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

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.

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

A. 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 unimpressive accuracy of such methods is highly relevant to assessing the advisability of their use, it should not be considered dispositive of whether such methods are legal. To be sure, the question of effectiveness is not wholly unrelated to legality. For example, certain provisions of international or domestic law require balancing the benefits and harms of particular forms of state action. (30) In some cases, truth serum's relative lack of effectiveness might render the benefit to be obtained sufficiently tenuous to militate against its use. On the other hand, it is important to note that truth serum very often is effective in yielding important information. Where the stakes are sufficiently high, and where other methods have proven unsuccessful, even a relatively modest chance of discovering useful information might very well be regarded as sufficient to justify the use of such interrogation methods.

B. A Brief History of Truth Serum: Truth Stranger than Fiction?

Contemporary knowledge about the questionable efficacy of truth serum must be understood against the backdrop of an earlier period during which the idea of such a magical substance seemed a very real possibility, one holding profound significance for criminal investigation, foreign intelligence, and national security. Indeed, at various points throughout the twentieth century, several branches of the U.S. military, as well as a number of U.S. intelligence agencies, were actively involved in attempts to develop drugs with truth serum properties. In retrospect, these efforts may seem to have an almost comical character. Filled with code names, clandestine activities, and strange experiments, the history was aptly described in one early New York Times report as "a bizarre grope into the world of science fiction." (31) Unfortunately, these activities also involved grave ethical breaches. Because these historical episodes help inform contemporary debate about the use of truth serum, this section provides a brief thumbnail sketch.

The "discovery" of truth serum can be traced back to the early twentieth century, when German obstetricians used a combination of morphine and scopolamine as an anesthetic to relieve women's labor pains. (32) Doctors noticed during this period that while under the influence of these drugs, women would often begin speaking spontaneously about the intimate details of their private lives. (33)

It was not until the 1920s, however, that such drugs were used for the purpose of interrogation in criminal cases. The chief proponent of the practice was Dr. Robert House, whose work gained widespread attention after he arranged to interrogate two suspected criminals under the influence of scopolamine. (34) Although the case against the suspects appeared airtight, they denied any wrongdoing during the interrogation and were subsequently acquitted at trial. (35) House published the results of the experiment and went on to conduct additional experiments with a variety of other drugs. (36) He also published numerous articles throughout the 1920s extolling truth serum's effects as infallible (37) and calling for its legalization. (38) It was in reporting on Dr. House's experiments that the term "truth serum" was first coined. (39)

The use of truth serum by law enforcement authorities continued to grow in succeeding decades. In addition, new drugs having truth serum properties were discovered and put to a wider array of uses. Throughout the 1930s, police became interested in the use of barbiturates on witnesses and criminal suspects. (40) Later, during World War II, sodium pentothal was used to treat soldiers suffering from "shell shock." (41) The drug was thought to be useful not only in facilitating the release of repressed fears and trauma (42) but also in detecting malingering among soldiers wishing to avoid military service. (43)

It was also during World War II that the Office of Strategic Services (OSS), the CIA's precursor agency, began looking for a drug to use in extracting information from prisoners of war. The first drug to be developed was a cannabis extract, which the OSS called "TD," for "truth drug." (44) Ultimately TD was viewed as a failure because its effects were too varied: at best, it merely increased subjects' talkativeness without yielding useful information; at worst, it triggered toxic reactions. (45)

It was with the advent of the Cold War that the U.S. Military and the CIA took a keen interest in developing a truth serum. American interest in such drugs appears originally to have been a reaction to the use of such tactics by other nations. During World War II, for example, the OSS had heard rumors about Nazi success in using mescaline while conducting interrogations in concentration camps. (46) Word had also traveled about the Soviet Union's use of drugs such as LSD to obtain information. (47) The trial of Cardinal Mindszenty of Hungary in particular created a near panic in the U.S. military and intelligence communities. (48) The prelate had been a staunch opponent of Communism and was arrested in 1948 by the Hungarian government on charges of treason and illegal monetary transactions. (49) His 1949 trial in Budapest was widely publicized and the Cardinal pleaded guilty to most of the charges. (50) Because of his vacant expression during the proceedings, it was widely believed that his confession had been induced by the use of a truth drug. (51) Initially, the United States sought to develop tactics to prevent members of the American military from succumbing when subjected to such interrogation practices. (52)

The U.S. military's first foray into truth serum research was initiated by the Navy in 1947. (53) Known as "Project CHATTER," it involved experiments on both humans and animals with scopolamine and mescaline. (54) The program was expanded during the Korean War, but ended shortly afterward in 1953. (55) Army experimentation with truth drugs began somewhat later but was more extensive. (56) During its initial phase, authorized in 1956, LSD was given to nearly a thousand American soldiers who had volunteered to participate in the study. (57) The drugs were administered by the Army Chemical Corps in the United States. (58) The experiment's stated purpose was not to determine LSD's effectiveness as an interrogation tool, but rather to test its ability to incapacitate U.S. soldiers. (59)

The project's second phase began in 1958, when the Army initiated the Material Testing Program "EA 1729." (60) Under the program, nearly one hundred subjects received LSD--in some cases without their consent--and were then polygraphed. (61) The third phase began in 1960 and consisted of two subprojects: Projects THIRD CHANCE and DERBY HAT. (62) Project THIRD CHANCE was conducted in Europe during the months of May through August of 1961. Drugs were administered to foreign agents suspected of stealing documents, and the results were described as "moderately successful." (63) Project DERBY HAT was carried out in the Far East for several months in 1962. The project's subjects were foreign nationals suspected of spying or drug trafficking. (64) Among DERBY HAT's specific purposes was to test the effect of drugs on "Orientals." (65) In all, during the third phase of the Army's investigation, sixteen nonvolunteer subjects were interrogated after being given doses of LSD. (66) Although the precise termination date for the project is not known, it is believed to have ended sometime around 1963. (67)

Alongside the efforts of the U.S. military, the CIA conducted its own experiments and investigations into truth serum. In 1950, the CIA began Project BLUEBIRD. (68) As originally conceived, the project's goals included discovering "means of conditioning personnel to prevent unauthorized extraction of information from them," as well as "investigating the possibility of control of an individual by application of special interrogation techniques" and "establishing defensive means for preventing hostile control of Agency personnel." (69) In 1951, the program was renamed Project ARTICHOKE, and was expanded to evaluate "unconventional interrogation techniques," including the use of hypnosis and drugs. (70) Among the drugs employed was sodium pentothal. (71) As part of the project, interrogations were conducted both overseas and in the United States. (72) The date on which the program ended is a matter of dispute. The CIA claimed it ended in the fall of 1956, but evidence suggests that the program may in fact have ended several years later. (73)

In what can only be described as the nadir of these clandestine efforts, the CIA approved Project MKULTRA (or MK-ULTRA) on April 13, 1953. (74) The program's goal was to research and develop chemical and biological agents to control human behavior. (75) It also included investigation into such other methods as electroshock and radiation. (76) Testing began with volunteers in drug rehabilitation centers. In exchange for their participation, subjects were provided with their drug of choice. (77) LSD was among the main drugs tested for interrogation-facilitating properties. (78) In 1957, the CIA began conducting experiments on unwitting subjects. (79) The Agency's actions were directly responsible for untold harm. Perhaps the most widely known consequence of MKULTRA was the death of Dr. Frank Olson, who in 1953 leaped several stories to his death from a hotel room window after being given a dose of LSD. (80) The discovery of these events led to the program's termination in the late 1960s. (81)

Although precise data are difficult to obtain, the use of truth serum in the United States appears to have been fairly widespread from 1920 until well into the 1950s. (82) Today, drugs such as sodium amytal and sodium pentothal are widely used as anesthetics, and somewhat less commonly by psychotherapists in efforts to recover repressed memories. Although they are still used in countries such as India for conducting criminal investigations, their use for that purpose in the United States has been officially repudiated. (83) Importantly, however, the United States's position does not seem to have been influenced primarily by legal concerns. Rather, it appears to have been prompted by a more general public reaction against the CIA's covert activity. For this reason, the legal issues surrounding the use of truth serum have not received a full airing. The remaining Parts of this Note attempt to address these issues more carefully.

II. THE GENEVA CONVENTIONS

One of the international legal instruments most frequently invoked as a bar to the use of truth serum is the 1949 Geneva Convention Relative to the Treatment of Prisoners of War. (84) In particular, Article 17 of the Convention appears to place severe restrictions on the means detaining powers may legitimately use to interrogate the prisoners in their custody. The Article provides as follows:
 Every prisoner of war, when questioned on the subject, is bound to
 give only his surname, first names and rank, date of birth, and
 army, regimental, personal or serial number, or failing this,
 equivalent information.

 If he willfully infringes this rule, he may render himself liable to
 a restriction of the privileges accorded to his rank or status.

 No physical or mental torture, nor any other form of coercion, may
 be inflicted on prisoners of war to secure from them information of
 any kind whatever. Prisoners of war who refuse to answer may not be
 threatened, insulted, or exposed to unpleasant or disadvantageous
 treatment of any kind. (85)


True, Article 17's text does not outlaw the use of truth serum in expressis verbis; even the International Committee of the Red Cross, which monitors compliance with the Geneva Conventions, acknowledges that the Article's language is not entirely clear on the point. (86) Nonetheless, there can be little question that the general tenor of the provision seems clearly to rule out the use of truth serum as an interrogation-facilitating mechanism. The question of whether such practices constitute physical or mental torture will be discussed in greater detail in later sections. (87) The issue need not be dealt with here, since under Article 17, treatment that is coercive, or indeed merely unpleasant or disadvantageous, is outlawed. Whatever else one might think about truth serum, it is extremely difficult to argue that forcibly placing a prisoner of war (POW) under the influence of an inhibition-reducing substance is not coercive, unpleasant, or disadvantageous. (88)

Ultimately, however, Article 17 represents only a minimal barrier to the use of truth serum. The problem is not that the Article's language fails to cover such practices. Rather, the problem stems from the fact that, by its own terms, the Convention applies only to prisoners of war. (89) This limitation is especially significant in the context of the fight against terrorism, where the concept of "war," and the issue of POW status, have become increasingly elastic and ambiguous.

Perhaps the starkest example of that ambiguity can be seen in the controversy surrounding the proper treatment of those detained in the aftermath of the U.S. military's intervention in Afghanistan. In that conflict, the United States effectively faced opposition from two groups--members of the Taliban and operatives of Al Qaeda. The Bush administration has maintained that both groups failed to meet the Convention's requirements for lawful belligerency--a responsible commander, a distinctive and visible insignia, open bearing of arms, and general observance of the laws and customs of war (90)--and that, as a result, neither group was entitled to the Convention's protections. Instead of according them prisoner-of-war status, the Bush administration categorized the detainees as "unlawful combatants." (91)

Admittedly, the administration's position has attracted a good deal of criticism. (92) But it is not necessary to mount a defense against those criticisms here. (93) The more important point is simply that determining whether or not certain groups qualify for POW status under the Geneva Conventions often may not be susceptible to a single correct answer. Where a detaining party is able to advance a cogent argument for its refusal to classify certain of its detainees as POWs, it seems unreasonable to expect that party to abide by the Convention's terms simply because of scruples entertained by others.

In any case, whatever one's opinion about the administration's more controversial position with respect to the Taliban, its position with respect to Al Qaeda detainees is much less contentious. Few observers argue that members of terrorist groups meet the Convention's requirements for POW status. Moreover, even if Al Qaeda operatives detained in connection with the Afghanistan conflict were entitled to POW status, members of such groups detained outside the context of an armed conflict would not be entitled to the Convention's protection. Although the point may be obscured by the use of military force in Afghanistan and Iraq, armed intervention is clearly not the primary means by which the United States combats terrorism. Much more important are surveillance and other more prosaic law enforcement methods used in tracking individual terrorists or particular terrorist cells. Because the Convention lacks application in such contexts, Article 17's protections have a limited reach at best.

III. THE RIGHT TO PRIVACY UNDER THE ICCPR

Among other things, the International Covenant on Civil and Political Rights (ICCPR) protects the right to privacy. Article 17 of the ICCPR states: "No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation." (94) At first glance, the use of truth serum might appear to be a flagrant violation of this provision. After all, the whole point of administering such drugs is to extract information that a person wishes to keep private. On closer inspection, however, the matter is not so simple. The right to privacy guaranteed under Article 17 is not absolute, and the contours of the right are notoriously difficult to discern. Although a number of participants in the Article's drafting suggested that the concept's frontiers be defined more precisely and that particular circumstances justifying infringement of the right be specified, (95) the final version fails to do so. In its General Comment on Article 17, the Human Rights Committee (HRC)--the body established by the ICCPR to monitor and enforce the Covenant's provisions--similarly fails to shed any light on the limits of the privacy right. (96) Nor has the HRC's jurisprudence elucidated matters, as members of the HRC themselves have acknowledged. (97) At bottom, Article 17 places only two limitations on infringements of privacy: interference with privacy is prohibited where it is either unlawful or arbitrary. (98) In order to determine whether the use of truth serum violates Article 17, therefore, the requirements of unlawfulness and arbitrariness must be examined more carefully.

A. Unlawfulness

Article 17 of the ICCPR prohibits interference with a person's privacy where such interference is unlawful. Despite its apparent redundancy--if interference with a person's privacy is already deemed unlawful, it is unclear what further protection is added by invoking the ICCPR's right to privacy--the unlawfulness criterion injects a degree of determinacy into an otherwise fuzzy conceptual landscape. For even if the concept of privacy itself is ill-defined, it is fairly easy to determine whether a government's actions are unlawful: one need only consult a nation's domestic legal code.

In the United States, no law at either the state or national level makes the use of truth serum a crime per se. (99) However, such practices tread close to values protected by the Constitution. Three constitutional rights in particular present possible barriers to the use of truth serum: the Fifth Amendment's privilege against self-incrimination, the Fourteenth Amendment's Due Process Clause, and the Fourth Amendment's ban on unreasonable searches and seizures. In order to determine whether questioning terrorist suspects under the influence of truth serum violates the ICCPR's right to privacy, it is necessary to determine whether such interrogation methods violate any of these constitutional rights. Because the Fourth Amendment questions are treated more fully in connection with Article 17's nonarbitrariness criterion, the present discussion will focus on whether the use of truth serum violates the Fifth and Fourteenth Amendments.

1. The Fifth Amendment privilege against self-incrimination

The Fifth Amendment provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." (100) According to well-worn constitutional doctrine, the Self-Incrimination Clause is violated only where three conditions are met: the disclosure of the information in question must be compelled, the information must be testimonial in nature, and the information must be incriminating. (101)

There can be little question that the administration of truth serum by governmental authorities meets the first two requirements. Statements obtained by such means involve a degree of compulsion entailed by few other interrogation tactics. Indeed, in the usual case, compulsion is found where the government forces a person to act against his will. Drugs such as sodium pentothal have the potential, at least temporarily, to obliterate a person's volitional capacities altogether.

