Truth Serum
Jason Kuznicki on Nov 15th 2005 06:50 pm |
Suppose that there were a 100% accurate truth serum with no significant side effects.
1. Would it be ethical to administer it to prisoners captured as part of the ongoing U.S. anti-terrorist campaign? To whom specifically, and with what intent? Noncitizens? Citizens? Captured on the field of battle or off?
2. What sorts of questions would be appropriate to ask of people under its influence?
3. Would it be constitutional to use their statements against them in
1) a trial by military commission
2) a trial by court martial
3) a trial in the U.S. civilian justice system?
4. The same as #3, but would it be ethical to use their statements in the listed venues?
5. Compare and contrast the administration of this truth serum with the use of fake lawyers to extract information from detainees — lawyers who aren’t representing the detainees in any sense at all, but who are really government interrogators working under false pretenses.
I’ve been thinking over these questions today since finding some of them at The Debate, Emily Messner’s blog at the Washington Post. Questions like these are important because, while hypothetical, they separate the issue of physical cruelty from that of coercion. They also avoid the practical objection to torture, which is that torture often leads the innocent to make false confessions, as can be seen throughout the European witchcraft trials of the early modern era. A truth serum leaves only one question behind: Is it proper to extract information from the mind of another, and if so, when and how?
I’d love to hear your thoughts on this, and if not, consider it an open thread.
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My non-lawyerly intuition, for 3 (3), at least: if a non-consensual truth-serum turned someone into a self-incriminating babbler, it would be considered a violation of the right to remain silent.
The United Kingdom is becomming a Big Brother state. CCTV cameras are everywhere, monitoring everything from private reisdences to motorists on our roads to ensure they do not break the speed limit. The other day the home secretary, Charles Clarke (secretary of state for home affairs) announced plans to introduce xray cameras in railway stations to monitor against potential terrorists. Such developments may be justifiable after the June 7th London bombings but with such technology [cameras don't lie] the courts seem set to be decreasingly finders of fact and increasingly part of a rubber stamping bureaucracy. However, polygraphs are not admissible evidence in court as far as I know.
With regard to points #3 and #5, this would be unlawful in the UK under the Police and Criminal Justice Act 1984, and nevertheless almost certainly a breach of article 6 of the European Convention on Human Rights, directly binding on the UK: the right to a fair and independent tribunal.
In response to Jim Anderson there is no longer an absolute right to silence in the UK. Under s.34-38 of the Criminal Justice and Public Order Act 1994 if an arrested person remains silent at trial when he can be reasonably be expected to mention material facts or if upon arrest a police officer asks a person to account for his presence and he declines, the court may later draw such inferences from the silence as appear proper.
PS. See my comment on Happier News Edition, 10th November entry
When I read the first question, I thought maybe this could be reasonable. I focused on the hypothetical lack of side effects as partial justification. When I got to question 2, I realized the true implication of the mental path I was on. The slippery slope of letting the ends justify the means began, but I stopped it when I realized what I was doing. So, no, it’s not ethical. It would be effective, of course, but the second question highlights how abuse could happen easily and quickly. Ultimately, the idea of rights for the defendant are best. Prosecution of the guilty is important, but our foundation is protection for the innocent.
Bottom line: unconstitutional and unethical. There’s no point to saving ourselves, only to lose ourselves in the process. We’ve always done better than that and I don’t believe that’s changed.
The right to remain silent can be seen as an extension of the right against self-incrimination. If it were treated so, such that any evidence gathered in this way would not be allowed to be used against the suspect or anyone else whose right is dependent on him (e.g., spouse), do you think that might just possibly pass constitutional muster? A suspect could still be found guilty if evidence gathered prior to administration were convincing.
Having said that, I wouldn’t trust any branch of any existing government to remain within such guidelines, so in practice I’d have to say it is definitely unethical.
