Due Process and Counterterrorism
Emory International Law Review, Vol. 26, 2012
20 Pages Posted: 22 Sep 2010
Date Written: September 14, 2010
In this article, I examine counterterrorism from the perspective of detention, interrogation and trial and in particular how these three are articulated and implemented. The broader question is whether the contemporary counterterrorism paradigm is based in due process or a legal (not necessarily lawful) regime that minimizes individual rights. That is, does civil, democratic society discard core principles in the face of an on-going, viable threat or are political rights and national security rights effectively balanced in order to protect both. Answering this question requires analyzing the interface between threats and rights; in particular, the extent to which society responds to the former while protecting the latter.
The challenges facing national decision makers are extraordinary; the public demands concrete measures in responses to attacks. Decision makers are charged with simultaneously protecting both the law and the public in accordance with core values of rights and morality. Balancing competing responsibilities is manifested in what I refer to as the “dilemma of the decision maker.” The terrorism/counterterrorism paradigm manifests those tensions and uncertainties in a more powerful manner than perhaps any other issue confronting contemporary decision makers and the public alike. The public’s visceral reaction to feeling threatened is reflected in a survey demonstrating that fifty-eight percent (58%) of U.S. voters say waterboarding and other aggressive interrogation techniques should be used to gain information from the terrorist who attempted to bomb an airliner on Christmas Day”.
Benjamin Franklin’s much cited words of wisdom “any society that would give up a little liberty to gain a little security will deserve neither and lose both” capture the essence of this constant and unremitting tension. With respect to the paradigm before us - due process and counterterrorism - Franklin’s words spoken over 200 years ago capture the essence of the existential, philosophical, legal and practical dilemma of counterterrorism conducted in societies subject to the rule of law.
Keywords: counterterrorism, detention, interrogation, due process, civil rights, judicial forum, threat
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