Likewise, it hardly needs mentioning that the information yielded by means of truth serum is testimonial in nature. To be sure, the Court sometimes has struggled to define with precision what sorts of communications count as "testimonial" for Fifth Amendment purposes. But the difficulties chiefly arise in determining whether certain forms of nonverbal conduct are sufficiently communicative. (102) The information authorities stand to obtain by subjecting a person to truth serum consists of factual assertions as well as the person's innermost thoughts and beliefs--communications that are paradigmatically testimonial. (103)

Thus, whether or not the use of truth serum violates the Fifth Amendment ultimately turns on whether the information obtained is incriminating. On this point, the Court has been very clear: in order to be incriminating, a statement must be used against the accused at trial (or in the context of a "criminal case"). In other words, so long as the statements are used solely for intelligence gathering purposes, and not for the purpose of securing a criminal conviction, there can be no Fifth Amendment violation. As the Supreme Court stated in United States v. Verdugo-Urquidez, (104) "[t]he privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial." (105) Those who have advocated using truth serum for interrogation purposes appear to have little interest in using the information at trial. Rather, their main objective is to avert future terrorist attacks. As a result, the Fifth Amendment is easily circumvented.

2. Due process

The Fourteenth Amendment's Due Process Clause might seem to afford stronger grounds for finding the use of truth serum unconstitutional. (106) Indeed, in Townsend v. Sain (107)--the only case involving truth serum ever to come before the Supreme Court--the Court found a due process violation. The defendant in Townsend was a heroin addict who had been charged with murder. During his initial interrogation, Townsend denied having committed the crime. As time wore on, however, he began suffering withdrawal symptoms. The police summoned a doctor, who gave Townsend a dose of hyoscine--a drug possessing truth serum properties--after which police resumed the interrogation. Soon thereafter, Townsend confessed to the murder, as well as to a number of other crimes. He later moved to suppress his confession. The Court held that the use of the drug-induced confession against Townsend at trial constituted a due process violation.

Despite its suggestive holding, it is important to emphasize that Townsend did not declare the use of truth serum to be always and everywhere verboten. Rather, the Court found that the due process violation occurred only when the statements were admitted against Townsend into evidence at trial. (108) In the end, therefore, Townsend's due process analysis goes no further than the Fifth Amendment toward making the use of truth serum illegal or unconstitutional for intelligence-gathering and other nontrial purposes. In both cases, the violation is triggered only when statements are introduced into evidence.

It is true that the Supreme Court and lower courts have occasionally indicated that interrogation and evidence-gathering tactics may violate due process independent of whether the evidence obtained is ultimately used at trial. (109) Moreover, the mere fact that the Court in Townsend singled out the confession's admission into evidence as the locus of the due process violation does not necessarily mean that the police conduct raised no further due process concerns. In other cases, the Court has similarly found due process violations where coercively obtained statements were used at trial; yet it would be difficult to believe that the Court was troubled in those cases only by the use of the evidence at trial, rather than by the methods by which the evidence was obtained in the first place.

Consider, for example, Rochin v. California. (110) In Rochin, officers broke into the defendant's bedroom and found two morphine tablets on his nightstand. Before they could seize the evidence, Rochin ingested the pills. After physically struggling with Rochin and attempting to pry open his mouth, the police took him to a hospital and directed a doctor to pump an emetic solution through a tube into the defendant's stomach, causing him to vomit the capsules. Although the Court found that the use of the capsules to convict Rochin at trial violated due process, it seems plausible that even if the evidence pumped from his stomach had not been introduced at trial, his due process rights would have been violated all the same. In the same way, so it might be argued, although the Townsend Court couched its holding in terms of admissibility, one might surmise that the Court intended to condemn the use of truth serum for interrogation purposes more generally.

But for at least two reasons, neither the holdings of lower courts nor the possible broader applicability of Supreme Court holdings is an entirely convincing objection to the use of truth serum in nontrial situations. First of all, while it is true that a number of courts have held that due process violations can be triggered independent of whether statements obtained are later used at trial, (111) courts in other cases have hinged their findings of unconstitutionality specifically on the fact that coercively obtained statements were later introduced as evidence. (112) If anything, the fact that courts have taken care to discriminate between due process violations occurring in the actual obtaining of statements and those occurring only at trial indicates an intention to preserve the distinction.

Second, even assuming that holdings in cases such as Rochin should be viewed as going beyond mere concern over admissibility and as condemning coercive police practices more broadly, it is simply not clear that the holdings in such cases should cover the use of truth serum. The conduct at issue in Rochin might well be viewed as involving a greater breach of due process than that in Townsend. The Rochin Court was confronted with stomach-pumping, a procedure arguably requiring a greater degree of physical invasion and violence than the mere injection of an anesthetic at issue in Townsend. Furthermore, the stomach-pumping in Rochin took place only after the police had already illegally broken into the defendant's apartment and had physically attempted to pry open his mouth in an effort to retrieve evidence. The methods used in Townsend, however coercive they might have been, may well be seen as less severe in degree than, and different in kind from, those in Rochin.

Obviously, a full treatment of the Court's due process jurisprudence is beyond the scope of this Note. (113) And none of this is to say that the use of truth serum should never be regarded as a violation of due process. However, it is critical to point out that due process analysis is inherently open-ended, (114) and that, given the context-sensitive and fact-specific nature of the due process inquiry, any categorical prohibition on the use of truth serum is probably foreclosed. Indeed, even if it could be shown that the use of truth serum violated due process on the facts of Townsend, it would not follow that its use could not be justified in other circumstances. As commentators have repeatedly pointed out, few practices, if any, involve automatic due process violations. (115)

In sum, then, it is far from clear that the use of truth serum is illegal or unconstitutional under either the Fifth or Fourteenth Amendments. At best, both the Fifth Amendment and Townsend suggest merely that information obtained by such methods might be inadmissible against its source as evidence at trial. The Fourteenth Amendment's Due Process Clause, although perhaps affording a somewhat stronger line of attack, is simply too imprecise to provide any definitive answer as to whether use of truth drugs is illegal. Nonetheless, the foregoing analysis shows only that truth serum use may pass the first hurdle under Article 17's test for determining whether a particular type of interference with privacy is justifiable. We now turn to whether it passes the second criterion, that of arbitrariness.

B. Arbitrariness

In addition to requiring that interference with privacy be lawful in order to be justified, ICCPR Article 17 further requires that the interference be nonarbitrary. Like the concept of privacy, the concept of arbitrariness is hardly self-defining. The meaning of the concept appears to have been the only serious question faced by the Article's drafters, (116) and many commentators have expressed uncertainty about what, if anything, the concept of arbitrariness adds to the concept of unlawfulness. Nevertheless, the HRC's General Comment to Article 17 makes clear that the touchstone of the arbitrariness inquiry is whether interference with privacy is "reasonable in the particular circumstances." (117) At bottom, the question is whether there is any set of circumstances under which using truth serum to interrogate terrorist suspects might be deemed reasonable.

In setting out to answer this question, it is important to note that infringements on Article 17's right to privacy are generally easier to justify than infringements of other ICCPR provisions. This is because, unlike other rights guaranteed under the Covenant, Article 17 expressly declines to enumerate particular purposes for which the right to privacy may be infringed. Article 19, for example, provides that "[e]veryone shall have the right to hold opinions without interference," but adds that the right may be limited for "the protection of national security or of public order (ordre public), or of public health or morals." (118) Similarly, Article 21 provides for the right of peaceful assembly, allowing for restrictions that "are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others." (119) In contrast, while Article 17 clearly contemplates that the right to privacy is subject to infringement under certain circumstances, it fails to specify the nature of those circumstances. Hence, as Mr. Wennergren observed in his concurring opinion in Toonen v. Australia, a "State party is ... in principle free to interfere by law with the privacy of individuals on any discretionary grounds, not just on grounds related to public safety, order, health, morals, or the fundamental rights and freedoms of others, as spelled out in other provisions of the Covenant." (120) Hence, at the very least, the use of truth serum cannot be ruled out a priori under Article 17. Rather, the reasonableness of such infringements on privacy must be assessed in light of particular circumstances.

As noted above, neither Article 17's text nor its General Comment sheds much light on the meaning of "reasonableness" and "arbitrariness." The Human Rights Committee's jurisprudence also fails to provide guidance. The Committee has had few occasions to clarify the concepts; and the few cases in which it has done so have involved laws and practices bearing little similarity to the use of truth serum. (121) But if the decisions of the HRC offer only scant assistance, the jurisprudence of U.S. courts represents a much richer resource for fleshing out the meaning and content of terms such as "reasonableness." Indeed, in light of the Fourth Amendment's ban on unreasonable searches and seizures, U.S. courts frequently make determinations about the reasonableness of a wide range of investigatory practices. To be sure, domestic understandings of the balance between privacy and other societal interests are not dispositive in determining whether actions are reasonable for Article 17 purposes. On the other hand, the HRC's General Comment 16 makes clear that the concept of privacy is culturally relative. (122) Thus, in determining whether the use of truth serum by U.S. officials would infringe the ICCPR's privacy right, it is important to examine the way in which privacy is understood under U.S. law. While an exhaustive account of the topic would clearly go beyond the scope of this Note, a review of some of the cases most closely analogous to the use of truth serum will be helpful.

The case providing the most appropriate point of departure is Schmerber v. California. (123) The defendant in Schmerber was suspected of drunk driving. While the defendant was recuperating from an automobile accident in the hospital, a police officer, over the defendant's objection, ordered a physician to take a blood sample to be used to determine the defendant's blood alcohol level. The defendant contended, among other things, that in forcibly subjecting him to the blood test, the police had conducted an unreasonable search under the Fourth Amendment. (124)

Although the Court voiced concerns about the procedure's infringement on the defendant's dignity and privacy, it held that the search was reasonable for Fourth Amendment purposes. (125) In reaching its conclusion, the Court announced no formula or calculus for assessing the reasonableness of government searches. Instead, it enumerated a number of factors that, taken together, contributed to the search's reasonableness, including the effectiveness of blood samples in determining intoxication levels; (126) the commonplace nature of such tests; (127) the minimal quantity of blood extracted; (128) and the procedure's lack of risk of trauma or pain. (129) In addition, the Court found it important that the test was performed in a hospital setting by medical personnel, rather than by police in a stationhouse. (130)

Schmerber certainly leaves room for thinking that the use of truth serum, at least under certain circumstances, is reasonable. Of course, injecting a detainee with truth serum for interrogation purposes differs in important ways from extracting blood in order to determine its alcohol level. Nonetheless, truth serum seems to fare as well as blood tests under most of the factors enumerated by the Schmerber Court. For example, like blood tests, the use of truth serum involves little or no risk of trauma or pain. (131) Also like blood tests, any interrogation procedure involving truth serum would presumably be conducted by a medical professional, not by police. In addition, while the use of substances such as sodium pentothal is uncommon for investigative purposes, their use in other contexts (such as routine surgical operations) is quite commonplace.

The chief respect in which truth serum seems to differ from blood tests under the Schmerber analysis lies in the premise that truth serum is not as effective in extracting truthful information as blood alcohol tests are in detecting intoxication. But it is not entirely clear that truth serum is actually less effective than blood tests. In fact, comparing the two measures is highly misleading. There is clearly a sense in which the effectiveness of an investigatory technique is a relative matter and must be assessed in relation to the kind of information it is designed to obtain. When compared with the other methods of obtaining the same kind of information--i.e., getting names, dates, locations, and plans from uncooperative terrorist suspects--truth serum may well be more effective than, or at least as effective as, blood tests are in determining blood alcohol levels. In addition, even if truth serum is less effective than blood tests, it does not follow that truth serum is so ineffective as to render it unreasonable for Fourth Amendment purposes. After all, Schmerber indicated no baseline below which an investigatory practice must be considered ineffective per se. Finally, effectiveness is only one of the factors on which the Court's determination of reasonableness was premised. Nothing in the Court's opinion suggests that each of the factors, or the effectiveness factor in particular, constitutes a necessary condition for a finding of reasonableness.

A second case that might shed light on the reasonableness of using truth serum is Winston v. Lee. (132) There, the police were called to the scene of an attempted robbery in the course of which the perpetrator and the victim had shot one another. Shortly after the crime, the defendant sought medical treatment in a hospital for a gunshot wound. The victim, who was receiving treatment at the same hospital, saw the defendant and identified him as the robber. The police then sought an order compelling the defendant to undergo surgery to remove the bullet, which was lodged in his collarbone, in the hope that the bullet might link him to the crime. The defendant argued that the search was unreasonable and violated the Fourth Amendment. (133)

As in Schmerber, the Court took stock of several factors in assessing the reasonableness of the search. First, the Court considered the importance of the bullet to the police's investigation. Since the police had a good deal of other evidence against the defendant, (134) including the victim's eyewitness identification shortly after the crime, the Court felt that the probative value of the bullet was limited. (135) In addition, the Court took account of the threat posed by the surgical procedure to the defendant's health and safety. The Court found those threats to be cause for concern. (136) Most of all, however, the Court noted the procedure's infringement on the individual's "dignitary interests in personal privacy and bodily integrity." (137) In a passage possessing particular relevance to the question of truth serum's permissibility, the Court stated that "the Commonwealth proposes to take control of respondent's body, to drug this citizen--not yet convicted of a criminal offense--with narcotics and barbiturates into a state of unconsciousness, and then to search beneath his skin for evidence of a crime." (138) Weighing these factors against the societal interest in determining guilt and innocence, the Court found that the proposed search of the defendant's body was unreasonable.

Just as Schmerber's holding with regard to the reasonableness of blood tests did not necessarily require a similar conclusion with respect to truth serum, so the Winston Court's finding with respect to the unreasonableness of the surgical procedure there at issue does not require a similar finding in the case of truth serum. Of the three chief factors cited in Winston, the concern over individual dignity and bodily integrity is clearly the most troubling. Subjecting a terrorist suspect to such substances, like the surgical operation at issue in Winston, involves rendering an individual unconscious, or at least semiconscious. Such a procedure interrupts a person's ability to deliberate rationally and choose autonomously--the prototypical sources of human dignity. Indeed, the psychological intrusion resulting from the administration of truth serum may be worse than the physical invasion resulting from the surgical procedure at issue in Winston. Extracting the contents of a suspect's mind might well represent a greater interference with his personal dignity and privacy than removing physical matter lodged beneath his skin.

On the other hand, the other factors mentioned by the Winston Court--the safety of the procedure and law enforcement's need for the information in question--probably militate in truth serum's favor. As mentioned above, when properly administered, truth serum poses no significant health or safety concerns. With respect to authorities' need for the information, moreover, it is not difficult to imagine situations in which the use of truth serum might well be warranted. Where traditional interrogation practices have proved ineffective, for example, and where a terrorist threat appears imminent, the need for such information may be urgent indeed.

