Reliability, Waterboarded Confessions and Reclaiming the Lessons of ‘Brown V. Mississippi’ in the Terrorism Cases

Abstract

This essay traces a "protection gap" for terrorism suspects to a shift away from a concern with the reliability of confessions in the Supreme Court's post-"Miranda" jurisprudence. It argues that in order to avoid results plainly inconsistent with the Court's earlier repudiation of torture almost 75 years ago in "Brown v. Mississippi," notions of due process must be interpreted more broadly, consistent with "Brown's" recognition of an absolute prohibition on torture in our adversarial system.

Keywords: torture, waterboarding, Miranda, Brown v. Mississippi, due process, reliability, confessions, terrorism