PREVENTATIVE IN PEACE, WAR, AND OF IN AND THE : A COMPARATIVE CONSTITUTIONAL ANALYSIS

Katherine J. Nesbitt

A thesis submitted in fulfilment of the requirements for the degree of Master of Laws

Faculty of Law University of NSW PLEASE TYPE THE UNIVERSITY OF NEW SOUTH Thesis/Dlssertatlon Sheet Surname or Family name: Nesbitt First name: Katherine Other name/s: Jackson Abbreviation for degree as given in the University calendar: LLM School: Faculty: Law Title: Preventative Detention in Peace, War, and the Age of and the United States: A Comparative Constitutional Analysis

Abstract 350 words maximum: (PLEASE TYPE)

Since the September 11 terrorist attacks, the United States and Australian governments have asserted that the threat o f terrorism requires the adoption o f preventative detention strategies to authorize the and detention o f terrorists before they carry out their horrific acts. In the United States, the Bush Administration has authorized the preventative, and potentially indefinite, detention o f terrorist suspects as “ enemy combatants” or as “ material witnesses.” In Australia, Parliament passed legislation to amend its criminal code to authorize the imposition o f preventative detention and control orders in cases o f terrorism. This thesis examines and compares these preventative detention strategies employed by the US and Australia in the “ war on terrorism,” and analyses their constitutionality in light o f the US Supreme Court and Australian High Court precedent addressing the legality o f in both times o f peace and times o f war. While the US Supreme Court, armed with the Bill o f Rights, has been more assertive in setting limits on the authority to detain individuals without charges, the analysis o f preventative detention in both countries has been confused and conflicting. As a result, the limits on preventative detention are difficult to discern under either US or Australian constitutional law. Nonetheless, in this thesis, I argue the preventative detention measures adopted in both jurisdictions in the war on terrorism are constitutionally invalid. While measures incorporate more procedural protections and safeguards from abuse than their US counterpart, and therefore are the more favoured approach, neither scheme is consistent with the fundamental principles and values underlying both the US and Australian systems o f criminal justice.

Declaration relating to disposition of project thesis/dissertation I hereby grant to the University of or its agents the right to archive and to make available my thesis or dissertation in whole or in part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968.1 retain all property rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. I also authorise University Microfilms to use the 350 word abstract of my thesis in Dissertation Abstracts International (this is applicable to doctoral theses oniy).

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I hereby declare that this submission is my own work and to the best of my knowledge it contains no materials previously published or written by another person, or substantial proportions of material which have been accepted for the award of any other degree or diploma at UNSW or any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project's design and conception or in style, presentation and linguistic expression is acknowledged.

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Date Table of Contents

A bstract...... iv

Acknowledgments...... v

Originality Statement...... vi

Introduction...... 1

Chapter One: Alternative Frameworks of Democracy: Key Distinctions between the United States and Australian Systems of Government...... 6

A. United States: Protected Through the Separation of Powers and the Bill of Rights...... 7 1. The Separation of Pow ers...... 7 2. The Bill of Rights...... 12

B. Australia: Protection of Liberty through Responsible Government...... 17 1. Responsible Government and the Absence of a Bill of Rights...... 18 2. The Separation of Pow ers...... 21

Chapter Two: Preventative Detention in Times of Peace...... 26

A. United States: Due Process Constraints on Preventative Detention...... 29

B. Australia: The Separation of Judicial Power As a Limit on Preventative Detention...... 47 1. Executive Detention and Usurpation of Judicial Power...... 48 2. Judicial Detention and the Kable Doctrine...... 64

C. Conclusions...... 71

Chapter Three: Preventative Detention in Times of War...... 74

A. United States: Detention of Combatants, Enemy Aliens, and the World W ar II Internment Detentions...... 75

B. Australia: Detention as an Exercise of the War Power...... 94

C. Conclusions...... 104

- 1 - Chapter Four: Preventative Detention in the Age of Terrorism ...... 106

A. United States: Preventative Detention of Enemy Combatants and Material Witnesses...... 109

1. Enemy Combatants...... 112

a. The AUMF and the November 13 Executive Order...... 112

b. The Supreme Court's Response to Preventative Detention Under the November 13 Order...... 116

Rasul v Bush...... 117

Hamdi v Rumsfeld...... 121

Padilla v. United States...... 129

Hamdan v United States...... 133

c. The Detention of Enemy Combatants Arrested in the United States...... 139

2. The Material Witness Statute...... 144

a. An Overview of the Material Witness Statute...... 145

b. Constitutional Validity of the Material Witness Statute...... 150

B. Australia: Preventative Detention and Control Orders...... 160

1. The Anti-Terrorism Act (No. 2) 2005...... 162

a. Division 105: Preventative Detention Orders...... 165

b. Division 104: Control Orders...... 172

2. Constitutionality of Preventative Detention and Control Orders...... 179

a. The Validity of the Executive Power to Issue Preventative Detention Orders Under Chapter III...... 180

(1) Preventative Detention Orders and Usurpation of Judicial Power... 181

(2) Preventative Detention Orders and the Incompatibility Doctrine.... 186

- ii - b. The Validity of Control Orders Under Chapter III.III...... 189 ...... 189

C.C . Conclusions Conclusions...... 193

ConclusionsConclusions...... 196 ...... 196

-iii-- iii - Abstract

Since the September 11 terrorist attacks, the United States and Australian governments have asserted that the threat of terrorism requires the adoption of preventative detention strategies to authorize the arrest and detention of terrorists before they carry out their horrific acts. In the United States, the Bush

Administration has authorized the preventative, and potentially indefinite, detention of terrorist suspects as "enemy combatants" or as "material witnesses." In

Australia, Parliament passed legislation to amend its criminal code to authorize the imposition of preventative detention and control orders in cases of terrorism.

This thesis examines and compares these preventative detention strategies employed by the US and Australia in the "war on terrorism," and analyses their constitutionality in light of the US Supreme Court and Australian High Court precedent addressing the legality of administrative detention in both times of peace and times of war. While the US Supreme Court, armed with the Bill of Rights, has been more assertive in setting limits on the authority to detain individuals without charges, the analysis of preventative detention in both countries has been confused and conflicting. As a result, the limits on preventative detention are difficult to discern under either US or Australian constitutional law.

Nonetheless, in this thesis, I argue the preventative detention measures adopted in both jurisdictions in the war on terrorism are constitutionally invalid.

While the Australian measures incorporate more procedural protections and safeguards from abuse than their US counterpart, and therefore are the more favoured approach, neither scheme is consistent with the fundamental principles and values underlying both the US and Australian systems of criminal justice.

- IV - Acknowledgments

I thank my supervisors, George Williams and Andrew Lynch, for their invaluable comments, guidance, and patience in advising me on this thesis. I feel very fortunate to have had the opportunity to work closely with such brilliant and inspiring legal scholars. I also thank the following people:

Ricardo Bascuas for his helpful comments and encouragement during the drafting of this thesis;

The postgraduate research students at UNSW. Special thanks to Nikki Bromberger, Dominique Dalla-Pozza, and Catherine Bond for their comments, support, and most of all for their sense of humour which made this project not only rewarding, but fun. I particularly want to thank Nikki for taking me to the finest dining establishments at and around UNSW.

My colleagues at the Gilbert & Tobin Public Law Centre who have proved that it is possible to put out top notch legal academic work and still find time for fish and chips and lawn bowling parties;

The Australian-American Fulbright Association for funding my research at UNSW and throwing some excellent parties;

My family and friends for their love and continual support in life and my adventures in Oz.

- v - Originality Statement

I hereby declare that this submission is my own work and to the best of my knowledge it contains no materials previously published or written by another person, or substantial proportions of material which have been accepted for the award of any other degree or diploma at UNSW or any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project's design and conception or in style, presentation and linguistic expression is acknowledged.

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Date_ \§ VlUJA\k£X Wb(o

W ord Count: 54,017

- v i - Introduction

The terrorist attacks of September 11, 2001, as well as the more recent

bombings in Bali, Madrid and London, prompted both the United States and

Australia, along with other , to develop new counter-terrorism strategies. In

the case of the United States, these strategies include the introduction of major

legislation in the USA as well as the ambitious expansion of executive

power. In Australia, there has been almost constant legislative activity to make up

for a complete lack of terrorism law before September 11. What is noteworthy about

the efforts of both countries is the shift away from a traditional focus on

investigation and prosecution of crimes to the prevention of future attacks. In the

days following September 11, US Attorney General John Ashcroft said in a written

statement to the Senate Committee on the Judiciary:

The new terrorist threat to America is on our soil, and that makes it a

turning point in history. It is a new challenge to law enforcement. Our

fight against terrorism is not merely or primarily a criminal justice

endeavor. It is defense of our and its citizens. We cannot wait for

terrorists to strike to begin investigations and make . The death

tolls are too high, the consequences are too great. We must prevent first, prosecute second?

Australian Attorney-General Phillip Ruddock has echoed these sentiments, stating:

"The law should operate as both a sword and a shield — the means by which offenders are punished but also the mechanism by which crime is prevented."1 2

To this end, both the Australian and the United States governments have adopted policies setting lower standards for law enforcement officers to arrest and detain citizens and non-citizens alike in the scope of a terrorism investigation. These

1 Homeland Defense: Hearing Before the S. Comm, on the Judiciary, 107th Cong 8 (2001) (statement of John Ashcroft, US Attorney Gen.) (emphasis added). 2 Phillip Ruddock, "Legal Framework and Assistance to Regions," Regional Ministerial Counter-Terrorism Conference, Bali, February 2004, s 49.

-1 - policies mark a dramatic departure from the traditional orthodoxy of criminal justice because they entail the extended detention of individuals without charge or a .

Such "preventative detentions" raise significant issues regarding the scope of each government's power to detain without charge individuals within its borders. In the Australian criminal justice system, those suspected of involvement with terrorism can not be held without charge for longer than 24 hours, while individuals held for other serious offences may be held without charge for a maximum of 12 hours.3 In the United States, individuals arrested for criminal violations must be brought before a magistrate as soon as possible, and never later than 48 hours after arrest.4 Yet under the preventative detention laws, civilians may be detained for extended periods of time absent an adjudication of guilt or even being charged with committing an offence.

Both the Australian and United States courts have recognised that their respective constitutions limit each government's authority to detain individuals without charge. In both jurisdictions, the courts have held that, as a general rule, individuals cannot be detained absent an adjudication of guilt through the judicial process. The United States Supreme Court has recognised these principles in the Bill of Rights, specifically the Due Process Clauses of the Fifth and Fourteenth

Amendments. In Australia, though the Commonwealth Constitution provides no similar express rights-based protections, the High Court has recognised limitations on the government's authority to detain under separation of powers principles.

Yet, the extent to which these constitutional constraints protect individuals from preventative detention under the government s new counter-terrorism policies is unclear. This thesis aims to explore the impact of each nation's constitutional

3 Pursuant to s 23CA of the Crimes Act 1914, suspects of terrorism may be held for 4 hours which may be extended for an additional 20 hours. Under s 23C, suspects of non­ terrorism offences may be held for 4 hours which may be extended pursuant to s 23D for an additional 8 hours in cases of serious offences. See also A Lynch and G Williams, What Price Security? (2006), 40. 4 Gerstein v Pugh, 420 US 103 (1975); County of Riverside v McLaughlin, 500 US 44 (1991).

-2- constraints on its government's most recent anti-terrorism policies. It first examines

the courts' jurisprudence addressing the constitutional history of preventative detention in the United States and Australia in times of peace and war. It then explores how that jurisprudence applies to the preventative detention laws implemented in the age of terrorism, an era which is neither peace nor war. By conducting a comparative constitutional analysis of preventative detention in the

United States and Australia, this thesis seeks to identify a common legal underpinning to the preventative detention, as well as an understanding of the different constitutional approaches in both countries. Comparing these issues in the

United States and Australia is particularly interesting given the strong civil rights protections in the United States Constitution compared to the relatively weak express protections provided under the Australian Commonwealth Constitution.

It is important to note that this thesis focuses on the issues raised by the preventative detention of individuals arrested within the jurisdiction of Australia or the United States. A full analysis of the legality of detaining non-citizens captured overseas would involve an additional inquiry regarding the extraterritorial application of constitutional protections which is beyond the scope of this thesis. By focusing simply upon domestic detention, constitutional protections are presumed to apply to the detainees. This is not to say that those cases addressing the constitutionality of overseas detentions will not be discussed. The Guantanamo Bay decisions, for example, are particularly important in understanding the views of the

Supreme Court on the constitutional constraints on the government's authority to preventatively detain individuals more generally.

In addition, this thesis focuses primarily on the constitutional constraints on preventative detention and does not deal directly with issues of .

The new preventative detention policies and laws may likely violate international obligations under the International Covenant on Civil and Political Rights (ICCPR), the Geneva Conventions and other international human rights treaties, however a detailed analysis of these issues is likewise beyond the scope of this thesis. Finally,

-3- this thesis addresses only constitutional issues under the federal constitutions, and does not address questions of compatibility with state constitutional law.

Chapter One briefly outlines the key similarities and differences between the

United States and Australian constitutional systems of government. This chapter is not intended to be a thorough analysis of United States and Australian constitutional law, but aims simply to highlight the key distinctions between the two jurisdictions so as to provide context for the subsequent examination of the Australian and

United States courts' constitutional analysis of preventative detention laws.

Chapter Two examines the constitutional constraints on preventative detention in times of peace, and analyses the approach taken by the United States

Supreme Court and the in addressing the legality of various types of preventative detention. Specifically, I analyse the courts' methods of assessing the constitutionality of preventative detention schemes in certain regulatory areas such as and civil commitment of the mentally ill. I then compare how the US Supreme Court's analysis of these issues under die Bill of

Rights differs from the High Court's analysis which is based solely on separation of powers principles.

Chapter Three explores the courts' treatment of the preventative detention policies adopted by the United States and Australia in times of war. In particular, I address the internment policies implemented by both the United States and

Australian governments during the two world wars which authorised the detention without charge of suspected disloyal citizens and residents. I examine the courts' analysis of laws implementing those policies and contrast their treatment of wartime detention with their treatment of the peacetime preventative detention schemes.

Chapter Four addresses the recent expansion of preventative detention in the

United States and Australia to cases involving terrorism and analyses the constitutionality of these new schemes. I examine and compare the US government's preventative detention of enemy combatants in Guantanamo Bay and its detention of terrorist suspects as material witnesses with Australia's recent anti-terrorism

-4- legislation authorising the imposition of preventative detention and control orders as part of the Criminal Code.

Finally, I set forth my conclusions regarding the analysis by both courts of preventative detention in the United States and Australia in peace, war, and the age of terrorism.

-5- Chapter One Alternative Frameworks of Democracy: Key Distinctions between the United States and Australian Systems of Government

Australia and the United States share many similarities in their constitutional frameworks and systems of government. Both constitutions reflect their countries7

British heritage and democratic values - including principles of liberty, due process and the rule of law. Both have a written federal constitution which enumerates those powers afforded to three branches of government: the executive, the legislature, and the judiciary. Both have a bicameral legislature with a lower house, composed of representatives based on the population of each state, and a Senate, composed of an equal number of senators from each state. In addition, both countries have an independent judiciary with the power to review the constitutionality and legality of executive and legislative acts. Both share a similar system of federalism, whereby the federal government is granted certain enumerated powers and residual powers are left to the authority of the state governments.5

Nevertheless, key differences exist between the Australian and United States systems of government which reflect the uniqueness of each country's history and philosophical foundations. This chapter outlines those key distinctions. The discussion below is not intended to be a comprehensive comparative analysis of

American and Australian constitutional law — a work which conceivably could fill volumes. Rather, this discussion merely aims to provide an overview of a few important points of comparison which will serve as a framework for analysing the

US and Australian detention policies and the constitutional issues related thereto.

5 See generally John L. Pierce, Inside the Mason Court Revolution — The High Court Transformation (2006), 34-37 (outlining the similarities and differences between the Australian and US Constitutions and systems of government).

-6- A. United States: Liberty Protected Through the Separation of Powers and the Bill of Rights

Initially settled by pilgrims escaping religious persecution, America was founded on a philosophy of liberty and morality. By the time of the Declaration of

Independence in 1776, the colonists had come to view the monarch as oppressive and tyrannical, and British Parliament as equally corrupt and incapable of representing their interests. After a bloody revolution and a failed attempt at a loose confederation, the Framers of the United States Constitution sat down in

Philadelphia to craft a written constitution for a federal government of limited specified powers which would protect the citizens of the new nation from the problems which plagued them under British rule.6 To this end, the Framers constructed a constitution which incorporated two principal constraints on government power: a separation of powers and a bill of rights.

1. The Separation of Powers

The Framers believed that absolute power in any one branch - even a politically accountable legislature - would lead to tyranny.7 Thus, while there was great debate regarding the proper framework of the new government, the

Framers ultimately rejected the British Westminster model of government, instead crafting a system of separation of powers and checks and balances.

James Madison, delegate to the Constitutional Convention and co-author of the Federalist Papers, argued in favour of a separation of powers in Federalist

No. 47, where he wrote:

6 See generally Erwin Chemerinsky, Constitutional Law: Principles and Policies (1997), 1- 12 (summarizing historical background of US Constitution). The federal government was first established under the Articles of Confederation, however the government established thereunder was too weak and proved to be unworkable. Ibid 9. 7 Ibid 7. See also Bowsher v Synar, 478 US 714, 721 (1986) (stating that the separation of powers was intended to "diffuse[e] power the better to secure liberty").

-7- The accumulation of all powers, legislative, executive and judiciary, in

the same hands . . . may justly be pronounced the very definition of

tyranny. . . . 'When the legislative and executive powers are united in

the same person or body/ says he, 'there can be no liberty, because

apprehensions may arise lest the same monarch or senate should enact

tyrannical laws to execute them in a tyrannical manner.' Again: 'Were

the power of judging joined with the legislative, the life and liberty of

the subject would be exposed to arbitrary control, for the judge would

then be the legislator. Were it joined to the executive power, the judge

might behave with all the violence of an oppressor.'8

Similarly, in Federalist No. 51, Madison argued that the separation of powers not

only protects citizens from an oppressive government, but also protects minority

rights, stating: "Different interests necessarily exist in different classes of citizens. If

a majority be united by a common interest, the rights of the minority will be

insecure."9

To this end, the Framers created a system of government structured to diffuse

majority power by dividing power among the three branches of government: the

legislature, executive, and judiciary.10 Each branch is granted certain powers which

allow it to act as a check on the other branches. In general, the legislature is

responsible for making the laws, the executive branch is responsible for executing

the laws, and the judiciary is responsible for interpreting and applying the laws in

8 The Federalist No. 47 (J. Madison) (emphasis in original) (quoting C de Montequieu, The Spirit of the Laws (trans T Nugent) (Hafner, New York 1949), at 151-52). See also The Federalist No. 46 (J. Madison) ("The accumulation of all powers, Legislative, Executive, and Judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self- appointed, or elective, may justly be pronounced the very definition of tyranny."). 9 The Federalist No. 51 (J. Madison). 10 Article I of the US Constitution states that legislative powers shall be vested in Congress which shall consist of a Senate and House of Representatives. Article II states that the executive power shall be vested in the President of the United States. Article III states that the judicial power of the United States shall be vested in the Supreme Court and such inferior Courts as Congress may establish.

-8- cases brought before the courts.11 As Justice Kennedy explained: "The idea and the promise [of the Framers] were that when the people delegate some degree of control to a remote central authority, one branch of government ought not possess the power to shape their destiny without a sufficient check from the other two." 12

The division of power between the executive and legislative branches is sharper under the US system than under the Westminster system where by convention the Ministers serving in the executive are drawn from members of

Parliament. Under the US Constitution, no member of the legislature is permitted to hold office in the executive branch.13 Rather, the President is elected through a separate process by popular vote (through the electoral college system).14 Cabinet members are appointed by the President and confirmed by the Senate; none are members of Congress. 15

The Supreme Court has insisted on maintaining this sharp division between executive and legislative authority to ensure that power remains diffused, particularly where the executive acts without express congressional authorisation.

For example, in Youngstown Sheet & Tube Co v Sawyer, the Court held that President

Harry S Truman could not legally direct the Secretary of Commerce to take possession of the country's steel mills so that a threatened strike would not hinder the war in Korea.16 The Court reasoned that the President could not undertake such a measure unless Congress permitted it by statute. In a famous concurring opinion,

Justice Jackson set forth a framework for analysing the legality of executive action

11 Massachusetts v Mellon, 262 US 447, 448 (1923). 12 Clinton v City of New York, 524 US 417 (1998). 13 US Constitution, Art I, § 6 states: "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been created during such time; and no Person holding any Office under the United States shall be a Member of either House during his Continuance in Office." 14 US Constitution, Art II, § 1. 15 US Constitution, Art II, § 2. 16 Youngstown Sheet & Tube Co. v Sawyer, 343 US 579 (1952).

-9- under the separation of powers.17 He explained that where the executive acts

pursuant to express congressional authority, his power is at its zenith, and thus, his

acts are presumptively valid. Where the executive "takes measures which are

incompatible with the express or implied will of Congress, his power is at its lowest ebb" and will only be permitted if the law passed by Congress is unconstitutional.18

Finally, "[wjhen the President acts in absence of either congressional grant or denial

or authority, he can only rely upon his own independent powers, but there is a zone

of twilight in which he and Congress may have concurrent authority." 19 An analysis

of the legality of executive acts in these circumstances cannot be formulated by

general rules, Jackson concluded, but rather must be considered in light of "the imperatives of the events and contemporary imponderables."20

The Supreme Court in Hamdan v United States, recently applied separation of powers principles to find that President Bush had infringed on legislative powers by unilaterally creating military tribunals to try so-called enemy combatants on various

charges related to terrorism.21 Justice Stevens writing for the majority stated:

[NJeither can the President, in war more than in peace, intrude upon

the proper authority of Congress, nor Congress upon the proper

authority of the President .... Congress cannot direct the conduct of

campaigns, nor can the President, or any commander under him,

without the sanction of Congress, institute tribunals for the trial and

punishment of offences, either of soldiers or civilians, unless in cases of

a controlling necessity, which justifies what it compels, or at least

insures acts of indemnity from the justice of the legislature.22

Ibid 635-37 (Jackson J, concurring). Ibid 637. Ibid. Ibid. Hamdan v Rumsfeld, 124 S Ct 2749 (2006). Ibid 2773.

-10- The Court concluded that the government failed to state a case of "controlling necessity" and thus, because the President's tribunals substantially deviated from the court-martial proceedings established by Congress and failed to conform to the law of war, they were invalid.23

The division of power between the judiciary and the other branches of government is also more distinct under the US Constitution than under the British

Westminster model. Unlike British courts, US courts act as a powerful check on the legislative and executive power through judicial review. The Supreme Court first asserted its power to review and invalidate laws down which are unconstitutional in

M arbury v Madison. In Marbury, the Court held certain provisions of the Judiciary

Act of 1789 unconstitutional and therefore unenforceable because they sought to grant the Court original jurisdiction beyond what was permitted under Article HI. 24

Justice Marshall explained that the "powers of the legislature and executive are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written." 25 Accordingly, he stated: "It is emphatically the province and duty of the judicial department to say what the law is."26 Since Marbury, it has been well established that US federal courts have the authority to review laws for constitutionality and the implementation of those laws by the executive.

US courts have also recognised that the separation of judicial power limits the legislature and executive from exercising and therefore usurping judicial power.

Nevertheless, United States courts have relied more on principles of due process under the Due Process Clauses of the Fifth and Fourteenth Amendments than on the separation of powers to analyse alleged violations of rights by governments overstepping its power. Due process is a flexible and broad concept that guarantees people will not be punished or deprived of any rights without whatever substantive and procedural protections the court deems necessary. Separation of powers

23 Ibid 2790. 24 Marbury v Madison, 5 US (1 Cranch) 137 (1803). 25 Ibid 176. 26 Ibid 177.

-11- principles often underpin a court's due process analysis. As the authors of an article discussing separation of powers in Supreme Court decisions pointed out, "there is a lot of separation of powers law that is hidden inside due process law."27 Thus, while courts prefer to ground their decision on the express protections of the Bill of Rights, the implied principle of separation of powers often underpin the courts' analyses.

2. The Bill of Rights

The Bill of Rights stands at the forefront of American constitutional law as a vital check on majority rule. When the Constitution was initially submitted to the states for ratification, it provided few express protections of individual and values. The Framers believed that the system of separation of power and checks and balances would suffice to protect individual liberties.28 Moreover, the Framers were concerned that a delineation of rights would inevitably be incomplete and thus, those rights not expressly protected would be jeopardised.29 However, at the insistence of certain states, a bill of rights was added to secure the required votes for ratification of the Constitution.30

The Bill of Rights is an explicit recognition that there are certain limits on government authority regardless of which branch exercises such authority. As

Justice Jackson put it:

The very purpose of a Bill of Rights was to withdraw certain subjects

from the vicissitudes of political controversy, to place them beyond

the reach of majorities and officials and to establish them as legal

principles to be applied by the courts. One's right to life, liberty, and

property, to free speech, a free press, freedom of worship and

27 Charles Fried, Paul M. Bator, and Samuel A. Alito, Jr, "Debate—After the Independent Counsel Decision: Is Separation of Powers Dead?", 26 Am Crim L Rev 1667, 1673 (1989). 28 See Erwin Chemerinsky, Constitutional Lazo: Principles and Policies (1997), 360-61. 29 Ibid. 30 Ibid.

-12- assembly, and other fundamental rights may not be submitted to

vote: they depend on the outcome of no elections.31

The Bill of Rights provides extensive rights protections for individuals in the

criminal process.32 The Fifth and Sixth Amendments guarantee fundamental

procedural protections for criminal defendants, including the right to a speedy and

public trial before an impartial jury33, the right not to incriminate oneself,34 the right

to have assistance of counsel35, the prohibition of being tried more than once for the

same acts36 and the right to confront adverse witnesses.37 The Fourth Amendment7s

guarantee that searches and seizures must generally be accompanied by a warrant

and probable cause has also been identified as a fundamental right,38 as has the Eight

Amendment's ban on excessive bail and cruel and unusual punishment.39 In

addition, the Court has also found that due process requires the presumption of innocence at trial40 and that the government must prove guilt beyond a reasonable

doubt.41

These rights apply at both the state and federal level. Before ratification of die

Fourteenth Amendment, the Supreme Court interpreted the provisions of the Bill of

Rights as operating as a restriction on federal government power only; they provided no protection from state power.42 However, in the early twentieth century, the Supreme Court found that certain "fundamental" rights and liberties were

31 West Virginia Bd. ofEduc. v Barnette, 319 US 624, 638 (1943). 32 Foucha v Louisiana, 504 US 71, 96 (1992) ("[T]he procedural protections afforded in criminal commitment... are the most stringent known to our law."). 33 In re Oliver, 333 US 257 (1948); Irvin v Dowd, 366 US 717 (1961). 34 Malloy v Hogan, 378 US 1 (1964). 35 Gideon v Wainwright, 372 US 335 (1963) (establishing right to counsel if the criminal sentence involves possible ). 36 Benton v Maryland, 395 US 784 (1969). 37 Washington v Texas, 388 US 400 (1965). 38 Wolfv Colorado, 338 US 25 (1949). 39 Schlib v Kuebel, 404 US 357 (1971). 40 Taylor v Kentucky, 436 US 478 (1978). 45 In re Winship, 397 US 358 (1970). 42 See Barron v Mayor & City Council of Baltimore, 32 US (7 Pet.) 243 (1833).

-13- incorporated into the Fourteenth Amendment which was passed after the Civil War to protect individuals from certain deprivations of liberty by state governments.43 On these grounds, the Supreme Court held that where a right is "so rooted in the traditions and conscience of our people as to be ranked as fundamental," it applies to the limits of the power of state governments as well as the federal government.44

Today, the Supreme Court has applied most of the Bill of Rights' protections to the states, thereby safeguarding fundamental individual rights against both state and federal government officials, agencies and institutions.45

In addition to these specific protections for criminal defendants, broader due process protections are provided under the Fifth and Fourteenth Amendments. The

Due Process Clauses of these Amendments provide that neither federal nor state governments shall deprive a person of life, liberty, or property without "due process of law."46 The Supreme Court has held that the Due Process Clause imposes two types of limitations on government power: substantive and procedural due process.