In the end, therefore, Winston points in conflicting directions with respect to truth serum: while the infringement on personal dignity is acute, the need to avert a terrorist attack may be no less severe. My goal here is not to suggest the way in which the issue should be resolved. I seek only to highlight the difficulty of making any such definitive judgment, and to underscore that the individual's dignitary interests are not absolute in the Fourth Amendment inquiry. The Winston Court itself took great pains to emphasize that determinations of reasonableness must be conducted on a case-by-case basis, and that serious infringements on personal dignity may well be legitimate where the countervailing interests are sufficiently weighty. In Justice Brennan's words:
 The Fourth Amendment neither forbids nor permits all such intrusions;
 rather, the Amendment's proper function is to constrain, not against
 all intrusions as such, but against intrusions which are not
 justified in the circumstances, or which are made in an improper
 manner.

 The reasonableness of surgical intrusions beneath the skin
 depends on a case-by-case approach, in which the individual's
 interests in privacy and security are weighed against society's
 interests in conducting the procedure. In a given case, the question
 whether the community's need for evidence outweighs the substantial
 privacy interests at stake is a delicate one admitting of few
 categorical answers. (139)


The circumstances under which intrusive and even humiliating investigative practices may be found reasonable is further clarified by the Court's decision in United States v. Montoya de-Hernandez. (140) In Montoya, a defendant was stopped at Los Angeles International Airport after arriving from Columbia because customs officials suspected that she was smuggling drugs in her alimentary canal. After being detained for nearly sixteen hours, the defendant was subjected to a court-ordered pregnancy test as well as a rectal examination, (141) resulting in the recovery of eighty-eight balloons containing a total of 528 grams of cocaine. (142) Noting that the Fourth Amendment requires weighing the intrusiveness of law enforcement practices against the promotion of legitimate government interests, the Court held that the balance tipped in the government's favor and that the search and detention of the defendant did not violate the Fourth Amendment. The Court placed particular emphasis on the fact that the balance of reasonableness is "qualitatively different" at the border than at the interior. (143) Further, although the Court acknowledged that the defendant's detention "was long, uncomfortable, indeed humiliating," (144) it opined that both the length and the discomfort were due to the defendant's own actions.

The Court's holding in Montoya demonstrates that the balancing central to the reasonableness inquiry must be taken seriously: Even searches of the most invasive and humiliating sort may be justified under particular circumstances. Perhaps most suggestive is Montoya's finding of reasonableness with respect to the court-ordered pregnancy test. The forcible administration of a pregnancy test, like truth serum, involves an infringement on a person's bodily integrity designed to obtain information she might otherwise wish to keep private. To be sure, a pregnancy test does not involve rendering a person unconscious. Nevertheless, other aspects of the bodily search at issue in Montoya (e.g., the rectal examination) arguably involve a comparable degree of infringement on personal dignity. It is also important to remember, however, that the search in Montoya took place at the nation's border. The decision thus intimates that it might be more "reasonable" to administer truth serum to terrorist suspects detained outside, or at the threshold of, the nation's interior.

C. Conclusion

The argument of this Part can be summarized as follows: The right to privacy under Article 17 of the ICCPR, far from being absolute, permits state action that interferes with privacy so long as that action is lawful and not arbitrary. In order to determine whether the use of truth serum meets these requirements, it is necessary to examine whether such methods are permissible under domestic U.S. law. No provision of the U.S. Constitution (nor any provision of state or federal law) makes the use of truth serum categorically unlawful. The Fifth Amendment is not violated where the information obtained from truth serum interrogations is not admitted into evidence at trial. The Court's decision in Townsend indicates that due process violations are subject to a similar proviso. And even if coercion alone sometimes is sufficient to violate due process, the inquiry into whether a given interrogation or investigatory technique rises to such a level is too fact-bound and indeterminate to foreclose resort to truth serum under any and all circumstances.

Likewise, an examination of the U.S. Supreme Court's Fourth Amendment jurisprudence affords no grounds for concluding that the use of truth serum violates Article 17's reasonableness requirement. Where the procedure is performed by a medical professional in a clinical setting, and where the societal interest is sufficiently strong, interrogation of a subject in a drug-induced state may well be permissible. Where such procedures are conducted outside of the nation's borders, they may be even more reasonable for Fourth Amendment purposes. Of course, the fact that such methods might be reasonable under the U.S. Constitution does not necessarily compel the conclusion that they should be considered reasonable under Article 17. Nevertheless, the possible constitutionality of the practice in the United States provides good reason for adopting a similarly open-ended approach with regard to the use of truth serum under the ICCPR. As noted above, the ICCPR itself acknowledges that the concept of privacy is culturally relative and presupposes a certain degree of deference to different national understandings of privacy. Nor is there any reason for thinking that the HRC's Article 17 decisions embody a more robust conception of privacy than that embodied in the U.S. Constitution's Fourth Amendment. Indeed, it might be argued that the ICCPR's privacy right is much weaker. It is worth noting, for example, that the HRC has never invalidated state action on the basis of the right to privacy alone. The only cases in which the HRC has found a violation of Article 17 have involved the simultaneous violation of some other ICCPR provision. (145) In sum, there is serious reason to doubt whether the use of truth serum necessarily constitutes a violation of the right to privacy under international law.

IV. TORTURE UNDER THE ICCPR AND THE CAT

A number of commentators have argued that administering truth serum to terrorist suspects for the purpose of extracting information constitutes torture. (146) Since at least as far back as the Universal Declaration of Human Rights, international law has condemned torture in the strongest possible terms. (147) More recently, the widespread outrage against torture has been given legal effect with the signing of a variety of regional and international instruments. (148) The two most important instruments from the point of view of the present study are the ICCPR and the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Both the Covenant and the Convention contain provisions proscribing torture, and both have been ratified by the United States. Determining whether the use of truth serum by U.S. authorities constitutes torture therefore requires an examination of each of these instruments.

A. Torture Under the ICCPR

The ICCPR contains two separate articles that prohibit torture and other forms of ill treatment. Article 7 states: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Does injecting a person with an inhibition-reducing drug and placing him under interrogation fall within any of these proscribed forms of treatment? For at least three reasons, it is difficult to draw such a conclusion.

The first problem is admittedly technical and legalistic in nature: In ratifying the ICCPR, the United States specifically lodged a reservation stating that it understands "torture" and "cruel, inhuman, and degrading treatment" to be synonymous with the concept of "cruel and unusual punishment" outlawed under the Fifth, Eighth, and Fourteenth Amendments of the U.S. Constitution. (149) Whatever view one takes regarding the legitimacy of these reservations, (150) they make it clear that, as a legal matter, the United States considers itself formally bound by Article 7 only to the extent that its limitations conform to those already found in the U.S. Constitution. As in the case of the right to privacy, therefore, we are forced to examine domestic law in order to determine the meaning of the United States's obligations under the ICCPR. Only if the use of truth serum violates the U.S. Constitution is the United States barred from using such measures by the ICCPR.

The previous Part established that the use of truth serum does not necessarily constitute a violation of either the Fifth or the Fourteenth Amendments. The Eighth Amendment similarly presents no necessary bar to such measures. As a technical matter, of course, the Eighth Amendment applies only to cruel and unusual punishments assigned after a person has been convicted of a crime. (151) To the extent that truth serum is used only for intelligence-gathering purposes, or indeed is used at any time before a person's guilt has been formally adjudicated, it might be argued that the Eighth Amendment simply never comes into play. More importantly, as is true of state action found to violate the Fourth Amendment or the Due Process Clause, the types of conduct found by courts to violate the Eighth Amendment provide no clear grounds for finding the use of truth serum to be cruel and unusual punishment. Examples of such conduct noted by the early Supreme Court included being "embowelled alive," being drawn, quartered, or dragged to the place of execution, being burned alive, beheaded, or publicly dissected. (152) More recently, the Court has found Eighth Amendment violations in punishments that are perhaps less obviously barbaric but that are disproportional to the crime committed. Hence, the Court has found a fifteen-year prison sentence with hard labor to be cruel and unusual punishment for the crime of forging an official public document. (153) The Court has also held that denationalization may violate the Eighth Amendment. (154) The problem, however, is that the Court's decisions in these cases contain no clear guidance with respect to truth serum use. We are once again forced to make imponderable comparisons: while being subjected to an inhibition-reducing substance is clearly less cruel and unusual than being drawn and quartered, it is unclear whether it is as objectionable as being sentenced to an unduly long prison sentence or being stripped of one's citizenship.

Of course, a finding that the use of truth serum falls short of violating the Eighth Amendment, or any other provision of the U.S. Constitution, should not mark the end of the inquiry. Whatever the United States's own understandings of cruel and inhuman treatment may be, and however those understandings may affect its formal obligations under the ICCPR, it is still important to examine the way in which torture is understood in the ICCPR's own terms. After all, the Eighth Amendment may be radically out of line with the norms of the international community. (155) (Indeed, there is some reason for thinking that the Eighth Amendment embodies less protection against ill treatment than the ICCPR. (156)) In the end, we must ask whether the use of truth serum constitutes torture or any of the other forms of ill treatment banned by the ICCPR, as those terms appear in the text of Article 7 and as they have been interpreted by the HRC.

Even under the ICCPR's own terms, however, the case for regarding truth serum as torture is weak at best. Given Article 7's vagueness, it is difficult to reach a definite conclusion. For, as is true of Article 17's conception of privacy, the ICCPR's text nowhere attempts to provide even a basic elucidation of the concepts of "torture" or "degrading treatment." The HRC's General Comment to Article 7 provides no further guidance, and is decidedly unapologetic about the terms' lack of definition. (157) Nor are the HRC's decisions of much help in clarifying matters. The Committee has never confronted a case involving the administration of drugs to obtain confessions or information. Nor, again, do the practices explicitly designated as torture by the HRC support extending the term's boundaries to encompass truth serum. The clearest examples of torture include being undressed, strapped to the concrete floor of a cell, and having electric shocks applied to one's genitals; being beaten with metal bars wrapped with barbed wire; being forced to stand for fourteen hours continuously; and near-drowning by having one's head dunked in foul water with a cloth over one's head. (158) Although the Committee has never specified what it is about all of these practices that makes them torture, it is clear that each involves the infliction of various forms of physical suffering. By contrast, the administration of truth serum involves little physical pain beyond a pinprick.

It is true that the HRC has found the infliction of certain forms of psychological suffering to constitute torture. But the practices condemned in those cases--mock executions and amputations, repeated threats that detainees' friends and relatives will be tortured and executed, and threats that detainees will be made to witness the torture of their loved ones (159)--are of an altogether different kind. The fear engendered by mock executions or threats to prisoners' family members will, in all but the most unusual circumstances, (160) be of vastly greater intensity than the prospect of being injected with a substance merely likely to foster loquacity. It is perhaps not impossible to imagine cases in which a terrorist suspect's desire to keep a given bit of information secret will cause him grave anxiety. But whether extracting the secret from him by means of truth serum amounts to torture should turn on the nature of the information in question. A terrorist suspect might well experience great dread in knowing that authorities stand a greater chance of obtaining information from him about an upcoming attack if they inject him with truth serum. But it would be perverse to equate that fear with the kinds of fear that have been found to constitute psychological torture, such as love for one's family or attachment to one's physical limbs. Where interrogators seek only information about terrorist-related activities, therefore, a subject's fear fails to constitute a compelling reason against using truth serum.

Of course, it might be argued that even if the use of truth serum falls short of torture, it still amounts to inhuman or degrading treatment, which Article 7 prohibits just as strongly as it prohibits full-blown torture. One problem with this tack, however, is that given the lack of clarity in the HRC's jurisprudence, it is exceedingly difficult to distinguish between torture and the various other forms of ill treatment. (161) Moreover, to the extent that the HRC has specifically condemned actions as meeting the lesser standard for cruel and inhuman treatment, such actions once again form no clear analogy to truth serum use. These forms of treatment include beating to point of unconsciousness; denial of appropriate medical care; (162) incommunicado detention for more than a year; (163) repeated beatings with clubs, pipes, and batons without medical attention; (164) detainment in a cell measuring twenty by five meters with 125 other prisoners and without any food or water; (165) death threats; (166) incarceration in a cell for twenty-three hours per day without bedding, food, sanitation, or natural light; (167) being forced to stand for thirty-five hours, with wrists bound by coarse cloth and eyes continuously bandaged; (168) and deprivation of food and drink for four days following arrest while being detained in unsanitary conditions. (169)

The same holds true of conduct found by the Committee to constitute "degrading treatment" under Article 7, as well as conduct that the HRC has found violative of Article 7 without any further specification as to whether the conduct constitutes torture or any of the lesser forms of ill treatment. Examples of such practices include dumping a bucket of urine on a prisoner's head, throwing his food and water on the floor, and his mattress out of his cell; (170) beating prisoners with rifle butts and subsequently refusing them medical treatment; (171) detaining individuals in cages and displaying them to the media; (172) assaulting prisoners kept in tiny cells and limiting the number of visitors they may receive; (173) chaining detainees to bed springs for three months; (174) rubbing salt into prisoners' nasal passages and forcing them to spend the night chained to a chair; (175) administering beatings requiring stitches; (176) blindfolding and dunking detainees' heads in a canal; (177) denial of exercise, medical treatment, and asthma medication; (178) and whippings and beatings with a birch or tamarind switch. (179)

In the end, there simply is no clear or objective standard for determining whether the kind of harm or indignity caused by the administration of talk-inducing drugs is equal to or greater than that involved in the various forms of brutality considered by the HRC to be torture, or cruel, inhuman, or degrading treatment. To the contrary, the harms engendered by the use of truth serum are incommensurable with those found to violate Article 7. For precisely that reason, it would be rash to conclude, absent a contrary holding by the HRC, that using truth serum during interrogation constitutes a violation of Article 7. If anything, the fact that truth serum does not involve the egregious forms of physical or psychological suffering characteristic of torture and other forms of ill treatment provides strong grounds for reaching the opposite conclusion.

One final reason for thinking that the use of truth serum should not be regarded as torture under the ICCPR is furnished by the history of Article 7's drafting. In 1950, during the Sixth Session of the Commission charged with drafting Article 7, there was a great deal of disagreement over what became the Article's second clause. (180) Working against the backdrop of experiments performed by the Nazis during World War II, as well as the Mindszenty trial in Hungary, the Egyptian delegate, Dr. Abdel Meguid Ramadan, proposed adding a ban on the use of dangerous drugs. (181) In doing so, he specifically requested that pentothal be banned. It was none other than Eleanor Roosevelt, acting as chairperson of the drafting commission, who rejected the proposal. (182) Although the precise reasons for the rejection are unclear, her concerns appear to have been twofold. First, she argued that prohibiting one particular drug might leave the impression that the use of other potentially harmful drugs was permissible. (183) Second, and more importantly, she argued that too little information on the effects of such drugs was available, suggesting that an outright ban might be overhasty and imprudent. (184) When Ramadan proposed that a ban on mental torture be included instead, that suggestion was also rejected as overly broad. (185)

The foregoing discussion does not preclude a finding that the use of truth serum violates Article 7 of the ICCPR. Even if many of the practices condemned by the HRC as torture or lesser forms of ill treatment differ substantially from, or are more severe than, the use of truth serum, it does not follow that truth serum is permissible under Article 7. Nor is the historical fact that the ICCPR's framers initially rejected the notion that such methods were barred by Article 7 dispositive of whether the Article should be interpreted so as to bar the use of truth serum in the contemporary world. Nevertheless, when taken together, Article 7's text, the HRC's jurisprudence, and the evidence from the Article's framing clearly militate against any peremptory assertion that truth serum use constitutes torture under the ICCPR, or even that it amounts to inhuman or degrading treatment.

