Coercing Voluntariness

Abstract

In recent years, the issue of coercive interrogations has generated a great deal of debate and commentary in both the popular media and academia. However, the issue of how the United States’ courts, in criminal cases, should treat statements that defendants have given abroad to foreign law enforcement bodies or security services, especially when those statements may have been the product of a coercive interrogation, has not received adequate scholarly attention. While not arising exclusively in the context of a war on terrorism, the issue of foreign confessions has taken on a renewed relevance in light of current events, and is compounded by the perceived extraordinary nature of terrorist crimes themselves. In particular, two recent federal cases, United States v. Abu Ali, in which the defendant was held and interrogated in Saudi Arabia for a year and a half on suspicion of involvement with an al-Qaeda cell, and United States v. Abu Marzook, in which one defendant had previously been arrested, interrogated, and convicted in Israel on charges of membership and support of Hamas, have addressed the question of when a confession obtained abroad by a foreign agency will be admitted into evidence. Both federal courts allowed the admission of the statements made abroad despite the defendants’ respective claims that their confessions were the product of coercive interrogation.

This Article aims to demonstrate that the legal mechanism in place for assessing whether a statement obtained abroad was improperly coerced, namely, the voluntariness test, is unwieldy and ultimately too subjective. It concludes by making several proposals intended to ensure that coerced confessions made abroad to foreign agents are not improperly admitted in federal criminal trials.

Keywords: Terrorism Prosecutions, Criminal Procedure, Coercive Interrogation