43 Erwin Chemerinsky, Constitutional Law: Principles and Policies (1997), 378-85. 44 See Medina v California, 505 US 437, 442 (1992) (A procedural law for a criminal case will be upheld unless "'it offends some principle of justice so rooted in the traditions and conscience of our people as to ranked as fundamental/"). In determining what is a fundamental principle of justice, courts look to historical practice, in particular common law. Where a distinct historical practice in the common law cannot be found, courts have also examined whether the rule "transgresses any recognized principle of 'fundamental fairness/" Ibid 448 (finding no common law tradition as to the burden of proof at competency hearings and thus, considering whether the rule violates any recognised principle of fundamental fairness). See, eg, Gitlow v New York, 268 US 652 (1925) (finding that the First Amendment's protection of speech applied to the states through its incorporation into the due process clause of the Fourteenth Amendment); Powell v Alabama, 287 US 45 (1932) (applying the Sixth Amendment's right to counsel in capital cases to the states); Wolfv Colorado, 338 US 25 (1949) (applying the Fourth Amendment protection from unreasonable searches and seizures to the states). 45 See Erwin Chemerinsky, Constitutional Law: Principles and Policies (1997), 381-85 summarizing the standard for determining whether a right is incorporated to the states and listing which rights have thus far been deemed incorporated). 46 Amendment V to the US Constitution ("No person shall be . . . deprived of life, liberty, or property, without due process of law...."); Amendment XIV ("nor shall any State deprive any person of life, liberty, or property, without due process of law....").

-14- Substantive due process inquires into whether the government has an adequate reason for taking away a person's life, liberty, or property.47 In analysing questions of substantive due process, courts first determine whether the law deprives an individual of a "fundamental" right or not.48 If a fundamental right is deprived, courts are to apply a "strict scrutiny" analysis, the most exacting level of review. Under strict scrutiny, the government has the burden of demonstrating that the law is "narrowly tailored" to "further compelling governmental interests."49 In such cases, the law must be the least restrictive alternative to achieving the government's purpose.50 On the other hand, where a fundamental right is not at issue, courts will apply a rational basis test. While the test has been phrased in many ways, a law generally will be upheld as long as it is rationally related to a legitimate government purpose.51 The rational basis test is considered an extremely deferential test and most laws have been upheld under this standard.52

Procedural due process refers to the procedures that the government must abide by before it deprives an individual of life, liberty or property. In determining what process is due in any particular case, the Supreme Court has recognised that

"due process is flexible and calls for such procedural protections as the particular situation demands.”53 In Mathews v Eldridge, the Court set forth a framework of analysis to assist in determining what process is due in any given case.54 That test requires a court to balance three factors in determining whether the government has afforded constitutionally adequate procedures before depriving a person of a

47 See Erwin Chemerinsky, Constitutional Lazo: Principles and Policies (1997), 419-20. 46 See ibid 420. 49 Adarand Constuctors v Pena, 515 US 200, 227 (1995); see also Johnson v California, 543 US 499 (2005). 50 Adarand Constuctors v Pena, 515 US 200, 227 (1995). 51 See Erwin Chemerinsky, Constitutional Lazo: Principles and Policies (1997), 415 (citing Romer v Evans, 116 S Ct 1620 (1996) and other cases addressing laws under the rational basis test). 52 Ibid. 53 Morrissey v Brewer, 408 US 471, 481 (1972). 54 Mathews v Eldridge, 424 US 319, 334 (1980).

-15- particular interest or right: 1) the private interest that will be affected by the official action; 2) the risk of an erroneous deprivation of such interest through the procedures used and probable value, if any, of additional or substitute procedural safeguards; and 3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.55 While the Supreme Court has generally held that due process requires fundamental safeguards such as notice, the opportunity for a fair hearing, and an impartial decisionmaker, courts have a great deal of discretion in applying the Matthews factors.56 Consequently, predicting what process is due in a particular case is often extremely difficult.

In addition to due process and other rights enumerated in the Bill of Rights, the Constitution also includes certain textual provisions protecting individual rights and liberties. Article I, section 9 of the Constitution declares that "[t]he privilege of the Writ of shall not be suspended, unless when in Cases of Rebellion or Invasion, the public Safety may require it." While this clause prevents Congress from suspending the writ of habeas corpus, Congress may still limit the scope and availability of habeas corpus, at least to a certain extent.57 Thus far, the Supreme Court has given Congress substantial leeway in limiting habeas, upholding a recent statute which limited successive habeas petitions.58 Other textual provisions prohibit bills of attainder and ex post facto laws and provide a right to a trial by jury in all criminal cases.59

55 Ibid 335. 56 Erwin Chemerinsky, Constitutional Law: Principles and Policies (1997), 450. 57 See ibid 361-62. 58 Felker v Turpin, 2333, 2339-40 (1996). 59 Article I, sections 9 and 10 of the Constitution say that neither the federal nor the state governments can enact an ex post facto law or a bill of attainder. Article III, section 2 assures a right to trial by jury of all crimes, except in cases of impeachment, in the state where the crime occurred. In addition, Article III, section 3, limits the scope of treason to "levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort." Finally, Article IV provides that the "Citizens of each State shall be entitled to

-16- B. Australia: Protection of Liberty through Responsible Government.

Unlike the United States Constitution, the Australian Constitution was not bom from revolutionary beginnings. It rather was the product of a slow evolutionary process of independence from Great Britain. As LF Crisp wrote in

Australian National Government, "There was no Damascus Road miracle about

Australia's federal conversion. It took sixty years of spasmodic official effort and fluctuating public interest to bring the Commonwealth into being."60 Initially settled by Great Britain as a penal colony following the American Revolutionary War,

Australia quickly grew to an established colony, and by the mid-1800s state governments with local constitutions had been formed.61

The establishment of an independent Commonwealth was not driven by a desire for independence from British governance, but rather by security and economic reasons.62 The idea of federation was first proposed as a bill in 1850, but it was not until 1901, that a federated Commonwealth was established by the

Commonwealth of Australia Constitution Act 1900 (Imp), a British Act.63 Drawing on the

British Westminster system, but also adopting principles and structure from the US

Constitution, the Framers of the Australian Commonwealth created a unique system of federal government which was a hybrid of the US and British models.64 For this reason, the Australian system has been dubbed as the "Washminster system."65 all Privilege and Immunities of Citizens of the Several States" - a provision which limits the ability of a state to discriminate against out-of-staters. 60 LF Crisp, Australian National Government, 5th ed. (1983), 1. 61 Patrick Parkinson, Tradition and Change in Australian Law, 3d ed. (2005), 105-06, 117- 18. 62 Ibid. See also George Williams, Human Rights under the Australian Constitution (2002), 33. 63 Ibid 141. 64 Tony Blackshield, George Williams, Australian Constitutional Law and Theory, 4th ed. (2006), 1. 65 Elaine Thompson, "The Constitution And The Australian System Of Limited Government, Responsible Government And Representative Democracy: Revisiting The Washminster Mututation," (2001) UNSWLJ 53.

-17- 1. Responsible Government and the Absence of a Bill of Rights

The Framers of the Australian Constitution rejected the idea of a separately elected President, instead maintaining the core of the British Westminster model — responsible government.66 The Constitution delegates significant executive powers to the British Crown as Australia's official head of state, who is represented at the federal level by the Governor-General.67 In reality, those powers are exercised by the

Prime Minister and Cabinet of Officers through a blend of conventions inherited from Great Britain.68 The Ministers are drawn from Members of Parliament and are therefore directly accountable to Parliament, and in turn to the electorate.69 The political party supported by a majority of the lower house of the legislature elects the Cabinet of Ministers and continues as the "government" as long as it maintains majority support.70

Responsible government is grounded on the notion of parliamentary sovereignty, a concept first recognised in the Bill of Rights 1689 and the Act of

Settlement 1701—Acts through which central lawmaking power in Great Britain was transferred from the monarch to Parliament.71 AV Dicey explains in his Introduction to the Study of the Law on the Constitution:

The principle of Parliamentary sovereignty means . . . that parliament ...

has ... the right to make or unmake any law whatever; and, further, that

66 Blackshield & Williams, above n 64,1. 67 Ibid. 68 Blackshield & Williams, above n 64, 1; R A Hughes, G W G Leane, A Clarke, Australian Legal Institutions (2d ed 2003), 41. 69 Ibid. As described by the Australian High Court, "a system of responsible government traditionally has been considered to encompass 'the means by which Parliament bring the Executive to account' so that 'the Executive's primary responsibility in the prosecution of government is owed to Parliament.'" Egan v Willis (1998) 195 CLR 424, 451 (Gaundron, Gummow, Hayne JJ) (quoting the writings of Mill in 1861). 70 Blackshield & Williams, above n 64,1. 71 Blackshield & Williams, above n 64,100-12.

-18- no person or body is recognised by the law of as having a right

to override or set aside die legislation of Parliament___ " 72

Under the doctrine of parliamentary sovereignty, civil liberties are held to be sufficiently protected through the common law and the democratic process.73 If

Parliament oversteps its bounds, its members would be elected out of government, and any breach of liberties would be corrected. Quoting Leslie Stephen's Science of

Ethics, A V Dicey famously wrote: "If a legislature decided that all blue-eyed babies should be murdered' the preservation of blue-eyed babies would be illegal; but legislators must go mad before they could pass such a law, and subjects be idiotic before they could submit to it."74

Relying on these principles, the Framers concluded that a constitutional bill of rights or similar declaration of rights and freedoms was not necessary.75 Additional rights-oriented provisions, including a provision similar to the due process and equal protection provisions of the Fourteenth Amendment of the US Constitution, were discussed. However, the drafters were more interested in the rights of the

72 See AV Dicey, Introduction to the Study of Law of the Constitution (Macmillian, 1st ed 1885, 10th ed. 1959), 39-40. 73 George Williams, above n 62, 39-40. See also Australia Capital Television v Commonwealth (1992) 77 CLR 106, 136 (Mason, CJ) ("The Framers of the Constitution accepted, in accordance with prevailing English thinking, that the citizen's rights were best left to the protection of the common law in association with the doctrine of parliamentary sovereignty. So it was that Professor Moore wrote: 'The great underlying principle [of the Constitution] is, that the rights of individuals are sufficiently secured by ensuring, as far as possible, to each a share, and an equal share, in political power.'"). 74 See AV Dicey, Introduction to the Study of Law of the Constitution (Macmillian, 1st ed 1885, 10th ed. 1959), 80-81. 75 See George Williams, above n 62, 33. See also Australian Capital Television Pty v Commonwealth of Australia (1992) 177 CLR 106, 182 ("[T]he Australian Constitution, with few exceptions and in contrast with its American model, does not seek to establish personal liberty by constitutional restrictions upon the exercise of governmental power. The choice was deliberate and based upon a faith in the democratic process to protect Australian citizens against unwarranted incursions upon the freedoms which they enjoy.. ..").

-19- federated states than in human rights and, in the end, ultimately rejected most

rights-oriented provisions at the Constitutional Conventions.76

To date, movements to install a charter of rights in the Commonwealth

Constitution have been unsuccessful, however efforts at the state and territory level

have met with more success. In March 2004, the Australian Capital Territory (ACT)

Parliament passed the Human Rights Act which enumerates certain human rights and

grants the Supreme Court of the ACT power to declare a law incompatible with the

rights therein.77 Yet, unlike the US system, the rights protections are statutory, not

constitutional, and laws which are deemed incompatible with the rights are not

immediately nullified, but referred back to Parliament for further consideration.78

More recently, has also passed a similar statutory charter of rights, and

other states have expressed interest in following in the ACT's and Victoria's

footsteps.79

This is not to say that there are no civil liberty protections in Australia. The

Commonwealth Constitution does incorporate a few rights provisions, including the

right to a jury trial on indictable offences.80 In addition, several statutes - both at the

federal and state level - provide enforceable protections of civil rights.81 Courts also

have recognised elements of both common law and international law as protecting

individual rights.82 Nonetheless, both statutes and common law can be overridden

by an Act of Parliament and therefore lack the security of a constitutional right.

76 See George Williams, above n 62, 25-45 (providing an overview of the drafting on the Australian Constitution and detailing the debates and discussions about individual rights). 77 For a full discussion of the ACT Human Rights Act, see George Williams, The case for an Australian Bill of Rights (2004), 66-76. 78 Ibid 74. 79 Charter of Human Rights and Responsibilities 2006 (Vic). 80 Commonwealth Constitution s 80. 81 See George Williams, above n 62, 10-15 (citing Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth); Anti-Discrimination Act 1977 (NSW); Anti-Discrimination Act 1991 (Qld); Equal Opportunity Act 1984 (SA) and other statutes). 82 See George Williams, above n 62, 15-23 (citing Dietrich v The Queen (1992) 177 CLR 292 (common law right to counsel); Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 (common law right to privacy) and other cases).

-20- More recently, the Australian High Court has held that certain individual rights may be implied from the text of the Commonwealth Constitution.83 For example, while the Constitution does not provide any express right to free speech, the High Court, in Australian Capital Television Pty Ltd v Commonwealth, struck down sections of the Political Broadcasts and Political Disclosures Act 1991 which limited political advertising on television and radio during election periods, finding that the

Act violated an implied constitutional right of political communication. 84 The Court relied on sections 7 and 24 of the Constitution which required that members of the

Senate and House of Representatives be "directly chosen by the people."85 The Court found that freedom of communication was an "indispensable element in representative democracy" and therefore could not be undermined by legislation limiting freedom of political speech.86 A series of later cases have refined, but not expanded, the basis and scope of this implied freedom.87 As discussed below, certain due process rights have also been implied under separation of powers principles.

2. Separation of Powers.

While the Framers adopted Great Britain's Westminster system of government, they incorporated a separation of powers similar to that in the United

States. Like the US Constitution, powers granted to Parliament, the Executive, and the Judiciary, are enumerated in the first three Chapters of the Constitution. The separation between executive and legislative is obviously not as firm as that in the

United States.88 The Court has addressed questions regarding the scope of legislative

83 George Williams, above n 62,155-97. 84 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106. 85 Ibid. 86 Ibid 138 (Mason CJ). 87 See, eg, Lange v Australia Broadcasting Corporation (1997) 189 CLR 520; Roberts v Bass (2002) 212 CLR V, Coleman v Power (2004) 220 CLR 1. 88 R v Kirby; Ex parte Boilermakers' Society of Australia (Boilermakers' Case) (1956) 94 CLR 254, at 275-76 (explaining that the framers of the Commonwealth Constitution, by adopting the British Westminster system, rejected the strict separation of power between the executive

-21- and executive power in the context of Parliament's delegation of power to make regulations,89 but because Australia's system is one of responsible government, these issues are not as prominent in Australian jurisprudence as they are in the United

States.

On the other hand, the High Court has insisted on a strict separation of judicial power.90 As in the United States, courts in Australia act as a check on legislative and executive power through the power of judicial review. Judicial review is implied from Ch III of the Commonwealth Constitution. In particular, sections 75 and 76 of the Constitution vest the High Court with "original jurisdiction" in certain matters, including those in which "a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth."

Accordingly, it is well-established that where a law exceeds some express or implied constitutional limitation, the High Court has the power to hold it unconstitutional and therefore unenforceable.91

The Court has also found that the separation of judicial power guarantees that

"citizens can be subjected to the exercise of Commonwealth judicial power only by the 'courts' designated by Ch III. " 92 Thus, as Justice Deane commented in Re Tracey;

Ex Parte Ryan, the separation of powers is "the Constitution's only general guarantee of due process." 93 The Court first applied this principle in New South Wales v and legislature). See also Williams, Humans Rights under the Australian Constitution (2002), 56- 57. 89 See eg, Victorian Stevedoring & General Contracting Co Pty & Meakes v Dignan (1939) 46 CLR 73. 90 R v Kirby, Ex parte Boilermakers' Society of Australia (Boilermakers Case) (1956) 94 CLR 254; Polyukovich v The Queen (1991) 172 CLR 501. 91 George Williams, above n 62,199. 92 Street v Queenland Bar Association (1989) 168 CLR 461, at 521 (Deane J) (stating that the Australian "Constitution contains a significant number of express and implied guarantees of rights and immunities. The most important of them is the guarantee that the citizen can be subjected to the exercise of Commonwealth judicial power only by the 'courts' designated by Ch III.") 93 Re Tracey; Ex parte Ryan (1989) 166 CLR 518, at 580 (Deane J). See also Speech by The Honorable Justice M H McHugh, "Does Chapter III of the Constitution protect substantive as well as procedural rights?", delivered at the New South Wales Bar Association, 17

-22- Commonwealth (Wheat Case) to prevent Parliament from creating agencies to adjudicate disputes. Parliament had established an Inter-State Commission with the power to issue an injunction or other judicial remedy to further its decisions regarding the law of trade or commerce.* 94 The Court acknowledged the plenary power of Parliament to legislate, but noted that such power was limited by the separation of powers as set forth in the Constitution.95 The Court held that the

Constitution provides that only Chapter III courts could validly exercise the judicial power of the Commonwealth. Thus, the Inter-State Commission could not be empowered to issue an injunction or other judicial remedy as part of its decision that a trade or commerce law had been breached because such powers were exclusively reserved to the judiciary.96

The Court has also upheld the converse of that principle, holding that a

Chapter in court may not exercise non-judicial power. In R v K irb y, E x parte

Boilermakers' Society of Australia (Boilermakers Case), the High Court held that

Parliament could not vest the Arbitration Court with both judicial and non-judicial power.97 In a joint judgment, the Court stated that "[a] number of considerations exist which point very definitely to the conclusion that the Constitution does not allow the use of the courts established by or under Chapter ID to discharge of functions which are not in themselves part of the judicial power and are not auxiliary or incidental thereto."98 The Court later added a corollary to this mle.

While a court may not exercise non-judicial power, federal judges acting in a personal capacity (as a persona designate) may exercise certain non-judicial functions provided that the function assigned to the judge is not "inconsistent with the essence

October 2001 (stating that the "interpretation of Chapter III has revealed a number of procedural and substantive due process rights within its provisions"). 94 New South Wales v Commonwealth (Wheat Case) (1915) 20 CLR 54. 95 Ibid. 96 Ibid. 97 R v Kirby, Ex parte Boilermakers' Society of Australia (Boilermakers Case) (1956) 94 CLR 254,271. 98 Ibid 271 (Dixon CJ, McTieman, Fullagar and Kitto JJ).

-23- of the judicial function and the proper performance by the judiciary of its

responsibilities for the exercise of judicial power."99

State constitutions do not necessarily embody the same separation of powers

principles as those entrenched in die Commonwealth Constitution, and thus

whether state courts may exercise power which is characterized "non-judicial" was

not resolved by the Boilermakers Case. Instead, this question was addressed by the

Court in Kable v Director of Public Prosecutions (N SW ), where it held that, while the

exercise of judicial power by state courts is not barred altogether, judicial power may

not be exercised by state courts where to do so would be incompatible the exercise of judicial functions under Chapter III.100 Justice Gaudron reasoned that states exercise

federal jurisdiction and are therefore "part of the Australian judicial system created

by Ch III of the Constitution and, in that sense and on that account, they have a role

and existence which transcends their status as courts of the States." 101 Accordingly,

state courts are limited in their exercise of non-judicial power, and may not be vested

with powers that are "incompatible" with judicial power.102

Nevertheless, the definition of judicial power under the Australian

Constitution has been described as an "elusive" 103 or even "impossible" task.104

Section 71 of the Constitution provides that the "judicial power of the

Commonwealth shall be vested" in the High Court and other federal courts created by Parliament, but says nothing more about what types of functions constitute

"judicial power." As Justice Kirby noted in Nicholas v The Queen, "no definition of

[judicial power] has ever been framed which is 'at once exhaustive and exclusive'" and those definitions which have been attempted provide little help where a particular statute is challenged as an impermissible intrusion upon, or derogation of,

99 Hilton v Wells (1985) 157 CLR 57, at 83. 100 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. 101 Ibid 103 (Gaudron J) (quoting Leeth v Commonwealth (1992) 174 CLR 455, 498-99. 102 Ibid 103-04 (Gaudron J). 103 Polyuchovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501, 532 (Mason CJ). 104 Chu Kheng Lim v Minister of Immigration (1992) 176 CLR 1, 67 (Gaudron J).

-24- the judicial power.105 Thus, while the separation of judicial power is a significant limitation on executive and legislative power, the scope of that limitation remains unclear.

In sum, the constitutions of United States and Australia share a common principle of limited government through the separation of powers. While Australia adopted the Westminster system of responsible government, and thus the separation of legislative and executive power is not as distinct as that in the United States, both jurisdictions have recognised a strict separation of judicial power as an important safeguard from legislative and executive overreaching. Nevertheless, the Australian

Constitution differs from the United States, as well as most western democracies, in that it lacks a written bill of rights. Accordingly, while individual rights are strongly protected under the US Constitution's Bill of Rights and other right-protecting provisions, individual rights enjoy relatively weak protection under the Australian

Constitution which instead relies on the parliamentary process to resolve objections to laws which infringe on human rights.

i°5 (1998) 193 CLR 173, 256 (Kirby J); See also Precision Data Holdings Ltd v Wills (1990) 173 CLR 167, 188; George Williams, above n 62 ("Judicial power eludes accurate and precise description.").

-25- Chapter Two Preventative Detention in Times of Peace

In times of peace, both the Australian High Court and the United States

Supreme Court have recognised that preventative detention conflicts with well- established principles of English common law and criminal procedure. Since the signing of the Magna Carta, the extended detention of individuals without charge or trial has been considered an instrument of tyranny. Indeed, it was the imprisonment without charge of hundreds of alleged traitors by King Charles I, pursuant to an assertion of "executive prerogative," which spurred British Parliament to pass the

Petition of Right of 1628, and later the Habeas Corpus Acts of 1641 and 1679.106

Those Acts required, among other things, that jailors provide a lawful basis for confinement, and mandated that in cases of commitment for any "criminal or supposed criminal matters," prisoners must either be released or quickly brought to trial. As William Blackstone explained:

To make imprisonment lawful, it must either be, by process from the

courts of judicature, or by warrant from some legal officer, having

authority to commit to ; which warrant must be in writing,

under the hand and seal of the magistrate, and express the causes of

the commitment, in order to be examined into (if necessary) upon a

habeas corpus. If there be no cause expressed, the gaoler is not bound to

detain the prisoner. For the law judges in this respect, . . . that it is

i°6 five of the detainees imprisoned by King Charles I protested their in Darnel's Case, How St Tr 1 (KB 1627), arguing that the Crown was required to charge them with a crime for which they could be tried. The King's attorney claimed that the imprisonment was by "special command of the majesty" and were "matters of the state" that were not "ripe or timely" for the ordinary criminal process. The Court agreed and refused to free the prisoners. Ibid 37. See Robert S. Walker, The Constitutional and Legal Development of Habeas Corpus as the Writ of Liberty, 59 (1960).

-26- unreasonable to send a prisoner, and not to signify withal the crimes

alleged against him. 107

Thus, detainees were not only ensured judicial "habeas" review of executive detention orders, but also had a right to be promptly charged and brought to trial or released.

These common law principles are the foundation of the criminal justice systems in both the United States and Australia. In both countries, the law requires that an arrest by law enforcement authorities must be supported by reasonable or probable cause that a crime was committed and that the suspect must be brought promptly before a magistrate, charged with a crime and quickly brought to trial.108 In

Australia, the Crimes Act 1914 requires that individuals held for serious offences may be held without charge for a maximum of 12 hours, and in the case of terrorist suspects, a maximum of 24 hours applies.109 In the United States, the Fourth

107 1 W Blackstone, Commentaries on the Laws of England, 132-133 (1765). See also 2 M Hale, Pleas of the Crown 77, 81, 95, 121 (1736) (explaining that at common law, law enforcement authorises were required to bring an arrestee before a justice of the peace shortly after arrest); 2 W Hawkins, Pleas of the Crown 116-17 (4th ed. 1762); 2 & 3 Phil. & M., c. 10 (1555); 3 J. Story, Commentaries on the Constitution of the United States § 1783,661 (1833) (equating "due process of law" with "due presentment or indictment, and being brought in to answer thereto by due process of the common law"); T. Cooley, General Principles of Constitutional Law, 224 (1880) ("When life and liberty are in question, there must in every instance be judicial proceedings; and that requirement implies an accusation, a hearing before an impartial tribunal, with proper jurisdiction, and a and judgment before the punishment can be inflicted"(internal quotation marks omitted)). 108 In the United States, the Fourth Amendment requires that the government establish probable cause before a person may be legally arrested and held in pretrial detention. Gerstein v Pugh, 420 US 103 (1975). The Constitution further ensure that defendant receive a speedy trial. US Constitution, Amend VI. Under the US Speedy Trial Act, a defendant's trial must start within 70 days from the date the information or indictment was filed, or from the date the defendant appears before an officer of the court in which the charge is pending, whichever is later. 18 USC § 3161(c)(1). In Australia, there are no equivalent provisions in the Constitution relating to a probable cause requirement or a right to a speedy trial, though common law and statutory law requires that arrests be made based on "reasonable suspicion." See, eg, Crimes Act 1900 (NSW); Jago v District Court of NSW (1989) (holding that there is no right to a speedy trial; delays without prejudice will be insufficient to justify a stay of the indictment). 109 See above n 3.

-27- Amendment requires suspects to be brought before a magistrate to be charged with

a crime as soon as possible, and never later than 48 hours after arrest.110

At the same time, the US Supreme Court and the Australian High Court have

recognised that individuals may be preventatively detained without charge or a trial

in certain narrow regulatory contexts, such as immigration or civil commitment of

the mentally ill.111 Courts in both jurisdictions have distinguished these types of

detention schemes as falling outside the protections of the criminal justice system on

the grounds that they are "non-punitive." Yet, as the cases below will demonstrate,

distinguishing between punitive and non-punitive detention laws is often a difficult,

if not impossible, task given the vagueness of the terms and the overlapping

purposes of criminal and civil laws. As a result of the courts' reliance on this

distinction, the courts' decisions on preventative detention have often been

confusing, conflicting and often unprincipled.

This chapter examines and compares the caselaw addressing preventative

detention in time of peace in the United States Supreme Court and Australian High

Court. First, I discuss the preventative detention caselaw in the United States. The

US Supreme Court has analysed the constitutionality of various preventative

detention laws under the Due Process Clauses of the Fourth and Fifteenth

Amendments. Second, I examine and contrast the Australian jurisprudence which

has reviewed the constitutionality of preventative detention according to the

principle of separation of judicial power embodied in Chapter III of the

Commonwealth Constitution. Finally, I set forth my conclusions regarding both

Courts' analyses of preventative detention during peacetime.

110 See above n 4. 111 See, eg, Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1; Kansas v Hendricks, 521 US 346, 358 (1997) (upholding civil commitment of the mentally ill).

-28- A. United States: Due Process Constraints on Preventative Detention.

The Supreme Court has analysed the constitutionality of preventative

detention laws under the Due Process Clauses of the Fifth and Fourteenth

Amendments. Those Clauses respectively provide that neither the federal nor state

governments shall deprive a person of life, liberty, or property without "due process

of law." 112 The Court has made clear that "[fjreedom from imprisonment—from

government custody, detention or other forms of physical restraint—lies at the heart

of the liberty that the [Due Process] Clause protects."113 Justice Kennedy likewise

stated that "incarceration of persons is the most common and one of the most feared instruments of state oppression and state indifference" and that "freedom from this restraint is essential to the basic definition of liberty in the Fifth and Fourteenth

Amendments of the Constitution."114

The right to be free from physical restraint, however, is distinct from other

constitutional liberties in that it not only raises issues regarding the balance between

government regulatory interests and individual liberties, but also implicates the protections of the criminal justice system. The Supreme Court therefore has begun its

constitutional analysis of preventative detention laws with the following principle:

"no person shall be punished without adjudication of guilt in accordance with due process of law." 115 By applying this standard, the Court has tried to distinguish a

detention law which is criminal in nature from one that is regulatory. If a particular

112 US Constitution, Amendment V ("No person shall be . .. deprived of life, liberty, or property, without due process of law. . . ."); Amendment XIV ("nor shall any State deprive any person of life, liberty, or property, without due process of law...."). 113 Zadvydas v Davis, 533 US 678, 690 (2001). See also Foucha v Louisiana, 504 US 71, 80 (1992) ("Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary government action."); Meyer v Nebraska, 262 US 390, 399 (1923) ("Without doubt, [the liberty defined by the Fourteenth Amendment] denotes not merely freedom from bodily restraint," but other privileges long recognised at common law.) 114 Foucha, 504 US at 90 (Kennedy J, concurring). 115 Bell v Wolfish, 441 US 520, 536 (1979) ("[U]nder the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.").

-29- detention law is found to constitute punishment and fails to provide the requisite

protections afforded criminal defendants recognised under the Bill of Rights and at

common law, it is unconstitutional.116

The analysis, however, is not as straightforward as it may seem. Justices have

forthrightly admitted that identifying the difference between a punitive and non-

punitive law is "elusive of solution/'117 The term "punitive" is imprecise and subject

to a variety of interpretations. As Justice Marshall pointed out in one case, from the

perspective of the detainee, regulatory detention is essentially indistinguishable

from punishment as it deprives a person of the freedom of movement, freedom to

engage in daily activities and freedom to associate with friends and family.118

Moreover, the purposes of criminal and regulatory detention laws often overlap.

This is particularly true in the case of preventative detention where the primary

purpose is incapacitation. Incapacitation arguably serves the "regulatory" purpose

of protecting the community and ensuring public safety, but is also a function and

purpose of the criminal justice system which seeks to promote community safety by

sequestering dangerous persons.

