In May, 2004 news accounts of torture and abuse of prisoners at Abu Ghraib by American military and intelligence personnel erupted in the U. S. press. These stories joined a smaller stream of news accounts of the use of torture in interrogations in Afghanistan, Guantanamo Bay, and in assorted secret sites maintained by U.S. and allied governments, as well as the first accounts of the practice of the rendition by the U.S. of prisoners to countries that routinely use torture in interrogation. Since May, 2004, accounts of torture by, or at the behest of, U.S. authorities conducting the Global War on Terror (GWOT) have multiplied, and indeed, have reached flood stage. Abu Ghraib, it is now clear, was not an aberration, but the new norm. The new norm poses epochal challenges to American law and society. Both domestic and international law ban torture absolutely as a method of interrogation, forbid the practice of torture for any reason and in any circumstances. Yet, since the beginning of the GWOT, pragmatists have argued that torture for the sake of gaining useful life saving intelligence is both necessary and justified. It has been argued that interrogation for this purpose should be practiced even if it means that prosecution will be sacrificed because the fruits of torture would be inadmissible as evidence: This view is that prevention is more important than conviction. It has also been argued that the law should be changed to allow the fruits of torture to be used in courts of law. Either course has profound implications not only for the law of war and human rights law, but also for domestic criminal procedure.
The Seminar will investigate the pressures leading to the new permissive torture paradigm and evaluate the case for and against this shift. To that end, we will examine the question of the efficacy of torture; we will look at the historical record, including the experience garnered within living memory of the last several generations of war, conflict, and domestic criminal justice. We will examine the questions, is torture an effective method of producing useful, truthful intelligence? If so, is it indispensable to the GWOT? How should the present confrontation between U.S. practice and international and domestic law be resolved? What are the implications for U.S. domestic criminal procedure of a shift to countenancing torture, i.e, does the life saving rationale, if it succeeds in justifying torture, argue for similar interrogation procedures in domestic criminal cases?
This seminar is open to law students, and to medical students, and graduate students in social science and history by permission of the instructor.