Marc D. Falkoff

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The habeas lawyer, I therefore suggest modestly, is the legal mirror-image of the state as torturer and as outlaw information-gatherer. One of my clients was kept in total darkness for weeks before being transferred to Guantanamo; he was subjected to blaring music in what is commonly known as the "Dark Prison" at Bagram, with the darkness and noise interrupted only by an occasional interrogation session which took place in a red-lit room. I also find compelling her definition of torture as the sum of pain and questioning-an equation that, interestingly, allows Scarry to argue that the torturer asks his questions in order to deconstruct the voice and dismantle the humanity of the torture victim. The information-forcing rationale transforms and rationalizes the motive for torture and acts, in Luban's words, as a "last resort" for people profoundly reluctant to torture--thus providing what he calls the "liberal ideology of torture." All of this is crystallized in the "ticking time bomb" scenario, whose purpose is to persuade liberals to concede a single situation where even he would torture, and having obtained this concession, prove that he really does not have a principled stand against torture. The right strategy is not to deny that abusive interrogations are necessary in order to gather intelligence, to dismiss the very notion that coercion is a regrettable but necessary tool to protect our national security, or to assert that the proffered need for gathering intelligence is always a "false" motive put forth by a torture regime.

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Northern Illinois University Law Review

Suggested Citation

Marc D. Falkoff, Torture and Habeas Corpus as Information-Forcing Devices, 29 N. Ill. U. L. Rev. 425 (2009).

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