- The Washington Times - Thursday, November 8, 2001

Investigators considering the use of truth serum to sweat information out of suspected al Qaeda terrorists likely would find federal courts on their side because public safety is at imminent risk.
In cases involving the whereabouts of bombs or weapons, or in the hunt for kidnap victims, courts have been flexible, even to the point of admitting evidence that was obtained by officers who failed to give the "Miranda warning," which says suspects have a right to remain silent and obtain a lawyer.
One guiding light for that philosophy is the quotation cited in several Supreme Court national-security opinions from a 1963 opinion for the court by Justice Arthur Goldberg: "While the Constitution protects against invasions of individual rights, it is not a suicide pact."
FBI officials yesterday said that, despite the frustration investigators face in tough cases, the bureau had no plans to use truth serum or other coercive interrogation techniques on people detained in the investigation of the September 11 attacks, as press reports here and abroad claimed were under consideration to break down stubborn suspects.
"As the nation's lead agency for counterterrorism and the enforcement of civil rights law, the FBI works both to prevent and investigate acts of terrorism and to protect individual rights," the FBI said in a statement that mentioned four recent convictions in the embassy bombing cases as proof that the constitutional system works against terrorism.
"While large and difficult investigations often bring moments of frustration for investigators, none would advocate what is being suggested," the FBI statement said.
The CIA finessed the question by saying federal law bars its involvement in domestic operations.
Truth serums were used on World War II spy suspects by agents of the Office of Strategic Services, Chief Justice Earl Warren endorsed them during the Kennedy assassination probe he headed, and a House committee proposed to test a Hanoi mortician who testified in 1979 that he prepared 400 bodies of U.S. prisoners of war for storage.
The key legal question would be whether the information a witness was hiding was deemed more important than using his confession to prosecute him later.
Except for rare cases involving imminent risk to "public safety," federal courts always bar a defendant's involuntary statements under the Fifth Amendment's protection against forced self-incrimination. Should such cases come to light, prosecutors would have discretion on whether to charge an investigator criminally with assault or civil rights violations, and the person under investigation could try to take his chances in civil court by suing the interrogator.
Analysts in and out of government say some answers in the al Qaeda investigation are worth trying chemical truth serums even if prosecution will fail because of the tactic.
"It's just an injection, a doctor gives it. That one doesn't seem so hard," said a federal official who requested anonymity.
"We already allow the threat of imprisonment to force people to speak to a grand jury. Once certain legal processes have been gone through we place no value on your right not to speak," he said.
Testimony coerced by fines or indefinite jail terms is common in grand jury probes such as the one under way over the terrorist attacks. That practice puts aside Fifth Amendment self-incrimination rights so that reluctant witnesses can be forced to testify against others.
Harvard law professor Alan Dershowitz proposes reviving the historic English system in which top officials and the high court authorized what he calls warrants for torture.
"I'm not in favor of torture, but if you're going to have it, it should damn well have court approval," said Mr. Dershowitz.
A 1984 Supreme Court decision in a New York rape case gives authorities latitude to protect public safety, declaring a "public safety exception" to the Miranda rule.
"We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination," the court said in an opinion by Associate Justice William H. Rehnquist.
"The actual constitutional violation occurs not with the shocking conduct itself, but with the admission of the evidence," Los Angeles lawyer Jessica Pae said in a law-review analysis of coerced testimony.
"Hence there would be no constitutional violation against the coerced party in using the compelled testimony to develop leads against a third party regarding, for example, a hostage crisis or bomb-threat situation to prevent deadly harm to innocent parties," said Miss Pae.
"That was Miranda, but who knows what exceptions the courts might recognize in other cases to obtain intelligence as opposed to prosecuting someone," said a University of Southern California law professor who asked not to be identified.
"This is the biggest murder case ever investigated, so someone could be perfectly consistent as a matter of principle even if he opposed using a truth serum or other coerced interrogation for regular murderers," he said.
Kent S. Scheidegger, of the Criminal Justice Legal Foundation, said investigators could risk criminal civil rights charges for coercing confessions.
"If the circumstances are exigent enough, even though it was a violation, it wouldn't be prosecuted," Mr. Scheidegger said of situations where the answer is more important than a conviction.
Although the CIA experimented with truth serums, as did its World War II predecessor, the OSS, the agency has no public position on the issue now.
"The same people who beat you up for perhaps being in contact with unsavory people, or for being too close to people who had techniques to get information, now want to know why you don't have greater sources in terrorist organizations," said one CIA official.
The truth serum issue arose during the Warren Commission probe of Lee Harvey Oswald's murder after President Kennedy's 1963 assassination, when Jack Ruby volunteered for a truth-serum test to prove that he had no co-conspirators.
"Now Mr. Warren, I don't know if you got any confidence in the lie detector test and the truth serum, and so on?" Ruby said.
"I can't tell you just now much confidence I have in it, because it depends so much on who is taking it, and so forth. But I will say this to you, that if you and your counsel want any kind of test, I will arrange it for you. I would be glad to do that, if you want it," Chief Justice Warren replied.
"I do want it. Will you agree to that, Joe?" Ruby asked his lawyer, Joe H. Tonahill.
"I sure do, Jack," Mr. Tonahill said.
In 1996, Defense Secretary William J. Perry officially banished training manuals used for Latin American intelligence trainees from 1982 to 1991 at the U.S. Army School of the Americas.
Practices in the manuals included extrajudicial execution and use of truth serums.
An al Qaeda training manual in evidence at the embassy bombing trials mentions chemical invasion in its chapter on interrogation, but it warns "Jihad brothers" that torture is more likely in the jails of Egypt, Syria, Jordan and Saudi Arabia.
"Placing drugs and narcotics in the brother's food to weaken his will power" is item 23 among 26 torture methods listed, followed by nine "methods of psychological torture."
In an article chronicling truth serum from the 1940s to the 1990s, California Institute of Technology student Alison Winter pointed out the historic use of alcohol to loosen tongues, documented by Pliny the Elder's A.D. 77 aphorism, "In vino veritas."
More sophisticated truth serums have included scopolamine and the barbiturates sodium pentothal and sodium amytal. There also was experimentation with LSD, psilocybin and amanita mascara mushrooms.
Although the fictional image portrays a single hypodermic injection, Miss Pae said it was more common to have a doctor administer truth serums intravenously over sessions lasting two to 11 hours.
"The depth of anesthesia is controlled by the anesthesiologist in response to requests from the principal interrogator, who may call for rapid fluctuations in depth of anesthesia in order to further the purposes of the interrogation," she said.
A psychiatrist in a landmark rape-sodomy case testified that such drugs "remove certain inhibitions so the individual will spontaneously say what the individual would have said without trying to exercise control over not saying it."
Other expert witnesses call such testimony unreliable because persons submitted to chemicals often repeat interrogators words or fantasize.


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