B. The U.N. Convention Against Torture

At first blush, the CAT might appear to be something of a redundancy. If the ICCPR prohibits torture, one might wonder why a second international instrument should be necessary to ban such conduct. Moreover, the United States's ratification of the CAT was subject to many of the same reservations as those attached to its ratification of the ICCPR. (186) It might thus seem that, from the United States's perspective, terms such as "torture" and "inhuman treatment" have the same meaning under both the CAT and ICCPR.

For two reasons, however, independent examination of the CAT is essential. First, although the CAT and ICCPR clearly overlap, they differ in a number of crucial ways. The CAT's text, for example, provides a much more specific definition of torture than its companion provision in the ICCPR. (187) At the same time, the law handed down by the Committee Against Torture is much less developed than that of the HRC. Thus, notwithstanding the similarities between the CAT and ICCPR, it is important to conduct an independent inquiry into whether the CAT, taken on its own terms, proscribes the use of truth serum. The fact that the ICCPR does not prohibit the use of truth serum is not dispositive of whether the CAT prohibits such measures.

It is also important to devote special attention to the CAT because the implementing legislation passed by Congress in order to comply with the CAT contains a much more specific definition of torture--one that, unlike the CAT itself, makes specific mention of "mind-altering substances." (188)

Thus, this Part examines both the CAT and the United States's implementing legislation and considers whether the use of truth serum constitutes torture under either instrument. It concludes that it probably does not. (189)

1. Article 1: Torture

As noted above, the CAT provides a much clearer definition of torture than does the ICCPR. Article 1 of the CAT reads as follows:
 For the purposes of this Convention, torture means any act by which
 severe pain or suffering, whether physical or mental, is
 intentionally inflicted on a person for such purposes as obtaining
 from him or a third person information or a confession, punishing
 him for an act he or a third person has committed or is suspected
 of having committed, or intimidating or coercing him or a third
 person, or for any reason based on discrimination of any kind, when
 such pain or suffering is inflicted by or at the instigation of or
 with the consent or acquiescence of a public official or other
 person acting in an official capacity. It does not include pain or
 suffering arising only from, inherent in or incidental to lawful
 sanctions. (190)


Article 2 further specifies that the obligation to refrain from torture is nonderogable: no set of circumstances, no matter how severe, may serve as a justification for a state to engage in torture. (191) Furthermore, Article 15 prohibits the use at trial of any information obtained by means of torture (except against the person accused of torture). (192)

One serious problem with the CAT's definition of torture is that it requires the infliction of severe pain and suffering. As some commentators have pointed out, Article 1 fails to cover the use of mind control and other objectionable techniques that simply do not involve pain. (193) It is particularly difficult to see how Article 1 might apply to substances such as sodium pentothal, which, far from causing suffering, are commonly used precisely for their pain-relieving properties.

This argument might seem to rely upon too restrictive an understanding of pain and suffering. These terms should not be understood, so it might be argued, as the kind of physical sensations one might experience on receiving beatings or being subjected, say, to loud, continuous noise. Article 1 plainly applies to pain and suffering that is mental as well as physical. As noted above, those subjected to truth serum might very well experience psychological pain and suffering at the prospect of having information extracted from them that they wish to keep private.

But even assuming that Article 1 covers the kind of suffering that might arguably be inflicted on those to whom truth serum is administered, it would be necessary to show that such suffering possesses the requisite level of severity. While impossible to rule out in the abstract, it is not easy to imagine circumstances under which a terrorist suspect would experience severe suffering by having to undergo a procedure designed simply to get information to stop further terrorist acts. The severity of such a subjective state obviously resists quantification, (194) and the Committee Against Torture has issued few statements elucidating the sorts of treatment amounting to torture. (195) Thus far, the Committee has condemned restraining prisoners under very painful conditions; sleep deprivation and the sounding of loud music for prolonged periods; violent shaking; and using cold air to chill subjects. (196) Even if the Committee's cases were more explicit, it is ultimately very unlikely that its position would differ radically from that of the HRC. And for the HRC, it will be recalled, mental or psychological suffering was found to rise to the level of torture only in such extreme cases as, for example, mock executions, feigned amputations, and threats to the safety and lives of loved ones. (197) Does subjection to inhibition-reducing substances involve the same quantum of pain and suffering caused by these experiences? At the very least, the question admits of reasonable disagreement.

Finally, as with the ICCPR, the CAT's negotiating history furnishes one further reason for rejecting the notion that the treaty's definition of torture includes the use of truth serum. During the CAT's drafting, Barbados specifically suggested that the definition of torture be expanded to include the use of "truth drugs." (198) Thus, the negotiators of the instrument clearly had the opportunity to ban the use of truth serum if they had wanted to. The fact that they decided against such a move strongly indicates that the use of such methods does not amount to torture.

In sum, it is impossible to say with any assurance that Article 1 of the CAT positively prohibits the use of truth serum.

2. Article 16: Cruel, inhuman, or degrading treatment or punishment

Alternatively, it might be argued that even if the use of truth serum does not rise to the level of torture, it violates the CAT's ban on cruel, inhuman, and degrading treatment found in Article 16. That Article provides that "[e]ach State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article I." (199) The conduct proscribed by Article 16 is clearly of lesser severity than that constituting torture. (200) Thus, a finding that truth serum is not forbidden by the terms of Article 1 in no way precludes a finding that its use is precluded by the restrictions of Article 16.

For a number of reasons, however, recourse to Article 16 is ultimately of little moment. As an initial matter, there is little reason, given previous decisions by the Committee Against Torture, to think that the use of truth serum would in fact qualify as cruel, inhuman, or degrading treatment. Among the forms of treatment found to rise to that level are the burning and destruction of houses; (201) police brutality resulting in death or serious injury; (202) deprivation of food, medical treatment, and proper places of detention; (203) and internal exile. (204) All of these are readily distinguishable, both in degree and kind, from subjection to truth serum.

Second, even assuming that the use of truth serum qualifies as cruel, inhuman, or degrading treatment, such a finding would carry little practical significance. This is because important legal consequences hinge on the distinction between torture and lesser forms of ill treatment under the CAT. For one thing, while Article 14 of the CAT requires legal sanctions to be brought against those found guilty of engaging in torture under Article 1, this appears not to be the ease with respect to those guilty of Article 16 violations. So far as the CAT is concerned, perpetrators of cruel, inhuman, and degrading treatment arguably do so with impunity. (205) Moreover, the CAT fails even to require the exclusion of evidence obtained by such means. Article 15, which requires exclusion in the ease of torture under Article 1, manifestly does not apply to conduct falling under Article 16. (206)

In sum, the use of truth serum is no more obviously incompatible with the CAT than with the ICCPR. Again, this is not to say that the use of truth serum clearly falls outside of the CAT's provisions or that there are no circumstances under which the use of such methods might amount to torture. On the other hand, there is no reason, examining either the CAT's text or the jurisprudence of the Committee Against Torture, to assume that truth serum is necessarily proscribed.

3. The United States legislation implementing the CAT: 18 U.S.C. [section] 2340

Finally, it is important to consider the legislation passed by Congress to implement the CAT. As noted above, the statute makes explicit reference to the use of mind-altering substances. Specifically, 18 U.S.C. [section] 2340(1) defines torture as "an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering." (207) It further goes on to define "severe mental pain or suffering" as:

the prolonged mental harm caused by or resulting from--

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality. (208)

Given its reference to "mind-altering substances," the statute's definition of torture clearly comes much closer than the text of either the CAT or ICCPR to covering truth serum. It might perhaps be argued that drugs such as sodium pentothal are not covered by [section] 2340(1)'s definition because such substances do not create the profound disruption of senses or personality that the statute requires. But while it would be difficult precisely to determine just what constitutes "profound" disruption and what does not, such an argument seems unconvincing at best. There can be little question that a person's sense of time, her memory, and her awareness of her surroundings become substantially impaired while under the influence of drugs such as sodium pentothal. Similarly, the personality of an individual under the influence of such substances, much like a person under the influence of alcohol, may well undergo profound alteration.

Nevertheless, under [section] 2340, it is not enough that the effects of mind altering substances merely be profound. The mental harm resulting from the application of such substances must also be prolonged. There seems little reason to believe that the use of drugs such as sodium pentothal results in any lasting harm, let alone prolonged harm. Indeed, any effect of such substances is confined to the period of administration. Rather than targeting drugs such as sodium pentothal, [section] 2340 is more naturally read as banning more dangerous substances such as LSD. Not only are the effects of LSD and similar drugs immensely more severe and long-lasting than those of sodium pentothal, but those effects are also inscribed in one of the more unfortunate chapters of the nation's history. (209)

CONCLUSION

The foregoing analysis has attempted to demonstrate that neither international law nor U.S. law categorically bars the United States from using truth serum for intelligence-gathering purposes in its efforts to combat terrorism. Determining whether the ICCPR's right to privacy is violated by such methods ultimately requires application of standards embodied in the United States's own Constitution--particularly those enshrined in the Fourth, Fifth, and Fourteenth Amendments. Those standards, bound up as they are with the malleable and fact-dependent notions of reasonableness and due process, simply fail to support any a priori or per se ban on truth serum use. The prohibitions on torture and other forms of ill treatment found in the ICCPR and CAT provide an equally infirm basis for finding that such methods are verboten. The administration of inhibition-reducing substances does not involve the kind of pain and brutality characteristic of the practices condemned as torture by the HRC or the Committee Against Torture. The case for a finding of cruel, inhuman, or degrading treatment, while perhaps more plausible, is still far from certain, and even if it could be established would, at least in the case of the CAT, lack any practical legal effect. Finally, although it seems substantially more likely that truth serum use would amount to a violation of the Geneva Convention Relative to the Treatment of Prisoners of War, that prohibition is not difficult to circumvent in light of the contestable nature of prisoner-of-war status necessary to bring the Convention's protections into play.

To say that truth serum is not absolutely prohibited under international law, however, is not to say that such tactics ought to be embraced, or that they may be deployed without restraint. On the contrary, the foregoing analysis has revealed a number of conditions that must obtain in order for the use of truth serum to be permissible. These are furnished not by international law but by the U.S. Constitution. First and foremost, the statements gained by such tactics may never be used at trial against the person making them. In addition, such methods are allowable only where the societal need for the intelligence in question is exceedingly grave. As we have seen, the balancing inquiry required under the U.S. Constitution's (and the ICCPR's) right to privacy takes into account law enforcement officials' ability to obtain information by other, less intrusive means. If information can be extracted from terrorist suspects through grants of protection, immunity, or perhaps even financial remuneration, authorities should refrain from using substances such as sodium pentothal. It further goes without saying that administration of the serum must be performed by properly trained medical personnel in a safe setting.

Even with these constraints, one may feel diffident about adding truth serum to the tools the United States may legitimately use in combating terrorism. That diffidence is even more warranted in aftermath of the events at Abu Ghraib. (210) Such methods clearly possess a potential for abuse, as is amply demonstrated by the nation's ill-fated experimentation with truth serum in the Cold War era. On the other hand, today's law enforcement and intelligence officials are much better situated to avoid such mistakes precisely because of the earlier abuses. For example, the superiority of sodium pentothal to more dangerous substances such as LSD is now well known. Lessons can also be learned from the secrecy that surrounded earlier experimentation with truth serum. If drugs are to be used for interrogation purposes, the procedures should be openly acknowledged and carefully monitored. Finally, it is important to note that, while susceptible to abuse, the use of truth serum is not likely to invite the kinds of anarchic brutality witnessed at Abu Ghraib. Precisely because truth serum can only be effectively administered by qualified medical professionals under controlled conditions, it is not the sort of tactic likely to go awry in the hands of personnel running amok.

Nevertheless, interrogation conducted by such means is, by its very nature, unpredictable. The very property that makes truth serum effective--its ability to induce individuals to speak spontaneously and uninhibitedly about even the most personal matters--makes it difficult to cabin the results of interrogation carried out by such methods. Even well-intentioned interrogators asking carefully prepared questions may elicit all sorts of irrelevant, potentially humiliating personal information.

Addressing such concerns may necessitate further safeguards. In developing such precautions, a good measure of creativity is in order. For example, wiretapping procedures carry essentially the same potential for obtaining unsolicited information as does truth serum. It might thus be advisable to attach to any interrogation taking place under the influence of truth serum the same sorts of protections and requirements associated with electronic surveillance procedures. Title III of the Crime Control Act of 1968, (211) for example, contains a "minimization" condition requiring agents momentarily to curtail surveillance activities when they encounter conversations not relevant to the matter under investigation. In a similar manner, those performing interrogations might circumscribe the range of questions to be asked and discontinue questioning when subjects begin revealing information having no relevance to the matters in question. In addition, decisions to use truth serum during interrogation should only be allowed subject to a warrant or with some other mechanism providing for court review.

In any event, it is worth reemphasizing that this Note has attempted only to show that the constraints currently embedded in international law and the U.S. Constitution leave some potential room for the use of truth serum in interrogating terrorist suspects. This conclusion is not a normative one. Even if such techniques are legal, the United States may opt against their use on purely prudential grounds. A showing of restraint on the United States's part might help, if only slightly, to stem the tide of concern within the international community about the increasingly forceful tactics used by this nation in combating terrorism around the globe.

*****

(1.) H.R. 2121, 106th Cong. (2000).

(2.) Id.

(3.) Secret Evidence Repeal Act of 1999: Hearing on H.R. 2121 Before the Subcomm. on Immigration and Claims of the House Comm. on the Judiciary, 106th Cong. 15-16 (2000) (statement of Rep. Tom Campbell).

(4.) U.S. Dep't of State, Patterns of Global Terrorism: 2003 (Revised) (2004), http:// www.state.gov/s/ct/rls/pgtrpt/2003/33771.htm (last visited Sept. 18, 2004) (reporting 208 acts of terrorism in 2003, up from 198 attacks in 2002). The original version of the report, released in April 2004, showed a decrease in terrorist incidents during 2003. The findings were corrected in June 2004, when it was discovered that the report had inadvertently failed to include terrorist acts occurring after November 2003. See, e.g., Dan Eggen, Powell Calls Report "A Big Mistake," WASH. POST, June 14, 2004, at A13.

(5.) See, e.g., Alan Sipress & Ellen Nakashima, Death Toll in Bali Attack Rises to 188, WASH. POST, Oct. 14, 2002, at A1; see also Uli Schmetzer, Bali Terror Link Probed, CHI. TRIB., Oct. 14, 2002, at 1 (describing the Bali attacks).

(6.) See, e.g., Ellen Nakashima, Lethal Blast Hits Jakarta Hotel, WASH. POST, Aug. 6, 2003, at A1 (describing attacks on American Hotel, which had a special relationship with the U.S. Embassy in Jakarta).

