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Interrogating a Suspected Terrorist

Professors John Parry and Welsh White
University of Pittsburgh School of Law

Reports of abuses in the interrogation of suspected terrorists raise the question of how -- or whether -- we should limit the interrogation of a suspected terrorist when our national security may be at stake.

Suppose, for example, federal agents are interrogating an individual whom they suspect of knowing something about terrorist attempts to distribute anthrax through the mail. When the agents prepare to question such a person, what restraints does the constitution impose on their conduct? Just two years ago, the Supreme Court reaffirmed the Miranda decision, holding that in order to protect an arrested suspect's Privilege Against Self-incrimination, the police are required to warn the suspect of his constitutional rights before questioning him. Would the federal agents be required to give the suspected terrorist Miranda warnings? Would they be prohibited from seeking information from the suspect if he invokes his right to remain silent or his right to have an attorney present? And, if the agents do interrogate the suspect, what techniques will they be allowed to employ? If there is technology that allows them to probe for indications of the suspect's guilty knowledge, will they be allowed to use it? If the suspect refuses to answer questions, what if any, tactics will they be permitted to use to persuade him to change his mind?

The constitutional limitations imposed on police interrogators vary depending on the purpose for which they are seeking information. If the federal agents' questions to the suspect are prompted by an immediate concern for protecting the public -- thwarting a new attempt to distribute anthrax, for example -- the Supreme Court has held that the agents may question the suspect without first warning him of his Miranda rights. Moreover, the suspect's answers to such questions may be used not only to avert any immediate threat but as evidence in any subsequent prosecution of the suspect.

Even if the suspect makes it clear he does not wish to reveal any information, the police will not be required to cease their interrogation. The Privilege Against Self-incrimination prevents the government from convicting an individual on the basis of information he has been forced to reveal. The Privilege does not, however, prohibit the police from using tactics that would otherwise be impermissible when they are seeking to obtain potentially life-saving information. Accordingly, when the police are questioning a suspect for the purpose of preventing imminent harm, they would be allowed to use technology to probe the suspect's consciousness, even if the suspect objects. They would also be allowed to use sophisticated psychologically-oriented interrogation techniques in order to persuade the suspect that it is in his interest to disclose information. Tactics designed to induce the suspect's cooperation, such as promises that might otherwise be prohibited, should thus be permitted if the agents are seeking to obtain vital information.

If it is accepted that police should be allowed to use otherwise impermissible interrogation tactics when lives are at stake, how far should they be permitted to go? In some countries, use of torture to obtain information from terrorists is an accepted practice. In Israel, interrogators used third-degree practices on alleged Palestinian terrorists, some of whom died in custody. The Supreme Court of Israel recently outlawed these practices, but left open the possibility that torture could be justified in "ticking bomb" situations.

In America, skilled interrogators have generally concluded that the harsh practices associated with the third degree are less effective in obtaining truthful statements than psychologically oriented techniques that are designed to reduce the suspect's resistance by first gaining his rapport and then probing his pysche to find the best means of inducing his cooperation. In some situations, however, interrogators might conclude that torture or other extreme tactics might be the best means of securing vital information. Recent reports suggest that federal officials are at the point of reaching that conclusion for suspects in the September 11 attacks, having found traditional interrogation tactics to be unsuccessful.

Torture and other practices associated with the third degree led the Supreme Court to regulate police interrogation practices through the Due Process Clause. For more than half a century, it has been established that the police are absolutely prohibited from using force, threats of force, excessively protracted questioning, and other forms of physical or mental torture to produce a confession. The prohibition of these practices is a fundamental aspect of our system of government. All citizens, whether innocent, suspected or actually guilty, receive the benefit of this protection.

We certainly should give greater leeway to interrogating officers when they seek to protect public safety. But law enforcement officials should not be allowed to decide for themselves that desperate times call for desperate measures. The cost of adhering to fundamental safeguards may be high in some situations, but it is the price of upholding the constitutional values that distinguish us from our opponents. In order to uphold those values, we must make it clear to the police that they are not permitted to employ abusive interrogation practices, including any form of torture.

John Parry and Welsh White are law professors at the University of Pittsburgh. Welsh White is the author of Miranda's Waning Protections, a book on modern police interrogation practices that will be published next month by the University of Michigan Press.

November 6, 2001


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