Security Detention, Terrorism and the Prevention Imperative

McLoughlin, John P., Noone, Gregory P., Noone, Diana C., Case Western Reserve Journal of International Law

[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.

I. 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.

A. 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 examination and analysis, especially when the forensic sites are located in major metropolitan areas and infrastructure systems. Modern forensic investigations also require deployment of specialized teams, the number of which are limited and the functions of which are often sequential in nature, meaning that parallel efforts are difficult, if not impossible. (8)

As a result of the changed threat environment and these investigative challenges, suspected terrorist activities must be disrupted earlier in the planning and preparation cycle. Terrorism investigations now are more often viewed as intelligence cases, and prosecution of terrorist crimes is only one tool available to neutralize terrorist threats. However, the realities of intelligence pose serious problems. The key limit on intelligence is its incompleteness; rarely does intelligence tell the whole story, and terrorists take proactive steps to secure and obscure information. Intelligence is sporadic, fragmentary, often inferential at best, and difficult to interpret. It requires validation, prioritization, sifting, assessment and judgment. Intelligence is also fragile. It comes from human sources who risk their lives to obtain it, and from sensitive technologies that can be countered by skilled and informed opponents. Highly dependable intelligence information may have been provided by a foreign government on the condition that the information, or the government's cooperation, is not publicly disclosed. (9)

Statutes such as the Classified Information Procedures Act (CIPA) (10) provide limited relief for these concerns. To be sure, CIPA provides a valuable procedural mechanism for making determinations about the disclosure of national security information in criminal proceedings and to help "prevent[] unnecessary or inadvertent disclosures of classified information." (11) CIPA accomplishes this goal through: pre-trial conferences; notice requirements; judicial protective orders; ex parte and in camera submissions; court authorized deletions, summaries and stipulations; pre-trial evidentiary hearings; and interlocutory appeals. But CIPA "neither adds to nor detracts from the substantive rights of the defendant or the discoery [sic] obligations of the government." (12) Instead, it merely permits the government "to know in advance of a potential threat from a criminal prosecution to its national security ... and advis[es] the government of the national security 'cost' of going forward." (13) Indeed, where a court rejects protective measures proposed under CIPA, the government "ha[s] two options: (1) order the case to be dismissed; or (2) file an affidavit effectively prohibiting the use of the contested classified information. At that point, the court may impose sanctions against the government, which may include striking all or part of a witness's testimony, resolving an issue of fact against the United States, or dismissing part or all of the indictment." (14)

Perhaps the most important aspect of this new paradigm is the critical dilemma it poses to both governments and societies alike. Specifically, how does a government protect its citizens within the rule of law when intelligence that is considered reliable does not meet the high evidentiary thresholds developed by society in the context of ordinary criminal prosecutions, and still protect the sources and methods essential to acquiring that critical information? For example, authorities could correctly believe that a terrorist attack is being planned, but the authorities must release any individuals arrested in connection with the suspected threat because the plan is too embryonic and vague to obtain criminal charges and convictions, or because the intelligence underlying the authorities' belief is too sensitive to reveal the sources, methods, or technological capabilities that gave rise to the information. (15) Accordingly, it may be in the best interest of society to intervene in the absence of substantial admissible evidence in order to prevent or disrupt a terrorist plot, even if the effect is to compromise a related criminal investigation and jeopardize follow-up prosecutions.

Although the U.S. has prosecuted a number of terrorism cases in the ordinary criminal courts, many of the "successful" cases have involved highly unusual circumstances. (16) Others cases only have succeeded in obtaining convictions of significantly lesser charges, (17) failed altogether, (18) or involved novel (some would say troubling) applications of the law. Moreover, despite U.S. efforts to prosecute some terrorist suspects before military commissions as unlawful combatants under the law of armed conflict, as of November 2008, only two such commissions have been completed. A series of challenges (many of them successful) to the legal basis and structure of the commissions are largely responsible for the failure of these efforts. (19)

2. Scholarly criticism of the current approach

Concern for the difficulties facing investigators and prosecutors has led a growing number of commentators to conclude that the U.S. should consider adopting a new system of preventive detention, or perhaps some form of modified criminal process, for terrorism and other national security cases. Additionally, some commentators have suggested that the current seemingly ad hoe approach to detention of terrorism suspects poses more risk to civil liberty than the adoption of a formal system of preventive detention would pose.