The Supreme Court first attempted to clarify the confusion in Kennedy v

Mendoza-Martinez by setting forth a series of guidelines to assist a court in

distinguishing a punitive from a non-punitive law.119 In that case, Justice Goldberg

explained the analysis as follows: First, the Court must examine the legislative

"purpose" of the statute through the language and legislative history.120 Where the

legislative history reveals that Congress expressly intended to impose punitive

restrictions, the law readily could be deemed as "punitive."121 If, however, the

116 Wing Wong v United States, 163 US 228 (1896) (finding detention law was "punitive" where it required Chinese immigrants found to be unlawfully residing the United States to be detained and imprisoned at hard labour). 117 Kennedy v Mendoza-Martinez, 372 US 144,168 (1963). 118 Bell v Wolfish, 441 US 520, 565 (1979) (Marshall J, dissenting). 119 372 US 144 (1963). 120 Ibid 168-69. 121 Ibid.

-30- legislative history is inconclusive or indicates a "non-punitive" purpose, the court

then should consider the following factors to determine whether the law is in fact

punitive, despite the legislature's asserted intent:122

Whether the sanction involves an affirmative disability or restraint,

whether it has historically been regarded as punishment, whether it

comes into play only on a finding of scienter, whether its operation

will promote the traditional aims of punishment—retribution and

deterrence, whether the behaviour to which it applies is already a

crime, whether an alternative purpose to which it may rationally be

connected is assignable to it, and whether it appears excessive in

relation to the alternative purpose assigned....123

The statute at issue in Kennedy divested an American of his for leaving or remaining outside the United States at time of war and national emergency for purpose of evading military service.124 The Court concluded that the legislative history of the statute made clear that the deprivation of citizenship was intended to be a punishment for the offence of leaving or remaining outside the country to evade military service and, thus, violated due process because the law failed to provide any of the constitutional protections afforded criminal defendants.125

Accordingly, the Court found that the legislative intent of the statute expressed a clear intent to punish, and had no occasion to apply these secondary "guidelines."126 *

Thus, Kennedy was an easy case given the obvious legislative intent to punish.

Preventative detention cases decided after Kennedy, however, proved to be less clear cut. It was not until sixteen years later, in Bell v Wolfish,™ that the Supreme Court next applied the Kennedy guidelines in a preventative detention case. In that case, a

Ibid. Ibid. Ibid 164-65. Ibid 178-79. Ibid 173-79. Bell v Wolfish, 441 US 520 (1979).

-31 - detainee challenged the legality of certain policies related to the conditions of pre­ trial detention which were alleged to be sufficiently harsh and unnecessary to convert a "regulatory" detention scheme into one that was unlawfully "punitive".128

The Supreme Court held that the conditions of detention were not punitive in nature.129 Justice Rehnquist, writing for the Court, quoted the Kennedy guidelines, but interpreted the test as one which merely required a rational relationship between the law and a non-punitive purpose.130 He concluded that absent an express intent to punish by the legislature, the determination of whether a restriction is punitive or regulatory depends on whether the restriction is "rationally connected" to the "non- punitive" purpose assigned to it.131 Only where a law is "arbitrary or purposeless" would it constitute impermissible punishment.132 Thus, he stated, in the case of pretrial detention, die government's policies need only be "reasonably related" to the government's interests in effective management of the detention facility.133

Justice Rehnquist acknowledged that the detention must not be "excessive," but made clear that courts should not second guess executive and legislative characterizations of the nature of a given detention. He directed that broad discretion should be given to corrections officials regarding the conditions of detention and policies could only be struck down if they served no legitimate purpose or were shockingly harsh.134 Applying this standard to the facts of the case,

128 Ibid 523. 129 Ibid 534-35. 130 Ibid 538. 131 Ibid 538. 132 Ibid 539. 133 Ibid 540. 134 Justice Rehnquist explained that the consideration regarding the reasonableness of the conditions or restrictions are "'peculiarly within the province and professional expertise of corrections officials, and in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.'" Ibid. 827, n 23 (quoting Pell v Procunier, 417 US 817, 827 (1974)). Justice Rehnquist conceded that loading a detainee with shackles and throwing him in a dungeon would support a conclusion that the restrictions were punishment. Ibid 827, n 20.

-32- the Court found that none of the complained of policies - including the body cavity searches - violated due process.135

Justice Rehnquist's analysis provided few protections from punitive detention. Even though the detention deprived the detainees of their most fundamental rights, the standard applied by Rehnquist and the majority was, in effect, a rational basis analysis, the lowest level of scrutiny in which the Court will engage. Justices Stevens and Brennan argued for a higher standard, asserting that punishment must be inferred "when there is a significant and unnecessary disparity between the severity of the harm to the individual and the demonstrated importance of the regulatory objective."136 In their view, a court should not merely examine whether the government has set forth a reason for the detention policy, but must look at the facts and make an objective judgment regarding the excessiveness of the measures in relation to the non-punitive purpose.137

Justice Marshall in his dissent concluded that the punitive/non-punitive distinction was an "empty semantic exercise" in this case.138 In his opinion, the proper analysis is not whether a particular restraint can be labeled "punishment," but rather should employ an approach which balances the government's interests with the liberty interest deprived. He explained: "[A]s with other due process challenges, the inquiry should be whether the governmental interests served by any

135 Ibid 541-63. 136 Ibid 588. (Stevens, Brennen JJ, dissenting) (emphasis in original). 137 Ibid. 138 Ibid 565 (Marshall J, dissenting). Justice Marshall also argued that even assuming a "punishment" analysis under Kennedy v Mendoza-Martinez is appropriate in this context, that the standard was not properly applied by the majority. He pointed out, among other things, that the Court leaves out several of the guideposts for determining punishment set forth in the Mendoza-Martinez decision such as whether the sanction constitutes an affirmative disability or restraint and whether it has historically been regarded as punishment. Ibid 565- 67. Moreover, Justice Marshall stated that the majority equates the rights of pretrial detainees with convicted prisoners - an improper assumption, he argued, given that pretrial detainees are presumed innocent and therefore are entitled more extensive rights. Ibid 568 (Marshall J, dissenting).

-33- given restriction outweigh the individual deprivations suffered."139 Thus, under

Marshall's analysis, die more intrusive the restriction, die more compelling the government interest must be.140

While Justice's Marshall's approach was rejected by the majority in Be ll v

W olfish, the Court in Salerno v United States adopted an analysis which incorporated a more traditional due process balancing test similar to that proposed by Marshall.141

In that case, the detainees challenged the constitutionality of the Bail Reform Act of

1984, an act which authorised judges to deny bail in cases of serious crimes where a court found by clear and convincing evidence that die accused was likely to commit future crimes if released.142 Under the prior act, a court could deny bail only on grounds related to risk of flight or other bases related to maintaining the integrity of the trial. Thus, the Ba il Reform Act marked a significant departure from this tradition by authorizing pretrial detention based solely on dangerousness.

The Court of Appeals for the Second Circuit held that the Act violated substantive due process, finding the authorization of pretrial detention on the ground of future dangerousness "repugnant to the concept of substantive due process," which the court believed to prohibit "the total deprivation of liberty simply as a means of preventing future crimes."143 The appellate court reasoned that the criminal law system holds persons accountable for past actions, not anticipated future actions.144 Accordingly, the court concluded that while pretrial detention is permissible and serves the government's goals of securing the trial process if the defendant was likely to flee before trial or was likely to intimidate witnesses or otherwise jeopardize the trial process, detaining a person presumed to be innocent18 *

Ibid (Marshall J, dissenting). Ibid 571-79 (Marshall J, dissenting). Salerno v United States, 481 US 739 (1987). 18 USC § 3141 et seq; see ibid § 3142(e). 794 F 2d 64 (1986). Ibid 72.

-34- merely because they were thought to present a danger to the community was punitive and contrary to due process.145

The Supreme Court, however, reversed, finding no such bar on the pretrial detention of dangerous individuals.146 Justice Rehnquist again authored the opinion of the majority, and again applied an abbreviated version of the Kennedy guidelines.

He omitted any analysis of whether the sanction involved an affirmative disability or restraint or whether the behaviour to which the law applies is already a crime— two factors which weigh heavily in favour of finding the act punitive. Rather, he concluded with little discussion or analysis that the pretrial detention provisions were rationally related to a non-punitive regulatory goal: preventing danger to the community.147 He rejected the court of appeal's conclusion that detention could not be imposed based on dangerousness even under the most compelling of circumstances. Rather, he asserted that detention based on dangerousness is not categorically prohibited, and proposed a new rule: the government may detain individuals based on dangerousness in "special circumstances" where "the

Government's regulatory interest in community safety . . . outweigh[s] an individual's liberty interest."148 As support, he referred to the Court's decisions in the areas of civil commitment for the mentally ill, wartime detention and pretrial detention of juveniles, cases in which the Court has upheld regulatory preventative detention based on dangerousness.149

The majority acknowledged that the right to be free of physical restraint was a fundamental one, but found that the government's interest in protecting the community from dangerous pretrial detainees was sufficiently "compelling" to outweigh this important right.150 Moreover, the Court held, the law was narrowly

Ibid 72-74. Ibid 705. Ibid 746-48. Ibid 749. Ibid 749. Ibid 750-51.

-35- tailored to the government "non-punitive" purpose.151 In reaching this conclusion,

the Court emphasized that the Act was narrowly focused on a particular category of

persons where probable cause had been established that the individual had

committed a serious crime.152 In addition, the Act required that dangerousness be

established by clear and convincing evidence.153 Finally, the Court found that the

procedural safeguards were consistent with due process.154 The Act provided for

right to counsel, there were clear guidelines for determining the appropriateness of

detention, the judicial officer was required to include written findings of fact and

conclusions of law and the Act provided for immediate appellate review.155

On one hand, the majority's analysis indicated a higher level of judicial

review and scrutiny than that in the B e ll case. Recognizing the fundamental nature

of the right to physical liberty, the Court's reference to "compelling interests" and

"narrowly tailored" provisions suggested a move toward a strict scrutiny analysis.

Thus, the decision arguably provided tighter protections for detainee rights than in

prior involuntary cases, requiring that any infringement on physical liberty requires

extensive safeguards and a compelling reason. As David Cole points out, Salerno

implied that "civil detention may be imposed only where there has been at a minimum an individualized showing of necessity for detention in a fair adversarial proceeding."156

151 Ibid 749-51. 152 Ibid 750. 153 Ibid 751. 154 Ibid 751-52. 155 Ibid 751-52. The Court further held that the Bail Reform Act did not violate the Excessive Bail Clause of the Eighth Amendment. The Court reasoned that the Eighth Amendment merely requires that "excessive bail shall not be required," and says nothing about whether bail should be available at all. Ibid 752-74. 156 David Cole, "In Aid of Removal: Due Process Limits on ," (Summer 2002), 51 Emory L J 1003,1011.

-36- Yet, on the other hand, the Court's decision marked an expansion of regulatory detention, an "entering wedge" as one commentator put it,157 to broader schemes of preventative detention to "protect community safety." The majority entirely ignored that, as a historical matter, pretrial detention has only been permissible for court administration purposes: to secure a defendant's presence at trial and, in certain cases, to ensure the safety of witnesses. Protecting community safety, on the other hand, cannot simply be characterized exclusively as a regulatory goal, as protecting the community is also an important purpose of detaining convicted criminals. Indeed, taking the majority's reasoning to its logical conclusion has frightening implications. As Justice Marshall (with whom Justice Brennan joined) pointed out in dissent, if an indictment alone is a sufficient justification to detain a presumptively innocent person upon a showing of dangerousness, a person could be detained even after an acquittal of all charges.158 Such an outcome, he concluded, would be constitutionally impermissible "for that would allow the

Government to imprison someone for uncommitted crimes based upon 'proof' not beyond a reasonable doubt."159 Yet by upholding the legislative scheme, the majority's decision calls these basic principles into doubt, leaving open whether preventative detention may be constitutionally permissible where the defendant has not been charged with a crime at all.

Justice Stevens, in his dissenting opinion, agreed that a pending indictment is an illogical and inadequate basis for detaining a person based on dangerousness, but wrote separately to note that preventative detention may be justified under other circumstances such as times of imminent threat or crisis.160 He explained that "[i]f the

157 See Michael Louis Corrado, "Sex Offenders, Unlawful Combatants, and Preventative Detention," (December 2005) 84 NC L Rev 77, 82 (describing Salerno as the "opening move" and or "entering wedge" to preventative detention of terrorists (quoting an 1807 Congressional statement by Representative Randolph objecting to a bill by President Jefferson suspending habeas corpus for three months)). 158 Salerno v United States, 81 US at 763-65 (Marshall, Brennan JJ, dissenting). 159 Ibid 763-65 (Marshall, Brennan JJ, dissenting). 160 Ibid 767-68 (Stevens J, dissenting).

-37- evidence of imminent danger is strong enough to warrant emergency detention, it should support that preventive measure regardless of whether the person has been charged, convicted, or acquitted of some other offence."161 Thus, while Justice

Stevens did not believe that detention based on dangerousness was appropriate in the context of pretrial detention, he found no categorical bar to such measures either.

Despite the broad implications of the Salerno decision for the expansion of the government's authority to detain for preventative purposes, more recent decisions have struck down preventative detention schemes as violative of due process, thus suggesting certain limits on the government's authority to detain. Perhaps most significantly, the Supreme Court in Foucha v Louisiana162 held that a Louisiana civil commitment statute authorizing detention based solely on dangerousness violated due process. Specifically, the Louisiana statute had authorised die continued and indefinite preventative detention of a person who had been found not guilty by reason of insanity, but after treatment had recovered from a mental illness.163 The basis for the detention was that the acquittee was still considered to be dangerous to the community even though he or she was no longer mentally ill.164 The Court held that statute violated due process, finding that the government had failed to set forth a compelling reason for the confinement of a person who is no longer mentally ill, but still may be dangerous. The Court reasoned that "the Constitution permits the

Government, on the basis of the insanity judgment, to confine [a person] to a mental institution until such time as he has regained his sanity or is no longer a danger to himself or society."165 Given the Court's previous holding that due process barred

161 Ibid 768 (Stevens J, dissenting). 162 Foucha v Louisiana, 504 US 71 (1992). 163 Ibid 74-76. 164 Ibid. 165 Ibid 71 (quoting Jones v United States, 463 US 354, 368 (1983)). In Jones, the Court held that a defendant who had been found not guilty by reason of insanity may be civil committed to a mental institution without satisfying the traditional requirements of mental illness and dangerousness. Jones v United States, 463 US at 363-68. The Court found that the verdict established two facts: 1) that the defendant committed an act that constituted a criminal offense, and 2) he committed the act because of the mental illness. Ibid 365-66. From

-38- the government from committing a person who is mentally ill but not dangerous,166 the Foucha Court concluded the government likewise lacks authority to commit a person who is sane but still dangerous.

Significantly, the Court's reasoning centred on the fact that the Louisiana scheme authorised commitment based on dangerousness alone. Such a system of detention, the majority concluded, entirely "undermine[s] the constitutional protections of the traditional criminal justice process."167 The Court made clear that to allow the indefinite detention of persons who were dangerous and merely antisocial, "would only be one step away from substituting confinements for dangerousness for our present system, which with only narrow exceptions and aside from permissible confinements for mental illness, incarcerates only those who are proved beyond reasonable doubt to have violated a criminal law."168 Moreover, the

Court pointed out that if the State believed that Foucha was dangerous because of unlawful behaviour in his commitment facility, the government was well within its power to bring charges against him under the ordinary criminal processes.169

However, given that Foucha was acquitted on the criminal charges, the majority found that there was no basis for his continued detention. The Court concluded,

"[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception."170

The Court distinguished Salerno on the grounds that detention in that case was confined to pretrial detention — a case in which the Court found the

"government's interest in preventing crime by arrestees [wa]s both legitimate and

these two facts, the Court held, it could be inferred that the defendant was still mentally ill and dangerous. Ibid. 166 In O'Connor v Donaldson, 422 US 563 (1975), the Court held that the confinement of a nondangerous mentally ill person was unconstitutional because the State failed to show that it had a legitimate interest to justify confinement. 167 Ibid 82-83. 168 Ibid 83. 169 Ibid 82. 170 Ibid 83.

-39- compelling."171 The Court focused on the lack of safeguards in the Louisiana detention scheme compared to that in Salerno, pointing out that, unlike the Bail

Reform Act in Salerno, the Louisiana statute was not narrowed to certain "serious" crimes or circumstances, nor did it provide for a "full-blown" evidentiary hearing to determine whether detention was appropriate.172 Moreover, the Court pointed out that the Bail Reform Act provided for detention that was strictly limited in duration, whereas detention under the Louisiana statute contained no similar time constraints.173 While the Court did not say that the statute would have been upheld if it provided more adequate safeguards, the Court's reasoning made clear that safeguards were a critical element in assessing a detention law's compliance with due process.174

Interestingly, the dissenting justices did not disagree with the majority's premise that the government lacked authority to detain administratively an acquitted defendant based solely on dangerousness.175 Rather they disputed the majority's assumption that a defendant who has been adjudicated "not guilty by reason of insanity" has the same rights to be free from physical constraint as an individual acquitted on the merits.176 Justice Kennedy acknowledged that the Court has applied "heightened due process scrutiny, with regard to both purpose and duration [to] deprivations of physical liberty imposed before judgment is

171 Ibid 81. 172 Ibid 81. 173 Ibid. 174 Ibid. Three of the justices (Blackmun, Stevens, Souter JJ) also held that the Louisiana scheme also violated the Equal Protection Clause because it treated insanity acquittees differently than other classes of persons who have committed criminal acts and who cannot prove later that they would not be dangerous. Ibid 84-86. The Court noted that state law does not allow for the continuing confinement based merely on dangerousness, but rather controls the behaviour of such similarly situated persons by relying on other means, such as punishment, deterrence, and supervised release. Ibid 85-86. Because freedom from physical restraint is a fundamental right, the three justices reasoned that a State must have a particularly convincing reason for discriminating against insanity acquitees who are no longer mentally ill. Ibid. The government, however, failed to offer any such justification. Ibid. 175 See ibid 90-102 (Kennedy J, dissenting); ibid 102-26 (Thomas, Scalia JJ, dissenting). 176 Ibid 98-99 (Kennedy J, dissenting); 102-125 (Thomas, Scalia JJ, dissenting).

-4 0 - rendered/'177 Yet, he concluded that the higher standard of due process does not attach to a person who has been found to have committed an unlawful act — even if that act is excused because of a mental impairment.178 He explained that "the establishment of a criminal act and of insanity under the M'Naughten regime provides a legitimate basis for confinement," and thus, the state retains its interest in incapacitative incarceration.179 Likewise, Justices Thomas and Scalia held that insanity acquittees constituted a special class of individuals who are distinct from other candidates for civil commitment.180

The Court's later decision in Kansas v Hendricks181 expanded the scope of the government's civil commitment authority, but did not change the central holding in

Foucha. In that case, the Court addressed the constitutionality of the Kansas Sexual

Predator Act which authorised the detention of sexual predators upon a showing of a "mental abnormality" or "personality disorder."182 Hendricks had been convicted on multiple occasions of sexually assaulting children, and had admitted that he had repeatedly abused children when he was not confined.183 The court had ordered

Hendricks civilly confined under the Act, finding that pedophilia qualified as a

"mental abnormality."184

The petitioners argued that the Act violated due process because it authorised the detention based on something less than proof of a "mental illness" as required in

177 Ibid 93 (Kennedy J, dissenting). 178 Ibid 98-99 (Kennedy J, dissenting). 179 Ibid 98 (Kennedy J, dissenting). 180 Ibid, at 109-10 (Scalia, Thomas JJ, dissenting). 181 Kansas v Hendricks, 521 US 346, 358 (1997). 182 Ibid 350-52. The Act defined "sexually violent predators" as "any persons who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence." Kan. Stat. Ann. § 59-29a02(a) &(b) (1994). The Act further included several procedural safeguards including time limits for review, and a hearing before a jury to determine whether "beyond a reasonable doubt" the individual was a sexually violent predator. Ibid. §§ 59-29a03; 59-29a07 et seq. 183 Ibid 355. 184 Ibid 355-56.

-41 - Foucha.185 In a 5-4 decision, the majority affirmed Foucha's holding that dangerousness "is ordinarily not a sufficient ground upon which to justify indefinite involuntary detention," but found that the definition of "personality disorder" and

"mental abnormality" still constituted a "mental illness" as required in Foucha.186 The

Court reasoned that as with other mental illnesses, a "personality disorder" and

"mental abnormality" involve the impairment of an individual's ability to control his or her dangerousness, and thus adequately distinguished Hendricks from other dangerous persons who were "perhaps more properly dealt with exclusively through criminal proceedings."187 Thus, while the Hendricks case somewhat expanded the definition of a "mental illness," the Court made clear that it would not uphold involuntary civil confinement based on dangerousness alone.188

Another recent decision which set forth significant limits on the executive's preventative detention authority is Zadvydas v Davis.189 In Zadvydas, the Court held that, under due process, a statute authorizing detention of removable aliens must be construed to require release after six months if removal is no longer reasonably foreseeable.190 The petitioners in that case, Kestutis Zadvydas and Kim Ho Ma, had been denied entry into the United States, but INS officials were unable to deport them to another country, and thus they remained in immigration detention

188 Ibid 358-59. 186 Ibid 358-60. 187 Ibid 360, see also ibid 369 (stating that "the term "mental illness" is devoid of any talismanic significance," and noting that both medical practitioners and the Court have used other terms to describe the mental condition of those properly subject to civil confinement). 188 Ibid 372 (Kennedy J,concurring). Justice Kennedy wrote separately to "caution against the dangers inherent when a civil confinement law is used inconjunction with the criminal process." Ibid 371. Justice Kennedy noted that psychiatrists or other professionals in treating pedophelia may be reluctant to find success in treatment and may be unable to predict that no serious danger will come from release of detainee. Without a reliable prediction, detention would almost always be a life sentence. Thus, he concluded that "if .. . civil confinement were to become a mechanism for retribution or general deterrence, or if it were shown that mental abnormality is too imprecise a category to offer a solid basis for concluding that civil detention is justified, our precedents would not suffice to validate it." Ibid 373. 189 Zadvydas v Davis, 533 US 678 (2001) 190 Ibid 690-702

-42- indefinitely. Zadvydas had been bom of Lithuanian parents in a displaced persons

camp in Germany in 1948 and had immigrated to the United States when he was

eight years old. He had a long criminal record, involving drug crimes, attempted

robbery, burglary, and also had a history of theft. The government attempted to

deport him to Germany and the Dominican Republic (Zadvydas7 wife's country), but

neither effort was successful.191

Kim Ho Ma had a similar history. Bom in Cambodia, Ma was two years old

when his family fled the country, living in camps until moving to the United

States where he lived as a resident alien until he was seven. At age 17, Ma was

involved in a gang-related shooting and was convicted of an "aggravated felony,"

and was subsequently ordered to be removed. The INS, however, failed to find any

country which would accept him.192

Both petitioners argued that because the detention's goal was no longer

attainable, their detention no longer bore a reasonable relationship to the purpose for

which they were committed and thus, violated due process. In a 5-4 decision, a close

majority of the Court agreed, concluding that a statute authorizing indefinite

immigration detention would raise a "serious constitutional problem."193 Thus, the

Court held, the statute must be read to require release from immigration detention if

removal is no longer reasonably foreseeable.

In so holding, the Court set forth a framework for analysing regulatory

detention which made clear that detention is not automatically permissible simply

because it can be labelled "non-punitive." Declaring that the freedom from

imprisonment "lies at the heart of the liberty that [the Due Process] Clause protects,"

the Court suggested that regulatory detention presumptively violates due process

except in special narrow circumstances: "[Government detention violates [the Due

Process Clause] unless the detention is ordered in a criminal proceeding with *

191 Ibid 684. 192 Ibid 686-87. 193 Ibid 690.

-43- adequate procedural protections ... or, in certain special and "narrow" non-punitive

circumstances, where a special justification, such as a harm-threatening mental

illness, outweighs die 'individual's constitutionally protected interest in avoiding

physical restraint/"194

This analysis marked a change from the Court's analysis in cases like Bell and

Salerno. Rather than engaging in an analysis as to whether the detention was

punitive or non-punitive, the Court assumed that immigration detention was a

"non-punitive" form of detention.195 Nevertheless, the inquiry did not end there.

Under the Court's analysis, even non-punitive regulatory detention requires a

"special justification" which "outweighs 'the individual's constitutionally protected

interest in avoiding physical restraint.'"196

The Court found that in die instant case, "no sufficiently strong special

justification" existed for the indefinite detention of inadmissible aliens.197 The Court

reasoned that the statute's first purported goal, "ensuring appearance at future

immigration proceedings," was weak or non existent where removal is a remote

possibility.198 The Court further found that indefinite detention was not justified by

the second statutory goal: "[preventing danger to the community."199 The Court

noted that in those cases in which it has upheld preventative detention, it had

demanded that a dangerousness purpose be accompanied by some other "special

circumstance," such as mental illness or the like.200 In the present case, the Court

found that the only special circumstance was the alien's status, which "bears no

relation to a detainee's dangerousness."201 Accordingly, the Court held that due process requires that the statute be construed to include an implicit limitation on an

194 Ibid 690 (citing Salerno, Foucha, and Hendricks). ]95 Ibid. 196 Ibid (quoting Kansas v Hendricks, 521 US at 356)). 197 Ibid. 198 Ibid. 199 Ibid. 200 Ibid 690-91 (citing Hendricks, Salerno, and Foucha). 201 Ibid.

-44- alien's post-removal-period detention to a "period reasonably necessary to bring about that alien's removal from the United States."202

Again, the Court was careful to narrow the scope of its holding. Decided just months before the terrorist attacks of September 11, the Court's opinion made several prescient remarks in dicta distinguishing the statute at issue from one that may relate to the detention of terrorists. The Court noted that the provision authorizing detention was deficient in that it did not apply to "'a small segment of particularly dangerous individuals/ . . . say suspected terrorists, but broadly to aliens ordered removed for many and various reasons, including tourists visa violations."203 Later in its decision, the Court similarly noted that the decision did not require the Court to "consider terrorism or other special circumstances where special arguments might be made for forms of preventative detention and for heightened deference to the judgments of the political branches with respect to matters of ."204 Thus, the Court explicitly made clear that legislation which was more narrowly focused and addressed more compelling foreign policy issues may be treated differently.

202 Ibid 701-02. The dissenting justices argued that the petitioners in Zadvydas are in the same position as the petitioner in Shaughnessy v United States, 345 US 206 (1953). In Shaughnessy, petitioner Ignatz Mezei, a non-citizen was being held indefinitely at Ellis Island because he could not establish his national origin with certainty and thus, other nations would not take him. However, Menzei had been excluded at the border where as the petitioners in Zadvydas had entered the United States - a distinction which the Court has recognised in other cases to be critical in analysing the due process rights of aliens. Non­ citizens at the border seek the privilege of entry and have few rights while those who have entered the country have in theory acquired the right to be in the United States and may have established ties. See Landon v Plasencia, 459 US 21, 25-27 (1982); Leng May Ma v Barber, 357 US 185, 187 (1958) ("[Ojur immigration laws have long made the distinction between those aliens who have come to our shores seeking admission . . . and those who are within the United States after an entry, irrespective of its legality."). As the dissenting justices point out, the practical effect of the distinction often defies logic, affording heightened due process rights to tho aliens who may have managed to cross the border illegally than those who try to enter the country legally but are rejected at the border. 203 Ibid 691. 204 Ibid 695-96.

-45- In sum, the Supreme Court's earlier decisions reviewed preventative

detention under a rational basis standard, upholding detention as long as it related

to a non-punitive purpose. However, in more recent cases, the Court has adopted a

standard which looks more like strict scrutiny. Under these later cases, preventative

detention law must be confined to a narrow category of persons, must serve a

compelling government interest which outweighs the individual right to liberty and

must incorporate certain procedural safeguards. These safeguards include, at the

very least, the right to an individualized hearing on detention in a full adversarial

process.

In many ways, the Court's balancing approach provides strong protections of

individual rights. It allows the Court to go beyond subjective characterizations

regarding the nature of the detention, and examine both the proportionality of the

intrusion on individual rights to the government's interests as well as the adequacy

of procedural safeguards. Thus, consistent with the Courts' analysis in other

fundamental rights cases, the deprivation of physical freedom is examined by courts

with close scrutiny to ensure that individual rights are adequately protected.

At the same time, however, a pure interest balancing approach weakens

individual protections from preventative detention. Individual rights once thought

to be sacrosanct and protected by the criminal justice system are to be balanced away

in favour of "compelling" government interests. Protecting the safety of community

is always a compelling government interest. Thus, the Court has left open the possibility that the government may circumvent the strong protections of the US

criminal justice system with preventative detention laws as long as such laws are narrowly focused on a small category of individuals and incorporate certain safeguards and procedures.

