What promotes legality on the part of government under strain? This Article looks to the role of intra-executive processes in facilitating well-reasoned, legitimate conclusions on questions like the one addressed in this symposium: What are the legal authorities and limits governing coercive interrogation tactics? Admittedly, even the best legal processes are no guarantee of good substantive outcomes. Many critics would disagree with the substance of the executive's August 1, 2002, legal position on coercive interrogation no matter how it was derived. And even were all the best processes faithfully adhered to in developing the government's legal position on torture, it is conceivable that the executive would have come to the same bottom line. The value we place on fair process in the judicial system, however, is emblematic of how, more generally, effective processes remain important to both the content of legal outcomes and the public's willingness to accept them. As Justice Felix Frankfurter wrote, "[t]he history of liberty has largely been the history of the observance of procedural safeguards."
81 Ind. L.J. 1297-1312 (2006)
Scholarly Commons Citation
Pillard, Cornelia T., "Unitariness and Myopia: The Executive Branch, Legal Process and Torture" (2006). Georgetown Law Faculty Publications and Other Works. 187.