(7.) See, e.g., Hassan Jamali, Attacks Shake Riyadh, CHI. TRIB., May 13, 2003, at 1 (reporting on attacks in several compounds housing Westerners and Saudis on May 12, 2003).

(8.) These assertions are made most commonly by officials defending the Patriot Act, or expansions of the Patriot Act, such as in the recently leaked draft of the "Domestic Security Enhancement Act" (also called "Patriot II"). Attorney General Ashcroft has repeatedly credited the Patriot Act's expanded surveillance powers with averting terrorist attacks. As he put it when testifying before the House Judiciary Committee last June:
 Let me state my view as clearly as possible. Our ability to prevent
 another catastrophic attack on American soil would be more
 difficult, if not impossible, [sic] without the PATRIOT Act. It has
 been the key weapon used across America in successful
 counterterrorist operations to protect innocent Americans from the
 deadly plans of terrorists.


Hearing on the Justice Department and the USA PATRIOT Act: Hearing Before the House Comm. on the Judiciary, 108th Cong. 8 (2003) (statement of Attorney General John Ashcroft). President Bush has often made the same point. In his most recent State of the Union Address, for example, he told Congress:
 For years, we have used similar provisions [to those in the Patriot
 Act] to catch embezzlers and drug traffickers. If these methods are
 good for hunting criminals, they are even more important for hunting
 terrorists. Key provisions of the Patriot Act are set to expire next
 year. The terrorist threat will not expire on that schedule. Our law
 enforcement needs this vital legislation to protect our citizens.
 You need to renew the Patriot Act.


President George W. Bush, State of the Union Address (Jan. 20, 2004), http:// www.whitehouse.gov/news/releases/2004/01/20040120-7.html (last visited Sept. 18, 2004); see also Toby Eckert, Groups Not Seeking Anti-Terror Money, Security Chief Says, SAN DIEGO UNION TRIB., Sept. 13, 2003, at A3 (reporting Homeland Security Secretary Chief Tom Ridge's remarks that another terrorist attack on U.S. soil is inevitable).

(9.) See, e.g., Paulette Cooper, Telling the Truth Isn't Torture, WASH. TIMES, Aug. 15, 2002, at A19; Is Torture Ever Justified?, ECONOMIST, Jan. 11, 2003, available at 2003 WL 6244568 ("Given the gravity of the terrorist threat, vigorous questioning short of torture--prolonged interrogations, mild sleep deprivation, perhaps the use of truth serum--might be justified in some cases."); E.V. Kontorovich, Make Them Talk, WALL ST. J., June 18, 2002, at A16 (arguing that truth serums have more in common with wiretaps than with torture).

(10.) See, e.g., Kevin Johnson & Richard Willing, Ex-CIA Chief Revitalizes "Truth Serum" Debate, USA TODAY, Apr. 26, 2002, at A12 (reporting Webster's urging the Pentagon to administer truth serum to Taliban and Al Qaeda prisoners to prevent terrorist attacks); Use of Truth Serums Urged, CHI. TRIB., Apr. 26, 2002, at 2 (same). The use of truth serum has also been advocated by Jed Babbin, deputy undersecretary of defense during the first Bush administration. See, e.g., 60 Minutes II: Truth Serum: A Possible Weapon (CBS television broadcast, Apr. 23, 2003).

(11.) Memorandum from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the President 8-12 (Aug. 1, 2002), http:// news.findlaw.com/nytimes/docs/doj/bybee80102mem.pdf (last visited Sept. 18, 2004) [hereinafter Bybee Memo].

(12.) See, e.g., Jess Bravin & Gary Fields, War on Terror: Methods of Interrogation Vary, WALL ST. J., Mar. 5, 2003, at A6; Ian Fisher & John Kifner, U.S. Captures a Half Brother of Iraqi Chief, N.Y. TIMES, Apr. 18, 2003, at A1; James Risen & David Johnston, "85 Hijacker Is Captured in Baghdad, N.Y. TIMES, Apr. 15, 2003, at B1.

(13.) See, e.g., Seymour M. Hersh, Torture at Abu Ghraib, NEW YORKER, May 10, 2004, at 42.

(14.) As is detailed more fully below, truth serum received a substantial amount of attention during the early part of the twentieth century, reaching its apex in the 1950s. See, e.g. (chronologically), R.E. House, Why Truth Serum Should Be Made Legal, 42 MEDICOLEGAL J. 138 (1925); Leon M. Despres, Legal Aspects of Drug-Induced Statements, 14 U. CHI. L. REV. 601 (1947); C.W. Muehlberger, Interrogation Under Drug Influence: The SoCalled "Truth Serum" Technique, 42 J. CRIM. L. CRIMINOLOGY & POLICE SCI. 513 (1951); George H. Dession et al., Drug-Induced Revelation and Criminal Investigation, 62 YALE L.J. 315, 342 (1953); John H. MacDonald, Truth Serum, 46 J. CRIM. L. CRIMINOLOGY & POLICE SCI. 259, 261 (1955). After the mid-1950s, however, the topic seemed to drop off of the legal academy's radar almost entirely. Virtually the only recent article to address the topic, though it does so only in passing, is John T. Parry & Welsh S. White, Interrogating Suspected Terrorists: Should Torture Be an Option?, 63 U. PITT. L. REV. 743 (2002).

(15.) See, e.g., JOHNNY ENGLISH (Universal Pictures 2003); RED DRAGON (Universal Pictures 2002); TRUE LIES (Twentieth Century Fox 1994).

(16.) For example, newspapers covering the trial of Michael Skakel widely reported that Skakel had at one point asked to be placed under the influence of truth serum in order to help him remember his role in the death of Martha Moxley. See, e.g., Wendy Davis, Skakel Witness Alters Past Testimony, BOSTON GLOBE, May 16, 2002, at BI; Witness in Skakel Case Recants '98 Statement, L.A. TIMES, May 16, 2002, at A13.

(17.) See infra text accompanying notes 31-83.

(18.) Jess Bravin & Gary Fields, How Do U.S. Interrogators Make a Captured Terrorist Talk?, WALL ST. J., Mar. 4, 2003, at B1 (reporting that the CIA denies that it uses truth serum). Butsee The Truth Is Not Out There, GUARDIAN, Jan. 18, 2003, at 15 (reporting that the CIA and the Pentagon refuse to say whether they use truth serum).

(19.) See, e.g., Akshaya Mukul, Legal Questions Raised over Truth Serum Use, TIMES INDIA, July 25, 2002, available at 2002 WL 23941863 (quoting an Indian attorney as stating, "[i]n India, it is not uncommon to extract confessions by using the serum"). A particularly striking illustration of the use of truth serum in India can be seen in what has come to be called the "Gujarat Massacre." In February of 2002, a train carrying a large number of Hindu activists who had recently visited a disputed temple site pulled into a station in a predominantly Muslim area. Words were apparently exchanged between the Hindus and a group of Muslims occupying the train platform. As the train departed, an angry mob set fire to four cars and fifty-seven people were killed. See Rama Lakshmi, Mob Attacks Indian Train, WASH. POST, Feb. 28, 2002, at A13. As part of the investigation into the incident, sodium pentothal was administered to five suspects, and the information obtained was used in the arrest of several others. See Sourav Mukherjee, No Attempt to Nail the Big Shots, TIMES INDIA, Sept. 7, 2002, available at 2002 WL 26789517.

(20.) See Johnson & Willing, supra note 10 (reporting that in 1995 and 1999, France and the Philippines were investigated by the U.N. in connection with allegations concerning truth serum use).

(21.) See, e.g., AMNESTY INT'L, MEMORANDUM TO THE US ATTORNEY GENERAL--AMNESTY INTERNATIONAL'S CONCERNS RELATING TO THE POST 11 SEPTEMBER INVESTIGATIONS (2001), http://web.amnesty.org/library/index/ENGAMR511702001 (last visited Sept. 18, 2004) [hereinafter AMNESTY INT'L REPORT]; Simon Crerar, Giving the Lie to Truth Drugs, SUNDAY TIMES (London), Jan. 6, 2002, at 9 (noting Human Rights Watch's opposition to truth serum as torture); Press Release, National Association of Criminal Defense Lawyers, NACDL President Condemns Talk of Torture, Truth Serum (Oct. 26, 2001), http://www.criminaljustice.org/public.nsf/newsreleases/2001mn032?opendocument (last visited Sept. 18, 2004).

(22.) Most writing on the subject uses the term "truth serum" to refer indiscriminately to any and all of the substances possessing truth serum properties. Although it is perhaps correct to speak in the plural of truth sera, for reasons of stylistic consistency and simplicity, I shall follow the customary practice of using "truth serum" or "truth serums."

(23.) See, e.g., Colin Gotham, A Proposed Solution for False Memory Cases: A Gross Negligence Standard, 8 KAN. J.L. & PUB. POL'Y 205 (1999) (describing the "Amytal interview" as a common, but dangerous, practice used by therapists to help patients unlock repressed memories); August Piper, Jr., "Truth Serum" and "Recovered Memories" of Sexual Abuse: A Review of the Evidence, 21 J. PSYCHIATRY & L. 447 (1993).

(24.) See, e.g., LAWRENCE TAYLOR, SCIENTIFIC INTERROGATION: HYPNOSIS, POLYGRAPHY, NARCOANALYSIS, VOICE STRESS AND PUPILLOMETRICS 308 (1984).

(25.) See, e.g., Dession et al., supra note 14; Piper, supra note 23.

(26.) Many "experiments" tended to rely too heavily on anecdotal evidence. See, e.g., Scopolamin Test Works, N.Y. TIMES, Nov. 28, 1923, at 4 (describing an experiment involving three New Orleans "newspaper men" who, though instructed beforehand to lie, proved unable to give false answers about their families and recent activities when interrogated under the influence of scopolamine). In addition, the amount of the drug being tested often differed radically from one experiment to the next. See, e.g., Muehlberger, supra note 14, at 522-23 (arguing that failure of psychiatrists to control for a suspect's level of narcosis "may account for many of the reported failures of the 'truth serum' technique"); Piper, supra note 23, at 453 (noting that some studies are "vulnerable to the criticism that the Amytal doses used in trials were low").

(27.) See, e.g., Muehlberger, supra note 14, at 518.

(28.) See TAYLOR, supra note 24, at 308.

(29.) Id.

(30.) See infra notes 123-30 and accompanying text.

(31.) Mind-Control Studies Had Origins in Trial of Mindszenty, N.Y. TIMES, Aug. 2, 1977, at A16.

(32.) See TAYLOR, supra note 24, at 303.

(33.) Id.

(34.) See Project MKULTRA, the CIA's Program of Research in Behavioral Modification: Joint Hearings Before the Select Comm. on Intelligence and the Subcomm. on Health and Scientific Research of the Senate Comm. on Human Res., 95th Cong., 1st Sess. 26 (1977) [hereinafter MKULTRA Hearings].

(35.) Id.

(36.) Id.

(37.) See TAYLOR, supra note 24, at 303. House's assessments of truth serum's effectiveness are often difficult to square with one another. He sometimes made highly exaggerated claims. See, e.g., House, supra note 14, at 147 ("[N]o human mind ... can withstand the effects of scopolamine."). At other times, however, he seemed to make more modest evaluations. Id. at 145 ("The percentage of accuracy of TRUTH SERUM has not been correctly estimated. My experience justifies me in maintaining that it will approximate 50 per cent.").

(38.) See TAYLOR, supra note 24, at 303.

(39.) MKULTRA Hearings, supra note 34, at 26.

(40.) Id. at 27.

(41.) TAYLOR, supra note 24, at 304.

(42.) Id.

(43.) See MKULTRA Hearings, supra note 34, at 28; see also Steven I. Friedland, Law, Science and Malingering, 30 ARIZ. ST. L.J. 337 (1998). One famous example is the case of Raymond Cens, who was tried before a French court in 1948 for Nazi collaboration. Cens claimed he was unable to remember certain aspects of his conduct. The court appointed a team of psychiatrists to examine him. They administered sodium pentothal and concluded that Cens had been dissembling. The findings were admitted at trial and Cens was convicted. He subsequently attempted to sue the doctors for assault and battery, illegal search, and violation of professional secrets. The court found for the psychiatrists. See Dession et al., supra note 14, at 316.

(44.) MARTIN A. LEE & BRUCE SHLAIN, ACID DREAMS: THE CIA, LSD, AND THE SIXTIES REBELLION 4 (1985)

(45.) Id. at 5.

(46.) ALEXANDER COCKBURN & JEFFREY ST. CLAIR, WHITEOUT: THE CIA, DRUGS AND THE PRESS 151-54 (1998) (describing experiments by Dr. Kurt Plotner conducted at Dachau).

(47.) COMM'N ON CIA ACTIVITIES WITHIN THE U.S., REPORT TO THE PRESIDENT 227 (1975) [hereinafter ROCKEFELLER REPORT].

(48.) Mind-Control Studies Had Origins in Trial of Mindszenty, supra note 31.

(49.) Id.

(50.) Id.

(51.) Id.

(52.) ROCKEFELLER REPORT, supra note 47, at 227.

(53.) MKULTRA Hearings, supra note 34, at 67.

(54.) Id.

(55.) Id.

(56.) See id. at 412; see also George J. Annas, Mengele's Birthmark: The Nuremberg Code in United States Courts, 7 J. CONTEMP. HEALTH L. & POL'Y 17, 37-38 (1991).

(57.) MKULTRA Hearings, supra note 34, at 92.

(58.) Id.

(59.) Id.

(60.) Id.

(61.) Id.

(62.) Id.

(63.) Id.

(64.) Id.

(65.) Id.

(66.) Id.

(67.) Id. at 100.

(68.) Id. at 67.

(69.) Id.

(70.) Id.

(71.) Id. at 68.

(72.) Id.

(73.) Id.

(74.) Attempts were made pursuant to the Freedom of Information Act (FOIA) to compel the CIA to reveal additional information about the MKULTRA project. The Supreme Court rejected the challenge. See CIA v. Sims, 471 U.S. 159, 161-65 (1985) (holding that the National Security Act of 1947 granted the CIA Director authority not to release intelligence information).

(75.) MKULTRA Hearings, supra note 32, at 70.

(76.) Id.

(77.) Id. at 71.

(78.) Id.

(79.) Id.

(80.) See ROCKEFELLER REPORT, supra note 47, at 227. Similar experiments by the Army caused the death of professional tennis player Harold Blauer in the same year (1953). See Mind-Control Studies Had Origins in Trial of Mindszenty, supra note 31.

(81.) MKULTRA Hearings, supra note 32, at 72.

(82.) The use of narcoanalysis continues to be allowed for certain purposes in many states. See, e.g., COLO. REV. STAT. [section] 16-8-106(3) (Supp. 2003) (providing that under Colorado law, "[i]t shall also be permissible to conduct a narcoanalytic interview of the defendant with such drugs as are medically appropriate" as an aid in forming an opinion about a criminal defendant's mental state).

(83.) See Bravin & Fields, supra note 18 (reporting that the CIA denies that it uses truth serum or torture).

