Truth or dare? Terrorism and "truth serum" in the post-9/11 world.

• Author: Odeshoo, Jason R.

INTRODUCTION I. A BRIEF BACKGROUND AND HISTORY: UNCOVERING THE TRUTH ABOUT TRUTH SERUM A. Truth Serum: Fact and Fiction B. A Brief History of Truth Serum: Truth Stranger than Fiction? II. THE GENEVA CONVENTIONS III. THE RIGHT TO PRIVACY UNDER THE ICCPR A. Unlawfulness 1. The Fifth Amendment privilege against self-incrimination 2. Due process B. Arbitrariness C. Conclusion IV. TORTURE UNDER THE ICCPR AND THE CAT A. Torture Under the ICCPR B. The U.N. Convention Against Torture 1. Article 1: Torture 2. Article 16: Cruel, inhuman, or degrading treatment or punishment 3. The United States legislation implementing the CAT: 18 U.S.C. [section] 2340 CONCLUSION INTRODUCTION

In May of 2000, the House Committee on the Judiciary held hearings on H.R. 2121, the Secret Evidence Repeal Act. (1) Among other things, the Act would have taken away the Immigration and Nationalization Service's authority to arrest, detain, and deport noncitizens under the Antiterrorism and Effective Death Penalty Act of 1996. (2) As part of his testimony in support of H.R. 2121, Representative Tom Campbell challenged the Committee with the following observation:

Here's the hypothetical. You know the argument. We're going to be better at preventing terrorism because we put people whom we suspect in jail and don't let them know the evidence because we don't want to reveal the sources. Why not give them truth serum? Why not give them truth serum, as long as they are in jail? I bet you could get some really good evidence on terrorism that way. If, like me, your stomach revolts at that thought, it must be because something in this Constitution prevents it. (3) In the post-9/11 world, Congressman Campbell's hypothetical may no longer appear so farfetched. According to the State Department's most recent report, terrorism around the globe continues to rise. (4) Although no further terrorist acts have been carried out on U.S. soil since the 2001 attacks on the Pentagon and the World Trade Center, American interests abroad--in Bali, (5) Jakarta, (6) and Riyadh, (7) for example--have been less fortunate. Further, many officials and commentators contend that, without aggressive intelligence-gathering techniques, another attack in the United States--perhaps an even more serious one--is only a matter of time. (8) In this climate, many Americans may find themselves willing to countenance law enforcement and investigative practices that they might once have found repugnant. It is perhaps unsurprising, then, that a number of observers have recently called for the adoption of precisely the tactic that Congressman Campbell regarded as unthinkable: the use of truth serum to extract information from terrorist suspects. The idea has not only been floated by a number of political commentators, (9) it has also been expressly endorsed by no less a figure than former FBI and CIA director William Webster. (10) A 2002 memorandum to the President from the Department of Justice's Office of Legal Counsel similarly suggested that the use of drugs for interrogation purposes might be permissible. (11)

As the United States continues to round up suspected terrorists both at home and abroad, questions concerning the permissibility of coercive interrogation practices have reasserted themselves with renewed urgency. (12) These questions are even more critical in the wake of the revelations concerning the horrific treatment of the detainees in Iraq's Abu Ghraib prison. (13) Nevertheless, the issue of whether truth serum might be considered a legitimate weapon in the war against terror has been almost entirely neglected by legal scholars. (14) Part of the reason, no doubt, stems from the preternatural associations conjured up by the very idea of a "truth serum." References to truth serum in Hollywood movies (15) and in sensational criminal trials (16) contribute to the notion that the existence of such substances is purely a matter of science fiction. Such an impression, however, is inaccurate. Far from existing merely in the realm of fantasy, truth serum has had a long history of use in the United States, dating back to the beginning of the Cold War. (17) Moreover, although the U.S. government currently disavows employing such measures, (18) their use in other countries (such as India) is far from uncommon. (19) Other nations, while maintaining an official policy of denial, have been the subject of recent U.N. investigations into their use of such practices. (20)

