Security detention, terrorism and the prevention imperative.

• Author: McLoughlin, John P.

[T]he Government's regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest. For example, in times of war or insurrection, when society's interest is at its peak, the Government may detain individuals whom the Government believes to be dangerous. Even outside the exigencies of war, we have found that sufficiently compelling governmental interests can justify detention of dangerous persons.

--United States v. Salerno,

481 U.S. 739, 748 (1987)

The events of September 11 transformed the mission of the Department of Justice.... Indeed, the protection of our national security and the prevention of terrorist acts are our number one goal. On every level, we are now committed to a new strategy of prevention.

--U.S. Department of Justice

Counterterrorism White Paper

INTRODUCTION

Since the events of September 11, 2001, the United States and many of its allies in the global campaign against terrorism have adopted a new dominant security imperative: prevention of terrorist attacks against their homelands and national interests. In succinct terms, the prevention imperative posits that the U.S. will engage all elements of national power (legal, economic, diplomatic, financial, military, intelligence, and information) to neutralize the threat posed by al Qaeda and other non-state actors. Detention of suspected terrorists has become a main facet of this prevention strategy, and several legal mechanisms have been employed in this regard in the U.S.

The primary purpose of this article is neither to assess the rectitude or efficacy of the current multi-prong approach to detention of suspect individuals, nor to assess the imperative placed on prevention as a strategy. Rather, this article will review the recent calls for a new system of preventive detention and the legal landscape of preventive detention in the U.S., and will survey several preventive detention systems used by the U.S.'s allies. The goal of the article is to outline the likely characteristics of, and fundamental questions associated with, any new security detention process the U.S. might consider adopting.

At the outset, this article is written with certain premises in mind. First, terrorism experts agree that the U.S. homeland likely will be the target of future attacks. Second, it is also likely that at some future point those attacks will be perpetrated by homegrown individuals, including U.S. citizens. (1) Third, the design of any system of preventive detention should be consistent with the U.S.'s obligations under both the U.S. Constitution and international law. Finally, it is better to discuss the controversial issue of preventive detention in a calm and deliberate manner rather than in the wake of another terrorist attack, when fear, anger, and calculations of political advantage may rule the day.

1. THE CURRENT APPROACH TO DETENTION OF TERRORIST SUSPECTS

   The United States currently uses a multi-prong approach to detain suspected terrorists. As former Attorney General Alberto Gonzalez acknowledged, to many outsiders the U.S. government's decision-making process about how to deal with a particular individual "is a black box that raises the specter of arbitrary action," despite what he described as "a thoughtful, deliberate and thorough analysis of the relevant facts and law at many levels of the Executive branch." (2)

   One of the legal mechanisms that the U.S. has employed to detain suspects is traditional criminal law enforcement, which the U.S. has relied on to investigate and prosecute both terrorism-specific and other crimes. This reliance on criminal law enforcement procedures principally has involved the "material support" statutes found at 18 USC [section][section] 2339A and 2339B. More ordinary offenses such as conspiracy, document fraud, obstruction of justice, perjury, and the like also have played a critical role. (3) This criminal law enforcement element of the prevention strategy has been used with respect to both U.S. citizens and aliens, and persons apprehended both in the U.S. and in foreign nations. The U.S. has employed other tools from the law enforcement paradigm more aggressively to neutralize perceived terrorist threats. Perhaps the most notable example is the use of the power to detain persons that qualify as material witnesses for ongoing criminal investigations and prosecutions. (4) Moreover, the U.S. and other nations have undertaken numerous measures, both in domestic and international law, to enhance the criminal law enforcement powers available to combat terrorism.

   In addition to the criminal law enforcement paradigm, the U.S. has expanded and employed its framework of immigration laws as an alternate detention mechanism. As in the arena of criminal law enforcement, the years since 9/11 have witnessed enhanced government powers and increased enforcement operations with respect to foreign nationals. (5) Although immigration laws and processes generally do not apply to citizens, immigration laws do apply to foreign nationals who legally have entered and resided in the U.S. for extended periods, not just illegal immigrants or those foreign nationals who are stopped at the border.

