Symposium Issue on National Security Law
Transnational Law & Contemporary Problems has just released a symposium issue on “National Security: Detention, War Powers, and Anti-Proliferation” edited by my friend at Iowa, Tung Yin. The issue includes articles by our blogging colleagues Diane Amann, Steven Vladeck, and Tung himself, all of which are worth checking out. I also want to call attention to the article contributed by my colleague at Auckland, John Ip, entitled “Comparative Perspectives on the Detention of Terrorism Suspects.” Here is the introduction:
The “Global War on Terror” that began after September 11, 2001, has triggered a re-examination of the appropriate balance between security and individual rights in multiple contexts. Is speech that glorifies terrorism still within the realm of protected speech? Is racial profiling justified in the context of airport security? Is the use of torture ever justified? In each case, our commitment to certain values — freedom of expression, non-discrimination, and respect for human dignity — is tested. The subject of this Article is the detention of suspected terrorists, a context in which the cherished right to liberty comes into conflict with the need for security.
The United States is currently detaining several hundred alleged terrorists, many at Guantánamo Bay Naval Base in Cuba. However, the United States is not the only nation detaining terrorist suspects. Other Western countries, including the United Kingdom, Canada, and New Zealand, have all detained suspected terrorists. In Part II, this Article outlines the detention regimes of these Anglo-common law countries as they have operated over the past five years, as well as the relevant court decisions that have affected them. In Part III, this Article discusses the differences between American and non-American detention regimes. In short, the American detention model differs from that adopted in other jurisdictions in that the U.S. model is executive-dominated and purports to exclude all human rights norms.
At the same time, certain commonalities emerge. Each jurisdiction distinguishes between citizen and non-citizen terrorist suspects. Each jurisdiction also has had to determine the level of procedural safeguards to which terrorist suspects are entitled. Finally, the courts in each jurisdiction have generally been surprisingly willing to intervene in an area where they historically have not. These common themes are discussed in Part IV.
The introduction doesn’t do the article justice. It’s an ambitious and impressive piece of comparative scholarship — 675 footnotes! — and will be an invaluable resource for anyone writing on terrorism issues. You can find it on Westlaw at 16 Transnat’l L. and Contemp. Probs 773.