Counterterrorism and the Comparative Law of Investigative Detenti ...

connection with terrorist suspects,²¹ the subject of investigative detention has remained largely in the shadows. While an absolute neglect of preventive or military detention would be imprudent (given their conceptual overlap) this book seeks to cast greater light on investigative detention within the domestic criminal process―illuminating its characteristics, capabilities, and limitations.

The Comparison

For its comparative analysis, this book looks to the European comparators identified by Mukasey (the United Kingdom and France) to see how those countries operate and what their law provides, and to ascertain the essential elements of their investigative detention regimes. These countries share a great deal in common with the United States in that both France and the United Kingdom are liberal democracies that have had experience with both domestic and international terrorism. The manner in which France and the United Kingdom have chosen to deal with terrorism and the detention of terrorist suspects, however, marks a point of distinction. Kenneth Roth has noted that “[a]mong liberal democracies, the United Kingdom and France are arguably the most aggressive in granting the state latitude in detaining terrorist suspects.”²² France, in particular, has been singled out as possessing an especially effective counterterrorism regime―based in large part on its potent investigative detention apparatus.²³

In spite of what common attributes the three countries share, the legal systems of each country present areas of contrast, posing challenges to comparativists seeking compatible tactics and exportable elements from each legal system. This also, however, presents a fantastic opportunity for useful exploration, as the juridical heterogeneity among these three divergent legal systems has given rise to different legal approaches to investigative detention―each designed to conform to the country's specific legal requirements. The comparative analysis, therefore, is not a mere academic exercise, but a quest for ideas that have succeeded abroad that could be effectively implemented at home. “Comparative law is an