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Pretrial and Preventive Detention of Suspected Terrorists: Options and Constraints Under International Law

NCJ Number
Journal of Criminal Law and Criminology Volume: 98 Issue: 3 Dated: Spring 2008 Pages: 811-852
Douglass Cassel
Date Published
42 pages
This article analyzes the grounds, procedures, and conditions required by International Human Rights Law and International Humanitarian Law for pretrial detention of suspected terrorists for purposes of criminal law enforcement, as well as for their preventive detention for security and intelligence purposes.
Although recognizing the difficulties of securing sufficient admissible evidence in order to prosecute terrorists within the tight time limits imposed by international law, this article concludes that indefinite detention solely or primarily for intelligence interrogation is probably unlawful under U.S. or international law. Preventive detention for security purposes, on the other hand, is generally permitted by international law, so long as it is based on grounds and procedures previously established by law. The preventive detention must not be arbitrary, discriminatory, or disproportionate; must be publicly registered and subject to fair and effective judicial review; must not involve mistreatment of the detainee; and should provide compensation for any unlawful detention. Even with these safeguards, however, Europe does not generally permit preventive detention for security purposes unless a state formally declares a national emergency accompanied by its intention to disregard the right to liberty under the European Convention on Human Rights. This article advises that if preventive detention of suspected terrorists for security purposes is to be allowed, its inherent danger to the right to liberty absent due process justice procedures must be recognized, such that its use is kept to a minimum. The European model should prevail in setting policy, so that preventive detention is permitted only under a formal declaration of national emergency that requires preventive detention, and then only for a period of time determined by judicial review of the associated threat to national security. 236 notes