Counterterrorism and Investigative Detention: International and Comparative Legal Evolution
“The use of physical detention as a tool to help enforce laws and social norms is as old as civilization.” So opens Dan E. Stigall’s Counterterrorism and Investigative Detention: International and Comparative Legal Evolution (Elgar 2021). Stigall focuses on one particular form of physical detention—that of investigative detention. While the term is subject to multiple meanings, Stigall defines it as the pre-charge detention of a suspect for the purpose of obtaining evidence for use at a subsequent criminal prosecution. Stigall thus distinguishes investigative detention from the various forms of detention without trial, which are typically classified as preventive detention. Stigall covers three countries: the United States, United Kingdom, and France. The book, however, does more than compare these countries’ respective legal frameworks for investigative detention. It also offers valuable insights into how law in this area is formed and, more broadly, how liberal democracies can converge and yet still differ in their respective approaches to making tradeoffs between liberty and security in addressing terrorism and other threats.
The book grew out of Stigall’s previous work for the U.S. Army JAG Corp, where he arrived as a “young national security professional” eager to bring the United States back from “the dangerous precipice” the George W. Bush administration had brought it by embracing torture, military tribunals, and other measures that “departed wildly from the legal traditions and core tents familiar to any jurist raised and educated in a Western democracy.” If, more aggressive detention powers were needed, Stigall maintains, those powers should “be implemented in a way that respect[s] human rights and . . . comport[s] with international law.” Stigall thus sought to examine how other democracies confront similar challenges. If, on occasion, Stigall can glide a little too quickly over past abuses, including the full scope of the U.S. post-9/11 torture program, he delivers on this central goal. The book provides a granular account of investigative detention across three regimes while drawing important insights into how—and why—the law around detention evolves over time.
Stigall’s discussion of the United States conveys an inescapable—and important—conclusion: that the U.S. government has gradually increased its ability to engage in investigative detention without adopting any comprehensive statutory framework. Under the Fourth Amendment, for example, police must have probable cause to believe a suspect committed an offense to arrest and interrogate them and thus are seemingly prohibited from detaining solely for purposes of interrogation. But this line has been blurred in myriad ways, especially in the national security context. For example, courts have tended to allow law enforcement to avoid the strict limits on post-arrest interrogation and to countenance delays in presentment, such as during the interrogation of terrorism suspects seized outside the United States (whom officials have questioned for extended periods aboard U.S. ships before bringing them to court for prosecution). Courts have also created a “public safety” exception to Miranda, which ordinarily requires the exclusion of incriminating statements by a person in custody unless they have been informed by law enforcement of their right to remain silent and waived that right. Under the “public safety” exception, such statements may still be admitted absent the issuance of Miranda warnings or a waiver when a law enforcement officer questions a suspect in custody in response to an imminent threat of danger to the officer or the public. In 2010, the Justice Department issued a memorandum expanding the scope of the public safety exception, explaining that cases involving terrorism could present “exceptional situations in which continued unwarned interrogation is necessary to collect valuable and timely intelligence.” Courts, in turn, have upheld the admissibility of statements obtained pursuant to this expanded interpretation of the public safety exception, including in the case of the so-called Christmas Day bomber who attempted to detonate plastic explosives hidden in his underwear aboard an international flight. As Stigall explains, such modifications of constitutional protections demonstrate an “odd duality” in U.S. law: “a continued facial adherence” to the rule against investigative detention “in judicial rhetoric; but a vast expanse of legal territory where the normative force of the rule fades.” (I would argue that this gap between judicial rhetoric and rule application can be found in other areas, especially in the national security context, where, for example, judges commonly extol principles like transparency and accountability and then deny claims seeking to enforce those principles in the cases before them). The U.S. approach, moreover, remains vulnerable to abuse, as illustrated by the federal government’s post-9/11 exploitation of the material witness statute—intended for the limited purpose of securing testimony from witnesses for an upcoming criminal proceeding—to engage in widespread investigative detention without any evidence of a crime.
