Counterterrorism and the Comparative Law of Investigative Detenti ...

international fronts. Governments must act to counter foreign terrorist threats while simultaneously seeking to address domestic terrorist activities occurring within their borders, among their own populations, and perhaps by their own citizens. Thus, while the vast machinery of the military is unleashed to do battle abroad, governments must also formulate strategies for addressing the problem of terrorists at home through domestic counterterrorism legislation. As demonstrated throughout this book, a central feature of such counterterrorism legislation has been a regime of law allowing for investigative detention.

Investigative Detention

In his excellent article on the subject, Professor Doug Cassel has noted that there are two purposes underlying the post-9/11 detention of terrorist suspects: criminal law enforcement –and/or preventive detention.¹⁰ The two types of detention are conceptually distinct in that the former (detention for criminal law enforcement purposes) envisions an eventual criminal prosecution while the ultimate aim of the latter (preventive or “security detention”) is―in its purest form―the mere prevention of action through detention of the individual.¹¹ As one commentator has noted in distinguishing the two concepts, “Pure preventive detention is defined…as a deprivation of liberty that is based on a prediction of harmful conduct and that is not time-limited by culpability or other considerations (such as a pending trial).”¹² As will become apparent throughout the discussion in this book, there is a significant degree of interplay and synergy between these two concepts, owing to the fact that each entails essentially the same action (locking up a suspect) but for ostensibly different purposes. On that note, even the differences between these purposes can become blurred when mechanisms for preventive detention are used for investigative purposes and vice versa. Nonetheless, the distinction between the two concepts remains and their treatment in both domestic and international law has been notably different.¹³ The focus of this book is primarily on the detention of terrorist suspects for criminal law enforcement purposes―specifically the type of detention identified