Constitutional Limits on Coercive Interrogation (Terrorism Second Series)

By in Annotations & Citations on February 9, 2013

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On September 11, 2001 terrorism instantly became the defining issue of our age. The resulting debates surrounding the inherent tension between national security interests and individual civil rights has focused national and international attention on how post-9/11 detainees at Guantanamo Bay, Abu Ghraib, and around the world have been interrogated. All concerned agree that, while interrogation practices represent a crucial meeting ground between human rights and counter-terrorism measures, the limits placed on interrogators are perhaps the most difficult to define for they determine how “far” a civil society is willing to go in fighting the exigencies that terror presents.

In The Constitutional Limits of Coercive Investigation, Amos Guiora offers a theoretical analysis and a practical application of coercive interrogation, and in doing so, suggests developing and implementing a hybrid paradigm based on American criminal law, the Geneva Convention, and the Israeli model of trial as the most relevant judicial regime.

Guiora offers a unique contribution to the public debate by creatively utilizing a historical analysis of the system of “justice” for African-Americans in the Deep South of the past century to serve as a guide for the constitutional rights and protections which need to be granted or extended to an unprotected class. He then indicates which interrogation methods are within the boundaries of the law by both recommending protection of the detainees and providing interrogators with the tools required to protect America’s vital interests.

One thought on “Constitutional Limits on Coercive Interrogation (Terrorism Second Series)

  1. Akmal Niyazmat
    1
    4 of 7 people found the following review helpful
    1.0 out of 5 stars
    Don’t waste your time, energy and money on this book, October 26, 2009
    By 
    Akmal Niyazmat (Tashkent, Uzbekistan) –

    This review is from: Constitutional Limits on Coercive Interrogation (Terrorism Second Series) (Hardcover)

    Don’t waste you time, energy and money on this book.

    Here is what it is about:

    Chapter 2 is entitled “Introducing the Hybrid Paradigm and the Historical Analogy.” The author does not describe what his hybrid paradigm is. He just says that it will guarantee certain procedural rights (p. 9) and then lists 10 assumptions on which the hybrid paradigm relies. Right after that he jumps to “practical advantages” and again, without serious discussion of what is “practical” about his paradigm, he just says that it will guarantee 5th and 14th Amendment rights. The rest of Chapter 2 is about Bush’s response to 9/11 attacks. He ends Chapter 2 with “Possible solution” that ends with “the hybrid paradigm [...] offers a viable solution for lawful coercive interrogation.” Thus, this chapter talks a lot from there and here but not about “introducing the hybrid paradigm.” Well, you want to believe that it was just an introduction and thus the author was speaking in very general terms and the substance will follow. OK, let’s have a look at Chapter 3.

    Chapter 3 is entitled “Application of the Hybrid Paradigm.” How can we speak of “application” if we don’t know yet what it is? Instead of clarifying what the hybrid paradigm is and how it can be applied to suspected terrorists, the author relates his “hybrid paradigm” to the legal regime employed by Israel. The rest of the Chapter 3 is about Israeli legal regime employed in Occupied Territories and it again ends with open-ended questions like “what contribution does the hybrid paradigm make to the interrogation of a detainee suspected of involvement in terrorist activity” or “Will individuals detained in Guantanamo Bay be granted Miranda rights prior to their interrogations?” Well, one would ask “Wasn’t the Chapter about `application of the hybrid paradigm’?” If yes, then why not to address the issue in the same chapter?! I understand that comparative approach is important and thus looking at how Israeli legal regime works with regard to suspected terrorists may shed some light to the authors “hybrid paradigm.” But what the reader looks for in the book is the answer to questions of what the author’s hybrid paradigm is and how it will be applied.

    Chapter 4 jumps to “Interrogations in the History of American Criminal Law.” Without any serious scholarly discussion, the author just describes what Bram v. United States, Brown v. Mississippi, White v. Texas, Ward v. Texas, and Ashcraft v. Texas are in about 8 pages.

    Chapter 6 is “Coercive Interrogation, Threats and Cumulative Mistreatment.” He starts with denouncing torture and stating that coercive interrogation is not “torture lite.” Then the author tells us what he thinks lawful coercive interrogation methods are and lists 5 of them: sleep deprivation, modulation of room temperature, stress position, placing a sack over the head and playing loud, cacophonous music. Guiora further states that these methods shall be used in a “highly controlled environment [...] that although causing detainees discomfort, does not cause them severe mental and physical pain.” But he fails to articulate what “highly controlled environment” is and how does it ensure that a “lawful” coercive interrogation will not turn into pure medieval torture. He further fails to demonstrate why he is sure that those 5 methods do not cause severe mental and physical pain.

    Chapter 9 is “International Law Pertaining to Torture and Interrogation.” This Chapter is just off topic. It is largely about modern international law’s self-defense theory. He talks about Caroline case, Nicaragua v. United States, Israel’s illegal attack on Osarik station in Iraq, Art. 51 of the UN Charter. Then, finally, he asks the question “what does all this tell us in the context of torture, coercive interrogation and international law?” Yet again, he does not engage into any discussion how self-defense relates to torture and interrogation.

    To sum up, the book is very general. A 162-page book does not contain any scholarly discussion on coercive interrogation: its legality, justification, circumstances, etc. Do not recommend to read even for the purposes of getting general idea about torture, CID, coercive interrogations, preventive vs. deterrent state paradigms, etc.

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