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Concluding Recommendations

Amos N. Guiora

in Constitutional Limits on Coercive Interrogation

Counterterrorism consists of four “legs”: the rule of law, morality, operational considerations, and intelligence gathering. Successful, aggressive counterterrorism operations reflect a confluence of ... More

Counterterrorism consists of four “legs”: the rule of law, morality, operational considerations, and intelligence gathering. Successful, aggressive counterterrorism operations reflect a confluence of the four. Balancing the rights of the individual with the equally legitimate rights of the state is the essence of counterterrorism. In a spectrum-predicated analysis, coercive interrogation is the most appropriate, effective, and legal interrogation regime. It is neither torture nor the traditional interrogation regime. It represents a balanced approach that is fully implemented in conjunction with the hybrid paradigm. The hybrid model comprised of melding aspects from both the criminal law and POW paradigms and applying it to the current detainees, based on a historical analogy, provides a unique opportunity to formulate concrete policy recommendations—rooted in the law—to decision makers regarding interrogation. This chapter provides twelve concrete recommendations for all branches of the US government.Less

9. Extreme Times, Extreme Measures

David Fisher

in Morality and War: Can War Be Just in the Twenty-first Century?

Following the 9/11 attacks, al‐Qaeda and other terrorist groups pose a threat, operating with global networks and potentially armed with weapons of mass destruction. To counter these threats, US ... More

Following the 9/11 attacks, al‐Qaeda and other terrorist groups pose a threat, operating with global networks and potentially armed with weapons of mass destruction. To counter these threats, US policy‐makers argued that extreme times justify extreme measures. These include pre‐emptive military action to forestall terrorist attacks and new methods of interrogation to uncover them. Just‐war thinking would license neither the new US doctrine of pre‐emption nor the new interrogation techniques. For an absolutist torture is always wrong, but a consequentialist, such as Dershowitz, justifies torture if it could save lives. To understand why torture is wrong we need to deploy all the resources of virtuous consequentialism, attending not just to the consequences but the internal states and character of the torturer and his victim. We want our public servants to be virtuous. Yet we need our special interrogators to be men or women of vice.Less

The Architecture of Impunity

Peter Margulies

in Law's Detour: Justice Displaced in the Bush Administration

This chapter examines the Bush administration's efforts to orchestrate impunity—to insulate themselves from the sanctions established under domestic and international law. It first considers the ... More

This chapter examines the Bush administration's efforts to orchestrate impunity—to insulate themselves from the sanctions established under domestic and international law. It first considers the machinations of Dick Cheney, David Addington, and other Bush officials to arrange impunity before and after the fact, from the selection of sites for detention outside the United States as “law-free zones” and claims of immunity from lawsuits. It then discusses the Bush administration's attempts to frustrate accountability by advancing arguments based on geography and exigency, along with its use of the Department of Justice to shield itself from accountability for coercive interrogation. It also explores how the White House negotiated the conflict between sound legal advice and its pursuit of impunity and concludes with an analysis of the government's invocation of executive privilege and the campaign of selective amnesia to cover up evidence of political influence in the United States Attorney firings of 2006.Less

3 The Architecture of Impunity

Peter Margulies

in Law's Detour: Justice Displaced in the Bush Administration

This chapter examines the Bush administration's efforts to orchestrate impunity—to insulate themselves from the sanctions established under domestic and international law. It first considers the ... More

This chapter examines the Bush administration's efforts to orchestrate impunity—to insulate themselves from the sanctions established under domestic and international law. It first considers the machinations of Dick Cheney, David Addington, and other Bush officials to arrange impunity before and after the fact, from the selection of sites for detention outside the United States as “law-free zones” and claims of immunity from lawsuits. It then discusses the Bush administration's attempts to frustrate accountability by advancing arguments based on geography and exigency, along with its use of the Department of Justice to shield itself from accountability for coercive interrogation. It also explores how the White House negotiated the conflict between sound legal advice and its pursuit of impunity and concludes with an analysis of the government's invocation of executive privilege and the campaign of selective amnesia to cover up evidence of political influence in the United States Attorney firings of 2006.Less

