Imagining the Unimaginable: Torture and the Criminal Law

48 Pages Posted: 22 May 2015

Date Written: May 20, 2015


This article examines use of torture by the U.S. government in the context of the late 20th century preventive turn in criminal justice. Challenging the assumption that the use of “enhanced interrogation tactics” in the war on terror was an exceptional deviation from accepted norms, this article suggests that this deviation began decades before the terror attacks, in the context of conventional criminal procedure. I point to the use of the “ticking time bomb hypothetical,” and its connection to criminal procedure’s “kidnapping hypothetical.” Using case law and criminal procedure textbooks I trace the employment of that narrative over several decades, prior to 2001, including growing support for the use of physical brutality in obtaining information from criminal suspects. Far from “unimaginable,” I argue that the use of torture had been imagined, and gained increasing acceptance, in the increasingly preventive focus of these standard criminal procedural debates.

Keywords: Torture, Terrorism, Miranda, Prevention, Human Rights, Interrogation

Suggested Citation

Laguardia, Francesca, Imagining the Unimaginable: Torture and the Criminal Law (May 20, 2015). Columbia Human Rights Law Review, Vol. 46, No. 3, 2015, Available at SSRN:

Francesca Laguardia (Contact Author)

Montclair State University ( email )

Upper Montclair, NJ 07043
United States

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