Certainly narrow laws and procedural safeguards are important, however even a panoply of procedural protections will not suffice where the government seeks to use administrative measures as a substitute for criminal justice. In order for the due process protections of the criminal justice system to have any meaning, the

-4 6 - government's power to detain for community safety purposes must be limited to the criminal process. As Albert Alschuler put it, "preventative detention requires something more — some additional predicate for a deprivation of liberty."205 The

Court in Zadvydas and Foucha acknowledged so much by requiring that the detention must be justified by the presence of some additional factor or "special justification."

A special justification cannot simply be that the particular group of individuals targeted by a preventative detention law are extremely dangerous or are likely to commit a crime. To hold otherwise would undermine the principles and protections of the criminal justice system which the Court has held to be protected under the

Due Process Clauses.

B. Australia: Separation of Judicial Power as a Limit on Preventative Detention.

Australian courts, like US courts, have recognised that the right to personal liberty is "'the most elementary and important of all common law rights," the deprivation of which is a "grave step."206 However, as explained in Chapter One, unlike the US Constitution, the Commonwealth Constitution provides few express guarantees of "due process" or other similar rights for individuals detained involuntarily by government authorities. As Justices Dixon and Evatt stated: "To establish personal liberty by constitutional restrictions upon the exercise of

205 Albert W. Alschuler, "Preventative Pretrial Detention and the Failure of Interest- Balancing Approaches to Due Process," (December 1986) 85 Mich L Rev 510, 533. 2°6 Mimia v A l Khafaji, 219 CLR 664, 678 (Callinan J) ("The right to personal liberty is . .. 'the most elementary and important of all common law rights'. Personal liberty was held by Blackstone to be an absolute right vested in the individual by the immutable laws of nature and had never been abridged by the laws of England 'without sufficient cause.' (citations omitted); see also Fardon v Attorney-General (Queensland) (2004) 223 CLR 575, 632 (Kirby J, dissenting) ("In Australian law, personal liberty has always been regarded as the most fundamental of rights. Self-evidently, liberty is not an absolute right. However to deprive a person of liberty, where that person is otherwise entitled to it, is a grave step." (footnotes omitted)).

-47- governmental power was not a guiding purpose in framing the Australian instrument, which in this respect departs widely from its American model."207

Nevertheless, the High Court has recognised that the implied separation of judicial power limits the government's authority to detain individuals outside the criminal justice process. In many ways, these principles mirror those recognised by the Supreme Court in the Due Process Clauses, yet the analysis is framed in slightly different terms. Under the High Court's framework, a preventative detention law may violate separation of powers principles in two ways. First, a law which authorises the executive to preventatively detain individuals may be a "usurpation of judicial power" and thus violate principles of separation of powers. Second, a law which authorises the court or judicial officer to issue a preventative detention order may also be unconstitutional in that it requires the judiciary to exercise power that is not judicial in nature, or is otherwise inconsistent or incompatible with the function of judicial powers.

1. Executive Detention and Usurpation of Judicial Power

As explained in Chapter One, the High Court has held that separation of powers principles require that Parliament may not "usurp" the power of the judiciary and authorise the executive branch to exercise powers which are "judicial" in nature and therefore reserved for the courts under Chapter III of the

Constitution.208 In Chu Kheng Lim v Minister for Immigration, the Court first applied this principle to find a general constitutional prohibition on executive detention.209 In a joint judgment, Justices Brennan, Deane, and Dawson stated that, aside from

207 R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556, 580 (Dixon, Evatt JJ) (The Commonwealth Constitution contains no guarantee against deprivation of life, liberty or property without due process of law, like the fifth and fourteenth amendments of the United States Constitution. To establish personal liberty by constitutional restrictions upon the exercise of governmental power was not a guiding purpose in framing the Australian instrument, which in this respect departs widely from its American model.") 208 R v Kirby; Ex parte Boilermakers' Society of Australia (Boilermakers' Case) (1956) 94 CLR 254; New South Wales v Commonwealth (Wheat Case) (1915) 20 CLR 54. 209 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1.

-48- certain narrow exceptions, the "power to order that a citizen be involuntarily

confined in custody is . . . entrusted exclusively to Ch. Ill courts."210 They reasoned

that

[p]utting to one side the exceptional cases..., involuntary detention of

a citizen in custody by the State is penal or punitive in character and,

under our system of government, exists only as an incident of the

exclusively judicial function of adjudging and punishing criminal

guilt.211

On this basis, the three justices declared that, subject to certain narrow exceptions,

citizens enjoy a "constitutional immunity" from imprisonment by Commonwealth

authority except pursuant to an order by a court in the exercise of the judicial power

of the Commonwealth."212

The exceptions the justices referred to include the following: certain forms of

"non-punitive detention" including pretrial detention and civil commitment of the

mentally ill, quarantine of those with infectious disease; as well as the traditional

powers of Parliament to punish for contempt and of military tribunals and the

power to punish for breach of military discipline.213 The justices expressly left open

210 Ibid 27. 211 Ibid. 212 Ibid 28. As support for their reasoning, the justices cited Blackstone declaring that

[ejvery citizen is 'ruled by the law, and by the law alone' and 'may with us be punished for a breach of the law, but he can be punished for nothing else' [AV Dicey, Introduction to the Study of Law of the Constitution, Macmillan, 10th ed 1959, at 2020]. As Blackstone wrote, relying on the authority of Coke, 'The confinement of the person, in any wise, is an imprisonment. So that the keeping [of] a man against his will . . . is an imprisonment . . . To make imprisonment lawful, it must either be by process from the courts of judicature, or by warrant from some legal officer having authority to commit to prison; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of commitment, in order to be examined into (if necessary) upon a habeas corpus.'

Ibid 27-28. 213 Ibid 28-29.

-49- "whether the defence power in times of war will support an executive power to make detention orders."214 While the justices noted that the list of categories was not exhaustive, they indicated that legislation authorizing regulatory detention would be subject to close scrutiny. They firmly cautioned that that the legislature could not cloak a law authorizing arbitrary executive detention with some purportedly legitimate, "non-punitive" purpose so as to render it constitutional: "[T]he

Constitution's concern is with substance and not mere form. It would, for example, be beyond the legislative power of the Parliament to invest the Executive with an arbitrary power to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt..." 215

Their Honours further opined that a regulatory detention law must be tailored to "what is reasonably capable of being said necessary" for the "non- punitive" purpose, thus suggesting that the law must be proportional and narrowly tailored to the government's regulatory purpose.216 They stated that if the law is not so tailored, it "will be of a punitive nature and contravene Chapter Ill's insistence that the judicial power of the Commonwealth be vested exclusively in the courts which it designates."217 Justice McHugh, in a separate opinion, similarly stated that

"[i]f a law authorizing detention of an alien went beyond what was reasonably necessary to effect the deportation of that person, the law might be invalid because it infringed Ch. Ill of the Constitution."218

Ultimately, the majority held that the detention scheme challenged in Lim was not punitive. Plaintiffs had challenged certain amendments to the Migration Act

(1958) (Cth) which required mandatory detention for certain "designated" non­ citizens. The majority upheld the validity of the detention provisions finding that

Ibid. Ibid 27. Ibid 33. Ibid. Ibid 65-66 (McHugh J)

-50- they did violate Chapter III because detention of removable aliens has been historically recognised as permissible for the "non-punitive" purpose of expulsion and deportation.219 Justices Brennan, Deane, and Dawson explained that the provisions were sufficiently tailored to this non-punitive purpose, and that the detention was limited in time and contained sufficient procedural safeguards to ensure that an alien was removed "as soon as practicable" and was not detained beyond the time necessary for deportation.220 The majority, however, did invalidate a provision of the Act which precluded judicial review of the determination, holding that the Court's constitutional authority to review the detention determinations of the executive could not be abrogated by legislation.221

While the Court ultimately upheld the mandatory detention scheme, the decision set forth broad constitutional limits on executive detention. The Court7s rule looked similar, if not stronger, than the standard set forth by the US Supreme Court in Zadyvydas. The High Court held that, as a general rule, detention must only be imposed pursuant to the criminal process, except in certain narrow and well- established circumstances. Moreover, even if detention fell within one of the "non- punitive" exceptions, the joint decision made clear that the measures were not to be excessive and must be narrowly tailored to the specified "non-punitive" purpose. In short, the High Court in Lim suggested that proportionality and procedural due process were significant considerations in determining whether an executive detention law comported with the Commonwealth Constitution.

Nevertheless, recent majority decisions by the High Court have dismantled the Lim opinion, dismissing its rule of constitutional immunity from detention outside the criminal process. As a result, the limits on executive detention have been

219 Ibid 35-39 (Brennan, Deane, Dawson JJ); ibid 59 (Gaudron J) 220 Ibid 33 (Brennan, Deane, Dawson JJ) (analysng the safeguards in the laws at issue and finding that such safeguards "go a long way towards ensuring that detention under those powers is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or to enable an entry application to be made and considered." (emphasis added)). 221 Ibid 35-38 (Brennan, Deane, Dawson JJ); ibid 58 (Gaudron J); ibid 76 (McHugh J).

-51- substantially broadened. Just five years after Lim, the Court expanded die list of exceptions and held in Kruger v Commonwealth that a law enacted for the "welfare of the community" does not violate Chapter III. 222 In that case, the High Court addressed the constitutionality of the Aboriginals Ordinance 1918 (NT), a law which authorised the government effectively to detain aborginees or "half-caste" persons either by restricting them to their communities or forcibly moving them into other communities. The Plaintiffs in Kruger were Aboriginees who had either been removed by the government from their families or had children who had been taken away. These children are now known as the "stolen generation." They sued the

Commonwealth contending, among other things, that the government's actions were unlawful because they authorised indefinite detention and institutionalization which was punitive in nature and therefore in breach of the separation of Chapter III power.

A majority of the justices rejected the plaintiffs' Chapter III arguments, concluding that the measures were not punitive in character, given that they were enacted for the purpose of the "welfare" and "protection" of the Aboriginal community.223 Justice Toohey, in particular, reasoned that the bar against executive detention set forth in Lim was not absolute, but rather was subject to qualification.

He characterized the provisions as "non-punitive" because the language and legislative history of the statute charged the "Chief Protector" as legal guardian of the Aboriginals and empowered him to assume responsibility of the welfare of the community.224 Thus, he explained, even though the purported "non-punitive" purpose of the detention fell outside the traditionally acceptable categories of detention set forth in Lim, Chapter III was not violated because the legislature had

222 Kruger v Commonwealth (1997) 190 CLR 1. 223 Chief Justice Brennan and Justice Dawson held that Chapter III had no application in the Northern Territory, the jurisdiction in which the violated was alleged to have taken place. Ibid 9-18 (Brennan CJ), 49-59 (Dawson J). 224 Ibid 84-85 (citing section 6(1) of the Ordinance which empowered the Chief Protector "to undertake the care, custody, or control of any Aboriginal or half-caste, if, in the opinion, it is necessary or desirable in the interests of the Aboriginal or half-caste for him to do so.").

-52- declared the measures to be enacted for the "welfare" of the community. Justices

Gummow, Dawson, and McHugh upheld the statute on similar grounds.225

The majority's analysis was extremely deferential to the legislature. The

justices relied entirely on the language of the legislation and failed to inquire

whether the measures were excessive or reasonably capable of being seen necessary

for the purported legislative purpose. Any such inquiry, they argued, would infringe

upon the doctrine of parliamentary sovereignty. Justice Dawson, in particular, took

care to note that the Australian Constitution, unlike its American counterpart, does

not aim to protect personal liberty by placing restrictions on the exercise of

government power, and thus does not contain any general guarantee of the due

process of law.226 Rather, the framers of the Australian Constitution elected to protect

individual rights through the electoral process.227 Accordingly, he concluded, it was

not the judiciary's place to imply individual rights in the Commonwealth

Constitution which were deliberately left out by the Framers.228

Justice Toohey carefully limited the opinion to its facts and historical setting,

stating that the legislation must be judged by the values and standards which

prevailed at the time the ordinance was passed. Nonetheless, the implications of the

majority's reasoning are ominous for an individual's protection from government

detention. The Court, in effect, declared itself to be powerless to protect individual

rights from being trampled by the majority. If executive detention is permissible for

the "welfare of the community," it is difficult to imagine how any detention scheme would infringe on Chapter III protections as long as it was purportedly passed in the interests of community welfare.

Justice Gaudron found even fewer protections from executive detention in

Chapter III than her colleagues, declaring that the legislature's power to authorise

225 Ibid 162-63 (Gummow J); ibid 61-62 (Dawson J); ibid 141-42 (McHugh J agreeing with Dawson J). 225 Ibid 61 (Dawson J). 227 Ibid. 228 Ibid.

-53- executive detention was not limited by Chapter III at all.229 She reasoned that the

existence of so many acknowledged exceptions to the immunity, none of which she

asserted were precise or confined, "tells against the implication of a constitutional

rule that involuntary detention can only be ordered by a court/'230 Rather, she

submitted, the restrictions on the legislature's power to detain arise solely from the

limitation of grants of powers to Parliament in section 51 of the Constitution.231

Justice Gaudon's analysis flies in the face of a long line of precedent

establishing Chapter III as a limit on legislative power. Certainly, section 51 limits

Parliament's powers to certain subject areas, however the Court has acknowledged

as far back as The Wheat Case in 1915 that those enumerated powers are further

limited by and subject to other provisions in the Constitution, including Chapter III.

Her assertion that section 51 secures a similar degree of immunity from executive

detention is weak, given the Court's broad interpretation of the heads of power.232 As

Justice Gummow pointed out in a later case, "it could not be seriously be doubted

that a law providing for the administrative detention of bankrupts in order to protect

the community would be a law with respect to bankruptcy and insolvency (s

51(xvii))."233 If such a law lacks validity, he argued, it is not because it lacks a

connection to a head of power under s 51, but rather because of a limitation required by Chapter III.234

Other members of the High Court have not whole-heartedly embraced Justice

Gaudron's analysis, but several justices have drawn on her opinion to define non- punitive detention in terms of its connection to the grants of power under section 51, thus narrowing the application of Chapter III to a point where it has little impact or

229 Ibid 111 (Gaudron J). 230 Ibid. 231 Ibid. 232 See generally Blackshield & Williams, above n 54, 773-810 (describing section 51 powers as broad and outlining the courts' jurisprudence on the connection a law must have with a section 51 head of power). 233 Al-Kateb v Godwin (2004) 219 CLR 562, 611 (Gummow J). 234 Ibid.

-54- effect on the executive's power to detain. The Court's deference to legislative judgment on the nature of administrative detention was made clear in Al~Kateb v

Godwin,235 a case in which the Court addressed the same issue as examined by the US

Supreme Court in Zadvydas v Davis: whether indefinite immigration detention was punitive, and therefore unconstitutional, where the detained alien is "stateless" and has no prospect of being admitted to or removed from the country in the reasonably foreseeable future. Like the petitioners in Zadvydas, Al-Kateb had been taken into immigration detention and under the relevant Act, and was to remain in detention until he was granted a visa, deported, or otherwise removed from Australia.236 His visa application was rejected and, as a "stateless" person, the government was unable to deport him, at least anytime in the foreseeable future.237 Thus, Al-Kateb petitioned for release, arguing that his seemingly indefinite detention by the executive was punitive and therefore violated the separation of judicial power in

Chapter III.

Yet, unlike the US Supreme Court, which held that indefinite immigration detention conflicted with constitutional due process, a majority of the High Court justices found no constitutional obstacle to indefinite immigration detention. In a 4-3 decision, Justices McHugh, Hayne, Callinan, and Heydon held that the detention of aliens continued to serve a "non-punitive" purpose even where the detainee had no reasonable prospect in the foreseeable future of being deported. While the justices failed to agree on any one principled analysis, all of the opinions essentially defined non-punitive detention as one which fell within the heads of power.

Justice Hayne drew on Justice Gaudron's analysis in Kruger, concluding that the purposes of the detention scheme "must be gleaned from the content of the

235 Al-Kateb v Godwin (2004) 219 CLR 562. 236 Ibid 563; The trial court was not satisfied that the government was taking all reasonable steps to secure removal of the appellant from Australia, but found that "removal from Australia is not reasonably practicable at the present time as there is no real likelihood or prospect of removal in the reasonably foreseeable future." Ibid. That finding was not challenged on appeal. See ibid 631. 237 Ibid.

-55- heads of power which support the law/'238 Thus, he concluded, the line between punitive and non-punitive detention should turn upon "the connection between such detention and the relevant head of power, not upon the identification of detention as a step that can never be taken except in the exercise of judicial power."239

Justice Hayne's reasoning is entirely circular. Under his theory, the heads of power are subject to the limitations of Chapter III, but the limitations of Chapter III are to be defined by the purposes of the law, which are, in turn, to be "gleaned" from the heads of power. Thus, while he distinguished his opinion from that of Justice

Gaudron, the end result is the same: executive detention is permissible as long as it falls within a particular grant of power in section 51.

Justice Hayne did continue to examine whether the detention at issue could be categorized punishment, however his definition of punishment was similarly flawed. Citing Hart's treatise on punishment and responsibility, he opined that immigration detention is not punishment because it does not involve an offence against legal rules.240 But this narrow definition suggests that a law which imprisons an individual based on what that individual might do in the future rather than a past offence can never be punitive. Indeed, requiring the commission of a past offence means that purely arbitrary detention - that is, detention for no reason at all - would be constitutionally permissible. Of course, no judge would agree with such a conclusion, yet Justice Hayne's definition fails to account for these unlawful types of punishment.

Justices McHugh and Callinan likewise concluded that the "non-punitive" purpose of the Migration Act's mandatory detention provisions did not disappear when there was no longer any prospect of deportation or admission.241 They both pointed out that detention of aliens — even where it is indefinite — furthered the

238 Ibid 650-51 (Hayne J). 239 Ibid 648 (Hayne J) 240 Ibid 650 (Hayne J) (quoting Hart, Punishment and Responsibility (1968), 4-5). Justice Heydon agreed with the reasoning and conclusions of Justice Hayne. Ibid 662-63 (Heydon J). 241 Ibid 658 (Callinan J); ibid 584 (McHugh J).

-56- "non-punitive" purpose of prohibiting aliens from entering Australia.242 Again, this explanation significantly broadened the Court's earlier justification for the detention of aliens, which was based on the administration of deportation and admission applications. It leaves open the possibility that the government could detain indefinitely any individual who tries to enter Australia's territory. According to

Justice McHugh, however, this is a matter for the legislature, not the courts:

It is not for the courts, exercising federal jurisdiction to determine

whether the course taken by Parliament is unjust or contrary to basic

human rights. The function of the courts in this context is simply to

determine whether the law of the Parliament is within the powers

conferred on it by the Constitution.243

Thus, under Justice McHugh's reasoning, a law may infringe on the most fundamental and basic human rights, but it will not be held to be punitive as long as it relates to immigration and aliens.

In his dissent, Justice Gummow confirmed that Parliament's legislative authority to detain is not simply limited by section 51 as Justice Gaudron and others had asserted, but is also constrained by Chapter IIL Yet, he admitted that the punitive/non-punitive analysis under Chapter III was "apt to mislead."244 Quoting

Justices Brennan, Deane, Toohey, and Gaudron in Witham v Holloway, he explained there is often no clear line between purely punitive and purely non-punitive detention:

[NJothing is achieved by describing some proceedings as 'punitive'

and others as 'remedial or coercive.' Punishment is punishment

whether it is imposed in vindication or for remedial or coercive

purposes. And there can be no doubt that imprisonment and the

imposition of fines, the usual sanctions for contempt, constitute

242 Ibid 658 (Callinan J); Ibid H 584-85(McHugh J). 243 Ibid 5 95 (McHugh J). 244 Ibid 612 (Gummow J).

-57- punishment.245

Accordingly, he concluded that "[ojnce it is accepted that many forms of detention involve some non-punitive purpose, it follows that a punitive/non-punitive

distinction cannot be the basis upon which the Ch III limitations respecting

administrative detention are enlivened."246 Yet, Justice Gummow offered no

alternative analysis deciding that the appeal should be allowed on the basis of

statutory constructions, thus leaving the issue unresolved for future cases.247

The High Court7s deference to legislative judgment regarding the nature and characterization of a preventative detention scheme was made even more clear in two other immigration cases decided that same year. First, in Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs, the majority held that the conditions of detention would not alter the non-punitive nature of immigration detention.248 The majority's analysis in Behrooz stands in contrast with that of the Supreme Court's decision in Bell v Wolfish. In both cases, the courts were operating from a premise that no person shall be punished without adjudication of guilt. As discussed above, the Supreme Court in Bell applied this principle to review whether the conditions of detention were arbitrary or otherwise not rationally related to a legitimate government purpose.249 The Court found that jail administrators should be afforded deference, but the conditions and policies must not be extremely excessive.

In contrast, in Behrooz, the High Court took an even more narrow approach in defining the limits of Chapter III, holding that the conditions of detention were

245 Ibid 612-13 (Gummow J). 246 Ibid 612-13 (Gummow J). 247 In Fardon v Attorney-General for the State of Queensland, another recent decision discussed below, Chief Justice Gleeson noted that the existence of laws authorizing sentencing judges to impose continued or indefinite sentences to respond to an apprehension of danger to the community "makes it difficult to maintain a strict division between punitive and preventative detention." (2004) 223 CLR 575,592. 248 Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs 219 CLR 486. 249 Bell v Wolfish, 441 US 520 (1979).

-5 8 - entirely irrelevant to whether the purpose of the detention was punitive. Chief

Justice Gleeson stated that "there is no warrant for concluding that, if the conditions of detention are sufficiently harsh, there will come a point where the detention itself can be regarded as punitive."250 Thus, he concluded, "by definition, [the appellant] was in immigration detention. . . . The conditions at the detention centre could not alter the case."251 Justices McHugh, Gummow, Heydon, and Hayne likewise found that the conditions of the detention do not bear upon the legality of the detention under the constitution.252

Only Justice Kirby ruled that the Court should evaluate the specific conditions to determine whether they were sufficiently harsh to change the nature and character of the detention.253 In his dissent, Justice Kirby strongly objected to what he deemed to be a unilateral judgment by the executive regarding the nature of detention. Citing the Court's decision in the Communist Party Case, he stated: "the character of [detention] is not decided finally by the name that the Parliament adopts or the description which the Executive asserts. It is decided by courts of law applying legal standards to proved evidence."254

In Re Kit Woolley, the Court took a similar approach, finding that the age of the detainees was irrelevant to the legality of immigration detention.255 The appellants, four children of the Sakhi family, had challenged the constitutional validity of s 196 of the (Cth), arguing that the provision was inconsistent with Ch III of the Constitution as it was 'punitive' in character so far as it applied to children who lacked the capacity to request removal (and thereby end

250 Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs 219 CLR 486, 495 (Gleeson CJ). 251 Ibid 499-500 (Gleenson CJ). 252 Ibid 543 (Hayne J) ("The conditions under which a person is held at a detention centre are irrelevant to whether the detention from which the person escaped was 'immigration detention/"); ibid 506-07(McHugh, Gummow, Heydon JJ) 253 Ibid 525-32 (Kirby J). 254 Ibid 525-26 (Kirby J). 255 Re Kit Woolley, 2004 W L 2244198 (HCA), (2004) HCA 49.

-59- their detention) and should be afforded special status given their vulnerability.256

The children had been in detention for nearly three years since arriving in Australia with their parents in 2001.257

The High Court unanimously dismissed the appeal, holding that any special status that may be attributed to children did not transform non-punitive detention into punitive detention.258 Nor did the fact that some children may lack the capacity to request removal alter the nature of the detention. In that regard the justices stated that while some children in detention would lack the capacity to request removal, their parents or guardian could request removal and therefore end their detention.

In his opinion, Justice McHugh seized the opportunity to elaborate on the scope and operations of Chapter III on executive detention.259 Again, he rejected the broad prohibition on executive detention set forth in the joint judgment in Lim, stating that it went "too far."260 The proper analysis, he explained, "must depend on all of the circumstances of the case," yet he then proceeded to describe an inquiry which focused almost entirely on the subjective intent of parliament.261 He stated:

The most obvious example of a non-punitive law that authorizes

detention is one enacted solely for a protective purpose . . . Protective

laws . . . may also have some deterrent aspect which the legislature

intended. However, the law will not be characterized as punitive in

nature unless deterrence is one of the principle objects of the law and

the detention can be regarded as punishment to deter others.

Deterrence that is an intended consequence of an otherwise protective

Ibid, para 1-12 (Gleeson CJ). Ibid, para 1 (Gleeson CJ). See, eg, ibid. paral3-31 (Gleeson CJ). Ibid para 48-106 (McHugh J). Ibid para 57 (McHugh J). Ibid para 59 (McHugh J).

-60- law will not make the law punitive in nature unless the deterrent

aspect itself is intended to be punitive.262

This explanation is not only confusing, but unhelpful. Ultimately, under this standard, it is difficult to imagine how any regulatory detention law would fail to pass constitutional muster, absent an express statement by the legislature that the law is intended to be punitive.

Justice McHugh added to the confusion by further opining that, notwithstanding the statements in Lim to the contrary, tests such as whether the detention law is "reasonably necessary" or "reasonably capable of being seen as necessary" for the achievement of a non-punitive purpose "have no application when assessing whether a law infringes Ch. III."263 Thus, he concludes questions of proportionality do not arise in a Chapter III analysis. Yet, later in the opinion, he contradicts himself, admitting that considerations of "reasonable necessity" may be relevant (though not "decisive") in determining whether a particular detention law is punitive or not.264

Finally, in an even more recent decision, Vasiljkovic v Commonwealth,265 the

High Court held that the Extradition Act 1988 (Cth) did not violate the separation of powers by detaining individuals pending extradition. The plaintiff had argued that the Act infringed on Ch III powers because it authorised detention, but did not require the government to set forth a prima facie case against the person of the commission of the offences alleged by the State requesting extradition.266 The Court found that while extradition is a permissible exercise of executive power, and was simply another exception to the general rule, that detention is exclusively a judicial

262 Ibid para 61 (McHugh J). 263 Ibid para 78 (McHugh J). 264 Ibid para 86 (McHugh J). 265 Vasiljkovic v Commonwealth [2006] HCA 30 (3 August 2006). 266 Ibid, para 22 (Gleeson CJ), 69 (Hayne, Gummow JJ).

-61- function.267

In upholding the Act, Justices Gummow and Hayne emphasised that the process of extradition has a long history in the , and thus sits comfortably with those other well-established exceptions which date back as far as the adoption of the Constitution.268 They acknowledged that the Court has been divided regarding the proper analysis in examining detention cases, but, in any event, extradition falls within the exception under either approach.269 Thus, they concluded, detention for purposes of extradition "does not bypass the independent courts as envisaged by Ch IIL"270 Chief Justice Gleeson specifically noted that, unlike the US Constitution's express protections under the Fourth Amendment, there was nothing in the Commonwealth Constitution which would require die government to establish a prima facie case before detaining and extraditing a citizen.271

In sum, the once clear limits on the executive's power to detain set forth in

Lim are now blurred. Under the High Court's current analysis, the narrow exceptions to the Lint's principle of constitutional immunity have swallowed the rule, and executive detention seems presumptively permissible as long as it falls within the Constitution's grants of power to parliament. In the later cases, neither the conditions of the detention, age of the detainees, nor even the length of detention have been found relevant to the constitutional inquiry, even though these factors may have been considered under Lim's "reasonably capable of being seen necessary" test.272 Thus, while the principle that Chapter III operates as a limit on executive

267 Ibid, para 37 (Gleeson CJ) (noting that the list of exceptions set forth by the justices in K ruger included the process of extradition). 258 Ibid, para 108-10 (Hayne, Gummow JJ). Justice Heydon agreed with the analysis of Justices Gummow and Hayne, but reserved judgment on the materiality of judicial review to the legality of the detention. 269 Ibid. 270 Ibid, para 116 (Hayne, Gummow JJ). 271 Ibid, para 39 (Gleeson J). 272 See Arthur Glass, "Al-Kateb and Behrooz," (Paper presented at the 2005 Constitutional Law Conference, , 18 February 2005) 10-11 (noting that the Chu Kheng Lim "'reasonably capable of being seen necessary' test allows the Court to question whether

-62- power to detain has not been abandoned entirely, a majority of the High Court justices have favoured the far more deferential heads of power analysis under section 51 than Lint's doctrine of constitutional immunity.

Nevertheless, nearly all of the High Court's decisions relating to executive detention have related to the immigration power, a power which the Court has traditionally afforded great deference to Parliament in exercising. Moreover, in the

Court's most recent decision in Vasiljkovic, the justices' analysis suggested a movement back toward the principles of him, which recognises detention as permissible only in "exceptional" cases. It is likely that the Court may be less deferential in addressing preventative detention laws which are employed as a substitute for those criminal procedures central to Australia's criminal justice system. Indeed, as illustrated by the Kable case discussed below, the Court has been willing on at least one occasion to strike down preventative detention legislation which was determined to undermine the judicial process and criminal justice as a whole.

specific measures authorising administrative detention overreach themselves as disproportionate means to otherwise legitimate ends).

