A Better Model for Interrogating High-Level Terrorists
61 Pages Posted: 1 Jun 2006
Neither the McCain Amendment of 2005 nor the Military Commissions Act of 2006 provides a fair and solid foundation for detaining al Qaeda members to gather intelligence from them. Yet, intelligence continues to be vital to American efforts to disrupt terrorist plots. This article, straddled between arguments for civil liberties and for executive supremacy, recommends a new statute to provide that foundation.
A special court would be created to hear Executive applications for the detention and interrogation of terrorism suspects. Court hearings would be secret. The total number of prisoners within special detention would be limited. And an ombudsman would appear on behalf of terrorism suspects at the hearings. To justify detention and interrogation outside the criminal justice system, alternative models are analyzed, including pre-trial detention, civil commitment of the mentally ill and of sexual predators, quarantines for public health emergencies, immigration removals, and detention of enemy combatants. Also discussed are the British and Israeli experiences in handling terrorism suspects.
The use of coercion, short of torture, is considered for interrogations. After considering absolute positions against torture and extra-constitutional exceptions to the ban on torture, this article places special detention within a system of ex ante warrants.
Keywords: McCain Amendment, terrorism, torture, criminal law, interrogation, rendition, detention
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