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  • Counterterrorism, Dignity, and the Rule of Law
  • Paul Lauritzen (bio)

How we interrogate “post-9/11” detainees is the fundamental question in balancing the inherent tension of national security considerations against individual civil and political rights. More significantly, the interrogation measures we adopt define who we are as a society.

amos guiora, 2008

Americans, believing themselves to stand proudly for the rule of law and human rights, have become for the rest of the world a symbol of something quite opposite: a society in which lawbreaking, approved by its highest elected officials, goes unpunished.

mark danner, 2011

Two items in the news in the spring of 2012 suggest why both Amos Guiora and Mark Danner are right to be concerned about the United States’ counterterrorism practices in a post-9/11 world. The first is a book, Hard Measures, by Jose Rodriquez (2012), the former director of the National Clandestine Service of the Central Intelligence Agency. In the book and in various interviews during the promotional tour for the volume, Rodriquez vigorously defends counterterrorism measures used by the CIA in the war on terror, including rendition and enhanced interrogation techniques. He argues that the enhanced techniques used on Abu Zubaydah and Khalid Sheikh Mohammed resulted in intelligence that was key in the prevention of specific terrorist plots.1 [End Page 452]

The second news item is the conviction of Adis Medunjanin on federal charges of conspiring to use weapons of mass destruction and other terrorist-related activities, as part of a plot to engage in suicide bomb attacks on the subway system in New York City. Medunjanin was brought to trial after authorities discovered the plot and after his accomplices, Najibullah Zazi and Zarein Ahmedzay, agreed to testify against Medunjanin as part of a plea agreement. At trial, Zazi and Ahmedzay testified that they had traveled with Medunjanin to Pakistan in 2008 to train with al Qaeda. They returned to the United States with the intent of targeting the New York Stock Exchange, Times Square, or Grand Central Station, before settling on the subway system as the desired target. At the conclusion of the trial, Assistant Attorney General for National Security Lisa Monaco described Medunjanin as “an active and willing participant in one of the most serious terrorist plots against the homeland since 9/11. Were it not for the combined efforts of the law enforcement and intelligence communities, the suicide bomb attacks that he and others planned would have been devastating” (Rockwell 2012).

These two stories—one lauding the success of enhanced interrogation techniques, the other noting a terrorist attack narrowly averted—provide a useful frame for discussing counterterrorism and the rule of law, because they highlight the ongoing threat of terrorism and the need for intelligence about potential threats in order to prevent them. Those who work in the field of counterterrorism know all too well that a successful terrorist attack is almost inevitable and that the effort to prevent terrorist attacks will require an ongoing calibration of the appropriate moral and legal measures to combat that threat. This essay seeks to address how we might best calibrate moral and legal responses to terrorism by focusing on the enhanced interrogation techniques that were adopted after 9/11 by the Bush administration. I will argue that the category of “dignity” suggests a moral framework for morally evaluating enhanced interrogation techniques and other counterterrorism practices.

We can begin by noting that when suspected terrorists are in custody, at least two values may be deeply at odds. We have a moral responsibility to safeguard the lives of innocent civilians by maintaining national security, and we have an obligation not to reduce fellow human beings to nonhuman status, even if we would describe what they have done as “inhuman.” Consider the [End Page 453] issue of enhanced interrogation policy. What policy appropriately balances these potentially conflicting values?

In answering this question, it is useful to be concrete. What techniques should be used to interrogate suspected terrorists? Suppose we turn to the techniques set out in Army Field Manual 34–52, the 1992 army document that spells out guidelines for “intelligence interrogation,” and compare these to the ten enhanced interrogation techniques that were...

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