-63 - 2. Judicial Power to Detain and the Kable Doctrine.

The cases above address whether the legislature may invest the executive with authority to detain individuals without charge or a trial. A separate but related question is whether the legislature may invest the judicial branch with the authority to issue similar preventative detention orders. The Court made clear in the

Boilermaker's Case that federal courts cannot be invested with functions which are not in themselves part of the judicial power.273 Non-judicial powers may only be assigned to a federal judge in his or her personal capacity, as a persona designata, and in that case, only where the functions are not incompatible their status and independence or inconsistent with the exercise of judicial powers.274

It is well-established that courts exercise judicial power by the criminal trial process, which includes the sentencing of a defendant to detention after the defendant has been found guilty. But whether it is consistent with the definition and function of judicial power for a court to issue a preventative detention order that is divorced from any adjudication of guilt and based solely on dangerousness is far less clear. To date, the High Court has never addressed whether a federal court may issue a preventative detention order. The Court has, however, addressed whether a state court may authorise preventative detention.

The issue first arose in Kable v Director of Public Prosecutions,275 a case in which the High Court addressed the constitutionality of the Community Protection Act 1994

(NSW), a law which empowered the Supreme Court of New South Wales to make

"preventive detention orders." Specifically, section 5(1) of the Act set forth broad language authorizing a NSW court to order a person detained even though the person had not been found guilty of any crime.276 Under section 5(1), the Court could order that:

273 R v Kirby, Ex parte Boilermakers' Society of Australia (Boilermakers Case) (1956) 94 CLR 254. 274 See Hilton v Wells (1985) 157 CLR 57. 275 Kable v Director of Public Prosecutions (1996) 189 CLR 51. 276 Ibid 62-64 (Brennan CJ) (summarizing relevant provisions).

-64- a specified person be detained in prison for a specified period if it is

satisfied, on reasonable grounds: (a) that the person is more likely not

to commit a serious act of violence; and (b) that it is appropriate, for the

protection of a particular person or persons or the community in

general that the person be held in custody.277

While section 5(2) provided that a person could only be detained up to six months,

section 5(3) provided that more than one order could be entered against one

person.278 The Act stated that the proceedings were to be "civil proceedings" and the

rules of evidence applicable to such proceedings were to apply.279 However, further

provisions amended and broadened the scope of the admissibility of certain

evidence.280 While the Act was broadly written, section 3(3) was expressly limited in

its application only to one person, Gregory Wayne Kable, who had been convicted

for the manslaughter of his wife and, while in jail, had written letters threatening the

safety of his sister-in-law and children.281

In a 4-2 decision, the High Court held the Act to be unconstitutional, finding

that the Act assigned a function to the NSW Supreme Court that was "incompatible"

with the exercise of judicial functions under Chapter III.282 The Court reasoned that

277 Ibid. 278 Ibid. 279 Ibid. 280 See s 17(f)(3) of the Act which states: "Despite any Act or law to the contrary, the Court must receive in evidence any document or report of a kind referred to in subsection (1), or any copy of any such document or report, that is tendered to it in proceedings under this Act." Subsection (1) lists documents including medical records and reports, records of psychiatric in-patient service or prison, reports made to or by the Offenders Review Board; all police reports and records, and transcripts and any evidence tendered to the Mental Health Review Board. See Kable, 189 CLR 51, 120-21 (McHugh J) (describing s 17(1)(3) as negating s 17(1)(1) which states that the Court is bound by the rules of evidence). 281 Ibid 63 (Brennan, CJ). 282 A majority of the justices (Brennan, CJ, Dawson, Toohey, McHugh) rejected Kable's first argument that the Act violated the separation of judicial power under the Constitution A ct 1902 (NSW). See, eg, ibid 17-19 (Dawson J). Justice Toohey explained that, unlike at the Commonwealth level, NSW does not have a strict separation of powers in its state constitution. Ibid 91-94. Thus, he concluded, any argument that parliament improperly exercised judicial power contrary to the NSW constitution must fail. Ibid. Nevertheless, the

-65- state courts were subject to Chapter III by their exercise of federal judicial power,

and thus, may not be vested with powers that are "incompatible" with judicial power.283 Applying this principle to the Community Protection Act 1994, the Court found the powers the Act vested in the NSW Supreme Court compromised the integrity and judicial independence of the Court.

The majority found several flaws in the legislation. The Act targeted just one person, Gregory Kable, and thus appeared to be a legislative judgment.284 Moreover, the Act permitted the introduction of evidence that would normally be inadmissible.285 However, one of the most significant flaws identified by the majority was that the Act required the court to issue a detention order without the traditional judicial process of adjudication of guilt by trial and sentencing. Justice Toohey stated that die Act improperly authorised the NSW Supreme Court "to participate in a process designed to bring about the detention of a person by reason of the Court7s assessment of what the person might do, not what the person has done" — a function, he stated, which was inconsistent with the traditional judicial process of adjudication and punishment for an unlawful act.286 Justice Toohey distinguished the present case from Lim where the detention was for purposes of deportation.

The situation in the present case is quite different from that in Lim.

Preventive detention under the Act is an end in itself. And the person

so detained "is taken to be a prisoner within the meaning of the

Act 1952." It is not an incident of the exclusively judicial function of

adjudging and punishing criminal guilt. It is not part of a system of majority of the Court agreed with Kable's second argument — that the Act violated the incompatability doctrine as set forth in Grollo v Palmer. See, eg, ibid 94-99 (Toohey J). 283 Ibid 7 7 -7 9 (Dawson J); 101-05 (Gaudron J); 112-18 (McHugh J); 82-86 (Dawson J). 284 See, eg, ibid 99 (Toohey J) ("If the Act operated on a category of persons . . . different questions might arise. But here the judicial power of the Commonwealth is involved, in circumstances where the Act is expressed to operate in relation to one person only, the appellant, and has led to his detention without a determination of his guilt for any offence."). 285 Ibid 107 (Gaudron J). 286 Ibid 9 6 -9 7 (Toohey J).

-66- preventive detention with appropriate safeguards, consequent upon or

ancillary to the adjudication of guilt. Nor does it fall within the

"exceptional cases" mentioned in lira. In the present case the Act

requires the Supreme Court to exercise the judicial power of the

Commonwealth in a manner which is inconsistent with traditional

judicial process.287

Justice Gaudron likewise found the Act incompatible with the functions of

Ch. Ill courts, declaring the Act to be the "antithesis of the judicial process, one of the

central purposes of which is . . . to protect 'the individual from arbitrary punishment

and the arbitrary abrogation of rights by ensuring that punishment is not inflicted

and rights are not interfered with other than in consequence of the fair and impartial

application of the relevant law to facts which have been properly ascertained/"288

Justice Gaudron explained the departure of the preventative detention proceedings

from the traditional criminal justice procedures as follows:

The proceedings which the Act contemplates are not proceedings

otherwise known to the law. And except to the extent the Act attempts

to dress them up as legal proceedings (for example, by referring to the

applicant as 'the defendant', by specifying that the proceedings are

civil proceedings and by suggesting that the rules of evidence apply),

they do not in any way partake of the nature of legal proceedings. They

do not involve the resolution of a dispute between contesting parties as

to their respective legal rights and obligations. And as already

indicated, the applicant is not to be put on trial for any offense against

the criminal law. Instead, the proceedings are directed to the making of

a guess - perhaps an educated guess, but a guess nonetheless - of the

kind specified in the definition of 'serious act of violence.' And, at least

in some circumstances, the Act directs that the guess be made having

Ibid 98 (Toohey J). 288 Ibid 106-07 (Gaudron J).

-67- regard to material which would not be admissible as evidence in legal

proceedings.289

For these reasons, Justice Gaudron found that the Act impugned the integrity of the judiciary, stating that "public confidence cannot be maintained in the courts and their criminal processes if, as postulated by section 5(1), the courts are required to deprive persons of their liberty, not on the basis that they have breached any law, but on the basis that an opinion is formed, by reference to material which may or may not be admissible in legal proceedings, that on the balance of probabilities, they may do so."290

Justices McHugh and Gummow similarly found the Act conflicted with the basic principles of judicial process. Justice McHugh stated that the Act impermissibly "removes the ordinary protections inherent in the judicial process" by departing from the traditional rules of evidence and removing the need to prove guilt by a reasonable doubt.291 He noted that "[i]nstead of a trial where the Crown is required to prove beyond a reasonable doubt that the accused is guilty of a crime on evidence admitted in accordance with the rules of evidence, the Supreme Court is asked to speculate whether, on the balance of probabilities, it is more likely than not the appellant will commit a serious act of violence."292 Justice Gummow likewise found that the "most significant" feature of the legislation was the fact that it was

"punitive in nature, [but] . . . not consequent upon any adjudgment by the Court of criminal guilt."293 He stated that "the law speaks only ad hominem, applies proleptically the criminal law, determines the case by a civil standard, and provides directly for detention in prison."294 On this basis, he argued, "not only is such an

Ibid 107 (Gaudron J). Ibid 107 (Gaudron J). Ibid 121 (McHugh J). Ibid 122-23 (McHugh J). Ibid 132 (Gummow J). Ibid 131 (Gummow J).

-68- authority non-judicial in nature, it is repugnant to the judicial process in a fundamental degree."295

Based on these statements, the Kable decision arguably stands for the principle that detention without charge or a trial is incompatible with the nature of judicial power. Subsequent decisions, however, have narrowed the Kable principle significantly. In particular, the High Court in Pardon v Attorney-General, found the

Kable principle did not apply in addressing the validity of the Dangerous Prisoners

(Sexual Offenders) Act 2003 (Queensland).296 The Act authorised courts to issue orders for the continuing, preventive detention of serious sexual offenders who had been convicted and had served their terms of imprisonment, but who are shown to constitute a serious danger to the community.297 The appellant, Fardon, had been convicted of rape, sodomy, and assault and was sentenced to 14 years of imprisonment. After the expiration of his sentenced, he was detained in prison under interim orders under the legislation, and in November 2003 he was ordered to be detained in custody for an indefinite term for "control, care, and treatment."298

The petitioner in Fardon argued that authorizing courts to issue orders of indefinite detention violated the separation of judicial power. A 6-1 majority of the

Court, however, upheld the law. While the justices disagreed with one another as to whether such a law would be permissible were it to apply to a federal court as opposed to a state court, the majority concluded that the issuance of preventative detention orders against sexual offenders was not "incompatible" with the exercise of judicial power.

Distinguishing the Act from the one struck down in Kable, the majority characterized the Act in Kable as a "unique" piece of legislation.299 In particular, the

295 Ibid 132 (Gummow J). 296 Fardon v Attorney-General (Queensland) (2004) 223 CLR 575. 297 Ibid 587-88 (Gleeson, CJ). 298 Ibid. 299 See, eg, ibid 43 (McHugh J) ("Kable was the result of legislation that was almost unique in the history of Australia).

-69- majority emphasized that, in contrast to the Kable order, the Queensland Sexual

Offenders Act incorporated the rules of evidence and was aimed at a class of individuals as opposed to simply one person.300 Chief Justice Gleeson reasoned that the Queensland scheme was not incompatible with judicial power given the due process afforded detainees by the Act:

The onus of proof is on the Attorney-General. The rules of evidence

apply. The discretion is exercised by reference to the criterion of

serious danger to the community. The Court is obliged . . . to have

regard to a list of matters that are all relevant to the criterion. There is a

right of appeal. Hearings are conducted in public, and in accordance

with the ordinary judicial process. There is nothing to suggest that the

Supreme Court is to act as a mere instrument of government policy.

The outcome of each case is determined on its merits.301

Likewise, Justice Gummow found that the "nature of the process for which the Act provides assumes particular importance."302

Fardon was a significant setback for the protection of individual rights from preventative detention. Professor Anthony Gray argued that Fardon failed to apply the precedent of Kable and offends the separation of power by authorizing the preventative detention of criminal offenders on a standard of proof which falls short of "beyond a reasonable doubt."303 He notes that the individuals subject to civil detention under the Queensland scheme are detained in the general prison population, and thus the detention is more criminal than civil.304 Thus, he concluded, the scheme is not only bad public policy, but is unconstitutional.305

300 Ibid I I 15-23 (Gleeson CJ). 301 Ibid. 1 19 (Gleeson CJ). 302 Ibid. 1 90 (Gummow J). 303 Anthony Gray, "Standard of Proof, Unpredictable Behaviour and the High Court of Australia's Verdict on Preventative Detention Laws," (2005), 10 Deakin L Rev 177, 206-07. 304 Ibid 206-07. 305 Ibid.

-70- Nevertheless, the Pardon decision arguably is a narrow one. The justices were

also careful to note that the detention in Fardon was authorised as a "consequential

step in the adjudication of guilt." Thus, while the decision in Fardon struck a

significant blow against a defendant's rights in the criminal justice system, the

decision does not necessarily undercut the argument that preventative detention which is based solely on dangerousness and divorced from a criminal adjudication

violates Chapter III.

C. Conclusions

In sum, preventative detention in many ways has been extremely limited in both the United States and Australia in times of peace. Under both due process and separation of powers principles, detention that is not the consequence of an adjudication of guilt is generally barred unless it falls into one the well-established exceptions. In Australia, the joint judgment in Lim went so far to state that individuals were entitled to a constitutional immunity from detention without charge. Yet, while in later cases, Lim has been criticized as overly broad, the decisions addressing executive detention in Australia remain generally confined to those well-established and narrow areas of regulatory detention, such as immigration and more recently extradition. While judicial detention has extended to the regulatory detention of convicted sexual offenders, such legislation has applied only at the state court level where the protections of the Commonwealth

Constitution are not as strong as they are at the federal level.

Likewise, all of the US preventative detention cases have fallen within those well-established areas of civil commitment, immigration, and pretrial detention cases. The Supreme Court has stated that the list of exceptional circumstances where preventative detention is constitutionally permissible may be expanded only in cases where the government can show a "special justification" for departing from the traditional bar on detention without charge. While the Court has not explained what type of "special justification" would suffice, the Supreme Court's decision in Foucha

-71- is strong precedent that, at least in times of peace, preventative detention based

solely on dangerousness is constitutionally impermissible.

Nevertheless, the caselaw in both jurisdictions suggests that the constitutional

protections from preventative detention are precarious. In Australia, the High

Court's analysis has been extremely deferential to the legislature in areas of

preventative detention. Indeed, several justices have adopted an analysis which presumes executive detention to be non-punitive and therefore permissible as long

as it relates to one of the grants of power delegated to Parliament. The joint judgment in Lint suggested that the law must be proportional and narrowly tailored to the government's regulatory purpose, however justices in subsequent cases have dismissed any analysis of the proportionality or procedural safeguards, finding such factors as the conditions or length of detention as immaterial to the constitutionality

of detention.

While the Kable decision struck down preventative detention based solely on an individual's propensity to commit future crimes, several High Court justices have distinguished the facts in Kable as unique and extraordinary, thus calling into question whether the decision is of any use as precedent in challenging the constitutionality of other preventative detention laws. While the Fardon decision is certainly not clear precedent in favour of preventative detention at the federal level, a majority of the justices left open the possibility that the issuance of preventative detention orders may be a permissible exercise of federal judicial power.

In the United States, the Supreme Court likewise has left open the possibility that preventative detention could be expanded into other areas, including terrorism.

The Court's decision in Salerno was a significant expansion of preventative detention. By recognizing that individuals could be detained for community protection purposes, the Supreme Court, like the Australian High Court, has blurred the line between regulatory and criminal detention. While the Salerno decision was limited to pretrial detention, the Court's reasoning could be argued as supporting preventative detention schemes in other areas of "compelling" government interests.

-72- Nonetheless, unlike the High Court, the US Supreme Court has provided

additional assurances that even if preventative detention is expanded to other areas,

it will be carefully circumscribed. In recent cases, the Supreme Court has made clear

that due process not only prohibits detention from being punitive, but also requires

a compelling government interest to justify the deprivation of such a fundamental right. Thus, even where the Court has found that preventative detention does not implicate the protections of the criminal justice process, it has imposed significant limitations on detention law nonetheless. Under due process test for fundamental rights, the Supreme Court has adopted a proportionality analysis which requires the government to establish a compelling government interest which outweighs the individual right to liberty. Likewise, the Court has also required adequate procedural safeguards to safeguard against indefinite and arbitrary detention. Thus, the express due process rights in the United States Constitution have provided better protections from arbitrary and indefinite detention by the government in peacetime than those provided under the Australian Constitution.

-73- Chapter Three Preventive Detention in Times of War

In times of war, both the Australian and United States governments have adopted preventative detention policies which reach well beyond the traditional categories of regulatory detention recognised in times of peace. Unlike the peacetime detention policies, the wartime policies authorised the executive to detain civilians based solely on dangerousness or disloyalty with little or no judicial review. The most infamous examples of preventative detention took place during World War II, during which the United States and Australia, in a declared effort to ensure national security on the home front, instituted extensive measures restricting civil liberties, including the evacuation and, in many cases, the indefinite detention of "enemy aliens" and citizens alike. During that war, the detained nearly 8,000 civilians, and the United States government detained over 120,000 civilians. The detentions were primarily based on race and national heritage rather than any individualized suspicion and judicial review was generally unavailable.

Courts in both Australia and the United States upheld these preventative detention policies, asserting that the nation must take extraordinary steps to protect its security and border and implement measures that would not be acceptable in times of peace. Yet, today, these decisions are of questionable precedent. The internment policies enacted during World Wars I and II have since been regarded as an overreaction and an embarrassing mistake.306 They are more often cited as an

306 In Al-Kateb, Justice Kirby recently stated:

I accept that cases exist that lend support to the conclusion that such detention has occurred and that such powers have been upheld by this Court. However, these cases are the Australian equivalent to the decision of the Supreme Court of the United States in Korematsu v United States. There the Supreme Court, by majority, upheld the detention of an American-born citizen of Japanese ancestry (and hence many of a like background). Such cases are now viewed with embarrassment in the -74- example of what not to do in times of war than any model of effective wartime

policy. As David Cole remarked, "There are no mass preventive detention success

stories in our history."307

This chapter traces die history of preventative detention policies initiated by

the Australian and US governments during times of declared war and analyses the

respective Courts' jurisprudence regarding the constitutionality those policies. First,

I discuss the history of domestic wartime detention in the United States and discuss

the Supreme Court cases addressing the constitutionality of detaining civilians

outside of the criminal justice process during times of war. Specifically, I examine

those Supreme Court cases which address the detention and trial of enemy

combatants during times of war. I also examine the Court's World War II decisions

upholding the detention of enemy aliens, as well as civilians, who, based on their

ancestry, were perceived to be a threat to national security. Second, I discuss the

Australian High Court's wartime cases, which have been limited to cases

challenging the legality of the government's preventative detention policies during

the World Wars. Finally, I set forth my conclusions regarding the court's decisions

upholding the executive's authority to preventatively detain civilians during times

of war.

A. United States: Detention of Combatants, Enemy Aliens, and the World War II Internment Policies.

The United States Supreme Court has recognised that the government's

authority to detain and punish civilians outside the criminal justice process is limited by due process in times as war and peace. One of the principal cases upholding due

United States and generally regarded as incorrect. W e should be no less embarrassed by the local equivalents. See Al-Kateb v Godwin (2004) 219 CLR 562, 620-21 (Kirby J, dissenting). 307 David Cole, "The Priority of Morality: The Emergency Constitution's Blind Spot," (2004) 113 Yale L J 1753,1755.

-75- process rights in times of war is Ex parte Milligan.308 In that case, Lamdin Milligan, a civilian and citizen of the United States, who had been living in Indiana during the war, was arrested by the military and accused of various acts of conspiracy, aiding and abetting rebels against the United States, inciting insurrection, disloyal practices and violations of the law of war.309 Milligan had been a member of the Sons of liberty, an organization with links to the Confederate States.310 When a jury refused to indict him, he was tried before a military commission, which found him guilty and sentenced him to death by hanging.311 Miligan filed a habeas petition, arguing that the military commission had no jurisdiction to try, convict, and sentence a civilian who was neither a resident of a rebellious state, a prisoner of war, nor a person in the military service. The government in turn argued that Milligan, while a civilian, had become associated with the military arm of an "enemy government" and thus could be held as "a prisoner of war."312

The Supreme Court held that the military commission had no authority to try

Milligan and ordered that he be released. The Court explained that while the military commission has jurisdiction over violations of the "laws and usages of war," those laws and usages cannot be applied to citizens in states which have upheld the authority of the government and in which the courts remain functioning.313 Justice

Davis famously wrote:

The Constitution of the United States is a law for rulers and people,

equally in war and in peace, and covers with the shield of its protection

all classes of men, at all times, and under all circumstances. No

doctrine, involving more pernicious consequences, was ever invented

by the wit of man than that any of its provisions can be suspended 71

71 US (4 W all.) 2 (1866). Ibid 6. Ibid. Ibid. Ibid 6-7. Ibid 118-32.

-76- during any of the great exigencies of government. Such a doctrine

leads directly to anarchy or despotism, but the theory of necessity on

which it is based is false; for the government, within the Constitution,

has all the powers granted to it, which are necessary to preserve its

existence; as has been happily proved by the result of the great effort to

throw off its just authority.314

Thus, the Supreme Court held that, absent martial law (which is confined to the locality of actual war), a civilian cannot be detained and tried by a military commission. The Court rejected the government's argument that the military commission had jurisdiction under the "laws and usages of war," stating that such laws "can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed."315

Thus, while Milligan allegedly conspired to assist the enemy, he was not connected to military service nor was he residing in a state which was rebelling from the government.316 Accordingly, the Court held that the executive lacked authority to try

Milligan in a military tribunal, and directed that he only may be tried and punished in the courts of law of Indiana.317

The Supreme Court's later decision in Ex parte Quirin,318 however, called into question the scope of protection citizens enjoy from military detention and punishment under Milligan. In Quirin, eight Nazi spies (one of whom claimed to be an American citizen) were arrested by the Federal Bureau of Investigation during

World War II for allegedly entering the United States by submarine, shedding their military uniforms, and conspiring to use explosives on certain war industries and utilities.319 The men had trained at a sabotage school in Berlin and were instructed to

Ibid 120-21. Ibid 131. Ibid. Ibid. 131-32. Ex Parte Quirin, 317 US 1 (1942). Ibid 20-21.

-77- destroy war industries and facilities in the United States.320 President Roosevelt, by order of proclamation, declared that the accused spies were to be tried by military commission rather than in die criminal justice system.321 The defendant spies petitioned for habeas corpus, arguing, among other things,322 that trial by military commission violated the Due Process Clause of the Fifth Amendment and the Sixth

Amendment right to trial by jury.323

The Court held that the trial of the accused spies by a military commission was permissible under the Constitution.324 Referring to the international common law of war, as incorporated by Congress through Article 15 of the Articles of War and the President's proclamation, the Court found that die military tribunal's jurisdiction extended to the accused spies.325 Because the defendants conceded to be members of enemy forces, they were "combatants" or "belligerents," and thus the military commission had jurisdiction to try them with violations of the law of w ar.326

Quirin made clear that citizenship of the defendant is not determinative of whether the accused may be an "enemy belligerent" within the meaning of the

Hague Convention and the law of war. Yet, Quirin does not necessarily overrule

Milligan in this regard. Quirin can be distinguished from Milligan on the grounds that the defendants in Quirin conceded that they were members of the German army and thus were subject to military jurisdiction; where in Milligan, the Court assumed that Milligan was not a member of or associated with a military force. Thus, Quirin does not necessarily undermine Milligan's holding that government cannot merely

320 Ibid. 321 Ibid 22-23. The proclamation declared that "the safety of the United States demands that all enemies who have entered upon the territory of the United States as part of an invasion or predatory incursion, or who have entered in order to commit sabotage, espionage or other hostile or warlike acts, should be promptly tried in accordance with the law of w ar." Proclamation N o. 2561, of July 2,1942, 7 Fed. Reg. 5101, 56 Stat. 1964. 322 The defendants also argued that the trial by military commission was not authorised by statute and thus violated the separation of powers. 323 Ibid 24. 324 Ibid. 47-48. 323 Ibid 46-48. 326 Ibid 30-33.

-78- allege that an individual is a prisoner of war or violated the law of war to bootstrap military jurisdiction — at least, where the defendant is not a member of a military service, but rather is a civilian.

Nevertheless, both courts left open a more difficult question: whether a person arrested in the United States (where no battle is raging) who disputes an allegation by the government that he or she is a member of enemy forces must be tried in the courts or may be tried by a military commission. On one hand, the Court in Ex parte Quirin cites various cases in which enemy spies were captured in the

United States and were tried by military courts and found to be members of an enemy military force.327 On the other hand, Ex Parte Milligan makes clear that authorising the military to arrest and detain civilians on US soil is problematic and runs afoul of the principles of criminal justice and the constitutional protections of criminal defendants discussed in Milligan. On this issue, the Court provides no answer.

Combatants, however, are not the only persons who have been subject to preventative detention in times of war. The US Supreme Court has also recognised that in a declared war against a nation state, the executive may preventatively detain

'"enemy aliens." The authority for "enemy alien" detention is derived from the Alien

Enemy Act of 1778, an Act passed just a few years after the American War of

Independence.328 That Act authorised the President, during times of declared war or threatened invasion by a nation state, to apprehend, restrain, secure and remove all persons of a hostile nation who have not been naturalized as citizens in the United

States.329 The Alien Enemy Act thus granted the executive the authority to detain individuals without any individualized finding of cause or dangerousness and without any mechanism for judicial review.

327 Ibid 31 n 10. 328 A ct o f July 6,1798, §1.2,1 Stat. 577. 329 50 USC § 20 et seq. The Alien Enemy Statute of 1798 has not been repealed and remains in effect today.

-79- The constitutionality of the Alien Enemy Act was upheld by the Supreme

Court in Ludecke v Watkins,330 a case arising out of World War II. After the Japanese

launched their attack in Pearl Harbour and the Congress declared war on Japan,

Italy and Germany, President Roosevelt invoked the Alien Enemy Act to impose

severe restrictions, including detention, on enemy aliens from these enemy nations,

and ordered the deportation of all "enemy aliens" who were "deemed by the

Attorney General to be dangerous to the public peace and safety of the United

States."331 Pursuant to that Order, Kurt Ludecke, a German "enemy alien," had been

arrested in December 1941 and was interned after proceedings before an Alien

Enemy Board. Later, the government ordered that Ludecke be deported back to

Germany, despite the fact that he had previously been held in a Nazi concentration

camp for three years.332 Ludecke filed a petition for habeas corpus challenging the

validity of the Act as a basis for his detention.

The Court rejected Ludecke's claim, finding the Act constitutional. In so

holding, the Court found the only issue on which an individual is entitled to a court

hearing is whether the individual is in fact an "enemy alien."333 The Court held that

while the Attorney General's determinations were to be based on dangerousness, the

statute authorizing the deportation of enemy aliens required no such finding. Thus,

the Court concluded, "[a] war power of the President not subject to judicial review is

not transmuted into a judicially reviewable action because the President chooses to have that power exercised within narrower limits than Congress authorised."334

In upholding the validity of the Act, the majority relied largely on historical

practice rather than legal reasoning or a due process analysis, concluding that "no

doubt has been intimated as to Federal authority over [enemy aliens]" given that the

333 Ludecke v Watkins, 335 US 160 (1948). 331 Proclamation 2655,10 Fed Reg 8947. 332 Ludecke v Watkins, 335 US at 162-63. 333 See 335 US 160, 164-65 & n 8 (collecting cases holding that judicial review is barred; the only issue that may be reviewed by the court is the individual's status as an "enemy alien."). 334 Ibid 166-67.

-80- Constitution has "expressly delegated to Congress the power to declare war against any nation, and of course, to treat it and all its members as enemies."335 The majority added that the government should be afforded broad deference in the exercise of its war powers, stating that "[s]uch great war powers may be abused, no doubt, but that is a bad reason for having judges supervise their exercise, whatever the legal formulas within which such supervision would nominally be confined."336

Justices Douglas, Murphy and Rutledge dissented, stating that the government's war power "does not remove constitutional limitations safeguarding essential liberties."337 They pointed out that the Court7s treatment of aliens during times of war stands in stark contrast with its other decisions regarding executive authority over aliens in times of peace, where the Court has repeatedly held that the executive's authority over deportation is subject to the requirements of procedural due process — specifically, reasonable notice, a fair hearing and an order supported by some evidence.338 These due process requirements, they argued, "do[ ] not perish when war comes."339 Justice Black likewise found the scheme unconstitutional, concluding: "It is not amiss, I think, to suggest my belief that because of today's opinion, individual liberty will be less secure tomorrow than it was yesterday. . . .

