Torture: from Universal Proscription to
Effective Application and Enforcement, 14 HARV. HUM. RTS. J. 87, 98 (2001).
38
Convention against Torture, supra note 1, art. 2, ¶ 1.
39
Id. art. 2, ¶ 2.
40
Id.

6
Therefore, even the threat of terrorism within a country is not a legitimate reason to engage in

torture against suspected terrorists.

Article 3 of the Convention against Torture stipulates that nation-states may not “expel,

return or extradite a person to another State where there are substantial grounds for believing that

he would be in danger of being subjected to torture.”41 In other words, a country cannot create a

rendition program that allows terrorists or other individuals to be transferred to nations where

there is a strong likelihood that torture will take place. Moreover, the Convention against

Torture treaty denounces the use of torture throughout the world; thus, a violation of the terms of

the treaty is a violation of international law.42

Furthermore, the prohibition of torture is considered customary international law.43 The

Supreme Court of the United States held in The Paquette Habana case, when “there is no treaty

and no controlling executive or legislative act or judicial decision, resort must be had to the

customs and usages of civilized nations.”44 Customary law is law that develops over time

through common usage within the “law of nations.”45 Thus, it is binding throughout the

international community even without physical documentation.46

Torture had been prohibited by customary international law prior to the establishment of

the Geneva Conventions and the Convention against Torture.47 These treaties have merely

41
Id. art. 3, ¶ 1.
42
See Convention against Torture, supra note 1; See Nagan & Atkins, supra note 37.
43
Filartiga v. Pena-Irala, 577 F. Supp. 860, 863 (E.D.N.Y. 1984); Bagaric & Clarke, supra note 1, at 586.
44
The Paquete Habana, 175 U.S. 677, 700 (1900).
45
Id. at 709.
46
See id. at 700.
47
See Filartiga, 577 F. Supp. at 863.

7
codified the customary international law prohibiting torture.48 Therefore, even without the

Geneva Conventions and the Convention against Torture, torture would still be prohibited

through customary international law.49

Moreover, customary international law binds nations to one another throughout the

international community, regardless of whether the state adopts the law domestically.50 Thus,

even if there are no legal ramifications at the domestic level, states in violation of international

law, may still face political consequences at the international level.51

Additionally, the prohibition of torture is considered jus cogens.52 Jus cogens is a

peremptory norm of general international law.53 In Committee of U.S. Citizens Living in

Nicaragua v. Reagan, the court stated that “jus cogens (or “compelling law”) enjoy the highest

status in international law and prevail over both customary international law and treaties.”54

Therefore, torture is prohibited throughout the international community by treaties, customary

international law, and jus cogens.

IV. INTERNATIONAL AND DOMESTIC EFFECTS ON THE

PROHIBITION OF TORTURE IN THE UNITED STATES

48
Geneva Convention III, supra note 30; Geneva Convention IV, supra note 30; Convention against Torture, supra
note 1.
49
See Filartiga, 577 F. Supp. at 863.
50
Bagaric & Clarke, supra note 1, at 586.
51
Id. at 596; Marcy Strauss, Torture, 48 N.Y.L. SCH. L. REV. 201, 256 (2003/2004).
52
ANTHONY AUST, MODERN TREATY LAW AND PRACTICE 257-258 (2000).
53
Id.
54
Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 935 (D.C. Cir. 1988).

8
 Torture is prohibited by law in the United States at both the international and domestic

levels.55 The United States ratified the Third and Fourth Geneva Conventions in 1955,56 which

obligated the United States to prohibit torture against prisoners of war and “protected persons.”57

Furthermore, the United States ratified the Convention against Torture in 1994.58 During

this ratification, however, the United States stipulated several reservations and declarations.59 In

particular, the United States considers Articles 1-16 to be non self-executing.60 Non self-

executing stipulations within a treaty, and non self-executing treaties in general, require the

implementation of legislation within a State, who is party to the treaty, before it is domestically

enforceable. 61 Therefore, a violation of the treaty has different legal consequences

internationally than domestically.

At the international level, the United States is legally bound to prohibit torture.62 The

United States bound itself to the international community by ratifying the Geneva Conventions

and the Convention against Torture.63 Further, the United States is forbidden to practice torture
55
Geneva Convention III, supra note 30; Geneva Convention IV, supra note 30; Convention against Torture, supra
note 1; Torture Act, 18 U.S.C.A. §2340 (2004); Military Commissions Act of 2006 (MCA), Pub. L. No. 109-366,
120 Stat. 2600, 2627 (2006); Bagaric & Clarke, supra note 1, at 586.
56
Geneva Convention III, supra note 30; Geneva Convention IV, supra note 30; Taylor, supra note 32, at 10.
57
Geneva Conventions III, supra note 30; Geneva Convention IV, supra note 30.
58
See Convention against Torture, supra note 1; see also Nagan & Atkins, supra 37, at 89 n. 12.
59
Convention against Torture, supra note 1; Committee against Torture, Office of the High Commission on Human
Rights, Declarations and Reservations, Apr. 23, 2004, United States of America,
http://www.unhchr.ch/html/menu2/6/cat/treaties/convention-reserv.htm (last visited Mar. 7, 2007) [hereinafter
Convention Reservations]; Taylor, supra note 32, at 11.
60
Taylor, supra note 32, at 11; see Convention Reservations, supra note 59, at § I, ¶ 1.
61
Whitney v. Robertson, 124 U.S. 190, 194 (1888); Taylor, supra note 32, at 11.
62
See Geneva Convention III, supra note 30; Geneva Convention IV, supra note 30; Convention against Torture,
supra note 1.
63
Geneva Convention III, supra note 30; Geneva Convention IV, supra note 30; Convention against Torture, supra
note 1; see Nagan & Atkins, supra note 37.

