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
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. …