This article assesses shifting presumptions by three democracies -- the United States, Canada, and the United Kingdom – all of whom appear to have permanently adopted some alterations to their detention practices for certain terrorism-related cases since the attacks of September 11, 2001 (hereinafter “9/11”). A review of executive, legislative and judicial outcomes in these three countries often reveals an ongoing tension between the judiciary and the other branches of government, with the judiciary frequently citing to traditional constitutional principles to reassert the primacy of individual liberties and fair trial guarantees. In spite of such rulings, however, the advance towards some system of preventive detention and abridged judicial process for terrorism suspects continues, in various forms, in each of these countries. It appears that this ongoing tension between some national high courts and political branches of government may be based, in part, on the judicial role of safeguarding constitutional protections, while the other branches have increasingly become reliant upon a form of discourse that may be at odds with those principles, and much of which was developed in a time of perceived emergency. The premises on which detention practices have been altered may not have been fully assessed in the years after 9/11 by those in policy-making positions. This ongoing tension and continuing uncertainty as to the status of certain constitutional protections may have larger implications for the viability of long-standing constitutional norms, as well as for larger criminal-justice standards, and those implications must be further examined before any such changes do, indeed, become permanent.
Maureen T. Duffy, “The Slow Creep of Complacency”: Ongoing Challenges for Democracies Seeking to Detain Terrorism Suspects, Pace Int’l L. Rev. Online Companion, Apr. 2010, at 42.