9
internationally because it is banned by customary law and jus cogens.64 Therefore, because jus

cogens supersedes all international documents and treaties, the international scope of the

Convention against Torture is not limited by the United States’ reservations.65

However, at the domestic level, the provisions within the Convention against Torture

treaty are more narrowly construed as a result of subsequent legislation enacted in the United

States.66 For example, Article 1 of the Convention defines torture more broadly than the United

States does in 18 U.S.C. §2340.67 The Convention against Torture defines torture as:

any act by which severe pain or suffering, whether physical or mental, is

intentionally inflicted on a person for such purposes as obtaining from him or a
third person information or a confession, punishing him for an act he or a third
person has committed or is suspected of having committed, or intimidating or
coercing him or a third person, or for any reason based on discrimination of any
kind, when such pain or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an official
capacity. It does not include pain or suffering arising only from, inherent or
incidental to lawful sanctions.68

Whereas the United States defines torture more narrowly:

(1) "torture" means an act committed by a person acting under the color of law
specifically intended to inflict severe physical or mental pain or suffering (other
than pain or suffering incidental to lawful sanctions) upon another person within
his custody or physical control; (2) "severe mental pain or suffering" means the
prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or
suffering; (B) the administration or application, or threatened administration or
application, of mind-altering substances or other procedures calculated to disrupt
profoundly the senses or the personality; (C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe
physical pain or suffering, or the administration or application of mind-altering

64
Filartiga, 577 F. Supp. at 863; AUST, supra note 52; Bagaric & Clarke, supra note 1, at 586.
65
Committee of U.S. Citizens Living in Nicaragua, 859 F.2d at 935; Bagaric & Clarke, supra note 1, at 586.
66
See 18 U.S.C.A. §2340.
67
Convention against Torture, supra note 1, art. 1, ¶ 1; 18 U.S.C.A. §2340.
68
Convention against Torture, supra note 1, art. 1, ¶ 1.

10
 substances or other procedures calculated to disrupt profoundly the senses or
personality . . . .69

Moreover, a Memorandum for the General Counsel of the Secretary of Defense, dated

January 15, 2003, provides “[i]n sum, the obligations under the Torture Convention apply to the

interrogation of unlawful combatant detainees, but the Torture Convention prohibits torture only

as defined in the U.S. Understanding.”70

Additionally, in the United States, domestic laws against terrorism have implications on

torture.71 Following the September 11, 2001 attacks on the United States, Congress passed a

joint resolution, known as the Authorization for the Use of Military Force (“AUMF”), that

allowed the President to “use all necessary and appropriate force against those nations,

organizations, or persons he determines planned, authorized, committed, or aided the terrorist

attacks . . . .”72 Pursuant to the AUMF, the U.S. Armed Forces invaded Afghanistan in hopes of

capturing individuals that were associated with the terrorist attacks of September 11, 2001.73

During the hostilities with Afghanistan, the United States captured Salim Ahmed

Hamdan and transferred him to the military prison located in Guantanamo Bay.74 The United

States charged Hamdan with offenses related to terrorism.75 He petitioned the Supreme Court of

69
18 U.S.C.A. §2340 (2004).

70
OFFICE OF THE SECRETARY OF DEFENSE, DETAINEE INTERROGATIONS IN THE GLOBAL WAR ON TERRORISM: ASSESSMENT OF
LEGAL, HISTORICAL, POLICY, AND OPERATIONAL CONSIDERATIONS 6 (2003), available at
http://www.defenselink.mil/news/Jun2004/d20040622doc8.pdf.
71
See Jeffrey F. Addicott, Into The Star Chamber: Does the United States Engage in the Use of Torture or Similar
Illegal Practices in the War on Terror?, 92 KY. L. J. 849, 853 (2004).
72
AUMF, 115 Stat. at 224.
73
Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2760 (2006).
74
Id.
75
Id. at 2761.

11
the United States for habeas relief, alleging that the military commission lacks authority to try

him.76

The Supreme Court held that the military commissions in place at Guantanamo Bay

violated domestic and international law.77 Although the Court did not ban the use of military

commissions entirely, the Court did hold that procedures currently in place violated the Uniform

Code of Military Justice (UCMJ).78 For example, the military commissions’ procedures

provided “that an accused and his civilian counsel may be excluded from, and precluded from

ever learning what evidence was presented during, any part of the proceeding . . . .”79 However,

UCMJ Article 36(b) requires that rules for courts-martial trials and military commissions must

be “uniform insofar as practicable.”80 For example, under the rules for courts-martial and the

UCMJ, the accused must be present.81 The Court held that the military commissions did not

comply with Article 36 because there was no evidence that it would be impracticable for courts-

martial rules to be applied in this situation.82

More importantly, the Court held that the military commissions were inconsistent with

the requirements of the Geneva Conventions.83 For example, Common Article 3 of the Geneva

Conventions requires that detained individuals be tried in a “regularly constituted court.”84

76
Id. at 2759.
77
Id.
78
Hamdan, 126 S.Ct. at 2759.
79
Id. at 2755.
80

Id. at 2756.
81

Id.
82

Id. at 2792.
83

Hamdan, 126 S.Ct. at 2756.

84

Geneva Convention III, supra note 30, at art. 3, ¶ 1(d); Hamdan, 126 S.Ct. at 2757.

12
Although the Geneva Conventions do not define this phrase, other sources suggest that it means

an ordinary military court “established and organized accordance with the laws and procedures

already in force in a country.”85 The military commissions created to try Hamdan were

inconsistent with ordinary United States military courts, such as the courts-martial, and thus are

not compatible with the Geneva Conventions.86

This holding was extremely important because, barring few exceptions, the Court rarely

interferes with the President’s actions in foreign affairs.87 Furthermore, as the abuse of prisoners

at Abu Ghraib depicts, the United States is likely ignoring international law to serve its own

agenda.88 Therefore, the Court in Hamdan reaffirmed the necessity for the United States

government to abide by international law.89

In response to Hamdan, Congress passed the Military Commissions Act of 2006

(“Military Commissions Act”) in October 2006, which attempted to remedy the many problems

inherent to the operation of the military commission tribunals.90 Additionally, the Pentagon

released in early January 2007, a 238-page “Manual for Military Commissions.”91 This guide

85

Hamdan, 126 S.Ct. at 2796-97 (citing Int'l Comm. of the Red Cross, 1 CUSTOMARY INT’L HUMANITARIAN LAW
355 (2005)).
86

Hamdan, 126 S.Ct. at 2757.

87

Id. at 2823; U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304, 315 (1936).
88

International Committee of the Red Cross (ICRC), Report On the Treatment by the Coalition Forces of Prisoners of
War and other Protected Persons by the Geneva Conventions in Iraq during Arrest, Internment, and Interrogation,
at § 3.2, Feb. 2004, available at http://www.informationclearinghouse.info/pdf/icrc_iraq.pdf; Taguba Report, supra
note 16, at § Regarding Part One of the Investigation, I Make the Following Specific Findings of Fact, ¶ 5
(describing “that between October and December 2003, at the Abu Ghraib Confinement Facility (BCCF), numerous
incidents of sadistic, blatant, and wanton criminal abuses were inflicted on several detainees. This systemic and
illegal abuse of detainees was intentionally perpetrated by several members of the military police guard force . . . .”);
Kim Lane Scheppele, Hypothetical Torture in the “War on Terrorism,” 1 J. NAT’L SECURITY L. & POL’Y 285, 291
(2005).
89

See Hamdan, 126 S.Ct. at 2757.

