American Counterterrorism: The Triangle of Detention, Interrogation and Trial
Magna Carta Institute's Symposium, Towards a Global Legal Counter-Terrorism Model: Transatlantic Perspectives, 2010
18 Pages Posted: 23 Dec 2009
Date Written: 2010
Eight years after 9/11, American counterterrorism policy is in a state of extraordinary flux. More precisely it is still in its infancy. In the immediate aftermath of 9/11 President Bush declared ‘war on terrorism’, established a torture based interrogation regime, signed an Executive Order creating Military Commissions and put a price on Bin-Laden’s head. These policies - articulated and implemented without consulting Congress - represent the ‘unitary executive’ theory articulated by Professor John Yoo. While the Congress was largely silent, the Supreme Court’s approach has been halting at best, confused at worst. In other words, the Executive branch under President Bush was largely free from the checks and balances regime as articulated in the U.S. Constitution. Separation of powers, according to the Bush Administration, relegated the Congress and the Court to the ‘sidelines’ of counterterrorism.
Historians will debate the efficacy and effectiveness of this paradigm, law academics will discuss its legality, security experts will examine whether expanded executive powers enhanced counterterrorism, comparativists will inquire whether models implemented by other countries could not have been tweaked rather than re-inventing the wheel, and the general public will ask ‘are we safe’. Suffice it to say, the debate ahead of us is long, complicated and fraught with political overtones.
In the meantime, the Obama Administration has an extraordinarily full plate of demanding decisions. With respect to counterterrorism, the President must address core issues and resolve long simmering dilemmas. While examining the actions of the Bush Administration is important, resolving existing conundrums is essential.
Keywords: Detention policy, interrogation measures, trying suspected terrorist, Winston Churchill, operational counterterrorism, anticipatory self-defense, legitimate target, separation of powers, checks and balances
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