A Paradigm of Prevention Humpty Dumpty, the War on Terror, and the Power of Preventive Detention in the United States, Israel, and Europe
- A decade into the proclaimed "global war on terror," states are still struggling with the phenomenon's locus and definition under the effective laws. Remarkably, preventive detention of suspected terrorists fluctuates between various legal regimes: In Europe, criminal law is predominantly used but special security orders are occasionally issued as well; Israel applies in part the law of international armed conflicts; and in the United States, detention under a new war premise has been claimed.
This Article analyzes the response of the U.S. Supreme Court, the Israeli Supreme Court, and the European Court of Human Rights to legislative and executive policies asserting the power of preventive detention in the aftermath of September 11, 2001. The comparison exposes significant differences with regard to the application of international law, and most prominently concerning the underlying question of whether the struggle against terrorism should be considered a "war," or, perhaps more traditionally, a fight against crime.
Despite theA decade into the proclaimed "global war on terror," states are still struggling with the phenomenon's locus and definition under the effective laws. Remarkably, preventive detention of suspected terrorists fluctuates between various legal regimes: In Europe, criminal law is predominantly used but special security orders are occasionally issued as well; Israel applies in part the law of international armed conflicts; and in the United States, detention under a new war premise has been claimed.
This Article analyzes the response of the U.S. Supreme Court, the Israeli Supreme Court, and the European Court of Human Rights to legislative and executive policies asserting the power of preventive detention in the aftermath of September 11, 2001. The comparison exposes significant differences with regard to the application of international law, and most prominently concerning the underlying question of whether the struggle against terrorism should be considered a "war," or, perhaps more traditionally, a fight against crime.
Despite the substantial discrepancies in these three jurisdictions, this Article argues that the similarities are actually more striking. Whereas no court has accepted any attempt to fight terrorism outside the bounds of law, the judges have not hesitated to stretch and blur the pertinent frameworks by extensive interpretation. Ultimately, it is questionable whether on account of the individual's rights the resulting flexibilities and uncertainties are justifiable.
"I don't know what you mean by 'glory'," Alice said. Humpty Dumpty smiled contemptuously. "Of course you don't till I tell you. I meant 'there's a nice knock-down argument for you!" "But 'glory' doesn't mean 'a nice knock-down argument" Alice objected. "When I use a word," Humpty Dumptysaid, in rather a scornful tone, "it means just what I choose it to mean - neither more nor less." "The question is," said Alice, "whether you can make words mean different things." "The question is," said Humpty Dumpty, "which is to be master that's all."…