90
MCA, supra note 55.
91

13
helps military personnel interpret and implement the newly instated military commissions.92

Military judge advocates and attorneys from the Department of Defense and the Department of

Justice modeled the Manual for Military Commissions after the Manual for Courts-Martial.93

Thus, several components of the courts-martial trials have been adopted in the current military

commission procedures.94 For example, the Military Commissions Act requires that the military

commission tribunals have similar evidentiary rules as the courts-marital trials.95

Despite these positive additions to the Military Commissions Act, some changes have

sparked much debate.96 For example, terrorist suspects can be convicted on hearsay evidence

alone.97 Moreover, although the Military Commissions Act excludes statements obtained by

torture, it does allow statements that were procured through coercion if the “totality of the

circumstances renders the statements reliable and probative.”98

Furthermore, the Military Commissions Act suspends the writ of habeas corpus for

enemy combatant detainees.99 Interestingly, the writ has not been suspended since the American

OFFICE OF THE SECRETARY OF DEFENSE, MANUAL FOR MILITARY COMMISSIONS (2007), available at
http://www.defenselink.mil/pubs/pdfs/The%20Manual%20for%20Military%20Commissions.pdf [hereinafter
Manual for MC]; Pentagon Reveals Rules for Terror Suspect Trials, GUARDIAN UNLIMITED, Jan. 19, 2007, available at
http://www.guardian.co.uk/guantanamo/story/0,,1994380,00.html [hereinafter Pentagon Reveals].
92

Manual for MC, supra note 91, at Executive Summary.

93

Id.
94

Id.
95

Id. at I-2; see 10 U.S.C. § 949a(b)(2)(A); 10 U.S.C. § 949a(b)(2)(B); 10 U.S.C. § 949a(b)(2)(C); 10 U.S.C. §
949a(b)(2)(D); 10 U.S.C. § 949a(b)(2)(E).
96

See Pentagon Reveals, supra note 91.

97

MCA, supra note 55, at Stat 2608-2609. Where “…hearsay evidence not otherwise admissible under the rules of
evidence applicable in trial by general courts-martial may be admitted in a trial by military commission if the
proponent of the evidence makes known to the adverse party, sufficiently in advance to provide the adverse party
with a fair opportunity to meet the evidence, the intention of the proponent to offer the evidence, and the particulars
of the evidence (including information on the general circumstances under which the evidence was obtained).” Id.

98
Id. at Stat 2607.
99

Id. at Stat 2636.

14
Civil War,100 and under the United States Constitution the writ should only be suspended “when

in cases of rebellion or invasion the public safety may require it.”101 Additionally, it does not

allow detainees to use any provision of the Geneva Conventions to file a lawsuit against the

United States, its soldiers, or interrogators.102 In addition, torture is redefined in the Military

Commissions Act as:

an act specifically intended to inflict severe physical or mental pain or suffering

(other than pain or suffering incidental to lawful sanctions) upon another person
within his custody or physical control for the purpose of obtaining information or
a confession, punishment, intimidation, coercion, or any reason based on
discrimination of any kind, shall be punished, if death results to one or more of
the victims, by death or such other punishment as a military commission under
this chapter may direct, and, if death does not result to any of the victims, by such
punishment, other than death, as a military commission under this chapter may
direct.103

Although this language seems to be fairly consistent with the Convention against Torture,104 it is

yet to be determined how the United States will interpret this provision in practice.

V. IS THE UNITED STATES COMMITTING TORTURE?

One must look to policy within a jurisdiction to see how an administration is

implementing a statute. For example, the Bush administration declared that the Geneva

Conventions would not apply “to our conflict with al-Qaeda in Afghanistan or elsewhere in the

world because, among other reasons, a1-Qaeda is not a High Contracting Party to Geneva.105

100

See Ex parte Milligan, 71 U.S. 2 (1866).

101

U.S. CONST. art. 1, § 9, cl. 2.

102

MCA, supra note 55, at Stat 2602.

103

Id. at Stat 2627.

104

Convention against Torture, supra note 1, art. 1.

105
Memorandum from President Bush, To his National Security Advisors Concerning the Application of Geneva
Convention in the Afghanistan Conflict, ¶ 2(a), (Feb. 7, 2002), available at
http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.02.07.pdf (last visited March 4, 2007).

15
Although the Military Commissions Act has language similar to the Convention against Torture,

it does not mean the United States’ interpretation of torture is consistent with the international

interpretation. After all, no State is going to expressly declare in a statute that it condones

torture. 106 Rather, one must look for evidence of the use of torture in that jurisdiction.

As mentioned above, recent reports, which include United Nations’ findings, suggest that

the United States engages in torture (i.e. the CIA rendition program).107 This evidence implies

that the United States blatantly disregarded international law and domestic law by using torture

during interrogations of suspected terrorists prior to the enactment of the Military Commissions

Act. If the United States practiced torture before passing the Military Commissions Act, one can

infer that the United States still uses torture after the enactment of the Military Commissions Act.

Further, the government may be able to contend that statements obtained during the CIA

rendition program and the Guantanamo Bay detentions were procured through methods of

coercion, rather than torture.108 Using coercion to obtain information is permissible in some

instances under the Military Commissions Act.109 Specifically, it provides that “statements

obtained by torture are not admissible, but statements ‘in which the degree of coercion is

disputed’ may be admitted if reliable, probative, and the admission would best serve the interests

of justice.”110 Furthermore, throughout the Military Commissions Act, coercion is not explicitly

defined.111 The military judge is allotted also broad discretion in determining the difference

106

Bagaric & Clarke, supra note 1.

107

Report on Torture, supra note 22; Hibbits, supra note 22.

108

MCA, supra note 55, at Stat 2607.

109

Id.
110
Manual for MC, supra note 91, at I-1; see also 10 U.S.C. § 948r(b); MCA, supra note 55, at Stat 2607.
111

See MCA, supra note 55.

16
between torture and coercion based on the “totality of the circumstances.”112 This provision

allows the government to use semantics to bypass the ban on torture. Rather than calling its

techniques torture, the government will refer to them as ‘coercion,’ which is permissible under

the Military Commissions Act.

