Counterterrorism consists of four “legs”: the rule of law, morality, operational considerations, and intelligence gathering. Successful, aggressive counterterrorism operations reflect a confluence of the four. Balancing the rights of the individual with the equally legitimate rights of the state is the essence of counterterrorism. In a spectrum-predicated analysis, coercive interrogation is the most appropriate, effective, and legal interrogation regime. It is neither torture nor the traditional interrogation regime. It represents a balanced approach that is fully implemented in conjunction with the hybrid paradigm. The hybrid model comprised of melding aspects from both the criminal law and POW paradigms and applying it to the current detainees, based on a historical analogy, provides a unique opportunity to formulate concrete policy recommendations—rooted in the law—to decision makers regarding interrogation. This chapter provides twelve concrete recommendations for all branches of the US government.
Keywords: rule of law, morality, operational considerations, intelligence gathering, targeted killing, Hamdan v Rumsfeld, void for vagueness, coercive interrogation measures, active judicial review, limits of power
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