Extraterritorial Interrogation: The Porous Border between Torture and U.S. Criminal Trials
58 Pages Posted: 14 Oct 2014
Date Written: August 1, 2007
This Article argues that post 9-11 terrorism prosecutions belie the presumption that U.S. courts are highly skeptical of confessions elicited during interrogation by foreign governments that routinely torture. The markedly increased transnational cooperation in the prosecution of crimes, as well as practices such as “extraordinary rendition” and detention at secret “black site” prisons abroad, have blurred sovereign responsibility for abusive interrogation techniques abroad. Although much scholarship has focused on whether the fight against terrorism should be governed by the war or criminal law paradigm, few have analyzed the actual implications for domestic criminal trials of the United States' increased reliance on foreign interrogations in the war on terror. In recent cases, courts assessing defendants' claims of abuse by foreign interrogators in terrorism cases have failed to conduct a sufficiently rigorous inquiry into the voluntariness of confessions obtained through foreign interrogation and have failed to set a sufficiently exacting standard for determining whether U.S. actors play a constitutionally significant role in extraterritorial investigations.
That is, ignoring factors such as incommunicado detention and solitary confinement and failing to consider relevant evidence bearing on the credibility of foreign witnesses (for example, the foreign country's human rights records), courts have increased the risk of error in voluntariness determinations and diminished protections against the taint of torture in U.S. criminal trials. These developments signal a potential turning point in U.S. criminal procedure: diminished protections against investigation through torture. This potential crack in the constitutional bulwark against torture creates a perverse incentive for the United States to export interrogation to foreign entities that torture in order to obtain “flexibility” in interrogation, while insulating interrogation practices from the scrutiny applied to domestic law enforcement activities. As a result, the ability of domestic courts to deter government misconduct is circumscribed and the prospect of torture increased.
Keywords: torture, confessions, interrogation, Miranda
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