| Chapter 1: | Introduction |
by Mukasey as a critical tool found in the counterterrorism legislation in numerous countries―investigative detention.14
The term “investigative detention” is subject to various meanings in legal literature. For instance, in the United States, it is sometimes used to refer to a brief stop of a suspect who falls short of a full arrest. In some cases, the phrase is conflated with preventive detention or detention without trial.15 Investigative detention, as the term is used in this book, however, specifically refers to the detention of a suspect for the purpose of obtaining evidence for use at a subsequent criminal prosecution. This necessarily implies
- (a) a certain lack of evidence at the outset of detention,
- (b) an investigation of some sort during the period of detention designed to obtain useable evidence, and
- (c) the eventual release of the suspect or subjection of the suspect to a criminal proceeding where his or her guilt or innocence can be determined.
The concept of investigative detention has been the subject of a certain degree of neglect in both scholarly and policy-making circles. As Cassel has noted, “[I]n many cases, the obstacles to prosecution may lead States to look for other, more practical ways to remove suspected terrorists from the streets.”16 The strictures of domestic criminal law can sometimes drive governments to seek extrajudicial means of dealing with terrorists, such as military detention and preventive detention.17 But to focus attention to such other means of detention to the neglect of investigative detention is to ignore an important aspect of effective counterterrorism. As one UN report has noted, “A forward-looking, preventive criminal justice strategy against terrorist violence requires a comprehensive system of substantive offences, investigative powers and techniques, evidentiary rules, and inter-State cooperation mechanisms.”18 Investigative detention has been expressly identified by some experts as an element of such a system.19 It is a means of empowering law enforcement to seize an individual and hold that person for the purposes of interrogation, obtaining evidence, and ensuring the integrity of an ongoing investigation.20
In spite of its importance, however, while a surfeit of literature has recently appeared that addresses military and preventive detention in