   A third--and in some quarters more controversial--legal mechanism used to effectuate the prevention imperative is the law of armed conflict (LOAC). Framing the conflict with al Qaeda and its network of affiliates as a "global war on terror" and relying on the 2001 Authorization for the Use of Military Force (AUMF) adopted by Congress, (6) the U.S. has cited the long-established customary and conventional power of nations to detain enemy combatants as the legal basis for holding many suspected terrorist operatives in military custody. This power, which permits a nation to hold enemy combatants for the duration of a conflict to prevent them from returning to the battle, also has been asserted by the U.S. government to detain both U.S. citizens and foreign nationals, and with respect to both persons detained in the U.S. and persons detained in foreign nations.

   Despite the availability and use of these multiple legal mechanisms, a growing number of prominent U.S. legal scholars and practitioners have suggested that the U.S. should enact a new system of security detention (also termed "preventive detention" or "administrative detention"). These scholars and practitioners suggest that the challenges facing the government under the current multi-prong approach, and the questions of fundamental fairness to some detainees under that approach, necessitate such a new system. Moreover, these commentators have expressed concern that the current strategy is accomplished only by distorting these legal paradigms in ways that will ultimately spill over into government efforts to combat threats other than terrorism.

   1. The Challenges of the Current Approach

      1. Shortcomings of old and new paradigms to combat terror threats

         Before 9/11, the United States and many other nations viewed terrorism primarily as an issue of criminal law enforcement. Efforts to combat terrorism too often focused on post hoc criminal investigations that were designed to develop criminal cases for prosecution. Generally, post hoc criminal investigations often involve interdicting terrorist activity close to the point of attack, or, too frequently, after an attack has occurred, when evidence of offensive conduct and intent naturally is more unequivocal. This strategy largely permits shielding sensitive intelligence information-including evidence from intelligence investigations--from disclosure during judicial proceedings.

         This approach might be understandable in response to a brand of terrorism that: (1) involves sporadic attacks; (2) limits civilian casualties (through advance warnings and the like) to insulate political agendas (e.g. the Marxist and nationalist terror groups of the 1970s); (3) primarily targets property interests (for example, modern eco-terrorists); (4) is secularly inspired; and (5) is almost exclusively domestic. However, this historical brand of terrorism has been joined, and to some extent eclipsed, by a fundamentally different terrorist threat, namely one perpetrated by religiously inspired radical extremist groups such as al Qaeda and its associated organizations around the world. These modern terrorist groups employ a wide web of support for recruitment, procurement, logistics, and operational planning. They present a global terrorist threat interested in carrying out repetitive attacks involving indiscriminate mass casualties and severe damage to economic and social infrastructure (including critical systems such as energy, communications, and food and water supplies). These groups have a genuine interest in the use of chemical, biological, radiological, and nuclear weapons, and a willingness, if not a desire, to die (through suicide or otherwise) to achieve their mission.

         Just as the nature of the modern terrorist threat has evolved, so have the challenges of investigating and prosecuting that threat. Terrorist investigations are increasingly multi-jurisdictional. Differences in capabilities, timeframes of action, judicial systems (accusatorial versus inquisitorial, common law versus civil law, and the like), willingness to cooperate, availability of resources, and enforcement authority create serious investigative obstacles. These obstacles make it far more difficult for government agencies to obtain relevant, useful evidence while simultaneously increasing the time and cost of trying to do so. In addition, the global nature of modern terrorism means that evidence may often be obtained under extraordinary circumstances or in extraordinary places. (7)

         The forensic requirements of modern terrorism investigations are also far more complex and time consuming than in the past, particularly given the possibility of WMD hazards. The methodology of simultaneous attacks extends and complicates forensic...