85 Pages Posted: 17 Jan 2003

See all articles by Marcy Strauss

Marcy Strauss

Loyola Law School Los Angeles

Date Written: January 2003


Since September 11, numerous scholars and media commentators have suggested that the United States engage in more "rigorous" interrogation tactics, including the use of torture, when questioning terrorist suspects. For example, Professor Alan Dershowitz, among others, has argued that torture should be permitted in "ticking bomb" situations where there exists the real posssibility of imminent mass casualties. This article joins that debate by addressing the constitutional and policy arguments against the use of torture.

Specifically, I consider first whether torture during interrogations would violate either the due process clause or the privilege against self incrimination. I conclude that the Constitution would preclude the use of any statement derived from torture in a criminal prosecution. The mere act of torture, however, might not violate either constitutional provision if the information elicited during interrogation was used solely for investigative purposes. Since the Constitution might not prohibit torture in that context, I next turn to the policy arguments for and against the use of torture in a "ticking bomb" scenario. Here I consider the arguments in favor of torture (the ends justify the means, and torture is an acceptable method of self defense) and the arguments against its use (torture is evil, torture is ineffective and there is no practicial way to limit its use to the "ticking bomb" scenario). After considering all of these arguments, I ultimately conclude that torture should not be permitted in any circumstance.

Suggested Citation

Strauss, Marcy S., Torture (January 2003). Loyola-LA Public Law Research Paper No. 2003-7. Available at SSRN: or

Marcy S. Strauss (Contact Author)

Loyola Law School Los Angeles ( email )

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