(84.) See, e.g., AMNESTY INT'L REPORT, supra note 21; see also False Hopes--Do Truth Serums Work?, ECONOMIST, Jan. 11, 2003 (London) available at 2003 WL 6244576.

(85.) Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art. 17, 6 U.S.T. 3316 (consented to by the U.S. Senate on July 6, 1955, with reservations) [hereinafter Third Geneva Convention].

(86.) See, e.g., Jess Bravin, Interrogation School Tells Army Recruits How Grilling Works, WALL ST. J., Apr. 26, 2002, at Al.

(87.) See infra Part IV.

(88.) To be sure, the ban on "unpleasant" or "disadvantageous" treatment only comes into play after a POW has refused to provide the detaining power with information. Prior to that point, the Convention merely prohibits the use of coercion on prisoners. But since the use of truth serum would be necessary only in the case of uncommunicative POWs, for all intents and purposes, the question of truth serum's permissibility will virtually always be subject to the lesser threshold showing of unpleasantness or disadvantageousness.

(89.) Of course, even if Article 17 does not apply to those detained in connection with U.S. efforts to stop terrorism, it might be argued that Article 3 of the Convention still applies and that Article 3 prohibits the use of truth serum. For example, Article 3(1)(a) provides that detainees shall be protected against "[v]iolence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture." Moreover, Article 3(1)(c) prohibits "[o]utrages upon personal dignity, in particular, humiliating and degrading treatment." The question of whether the use of truth serum constitutes torture or cruel or degrading treatment is debatable and is discussed in detail in Part IV. In any event, it is important to note that Article 3 only applies to situations involving armed conflict occurring in the territory of one of the High Contracting Parties to the Convention. Thus, even assuming that Article 3 bars the use of truth serum, the bar would first of all apply only to those detained in connection with full-blown armed conflicts such as those in Afghanistan and Iraq. Individual suspects detained through routine tracking and capturing techniques are unable to avail themselves of Article 3's protection. Further, even those detained in connection with armed conflicts are not protected by Article 3 unless the conflict takes place within the territory of one of the High Contracting Parties.

(90.) Third Geneva Convention, supra note 85, at art. 4(A)(2); see Ruth Wedgwood, Agora: Military Commissions: Al Qaeda, Terrorism, and Military Commissions, 96 AM. J. INT'L L. 328, 335 (2002).

(91.) The Bush administration's position has vacillated since the inception of the Afghanistan conflict. After initially denying that the Geneva Conventions applied to those detained in the wake of the conflict in Afghanistan, President Bush changed course and decided that the Conventions would apply after all. However, President Bush then took the position that the detainees did not qualify as prisoners of war under the Conventions and thus were not eligible for many of the Conventions' protections. See Thorn Shanker & Katharine Q. Seelye, Who Is a Prisoner of War? You Could Look It Up. Maybe., N.Y. TIMES, March 10, 2002, at 4; see also Jess Bravin, U.S. Policy Toward Prisoners Is Critiqued by Amnesty International, WALL ST. J., Apr. 15, 2002, at A4.

(92.) See, e.g., George H. Aldrich, The Taliban, Al Qaeda, and the Determination of Illegal Combatants, 96 AM. J. INT'L L. 891 (2002); Human Rights Watch, U.S.: Geneva Conventions Apply to Guantanamo Detainees, at http://www.hrw.org/press/2002/01/ us011102.htm (last visited Sept. 18, 2004).

(93.) See, e.g., Wedgwood, supra note 90, at 335.

(94.) International Covenant on Civil and Political Rights, opened for signature Dec. 19, 1966, art. 17, S. EXEC. Doc. E, 95-2 (1978), 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafter ICCPR].

(95.) Fernando Volio, Legal Personality, Privacy, and the Family, in THE INTERNATIONAL BILL OF RIGHTS: THE COVENANT ON CIVIL AND POLITICAL RIGHTS 192 (Louis Henkin ed., 1981).

(96.) See General Comment No. 16: The Right to Respect of Privacy, Family, Home, and Correspondence, and Protection of Honour and Reputation, art. 17, U.N. GAOR Hum. Rts. Comm., 32d Sess., U.N. Doe. CCPR/C/21/Rev (1989) [hereinafter General Comment on Article 17].

(97.) See Coeriel & Aurik v. The Netherlands, Comm. No. 453/1991, U.N. GAOR Hum. Rts. Comm., 52d Sess., U.N. Doc. CCPR/C/52/D/453/91 (1994) ("The Committee itself has not really clarified the notion of privacy either in its General Comment on Article 17 where it actually refrains from defining that notion. In its General Comment the Committee attempts to define all the other terms used in Article 17 such as 'family', 'home', 'unlawful' and 'arbitrary'. It further refers to the protection of personal 'honour' and 'reputation' also mentioned in Article 17, but it leaves open the definition of the main right enshrined in that Article, i.e. the right to 'privacy.'")(Comm'r Herndl, dissenting). The HRC's cases are of especially dubious help where the specific question of truth serum is concerned, since the issues dealt with have been very different in their subject matter. See, e.g., Muller & Imke Engelhard v. Namibia, Comm. No. 919/2000, U.N. GAOR Hum. Rts. Comm., 74th Sess., U.N. Doc. CCPR/C/74/D/919/2000 (2002) (involving claim that nation's refusal to allow author to change surname to that of his spouse violated right to privacy); Toonen v. Australia, Comm. No. 488/1992, U.N. GAOR Hum. Rts. Comm., 50th Sess., U.N. Doc. CCPRJC/50/D/488/1992 (1994) (finding that criminalization of homosexuality violates right to privacy); Hopu & Bessert v. France, Comm. No. 549/1993, U.N. GAOR Hum. Rts. Comm., 60th Sess., U.N. Doc. CCPR/C/60/D/549/1993 (1993) (finding hotel development on ancestors' sacred burial ground violated right to privacy, inasmuch as relationship with ancestors forms an important part of individuals' identity); R.M. v. Finland, Comm. No. 301/1988, U.N. GAOR Hum. Rts. Comm., 35th Sess., U.N. Doc. CCPR/C/60/D/549/1993 (1989) (considering case in which author was arrested for drug offense and argued, inter alia, that press coverage per se violated Article 17 right to privacy and reputation); M.F. v. The Netherlands, Comm. No. 173/1984, U.N. GAOR Hum. Rts. Comm., 23d Sess., U.N. Doc. CCPR/C/23/D/173/1984 (1984) (involving claim that state's refusal to grant application for political asylum in The Netherlands interfered with author's privacy and family life). The closest cases are those dealing with contentions that searches and seizures violated individuals' right to privacy. However, even these cases are unhelpful, since they involve typical searches of homes and physical premises, not information forcibly extracted during interrogation.

(98.) The meaning of the terms "arbitrary" and "unlawful" were the chief points of contention during Article 17's drafting. See MANFRED NOWAK, U.N. COVENANT ON CIVIL AND POLITICAL RIGHTS: CCPR COMMENTARY 292 (1993); Volio, supra note 95, at 191. In this connection, commentators have noted that, strictly construed, the Article bars violation of a person's honor and reputation only where unlawful and not when merely arbitrary. As a result, reputation and honor receive less protection than the other spheres covered by Article 17. See NOWAK, supra, at 306.

(99.) Some courts at both the state and federal level have issued decisions concerning the admissibility of evidence obtained via narcoanalysis under state and federal rules of evidence. These cases frequently involve defendants who have requested that they be injected with truth serum in an attempt to prove their innocence. See, e.g., United States v. Solomon, 753 F.2d 1522 (9th Cir. 1985) (refusing to exclude witness's testimony because he had undergone a sodium amytal interview did not constitute an abuse of discretion); Cogburn v. State, 732 S.W.2d 807 (Ark. 1987) (holding inadmissible in sexual abuse prosecution results of truth serum test showing that defendant denied having sexual contact with his daughter); People v. Jones, 266 P.2d 38 (Cal. 1954) (ruling inadmissible testimony of psychiatrist that defendant was not a "sexual deviate" on ground that psychiatrist's opinion was based in part on interviewing defendant while under the influence of sodium pentothal); State v. Rosencrantz, 714 P.2d 93 (Idaho Ct. App. 1986) (finding inadmissible testimony regarding defendant's responses after injection with truth serum since scientific acceptability of such methods had not been demonstrated); State v. Blome, 507 A.2d 283 (N.J. Super. Ct. App. Div. 1986) (deeming inadmissible results of sodium amytal test because scientific reliability of such methods has not been established). Decisions in these cases rest on aspects of state and federal evidence codes, not on issues of constitutionality. In the vast majority of cases, evidence gleaned from truth serum tests has been deemed inadmissible.

(100.) U.S. CONST. amend. V.

(101.) See, e.g., RONALD J. ALLEN ET AL., COMPREHENSIVE CRIMINAL PROCEDURE 645 (2001).

(102.) This is not to say that the Court has not struggled with cases where the communicative nature of verbal communications was at issue. See, e.g., Pennsylvania v. Muniz, 496 U.S. 582 (1990) (holding that drunken defendant's slurred answers to questions before receiving his Miranda warnings were not testimonial, but that answer to question regarding date of sixth birthday was).

(103.) A number of courts have held that communications are testimonial for Fifth Amendment purposes only if they reveal an individual's subjective knowledge or thought processes. See, e.g., Commonwealth v. Miles, 648 N.E.2d 719, 730 n.16 (Mass. 1995) ("Fifth Amendment privilege against self-incrimination applies only to 'testimonial' or 'communicative' evidence that reveals an individual's subjective knowledge or thought processes."); State v. Nielsen, 936 P.2d 374, 382 (Or. Ct. App. 1997) ("[A] test that reveals an individual's intoxicated state, without requiring the individual to reveal his or her thoughts, beliefs or 'state of mind,' is not testimonial.").

(104.) 494 U.S. 259 (1990).

(105.) Id. at 264 (emphasis added) (citation omitted).

(106.) In addition to the line of cases considered infra, the Court has addressed the issue of whether forcibly administering antipsychotic drugs to prisoners or criminal defendants is allowable under the Due Process Clause. While these cases might be brought to bear on the question of whether truth serum comports with due process, I decline to discuss them here for several reasons. First, considerations of scope necessarily require the omission of a number of issues that might otherwise be germane. Second, and more importantly, the relevance of this line of cases is made doubtful by virtue of the context in which they were decided. In those cases, administering the medication was designed to have a profound and lasting effect on the subject. The state wished to administer the medication to ensure the defendant's fitness to stand trial. In contrast, the use of truth serum involves no such lasting impact, the effect of the drug naturally wearing off within a matter of hours. In addition, the justifications asserted by the state in those cases were of a different character than those asserted for the use of truth serum. For instance, in Washington v. Harper, 494 U.S. 210 (1990), the state argued that administration of the drugs was necessary to maintain order in the prison environment, or to keep the defendant from harming himself or others. In any event, it is worth noting that the Court has upheld the state's authority to forcibly administer antipsychotic medication in at least some instances. See, e.g., id. at 227. In other cases, while reiterating the government's right to administer mind-altering medication against a person's wishes, the Court has struck down state procedures because they lacked sufficient justification. See, e.g., Riggins v. Nevada, 504 U.S. 127 (1992) (holding it an error for court to order that defendant be administered antipsychotic drugs during the course of trial over his objection without first finding that there were no less intrusive alternatives, that the medication was medically appropriate, and that it was essential for the sake of defendant's safety or the safety of others). The Court's most recent pronouncement on the subject came during the last Term in United States v. Sell, 539 U.S. 166 (2003), where the Court summed up its jurisprudence in the Harper and Riggins line of cases as follows:
 [T]he Constitution permits the Government involuntarily to
 administer antipsychotic drugs to a mentally ill defendant facing
 serious criminal charges in order to render that defendant competent
 to stand trial, but only if the treatment is medically appropriate,
 is substantially unlikely to have side effects that may undermine
 the fairness of the trial, and, taking account of less intrusive
 alternatives, is necessary significantly to further important
 governmental trial-related interests.


Id. at 179. Hence, even if the cases in this line were found relevant to the present inquiry, they would fail to point toward any clear result.

(107.) 372 U.S. 293 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992); see also State v. Allies, 606 P.2d 1043 (Mont. 1979) (holding confession under influence of sodium amytal inadmissible because, although defendant agreed to the procedure, he had not been advised of his right to counsel).

(108.) The Court stated the principle for its holding as follows: "If an individual's 'will was overborne' or if his confession was not 'the product of a rational intellect and a free will,' his confession is inadmissible because coerced." Townsend, 372 U.S at 307 (emphasis added) (citations omitted).

(109.) See, e.g., Weaver v. Brenner, 40 F.3d 527, 536 (2d Cir. 1994) ("[T]he constitutional violation is complete when the offending official behavior occurs, and the refusal to admit at trial statements made as a result of coercion is merely a corrective way in which a court penalizes conduct that violates the Constitution."); Cooper v. Dupnik, 963 F.2d 1220, 1244-45 (9th Cir. 1992) (en banc) ("The due process violation caused by coercive behavior of law-enforcement officers in pursuit of a confession is complete with the coercive behavior itself."); Rex v. Teeples, 753 F.2d 840, 843 (10th Cir. 1985) (permitting a lawsuit alleging a due process violation to proceed despite the fact that the coerced statement was not used at trial because "[e]xtracting an involuntary confession by coercion is a due process violation") (cited in Steven D. Clymer, Are Police Free to Disregard Miranda?, 112 YALE L.J. 447, 477 n.124 (2002)).

(110.) 342 U.S. 165 (1952).

(111.) See cases cited supra note 109. These lower court decisions are supported by the Supreme Court's recent holding in Chavez v. Martinez, 538 U.S. 760, 774 (2003). In Chavez, two officers stopped the defendant as he rode by on his bicycle in a park at night. After stopping and frisking him, a scuffle ensued and Martinez sustained gunshot wounds. The patrol supervisor assigned to investigate the incident rode with Martinez as he was transported to the hospital, and attempted to conduct an interview while Martinez received medical treatment. Martinez drifted in and out of consciousness, complaining that he was in pain and that he was going to die. The Ninth Circuit held that, although the statements were never used against the defendant at trial, the interrogation violated both the Fifth and Fourteenth Amendments. Martinez v. City of Oxnard, 270 F.3d 852, 854-55, 857 (9th Cir. 2001). The Supreme Court rejected the Ninth Circuit's ruling with respect to the Fifth Amendment, reiterating Verdugo-Urquidez's holding that the Fifth Amendment violation occurs only at trial. Chavez, 538 U.S. at 767. And while the Court similarly rejected Martinez's due process claim, the Court's analysis focused only on whether the officer's behavior was conscience-shocking, not on whether the statement had been used at trial. Id. at 774-75. The plain implication is that at least some due process violations may occur absent use of coercively obtained statements at trial.