VI. ARGUMENTS FOR AND AGAINST TORTURE

Despite the universal condemnation against the practice of torture, evidence establishes

that nations use torture as an interrogation device.113 The logical question becomes, why? There

are several arguments for and against the use of torture.114 In Torture—The Case for Dirty Harry

and against Alan Dershowitz, Uwe Steinhoff asks whether torture can be morally justified:

What is so bad about torturing people, anyway? People also kill people. Soldiers
kill people, policemen kill people, doctors kill people, executioners kill people
and ordinary people kill people. Some of these killings are justified. So why
shouldn’t it be justified in some cases to torture people? After all, being killed
seems to be worse than being tortured.115

As Steinhoff suggests, it seems illogical to condone war, which involves killing enemy forces,

while condemning torture, which does not result in death, during the ‘War on Terror. Other

proponents for the use of torture as an interrogation tool argue that it is only acceptable to thwart

grave harm to others.116 This argument suggests that a “utilitarian calculation” must be made: “if

more lives can be saved by torture than are harmed by it, the act is [morally] justified.”117

112

Manual for MC, supra note 91, at III-8; see 10 U.S.C. § 948r.; MCA, supra note 55, at 2607.
113

Report on Torture, supra note 22; European Parliament Draft Report, supra note 26; Consideration of Reports,
supra note 29.
114

See Bagaric & Clarke, supra note 1, at 596-615; see also Philip N.S. Rumney, Is Coercive Interrogation of
Terrorist Suspects Effective? A Response to Bagaric and Clarke, 40 U.S.F. L. REV. 479, 483-485 (2006).
115

Uwe Steinhoff, Torture—The Case for Dirty Harry and against Alan Dershowitz, 23 J. OF APPLIED PHIL. 337, 337
(2006).
116
Bagaric & Clarke, supra note 1, at 584-85; Rumney, supra note 114, at 479.
117

Strauss, supra note 3, at 255.

17
Therefore, following utilitarian reasoning, saving innocent lives easily outweighs the life of a

suspected terrorist.118

Additionally, in Not Enough Official Torture in the World? The Circumstances in which

Torture is Morally Justifiable, authors Mirko Bagaric and Julie Clarke establish five variables to

consider before administering torture.119 These variables also establish the degree of torture that

should be used.120 The five variables are “(1) the number of lives at risk; (2) the immediacy of

the harm; (3) the availability of other means to acquire the information; (4) the level of

wrongdoing of the agent; and (5) the likelihood that the agent actually does possess relevant

information.”121 It is easy see how nations use the utilitarian balancing test to morally justify

using torture to prevent future terrorist attacks.

In a recent work by Alan Dershowitz, he expands the utilitarian argument.122 Dershowitz

portrays a scenario where the FBI can prevent the terrorist attacks of 9/11 (2001) from occurring

by using a form of non-lethal torture on an individual who has information regarding the

attacks.123 In this scenario, Dershowitz describes the following technique to be used: “a sterilized

needle inserted under the fingernails to produce unbearable pain without any threat to health or

life.”124 He provides that it is a “simple cost-benefit analysis”; it is better to torture one

individual than to allow thousands of innocent people to die.125

118

Id.
119

Bagaric & Clarke, supra note 1, at 585.

120

Id.
121

Id.
122

ALAN M. DERSHOWITZ, WHY TERRORISM WORKS, CHAPTER FOUR: SHOULD THE TICKING BOMB TERRORIST BE TORTURED? 131-
63 (2002).
123
Id. at 143-44.
124

Id. at 144.
125

18
 Dershowitz contends that individuals are visibly repulsed by the example of non-lethal

torture that he provides in his scenario, but are more accepting to discussions of the death

penalty.126 Dershowitz explains that the condemned prisoner no longer faces the “breaking of the

neck, burning of the brain, or the bursting of internal organs.”127 Moreover, the prisoner goes “to

sleep” at the hand of medicine.128 “All this tends to cover up the reality that death is forever

while nonlethal pain is temporary. In our modern age death is underrated, while pain is

overrated.”129 Therefore, Dershowitz suggests that people’s views on torture are contradictory to

their views on corporal punishment. Moreover, if Americans can justify punishing individuals

through the death penalty, it is counter-intuitive that Americans disapprove of torture, which

inflicts pain and not death.

Uwe Steinhoff expands this argument in his article by offering that people cannot relate

with those who are dead.130 Steinhoff provides that we do not know what it truly means to be

dead, “and there is certainly no possibility to feel dead” (emphasis in original).131 Individuals

however, are able to feel pain.132 “Therefore, if we see how pain is inflicted on another person,

we can feel quite literally com-passion. There is no such compassion possible with the dead (we

can only feel sorry for them . . . ).”133

Id.
126

Id. at 148.
127

DERSHOWITZ, supra note 122, at 149.

128

Id. at 148-49.
129

Id. at 149.
130

Steinhoff, supra note 115, at 340.

131

Id.
132

Id.
133

Id.

19
 Perhaps this ability to relate to pain is the reason why people find torture morally

reprehensible. Pain is experienced physically, while death is experienced in the abstract. People

can appreciate the unbearable pain caused by torture, but people can only know death. However,

if people could choose pain over death, then they would most likely choose pain. Therefore,

Dershowitz and Steinhoff agree that torture should be allowed because it is not as bad as

sentencing criminals to death. Finally, proponents also justify torture through the self-defense

doctrine.134 This doctrine allows an individual to use deadly force to save one’s life or to save

others.135 Proponents of this argument provide that it should be permissible to use torture to

protect others from the dangers of terrorism.136

Conversely, there are several arguments against the practice of torture, even as an

interrogation tool to procure information from suspected terrorists. 137 First of all, torture is

morally repulsive.138 It is detestable for states to deliberately inflict pain and suffering on any

individual, even a suspected terrorist.139 This is evidenced by the global ban on torture.140

Secondly, by practicing torture, a state abandons the rule of law for the rule of force.141

Instead of using the legal system to deal with terrorism, some states, including the United States

as indicated above, are using torture to procure information regarding terrorist attacks.142 In
134

Strauss, supra note 3, at 258.

135

Id.
136

Id.
137

Rumney, supra note 114, at 512-13. Strauss, supra note 3, at 260-65.

138
Strauss, supra note 3, at 253.
139

Id.
140

Convention against Torture, supra note 1.

141

Strauss, supra note 3, at 254.

142

Report on Torture, supra note 22, ¶ 42-46; European Parliament Draft Report, supra note 26, ¶ 40 ;

20
other words, nations that use torture to procure information are acting similarly to terrorists

because in both instances, pain and suffering are used to achieve the end result.143

Thirdly, nations, such as the United States, that engage in torture lose their ability to

protect their own citizens abroad from being tortured.144 The United States is one of the five

permanent members of the Security Council for the United Nations.145 The Security Council has

the responsibility to maintain international peace and security.146 It is thus logical to infer that

when the United States was accused of using torture in places such as Iraq and Guantanamo Bay,

it lost its credibility to promote peace and security internationally.147 Other countries could

reasonably deduce that if a permanent member of the Security Council engages in torture, they

too are free to do so.148 Thus, by employing torture, the United States places its citizens abroad

at risk of facing similar treatment from other countries that use torture as an interrogation tool.149

Finally, opponents of torture argue that self-defense cannot be used as a justification.150

Under the self-defense doctrine, the use of deadly force is only justified because of an imminent

threat of harm. However, torturing a suspected terrorist for information he/she may or may not
Consideration of Reports, supra note 29.
143

Strauss, supra note 3, at 256.

