my country being attacked from my room within the complex central to the U.S. Army's legal community, I contemplated the relationship between law and terrorism. What legal tools could have prevented this tragedy? What laws could have been used to stop this? What laws could be put in place to avert such attacks in the future? What happens next? I was obviously not the only one pondering such issues. Officials at the highest echelons of government would soon take action—much of which is discussed in the pages that follow. Ever since, the legal world has been busily discussing the relationship between law and terrorism. It is my hope that this book contributes—however modestly—to this important discussion.
This book focuses narrowly on the concept of investigative detention of terrorism suspects and outlines the investigative detention powers of the United States, the United Kingdom, and France. This is important in order to attain an understanding of the powers available to law enforcement in those countries (for joint international operations that involve domestic law enforcement entities), as well as to see if any of the laws in force in those European jurisdictions could possibly find applicability—or at least provide inspiration—here at home. Throughout its analysis, the book maintains two assumptions: (1) that we need to aggressively ferret out, detain, and interrogate terrorists in order to prevent another catastrophic attack; and (2) that we must do so in a way consistent with our Constitution and international human rights law. While I recognize some inherent tension between those two ideas, my hope is that the book demonstrates that they are not mutually exclusive.
Likewise, the book demonstrates that the investigative detention regimes in the United Kingdom and France are far more potent than anything in the United States—but it also reveals areas of “plasticity” in U.S. law that would allow for a more robust investigative detention regime. I, therefore, conclude by offering a series of legislative proposals that would make the most of those areas of malleability and foster greater domestic counterterrorism capabilities without abandoning our constitutional values or violating international law.