The discussion ultimately centers on the question of limits—what limitation of freedom can we impose on the individual? How long will he or she be held and subject to what independent judicial review is a question critical to the debate. Similarly, whether the detainee will be allowed to consult with an attorney is a question of extraordinary importance. American jurists have long discussed these questions; American courts have struggled to create and maintain “bright line rules” in the criminal law paradigm. While any U.S. law student can recite case law addressing detention and interrogation questions, that same student will have a diffi cult time articulating that courts have addressed these issues uniformly and consistently.
Needless to say, the uncertainty and ambiguity—what is politely referred to as a “case-by-case” approach—is magnified when the detainee is not a common criminal, but rather an individual suspected of involvement in terrorism. Whatever one’s political perspective, many––if not most––commentators suggest that civil democratic regimes must conduct operational counterterrorism subject to the rule of law. Where the rubber hits the road is in how the detainee is treated not in the fully articulated paradigm where the rules are largely known, but in the developing counterterrorism paradigm.
Developing the tools—legal and policy—to simultaneously protect the nation-state while protecting the detainee from of that very nation-state is an extraordinary challenge. Policy makers are, frankly, searching for answers and guidance. The past seven years are the manifestation of how not to seek answers, for they are a reflection of unwarranted and inexcusable hubris and arrogance. Moving forward, President Obama must reach out to a wide array of experts; he and his administration must also listen and understand and respect the limits of their own understanding and comprehension of the issues.
And that is precisely where Dan Stigall comes in—while not “long in the tooth,” Dan has exhibited an unusual sensitivity in how he has approached this issue. He has also exhibited unusual maturity in examining the issue from a comparative approach. The choice of comparing to the United Kingdom and France is interesting; while others may