144

Id. at 257.
145

U.N. Security Council Webpage, Members, available at http://www.un.org/sc/members.asp (last visited Jan. 22,
2008) [hereinafter Security Council Webpage, Members].
146

U.N. Security Council Webpage, Functions and Powers, available at

http://www.un.org/Docs/sc/unsc_functions.html (last visited March 4, 2007) [hereinafter Security Council Webpage,
Functions].
147

See Strauss, supra note 3, at 257.

148
See Memorandum from William H. Taft, IV, Legal Adviser, U.S. Dept. of State, to Counsel to the President, on
Comments on Your Paper on the Geneva Convention, 1-2 (Feb. 2, 2002), available at
http://www.fas.org/sgp/othergov/taft.pdf (last visited March 4, 2007) [hereinafter Comments on Your Paper];
Strauss, supra note 3, at 257.
149

See Comments on Your Paper, supra note 148; Strauss, supra note 3, at 257.
150

Strauss, supra note 3, at 260.

21
have does not constitute an imminent threat.151 Therefore, if a terrorist does not have

information, they do not pose an imminent threat. Thus, proponents of the use of torture cannot

rely on the doctrine of self-defense.

After assessing the arguments both for and against the use of torture as an interrogation

tool, the opponents’ arguments are more compelling. Besides being morally reprehensible,

peace and security of the international community depends on every nation’s ability to prevent

torture.152 Furthermore, as mentioned below, the use of torture is ineffective in procuring

information.

VII. FALSE CONFESSIONS

As mentioned above, it is quite possible that torture has been used to procure information

regarding terrorist attacks.153 In the context of using torture to gain information regarding prior

terrorist acts, there are often concerns of false confessions.154 Psychologists have studied the

phenomenon of false confessions in the framework of coercive police interrogation.155 This

paper suggests that the phenomenon of false confessions is just as likely to occur when military

personnel use torture to procure information about past terrorist attacks. The psychological and

physical pressures induced by torture are similar, yet more amplified in the torture context, and

thus, have a greater likelihood of causing false confessions.

151

Id.
152

Security Council, Members, supra note 145.

153

Consideration of Reports, supra note 29.

154
See Roach and Trotter, supra note 6, at 981; see also Kassin & Kiechel, supra note 4; Blagrove, supra note 4;
Kassin et al., supra note 4; Russano et al., supra note 5; Leo & Ofshe, supra note 5.
155

Kassin & Kiechel, supra note 4, at 125; Blagrove, supra note 4, at 48; Kassin et al., supra note 4, at 187; Leo &
Ofshe, supra note 5, at 430-432.

22
 In the United States, it is difficult to determine how many wrongful convictions have

occurred as a result of false confessions.156 The three main reasons for this difficulty are “(1) no

organization collects statistics on the annual number of interrogations and confessions or

evaluates the reliability of confession statements; (2) most interrogations leading to disputed

confessions are not recorded; and (3) the ground truth (what really happened) may remain in

dispute even after the defendant has pled guilty or been convicted.”157 However, the Innocence

Project estimates that defendants have made false confessions in over 25% of wrongful

convictions that have been overturned by DNA evidence.158

There are two types of coerced false confessions, coerced-compliant and coerced

internalized false confessions.159 If an individual confesses to prevent a negative interrogation,

that is considered a coerced-compliant false confession.160 Psychologically speaking, coerced-

compliant false confessions occur when an individual “believe[s] that the short-term benefits of

confessing—such as being left alone, fed, or released—outweigh the long-term costs associated

with prosecution, the loss of reputation, and incarceration.”161 It is logical to suggest that if a

suspected terrorist is being tortured, he or she will give false information to avoid further pain

and suffering.162 This is similar to the coerced-compliant false confession given in the

156

Leo & Ofshe, supra note 5, at 431.

157

Id.
158

Innocence Project: Fix the System, False Confessions & Mandatory Recording of Interrogations, available at
http://www.innocenceproject.org/fix/False-Confessions.php (last visited March 4, 2007).
159

Saul M. Kassin, Confessions: Psychological and Forensic Aspects, in INTERNATIONAL ENCYCLOPEDIA OF THE SOCIAL
BEHAVIORAL SCIENCES § 3.3 (Smelser & Baltes eds. 2001) [hereinafter Kassin, Confessions].
160
Kassin, Confessions, supra note 159.
161

Id.
162

Id.

23
interrogation context.163 Furthermore, this makes sense on a psychological level, because in the

case of an individual being tortured, the short-term benefit of stopping severe physical and/or

mental pain outweighs the long-term cost of incarceration.

Coerced-internalized false confessions occur when an “innocent person—anxious, sleep-

deprived, confused, and subjected to a highly suggestive interrogation that often includes the

presentation of false evidence—actually comes to believe that he or she committed the crime.”164

Although this type of confession is less likely to occur, it is still possible that suspected terrorists

are tortured while being presented with false evidence in order to induce a false belief that they

are guilty of committing some terrorist attack.

In the past, false confessions have resulted from the use of torture during terrorist

investigations.165 The most famous example of this phenomenon occurred in the British case

known as the Guildford Four.166 In October and November of 1974, the Irish Republican Army

(IRA) bombed several pubs in England and killed seven people.167 Four individuals—Paul Hill,

Carole Richardson, Gerald Conlon, and Patrick Armstrong—were arrested for the bombings and

convicted of murder.168 During the trial, no evidence was admitted to show that these individuals

were associated with the IRA.169 Rather, the prosecution relied mostly on the confessions

obtained from each of the defendants.170

163

Id.
164

Id.
165

See Roach & Trotter, supra note 6, at 967-977.

166
Id. at 968-969.
167

CHARLES PATRICK EWING & JOSEPH T. MCCANN, MINDS ON TRIAL: GREAT CASES IN LAW AND PSYCHOLOGY 45 (2006)
[hereinafter MINDS ON TRIAL]; Roach & Trotter, supra note 6, at 977.
168

Roach & Trotter, supra note 6, at 977-988.

169

MINDS ON TRIAL, supra note 167, at 49.

