Diane Marie Amann (University of California at Davis Law School) has posted Interrogation Paradigm, or A Prince Unclothed on SSRN. Here is the abstract:
This essay asks what gives the executive the right – that is, either a genuine legal justification or, at the least, an accepted basis of extralegal legitimacy – to detain presumed terrorists for the purposes of interrogation. In search of an answer it lays bare the fact and consequences of an executive policy aimed in large part at extracting information against a person’s will with little regard for harm that the policy might work upon the person or, for that matter, upon the state. The essay first establishes that to invade the essence of the individual in service of an asserted interest of state departs radically from the humanist principles that underlie modern law. The essay then demonstrates that the overt invasion of the human, as individual and as collectivity, also deviates from realist theories that underlie modern politics. By way of example, the essay looks to an early source of such theories, Niccolò Machiavelli’s The Prince. In so doing, the essay exposes the inability of the U.S. executive to find in either humanist or realist theories of statecraft any cloak of legitimacy for its interrogation paradigm.