Interrogation of Detainees: Extending a Hand or a Boot?

Abstract

The so called war on terror provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith's "American Way," where Keith sings that "you'll be sorry that you messed with the USofA, 'Cuz we'll put a boot in your ass, It's the American Way."

No aspect of the war on terrorism more clearly addresses this balance than coercive interrogation. In its recent decision, Hamdan v. Rumsfeld, the procedures governing the Guantanamo Bay Military Commissions were found inadequate by the United States Supreme Court. Though the Court called on the Administration to create adequate procedures and process, the recently enacted Military Commissions Act and the subsequently issued Department of Defense Manual for the Trial of Detainees suggest that the Administration has not fully internalized Hamdan's significance regarding the coercive interrogation of detainees.

In seeking the articulation of clear interrogation standards, this article turns to the pages of American history for guidance. In drawing a comparison between the current detainees and African Americans in the Deep South, this historical analysis argues that the same constitutionally based prohibition on the coercive interrogation of African Americans can be extended to the detainees in the war on terror, a currently unprotected class.

This historical analogy is accomplished by analyzing a set of cases that I term the Bram-Brown progeny. This watershed progeny of cases show the Supreme Court's willingness to enter the interrogation rooms in the Deep South, mandating the extension of constitutional protections to a then-unprotected class of people.

I conclude this analysis by formulating recommendations based on constitutional, criminal, and international law that I posit will both cure the deficiencies identified by the Court in Hamdan and provide a means for the United States to return to its moral stance in the international community.

Keywords: criminal law, international law, criminal procedure, detainees, Hamdan, hybrid paradigm, Guantanamo Bay, Military Commissions, interrogation, Bram v U.S., Brown v U.S., 5th amendment, 14th amendment, non-citizens, self-incrimination, due process, torture, interrogation of African Americans

JEL Classification: K14, K33, K42, K49