(112.) See, e.g., Gallegos v. Nebraska, 342 U.S. 55, 65 (1951) (finding that prolonged detention and confession to police in private are among the elements that should be considered in determining whether a confession, permitted to be introduced and relied on at trial, has been obtained under such circumstances that its use violates due process); Malinski v. New York, 324 U.S. 401, 404 (1945) ("If all the attendant circumstances indicate that the confession was coerced or compelled, it may not be used to convict a defendant."); see also United States ex rel. Corbo v. La Vallee, 270 F.2d 513, 521 (1959) (holding that placement of coercively obtained statements before the jury violates the constitutional right to due process); United States ex tel. Williams v. Fay, 323 F.2d 65, 69 (2d Cir. 1963) (finding that confession obtained by long and exhausting interrogation cannot be introduced against an accused consistently with the constitutional guarantee that his life and liberty may not be taken from him without due process of law).

(113.) For a discussion, see Catherine Hancock, Due Process Before Miranda, 70 TUL. L. REV. 2195 (1996) (cataloging different cases in which due process violations have been found and the various grounds on which such findings were made).

(114.) See Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973) ("The significant fact about all of these decisions is that none of them turned on the presence or absence of a single controlling criterion; each reflected a careful scrutiny of all the surrounding circumstances."); see also YALE KAMISAR ET AL., MODERN CRIMINAL PROCEDURE: CASES, COMMENTS, QUESTIONS 442 (10th ed. 2002) ("[I]t is difficult to isolate any particular interrogation tactic and say that, standing alone, it is so 'coercive' or so 'offensive' that it requires the exclusion of the resulting confession.").

(115.) KAMISAR, supra note 114, at 442, offers the following list of interrogation practices that, "if not impermissible per se, militate heavily against the 'voluntariness' of any resulting confession": (a) stripping a defendant of his clothes and keeping him naked for several hours; (b) informing a defendant that state aid would be withdrawn and her children taken from her custody if she refuses to cooperate; (c) repeatedly rejecting a defendant's request to phone his wife and informing him that he would not be allowed to place any calls until he gives a statement; (d) removing a defendant from jail to a remote location to prevent relatives from attempting to secure his release; (e) utilizing a state-employed psychiatrist with considerable knowledge of hypnosis, who poses as a general practitioner for a defendant needing medical relief and obtains a confession via skillful questioning.

(116.) See M.J. BOSSUYT, GUIDE TO THE "TRAVAUX PREPARATOIRES" OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 341-47 (1987). The United Kingdom, for example, argued that "arbitrary" was too imprecise and ambiguous. Others argued that it was simply superfluous, or tried to replace it with "unreasonable." See also NOWAK, supra note 98, at 291; Volio, supra note 95, at 191.

(117.) General Comment on Article 17, supra note 96, at 16 [paragraph] 4; see also Toonen v. Australia, Comm. No. 488/1992, U.N. GAOR Hum. Rts. Comm., 50th Sess., U.N. Doc. CCPR/C/50/D/488/1992 (1994); NGWAK, supra note 98, at 293 ("[W]hether interference with privacy is permissible requires a precise balancing of the circumstances in a given case, paying regard to the principle of proportionality."); cf. NIHAL JAYAWICKRAMA, THE JUDICIAL APPLICATION OF HUMAN RIGHTS LAW: NATIONAL, REGIONAL AND INTERNATIONAL JURISPRUDENCE 601 (2002) (arguing that the ICCPR should be interpreted to implicitly include the European Court of Human Rights's requirement that infringements on privacy be necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the protection of health or morals, or for the protection of the rights and freedoms of others).

(118.) ICCPR, supra note 94, art. 19(3)(b).

(119.) Id. art. 21.

(120.) Toonen v. Australia., Comm. No. 488/1992, U.N. GAOR Hum. Rts. Comm., 50th Sess., U.N. Doc. CCPR/C/50/D/488/1992 (1994) (Comm'r Wennergren, concurring) (emphasis added).

(121.) In Coeriel & Aurik v. The Netherlands, for example, the HRC found Dutch authorities' refusal to grant the authors' request for a name change to be unreasonable and a violation of Article 17. Although the HRC found the refusal of Dutch authorities to be lawful--since Dutch law specified a range of circumstances under which name-change requests could be granted or denied--the Committee held the refusal to be unreasonable and arbitrary because, first, the authors had earlier been allowed to change their first names, thus raising the question why surnames should have been treated differently, and second, the only reason given for the refusal was that the authors' surnames were not "Dutch-sounding." See Coeriel & Aurik v. Netherlands, Comm. No. 453/1991, U.N. GAOR Hum. Rts. Comm., 49th Sess., Supp. No. 40, Annex 10, U.N. Doc. A/49/40 (1994).

(122.) See General Comment on Article 17, supra note 96, para. 7 ("As all persons live in society, the protection of privacy is necessarily relative.").

(123.) 384 U.S. 757 (1966).

(124.) Id. at 758-59.

(125.) Id. at 765-72.

(126.) Id. at 771.

(127.) Id.

(128.) Id.

(129.) Id.

(130.) Id. at 771-72.

(131.) Of course, if administered improperly, the use of drugs such as sodium pentothal could result in serious harm. When used properly, however, such drugs have no lasting consequences. But see Jessica Pae, The Emasculation of Compelled Testimony: Battling the Effects of Judicially Imposed Limitations on Grand Jury Investigations of Terrorism and Other Ideological Crimes, 70 S. CAL. L. REV. 473, 503 (1997) (arguing that the use of sodium pentothal carries an "inherent risk of death," particularly among recipients with cardiovascular or pulmonary diseases).

(132.) 470 U.S. 753 (1985).

(133.) Id. at 755-58.

(134.) Id. at 765.

(135.) Id. at 766 n.10.

(136.) Id. at 764-65.

(137.) Id. at 761.

(138.) Id. at 765 (internal quotation marks and citation omitted).

(139.) Id. at 760 (citations and internal quotation marks omitted).

(140.) 473 U.S. 531 (1985).

(141.) Id. at 536.

(142.) Id.

(143.) Id. at 538.

(144.) Id. at 544.

(145.) See, e.g., NOWAK, supra note 98, at 294.

(146.) See supra note 21 (collecting sources).

(147.) Article 5 of the Universal Declaration of Human Rights states: "[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." G.A. Res. 217A, U.N. GAOR, 3d Sess., art. 5, U.N. Doc. A/810 (1948).

(148.) International instruments include the following: the Universal Declaration of Human Rights (Article 5), G.A. Res. 217A (III), U.N. GAOR, 3d Sess., U.N. Doc. A/810 (1948); the International Covenant on Civil and Political Rights (Article 7), opened for signature Dec. 16, 1966, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 51, U.N. Doe. A/6316 (1966) (entered into force Mar. 23, 1976); the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Article 1), U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984) (entered into force June 26, 1987); Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment (Principle 6), G.A. Res. 43/173, U.N. GAOR, 43d Sess., Annex, Supp. No. 49, U.N. Doc. A/43/49 (1988). Regional instruments include the InterAmerican Convention to Prevent and Punish Torture, adopted Dec. 9, 1985, OEA/ser. A./42 (1986), 67 O.A.S.T.S., reprinted in 25 I.L.M. 519 (1986) (entered into force Feb. 28, 1987); American Declaration of the Rights and Duties of Man (Article 26), OAS Res. XXX, International Conference of American States, 9th Conf., OAS Doe. OEA/ser. L./V./I.4 rev. (1948); the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Nov. 26, 1987, Europ. T.S. No. 126, 27 I.L.M. 1152 (1988); the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 3), Nov. 4, 1950, ETS No. 155, 213 U.N.T.S. 221; the American Convention on Human Rights (Article 5(2)), Nov. 22, 1969, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123 (entered into force July 18, 1978); and the African Charter on Human and Peoples' Rights (Article 5), adopted June 27, 1981, art. 9, 21 I.L.M. 58, 60 (entered into force Oct. 21, 1986). See also Article 7(2)(E) of the Rome Statute of the International Criminal Court, adopted July 17, 1998, U.N. Doc. A/CONF.183/9 (1998).

(149.) SENATE COMM. ON FOREIGN RELATIONS, REPORT ON THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, S. EXEC. REP. NO. 102-23, at 25 (1992) [hereinafter ICCPR REPORT]. It is also important to note that, while the United States acknowledges the HRC's competence under Article 41 to receive communications from other State parties charging that the United States has failed to comply with the ICCPR, the United States has not ratified the first Optional Protocol to the ICCPR, which would allow the HRC to hear complaints brought by individuals against the United States. Thus, even absent the United States's reservations, it would be impossible for individuals to obtain any concrete relief, no matter how clearly an Article 7 violation could be shown.

(150.) Some have viewed the United States's reservations to Article 7, and to the ICCPR generally, as essentially a matter of good sense. See David P. Stewart, United States Ratification of the Covenant on Civil and Political Rights: The Significance of the Reservations, Understandings, and Declarations, 42 DEPAUL L. REV. 1183, 1192-95 (1993) ("While the 'package' [of reservations] seems large, a careful reading demonstrates that each proviso addresses a legitimate issue and none is contrary to the object and purpose of the treaty."). Others have decried the United States's reservations as a way of preventing international law from having any domestic effect. See Kenneth Roth, The Charade of U.S. Ratification of International Human Rights Treaties, 1 CHI. J. INT'L L. 347, 347 (2000) ("[O]n the few occasions when the U.S. government has ratified a human rights treaty, it has done so in a way designed to preclude the treaty from having any domestic effect.").

(151.) See, e.g., City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (noting that Eighth Amendment scrutiny is appropriate only after the state has secured a formal adjudication of guilt); Ingraham v. Wright, 430 U.S. 651, 664 (1977) ("An examination of the history of the [Eighth] Amendment and the decisions of this Court construing the proscription against cruel and unusual punishment confirms that it was designed to protect those convicted of crimes.").

(152.) See Wilkerson v. Utah, 99 U.S. 130, 135 (1878).

(153.) Weems v. United States, 217 U.S. 349 (1910).

(154.) Trop v. Dulles, 356 U.S. 86 (1958).

(155.) See, e.g., David Heffernan, America the Cruel and Unusual? An Analysis of the Eighth Amendment Under International Law, 45 CATH. U. L. REV. 481, 487 (1996) (examining the contrast between the Eighth Amendment and Article 7 with respect to the "death row phenomenon" and to the application of the death penalty to minors).

(156.) For example, the ICCPR clearly condemns applying the death penalty to minors. ICCPR Article 6(5), for example, provides, "Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age...." However, the U.S. Supreme Court has sometimes found such practices permissible under the Eighth Amendment. See Stanford v. Kentucky, 492 U.S. 361 (1989) (holding that execution of those sixteen years or older does not constitute cruel and unusual punishment). But see Thompson v. Oklahoma, 487 U.S. 815 (1988) (holding that execution of a fifteen-year-old violates the Eighth Amendment).

(157.) U.N. GAOR Hum. Rts. Comm., CCPR General Comment 20, 44th Sess., 1138th mtg. (1992), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/I/Rev.5 (2001) [hereinafter General Comment on Article 7] ("The Covenant does not contain any definition of the concepts covered by Article 7, nor does the Committee consider it necessary to draw up a list of prohibited acts or to establish sharp distinctions between the different kinds of punishment or treatment.").

(158.) This summary is largely adapted from cases discussed in NIGEL S. RODLEY, THE TREATMENT OF PRISONERS UNDER INTERNATIONAL LAW 86-88 (2d ed. 1999), and SARAH JOSEPH ET AL., THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS: CASES, MATERIALS, AND COMMENTARY 140-97 (2000).

(159.) See, e.g., Estrella v. Uruguay, Comm. No. 74/1980, U.N. GAOR Hum. Rts. Comm., 18th Sess., U.N. Doc. CCPR/C/18/D/74/1980 (1980).

(160.) One possible exception might arise where a suspect fears reprisal from his cohorts for divulging information he has sworn to keep secret. On the other hand, it is unclear whether providing authorities with such information is likely to trigger retaliation where the suspect can plead that he literally had no choice in the matter.

(161.) No mention of the difference between the various forms of ill treatment appears to have been made during the drafting of Article 7. See CHRIS INGELSE, THE U.N. COMMITTEE AGAINST TORTURE: AN ASSESSMENT 230 (2001).

(162.) Linton v. Jamaica, Comm. No. 255/1987, U.N. GAOR Hum. Rts. Comm., 46th Sess., U.N. Doc. CCPR/C/46/D/255/1987 (1992).

(163.) Polay Campos v. Peru, Comm. No. 577/1994, U.N. GAOR Hum. Rts. Comm., 61st Sess., U.N. Doc. CCPR/C/61/D/577/1994 (1997).

(164.) Bailey v. Jamaica, Comm. No. 334/1988, U.N. GAOR Hum. Rts. Comm., 47th Sess., U.N. Doc. CCPR/C/47/D/334/1988 (1993).

(165.) Portorreal v. Dominican Republic, Comm. No. 188/1984, U.N. GAOR Hum. Rts. Comm., 31st Sess., U.N. Doc. CCPR/C/31/D/188/1984 (1987).

(166.) Hylton v. Jamaica, Comm. No. 600/1994, U.N. GAOR Hum. Rts. Comm., 57th Sess., U.N. Doc. CCPR/C/57/D/600/1994 (1996).

(167.) Deidrick v. Jamaica, Comm. No. 619/1995, U.N. GAOR Hum. Rts. Comm., 62d Sess., U.N. Doc. CCPR/C/62/D/619/1995 (1998).

(168.) de Bouton v. Uruguay, Comm. No. 37/1978, U.N. GAOR Hum. Rts. Comm., 12th Sess., U.N. Doc. CCPR/C/12/D/37/1978 (1981).

(169.) Birindwa and Tshisekedi v. Zaire, Comm. Nos. 241/1987 and 242/1987, U.N. GAOR Hum. Rts. Comm., 37th Sess., U.N. Docs. CCPR/C/37/D/241/1987 and CCPR/C/37/D/242/1987 (1989).

(170.) Francis v. Jamaica, Comm. No. 320/1988, U.N. GAOR Hum. Rts. Comm., 47th Sess., U.N. Doc. CCPR/C/47/D/320/1988 (1993).

(171.) Thomas v. Jamaica, Comm. No. 532/1993, U.N. GAOR Hum. Rts. Comm., 61st Sess., U.N. Doc. CCPR/C/61/D/532/1993 (1997).

(172.) Polay Campos v. Peru, Comm. No. 577/1994, U.N. GAOR Hum. Rts. Comm., 61st Sess., U.N. Doc. CCPR/C/61/D/577/1994 (1997).

(173.) Young v. Jamaica, Comm. No. 615/1995, U.N. GAOR Hum. Rts. Comm., 61st Sess., U.N. Doc. CCPR/C/61/D/615/1995/Rev.1 (1997).

(174.) Wight v. Madagascar, Comm. No. 115/1982, U.N. GAOR Hum. Rts. Comm., 22d Sess., U.N. Doc. CCPR/C/22/D/115/1982 (1985).

(175.) Garcia v. Ecuador, Comm. No. 319/1988, U.N. GAOR Hum. Rts. Comm., 43d Sess., U.N. Doc. CCPR/C/43/D/319/1988 (1991).

