38 Pages Posted: 4 Oct 2005
Beginning in 2002, lawyers for the Bush Administration began producing the now infamous legal memoranda on the subject of interrogation. The memoranda advise interrogators that they can torture people without fear of prosecution in connection with the so-called global war on terror. Much has been and will be written about the expedient and erroneous legal analysis of the memos. One issue at risk of being overlooked, however, because the memos emphasize torture, is that the United States must respect limits far short of torture in the conduct of interrogations. The United States may not use any form of coercion against persons detained in an armed conflict, nor may it engage in cruel, inhuman and degrading treatment at any time. The great effort of the memo writers to restrict torture to the most extreme conduct imaginable obscures the fact that the United States has wider obligations. Avoiding torture is not enough. Interrogators must also respect the broader restrictions on coercive, cruel, inhuman, and degrading treatment.
The legal prohibition has, first, moral, but also pragmatic underpinnings. Apparently some in the Bush Administration have become persuaded that torture, coercion, cruelty and abuse can be effective methods of interrogation and that the need for information outweighs the illegality and immorality of using such means. The weight of the evidence is firmly against the conclusion, however, that forceful interrogation is as reliable as non-forceful methods. Using unlawful means has been counter-productive in effectively responding to terrorism. The evidence on information gathering supports international law's absolute prohibition on torture, cruelty, and coercion.
Keywords: Interrogation, Terrorism, Torture, Coercion, Cruel, Inhuman, and Degrading Treatment, Combatant, Civilian, Unlawful Combatant, Detainee, Guantanamo Bay, Abu Ghraib, Afghanistan, Geneva Conventions, Ticking Time Bomb, Military Necessity, Necessity Defense, Torture Memos, International Law
Suggested Citation: Suggested Citation
O'Connell, Mary Ellen, Affirming the Ban on Harsh Interrogation. Ohio State Law Journal, Vol. 66, p. 1231, 2005; Notre Dame Legal Studies Paper No. 05-21. Available at SSRN: https://ssrn.com/abstract=811046