Comparative Law and Counterterrorism

As a guest blogger, I wanted to make sure I dropped a few more substantive posts to "earn my keep" and placate Professor Donlan. So I would like to next discuss another area in which comparative law has utility beyond that of the purely academic variety. A fantastic example of how comparative law is of practical significance to policymakers and practitioners is in the realm of national security. Of note, the questions revolving around the practice of investigative detention are the subject of my recently released book entitled Counterterrorism and the Comparative Law of Investigative Detention (Cambria 2009). (A partial sneak peek -- for the cheapest among you -- can be acquired at this link.)

The practice of investigative detention is, at least in theory, anathema to U.S. criminal law. U.S. jurisprudence indicates that the detention of a person for purely investigative purposes is antithetical our system of justice. Yet, even so, our legal system now struggles with issues relating to detention of terrorist suspects, etc. A comparative exploration of investigative detention, in that regard, reveals that investigative detention is a practice that is both acceptable under international human rights law (with some limitations) and is robustly used abroad -- particularly in the U.K. and France (which use investigative detention in both ordinary criminal matters as well as counterterrorism.) So how does this knowledge become useful?

As noted in a previous post, comparative law can serve as a solution-supplying mechanism for policymakers struggling with difficult contemporary questions. Taking that into account, a review of the legislative responses of the United States, the United Kingdom, and France (all liberal democracies with respected legal systems) demonstrates that the ability to detain terrorist and interrogate suspects has been central to each country’s counterterrorism effort. Policy-makers, therefore, may seek to explore the legal mechanisms in place across the Atlantic and consider if those tools could be somehow be replicated in the United States.

Such comparative exploration may indeed be of benefit if the desire is to find stronger detention mechanisms that comport with international standards. Looking at the power to initially stop suspects in Europe, for instance, one sees greater powers afforded police in counterterrorism cases. In the United Kingdom, a terrorist suspect can be stopped and searched by the police based upon mere suspicion that the person is a terrorist, in order to discover whether he or she has possession of anything that may constitute evidence that he or she is a terrorist. Should any evidence that was obtained in the course of that stop and search (or any evidence independent of that event) give rise to the mere suspicion that a person is a terrorist, the suspect may then be arrested. Likewise, across the Channel in France, the procedures for contrôle d’identité allow that a person may be stopped and his or her identity verified based solely upon suspicion of a potential breach of public order. Thus, one sees in the investigative detention regimes of both the United Kingdom and France a degree of permissiveness that makes detaining terrorist suspects easier.

Of course, each of these legal regimes affords certain rights to terrorist suspects – but those rights are diminished due to the nature of the threat posed by terrorism. For instance, during the interrogation process, U.K. legislation grants such suspects the right to a legal advisor, but this right can be suspended for up to forty-eight hours and, when it is allowed, it can be ordered that a detained suspect is only to receive legal advice in the sight and hearing of a police officer. In France, similarly, an individual in garde à vue―under normal circumstances―only has a right to consult with an attorney at the very beginning of the period of detention and then again, in cases of prolongation, after the twenty-fourth hour of detention. In cases of terrorism and narcotrafficking, however, the individual may not consult with an attorney until the seventy-second hour (after the second prolongation of detention). Further, criminal suspects in France do not have to be informed of their right to remain silent. In both the United Kingdom and France, therefore, terrorist suspects have diminished legal protections while in custody―granting investigators greater access to them and increasing the ability of investigators to conduct interrogations.

The United States, of course, has its own mechanisms of de facto investigative detention, such as the Material Witness Statute, which allows the government to detain a person in connection with a criminal proceeding if it can demonstrate that the person (1) has information which is material to a criminal matter and (2) is a risk of flight and courts have even upheld the use of this statute to hold potential witnesses for testimony before a grand jury. But in spite of the flexibility of that statute, there are significant limitations under U.S. law―limitations that apply even to detain Material Witnesses―that serve to diminish investigative detention capabilities. For instance, in the United States, the Fifth Amendment to the U.S. Constitution gives every suspect in custodial interrogation the right to remain silent, and, in order to ensure the free exercise of this right, if a person in custody is to be subjected to questioning, he or she must first be informed by the police (in clear and unequivocal language) that he or she has the right to remain silent. The cautionary warning must be accompanied by the explanation that anything said to investigators can and will be used against the suspect in court. Similarly, suspects in the United States have the right to consult with a lawyer and to have a lawyer present during interrogation. The moment a suspect requests a lawyer, the interrogation ends. Such rights are afforded to all criminal suspects―no matter the suspected crime. Even noncitizens (against whom U.S. law enforcement seeks to bring criminal action) are afforded such protections.

This robust set of rights and privileges marks an obvious departure from the United Kingdom, which allows adverse inferences to be drawn from one’s silence and allows suspension of one’s right to an attorney for up to forty-eight hours. In addition, the adherence to such a rights-based system differs significantly from the French system, which does not require a suspect to be advised of his or her right to remain silent and allows only intermittent consultation with an attorney.

All of this is not to say that English and French law should – or even could – be adopted wholesale in the U.S. Even if the obvious constitutional problems could be overcome, as with every country, the situation of the United States (like the needs and desires of the U.S. polity) is unique. But it is still worth noting that other liberal democracies with respected legal systems have managed to adjust their domestic legal systems so that they are able to confront the threat of terrorism without resorting to special courts or tribunals (though my book does briefly examine previously-used special courts in Europe which are now defunct – specifically France’s State Security Court and the U.K.’s use of Diplock Courts.) If those countries can find ways of appropriately adapting their domestic systems to confront this new threat – and in a way that is generally acceptable to the international community – then it is worth examining aspects of U.S. law that might be modified to operate similarly. Some such modifications, which are outside the scope of this post, are proposed in my conclusion.

This is but one example of how comparative law is of value in the realm of counterterrorism and national security. Other related fields, such as stability operations and counterinsurgency, will be discussed in later posts.


DES

Note: Any opinion expressed in this post is solely that of the author and not necessarily that of any agency of the United States government. Moreover, if you knew the position occupied by the author in said government, you would understand how ridiculous any assumption to the contrary would be.