For example, Professors Jack Goldsmith (former head of the Office of Legal Counsel at the U.S. Department of Justice) and Eric Posner have argued that the U.S. should abandon trials of terrorist suspects before military commissions in favor of preventive military detention subject to more rigorous standards and enhanced oversight. (20) Professor Goldsmith later concluded, together with Professor Neal Katyal (counsel for the detainees in the case of Hamdan v. Rumsfeld (21)), that Congress should explicitly establish and sanction "a comprehensive system of preventive detention ... that would ... supplement the criminal process ... [and] ... would have greater legitimacy than our current patchwork system." (22)

Similarly, prior to his current post as U.S. Attorney General, Michael Mukasey (a former Federal district court judge who handled several of the most prominent U.S. terrorism cases) wrote that Congress should deliberate "how to fix a strained and mismatched legal system, before another cataclysm calls forth from the people demands for hastier and harsher results." (23) Mukasey urged Congress to consider proposals to create national security courts or to develop measures akin to civil commitment to "incapacitate dangerous people" suspected of involvement in terrorism. (24) He reached this conclusion not simply as a result of the prosecutorial, financial and intelligence challenges faced by the government, but also because "if conventional legal rules are adapted to deal with a terrorist threat, whether by relaxed standards for conviction, searches, the admissibility of evidence or otherwise, those adaptations will infect and change the standards in ordinary cases with ordinary defendants in ordinary courts of law." (25)

Most recently, Professor John Farmer, a former Attorney General of the State of New Jersey and former senior counsel to the 9/11 Commission, reviewed the terrorism-related prosecutions of Jose Padilla and others since 9/11 for crimes such as material support and conspiracy, and determined that "[t]hey cry out for the creation of a form of preventive detention adapted to terrorism, and outside the criminal justice system." (26) Professor Farmer concluded that "the continued reliance on our criminal justice system as the main domestic weapon in the struggle against terrorism fails on two counts: it threatens not only to leave our nation unprotected but also to corrupt the foundations of the criminal law itself." (27) According to Farmer, "[i]n order to make the criminal justice system an effective weapon [against terrorism], we have already started extending the reach of criminal statutes to conduct that has never before been punishable as a crime," (28) and

 
   [t]he urgency involved in terrorism cases has also led courts to 
   accept conduct by the government that might well have been 
   disapproved in other contexts.... 
 
   .... 
 
   ... When terrorism cases are treated as ordinary criminal 
   prosecutions, the principles of law that they come to embody will 
   guide law-enforcement conduct and be cited by the government not 
   just in terrorism cases but in other criminal contexts. 
 
   Over time, we may well transform the law of conspiracy to the point 
   where an agreement alone is a crime. This would render thoughts 
   punishable, reward government overreaching and erode our civil 
   liberties. All because the criminal law is being used not primarily 
   to punish crimes but for purposes of detaining people we are 
   worried about. (29) 

3. Judicial responses to the current approach

Apprehension about stretching the bounds of established legal doctrines to fit difficult terrorism matters has surfaced in a number of recent cases both in the U.S. and abroad. The increasingly broad scope of the material support and conspiracy doctrines used in cases such as Padilla, which gave rise to Mr. Mukasey's and Mr. Farmer's commentaries, is just one example. Indeed, the federal court that handled the criminal prosecution of Jose Padilla ultimately imposed a significantly shorter term of imprisonment than that requested by U.S. prosecutors, at least in part because, in the court's view, the evidence did not link Padilla to any specific act of terrorism. (30)

A related concern centers on the growing tendency to criminalize conduct that is ever more remote from the actual commission of a terrorist attack or conduct that is not supported by sufficient proof of terrorist intent. Earlier this year a court of appeal in the United Kingdom reversed the convictions of five young Muslim students prosecuted for "possess[ing] an article in circumstances which give rise to a reasonable suspicion that [it was possessed] for a purpose connected with the commission, preparation or instigation of an act of terrorism," (31) contrary to Article 57 of the U.K.'s Terrorism Act …

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Publication information: Article title: Security Detention, Terrorism and the Prevention Imperative. Contributors: McLoughlin, John P. - Author, Noone, Gregory P. - Author, Noone, Diana C. - Author. Journal title: Case Western Reserve Journal of International Law. Volume: 40. Issue: 3 Publication date: Fall 2009. Page number: 463+. © 2009 Case Western Reserve University School of Law. COPYRIGHT 2009 Gale Group.

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