Interrogation Law Research Articles

Interrogation Law and Practice in Common Law Jurisdictions

Interrogation Law and Practice in Common Law Jurisdictions

Interrogation After 9/11: The Law on the Books and the Law on the Ground

Since the Abu Ghraib photographs were released, there has been no shortage of books and articles alleging that U.S. interrogation practices violated military, civilian and international law. Writers have offered two causal narratives to account for the illegalities. At one extreme, it is claimed that a few “bad apples” abused detainees in knowing violation of clear interrogation law. At the other extreme is the claim that high level officials ordered soldiers to use abusive interrogation techniques. What both accounts have in common is the assumption that the “law” against which interrogators’ conduct should be measured consists only of formal prohibitions – the ones officials claim the “bad apples” violated – or formal orders – the ones that military interrogators claim they were following. These accounts have the virtue of being simple and straightforward; of fingering the bad guys and providing solutions that fit clear legal paradigms. The problem, however, is that both explanations are false. They are false because their underlying assumption – that law consists only of formal rules – is false. In fact, however, the causal relationship between official interrogation rules and on-the-ground conduct was much more complicated than these accounts acknowledge. There were not one but two sets of interrogation laws in play: formal or de jure interrogation law – as laid out in official legal documents – and de facto interrogation law – as it was understood and practiced in the field. In this article I chronicle the rich and complex relationship between de jure and de facto interrogation law. This detailed historical account, drawn largely from the government’s own investigations, traces how the legal positions contained in Army documents, military orders, legal memoranda, and policy statements made (and or lost) their way from the halls of Washington D.C. to the interrogation cells of far-flung U.S. detention centers. Many of the abuses were not specifically authorized by the formal rules on the books. In many cases, however, interrogators believed they were acting lawfully and at the behest of commanders and high level officials. This historical account is a classic example of the (sometimes) dissonance and (sometimes) harmony occurring in the space between de jure pronouncements and de facto practices and the necessity of attending to the law as it was understood as well as practiced by actors on the ground. My account aims to focus attention on the right issues. The cause of the interrogation abuse was neither bad apples who flouted the rules nor malicious officials who ordered detainees to be abused. The causes were more complicated, which also makes potential solutions more complicated. It will not do simply to punish the individuals who engaged in the abusive conduct (although some individual sanctions are appropriate). Nor will it do simply to change the formal rules on the books (although clarifying the rules is an important first step). Any successful approach to preventing abuses in the future must take account of the mechanisms that gave rise to the de facto interrogation law that sanctioned what the formal law forbade. My account also has implications for assessing blame in connection with interrogation abuses that have already occurred. Is there a difference – in terms of causal responsibility and culpability – between the official who directly orders abuse and the one who contributes to an environment in which it is de facto practiced? I believe so, but this does not mean that the latter is off the hook. Top officials who pressed interrogators to obtain intelligence but failed to provide operational guidance and lawyers who declared that traditional rules of international and domestic law were not applicable cannot claim that interrogators who followed their lead were just a bunch of bad apples.

Taking Back Juvenile Confessions

The limited capacity of juveniles to make good decisions on their own — based on centuries of common sense and empirically supported in recent decades by abundant scientific research — informs almost every field of legal doctrine. Recent criminal justice reforms have grounded enhanced protections for youth at punishment and as criminal suspects on their limited cognitive abilities and heightened vulnerability. One area of criminal procedure doctrine lags behind this legal, scientific, and social consensus. Despite historical recognition of the need for special protections for interrogated youth, current law regarding the waiver of the rights to silence and to counsel at interrogation predominantly treats juvenile suspects like adults. This underenforces their privilege against self-incrimination, disrespects their dignity, and raises the risk of wrongful convictions. This Article considers whether interrogation law should correct course by incorporating a rule akin to contract law’s centuries-old infancy doctrine and permit individuals to retract uncounseled Miranda waivers elicited by law enforcement while they were juveniles. The justifications, advantages, and drawbacks to such a doctrinal shift are explored.

