Latest Publication: ‘Prevention, Detention and Extraordinariness’

I am very pleased that my latest piece, ‘Prevention, Detention and Extraordinariness’, has now been published in an excellent collection co-edited by Oren Gross and Fionnuala ní Aoláin entitled Guantánamo and beyond : exceptional courts and military commissions in comparative perspective (2013, CUP). The introduction to my chapter (with footnotes removed) is beneath the fold.

The report of the 9/11 Commission states that “[c]ountering terrorism has become, beyond any doubt, the top national security priority for the United States.” This is reflected in the high priority given to counterterrorism in the National Security Strategies that followed 2001 and, indeed, in the way in which the United States responded more directly to the devastating attacks of 9/11. In policy, word, and deed prevention became a dominant concern, particularly in states’ approaches to noncitizen (or foreign) suspected terrorists. This both reflects and constitutes an intensification of contemporary preventative approaches to risk management and security. The prominence of prevention as a concern is important because a strategy and approach that is focused on preventing future attacks is of a different hue to one that is committed to prosecuting past ones. Rather than evidence gathering states are intelligence gathering; rather than prosecuting, prejudging; rather than innocent before proven guilty, suspects are dangerous until proven otherwise. In this kind of system prosecution is not front and center; it is ancillary and perhaps even extraneous. It is also almost invariably extraordinary.

The detention of suspected terrorists has been core to the United States’ preventative counterterrorism strategy over the past decade. Whereas the United Kingdom has tended to prioritize deportation as a means of dealing with noncitizen suspected terrorists – with detention being a second-place option for situations where an individual suspected of terrorist activity cannot be deported for legal reasons (especially because it would breach Article 3 of the European Convention on Human Rights) – during the Bush Administration the United States focused on disabling suspected terrorists by depriving them of liberty. Whereas the Obama administration has greatly expanded the targeted killing program and focused less attention on detention, hundreds of suspected terrorists remain in preventative detention, held around the world. Although detention has been a less dominant element of the United Kingdom’s approach, detention and quasi-detention measures continue to be used in the jurisdiction against suspected terrorists to a significant degree. In both cases, detention is not necessarily intended to act as an antecedent to prosecution; rather, it is intended to prevent further terrorist activity either by removing that individual from the capacity to engage directly in terrorism or by enhancing the state’s capacity to acquire intelligence from the detainee to prevent terroristic activity by others. Detainees might well be prosecuted at some point, but that is not universally the case.

In this chapter, I undertake a comparative exploration of the relationships between prevention, detention, and prosecution in the United States and United Kingdom since 9/11. I argue that the prominence of prevention as a counterterrorist paradigm from which a concentration on detention might be said to have flowed made it almost inevitable that any prosecutions that followed would be extraordinary in some way. However, even in cases where detention is not strictly administrative (as it is in Guantánamo Bay, for example) but rather grounded on some kind of order, the matter of extraordinariness in procedures is germane. This is because, as I argue, the detention order is itself a quasi-conviction; it is, in Lucia Zedner’s terms, “pre-punishment,” and it is created through processes that are extraordinary when compared with conventional criminal procedures and convictions. In these first two sections, the chapter argues that so-called preventative detention of suspected terrorists either creates conditions where extraordinary courts and prosecutions are almost inevitable or itself constitutes a type of extraordinary quasi-criminal procedure, depending on the circumstances. There is, however, a further – and somewhat more positive – relationship between detention and prosecution that is explored in the third part of the chapter; namely, the use of proceedings by which detention has been challenged (such as habeas corpus proceedings) to “due processize” extraordinary counterterrorist proceedings in a way that asserts the continuing significance for democratic states of a constitutionalist commitment to limited power and individual rights, even in a situation of exigency.

The report of the 9/11 Commission states that “[c]ountering terrorism has become, beyond any doubt, the top national security priority for the United States.” [CE1]  This is reflected in the high priority given to counterterrorism in the National Security Strategies that followed 2001 and, indeed, in the way in which the United States responded more directly to the devastating attacks of 9/11. In policy, word, and deed prevention became a dominant concern, particularly in states’ approaches to noncitizen (or foreign) suspected terrorists. This both reflects and constitutes an intensification of contemporary preventative approaches to risk management and security. The prominence of prevention as a concern is important because a strategy and approach that is focused on preventing future attacks is of a different hue to one that is committed to prosecuting past ones. Rather than evidence gathering states are intelligence gathering; rather than prosecuting, prejudging; rather than innocent before proven guilty, suspects are dangerous until proven otherwise. In this kind of system prosecution is not front and center; it is ancillary and perhaps even extraneous. It is also almost invariably extraordinary.

The detention of suspected terrorists has been core to the United States’ preventative counterterrorism strategy over the past decade. Whereas the United Kingdom has tended to prioritize deportation as a means of dealing with noncitizen suspected terrorists – with detention being a second-place option for situations where an individual suspected of terrorist activity cannot be deported for legal reasons (especially because it would breach Article 3 of the European Convention on Human Rights) – during the Bush Administration the United States focused on disabling suspected terrorists by depriving them of liberty. Whereas the Obama administration has greatly expanded the targeted killing program and focused less attention on detention, hundreds of suspected terrorists remain in preventative detention, held around the world. Although detention has been a less dominant element of the United Kingdom’s approach, detention and quasi-detention measures continue to be used in the jurisdiction against suspected terrorists to a significant degree. In both cases, detention is not necessarily intended to act as an antecedent to prosecution; rather, it is intended to prevent further terrorist activity either by removing that individual from the capacity to engage directly in terrorism or by enhancing the state’s capacity to acquire intelligence from the detainee to prevent terroristic activity by others. Detainees might well be prosecuted at some point, but that is not universally the case.

In this chapter, I undertake a comparative exploration of the relationships between prevention, detention, and prosecution in the United States and United Kingdom since 9/11. I argue that the prominence of prevention as a counterterrorist paradigm from which a concentration on detention might be said to have flowed made it almost inevitable that any prosecutions that followed would be extraordinary in some way. However, even in cases where detention is not strictly administrative (as it is in Guantánamo Bay, for example) but rather grounded on some kind of order, the matter of extraordinariness in procedures is germane. This is because, as I argue, the detention order is itself a quasi-conviction; it is, in Lucia Zedner’s terms, “pre-punishment,” and it is created through processes that are extraordinary when compared with conventional criminal procedures and convictions. In these first two sections, the chapter argues that so-called preventative detention of suspected terrorists either creates conditions where extraordinary courts and prosecutions are almost inevitable or itself constitutes a type of extraordinary quasi-criminal procedure, depending on the circumstances. There is, however, a further – and somewhat more positive – relationship between detention and prosecution that is explored in the third part of the chapter; namely, the use of proceedings by which detention has been challenged (such as habeas corpus proceedings) to “due processize” extraordinary counterterrorist proceedings in a way that asserts the continuing significance for democratic states of a constitutionalist commitment to limited power and individual rights, even in a situation of exigency.

Advertisements

Published by

fdelondras

Professor of Global Legal Studies, Birmingham. Lawyer, foodie, wonk, avid traveller.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s