170

24
 After nearly thirteen years of public scrutiny, the Guildford Four case was re-opened.171

After reviewing the case, it was determined that it was highly possible that the four defendants

wrongly confessed to the IRA bombings, which occurred in 1974.172 For example, Hill claimed

that he wrongly confessed after a gun was held to his head during the twenty-four hour

interrogation and threats were made that his pregnant girlfriend would be harmed.173 In the end,

all members of the Guildford Four were exonerated.174

Furthermore, there has been much psychological research investigating the phenomenon

of false confessions.175 In an empirical study, The Consequences of False Confessions:

Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation,

Richard A. Leo and Richard J. Ofshe reviewed sixty cases that involved disputed confessions.176

All of the selected cases were chosen because the individuals were arrested based primarily on

their confessions and because each of their confessions were later determined to be a “proven

false confession” or a “highly likely false confession.”177

Id.
171

Id. at 53.
172

Id.
173

MINDS ON TRIAL, supra note 167, at 47-48.

174

Id. at 53-54.
175

See Kassin & Kiechel, supra note 4; Blagrove, supra note 4; Kassin et al., supra note 4; Russano et al., supra note
5; Leo & Ofshe, supra note 5.
176
Leo & Ofshe, supra note 5, at 435.
177

Id. at 436.

25
 Thirty-four of these cases were considered “proven false confessions,” because the

accused individuals were exonerated by independent pieces of evidence.178 “For example, a

defendant’s confession was classified as proven false if the murder victim turned up alive.”179

Findings from these cases depicted four sub-types of proven false confessions.180 The

first type of proven false confession occurs when the suspect confesses to a crime that did not

take place.181 Secondly, proven false confessions occur when other evidence is produced that

clearly demonstrates that the defendant is not the perpetrator of the crime.182 Thirdly, the actual

perpetrator was determined and guilt was ascertained.183 Finally, the fourth sub-type of proven

false confessions occurs when scientific evidence is found that exonerates the defendant.184

This information is useful because it provides evidence of false confessions arising after

police interrogations were performed in the United States.185 Additionally, this review provides

explanations for why false confessions occur.186 For example, “interrogators sometimes become

so committed to closing a case that they improperly use psychological interrogation techniques

to coerce or persuade a suspect into giving a statement that allows the interrogator to make an

arrest.”187

178

Id.
179

Id.
180

Id. at 449.
181

Leo & Ofshe, supra note 5, at 449.

182

Id.
183

Id. at 429.
184

Id.
185
Id.
186

Leo & Ofshe, supra note 5, at 429.

187

Id. at 440.

26
 Additionally, an empirical review of research offers reasons for false confessions that

parallel those proffered in real life occurrences of false confessions.188 In The Psychology of

Confessions: A Review of the Literature and Issues, Saul M. Kassin and Gisli H. Gudjonsson,

look at a compilation of research to address false confessions and other related issues.189 This

literature review provides that in controlled laboratory experiments, fatigued and sleep-deprived

individuals that were isolated for prolonged periods of time were more susceptible to

manipulation.190 Additionally, long periods of detention cause individuals to become more

fatigued, to face more despair, and to be more uncertain about their future, which likely increases

their vulnerability to giving false confessions.191

This evidence suggests that individuals exposed to methods of torture, such as sleep-

deprivation and isolation, for prolonged periods of time are more susceptible to manipulation. 192

Furthermore, this evidence also implies that suspected terrorists tortured for long periods of time,

such as those detained at Guantanamo Bay, are more vulnerable to the pressures that induce false

information.193

A laboratory experiment conducted by Saul M. Kassin and Katherine L. Kiechel in 1996

suggested that false incriminating evidence may cause individuals to accept guilt for an act they

were not responsible for.194 In this study, 79 undergraduates (40 male, 39 female), participating
188

Saul M. Kassin & Gisli H. Gudjonsson, The Psychology of Confessions, A Review of the Literature and Issues, 5
PSYCHOL. SCI. IN THE PUB. INTEREST 33 (2004).
189

Id.
190

Blagrove, supra note 4, at 54-55; Kassin & Gudjonsson, supra note 188, at 53.
191

See Kassin & Gudjonsson, supra note 188, at 53 (citing R.A. Leo, Inside the Interrogation Room, 86 J. OF CRIM. L.
& CRIMINOLOGY 266-303 (1996b)).
192
Blagrove, supra note 4, at 54-58; see Kassin & Gudjonsson, supra note 188, at 53.
193

See Blagrove, supra note 4, at 54-56; Kassin & Gudjonsson, supra note 188, at 53; Kassin & Kiechel, supra note 4;
Blagrove, supra note 4; Kassin et al., supra note 4.
194

27
for extra credit, were given typing tests on a computer.195 The participants typed at two different

speeds and were not allowed to touch the “ALT” key because it would cause the computer to

crash, and lose the experiment.196 After 60 seconds, the computer would cease to function, and

the experimenter accused the subject of pressing the “ALT” key.197 All participants were

innocent and initially denied pressing the key.198

Kassin and Kiechel varied two independent variables, the subjects’ level of vulnerability

(or “their subjective certainty concerning their own innocence”) and the use of false

incriminating evidence.199 The “vulnerability” of the subject was measured by varying the pace

of the task, either “slow and relaxed” or “frenzied.”200 The use of “false incriminating evidence”

was manipulated by implementing either a false-witness situation, where a confederate testifies

to seeing the subject pressing the “ALT” key, or a no-witness situation, where the same

confederate states that she did not see what happened.201

The study assessed the dependent measures, compliance and internalization.202 For the

compliance component, the subject was asked by the experimenter to sign a handwritten

confession created by the experimenter.203 If the subject refused to confess, he/she was asked a

Kassin & Kiechel, supra note 4, at 125.

195

Id. at 126.
196

Id.
197

Id.
198

Id.
199

Kassin & Kiechel, supra note 4, at 126.

200
Id.
201

Id.
202

Id.
203

Id.

28
second time.204 To measure internalization, the experimenter and subject left the room, meeting a

confederate in the reception area.205 The experimenter told the confederate (who was blind to the

subject’s behavior during the experiment) that the subject would have to reschedule for another

session.206 The experimenter then left the room while the confederate asked the subject what had

occurred during the experiment.207 The responses were recorded and coded by experimenters

blind to the subject’s condition as responses suggesting or not suggesting internalized guilt.208

The results of the study indicated that 69% of the 75 participants signed confessions and

28% exhibited internalized guilt.209 The data also showed that the individuals in the slow-

pace/no-witness control group were the least likely to confess or internalize guilt, whereas, the

fast-pace/witness group were the most likely to demonstrate compliance or internalization.210

As Kassin and Kiechel concede, there are several limitations to these findings.211 For

example, how do these results generalize to the interrogation process of criminal suspects?212

The consequence of falsely confessing to pressing the “ALT” key is miniscule to the

consequence of falsely confessing to a criminal act, such as homicide or stealing.213

204

Kassin & Kiechel, supra note 4, at 126.

