Torture, Judicial Review, and the Regulation of Custodial Interrogations

Abstract

Since September 11, the Bush administration has developed an unprecedented global-wide detention system, designed to operate outside any established legal framework or independent oversight. By evading existing constraints on custodial interrogations under domestic and international law, this detention system has undermined the United States' longstanding commitment to the prohibition against torture and other abuse.

This article discusses the relationship between the abandonment or dilution of substantive standards and the role of judicial review in regulating custodial interrogations in counterterrorism operations. The article concludes that standards prohibiting abuse, without meaningful judicial oversight are insufficient to effectively regulate custodial interrogations of prisoners held outside established legal frameworks.