David Keenan

Volume 67, Issue 6, 1695-732

In recent years, Article III courts have become the preferred venue for the U.S. government to try terrorism suspects captured abroad. Many liberals have welcomed this development, characterizing it as a proper extension of American rule of law principles to the so-called “War on Terror.” But while many have celebrated the marginalization of the military tribunal system, few have directly acknowledged its potential costs.

This Article examines one of those costs: Reduced procedural safeguards for Article III defendants against statements procured through coercive interrogation techniques. As courts have repeatedly recognized, the core purpose of the Fifth Amendment’s Self-Incrimination Clause is to ensure that the accused is not compelled to testify against himself in a criminal proceeding. More controversially, Miranda warnings give effect to that purpose by requiring that any statements admitted into evidence be the product of a suspect’s voluntary and informed choice.

However, where matters of national security are implicated, there is a danger that prosecutions of extraterritorial crimes will cause our domestic courts to bend or abandon traditional rules of American criminal procedure. That is particularly true with respect to protections against self-incrimination. Through a comparison of current legal doctrine with the Supreme Court’s pre-incorporation jurisprudence, this Article argues that courts should be more, not less, vigilant in their review of confessions obtained abroad, especially by regimes that are known to engage in torture. In practice, however, the opposite has occurred. Foreign interrogation practices are subject to far fewer constraints than domestic ones. That realization ought to give some pause to those who tout the supposed virtues of our criminal justice system.

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