Targeting Individuals and Groups

Peter Margulies

in Law's Detour: Justice Displaced in the Bush Administration

This chapter examines the Bush administration's use of legal detours to target individuals and groups, including protesters, lawyers in the war on terror, and ordinary Americans. It first traces the ... More

This chapter examines the Bush administration's use of legal detours to target individuals and groups, including protesters, lawyers in the war on terror, and ordinary Americans. It first traces the history of the government's targeting of groups through fear, malice, or overzealous enforcement and goes on to discuss the Bush administration's response to 9/11 as part of its heightened immigration enforcement. It then considers the administration's policies on asylums and refugees, along with the different means that it employed to target individuals and groups, such as coercive interrogation, extraordinary rendition, and detention without due process. It also explores the administration's use of detours within the criminal justice system, starting with the detention of material witnesses. The chapter notes the vindictive stance of the Bush administration in targeting individuals, such as immigrants and foreign nationals.Less

2 Targeting Individuals and Groups

Peter Margulies

in Law's Detour: Justice Displaced in the Bush Administration

This chapter examines the Bush administration's use of legal detours to target individuals and groups, including protesters, lawyers in the war on terror, and ordinary Americans. It first traces the ... More

This chapter examines the Bush administration's use of legal detours to target individuals and groups, including protesters, lawyers in the war on terror, and ordinary Americans. It first traces the history of the government's targeting of groups through fear, malice, or overzealous enforcement and goes on to discuss the Bush administration's response to 9/11 as part of its heightened immigration enforcement. It then considers the administration's policies on asylums and refugees, along with the different means that it employed to target individuals and groups, such as coercive interrogation, extraordinary rendition, and detention without due process. It also explores the administration's use of detours within the criminal justice system, starting with the detention of material witnesses. The chapter notes the vindictive stance of the Bush administration in targeting individuals, such as immigrants and foreign nationals.Less

War Powers and the War on Terrorism

Curtis A. Bradley

in International Law in the U.S. Legal System

This chapter considers the relevance of international law within the U.S. legal system to the United States’ initiation and conduct of war. After briefly reviewing some of the most relevant treaties ... More

This chapter considers the relevance of international law within the U.S. legal system to the United States’ initiation and conduct of war. After briefly reviewing some of the most relevant treaties relating to war and warfare, the chapter considers the Constitution’s distribution of war authority between Congress and the President. It then discusses how international law, including the provisions in the UN Charter relating to the authority of the Security Council, as well as collective self-defense treaties, might affect the President’s war authority. The chapter then shifts to the “war on terrorism” and discusses the relevance of international law, including the Geneva Conventions, to issues concerning the scope of the military’s detention authority in that conflict, with particular reference to the Supreme Court’s 2004 decision in Hamdi v. Rumsfeld. International law and other issues relating to the use of military commissions to try terrorist suspects are also considered. The chapter concludes by discussing legal debates relating to coercive interrogation and targeted killing.Less

Shortcomings of Evangelical Foreign Policy Advocacy

in Evangelicals and American Foreign Policy

This chapter examines Evangelical foreign policy advocacy on four global issues: climate change, immigration, coercive interrogation (torture), and the reduction of nuclear arms. After describing how ... More

This chapter examines Evangelical foreign policy advocacy on four global issues: climate change, immigration, coercive interrogation (torture), and the reduction of nuclear arms. After describing how Evangelical groups have sought to address these issues, the chapter highlights some of the major limitations of each of these initiatives, focusing on conceptualization of issues, the moral analysis of problems, and the advocacy of policy reforms. The chief limitation of each of these advocacy campaigns is the failure to offer teaching documents to help guide moral analysis of the perceived issue or problem. In particular, Evangelical groups appear more eager to participate in advocacy than in the careful analysis of issues from a biblical perspective. This is regrettable since religious groups have greater competence on biblical ethics than on political affairs.Less