Interrogation and the Roberts Court

Through 2010, the Roberts Court decided five cases involving the rules for police interrogation under the Fifth and Sixth Amendments: Kansas v. Ventris; Montejo v. Louisiana; Florida v. Powell; Maryland v. Shatzer; and Berghuis v. Thompkins. This Article argues that these decisions show the Roberts Court reshaping constitutional interrogation rules according to a new (as-yet unarticulated) principle: “fair play” in interrogations. The Warren Court believed that suspects in police interrogation were vulnerable to inherent compelling pressures; the Court correspondingly created procedural interrogation rules under the Fifth and Sixth Amendments (Miranda and Massiah) to protect suspects. The Roberts Court does not share that motivating concern. But rather than overruling Miranda and Massiah, the Court is reanimating those doctrines according to the new principle of “fair play” in interrogations. This “fair play” rubric presupposes interrogation suspects who are autonomous agents, expected to know and protect their rights.Part I describes how the Roberts Court’s Fifth Amendment decisions are best explained by the new rubric of “fair play” in interrogations. Part II does the same for the Court’s Sixth Amendment decisions. Part III evaluates this new “fair play” rubric, concluding that it is not a fair and adequate principle for organizing constitutional interrogation doctrine. While the Warren Court’s specific rules and remedies for interrogation law have been criticized over the years from both the left and the right, its underlying premise—that suspects facing police interrogation are vulnerable to abuse and overreaching — has proven robust and continues to find support in decades of empirical work. The Roberts Court’s presumption that suspects in interrogation are autonomous agents capable of protecting their own interests is wrong. The resulting rules of “fair play” in interrogation fail to adequately protect the constitutional right against self-incrimination and the guarantee of the assistance of counsel in all criminal cases.

“You Have the Right to Remain Silent. . . But Only If You Ask for It Just So”: The Role of Linguistic Ideology in American Police Interrogation Law

American constitutional law provides protection for arrested persons from coercive police interrogation by giving them the right to refuse to answer questions and to the assistance of a lawyer during questioning. Once these Miranda rights are invoked by the interrogated suspect, the police must cease questioning immediately. In recent years, however, courts have adopted restrictive definitions of the kind of invocation that will count as legally efficacious. In using hyper-literal parsings of the language of suspects who attempt to assert their rights, these judges fail to utilize ordinary norms of conversational implicature and ignore the power asymmetries inherent in custodial police interrogation. Instead, these strained interpretations result in part from an ideology of language that presumes that language is a transparent medium of communication. Because direct and unmodified locutions are consequently privileged, most attempts to claim constitutional rights are found to be defective. As a result, the constitutional protections of Miranda re practically unattainable by most arrestees.

Crime Talk and Law Talk

The great challenge of writing legal history is defining the task. Law relates to everything, so the legal historian can wind up writing the history of politics, class conflict, intellectual trends, and so forth-all the things needed to put law in its proper context. The risk is that the law gets lost and all that remains is the context. On the other hand, law without context is sterile-a big reason why law schools have had such an appetite for other disciplines. So the job of doing legal history is, in great part, deciding where the connection between law and is strongest, what the something else is, and how much law had to do with it. That job is especially hard when it comes to the law of crime and punishment, for three things are true both of present-day America and of most of America's past: (1) there is a lot of crime; (2) there is also a lot of law enforcement; and (3) the law seems not to have much effect on either one. The greatest strength of Lawrence Friedman's interesting book is that he gets this central point right. The difficulty is that law's seeming irrelevance makes Friedman's project a hard one to define. Friedman's subject is the history of the American criminal justice systemthe history of the legal system that surrounds crime, both by defining it (as in the elements of the crime of burglary, or the decision to criminalize drug use), and by defining the ways the government can fight it (as in the requirement that police get a warrant before searching a house, or the rule requiring probable cause in order to make an arrest). That sounds like one should expect a tour of the legal doctrine and its evolution over the past three centuries. There is some of that in this book, but not much. Friedman gives barely a nod to the codification movement of the mid-nineteenth century, or the Model Penal Code's reform of most state criminal codes in the 1960s, or the sweeping changes in police interrogation law during the twentieth century. In any history of the legal doctrines that relate to crime, these developments would be a big deal. Friedman does not make them a big deal, because he correctly perceives that they do not have much to do with the