Stigall next turns to the U.K., whose evolving approach to investigative detention offers important insights. British detention policy in Northern Ireland demonstrates the risks of creating a separate legal regime to address terrorist threats. The British military’s use of internment in Northern Ireland led to significant human rights violations, sparked international criticism, and exacerbated civil unrest. Measures intended to prop up this separate system through piecemeal reforms likewise proved problematic, including the “Diplock Courts,” which provided for criminal trials in regular courts but without a jury. (The courts were named after the Commission headed by Chairman Lord Kenneth Diplock). Ultimately, as Stigall observes, the U.K. abandoned the Diplock Courts, as the “notion of a separate court with different rules proved antagonistic to U.K. legal culture.” Since 2000, the U.K. has adopted comprehensive anti-terrorism legislation to address the growing threat of international terrorism. Unlike the U.S., the U.K. expressly allows police and prosecutors to detain and question suspects before charging them, including for up to fourteen days in terrorism cases. The government’s ability to engage in pre-charge detention is, however, constrained by procedural safeguards, including access to counsel and judicial review. These safeguards, in Stigall’s view, are not only a product of British legal culture but also of the European Convention on Human Rights which, with certain exceptions, was incorporated into British law in 1998. The European Court of Human Rights (which hears claims that a state has breached its obligations under the treaty) has recognized that the U.K. retains “a wide margin of appreciation” to derogate from those obligations in response to public emergencies, such as terrorism. But even so, Stigall argues, the treaty has still bolstered limitations on pre-charge detention. The U.K. thus provides an important contrast to the United States in the following two respects: first, it permits investigative detention but seeks to cabin it through procedural safeguards rather than, as in the U.S., refusing to sanction investigative detention while allowing exceptions that undercut the force of the categorical prohibition against it; and second, by recognizing limitations on its detention power based on international law and, in particular, the decisions of a regional human rights body.
France provides another valuable perspective. France’s civil law/inquisitorial system, by its nature, lacks the type of adversarial features associated with the Anglo-American system, and permits the detention of suspects while investigators—during both the police investigation (enquête) and judicial investigation (instruction) phases—seek to identify evidence of a criminal offense. France, moreover, has adopted more aggressive measures in response to the numerous terrorist attacks it has experienced over the past two decades, including by expanding both the definition of terrorism and the authority to engage in investigative detention. Yet, France has adopted legal and procedural safeguards traditionally found in adversarial systems, such as by strengthening the right to an attorney during the period of police custody (garde à vue). Thus, as Stigall notes, just as the U.K. has incorporated aspects of an inquisitorial system in its acceptance of investigative detention, the French investigative detention regime today “incorporates a stronger role for counsel, rights advisements, and an array of protections (such as judicial oversight) that should resonate with familiarity to U.K. and American lawyers.”
Two critical points implicit in Stigall’s comparative study warrant emphasis, lest they get lost in his detailed and nuanced analysis. First, history underscores the tremendous risk whenever a state seeks to deprive individuals of liberty without charge, however that detention is classified. And second, arbitrary detention, torture, and other grave rights violations inevitably result when a state creates a separate legal system to facilitate investigative detention based on the notion that terrorism warrants sweeping departures from established norms—whether it is the U.S. military commissions at Guantanamo, the U.K.’s use of internment in Northern Ireland, or France’s adoption of special military and security courts to adjudicate cases involving Algeria and terrorism. The impulse to err on the side of security at the expense of liberty is undeniable: terrorism produces horrific human suffering and damage, engenders palpable fear, and unleashes the rawest of emotions. But in describing the danger of overreaction, Stigall aptly quotes French philosopher Albert Camus’s warning about the “infernal dialectic that whatever kills one side, kills the other too, each blaming the other and justifying his violence by the opponent’s violence.” Overreaction by the state, in short, engenders more extremism and violence. Investigative detention always contains the potential for abuse and, if allowed, must be narrowly circumscribed, coupled with rigorous safeguards, and employed sparingly.
Jonathan Hafetz is a Professor of Law at Seton Hall Law School.