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A Cup of Coffee After the Waterboard: Seemingly Voluntary Post-Abuse Statements

36 Pages Posted: 9 Jan 2011 Last revised: 2 May 2014

Gregory S. McNeal

Pepperdine University School of Law; Pepperdine University - School of Public Policy

Date Written: July 9, 2010

Abstract

This symposium article focuses on the impact that abusive and coercive interrogation techniques will have on the admissibility of statements derived from non-abusive, non-coercive interviews. Were subsequent, legal, and humane interviews indelibly impacted by the "taint of torture" regardless of how they were conducted? Accordingly, are statements made in those subsequent non-coercive settings inadmissible on voluntariness grounds? This article first details the coercive interrogation techniques authorized against suspected terrorists detained in Guantanamo Bay Cuba. Next, the article details the changing circumstances of detainee custody and treatment to set the stage for a discussion of whether earlier abuses, if corroborated, will invalidate subsequent statements made by the victims of that abuse. I explain how the U.S. government, recognizing that its earlier interrogation tactics may have jeopardized its legal case against the detainees implemented "clean teams." Building off of these factual premises, I next synthesize the tests a judge will need to apply in order to determine the admissibility of seemingly voluntary post-abuse statements. In this synthesis I highlight how factors such as the time between statements, change in location, change in identity of interrogators, nature of the previous unlawful interrogation methods, and use of illegally procured statements as leverage in obtaining new statements each impact the admissibility analysis.

Keywords: KSM, Khalid Sheikh Mohammed,coercion, coercive interrogation, admissibility, taint of torture, cat out of the bag, totality of the circumstances, terrorism, guantanamo, waterboard, voluntariness, voluntary, involuntary, interviews, admissibility, inadmissible, how long does the taint of torture last

Suggested Citation

McNeal, Gregory S., A Cup of Coffee After the Waterboard: Seemingly Voluntary Post-Abuse Statements (July 9, 2010). DePaul Law Review, Vol. 59, p. 943, 2010. Available at SSRN: https://ssrn.com/abstract=1737548

Gregory S. McNeal (Contact Author)

Pepperdine University School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

Pepperdine University - School of Public Policy ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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