A recently-released August 2002 memo from Jay Bybee, then of the Justice Department, to White House Counsel Alberto Gonzalez provides one assessment of what kinds of coercive information-gathering techniques, including the use of “mind-altering substances,” might be permissible on foreign soil “under the Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment as implemented by Sections 2340-2340A of title 18 of the United States Code.” The memo has already been the subject of substantial scholarly criticism and public commentary. One wrinkle that has not been prominent in this discussion, however, is under what circumstances the administration of “mind-altering substances” during an interrogation would run afoul of other legal provisions--for example, the Due Process Clause of the Fifth Amendment in the case of a US citizen detained abroad.
Over the past half century, the Supreme Court has issued a series of opinions clarifying when mind-altering drugs may be administered to mentally-ill criminal defendants and prisoners against their will. The Court’s general approach has been a balancing act between the individual’s liberty interest and societal interests (such as bringing the individual to trial or preventing the individual from harming others), with substantial deference to medical professionals, a firm insistence that the treatment be “medically appropriate,” and an expectation that “less intrusive alternatives” receive some consideration. Although this line of jurisprudence would not seem directly applicable to the “war on terror” interrogation scenario, what’s striking about the medication-for-prosecution cases is the extent to which they anticipated—and looked askance at—the creepier possibility of drugging suspects for wholly non-medical purposes.
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For example, in Riggins v. Nevada, a
concurring Justice Kennedy apparently shared the concern raised by the National Association of Criminal Defense Lawyers that “[T]he chemical flattening of a person's will can . . . lead to the defendant's loss of self-determination, undermining the desire for self-preservation which is necessary to engage the defendant in his own defense in preparation for his trial.” (Manipulating a tight-lipped detainee’s will, to overcome “defensiveness,” of course, may be the very purpose of persistent interrogation.)
On the other side of the case, Justice Thomas likewise acknowledged that “[a] State . . . might violate a defendant's due process right to a fundamentally fair trial if its administration of medication were to diminish substantially the defendant's mental faculties during the trial,” citing a seventeenth-century English opinion establishing that “when Prisoners come to the Bar to be tryed, their Irons ought to be taken off, so that they be not in any Torture while they make their defense, be their Crime never so great.” More recently, in Sell v. United States, the Justice Department invoked similar language in its attempt to distinguish antipsychotic medication (“It brings the possibility of a less tortured existence”) from stomach pumping to obtain evidence (admittedly “too close to the rack and screw to permit Constitutional differentiation”). (The quotations are originally from A.R. Felthous, M.D. et al., Are Persecutory Delusions Amenable to Treatment?, 29 J. Am. Acad. Psychiatry Law 461, 466 [2001] and Rochin v. California, 342 U.S. 165, 172 [1952]).
My sense is that forced drugging potentially affects two distinct types of Constitutional harm. The first category—various kinds of interference with a defendant’s right to a fair trial and protection against self-incrimination—was central to Riggins and Sell. In the case of a military interrogation, one can readily envision these concerns taking a back seat to the demand for information in the name of national security. Although “enemy combatants” have some due process rights, they presumably would not be afforded the same kind of trial as ordinary criminal defendants, and improperly-gathered evidence can always be excluded when a detention reaches judicial review. The second category of harm—the intrusion, physical injury, or mental disturbance caused by the very act of drugging—is substantive rather than procedural, less amenable to repair after-the-fact of the drugging, and arguably more destructive. (On a visceral level, opponents of torture would lose much their persuasive force if they merely argued that torture threatens the right to a fair trial.) It is actually the specter of this latter class of harm that is invoked by the “rack-and-screw” rhetoric surrounding the drugging-for-prosecution cases.
This distinction is not limited to the administration of psychoactive drugs—compulsory, minimally-invasive brain scans for detainees would largely implicate the first category of concerns; using sci-fi technology to temporarily “commandeer” soldiers' brains would largely implicate the second. The Bybee memo’s parsing of when a drug “disrupt[s] profoundly the senses or personality” may seem bizarre and hair-splitting. Nonetheless, because the memo focused on situations far removed from the American courtroom, it provides “law & bioethics” people with a poignant reminder that the use of brain technologies by government actors can raise Constitutional and human rights questions long before giving rise to the problem of how these technologies should be assimilated into the justice system.