And there is removed a segment of judicial power to protect individual liberty from arbitrary action, at least until today's judgment is corrected by Congress or by this

C ourt."340

The Court's conclusion that the executive may detain enemy aliens based solely on their status during times of declared war is troubling and conflicts with

335 Ibid 171, n 18. Ludecke had also argued that the executive lacked authority to deport him as an "enemy alien" because the hostilities in the war with Germany had ended. The Court rejected this argument, finding that Act had full force and effect until Congress officially terminated its declaration of war. Ibid 166-72. 336 Ibid 172. 337 Ibid 187 (Douglas, Murphy, and Rutledge JJ, dissenting). 338 Ibidl85 ((Douglas, Murphy, and Rutledge JJ, dissenting) (collecting cases re procedural due process entitled by aliens in immigration proceedings). 339 Ibid 185-87 (Douglas, Murphy, and Rutledge JJ, dissenting). 340 Ibid 183-84 (Black J. dissenting).

-81- due process requirements at least as they apply in times of peace. Nevertheless, it has been long recognised that, in times of declared war against a sovereign nation, enemy aliens have few, if any, rights. As far back as English common law, courts have stated that the status of aliens of enemy countries during times of war is one of

"unique vulnerability/'341 In Johnson v Eisentrager, the Supreme Court explained that in times of peace, there is little distinction between citizens and aliens for purposes of due process, but during times of declared war, the distinction between citizens and enemy aliens is a critical one:

With confirmation of recent history, we may reiterate this Court's

earlier teaching that in war 'every individual of the one nation must

acknowledge every individual of the other nation as his own enemy-

because the enemy of his country.'. .. .And this without regard to his

individual sentiments or disposition. .. . The alien enemy is bound by

an allegiance which commits him to lose no opportunity to forward the

cause of our enemy; hence the United States, assuming him to be

faithful to his allegiance, regards him as part of the enemy resources. It

therefore takes measures to disable him from commission of hostile

acts imputed as his intention because they are a duty to his

sovereign.342

While the presumption of an alien's disloyalty is a questionable one, the Court's rationale makes clear that Ludecke and other cases supporting the internment of enemy aliens are limited in scope and confined to times of declared war against sovereign nations.

341 See Johnson v Eisentrager, 339 US 763 (1950) (discussing history of detention of enemy aliens). The Court in Eisentrager noted that "[a]t common law 'alien enemies have no rights, no privileges, unless by the king's special favour, during the time of war/" Ibid 941 n 6 (citing 1 Blackstone *372, 373 and Prettyman, J. in Citizens Protective League v Clark, 81 US A pp. D C 116,119). 342 Johnson v Eisentrager, 339 US at 773 (citations omitted).

-82- Only months after the United States entered World War II, however,

President Roosevelt extended the government's wartime restrictions and internment policies to citizens and non-citizens alike, thus raising new and unchartered

constitutional issues for the Court. Declaring that "the successful prosecution of the war requires every possible protection against espionage and against sabotage to national defense material, national defense premises and national defense utilities,"

President Roosevelt, on February 19,1942, signed Executive Order 9066, authorizing the Secretary of War and the military commanders under him to exclude all persons, citizens and aliens alike, from certain designated areas on the west cost.343 General

J.L. DeWitt, designated by the President to carry out the duties prescribed in the executive order, promulgated a proclamation which declared that the entire Pacific

Coast was particularly subject to attack by enemy forces and vulnerable to espionage and sabotage.344

General DeWitt thereafter designated certain areas as military areas and imposed a variety of restrictive orders on certain classes of individuals - including aliens from Japan, Germany and Italy, as well as American citizens of Japanese ancestry.345 These restrictions included curfews, mandatory evacuation orders, and ultimately detention in various internment camps organized by the American military.346 On March 21, 1942, Congress passed an Act which provided that those who were found to be in violation of those executive orders or proclamations relating to the military areas would be charged with a misdemeanour and be subject to imprisonment, fines, or both.347

The Supreme Court addressed the legality of the government's wartime restrictions in three famous cases: Hirabayashi v United States, Korematsu v United

343 7 Fed R eg 1407 (19 February 1942). 344 7 Fed R eg 2320 (20 February 1942). 345 Ibid. See also Hirabayashi v United States, 320 US 81, 85-86 (1943) (explanation scheme for military restriction orders issued by General DeWitt). 346 See Ex parte Endo, 323 US 283, 288-89 (1944) (outlining restrictions). 347 18 USC § 97a (21 March 1942).

-83- States, and Ex parte Endo348 In the first case, Hirabayashi, the Court addressed the

constitutionality of the curfew orders.349 In that case, defendant Gordon Kiyoshi

Hirabayashi was convicted of violating the 1942 Act of Congress and related

Executive Orders by failing to report to the Civil Control Station to register for

evacuation from the military area.350 Hirabayashi was an American citizen bom in

Seattle, Washington of Japanese parents, attended University of Washington, and

had never been in Japan nor did he have any association with any Japanese residing

at that time in Japan.351 Hirabayashi admitted that he failed to register, stating that he

believed that he would be waiving his rights as an American citizen by doing so.352

On appeal, the Supreme Court held upheld the curfew order, holding that

Congress and the Executive acted consistent with their joint war power to impose a

curfew restriction during times of war.353 The Court interpreted the defence power

broadly, explaining that the power to wage war "extends to every matter and

activity so related to war as substantially to affect its conduct and progress/'354

Moreover, the Court explained, the wisdom of the Executive and Congress in

exercising its war powers should not be second-guessed.355 Congress and the

Executive should have a "wide scope for the exercise of judgment and discretion in

determining the nature and extent of the threatened injury or danger and in the

selection of the means for resisting it."356 Citing evidence submitted by the

government regarding the threat of sabotage and espionage by Japanese-Americans,

the Court declared that the measures taken were reasonable in light of the conditions

with which the President and Congress were confronted in early 1942 - specifically

348 Hirabayashi v United States, 320 US 81 (1943); Ex parte Endo, 323 US 283 (1944); Korematsu v United States, 323 US 214 (1944). 349 Hirabayashi v United States, 320 US 81 (1943). 350 Ibid at 83-85. 351 Ibid. 352 Ibid 84. 353 Ibid 93-114. 354 Ibid 93. 355 Ibid 94. 356 Ibid.

-84- the attack on Pearl Harbour and the Japanese invasion of several countries in the

Asia-Pacific area.357

In a separate concurring opinion, Justice Murphy agreed with the Court's holding, but noted the importance of the role of the judiciary in protecting civil liberties in times of war and peace.358 He explained that while there is no doubt that the government may generally employ what is necessary for the common defence, he made clear individuals retained their due process rights even in times of war:

It does not follow . . . that the broad guarantees of the Bill of Rights

and other provisions of the Constitution protecting essential liberties

are suspended by the mere existence of a state of war.... It would not

be supposed . . . that the prerogatives of the courts could be set aside,

or that persons not charged with offenses against the law of war . . .

could be deprived of due process of law and the benefits of trial by

jury, in the absence of a valid declaration of martial law."359

While Justice Murphy, like the other Justices, found no violation of due process in the military's curfew order, which was implemented under "emergency" circumstances, he emphasized that the military's discretion is not without bounds and the Court "has an inescapable duty of seeing that the mandates of the

Constitution are obeyed."360

357 Ibid 101-03. The Court likewise rejected Hirabayashi's claim that the restriction violated the Fifth Amendment by discriminating against citizens of Japanese ancestry. The Court held that the Fifth Amendment does not contain an equal protection clause and that in light of the security issues related to the war, the orders and statute afforded a "reasonable basis for the action taken imposing the curfew." Ibid 101-02. 358 Ibid 109-14. 359 Ibid 110 (Murphy J, concurring). Justice Murphy further admonished the discriminatory nature of the legislation, stating that "[distinctions of color and ancestry are utterly inconsistent with our traditions and ideals," are "at varience with the principles for which we are now waging war," and "bear[] a melancholy resemblance to the treatment accorded to members of the Jewish race in Germany and other parts of Europe." Ibid. 360 Ibid 114 (Murphy J, concurring). Justice Rutledge in his concurrence likewise stated that the military may have wide discretion in times of emergency, but "it does not follow there may not be bounds beyond which he cannot go and, if he oversteps them, that the courts may not have the power to protect the civilian citizen."

-85- The second case, decided two years later, was Korematsu v United States, a case in which the Court addressed the constitutionality of an exclusion order aimed at all persons of Japanese ancestry within a certain designated area in California.361

Korematsu, an American citizen of Japanese ancestry, was convicted of violating the exclusion order.362 The Korematsu case thus is distinguished from Hibayashi in that it involved an even more extreme deprivation of liberty — exclusion from one's home

— and a less imminent threat of harm. By the time the Korematsu case had reached the Supreme Court, the tide of the war had shifted in favour of the United States and there was little threat of attack on the Pacific Coast.

Nevertheless, the Court upheld the exclusion order. In a 6-3 decision authored by Justice Black, the Court largely relied on its reasoning in Hirabayashi, again explaining that it could not "reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of the population, whose number and strength could not be ascertained."363 Justice Black noted the hardship caused by the exclusion order, but found that the necessities of war warranted the burden on civil liberties:

[W]e are not unmindful of the hardships imposed by [the government

policies] upon a large group of American citizens. But hardships are

part of war, and war is an aggregation of hardships. All citizens alike,

both in and out of uniform feel the impact of war in greater or lesser

measure. Citizenship has its responsibilities as well as its privileges,

and in time of war the burden is always heavier. Compulsory exclusion

of large groups of citizens from their homes, except under

circumstances of direst emergency and peril, is inconsistent with our

basic governmental institutions. But when under conditions of modem

Korematsu v United States, 323 US 214 (1944). Ibid 215-16. Ibid 218.

-86- warfare our shores are threatened by hostile forces, the power to

protect must be commensurate with the threatened danger.364

The Court, however, was careful to make clear that it was only reviewing the exclusion order. Even though Korematsu had no legal option except to report to the assembly centre and subject himself to detention, the Court expressly refused to review the constitutionality of any detention orders or policies.365

The Court's skirting of the detention issue was criticized by the dissenting justices. Justice Roberts argued in dissent that Korematsu's case was not simply about an exclusion order, but was about the conviction of a citizen "for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States."366 On these facts, he stated, "I hardly labor the conclusion that Constitutional rights have been violated."367 Justice

Roberts drew a distinction between the curfew and exclusion policies - which were permissible "temporary expedient[s] made necessary by sudden emergency" - and forcible detention which was illegal and unconstitutional.368

Ibid 220. 365 Ibid 222. The Court explained:

Since the petitioner has not been convicted of failing to report or to remain in an assembly or relocation center, w e cannot in this case determine the validity of those separate provisions of the order. It is sufficient here for us to pass upon the order which the petitioner violated. To do more would be to go beyond the issues raised, and to decide momentous questions not contained within the framework of the pleadings or the evidence in this case. It will be time enough to decide the serious constitutional issues which petitioner seeks to raise when an assembly or relocation order is applied or is certain to be applied to him, and have its terms before us. Ibid. 366 Ibid 226 (Roberts J, dissenting). 367 Ibid (Roberts J, dissenting). 368 See ibid 230-31 (Roberts J, dissenting).

-87- Justice Murphy, on the other hand, held that the exclusion policy alone went

""over the brink of constitutional power' and [fell] into the ugly abyss of ."369

The exclusion policy, he concluded, was a deprivation of fundamental constitutional

rights which was not related to an "'immediate, imminent and impending'" public

danger:370

Being an obvious racial discrimination, the order deprives all those

within its scope of the equal protection of the laws as guaranteed by

the Fifth Amendment. It further deprives these individuals of their

constitutional rights to live and work where they will, to establish a

home where they choose and to move about freely. In

excommunicating them without benefit of hearings, this order also

deprives them of all their constitutional rights to due process. Yet no

reasonable relation to an 'immediate, imminent, and impending' public

danger is evident to support this racial restriction which is one of the

most sweeping and complete deprivations of constitutional rights in

the history of this nation in the absence of martial law.371

Justice Jackson's dissent likewise cautioned that the Court's decision set a dangerous

precedent regarding the scope of executive power. To validate racial discrimination

as constitutional, he argued, would "lie about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of urgent need."372 He

concluded that while the actions may well have been reasonable as a matter of military necessity, they did not conform to the Constitution and cannot be enforced by the courts.

The very same day the Korematsu decision was issued, the Court also decided

Ex parte Endo, a decision which somewhat blunted Korematsu's blow to human

Ibid 233 (M u rp hy J, dissenting). Ibid 234 (Murphy J, dissenting). Ibid 234-35 (Murphy J, dissenting). Ibid 246-47.

-88- rights.373 Unlike its two prior decisions, the Court in Endo ordered the government to

release petitioner Mitsuye Endo, an American citizen of Japanese ancestry, from her

prolonged detention in a Relocation Center, finding her detention unlawful.374 Endo

had been evacuated from her home in Sacramento, California in 1942, and detained

in a Relocation Center pursuant to various military orders issued by General De

Witt.375 She petitioned for a writ of habeas corpus, arguing that she is a loyal and law-

abiding citizen and thus, there is no basis for die government's detention. The

government conceded that her loyalty was not in question, but nevertheless argued

that continued detention of Endo (and other similarly situated detainees) was necessary to ensure an orderly migration of detainees into resettlement programs.376

The Court granted Endo's petition, but did so on narrow grounds, declining

to decide broader questions of the validity and constitutionality of the detention policy.377 Rather, the Court approached the question as one of statutory construction.

The Court held that "whatever power the War Relocation Authority may have to

detain other classes of citizens," it did not have the statutory authority to continue to detain citizens who already have been determined by authorities to be loyal.378

Acknowledging that the executive should be given "wide scope" for the exercise of judgment so as to win the war, the Court cautioned that it must be mindful of the constitutional protections from detention afforded individuals in interpreting a law which restrains physical liberty.379 Yet, the Court carefully declined to hold any part of the law unconstitutional. The Court held that even assuming that the detention of

Japan-Americans may be acceptable for purposes of separating the loyal from the disloyal, once the loyalty of the detainee is conceded, the detention serves no

Ex parte Endo, 323 US 283 (1944). Ibid 284-85. Ibid 284-85. Ibid. Ibid 217-18. Ibid 302-03. Ibid 298-303.

-89- purpose at all.380 Accordingly, the Court concluded that the statute must be read to ensure release of Mitsuye Endo who was undisputedly loyal.

Thus, while the Court ordered release of Endo from detention, its opinion did not directly address the legality of the scheme of detention. The Court repeatedly stated that it was only assuming for purposes of its analysis that detention to further the effort against espionage and sabotage was permissible.381 Justice Murphy, however, took the issue straight on, reiterating his position in Hirabayashi that the detention of persons of Japanese ancestry in Relocation Centers was not only contrary to the authority of the WRA, but also racist, unconstitutional and "utterly foreign to the ideals and traditions of the American people."382 Similarly, Justice

Roberts wrote separately, saying that the Court improperly skirted the constitutional questions presented in the Endo case.383 Yet, the detention of an admittedly loyal citizen, he argued, "violated the guarantees of the Bill of Rights of the federal

Constitution and especially the guarantee of due process."384

In retrospect, the government's evacuation and internment policies of World

War II have since been condemned, and the Supreme Court decisions upholding these policies have served less as guiding precedent and more as an example of judicial failure. The US government has officially declared that the policies were ill- advised and that the intrusion on civil liberties was not justified by military necessity. In 1976, President Ford revoked Executive Order 9066, stating that "[w]e know now what we should have known then - not only was that evacuation wrong, but Japanese-Americans were and are loyal Americans."385 Congress also *49

Ibid 302-05. Ibid 302-03. Ibid 307-08 (Murphy J, concurring). Ibid 308-10 (Roberts J, concurring). Ibid 310 (Roberts J, concurring).. 49 Fed Reg. 35 (20 February 1976).

-90- subsequently passed legislation which provided that "no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress."386

Additionally, in 1980, Congress established the Commission on Wartime

Relocation and Internment of Civilians to review the facts and circumstances surrounding the interment of American citizens and aliens during World War II. The

Commission concluded that military necessity did not warrant the exclusion and detention of Japanese Americans and stated that "a grave injustice was done to

American citizens and resident aliens of Japanese ancestry who, without individual review or any probative evidence against them, were excluded, removed or detained by the United States during World War II."387 As a result of the Commission's findings, President Ronald Regan signed the Civil Liberties Act of 1988, which provided a one-time non-taxable payment of US$20,000 and an official apology to each survivor of the World War II internment camps.388 Fred Korematsu also was awarded the Presidential Medal of Freedom, the nation's highest civilian honor.389

386 18 USC § 4001(a) 387 Korematsu v United States, 584 F. Supp. 1406, 1416-17 (N D Cal 1984) (citing Commission Report). 388 See Donald Teruo Hata, Jr. and Nadine Ishitani Hata, "Justice Delayed But Not Denied?" in Kay Saunders and Roger Daniels, eds, Alien Justice (2000), 221. In 1948, through the Japanese American Evacuation Claims Act, President Truman had appropriated a paltry sum of money for claims of lost property by evacuees and internees. Ibid. In 1990, President George Bush issued the first checks under the Civil Liberties Act with the following letter an apology:

A monetary sum and words alone cannot restore lost years or erase painful memories; neither can they fully convey our Nation's resolve to rectify injustice and to uphold the rights of individuals. W e can never fully right the wrongs of the past. But we can take a clear stand for justice and recognize that serious injustices were done to Japanese-Americans during World War U.

In enacting a law calling for restitution and offering a sincere apology, your fellow Americans have, in a very real sense, renewed their traditional commitment to the ideals of freedom, equality, and justice. You and your family have our best wishes for the future. Ibid. 389 Ibid.

-91 - Moreover, in 1984, US District Judge Patel of the Northern District of

California granted a petition for a writ of coram nobis brought on behalf of

Korematsu which vacated his conviction on grounds of "fundamental error" and

"manifest injustice."390 Judge Patel's decision was based on the Commission's Report as well as other government documents later released which revealed that the government "deliberately omitted relevant information and provided misleading information in papers to the Court" during the Korematsu litigation in the 1940s.391

Judge Patel concluded by advising of the lessons of Korematsu:392

Korematsu remains on the pages of our legal and political history. As

a legal precedent it is not recognized as having very limited

application. As historical precedent it stands as a constant caution

that in times of war or declared military necessity our institutions

must be vigilant in protecting constitutional guarantees. It stands as a

caution that in times of distress die shield of military necessity and

national security must not be used to protect government actions

from close scrutiny and accountability. It stands as a caution that in

times of international hostility and antagonisms our institutions,

legislative, executive, and judicial, must be prepared to exercise their

authority to protect all citizens from the petty fears and prejudice that

are so easily aroused.393

In addition, in 1971, Congress passed the Non-Detention Act to set limits on the executive's power to detain citizens. The Act provided that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of

390 Korematsu v United States, 584 F Supp 1406 (N .D . Cal. 1984). 393 Ibid 392 Ibid 1420. 393 Justices in the Supreme Court likewise have criticized the Korematsu decision and have afforded it little, if any, precedential value. David Cole collects those cases his article, "The Priority of Morality: The Emergency Constitution's Blind Spot," (June 2004) 113 Yale L J 1753,1763 n 34.

-92- Congress."394 The provision superseded a cold-war statute, the Emergency Detention

Act of 1950,395 which had authorised the Attorney-General, in time of emergency, to detain anyone reasonably thought likely to engage in espionage or sabotage. The legislative history makes clear that Congress specifically was concerned that the Act could authorise a repetition of the World War II internment of Japanese American citizens.396 Accordingly, Congress not only repealed the existing Emergency Detention

Act, but enacted the Non-Detention statute to limit any power the executive may have in times of war or peace to detain citizens.397

In sum, preventative detention has been implemented by the United States government in times of declared war to authorise the executive detention of military combatants, enemy aliens and in World War II the detention of citizens and non­ citizens alike who were perceived to be a threat, most often because of their national heritage. In upholding these measures, the Supreme Court exercised extreme deference to executive authority, though at the same time the Court was careful to narrow its decisions and limit its findings to times of declared war and other specific facts and circumstances of the case. Ultimately, decisions like Korematsu are unlikely to carry much weight in future cases addressing preventative detention in times of war. If anything, the US Supreme Court's wartime decisions should serve as a reminder that preventative detention, even in times of crisis, provides few assurances of security at the cost of grave injustice.

394 18 USC § 4001(a). 395 The Emergency Detention Act, formerly 50 USC § 811 et seq., P.L. 92-128, 85 Stat. 347 (1971). The Emergency Detention Act provided for the preventive "apprehension and detention" of individuals inside the United States 'deemed likely to engage in espionage or sabotage" during "internal security emergencies." 396 See H.R. Rep. No. 92-116, pp. 2, 4-5 (1971), USCCAN 1971, 1435,1435-36,1437-38. 397 See CRS Report for Congress, "Detention of US Citizens," authored by Louis Fisher, Senior Specialist in Separation of Powers, Government and Finance Division (April 28, 2005). See also 1971 USCCAN 1435, 1438 (mere repeal "might leave citizens subject to arbitrary executive action, with no clear demarcation on the limits of executive authority"); 117 Cong. Rec. 31544 (1971) (Emergency Detention Act "remains as the only existing barrier against the future exercise of executive power which resulted in" Japanese internment).

-93- B. Australia: Detention as an Exercise of the War Power.

Like the United States Supreme Court, the Australian High Court has upheld

preventative detention of citizens and non-citizens alike during times of declared

war. Compared to the United States, there are fewer cases addressing the legality of

detaining civilians during times of war than in Australia. This may be because of the

lack of individual liberty protections in the Commonwealth Constitution, though

may also be attributed to the simple fact that Australia has fought in fewer wars than

the United States. In any event, while the cases are fewer, the Court's decisions

address the issue of detention more forthrightly than the US Supreme Court and set

forth broad holdings regarding the government's power to detain in times war.

The first case to address the legality of preventative detention during times of

war was Lloyd v Wallach, a case arising from World War I.398 Like the US government,

the Australian government adopted and implemented legislation and regulations

during World Wars I and II authorising the preventative detention of civilian

residents based on dangerousness. In October 1914, Parliament passed the War

Precautions Act, which authorised the Governor-General in Council to make

regulations for securing the public safety and defence of the Commonwealth of

Australia.399 Pursuant to the Act, various "Wartime Precaution Regulations" were

passed as the war ensued. These regulations were even more extensive than those in

the United States, authorising the detention of enemy subjects and Australian

"citizens." For example, Regulation 55 of the Act provided:

398 Lloyd v Wallach (1915) 20 C LR 299. 399 See Gerhard Fischer, Enemy Aliens: Internment and the Homefront Experience in Australia, 1914—1918 (St. Lucia, 1989), 65; Alison Bashford and Carolyn Strange, "Asylum - Seekers and National Histories of Detention," in Australian Journal of and History: Vol. 48, No. 4,2002, 518.

-94- Where the Minister has reason to believe that any naturalized person is

disaffected or disloyal, he may . .. order him to be detained in military

custody.400

Likewise, Regulation 56 extended the internment policies to "any natural-bom

British subject, one of least of whose parents was or is a subject of a State which is at

war with the King," and Regulation 56A essentially authorised the detention of any

person whose loyalty was questionable.401

In Lloyd v Wallach, the constitutionality of Regulation 55 was challenged. The

petitioner, Franz Wallach, was a naturalised citizen of Australia, and was the

managing director of the Australian Metal Company. He was detained pursuant to a

warrant by the Minister of Defence which declared that based "upon information

provided to me I have reason to believe that Franz Wallach . . . is disaffected or

disloyal."402 Wallach petitioned for habeas corpus, arguing that the regulations were not authorised by the War Precautions Act and were ultra vires. He further argued

that he had a right to be heard as to his affirmation of loyalty and was entitled to

inquire as to the basis for the Minister's decision.

In a bold decision, the Supreme Court of Victoria held the regulations to be invalid and ordered that Wallach be discharged.403 Chief Justice Madden wrote that

the regulation authorising the detention was, in essence, a repeal of the Habeas

Corpus Act, and was in "definite conflict with Magna Charta and the 39th Section of

400 See Commonwealth of Australia, War Precautions Regulations, Statutory Rules 1914, No. 7. Regulation 56A provided: Where in the opinion of the Minister for securing the public safety and the defence of the Commonwealth, it is expedient in view of the hostile origin or association of any person that he should be detained in military custody the Minister may . . . order him to be detained . . . during the continuance of the present war. Commonwealth of Australia, War Precautions Regulations, Statutory Rules 1915, No. 35. 401 See Gerhard Fischer, Enemy Aliens: Internment and the Homefront Experience in Australia, 1914-1918 (St. Lucia, 1989), 65. 402 R v Lloyd; Ex parte Wallach, (1915) 20 C LR 299, 300-01. 403 Ibid 301; see R v Lloyd; Ex parte Wallach [1915] VLR 476.

-95- the Declaration of Rights of Henry III" which "declared the rights against imprisonment of all free persons in British communities."404 He further stated:

[0]ur modem system has provided the means by which anybody

arrested shall be charged with some specific charge forthwith, and that

he shall be brought to trial at the earliest reasonable time, and the

Courts are charged with the duty of bringing him to trial, so that he

may not be imprisoned longer than is necessary, or til so long as his

guilt is proved.405

Chief Justice Madden did not propose that preventative detention may never be imposed, however he made clear that suspension of the writ must be accomplished by an act of Parliament, and not through a regulation issued by the executive.406 Here, Chief Justice Madden pointed out, the War Precautions

Act was silent on the issue of detention and the Court could not imply an intention by Parliament to deprive citizens of this most fundamental liberty.407

Beckett, J likewise found that the Regulation exceeded the authority of

Parliament and is contrary to the "ordinary notions of justice."408

Even if the Act were valid, Chief Justice Madden opined that the act must be constmed to require the Minister of Defence to set forth his reasons for issuing the order and allow the Court to review the reasonableness of the decisions. He proposed an objective standard of review, stating that the warrant must set forth sufficient grounds upon which a reasonable man could conclude that the warrant should issue. Here, he argued, the Minister of Defence failed to set out on its face any facts to support Wallach's detention, nor did the Minister provide any testimony regarding the basis for his form of belief.409 With respect to the Minister's claim of

R v Lloyd; Ex parte Wallach [1915] V L R 476, 496 (M adden, CJ). Ibid 496 (M adden CJ). Ibid 497 (M adden CJ). Ibid (Madden CJ). Ibid 507 (Beckett J). Ibid 496-97 (Beckett J).

-96- privilege, the Chief Justice stated that Court could not take die Minister's mere

assertions, but was entitled to inquire into the validity of the privilege.410

Accordingly, Chief Justice Madden and Justice Beckett held that Wallach must be

released.411

On appeal, the High Court reversed, upholding that the Act as valid and

finding that the Minister's judgment was essentially unreviewable by the Court. In

so holding, none of the justices directly addressed Chief Justice Madden's argument

that Parliament must expressly set forth in the legislation an intention to suspend the

writ of habeas corpus. Nor did the justices consider whether the Act infringed on the

separation of judicial power under Chapter III. Rather, they simply held that the

detention regulation fell within the broad power conferred to the Minister through

Parliament's War Precautions Act to make regulations for "securing the public safety

and defence of the Commonwealth."412 Citing authorities in England and Ireland,

where those governments suspended the writ of habeas corpus to detain individuals

without charge, Justice Higgins concluded that "[tjhere is . . . no such inherent

improbability as is asserted that our Parliament would give extraordinary powers

during the present extraordinary war to a Minister responsible to Parliament."413 Yet

the authorities he cites better support the conclusion of Chief Justice Madden, that

only Parliament can suspend the writ of habeas corpus, not the executive.

The justices further held that the basis for the warrant is not examinable by

the Court. Chief Justice Griffith stated that the Minister is the "sole judge" of the

sufficiency of the evidence upon which he relies to issue the warrant, and thus he

need not disclose the basis for the warrant.414 The justices agreed that the only

410 (1915) C LR 476, 489 (G riffith CJ). 411 Ibid (G riffith CJ). 412 Ibid 307-08 (Griffith CJ). 413 Ibid 311 (H iggins J) 414 Ibid 304 (G riffith CJ); see also ibid 308-09 (Issacs J)(stating that the Minister "is the sole judge of what circumstances are material and sufficient to base his mental conclusion upon, and no one can challenge their materiality or sufficiency or the reasonableness of the belief founded upon them").

-97- relevant inquiry for the Court is whether the Minister had in fact issued the warrant.

As explained by the Chief Justice:

The belief is a matter personal to himself, and must be formed on his

personal and ministerial responsibility. It is quite immaterial whether

another person would form the same belief on the same materials, and

any inquiry as to the nature and sufficiency of those materials would

be irrelevant. Further, having regard to the nature of the power and the

circumstances under which it is to be exercised, it would, in my

opinion, be contrary to public policy, and indeed, inconsistent with the

character of the power itself, to allow any judicial inquiry on the

subject in these proceedings.415

Thus, the only material fact examinable by the Court is whether the warrant is a

genuine warrant by the Minister; the detainees' assertions and evidence of loyalty

were "irrelevant."