A truth serum would solve most of the ethical issues we are facing with the use of torture. I like to keep things simple so here is the framework on how a truth serum should be used:
1. There would be only one organization allowed to conduct sessions with the truth serum. This makes accountablilty much easier to establish.
2. The organization will not have the power to select people for a truth session. That would be done through a court order for US citizens or through a military tribunal in the case of military prisoners of war. The goal here is to create accountability.
3. The organization which I will call Psi Corps (Yes I’m a Babylon 5 fan) will have control over all truth sessions and gathered information.
4. Pertinent information will be released to the police or military while other private information will be kept private. The Psi Corps will tell the authorities if a subject knows where bombs are being made, not that he slept with his stepmother.
5. Information gathered in a truth session will not be admissible in court. However if information gathered is used to find hard evidence of a crime that evidence can be used to convict a subject.
It is a sad thing to know America is pursuing a policy of torture. It goes against everything we stand for. If the goal of torture is to extract information then a truth serum is a real boon, because it allows us to get information without the inhumanity of torture. As long as the subject’s private life is not used against them, this is a form of torture, let us use the truth serum. We get the information we need to win the war and prisoners are still treated humanly. Our torture policy is sad on another level, because torture isn’t a good way to get information out of people. After enough pain people will tell you whatever they think you need to hear.
It would be a great experiment in the states on how easy it would be for a judge to submit a US citizen to a truth session. I imagine people acting through their legislators would make it next to impossible. Only time will tell. This is a technology we may see in our lifetime.
…Maybe I should take the plunge and address ethics. The operative word of course is ’should’ – what should happen if there were a truth serum with a conclusively proven 100% success rate. But all that is asked is whether there is ethical justification for introducing the use of truth serums into the established legal structure as normalised by what Hart termed secondary legal rules. Well, in my reasoned opinion use of the truth serum to obtain evidence is theoretically justifiable from an ethical perpective – there is nothing after all to stop advocates (attorneys in your country; barristers in mine) exposing the skeletons in the mental closets of witnesses by asking artificial – trick – or even leading questions, BUT the use is only theoretically justified subject to provisos. Proviso 1: It should be only used as evidence before a court of law, respecting as far as possible the law (as everyone has already pointed out, the right to remain silent would be infringed) – national and international law (here I mean the law governing sovereignty but if this were the UK I would have to include human rights). Proviso 2: It could only be used to obtain evidence (rather than proof since there are many ‘truths’) and the information obtained could only be information material to the charge against the accused (proviso 3). Accountability is not an issue – judges are not accountable, and for good reason (to maintain their independence). In practice, of course, a truth serum would be abused by the politically charged government, which is why we should all be greatly relieved that it is merely a figure of Jason’s imagination.
Is “Perfect” Interrogation Torture?
Jason Kuznicki at Positive Liberty (yet again) asks an intruiging question. If one had a 100% accurate truth serum with no (significant) side effects, when would its use be ethical. To whom and when could it be administered.
This question strikes to…
This really is a question you should put to Wrye Sententia and Richard Glen Boire of the Center for Cognitive Liberty and Ethics. http://www.cognitiveliberty.org/
to roughly paraphrase their volumes of arguments: a nation founded on principles that acknowledge and protect human rights in the broadest and most inclusive of forms, would be commiting acts of serious injustice if it chooses to abrogate essential cognitive liberties. Torture is a physical interdiction to change the mind, the cognitive processes, of the subject. Forcing any person to submit to giving up their right to keep their mind free seems unacceptable.
I am working on an article for Composition II class that is pro torture in the case of a terrorist admitting to planting a bomb that would kill a lot of people. The terrorist in question has been caught. It is only a few hours from when the bomb is supposed to go off. The author says that torture is justified to save all of those people. If there were a truth serum that would get the information required without torture I say we use it instead.
serum for the court room wouldn’t matter because the prosecution can always deceive a jury by instructing them on false evidence in the jury instruction itself; talk about “planted evidence”.