This article explores the tension between the policy objectives of United States counterterrorism efforts (deterrence, incapacitation, and intelligence gathering) and the traditional legal frameworks used to justify them (the law of war and the criminal justice model). All three branches of government, the author urges, have worked at cross-purposes in developing a counterterrorism policy that sacrifices legality and principle. A better approach would be to adopt a hybrid, flexible framework that recognizes that terrorism is a serious threat requiring the use of the law of war in some cases but protects against government overreach by relying on the best instincts of the criminal justice model and its promotion of our core values of freedom and liberty.
By Miriam R. Estrin
Miriam R. Estrin is a Postdoctoral Associate at Yale Law School.View all of Miriam R. Estrin's posts.
By James B. Steinberg
James B. Steinberg is Dean of the Maxwell School of Citizenship and Public Affairs at Syracuse University, and University Professor of Social Science, International Affairs, and Law. Prior to becoming Dean, he was US Deputy Secretary of State, serving as the principal deputy to US Secretary of State Hillary R. Clinton. From 2005 to 2008, Steinberg was Dean of the Lyndon B. Johnson School of Public Affairs. Previously, he was Vice President and Director of Foreign Policy Studies at the Brookings Institution, where he supervised a wide-ranging research program on US foreign policy. Steinberg was US Deputy National Security Advisor to President Bill Clinton from 1996 to 2000. During that period, he served as the president's personal representative to the 1998 and 1999 G-8 Summits.View all of James B. Steinberg's posts.