Most academics who have written on coercive interrogation believe that its use is justified in extreme or catastrophic scenarios but that nonetheless it should be illegal. They argue that formal illegality will not prevent justified use of coercive interrogation because government agents will be willing to risk criminal liability and are likely to be pardoned, acquitted, or otherwise forgiven if their behavior is morally justified. This outlaw and forgive approach to coercive interrogation is supposed to prevent coercive interrogation from being applied in inappropriate settings, to be symbolically important, and nonetheless to permit justified coercive interrogation. We argue that the outlaw and forgive approach rests on questionable premises. If coercive interrogation is ever justified, and the benefits outweigh the risks of error and unintended consequences, it should be legal, albeit strictly regulated. The standard institutional justifications for outlaw and forgive - rules/standards problems, slippery slopes, and symbolism - are unpersuasive.
Eric A. Posner & Adrian Vermeule,
Should Coercive Interrogation Be Legal?,
Mich. L. Rev.
Available at: http://repository.law.umich.edu/mlr/vol104/iss4/2