Should Coercive Interrogation Be Legal?

39 Pages Posted: 31 Mar 2005

See all articles by Eric A. Posner

Eric A. Posner

University of Chicago - Law School

Adrian Vermeule

Harvard Law School

Date Written: March 2005

Abstract

Most academics who have written on coercive interrogation believe that its use is justified in extreme or catastrophic scenarios but that nonetheless it should be illegal. They argue that formal illegality will not prevent justified use of coercive interrogation because government agents will be willing to risk criminal liability and are likely to be pardoned, acquitted, or otherwise forgiven if their behavior is morally justified. This outlaw and forgive approach to coercive interrogation is supposed to prevent coercive interrogation from being applied in inappropriate settings, to be symbolically important, and nonetheless to permit justified coercive interrogation. We argue that the outlaw and forgive approach rests on questionable premises. If coercive interrogation is ever justified, and the benefits outweigh the risks of error and unintended consequences, it should be legal, albeit strictly regulated. The standard institutional justifications for outlaw and forgive - rules/standards problems, slippery slopes, and symbolism - are unpersuasive.

Keywords: 9/11, consequentialism

Suggested Citation

Posner, Eric A. and Vermeule, Adrian, Should Coercive Interrogation Be Legal? (March 2005). U of Chicago, Public Law Working Paper No. 84. Available at SSRN: https://ssrn.com/abstract=690902 or http://dx.doi.org/10.2139/ssrn.690902

Eric A. Posner (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-702-0425 (Phone)
773-702-0730 (Fax)

HOME PAGE: http://www.law.uchicago.edu/faculty/posner-e/

Adrian Vermeule

Harvard Law School ( email )

1525 Massachusetts
Griswold 500
Cambridge, MA 02138
United States

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