Perhaps a more important reason for the scant attention paid to the use of truth serum is the widespread assumption that such a practice must be illegal. As Congressman Campbell's remarks indicate, some assume that the U.S. Constitution must prohibit the use of truth serum for interrogation purposes. Others aver that such methods must constitute a violation of international law. (21)

This Note argues that such dismissive responses may be overhasty. Specifically, this Note attempts to show that the international and domestic legal instruments that might be thought to bar the use of truth serum are either deeply ambiguous or severely limited in scope. It contends that at the very least, the question is much closer than critics generally assume, and that, as a strictly legal matter, the use of truth serum to interrogate terrorist suspects may, albeit under certain, narrowly defined circumstances, comport with both international law and the U.S. Constitution.

Part I begins by providing some much-needed clarification about just what a truth serum is, how effective such substances are as interrogation tools, and the history of efforts in the United States to discover and develop such so-called "truth drugs." The remaining Parts go on to consider whether the use of truth serum is permissible under specific aspects of international law and the U.S. Constitution. Part II discusses whether the use of truth serum is prohibited under the Geneva Convention Relative to the Treatment of Prisoners of War. Part III asks whether the use of truth serum is compatible with the fight to privacy guaranteed under the International Covenant on Civil and Political Rights (ICCPR). That question, as we shall see, requires a discussion of the U.S. Constitution's Fourth Amendment ban on unreasonable searches and seizures, the Fifth Amendment's privilege against self-incrimination, and the Fourteenth Amendment's Due Process Clause. Finally, Part IV considers the question of whether the use of truth serum falls within the ban on torture contained in either the ICCPR or the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

At the outset it is important to emphasize that, although the possibility of using truth serum clearly raises fundamental issues of a normative nature, this Note's chief aim is not to determine whether truth serum should or should not be used in the effort to fight terrorism. Rather, it undertakes the more descriptive enterprise of determining whether such practices do in fact constitute a violation of international law. Even if this Note is correct in maintaining that truth serum does not necessarily violate international law, it does not follow that such a tactic ought to be embraced enthusiastically, or even that it ought to be used at all. The Note's conclusion considers some of the prudential reasons that counsel against the use of truth serum, and offers some suggestions as to how, if the practice ever does come to be used, its potential for abuse can be minimized.

1. A BRIEF BACKGROUND AND HISTORY: UNCOVERING THE TRUTH ABOUT TRUTH SERUM

   1. Truth Serum: Fact and Fiction

      The term "truth serum" is likely to be conceived in the popular imagination as a top-secret drug that places a person under a spell, leaving him powerless to keep from divulging information that he might otherwise wish to keep from his interrogators. While containing a kernel of truth, such a conception is nevertheless inaccurate in several key respects. To begin with, there is no single drug called "truth serum." Rather, the term "truth serum" has been used to describe a variety of substances. The most common of these are barbiturates such as sodium pentothal, sodium amytal, and scopolamine. (22) Often used as anesthetics, these "truth drugs" have the additional effect of reducing inhibitions and increasing talkativeness. They have been employed not only in the context of police interrogation, but also as aids in the recovery of repressed memories. (23) Their use in these contexts has sometimes been referred to, quasi-scientifically, as "narcoanalysis." (24)

      Secondly, none of the substances commonly known to possess truth serum properties is anywhere close to being one hundred percent effective in obtaining truthful information. A surprisingly large number of studies have been conducted to assess the accuracy and veracity of information obtained by those under the influence of truth drugs. (25) Many of these experiments leave much to be desired, (26) and their results vary significantly. Nonetheless, agreement appears to have converged on a number of general findings. On the one hand, many researchers report that interrogators using truth serum are often successful in obtaining truthful information not only from those intending to withhold certain pieces of information, but even from those who had forgotten that information entirely. (27) On the other hand, studies show that a significant number of subjects retain the ability to dissemble while under the influence of truth serum. (28) Research also indicates that subjects will sometimes inadvertently make false statements when questioned under the influence of truth serum. (29)

      Hence, drugs such as sodium pentothal and sodium amytal hardly represent "magic bullets." While it is clear that these substances lower inhibitions and increase loquacity, they provide no assurance as to the truthfulness of the information obtained. Of course, although the...