(176.) Henry v. Trinidad and Tobago, Comm. No. 752/1997, U.N. GAOR Hum. Rts. Comm., 64th Sess., U.N. Doc. CCPR/C/64/D/752/1997 (1999).

(177.) Vincete et al. v. Colombia, Comm. No. 612/1995, U.N. GAOR Hum. Rts. Comm., 60th Sess., U.N. Doc. CCPR/C/60/D/612/1995 (1997).

(178.) Brown v. Jamaica, Comm. No. 775/1997, U.N. GAOR Hum. Rts. Comm., 65th Sess., U.N. Doc. CCPR/C/65/D/775/1997 (1999).

(179.) Higginson v. Jamaica, Comm. No. 792/1998, U.N. GAOR Hum. Rts. Comm., 74th Sess., U.N. Doc. CCPR/C/74/D/792/1998 (2002); Matthews v. Trinidad and Tobago, Comm. No. 569/1993, U.N. GAOR Hum. Rts. Comm., 62d Sess., U.N. Doc. CCPR/C/62/D/569/1993 (1998).

(180.) NOWAK, supra note 98, at 138-39.

(181.) "Truth Serum" Ban Is Dropped in U.N., N.Y. TIMES, Apr. 1, 1950, at A3.

(182.) Id.

(183.) Id.

(184.) Id.

(185.) The original proposal read as follows: "The use of pentothal to anaesthetize the accused and to induce a confession shall be limited to eases determined in advance by law and subject to the prior consent of the accused." The proposal was revised orally to read, "The use of products of any kind intended to extract a confession from the accused shall be limited to eases...." In its final form, it was again revised orally to read: "The use of products which are not scientifically sure to elicit the truth shall be limited." The proposal was withdrawn in favor of a prohibition on both mental and physical torture but was ultimately not pressed for a vote. See BOSSUYT, supra note 116, at 153.

(186.) U.S. Senate Resolution of Advice and Consent to Ratification of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 136 CONG. REC. S17,486-01 (1990). Even as it limited the definition of torture to cruel, unusual, or inhumane treatment under the U.S. Constitution, the understanding submitted by the Bush administration expanded upon the sorts of practices that would be deemed torture:
 The United States understands that, in order to constitute torture,
 an act must be specifically intended to inflict severe physical or
 mental pain or suffering and that mental harm or suffering refers
 to prolonged mental pain caused by or resulting from: (1) the
 intentional infliction or threatened infliction of severe physical
 pain or suffering; (2) the administration or application, or
 threatened administration or application, of mind altering
 substances or other procedures calculated to disrupt profoundly
 the senses or the personality; (3) the threat of imminent death;
 or (4) the threat that another person will imminently be subjected
 to death, severe physical pain or suffering, or the administration
 or application of mind altering substances or other procedures
 calculated to disrupt profoundly the senses or personality.


ICCPR REPORT, supra note 149, at 36. Especially significant is the reference to "mind altering substances." The same definition of torture was adopted in the legislation Congress adopted to implement the CAT. See 18 U.S.C. [section] 2340(1)-(2) (2000). Part IV.B.3 infra discusses the bearing of the reference to mind-altering substances on the permissibility of truth serum use.

(187.) See, e.g., Robert B. Fitzpatrick, The Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, 38 FED. B. NEWS & J. 392 (1991).

(188.) 18 U.S.C. [section] 2340(2)(B).

(189.) In addition to the prohibitions enshrined in the ICCPR and the CAT, there are two other torture provisions that might be thought to ban the use of methods such as truth serum but are ultimately legally unenforceable. The first of these is the U.N. Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, G.A. Res. 43/173, U.N. GAOR, 43d Sess., Annex, Supp. No. 49, U.N. Doc. A/43/49 (1988) [hereinafter Body of Principles]. Adopted without a vote by the U.N. General Assembly in December of 1988, the Body of Principles contains a number of provisions that pointedly single out the use of methods such as truth serum. For example, Principle 6 contains a torture ban very similar to those contained in the ICCPR and the CAT. It also makes clear that the Principle is nonderogable. Id. But, unlike the CAT and ICCPR, the Body of Principles adds that the definition of torture and ill treatment should be construed "so as to extend the widest possible protection against abuses." Id. Further, the Body of Principles takes care to include not merely physical and mental abuse, but also detainment under conditions that deprive the detainee "temporarily or permanently, of the use of any of his natural senses, such as sight or hearing, or of his awareness of place and the passing of time." Id. Principle 21(2) also states that no "detained person while being interrogated shall be subject to violence, threats or methods of interrogation which impair his capacity of decision or his judgement." Id. Given that the use of truth serum clearly has a disorienting effect and temporarily impairs a person's judgment and volitional faculties, it would be difficult to argue that the use of such methods is not covered by the Body of Principles. However, because it does not amount to a treaty, the Body of Principles lacks any legal effect. See, e.g., Tullio Treves, The UN Body of Principles for the Protection of Detained or Imprisoned Persons, 84 AM. J. INT'L L. 578, 585 (1990) ("Not being a treaty, but a document annexed to a General Assembly resolution, it obviously has no binding force as such.").

A second instrument is the Torture Victim Protection Act of 1991 (TVPA), Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. [section] 1350 (1994)). The TVPA was passed by the U.S. Congress as part of its attempt to comply with the CAT, which requires "[e]ach State Party [to] ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible." Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 1, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc A/139/51 (1984) (entered into force June 26, 1987) [hereinafter Convention Against Torture]. The TVPA's definition of torture is identical to that provided in the legislation enacting the CAT, 18 U.S.C. [section] 2340 (2000), which, as discussed more fully below, still arguably fails, despite its reference to "mind-altering substances," to include truth serum within its ambit. In any event, the TVPA only provides a cause of action against government actors of other nations. Thus, even assuming that the use of truth serum were prohibited by the TVPA, the Act would provide no redress against its use by U.S. agents and actors. See, e.g., Jennifer Correale, The Torture Victim Protection Act: A Vital Contribution to International Human Rights Enforcement or dust a Nice Gesture?, 6 PACE INT'L L. REV. 197, 211 (1994) ("Unlike the ATCA, which does not specify a class of defendants, the TVPA noticeably limits the class to foreign 'individual[s] [acting] under actual or apparent authority or color of law....'") (citations omitted). Although the TVPA has been invoked in suits against the U.S. government, it has been used only to determine whether its statute of limitations barred a cause of action under the Alien Tort Claims Act. See, e.g., Papa v. United States, 281 F.3d 1004 (9th Cir. 2002).

(190.) Convention Against Torture, supra note 189, art. 1.

(191.) Id. art. 2 ("No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.").

(192.) Id. art. 15 ("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.").

(193.) INGELSE, supra note 161, at 208.

(194.) See, e.g., RODLEY, supra note 158, at 98 (noting that determining "how severe or aggravated inhuman treatment has to be for it to amount to torture is virtually impossible").

(195.) Because the Committee Against Torture has been in existence for a much shorter time than the HRC, its jurisprudence, going back only to 1993, is necessarily much less developed. By far, the overwhelming majority of the Committee Against Torture's cases have arisen under Article 3, paragraph 1 of the CAT, which prohibits State parties from expelling, returning, or extraditing a person to another State when there are substantial grounds for believing that the person would be in danger of being subjected to torture. See, e.g., H.O. v. Sweden, Comm. No. 178/2001, U.N. GAOR Comm. Against Torture, 27th Sess., U.N. Doc. CAT/C/27/D/178/2001 (2001) (finding that petitioner's extradition to Iran would not constitute a violation of Article 3); S.T. v. The Netherlands, Comm. No. 175/2000, U.N. GAOR Comm. Against Torture, 27th Sess., U.N. Doc. CAT/C/27/D/175/2000 (2001) (finding that removal of petitioner to Sri Lanka did not violate Article 3 of the Convention); A.S. v. Sweden, Comm. No. 149/1999, U.N. GAOR Comm. Against Torture, 25th Sess., U.N. Doc. CAT/C/25/D/149/1999 (2000) (holding that the State Party had an obligation under Article 3 of the Convention to refrain from forcibly returning the author to Iran or any other nation where she would run a risk of being expelled to Iran). Consequently, these cases rarely deal with the definition of torture as such and instead concern the likelihood that a complainant would be subject to torture upon extradition to another country. Moreover, in many cases, the Committee Against Torture studiously avoids making any pronouncement as to the existence of torture. See, e.g., Ristic v. Yugoslavia, Comm. No. 113/1998, U.N. GAOR Comm. Against Torture, 26th Sess., U.N. Doc. CAT/C/26/D/113/1998 (2001) ("With regard to Articles 2 and 16, the Committee ... considers that it does not fall under its mandate to assess the guilt of persons who have allegedly committed acts of torture or police brutality. Its competence is limited to considering whether the State party has failed to comply with any of the provisions of the Convention. In the present case, the Committee will therefore not pronounce itself on the existence of torture or ill-treatment.").

(196.) See Comm. Against Torture, Special Report on Israel (1996/1997), in CONCLUSIONS AND RECOMMENDATIONS OF THE U.N. COMMITTEE AGAINST TORTURE: ELEVENTH TO TWENTY-SECOND SESSIONS (1993-1999) (Leif Holmstrom ed., 2000) [hereinafter CONCLUSIONS AND RECOMMENDATIONS]; see also INGELSE, supra note 161, at 226-27. The Committee has also indicated that prolonged incommunicado detention may constitute torture. See, e.g., Arana v. France, Comm. No. 63/1997, U.N. GAOR Comm. Against Torture, 23d Sess., U.N. Doc. CAT/C/23/D/63/1997 (1999).

(197.) See supra note 159 and accompanying text.

(198.) See J. HERMAN BURGERS & HANS DANELIUS, THE UNITED NATIONS CONVENTION AGAINST TORTURE 45 (1988).

(199.) Convention Against Torture, supra note 189, art. 16, [paragraph] 1.

(200.) Like the formula appearing in many other international and regional instruments, the CAT's definition of torture can be traced back to Article 5 of the Universal Declaration of Human Rights (UDHR), which states: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Universal Declaration of Human Rights, G.A. Res. 217A (III), art. 5, U.N. GAOR, 3d Sess., U.N. Doc. A/810 (1948). The UDHR appeared not to introduce any significant distinction between torture and the other forms of ill treatment. Rather, it was a report of the European Commission of Human Rights (ECHR) on police practices in Greece that first made the differentiation. The investigation into the Greek practices was initiated by Sweden and The Netherlands. These nations, in turn, were chiefly responsible for the initial draft of the CAT's torture provisions. It appears that Sweden and The Netherlands were influenced by the ECHR's distinction. See, e.g., RODLEY, supra note 158, at 76.

(201.) Dzemajl v. Yugoslavia, Comm. No. 161/2000, U.N. GAOR Comm. Against Torture, 29th Sess., U.N. Doc. CAT/C/29/D/161/2000 (2002) (finding that burning and destruction of houses constitute, in the circumstances, acts of cruel, inhuman, or degrading treatment or punishment). But see G.R.B. v. Sweden, Comm. No. 83/1997, U.N. GAOR Comm. Against Torture, 20th Sess., U.N. Doc. CAT/C/20/D/83/1997 (1998) (finding that even given complainant's fragile psychiatric condition, forced deportation to country where she had been raped did not constitute a violation of Article 16 of the Convention).

(202.) Comm. Against Torture, Argentina: Third Periodic Report (1996), in CONCLUSIONS AND RECOMMENDATIONS, supra note 196.

(203.) Comm. Against Torture, New Zealand: Second Periodic Report (1997), in CONCLUSIONS AND RECOMMENDATIONS, supra note 196.

(204.) Comm. Against Torture, Georgia: Initial Report (1996), in CONCLUSIONS AND RECOMMENDATIONS, supra note 196.

(205.) CAT Article 14(1) provides: "Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible." Convention Against Torture, supra note 189, art. 14. The fact that Article 14 makes no reference to compensation for victims of cruel, inhuman, or degrading treatment suggests that victims of the latter conduct are without recourse under the CAT. In addition, Article 16, which requires each State Party to undertake to prevent cruel, inhuman, or degrading treatment, specifies that certain obligations under the CAT applying to torture apply equally in the case of cruel, inhuman, or degrading treatment (viz., those under Articles 10, 11, 12, and 13). Article 16 conspicuously omits any suggestion that Article 14's provisions allowing for compensation are available in the case of cruel, inhuman, or degrading treatment. See id. art. 16. The issue of Article 14's applicability to Article 16 was debated during Article 16's drafting and the notion was rejected. See BURGERS & DANELIUS, supra note 198, at 150. However, in the Dzemajl case, the Committee Against Torture stated: "Nevertheless, article 14 of the Convention does not mean that the State party is not obliged to grant redress and fair and adequate compensation to the victim of an act in breach of article 16 of the Convention. The positive obligations that flow from the first sentence of article 16 of the Convention include an obligation to grant redress and compensate the victims of an act in breach of that provision." Dzemajl v. Yugoslavia, Comm. No. 161/2000, U.N. GAOR Comm. Against Torture, 29th Sess., U.N. Doc. CAT/C/29/D/161/2000 (2002).

(206.) Unlike the question whether compensation is available to victims of Article 16 conduct, virtually all commentators acknowledge that the CAT's exclusionary rule does not apply to Article 16. Article 15 states that 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...." Convention Against Torture, supra note 189, art. 15 (emphasis added). The Article does not provide for exclusion in the case of the lesser forms of ill treatment outlined in later sections of the CAT. See, e.g., BURGERS & DANELIUS, supra note 198, at 148; cf. INGELSE, supra note 154, at 366 ("A reference to article 15 was to be included in article 16, but as the various delegations could not reach agreement on the matter, the reference was left out. The distinction between torture and cruel, inhuman or degrading treatment or punishment that was introduced during the negotiations for the Convention appears ... to have been a source of limitations in the Convention.") (internal citations omitted).

(207.) 18 U.S.C. [section] 2340(1) (2000).

(208.) Id. [section] 2340(2)(A)-(D).

(209.) The Bybee Memo, supra note 11, similarly discusses whether the use of drugs might constitute torture under [section] 2340. However, its analysis differs in important ways from that offered here. First, the Bybee Memo's analysis devotes a great deal more attention to linguistic analysis, and to the dictionary definition of words such as "profound" and "disrupt," than that offered here. Id. at 11. In addition, the Bybee Memo does not specifically discuss the use of truth drugs. Rather, it discusses the use of drugs for interrogation purposes more generally.

(210.) See Thomas E. Ricks, Incidents Grew in Severity, Report Says, WASH. POST, Aug. 26, 2004, at A17.

(211.) 18 U.S.C. [subsections] 2510-2520.

Jason R. Odeshoo, J.D., with distinction, Stanford Law School, 2004; M.A., University of Illinois at Urbana-Champaign; A.B., summa cum laude, University of Illinois at Urbana-Charnpaign. Senior Note Editor, Stanford Law Review, Volume 56. I would like to thank MarianoFlorentino Cuellar, Rebecca Moore-Reierson, and Greg Duff for their very helpful comments. Thanks also to Sarah Givan, Cynthia Inda, and all of the other editors of this Note for their excellent assistance.
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