205

Id..
206

Id.
207

Id.
208

Id.
209
Kassin & Kiechel, supra note 4, at 127.
210

Id..
211

Id.
212

Id.
213

Id.

29
Furthermore, the ramifications in both instances are at opposite ends of the spectrum.214 In the

experiment the confession causes guilt, while in the criminal setting, the confession leads to

incarceration or death. Finally, Kassin and Kiechel admit that the compliance rates in the present

experiment are high and may have resulted because of the limited consequences involved in the

experiment.215

Despite these limitations, this study still presents evidence which supports the conclusion

that false confessions occur more often following the presentation of “false incriminating

evidence” during interrogations.216 The presentation of false incriminating evidence is a common

interrogation technique employed by police officers.217 In the context of interrogating terrorist

suspects, it is logical to infer that the suspects are susceptible to similar interrogation techniques.

Therefore, if terrorist suspects are presented with “false incriminating evidence” during their

interrogations, it is plausible that they may falsely confess in the face of such evidence.

Concededly, as Kassin and Keichel suggest, the consequence of falsely confessing to a

terrorist attack is grave in comparison to wrongly confessing to ruining an experiment.

However, as the experiment implies, individuals exposed to greater pressures (i.e. fast

pace/witness control group) are more likely to confess or internalize guilt.218 In the context of

interrogating terrorists, the pressure used by many nations is torture.219 Thus, it can be argued

that an individual will choose the consequential effect of falsely confessing to a terrorist act, i.e.

214

See Kassin & Kiechel, supra note 4, at 127.

215

Id..
216

Id.
217
Id.
218

Id..
219

See U.N. Doc. A/61/40, supra note 2.

30
imprisonment, over being continually tortured. Specifically, when faced with wrongly

confessing to a crime or enduring physical and/or emotional suffering, it is reasonable to suggest

that the suspect will choose to confess.

In another experiment, Kassin and his colleagues assessed how the interrogator’s

presumption of guilt affected his/her behavior during the interrogation.220 In this study,

psychology students, receiving extra credit, acted as either interrogators or suspects.221 The

experimenter described to the interrogator a mock theft that had occurred on campus.222 The

interrogators were divided into two conditions: (1) guilty expectation condition, where the

experimenter told the interrogator that four out of five suspects were guilty or (2) innocent

expectation condition, where the experimenter told the interrogator that one out of five suspects

was guilty.223

The experimenter told the interrogators to devise plans for their interviews.224 The

interrogators were asked to choose six questions from a list of 13 questions.225 They were also

asked to choose six interrogation techniques from 13 possible choices.226 Some examples of the

techniques included: “making repeated accusations, exposing inconsistencies in the suspect’s

story, threatening to involve others… [and] appealing to the suspect’s self-interest...”227 The

220

Kassin, et al., supra note 4, at 187.

221

Id. at 190.
222

Id. at 191.
223
Id.
224

Id.
225

Kassin, et al., supra note 4, at 191.

226

Id. The tactics were derived from Inbau et al., Criminal Interrogation and Confessions 2001.
227

Id.

31
suspects were assigned to either the guilty condition or the innocent condition.228 In the guilty

condition, the suspects actually committed the mock theft, whereas in the innocent condition, the

suspects were exposed to the area where the crime had occurred, but were not given information

regarding the crime.229 All participants were instructed not to confess and were offered gift

certificates if the interrogators viewed them as innocent.230

The results suggest that the interrogators’ expectations influence their behavior

throughout the interrogation process.231 Interrogators in the guilty expectation control group

selected more “guilt-presumptive questions, used more techniques at the outset of interrogation

and, in the end, judged the suspects guilty.”232 The results also demonstrated that the actual guilt

or innocence of the suspect did not affect the interrogators’ behaviors.233 Furthermore, the

evidence showed that interrogators exerted the most pressure on individuals who were actually

innocent.234

Of course, there are limitations to this laboratory study.235 Skeptics may question the

reliability of this study to actual “police-suspect interactions.”236 For example, the participants in

this experiment were college students aware of the simulated crime scene.237 Further, the stakes

228

Id.
229

Id.
230

Kassin et al., supra note 4, at 192.

231

Id. at 195.
232

Id.
233

Id. at 195-196.
234

Id. at 197.
235

Kassin et al., supra note 4, at 200.

236

Id.
237

Id.

32
are greater in real criminal investigations than in simulated experiments.238 Students do not have

the same incentives as interrogators do to perform the interrogations, and thus, the experiment is

limited to the good faith of the participants.239

In spite of these limitations, the results of the experiment are still applicable to the real-

life interrogation of suspected terrorists. In the context of counter-terrorism, it is likely that those

interrogating suspected terrorists presume that the suspects are guilty. The results proffered by

the Kassin et al. study suggest that these interrogators are more likely to use guilt-presumptive

questions, employ more interrogation techniques, and find more suspects guilty.240 The Kassin et

al. study also demonstrates that interrogators presume guilt regardless of the suspected terrorists’

actual guilt or innocence.241 Furthermore, the experiment suggests that interrogators pressure

innocent suspects the most. Therefore, if interrogators are using torture as a form of pressure,

then innocent suspects are the most likely people to be tortured. This presents major human

rights concerns if countries like the United States are indeed torturing suspected terrorists.

VIII. A FORM OF TORTURE – SLEEP DEPRIVATION

In addition to false confession research, psychologists have also studied the effects of

sleep deprivation during interrogations.242 The effects of sleep deprivation during interrogations

are relevant for the purposes of this paper since the United Nations has recently published

findings indicating that the United States has authorized ‘sleep adjustments’ as an enhanced

interrogation technique.243 Furthermore, international law prohibits the use of interrogation

238

Id.
239

Id.
240
See Kassin et al., supra note 4, at 200.
241

See id.
242

Blagrove, supra note 4, at 48.

