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This chapter discusses the apologist role of courts, in which they serve as a legitimating agency for state action. The first case study shows how the Israeli High Court of Justice (HCJ) contributed to the creation and legitimization of a segregated regime in the Occupied Palestinian Territories by providing the state with the legal tools required to design and implement it. The HCJ has done this through the selective use (and misuse) of the law of military occupation. The second case study examines the jurisprudence of the Serbian War Crimes Chamber (WCC). The WCC is one of the few domestic courts in the world to prosecute its own nationals for war crimes committed in a conflict that ended just a few years before the court's creation. More generally, it deciphers the legitimating role of a national court which exercises criminal jurisdiction over former government officials.

Defining limits of coercive interrogation is put to the test when an interrogator is sitting across from someone who is not cooperating and the interrogator knows is in possession of information purported to be urgent. It is exactly at that moment that the previously established lawful limits of interrogation must be implemented, no matter the circumstance. Otherwise, excess will be permitted, encouraged, and will inevitably occur. This chapter is divided into three subsections: 1) definitions of torture; 2) an analysis of interrogation methods based on an Israeli High Court of Justice holding, Ireland v. United Kingdom, and a 1984 Israeli Commission of Inquiry; and 3) an analysis of functional torture and sadistic torture.

One clear assertion of this book is that the present system of interrogations and detainee status requires our collective and immediate attention. To that end, the hybrid paradigm was created. Although not a perfect solution to a complicated problem, the hybrid paradigm proposes an alternative that addresses the dilemma of how to balance legitimate civil and political rights of the individual with the equally legitimate national security rights of the state. Accordingly, the detainee held by the US in Guantanamo Bay and similar facilities will be granted certain constitutional rights, in particular those based on the Fifth, Eighth, and Fourteenth Amendments. The operative words in this chapter are granting certain rights to non-Americans held by the United States outside the United States. Such an analysis facilitates an examination of whether the proposal sufficiently protects the rights of those it presumes are a constitutionally protected class.