Tortured Justice:

The Law

"But if force has been applied, this Court does not leave to local determination whether or not the confession was voluntary. There is torture of mind as well as body; the will is as much affected by fear as by force. And there comes a point where this Court should not be ignorant as judges of what we know as men."

- U.S. Supreme Court Justice Felix Frankfurter, Watts v. Indiana, 338 U.S. 49, 52 (1949)

The Due Process Clause to the U.S. Constitution secures the right to silence unless a criminal suspect "chooses to speak in the unfettered exercise of his own will."[159] This ban on coerced confessions is a hallmark of the U.S. criminal justice system. The Supreme Court has repeatedly held that due process prohibits the government's use of involuntary statements extracted through psychological pressure, physical intimidation, torture or other mistreatment.[160] The prohibition applies to self-incriminating confessions and to third-party statements.[161]

U.S. military law also excludes involuntary confessions, and it casts an even broader net than federal criminal law by prohibiting the introduction of any statements extracted through "the use of coercion, unlawful influence, or unlawful inducement."[162] The military's prohibition applies both to criminal trials by court-martial and to Geneva Convention Article 5 hearings, which are held during combat to determine whether to detain a prisoner as a POW or to refer the prisoner for a war crimes prosecution.[163]

In evaluating whether or not a confession was made voluntarily, federal courts consider the "totality of the circumstances" surrounding the interrogation, including the age, intelligence and education level of the accused; the length of the detention and interrogation; and the use of physical punishments such as the deprivation of food or sleep.[164] Federal courts have repeatedly excluded statements made following the use of various interrogation methods:

• solitary confinement or isolation,[165]
• sleep deprivation,[166]
• threats of death and physical harm,[167]
• beatings, and[168]
• nudity.[169]

Notably, some statements procured through the use of these very same techniques may be admissible under the MCA.[170]

The Supreme Court has repeatedly recognized that it is inconsistent with the justice system of any civilized society to permit the introduction of involuntary confessions. In Rogers v. Richmond, the Court stated that "ours is an accusatorial and not an inquisitorial system – a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth."[171] The Court echoed this same view in Jackson v. Denno when it noted the "strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will."[172] By excluding involuntary admissions, the Court explained, the law deters unlawful conduct, reflecting society's view "that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves."[173]

There are no emergency exceptions to the prohibition. "We are not impressed by the argument that law enforcement methods such as those under review are necessary to uphold our laws," the Court stated in Chambers v. Florida, upon evaluating an interrogation that included detention for five days and a final all-night session. "The Constitution proscribes such lawless means irrespective of the end."[174]

Coerced confessions are also excluded as unreliable.[175] But lack of reliability is a secondary concern. In fact, courts are prohibited from considering reliability or corroboration when evaluating claims of coercion. Where coercion is at issue, the Supreme Court has stated that evaluating admissibility based in part on a statement's veracity would be improper.[176] In a dissenting opinion now recognized as law, Justice Frankfurter warned: "This issue must be decided without regard to the confirmation of details in the confession by reliable other evidence. The determination must not be influenced by any irrelevant feeling of certitude that the accused is guilty of the crime to which he confessed."[177]

The MCA completely disregards this prohibition. On the one hand, it allows military commission judges to consider the reliability and probative value of statements made under coercion. And on the other, it disables detainees from effectively challenging reliability or from proving that the abuse they endured amounted to torture. (See Chapter 2, The Policies and Practices).

International law prohibits the introduction of evidence procured by torture, or by cruel, inhuman or degrading treatment, in all legal proceedings. This prohibition is most clearly spelled out in the U.N. Convention Against Torture, which has been ratified by the United States. Article 15 provides: "Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made."[178]

International law recognizes that excluding evidence extracted through torture deters future abuse. In its comments to the International Covenant on Civil and Political Rights (ICCPR), ratified by the United States in 1992,[179] the Human Rights Committee, a body of experts that interprets the ICCPR, states: "It is important for the discouragement of violations under Article 7 that the law must prohibit the use of admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment."[180]

Common Article 3 of the Geneva Conventions also prohibits the admission of evidence obtained by torture, cruel treatment, or coercion. Specifically, it prohibits sentencing or executing defendants without a judgment from "a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."[181] The Supreme Court stated in Hamdan that the phrase, "all the judicial guarantees which are recognized as indispensable by civilized peoples," should be understood to encompass trial protections under customary international law, as reflected in Article 75 of Protocol I to the Geneva Conventions.[182] Among the rights set forth in Article 75 is the right not to be "compelled to testify against [one's] self or to confess guilt."[183] Thus, admission of coerced statements violates Common Article 3.

Prior to the enactment of the MCA, trying a detainee in violation of Common Article 3 constituted a federal war crime under U.S. statutory law.[184] In fact, following World War II, the U.S. government and its allies prosecuted several Japanese officers for their participation as judges and prosecutors in trials of U.S. service-members that relied on evidence extracted through torture.[185] The MCA, however, amended the federal War Crimes Act to limit the category of offenses that violate Common Article 3, and it excluded, in particular, the deprivation of a fair trial.[186] To the rest of the world, however, the admission of evidence derived from torture and other cruel treatment continues to constitute a war crime and a violation of international human rights obligations.