A Time report on Gerald Posner’s new book, Why America Slept, cites a passage regarding the use of sodium pentothal—or “truth serum”—on al-Qaida detainees. According to Posner, the Bush administration believes its use of the drug is legally justified by a 1963 Supreme Court opinion. What opinion is he referring to, and what does it say, exactly?
Surprisingly, the case Posner alludes to isn’t 1963’s Townsend v. Sain, the only Supreme Court decision to directly address the use of truth serum to extract a confession. Instead, he refers to (without citing by name) Kennedy v. Mendoza-Martinez, a case that addresses citizenship issues and Selective Service laws and makes not a single reference to drug-addled interrogations.
Posner contends that administration officials have zeroed in on a famous quip in the Kennedy opinion, which was written by Justice Arthur Goldberg. The ruling was in favor of the appellee, who had been summarily stripped of his citizenship after leaving the country expressly to avoid military service. In finding that Mr. Martin-Mendoza could not have his citizenship revoked without due process, Goldberg noted that:
The powers of Congress to require military service for the common defense are broad and far-reaching, for while the Constitution protects against invasions of individual rights, it is not a suicide pact.
As David Corn pointed out in Slate last year, Kennedy is universally considered a liberal opinion, one that protected due-process rights rather than allowing the government to circumvent them during times of crisis. So any Bush administration interpretation that used this line to justify the administration of truth serum might be legally suspect.
More obviously relevant is Townsend, in which a Florida man convicted of murder appealed on the grounds that his confession had been extracted with the aid of pharmaceuticals, specifically a cocktail of Phenobarbital and hyoscine. The doctor who administered the drugs ostensibly did so to alleviate Townsend’s heroin withdrawal; he did not inform the suspect that hyoscine is the same thing as scopolamine, a form of so-called truth serum. (For Explainer’s 2001 take on the effectiveness of truth serums, click here.) The Supreme Court granted Townsend’s request for an evidentiary hearing regarding the drugs, finding that the prosecution’s medical experts had erred by not describing hyoscine’s potentially coercive nature. Despite the ruling in Townsend’s favor, conservative scholars argue that the decision is too narrow to settle questions about the legality of truth serum in every scenario.