Title

Is Truth Serum Torture?

Abstract

In the wake of the Sept. 11th attacks, many commentators declared that the fight against terrorism required Americans to consider using torture against Al Qaeda. While many concluded that torture should be banned, the use of truth serum was deemed acceptable. This article analyzes and debunks the unexamined claim that the forced administration of an effective truth serum should not be considered torture.

Part I of this article explains the current concerns over abusive interrogation by the United States as part of the war on terror. Part II examines the concept of “truth serum.” Part III discusses the definition of torture and other cruel, inhuman or degrading treatment under the International Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. In particular, it highlights the reservation interpreting U.S. obligations regarding cruel, inhuman or degrading treatment and the U.S. understanding of the definition of torture.

Part IV explores whether the ban on cruel, inhuman or degrading treatment or punishment prohibits the use of truth serum. Part V examines whether the prohibition against torture forbids truth serum. Specifically, it analyzes whether truth serum causes severe mental pain and suffering and, if so, whether such pain is intentionally inflicted as required under the Convention. It draws on U.S. law as well as jurisprudence of the Committee Against Torture and other international bodies. Finally, Part VI discusses the lacuna in the current understanding of torture and how to deal with it.

The loophole in the Convention is based on the fact that only the infliction of pain that intentionally causes a confession constitutes torture. Mental anguish that is incidental to the purpose, like that stemming from truth serum, is not torture. As a result, the use of truth serum in not barred by the Convention, but the threat of using it is.

Given the incoherence and disadvantages of the paradoxical conclusion that the use of truth serum is proper but the threat is not, both should be considered torture. The United States should rule out the possibility of using truth serum on unwilling subjects, even as part of the war on terror.

Disciplines

International Law

Date of this Version

September 2004