The Court's decision paved the way for the implementation of similar

detention policies in World War II, though the Australian government initially

declared a more cautious approach to its internment policy. During Parliamentary

debate of the National Security Act of 1939, Prime Minister Menzies assured the

legislature that his policies would not infringe on civil liberties at home: "The

greatest tragedy that could overcome a country would be for it to fight a successful

war in defence of liberty and Jose its own liberty in the process."416 He declared that

the government did not intend to pursue a general internment policy, but would

415 Ibid 304-06 (Griffith, CJ). 416 In the end, almost 7,000 civilians had been detained, about 4,500 of whom were Australian residents (including Australian-born subjects with German heritage). Upon declaration of armistice, the detainees were released, however the majority were deported. See Alison Bashford and Carolyn Strange, "Asylum-Seekers and National Histories of Detention," in Australian Journal of Politics and History: Vol. 48, N o. 4, 2002, 520 (citing Margaret Bevege, Behind Barbed Wire: Internment in Australia during World War II (St. Lucia, 1993), 8).

-98- only intern those persons specifically "engaging in subversive activities."417 The

Australian "War Book" provided that "[internment should be restricted to the narrowest limits consistent with public safety and public sentiment," and commandants of military districts were directed that "no person should be interned unless his being at large constituted a danger to public safety or the defence of the

Commonwealth." While internment was again part of the government's war strategy, initial arrests were reportedly "few and carefully considered."418

Yet, as the war escalated, and Italy and Japan entered the engagement,

Australia's internment policies rapidly expanded. By 1940, the executive seized upon the broad provisions of the National Security Act of 1939-40 and enacted Regulation

26, which authorised detention of any person which the Minister finds to be acting

"in any manner prejudicial to the public safety or the defence of the

Commonwealth."419 The policy initially applied to all males of military age of Italian and German descent,420 however after Japan's attack on Malaya, Singapore, the

Philippines and Pearl Harbour on December 8, 1941, the internment policies were also extended to all persons of Japanese descent over the age of 16, including men and women as well as the elderly.421

As in World War I, detainees during World War II had no opportunity for redress or review in the courts. In Little v Commonwealth,422 the Court reiterated its position in Lloyd v Wallach that the Court has no authority to review the merits or reasonableness of the Minister's decision. In that case, Robert Clince Little, sued the

Commonwealth for damages for false imprisonment, arguing that there was no basis

417 Kay Saunders, "A Difficult Reconciliation: Civil Liberties and Internment Policy in Australia during World War Two," in Kay Saunders and Roger Daniels, eds, Alien Justice (2000), 117-18. 418 Ibid. 419 Ibid. 420 Yuriko Nagata, Unwanted Aliens (1996), 43-45. 421 Ibid 49. 422 Little v Commonwealth (1947) 75 C LR 94.

-99- for the government's evacuation order.423 Little was bom of British parents in New

Zealand and had lived with his wife on a small island off the coast in Queensland where he operated a homestead. When his wife died, however, he apparently became the subject of neighbourhood gossip and enmity. When the war broke out, the police searched his house, but found nothing incriminating or unusual.

Nevertheless, soon thereafter, "for some unexplained reason," the Minister for the

Army issued a restriction order which, among other things, required that Little evacuate from the island and move to an area 300 miles from the coast of Australia.

Little was later found to be in violation of the order and was arrested and detained pursuant to Regulation 26.424

Upon review, Justice Dixon concluded that Little raised a "very strong presumption" that the orders were mistakenly made. Nevertheless, he held that the merits of the Minister's decision were unreviewable.425 Citing Lloyd v Wallach, Justice

Dixon held that Minister is the "sole judge of the truth, reliability, relevance, and sufficiency of the information" before him.426 The warrant, he concluded, is not

"examinable upon any ground affecting the Minister's opinion short of bad faith."427

On this basis, and because the Court found that the arresting authorities had acted reasonably and honestly, Little's claim for false imprisonment was dismissed.428

While judicial review by the courts was precluded, public protests spurred the government to create the Aliens Tribunal, an administrative panel tasked with reviewing the Minister's decisions regarding detention. The Tribunal was authorised to review appeals by internees and recommend release where it was satisfied that the detention of a person was "neither necessary nor advisable for the public safety, the defence of the Commonwealth or the efficient prosecution of the war," or that

Ibid 98. Ibid. Ibid 103 (Dixon J). Ibid (D ixon J) (citing R. v Lloyd; Ex parte Wallach). Ibid (Dixon J). See ibid 114-15 (D ixon J).

-100- the release of the person "would not be likely to occasion serious unrest in any

Australian community/'429 Yet, the vague standard and often questionable nature of evidence made the review process difficult and generally ineffective. Justice E.E.

Cleland, a Chairman of the Aliens Tribunal, wrote the following in a letter to the

Minister for the Army in December 1940 regarding his difficulties in reviewing the appeals:430

I find my duties are particularly distasteful because there is nothing

'judicial' about them. First of all, I understand that the onus of

satisfying the Committee that any person detained is loyal lies upon...

[him] and the more general and indefinite the charge against him, the

more difficult it is to satisfy the Committee. Again . . . the Committee

has before it, the oath of the person detained subject to cross-

examination and, on the other, unsworn efforts of more or less

anonymous individuals (always described as being 'a particularly

reliable agent') and some of these reports may be personally malicious,

probably honest, and sometimes, no doubt, inspired by patriotic

hysteria.

The hearings were conducted in secret, though the Tribunal did assist in reducing the number of internees from over 10,000 in 1942 to approximately

5,000 two years later.431

As in the United States, the wartime preventative detention policies in

Australia have since been severely criticized. Australian historians and scholars conclude that the detention policies of World Wars I and II were motivated more by racism and hysteria than by any legitimate security need. Historian Gerhard Fisher argues that the internment policies of World War I were a strategy of "negative

429 Kay Saunders, above n 417,115 . 430 Ibid 115 (quoting Justice E.E. Cleland to M inister for A rm y, Australian Archives, , Department of Defence [II] and department of the Army. MP 724/110 item 255/2/814). 431 Bashford and Strange, above n 399, 524.

-101- integration" whereby minorities associated with "enemies of the state" were marginalized, criminalized, excluded and persecuted in order to strengthen patriotism in the new Australian federation.432 Yuriko Nagata similarly has concluded that "most internments were not justified" and urged that "if no other positive outcome can be found from civilian internments during World War II, we can at least determine to create a society where it would be extremely difficult to repeat such events."433

Yet, the Australian government has been far more reticent than its US counterpart in expressing "official" regret regarding the internment policies of

World Wars I and II. Neither Parliament nor the Prime Minister has offered any public apologies or compensation to those interned in the camps. Likewise, there is little indication in the Court's current opinions whether such policies would be upheld today. In Al-Kateb v Godwin, Justice McHugh cited Little v The Commonwealth and Lloyd v Wallach as valid, binding precedent supporting the authority of

Parliament to authorise executive detention without trial in times of war. In his opinion, he argued, there is "no reason to think that [the High] Court would strike down similar regulations if Australia were at war in circumstances similar to those of 1914-1918 and 1939-1945.434

Justice Kirby, on the other hand, took a different view, stating that the

Australian internment cases "are the Australian equivalent to the decision of the

Supreme Court of the United States in Korematsu v United States" which were viewed with embarrassment and are now considered incorrect.435 He opined that "if

Australia were faced with challenges of war today, this Court, strengthened by the

432 Gerard Fischer, "Integration, 'Negative Integration/ Disintegration: The Destruction of the German-Australian Community during the First World War," in Alien Justice, Kay Saunders & R oger Daniels (2000). 433 Yuriko Nagata, Unwanted Aliens (1996), 279. 434 [2004] 2004 W L 1747386 (H C A ), ss 55-61 (M cH u gh J.). 435 Ibid, ss 162-65 (Kirby J, dissenting).

-102- post-War decision in the Communist Party Case and other cases since, would approach the matter differently than it did in the decisions."436

Indeed, the Communist Party Case set important limits on the executive's power purported to be exercised pursuant to its defence power. In that case, the

High Court held unconstitutional the Communist Party Dissolution Act 1950 (Cth) an act aimed at banning the Australian Communist Party.437 The Act declared that the

Communist Party "engages in activities or operations designed to bring about the overthrow or dislocation of the established system of government of Australia and the attainment of economic, industrial or political ends by force, violence, intimidation or fraudulent practices."438 Under section 5(2) of the Act, die Governor-

General was authorised to declare an association unlawful and dissolve the organisation and provide for its dissolution where

The Governor-General is satisfied that a body of persons to which

this section applies and that the continued existence of that body of

persons would be prejudicial to the security and defence of the

Commonwealth or to the execution or maintenance of the

Constitution or of the laws of the Commonwealth.439

Similarly, under section 9(2), the Governor-General could declare any person to be

Communist or a member of the Communist Party under a similar scheme of discretion, a designation which could prevent individuals of serving in the public sector or working in the defence industry.440

The High Court held that the act was invalid on the grounds that it did not fall with the scope of the Commonwealth power. Significantly, the Court held that the Governor-General's determinations were unreviewable by the Court and thus granted the executive unfettered discretion to determine the scope of

Ibid. Australian Communist Party v Commonzvealth (Communist Party Case) (1951) 83 CLR1. Ibid 136. Ibid. Ibid 138.

-103- Commonwealth power, a power, the Court concluded, which was exclusively a

judicial one.441 Justice Fullagar distinguished the World War II internment cases,

stating that in times of war, the defence power is broader and may be able to operate

upon the opinion of a single person.442 However, absent these circumstances, his

Honour stated, the validity of a law "cannot be made to depend upon the opinion of

the law-maker, or the person who is to do the act, that the law is within the

constitutional power upon which the law in question depends for its validity."443

In short, the High Court has expressly upheld the preventative detention of

citizens and non-citizens as a constitutional exercise of the government's war

powers. In contrast to its treatment of preventative detention in peacetime, the High

Court paid no consideration to whether the preventative detention of citizens

infringed on the separation of judicial power under Chapter III. The Court found

Parliament's war powers to be plenary and virtually unreviewable by the judiciary.

While there is authority which suggests that the decision might be different today,

the recent exchange between Justice Kirby and McHugh suggests that it will an issue

of significant debate.

C. Conclusions

Both the United States and the Australian courts have upheld, either explicitly

or implicitly, preventative detention in times of war. However, in upholding these

restrictions, the courts were clear that their decision were narrow and confined to

times of declared war and imminent threat. Indeed, in the United States the Supreme

Court emphasised that such restrictions would be impermissible in times of peace.

Likewise, in Australia, the High Court upheld the detention scheme as a permissible

exercise of the government's powers while at war. While the scope of the

Commonwealth government's defence power to detain citizens in times where the

441 Ibid. 442 Ibid 258 (Fullagar J). 443 Ibid.

-104- country is not engaged in active conflict has not been clearly defined, Justice

Fullagar's opinion in the Communist Party Case suggests that the wartime cases have little application outside the circumstances of an active conflict or declared war.

Courts in both jurisdictions exercised extreme deference in analysing the legality of the government's wartime measures. Nevertheless, as in the peacetime cases, the US Supreme Court's due process analysis, while deferential, was more searching than that of the Australian High Court, which adopted an analysis exclusively based on the scope of the federal government's war powers. In the

Korematsu line of cases, the US Supreme Court applied a balancing test similar to that which it applied in the peacetime cases. While the Supreme Court was highly deferential to the government's assertion that national security outweighed the right to liberty, the Court at least engaged in some review of the government's assertions of necessity even though its review of the rationality of such measures and adequacy of procedural safeguards was lacking. In Australia, on the other hand, the Court set forth no constitutional limits on the reach of war powers with respect to preventative detention at the height of actual conflict.

Nevertheless, the precedential value of both the Australian and US cases upholding the preventative detention of citizens in times of war is highly questionable. In the United States, the courts have dismissed Korematsu as wrongly decided, and the government has conceded that the detention schemes were an overreaction and that the military justification supporting their implementation was unsubstantiated. In Australia, the wartime decisions have been undercut by

Communist Party Case, though the significance of the cases today has been a matter of debate. In retrospect, history suggests that preventative detention was ineffective in identifying disloyal residents and perpetrators of espionage. None of the individuals detained in the internment camps of World War II were charged with any crime.

While it is hard to say that preventative detention is never necessary, there is little evidence to support its imposition even in times of war.

-105- Chapter Four Preventative Detention in the Age of Terrorism

Since September 11, both the Australian and United States governments have extended the scope of preventative detention beyond the traditional categories recognised in times of peace and war in order to respond to the new exigencies of terrorism. Legal scholars and politicians agree that the challenges of terrorism make it difficult for it to fit perfectly into either the peacetime or the wartime legal paradigms.444 While terrorism has been classified as a crime,445 and thus arguably falls into the peacetime criminal justice model, prosecutors have expressed concerns that the confidentiality of intelligence information has made it difficult, if not impossible, to try cases against terrorists.446 The trial in the United States of Zacarias

Moussaoui, a self-confessed member of al Qaeda, on six counts of conspiracy relating to the 9/11 attacks, hit several constitutional roadblocks relating to the

444 See, eg, Bruce Ackerman, "The Emergency Constitution," (March 2004) 113 Yale L J 1029, 1031-37 (similarly arguing that neither the "crime" or "war" rubric is adequate to deal with the war on terrorism); Derik Jinks, "September 11 and the Laws of War," (Winter 2003) 28 Yale J Int'l Law 1; John Yoo, "Courts at War," (January 2006) 91 Cornell L Rev 573. 445 Both Australia and the United States have defined terrorism in their respective criminal codes and have passed an extensive array of laws criminalizing acts of terrorism, as well as various acts relating to the training, planning, and preparation of terrorist acts. See, eg, Criminal Code s 101.1 et seq. (listing federal terrorism related criminal offences in Australia); 18 USC § 2331 et seq. (same in the United States). Moreover, both countries have expanded the scope of criminal jurisdiction to reach extraterritorial acts of terrorism, thus dispelling the idea that the international character of terrorism places it beyond the scope of criminal law. See, e.g., Criminal Code ss 101.1(2), 101.6(3), 102.9 (providing extended jurisdiction (Category D) to terrorism cases); 18 USC §§ 2331(a) (criminalizing acts of "international terrorism"), 2332b(e); 2339B(d) (providing for extraterroritorial jurisdiction for terrorism offence). 446 See Serrin Turner and Stephen Schulholfer, "The Secrecy Problem in Terrorism ," Liberty National Security Project, Brennan Center for Justice at NYU School of Law (2005). See also, Speech by Secretary Robert Cornell, Attorney-General's Department, "Safeguarding Australia 2006 Conference, 19 September 2006, Canberra," http://www.ag.gov.au/agd/WWW/agdHome.nsf/Page/ RWPAC3237372437542 9CA2571EE0003E8AC (describing difficulties of dealing with classified information in criminal trials).

-106- tension between national security interests and the defendant's rights to examine certain evidence in the possession of the US government.447 Moreover, it is uncertain whether the sanctions imposed by criminal laws have any deterrent effect on terrorists who often are willing to commit suicide in pursuit of their cause. It also has been argued that terrorism not only endangers the safety of the community, but threatens the national security of the country, and thus requires the use of enhanced powers not afforded in the criminal justice process.

Terrorism, however, does not fit well into the wartime paradigm either.

While the United States' war against the Taliban in Afghanistan and against the troops of Saddam Hussein in Iraq certainly fall into the category of a more traditional war between sovereign states, the war against al Qaeda and the even broader "" do not. Unlike a war between sovereign states, or even a battle against an internal insurgency, the war on terrorism is unlikely to end with surrender or a peace treaty. President Bush admitted in his address before a joint session of Congress that "this war will not be like [the Gulf War,] with a decisive liberation of territory and a swift conclusion."448 Indeed, it is uncertain when or whether the "war on terrorism" will ever end. Thus, attempts by the Australian and

United States governments to justify preventative detention as a response in the

"war on terror" suffer from this weakness in the rhetoric. The threat of terrorism is simply not equivalent to earlier conflicts.

Thus, it might be argued that perhaps terrorism is a new category in which preventative detention must be accommodated. Yet, while the two countries agree that the threat of terrorism warrants the use of preventative detention, each has adopted a strikingly different strategy. In the United States, congressional anti­ terrorism legislation was largely silent on the issue of preventative detention. Rather,

447 See Megan Healy, "Compulsory Process and the War on Terror: A Proposed Framework," (June 2006) 90 Minn L Rev 1821 (describing challenges of balancing defendants' rights and nations security interests in Moussaoui case). 448 President's Address to a Joint Session of Congress and the American People, 20 September 2001, http://www.whitehouse.gov/news/releases/ 2001/09/20010920-8.html.

-107- preventative detention has been effected through executive orders authorising the detention of suspected terrorists as enemy combatants in Guantanamo Bay, or through the "material witness statute," which authorised the detention of individuals as witnesses to the grand jury investigations into the September 11 attacks. By labeling the detainees wartime combatants or witnesses, rather than criminal suspects, the United States government aims to sidestep, and arguably preserve,449 the protections afforded criminal defendants in the Bill of Rights. Yet, in the end, the government7s policies do nothing more than create a parallel system of lawless and indefinite detention which violates those very principles which were supposedly protected under the Constitution. For this reason, the US strategy toward preventative detention has been characterized as "extra legal," — or as

Professor Kent Roach put it, at the "edges of the law."450

In contrast, the Australian Parliament has placed preventative detention directly into the Criminal Code. Recent Australian anti-terrorism legislation has armed law enforcement and judicial officials with the authority to preventatively detain suspected terrorists, citizens and non-citizens alike, as well as the power to impose control orders, which place significant limitations on individual's freedom of movement, including house arrest. Compared to the US preventative detention measures, the Australian laws are more narrowly tailored and incorporate far more safeguards and procedural protections. Yet, at the same time, by legitimating detention without trial as part of the Code, the Australian strategy sets a dangerous precedent which conflicts with the fundamental protections of the criminal justice system.

This chapter examines and compares the preventative detention policies adopted by Australia and the United States since September 11, and analyses the constitutional issues associated with those policies in light of the courts' precedent

449 See Kent Roach, "The World Wide Expansion of Anti-Terrorism Laws After September 11, 2001," (2004) Studi Senesi, 520. 450 Ibid.

-108- on preventative detention as well as new challenges raised by terrorism. First, I discuss the United States' preventative detention policies, focusing on the executive's authority to detain terrorist suspects under the President's executive order on Guantanamo Bay detainees, as well as the "material witness statute".

Second, I discuss die preventative detention legislation incorporated into Australia's recent anti-terrorism legislation, specifically the government's new powers to issue preventative detention orders and control orders in cases of terrorism.

A. United States: Preventative Detention of Enemy Combatants and Material Witnesses

Following the events of September 11, Congress passed the Uniting and

Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct

Terrorism Act (USA Patriot Act) (2002), one of the largest and most extensive counter­ terrorism bills in US history.451 The 300-plus page Act was aimed at "deterring and punishing terrorist acts in the United States and around the world."452 To this end, the Act reorganised certain government agencies, expanded police surveillance powers, amended anti-money laundering and immigration laws and crafted a new definition of domestic terrorism. Yet, unlike the United Kingdom's Terrorism Act

2000, which served as the model for several western democratic states' anti-terrorism laws,453 the USA Patriot Act did not incorporate any new police powers authorizing the preventative detention of terrorism suspects. While the Act did grant the

Attorney General authority under the immigration laws to detain non-US citizens

451 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA Patriot Act), Pub L No 107-56 (2002). 452 Ibid. 453 See Kent Roach, "Sources and Trends in Post 9/11 Anti-Terrorism Laws," in Goold and Lazarus eds., Human Rights and Terrorism (forthcoming publication) (describing the UK Terrorism Act 2000 as the guidance for several states' anti-terrorism laws implemented after September 11). Professor Roach presented the chapter as a paper in a seminar held at University of New South Wales in Sydney, Australia, on 22 August 2006.

-109- suspected of terrorist activities, these new detention powers were limited for the purpose of deportation and to date, have never been used.454

This is not to say, however, that the Bush Administration did not adopt preventative detention as part of its post-September 11 counterterrorism strategy.

Shortly after the attacks on the Pentagon and World Trade Center, the executive branch implemented a policy of preventative detention which authorised the capture and detention of suspected terrorists found anywhere in the world, including in the

United States. First, the President announced that, pursuant to Congress'

Authorization of Use of Military Force and his inherent authority under Article II as

Commander in Chief of the Armed Forces, suspects of terrorism could be detained without charge under military authority as enemy combatants.455 Second, the

Department of Justice declared that suspects of terrorism could be preventatively detained as "material witnesses" to the government's grand jury investigations into the attacks of September 11.456 Pursuant to these asserted powers, the executive has detained without charges over 700 individuals in a military detention compound in

Guantanamo Bay, Cuba,457 and approximately 70 individuals458 in federal detention centres in the United States as "material witnesses."459

454 Section 412 of the USA Patriot Act amended the Immigration and Nationality Act to authorise the detention of aliens where the Attorney General has reasonable grounds to believe that an alien is involved in acts of terrorism or is otherwise a national security threat. 8 USCA § 1226a(3). The constitutionality of these detention provisions has been questioned by legal scholars. See, eg, Margaret H. Taylor, "Dangerous by Decree: Detention Without Bond in Immigration Proceedings," (2005) 50 Loy L Rev 149; David Cole, Terrorism and the Constitution (2006), 201-04. Indeed, in the United Kingdom, a court has held that the indefinite detention of non-nationals suspected of international terrorisms was disproportionate and discriminatory under the UK Human Rights Act. See A & Others v Secretary of State for the Home Department [2004] UKHL 568 (U.K.). 455 See Executive Order, 66 Fed Reg 57833 (13 November 2001). 456 See Alberto R. Gonzales, counsel to President, "Statement to American Bar Association," Washington, D.C. (24 February 2004), http://www.abanet.org/natsecurity/ judge_gonzales.pdf. 457 US Department of Defense, "Detainees Released," (News Release 5 May 2006), http://www.defenselink.mil/releases/2006/nr20060505-12980.html (reporting that 270 detainees have been release and 480 detainees remain in Guantanamo Bay).

-110- The constitutionality of these preventative detention measures under the

United States' Bill of Rights is highly suspect. Both detention schemes are overbroad and not only sidestep the constitutional protections of defendants in the criminal justice system, but also fail to incorporate necessary procedural protections and safeguards that are afforded in various other models of administrative detention.

While certain aspects of the detention laws have been struck down by the Supreme

Court in reviewing claims challenging the legality of the preventative detention scheme, the Court has repeatedly ducked the more pressing and fundamental problems of indefinitely detaining suspected terrorists without charges or a trial. As a result, the United States, a country which is known for some of the strongest constitutional protections of individual rights in the world, has implemented a system of preventative detention which is far more Draconian than those countries like Australia, with very limited constitutional safeguards for individual rights. 459458

458 See , "Witness to Abuse: Human Rights Abuses under the Material Witness Law since September 11, Vol. 17, No. 2, at 16 (June 2005) (conducting separate research indicating that as of June 2005, the government has arrested at least 70 material witnesses in connection with the September 11 counter-terrorism investigation). The Justice Department, however, has refused to indicate exactly how many individuals have been held in secret detention under the material witness statute, claiming that the need to protect the secrecy of grand jury investigations as well as a concern for national security bars disclosure on any specific information that would be detrimental to the war on terrorism. See John Ashcroft, Attorney General, Statement, "Attorney General Ashcroft Provides Total Number of Federal Criminal Charges and INS Detainees," (27 November 2001), http://www.usdoj.gov/archive/ag/speeches/2001/agcrisisremarksll_27.htm. 459 The US government also held approximately 600 suspects on immigration violations immediately following September 11. The pretextual use of immigration laws to detain terrorist suspects is beyond the scope of this paper, but has been discussed extensively in various books and law review articles. See, eg, David Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (2003); Raquel Aldana, "The September 11 Immigration Detentions and Unconstitutional Executive Legislation," (Fall 2004) 29 S 111 U L J 5. -Ill- 1. Enemy Combatants

a. The AUMF and the November 13 Executive Order

One week after September 11, Congress passed a joint resolution referred to

as the Authorization for Use of Military Force ("AUMF").460 The AUMF authorised

the President to

use all necessary and appropriate force against those nations,

organizations, or persons he determines planned, authorized,

committed, or aided the terrorist attacks on September 11, 2001, or

harboured such organizations or persons, in order to prevent any

future acts of international terrorism against the United States by such

nations, organizations or persons.461

On October 7, President Bush, citing his authority under the AUMF as well as his

powers as Commander in Chief, ordered the United States Armed Force to

Afghanistan on a military campaign to subdue al Qaeda and the Taliban regime

which had refused to hand over al Qaeda leader Osama bin Laden. On October 21,

the United States military began ground operations against Taliban and al Qaeda

officials.

On November 13, 2001, while the United States armed forces were still fighting in Afghanistan, the President issued an order entitled the "Detention,

Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism."462 The scope of the order was incredibly broad. The order authorised the Secretary of

Defense to detain any non-US citizen who the President determines there is reason to believe

(i) is or was a member of the organization known as al Qaida;

(ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused,

460 PL 107-40,115 Stat 224 (18 September 2001). 461 Ibid. 462 66 Fed Reg 57833 (13 November 2001).

-112- threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or

(iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) [above].463

Thus, the order not only authorised the military to detain present and former members of al Qaeda captured in the course of the conflict in Afghanistan, but also any suspect of "international terrorism," as well as their aiders and abetters (and those who harbour them). It further authorised their capture and detention anywhere, including in the United States, regardless of whether there is an active conflict in the area or not. Moreover, while the order only applied to non-US citizens, the Bush

Administration declared the military has authority to preventatively detain citizens and non-citizens alike, designating at least two US citizens, Yasser Hamdi and Jose

Padilla, as enemy combatants and detaining them in a military brig in South

Carolina.464

The order set forth few procedural protections or safeguards for individuals held in preventative detention. Significantly, the order placed no time limits on the length of preventative detention. While the order provided that detainees may be tried and sentenced by military commissions for "violations of the laws of war and other applicable laws," it placed no time limits on when a detainee must be charged or when such a trial must take place. More importantly, the order left open the possibility that detainees could be held in preventative detention indefinitely without trial. It has been the government's position in its various court filings and media statements that the military may hold the detainees in preventative detention until the end of America's war on terrorism, or until the military determines that a particular detainee no long poses a threat to the United States or its allies.465 Given

463 Ibid 57834, § 2(a). 464 See Hamdi v United States, 542 US 507 (2004); Rumsfeld v Padilla, 542 US 426 (2004). 465 Then Deputy Assistant Attorney General John Yoo said in a 2002 speech: "Does it make sense to ever release them if you think they are going to continue to be dangerous, even though you can't convict them of a crime." Henry Weinstein, Prisoners May Face a

-113- the amorphous nature of the "war on terrorism/' the government may have effectively imposed a life sentence on enemy combatants held preventatively in

Guantanamo Bay.

The November 13 order also failed to detail any process for detainees to contest their combatant status. Unlike the small subset of detainees who were subject to prosecution in the military tribunals, individuals in preventative detention were not permitted access to counsel under the order. Nor did the order require that they be informed of the bases for their detention, let alone a formal opportunity to challenge their "" status. While the Supreme Court has since held that detainees are entitled to at least some procedural due process rights to contest their status,466 detainees subject to indefinite preventative detention are still afforded fewer procedural protections than those subject to prosecution and punishment for violations of the laws of war in die Administration's proposed military tribunals.

With respect to judicial review, the order purported to cut off any rights to seek redress or review outside the jurisdiction of the military tribunal. The order stated that detainees were barred from seeking "any remedy or maintainFing] any proceeding" in US courts, foreign courts or international tribunals.467 Thus, the order not only failed to provide a hearing process through which detainees could appeal their detention, but it barred them access to those review mechanisms already in place.

The order outlined certain minimal standards relating to the conditions of detention in Guantanamo Bay. It directed that they were to be treated humanely and stated that detainees shall be afforded adequate food, drinking water, shelter,

"Legal Black Hole," Los Angeles Times (1 December 2002), Al. See also In re Guantanamo Detainees, 355 F Supp 2d 443, 447 (D.D.C. 2005) (explaining the government's position is that enemy combatant "can be held indefinitely until the end of American's war on terrorism or until the military determines on a case by case basis that the particular detainee no longer poses a threat to the United States or its allies"). 466 See Hamdi v Rumsfeld, 542 US 426 (2004). 467 66 Fed Reg 57831, 57831, §7(b) (13 November 2001).

-1 1 4 - clothing and medical treatment.468 Nevertheless, the has declared that the conditions of detention at Guantanamo Bay — where most of the detainees have been held — violate international human rights standards.469 Detainees are kept in solitary confinement in cells that measure six feet, eight inches by eight feet for all but two 20-minute exercise breaks per week.470 The cells are illuminated from flood lights 24 hours a day, and detainees are shackled whenever they leave their cells.471

Detainees are permitted to shower only two or three times a week, and the guards reportedly use food as an incentive to get detainees to provide information.472

In addition, detainees are subjected to extensive and aggressive interrogation.

