Introduction to Counterterrorism and Investigative Detention

2011

Interdisciplinary Journal of Human Rights Law, 2013

principles. To exact sovereign power beyond the social contract requires the development of an elaborate system of control where judicial oversight is perfunctory and meaningless. Today, governments appropriate the politico-legal narrative of emergency to construct new categories of enemies whose freedom may be seized, and placed beyond normal rule of law or due process protections. The use of executive detention is a habit developed by states preoccupied by national security concerns and largely disconnected to rule of law principles. However, history is replete with examples of societies cruelly limiting the freedoms of those designated as "social pariahs." From antiquity to modern times, the outcast or pariah could be exiled from the political community, triggering a fate akin to social death. The author contends that the politico-legal powers underlying executive detention are similar to that of exile, and the associated mechanisms in both are the same, i.e. the ability to legitimately name an individual or a group as "undesirable," to force the person(s) so named beyond rule of law protections and in so doing, severing the individual or group's connection to oikos (home). Home or dwelling is a place of preserving; arbitrary encroachment into the private sphere through emergency diktats eradicates the significance of this space which human beings need for sustenance and to rest at peace.

2016

The purpose of this Article is to propose a framework for preventive detention and to call for strict limits on its use. The Article examines preventive detention mainly from the perspective of the presumption of innocence. It claims that the presumption of innocence has an important bearing on preventive detention and should set heavy limits on its use, including: solid evidence, due process, periodic review, requirement of proportionality, compensation, pleasant conditions of confinement, and a strict duty to explore all other alternatives for preventing harm before imposing detention. These limits are designed to make the use of preventive detention very difficult under normal circumstances. * Senior law lecturer, The Academic Center of Law and Business, Israel. I would like to thank Boaz Sangero, Neil Zwail, Yoav Hammer, and the editorial staff of the McGeorge Law Review for their helpful comments.

Jotwell: The Journal of Things We Like, 2015

In this Article, I argue for a unified theory of detention that explains how the wide range of defensible modes of detention, including the detention of prisoners of war and of some suspected terrorists, can be justified within a liberal tradition that respects the liberty of autonomous individuals. The overarching principle for what I call the Autonomy Respecting Model of Detention is this: Those who can be adequately policed and held accountable for their choices as normal autonomous agents and who can control whether their interactions with others will be impermissibly harmful can be subjected to long-term detention only if they have committed a crime for which long-term punitive detention or loss of the right not to be subjected to long-term preventive detention is a fitting punishment. The Autonomy Respecting Model justifies the long-term preventive detention of prisoners of war on the ground that were such prisoners to escape or be released, they would not be policed in a way that would hold them accountable for their use of force in the future. The model justifies the long-term preventive detention of suspected terrorists only in those cases in which they too would be effectively unaccountable for their future actions. Importantly, the autonomy respecting model does not allow the long-term preventive detention of suspected terrorists simply

It is a core principle of liberal societies that an individual may not be deprived of his liberty unless the reasons for doing so respect his status as an autonomous person. This principle puts stringent limits on the use of preventive detention. I argue here that one use of preventive detention that is consistent with those limits is the long-term preventive detention (LTPD) of people who have been convicted either of a very serious crime or a string of serious crimes. These people can justifiably be subjected to LTPD because a justifiable part of their punishment is loss, for some period of time, of the normal immunity to LTPD. If this period of time extends beyond whatever period of time in which they have lost their liberty as a matter of punitive detention, then they may be subject to LTPD for the remainder of that period. What makes stripping certain criminals of their immunity to LTPD for a period of time morally acceptable is that such a punishment fits their crimes. If they...

The Journal of Criminal Law and Criminology (1973-), 1996

Of course, the moral education theory says nothing about whether the execution of criminals might be justified not as punishment but as a method of "legitimate elimination" of criminals who are judged to have lost all of their essential humanity, making them wild beasts of prey on a community that must, to survive, destroy them. Whether such ajustification of criminal execution can be morally tolerable is something I do not want to explore here.'

Illegal Detention, 2023

The right to be free from illegal detention is an important aspect of the personal liberty of an individual and therefore, every democratic country has guaranteed the principle of the right to freedom from illegal detention in its constitutions. This study aims to examine the consequences of illegal detention in Nigeria and the world at large. To achieve this objective, a doctrinal research approach was employed and both primary and secondary data sources were used such as The 1999 Constitution and the Police Act 2020. Nevertheless, the violation of this right by the law enforcement agencies is a common phenomenon in Nigeria and other countries of the world. The study reveals that Police have arbitrarily arrested and detained individuals without sufficient legal grounds and contrary to procedures established by the Constitution and other National and International legislations. These illegalities include failure to inform rights and reasons of arrest and detention; lengthy pretrial detention; lack of legal representation in pretrial phase. The failure extends to existence of significant barriers to challenging the lawfulness of their detention in courts and absence of compensation when their rights have been abused. Finally, the study provided possible recommendations to eradicate illegal detentions. Keywords: Detention, Illegal, unlawful