243

33
techniques like sleep deprivation over a protracted time whether employed individually or in

combination with other forms of enhanced interrogation techniques, such as “prolonged stress

positions and isolation, sensory deprivation, hooding, exposure to cold or heat…, 20-hour

interrogations, removal of clothing and deprivation of all comfort and religious items, forced

grooming, and exploitation of detainees’ individual phobias.”244 Simply put, these techniques

cause severe physical and mental suffering and are considered forms of torture.245

One experiment by Mark Balgrove, addressing the effect of sleep deprivation,

recommended that police interrogations should not occur in situations where the individuals have

been deprived of sleep.246 The experiment contained three separate studies.247 Two of the studies

involved one night without sleep, while the third study involved two nights without sleep.248 In

all of the studies, individuals were divided into two groups based on their “self-reported habitual

sleep durations.”249 Members of one group stayed in the laboratory all night and were not

allowed to sleep, while the other group members were allowed to sleep at their respective

homes.250

To test for suggestibility, each group listened to an audiotape recording illustrating a

short story about a robbery.251 Participants were required to immediately give free recall about

U.N. Doc A/61/40, supra note 2, at ¶ 84, § 13.

244

Id.
245

See id; see also supra note 29.

246
Blagrove, supra note 4, at 48.
247

Id. at 50.
248

Id.
249

Id.
250

Id.
251

Blagrove, supra note 4, at 50.

34
the story to ensure that all groups originally learned the same information.252 After fifty minutes,

the suspects provided the experimenter with another free recall of the events occurring on the

audiotape.253 The individuals were then given 20 leading questions that could not be answered

from information provided by the story.254 Then the suspects were given negative feedback

regarding their responses, were urged to give accurate answers, and were asked the questions

over again.255

Although this experiment is fairly complex, the overall results indicate that sleep

deprivation enables interrogative suggestibility.256 Specifically, the results demonstrated that

individuals who were deprived of 43 hours of sleep were the most susceptible to leading

questions.257 Importantly, individuals who were deprived of only 21 hours of sleep also showed

a “trend” towards suggestibility.258 Furthermore, the experiment provided that sleep deprivation

reduces individuals’ abilities to “discriminate and detect discrepancies between original and

misleading information.259

As insinuated above, there are several limitations consistently found throughout

laboratory experiments. For example, experimental research usually involves participants who

have received some form of compensation, i.e. extra credit or money.260 Many skeptics also find

252

Id.
253

Id.
254

Id. at 49-50.
255
Id. at 50.
256

Blagrove, supra note 4, at 48, 53.

257

Id. at 48, 53.

258

Id.
259

Id.
260

35
it difficult to relate psychological findings to real life scenarios.261 In this particular study,

Blagrove concedes that sleep deprivation could increase the probability of a truthful confession

because sleep deprivation reduces cognitive and motivational consequences.262

The results of this experiment have major implications on the interrogation techniques

used on suspected terrorists.263 Although Blagrove concedes that sleep-deprivation may produce

true confessions, the results of the experiment more favorably suggest that the use of sleep-

deprivation as a form of torture negatively impacts the interrogation process.264 Specifically, the

longer a suspected terrorist goes without sleep, the more likely that individual will be susceptible

to interrogative suggestibility.265 Thus, during an interrogation concerning suspected terrorists,

individuals who have gone without sleep are less able to discern between accurate and

misleading information.266 Furthermore, the United Nations’ findings indicate that the United

States has implemented sleep-deprivation as an interrogation technique.267 Therefore, it is

reasonable to infer that through the use of sleep-deprivation as a form of torture that the United

States has manipulated suspected terrorists into believing information that is inaccurate.

See Kassin & Kiechel, supra note 4; Blagrove, supra note 4; Kassin et al., supra note 4; Russano et al., supra note
5.
261

See Kassin & Kiechel, supra note 4; Blagrove, supra note 4; Kassin et al., supra note 4.
262

Blagrove, supra note 4, at 56.

263
See Kassin & Kiechel, supra note 4; Blagrove, supra note 4; Kassin et al., supra note 4.
264

See Blagrove, supra note 4.

265

See id.
266

See id.
267

See U.N. Doc. A/61/40, supra note 2, at ¶ 84, § 13.

36
 As previously mentioned, many individuals suggest that empirical research cannot be

generalized to real-life.268 However, even the United States government has conceded that

coercive methods have their limitations.269 In the 1950s, the CIA began conducting field trials

and research to investigate human behavior and psychology.270 This work was conducted

to find new ways of gathering information through the interrogation of detainees.271

As a result of this research, two manuals were produced by the CIA.272 The first manual,

was created in 1963 and is entitled KUBARK Counterintelligence Interrogation. The second

manual, known as the Human Resource Exploitation Training Manual, was created in 1983.273

The second manual refers to the futility of coercion: “[e]experience indicates that the use of force

is not necessary to gain cooperation of sources. Use of force is a poor technique, yields

unreliable results, may damage subsequent collection efforts, and can induce the source to say

what he thinks the interrogator wants to hear.”274 Furthermore, the KUBARK manual makes

specific references to the phenomenon of false confessions.275 “Intense pain is quite likely to

produce false confessions, concocted as a means of escaping from distress.” The research of the

government and the subsequent manuals help further the reliability on empirical research of false

confessions and interrogative suggestibility in the context of torture.

268

See Kassin & Kiechel, supra note 4; see Blagrove, supra note 4; see Kassin et al., supra note 4; see Russano et
al., supra note 5.
269

Rumney, supra note 114, at 493.

270

Id. at 492.
271
Id.
272

Id.
273

Id.
274

Rumney, supra note 114, at 492.

275

Id. at 494.

37
 CONCLUSION

Torture is morally reprehensible and also futile. It is prohibited throughout the

international community and many nation-states have enacted legislation domestically

prohibiting it. However, there is abundant evidence indicating that torture is still occurring

throughout the world. The question remains why.

The previously mentioned research strongly suggests that using torture in ineffective.

For one reason, using torture as an interrogation tool produces inaccurate information such as

false confessions. Additionally, specific techniques of torture, such as sleep-deprivation, cause

interrogative suggestibility. In plain language, an individual being tortured will say anything to

stop the pain.

When dealing with something as grave as the ‘War on Terror’, it is easy to dehumanize

suspected terrorists. It is almost as easy to treat them cruelly, and perhaps submit them to torture

in the hopes of saving innocent lives. It is important to keep in mind that these are suspected

terrorists, and whether they have committed acts of terrorism is undetermined. The United States

presumes innocence until proven guilty and this principle should apply universally.

Therefore, states should not use torture under any justification. Not only does the

international community proscribe torture, empirical research shows that it does not work.

Specifically, the United States would be better off by complying with international and domestic

law because it would procure more accurate information from suspects if it used more reliable

techniques. By not following international law, the United States creates a risk that its citizens

might receive the same treatment from other countries using torture. Finally, states must enact

legislation and ensure that they enforce existing legislation prohibiting torture, even if it means

punishing their own citizens.

38