In 2002, Secretary of Defense Donald Rumsfeld authorised, as part of the government's interrogation policy, the use of forced stress positions, hooding, denial of religious items, stripping of prisoners, shaving of prisoners and the exploitation of detainees' phobias through such means as the use of dogs.473 While these measures were curtailed in 2003, current official interrogation policy at Guantanamo still permits, among other things, dietary manipulation, exposure to extreme temperatures, sleep deprivation and isolation. 474 From 2001 to 2004, there have been

468 66 Fed Reg 57831,57832, § 3 (13 November 2001) 469 United Nations Economic and Social Council, "Situation of detainees at Guantanamo Bay," (15 February 2006), §§ 53-71. See also Melissa A. Jamison, "Detention of Juvenile Enemy Combatants at Guantanamo Bay: The Special Concerns of Children," (Winter 2005) 9 U.C. Davis J of Juvenile L. & Policy 125, 134 (describing conditions at Delta Camp at Guantanamo Bay). 470 United Nations Economic and Social Council, "Situation of detainees at Guantanamo Bay," (15 February 2006), §§ 53-71. 471 Ibid. 472 Ibid. 473 See 2 December 2002 Memorandum from William J. Haynes II to Secretary of Defense re Counter-Resistance Techniques, http://www.gwu.edu/~nsarchiv/NSAEBB/ NSAEBB127/02.12.02.pdf. 474 See 16 April 2003 Memorandum for the Commander, Southern Command re Counter-Resistance Techniques in the War on Terrorism, http://www.gwu.edu/v ~nsarchiv/NSAEBB/NSAEBB127/03.04.16.pdf

-115 - thirty-four attempted suicides which, according to prison officials, can be attributed to the "effects of indefinite detention on prisoner morale."475

b. The Supreme Court's Response to Preventative Detention Under the November 13 Order

Since the transfer of detainees to Guantanamo Bay pursuant to the November

13 order, hundreds of petitions for habeas corpus have been filed on behalf of detainees in US federal courts, challenging the legality of the detention scheme under the Constitution and various federal statutes. The Court's response, however, has been a measured one. Since September 11, the Supreme Court has issued four decisions addressing the Bush Administration's detention policies in Guantanamo

Bay: Rasul v Bush, Hamdi v Rumsfeld, Padilla v United States and Hamdan v Rumsfeld.476

In these decisions, the Court asserted jurisdiction over the detainees' claims and struck down certain procedural aspects of the Administration's preventative detention policies. For this reason, several commentators have declared the Court's response as a victory for civil liberties.477

Nevertheless, the Supreme Court has evaded the more pressing and difficult questions regarding the constitutionality of preventative detention in the age of terrorism. The Court upheld its jurisdiction to review the claims of the detainees in

Guantanamo,478 but left open the question whether the detainees' right to review could be overridden by congressional legislation. The Court also upheld the detention of combatants captured on the battlefield of Afghanistan,479 but refused to address the scope of the government's authority to detain enemy combatants outside

475 "Guantanamo Inmate Tries to Kill Himself," St Louis Post-Dispatch, (7 January 2004), A8; Guantanamo Bay Detainee Attempts Suicide, Raising Number to 30 (, 13 August 2003). 476 Rasul v Bush, 542 US 466 (2004); Hamdi v Rumsfeld, 542 US 426 (2004), Rumsfeld v Padilla, 542 US 426 (2004); Hamdan v Rumsfeld, 126 S Ct 2749 (2006). 477 See, eg, David Cole, "Why the Court Said No," in The New York Review of Books, Vol 53, No. 13 (10 August 2006), 41-43. 478 Rasul v Bush, 542 US 466 (2004). 479 Hamdi v Rumsfeld, 542 US 426 (2004).

-1 1 6 - the theatre of military battle. Finally, the Court found that the military tribunals

must be authorised through congressional legislation,480 but said nothing about

whether similar legislation was necessary for preventative detention of suspected

terrorists captured in the United States. Accordingly, the Court's practice of "judicial

abdication," 481 482as one scholar put it, has left some of the most questions regarding the

authority to detain suspected terrorists without charges unresolved.

Rasul v Bush

The first Guantanamo Bay detainee case to come before the Court was Rasul v

Bush.m The decision was a monumental one for the detainees. The government had

argued that the Court lacked jurisdiction to review any of the petitions for habeas corpus by the Guantanamo Bay detainees because the detainees were captured and held outside of the United States.483 The government relied heavily on the Supreme

Court's decision in Johnson v Eisentrager, a World War II case in which the Court had denied review of petitions for habeas corpus filed by non-citizens who had been

convicted of war crimes and detained in Landsberg Prison in occupied Germany.484

In a 6-3 decision, the Court rejected the government's argument, and held that

courts had jurisdiction under the federal habeas statute to review petitions for release by non-citizen detainees held as enemy combatants in Guantanamo Bay.485 Both

Justice Stevens, writing for a plurality of four justices, and Justice Kennedy, in a concurring opinion, distinguished Eisentrager, finding that the situation of the

Guantanamo detainees was significantly different from that of the Eisentrager

480 Hamdan v Rumsfeld, 126 S Ct 2749 (2006). 481 See Stephen I Vladeck, "The Detention Power," (Winter 2004) 22 Yale L & Pol'y Rev 153,193-94 (stating the Court7s decisions on detention are not merely judicial tolerance, but are "better characterized as highlighting the problem of judicial abdication, for in deferring to what is essentially unilateral executive action, the judiciary is failing to serve its most fundamental constitutional purpose as a check on such power"). 482 Rasul v Bush, 542 US 466 (2004). 483 Ibid 475. 484 Ibid. 485 Ibid 481-85.

-1 1 7 - detainees.486 In particular, the justices in the majority found that the military base in

Guantanamo Bay was different from the prison in occupied Germany because of the

government's indefinite and unique lease arrangement with Cuba.487 Thus, for

purposes of the habeas statute, Guantanamo Bay was US "territory" and therefore

was subject to the jurisdiction of federal courts.

The majority, however, did not only rely on the unique lease arrangement at

Guantanamo Bay as the basis for jurisdiction, but also reasoned that the indefinite

nature of the detention was an important factor distinguishing the Guantanamo

detainees from those in Eisentrager. They pointed out that in Eisentrager, the

petitioners already had been tried, convicted and sentenced to prison for war crimes

before a military commission, but in Rasul, the petitioners had been held for two

years without trial and indeed without being charged with any crimes.488 Indeed,

Justice Kennedy found the indefinite nature of the detention to be a "critical fact" :489

Indefinite detention without trial or other proceeding presents

altogether different considerations. It allows friends and foes alike to

remain in detention. It suggests a weaker case of military necessity and

much greater alignment with the traditional function of habeas corpus.

Perhaps, where detainees are taken from a zone of hostilities without

proceedings or trial would be justified by military necessity for a

matter of weeks; but as the period of detention stretches from months

to years, the case for continued detention to meet military exigencies

becomes weaker.490

486 Ibid (plurality opinion), 481-88 (Kennedy J, concurring). 487 Rasul, 542 US 466, 480-81 (2004) (finding that Guantanamo Bay was part of United States sovereign territory because of the lease arrangement and therefore any argument that the habeas statute does not apply extraterritorially does not apply); ibid 487 (Kennedy J, concurring) (finding that the "indefinite lease of Guantanamo Bay has produced a place that belongs to the United States, extending the 'implied protection' of the United States to it."). 488 Rasul, 542 US at 476; ibid 487-88 (Kennedy J, concurring). 489 Ibid 487-88 (Kennedy J, concurring). 490 Ibid (Kennedy J, concurring). Justice Stevens similarly emphasized that the Guantanamo detainess, unlike those in Eisentrager were "never afforded access to a tribunal,

-1 1 8 - While typically, jurisdictional issues have been limited to where the detainee was

held, not the length of the detention,491 the Court's focus on the indefinite nature of

the detention suggests that judicial review of executive detention is not merely tied

to territorial matters, but stems from a greater concern about the abuse of executive

power and the importance of judicial review as a check on that power.

For this reason, the decision could be read extremely broadly. Indeed, the

dissenting justices argued that the Court's decision would extend habeas jurisdiction

over military prisoners to "the four comers of the earth."492 To grant the

Guantanamo detainees judicial review, they declared, would require the judicial

review of petitions from those similarly situated to the millions of alien prisoners of

war held by US forces worldwide during World War II.493

Nonetheless, the Court's reliance on the unique lease arrangement at

Guantanamo Bay suggests that title decision is more likely a narrow one. In analysing jurisdictional issues, courts have distinguished between leased military installations

abroad from territories, such as the "trust territory" of Micronesia or

"unincorporated territory" of Guam.494 Thus, the rights of future "enemy combatant"

detainees could be easily cut off by simply detaining them in those overseas military

detention centres instead of Guantanamo Bay. In fact, the Bush Administration

recently acknowledged that the most dangerous, "high value" terrorist suspects

have been held preventatively in secret CIA detention centers in Europe and other

overseas locations.495 much less charged with and convicted of wrongdoing;" and had been imprisoned for more than two years. Ibid 476. 491 See, e.g., Braden v 30th Judicial Circuit Ct. of Kentucky, 410 US 484 (1973). 492 Rasul, 542 US 466, 498 (Scalia, Thomas, Rehnquist JJ, dissenting). 493 Ibid 499 (Scalia, Thomas, Rehnquist JJ, dissenting). 494 See Respondent's Brief, Rasul v Bush, 2005 WL 425739, at *29-32 (3 March 2004) (summarising caselaw distinguishing between types of territories subject to US jurisdiction). 495 See David Stout, "C.I.A. Detainees Sent to Guantanamo," NY Times On line, (6 September 2006); Sheryl Gray "President Moves 14 Held in Secret to Guantanamo," NY Times On line (8 September 2006), http://www.nytimes.com/2006/09/07/us/07detain.

-119- Moreover, the Court's holding made dear that the federal courts were now

open to petitions by Guantanamo detainees, yet the dedsion did not guarantee that

the court doors would remain open to such daims. The Court7 s findings were based

on an interpretation of the habeas statute, not on any constitutional right to judicial

review.* 496 Thus, while Rasul assured the detainees a statutory right to judicial review,

the government could try to extinguish those rights by enacting an amendment to

the habeas statute limiting its scope as it applied to Guantanamo detainees.

Not surprisingly, that is exactly what Congress did. On December 30, 2005,

Congress passed the Detainee Treatment Act (DTA) which, among other things,

amended the habeas statute to deny courts jurisdiction to hear petitions for writs of

habeas corpus by alien detainees in Guantanamo Bay.497 The DTA substituted the

detainees' previously unencumbered right to petition for habeas relief with a new

complex scheme of appeal which not only limited the types of claims that may be

raised on appeal, but restricted appeals to the United States Court of Appeals for the

D.C. Circuit. Under this new process, a detainee must first bring his claims before a

military tribunal before appealing to the D.C. Circuit. The court's scope of review is

similarly restricted to reviewing whether the decision of the military tribunal

complied with the applicable administrative standards and procedures, and whether

the use of such standards and procedures is consistent with the US Constitution and

laws.498 Thus, unless the court finds in a future case that the detainees' rights are not

merely statutory, but are constitutional, any new habeas petition challenging the

html?ei=5094&en=42853988c547fbfe&hp=&ex=1157601600&partner=homepage&pagewanted =print (accessed on 9 September 2006).. 496 Rasul, 542 US 466, 476 (reasoning that Eisentrager was relevant only to the prisoners7 constitutional entitlement to habeas corpus, not a statutory entitlement - the issue in this case). 497 Detainee Treatment Act of 2005, Publ. L. No. 109-148, §1005(1), 119 Stat 2739. The Act further limited not only petitions for writs of habeas corpus but also "any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense ... in Guantanamo Bay." Ibid § 1005(1). 498 Ibid § 1005(e)(2)(C).

-120- underlying authority of the government to preventatively detain an alien will likely fail. 499

Hamdi v Rumsfeld

The same day the Court issued its decision in Rasul, it also decided Hamdi v

Rumsfeld.500 Unlike Rasul, which was limited to jurisdictional issues, the Hamdi decision addressed the substantive merits of the legality of the executive's authority to preventatively detain enemy combatants. Like the petitioners in Rasul, petitioner

Yaser Esam Hamdi was captured in Afghanistan in 2001 by the Afghan Northern

Alliance as they fought the Taliban.501 The Alliance turned Hamdi over to US forces who then detained him at the United States Naval Base in Guantanamo Bay in

January 2002.502 Yet, unlike the Ra sul petitioners, Hamdi was an American citizen.

When the Department of Defense confirmed Hamdi's citizenship, they transferred him to a naval brig in Norfolk, Virginia, and then later to a military brig in South

Carolina.503 Thus, while the government conceded jurisdiction, it argued that the petition lacked merit because the executive had inherent authority to indefinitely detain Hamdi in military detention as an enemy combatant. Alternatively, the government asserted that Congress authorised the detention of enemy combatants

— citizens and non-citizens alike — through the AUMF.

A majority of the justices held that the executive was authorised under the

AUMF to detain citizens (and thus, presumably non-citizens as well) who qualify as

"enemy combatants."504 The Court's decision, however, was a narrow one. The plurality did not address the legality of the detention of enemy combatants as broadly defined under the November 13 order, but rather limited its holding to

499 The Court has since held that the DTA's restrictions on judicial review do not strip federal courts' jurisdiction over cases pending on the date of the DTA's enactment. Hamdan v Rumsfeld, 126 S Ct 2749 (2006). 500 Hamdi v Rumsfeld, 542 US 426 (2004). 501 Ibid 510. 502 Ibid. 503 Ibid. 504 Ibid 516 (plurality opinion); 579 (Thomas J, concurring in part and dissenting in part).

-121- those "enemy combatants" who were "'part of or supporting forces hostile to the

United States or coalition partners' in Afghanistan" and who were "'engaged in the armed conflict against the United States' there/"505 Thus, their decision only applied to detainees captured on the battlefield in Afghanistan. It said nothing about whether that authority extended beyond the theatre of traditional war.

By narrowly construing the case so as to fit into the more traditional wartime paradigm, the Court avoided the more difficult questions of determining the scope of executive authority in the vague and undefined "war on terrorism." The Court merely restated the well-established practice that during active combat, military personnel can capture enemy combatants on the battlefield and hold them until the end of the war. The Court found no obstacle in the Non-Detention Act — the Act passed after Korematsu which mandated congressional authorization for the detention of citizens — finding that Congress had authorised military force through the AUMF.506 While the AUMF contained no explicit authority to detain, "universal agreement and practice" detention of enemy combatants is a "fundamental and accepted incident of war" and thus, was implicit in the AUMF.507

Citing E x parte Q u irin and other wartime cases, the plurality declared that the purpose of the detention was not to punish, but solely "to prevent captured individuals from returning to the field of battle and taking up arms once again."508

This purpose certainly holds in traditional wars between two sovereigns, or even in a civil war or war against insurgents, but does not necessarily hold in the broader war on terrorism. In the typical wartime paradigm, the war ends conclusively with a treaty or peace agreement, pursuant to which prisoners of war are released and are bound to strictly adhere to their commanders' directives to cease fire. Yet, the

505 Ibid (citation omitted) (emphases added). 506 Ibid 516-17. 507 Ibid 517. The Court declined to decide whether the Non-Detention Act only applied to the "control of civilian prisons and related detentions," and non-military detention - an argument that the government put forth. Ibid. 508 Ibid 518.

-122- detention scheme makes less sense when applied to the terrorism conflict. Even

assuming that the "war on terrorism" is appropriated labelled a "war," it is a war

that is unlikely to end with a treaty or peace agreement, if it ends at all. Moreover, if

there is some sort of end to the conflict which would trigger the release of the

detainees, it is not clear that the same assumptions underlying the release of

prisoners would apply in the terrorism paradigm. While there is evidence of a chain

of command in some terrorist organizations, many terrorists act individually or in

independent cells, and thus arguably may remain an equal threat regardless of

whether the leaders of one particular organization has been subdued or a peace

agreement has been reached.

The Court, however, found it unnecessary to address these difficult questions unique to the terrorism conflict. The plurality freely acknowledged the unconventional and potentially indefinite nature of a terrorism conflict, however the justices concluded that these issues need not be addressed because at the time of the

Court's decision, the United States was still engaged in active conflict in

Afghanistan.509 Nevertheless, they cautioned, a different conclusion may be reached:

"If the practical circumstances of a given conflict are entirely unlike those of the

conflicts that informed the development of the law of war, that understanding may unravel." 510 The Court gave few clues as to what circumstances would sufficiently distinguish this war from the more traditional war and, thus, the more practical and pressing questions regarding the authority to detain in die broader "war on terrorism" remain unresolved.

The Court's decision, however, was far from unanimous. While Justice

Thomas agreed with the plurality's findings on the issue of executive authority to detain enemy combatants,511 four other justices found that the executive lacked the authority to detain Hamdi, a United States citizen. To the surprise of many, Justice

509 Ibid 521. 510 Ibid. 511 Justice Thomas argued that the power was even broader than that described by the plurality decision. Ibid 579 (Thomas J, dissenting). -123- Scalia, in an unusual pairing with Justice Stevens, asserted that outside of the few

narrow categories of administrative detention, preventative detention of US citizens

is never permissible under the Constitution.512 Justice Scalia reasoned that where a

citizen is deprived of liberty because of alleged criminal conduct, due process

requires that the government adhere to certain common law criminal procedures,

including committal by a magistrate followed by indictment and trial.513 Pointing out

the panoply of treason laws that could be used to prosecute citizens who raise arms

against their own country, he concluded that the executive's preventative detention

scheme amounted to nothing more than a pretext for criminal prosecution:

It is unthinkable that the Executive could render otherwise criminal

grounds for detention noncriminal merely by disclaiming an intent to

prosecute, or by asserting that it was incapacitating dangerous

offenders rather than punishing wrongdoing.514

Justice Scalia thus found that, at least when it comes to the detention of US citizens,

the constitutional constraints on executive detention are rigid and absolute. In his

view, preventative detention of citizens accused of waging war against the United

States may only be accomplished through the suspension of the writ of habeas

corpus.515 Absent such circumstances, the Constitution requires the government to

employ the laws and procedures of the criminal justice system to detain citizens

accused of aiding the enemy during wartime.516

Justices Souter and Ginsberg were unwilling to go so far as to find that executive detention could never be accomplished under the Constitution, instead

512 Ibid 554 (Scalia, Stevens JJ dissenting). 513 Ibid 555. 514 Ibid 556-57. 515 In a recent article, Professor Trevor Morrison argues that Justice Scalia inproperly characterizes suspension of the writ as an authorization of preventative detention by the executive. Morrison argues that suspension of the writ merely bars detainees from seeking relief in federal court. Trevor W. Morrison, "Hamdi's Habeas Puzzle: Suspension As Authorization," 91 Cornell L. Rev 411 (January 2006). 516 Ibid 558-59.

-124- finding that Hamdi's detention was barred by statute.517 They found that the

executive detention of citizens violated Congress' bar on the detention of citizens in

the Non-Detention Act, concluding that the Act required a more explicit authorization

of detention by Congress than what was set forth in the AUMF. 518 The Non-Detention

Act, they pointed out, was specifically passed to prevent the executive from

initiating internment programs like those in World War II — a program which, like

the detention policy at Guantanamo Bay, was implemented by an executive order

pursuant to a broad grant of wartime authority by Congress — a grant very similar

to that in the AUMF.519 The very purpose of the Act, they noted, was to prevent

exactly the type of executive legislating in which the Bush Administration was

engaging. Thus, while Justices Souter and Ginberg agreed that the preventative

detention of citizens by executive order was illegal, they left open the possibility that

it may be accomplished through congressional legislation.520

While a majority of the justices found that the executive had authority to

detain Hamdi, a separate majority held that the executive's scheme failed to afford

Hamdi adequate procedural due process. Declaring that "a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens,"521

the Court held that Hamdi was entitled to certain procedural due process protections to contest his status as an enemy combatant. Writing for the plurality,

Justice O'Connor invoked the procedural due process test set forth in Matthews v

Eldridge.522 That test requires the Court to weigh the "'the private interest that will be affected by the official action'" against the "[gjovemment's asserted interest,

517 Ibid 539-40 (Souter, Ginsberg JJ, dissenting in part and concurring in part). 518 Ibid 543-44. 519 Ibid. 52° Nor did Justice Souter agree with the plurality that the AUMF authorised the detention of citizens as enemy combatants, arguing that the US government's failure to comply with its obligations under the Geneva Convention and its own regulations regarding prisoners of war undermines its position that it is acting in accordance with the customary laws of war. Ibid 544-46. 521 Ibid 536 (quoting Youngstown Sheet & Tube, 343 US at 587). 522 Ibid 528-29.

-125- 'including the function involved/ and the burdens the Government would face in providing greater process."523

Based on this balancing test, Justice O'Connor concluded that a citizen- detainee seeking to challenge his or her classification as an enemy combatant is, at the very least, entitled to notice of the factual basis for his classification, and a fair opportunity to rebut the government's factual assertions before a neutral decision­ maker.524 Such proceedings, she found, need not necessarily be conducted in federal court, but may be held in an "appropriately authorized and properly constituted military tribunal."525 In regard to evidence and burden of proof, the government's

"some evidence" proposal was held to be insufficient because it failed to provide the detainee an opportunity to rebut the government's case against him.526 At the same time, Justice O'Connor said that it likely would still be constitutional to permit hearsay evidence and to allow the government a rebuttable presumption that the detainees are properly detained.

The Court's procedural due process holding prompted the government to set up a separate military tribunal to hear evidence on the combatant status of the detainees. On July 7, 2004, Deputy Secretary of Defense Paul Wolfowitz, issued an order establishing the Combatant Status Review Tribunal (CSRT), a military tribunal charged with reviewing the status of each detainee classified as an "enemy combatant."527 Yet, the CSRT did not define "enemy combatant" as narrowly as the

Court had in Hamdi. Under the order, an "enemy combatant" is defined as

. . . an individual who was part of or supporting Taliban or al Qaeda

forces, or associated forces that are engaged in hostilities against the

523 Ibid 529. 524 Ibid 530-36. 525 Ibid. 526 Ibid 538. 527 See Deputy Secretary of Defense, 7 July 2004 Order Establishing Combatant Status Review Tribunal; US Department of Defense News Release, Combatant Status Review Tribunal Order Issued (7 July 2004), http:// www.defenselink.mil/ releases/ 2004/nr20040707- 0992.html.

-126- United States or its coalition partners. This includes any person who

has committed a belligerent act or has directly supported hostilities in

aid of enemy armed forces.528

While this new definition uses different language than that set forth in the prior

November 13 Executive order, it still far broader than the Court's definition in

Hamdi. The definition no longer authorises the detention of individuals committing

or "aiding or abetting" in acts of "international terrorism", but replaced the clause

with one that is equally broad — individuals "supporting . . . associated forces that

are engaged in hostilities against the United States or its coalition partners." In

addition, the last sentence of the definition appears to modify the first clause of the

definition, suggesting that anyone who "commits a belligerent act" or "directly

supports" the hostilities is "engaged in hostilities against the United States or its

coalition partners."

In an effort to comply with the Hamdi decision, the CSRT order gave the

detainees new rights to contest their status as enemy combatants. For example,

under the order, detainees for the first time have the right to hear the factual bases

for their detention (except to the extent the information is classified).529 In addition,

detainees have the right to testify and present evidence regarding why they should not be considered "enemy combatants."530 Detainees do not have a right to counsel, but may be assigned a "Personal Representative", a military officer available to assist the detainee in presenting his case.531

Despite these new additional protections, at least one federal court has held that the CSRT still fails to comply with constitutional due process requirements. In

In re Guantanamo Detainees, District Court Judge Green pointed out several flaws in the process which fell short of the constitutional standard.532 First, she found

528 Ibid. 529 Ibid. 530 Ibid. 531 Ibid. 532 See In re Guantanamo Detainees, 355 F Supp 2d 443,447 (D.D.C. 2005).

-127- "inherently unfair" the tribunal's failure to provide the detainees or his advocate

access to the evidence upon which the tribunal affirmed their "enemy combatant"

status determination.533 As an illustration of this lack of fairness, Judge Green

included an excerpt from a CSRT proceeding in which a detainee was entirely

unable to respond to the government's allegation that he associated with an al Qaeda

operative, because the government would not reveal the alleged operative name or

any other identifying information. Judge Green concluded that while there may be

legitimate reasons for denying the detainees access to such classified evidence, such

evidence at least should be provided to defence counsel to investigate and to ensure

its accuracy, reliability, and relevance.534

In addition, Judge Green found that the CSRT rules permit the reliance on

statements allegedly obtained through torture, or otherwise alleged to have been

provided by some detainees involuntarily.535 Given the Supreme Court's precedent holding that due process prohibits the government's use of involuntary statements

obtained through torture or other maltreatment, Judge Green concluded the

admissibility of such evidence is constitutionally unacceptable.536

Finally, Judge Green found the CSRT's definition of "enemy combatant"

overly broad and vague.537 Specifically, the Court found the vagueness and overbreadth in the order definition of enemy combatant as including "any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces."538 Judge Green described the government's position on the interpretation of this clause as presented in oral argument:

In response to hypotheticals, [the government] argued that the

Executive has the authority to detain the following individuals until

Ibid 468-69. Ibid 470. Ibid 472-74. Ibid Ibid 474-76. Ibid 475.

-128- the conclusion of the war on terrorism: "[a] little old lady in

Switzerland who writes checks to what she thinks is a charity that

helps orphans in Afghanistan but [what] really is a front to finance al-

Qaeda activities,". . . a person who teaches English to the son of an al-

Qaeda member, . .. and a journalist who knows the location of Osama

Bin Laden but refuses to disclose it to protect her source.539

While none of the petitioners at issue in the case at hand fell into these or similar hypothetical categories, Judge Green held that the expansive definition of "enemy

combatant" under the CSRT "violates long principles of due process by permitting the detention of individuals based solely on their membership in un-

American organizations rather than on actual activities supporting the use of violence or harm against the United States."540

In the end, Hamdi never received a CSRT hearing nor was he ever charged with any crimes. Following the Supreme Court's decision, government officials began negotiations with Hamdi's attorney for his release. In September 2004, after three years in detention in Guantanamo Bay, the US government agreed to release

Hamdi subject to his compliance with various conditions and restrictions, including his agreement to deportation to Saudi Arabia (of which he is also a citizen) and his forfeiture of US citizenship.541

Padilla v United States

In Hamdi, the Court managed to avoid the more difficult issues regarding the scope of executive authority to detain enemy combatants beyond the theatre of war in Afghanistan. However, the next Guantanamo Bay case to reach the Supreme

539 Ibid 475. 540 Ibid 476. 541 See Hamdi v Rumsfeld, Settlement Agreement, (17 September 2004), http://news.findlaw.com/hdocs/docs/hamdi/91704stlagrmnt.html; see also Curt Anderson, "U.S. Agrees to Release Terror Suspect/' MSNBC On Line, (23 September 2004), http://www.msnbc.msn.com/id/6073411. -129- Court, Padilla v United States, put these questions directly before the Court. 542 Jose

Padilla, like Hamdi, was a US citizen. Yet, unlike Hamdi, Padilla was not captured in

Afghanistan by the military, but was arrested by civil law enforcement authorities in the United States. As he alighted from a plane from Pakistan in Chicago's O'Hare

International Airport, Padilla was seized by federal agents pursuant to a material witness warrant issued by a federal court in the Southern District of New York in connection with a grand jury investigation into the September 11 terrorist attacks.543

Authorities transported him to New York, where he was held in federal criminal custody, but was not charged with any crime.544

Soon thereafter, Secretary of Defense Donald Rumsfeld issued an order designating Padilla as an "enemy combatant" and directed that he be detained in military custody. The order included a brief and vague description of the basis of the designation, asserting that Padilla "is closely associated with al Qaeda," that he

"engaged in . . . hostile and war-like acts, including . . . preparation for acts of international terrorism" against the United States; that he possessed intelligence that would aid the government from preventing future attacks by al Qaeda; and that he

'"represents a continuing, present, and grave danger to national security of the

United States/ such that is his military detention 'is necessary to prevent him from aiding al Qaeda in its efforts to attack the United States.'"545 The government also claimed that while Padilla was captured in the United States, he previously had been

"armed and present in a combat zone during armed conflict between al

Qaeda/Taliban forces and the armed forces of the United States."546

Like Hamdi, Padilla was transferred to a military brig in Charleston, South

Carolina. Padilla's counsel, claiming next friend status, filed a habeas petition in the

Southern District of New York, naming President Bush, Secretary Rumsfeld and

542 Padilla v United States, 542 US 426, 430-31 (2004). 543 Ibid. 544 Ibid 431. 545 Ibid 431 n 2 (quoting June 9 Order 5a-6a). 546 See Padilla v Hanft, 423 F3d 396 (4th Cir. 2005).

-1 3 0 - Melanie A. Marr, Commander of the naval brig as respondents. Padilla's counsel

claimed that his detention was unlawful and in violation of the Fourth, Fifth, and

Sixth Amendments as well as the Suspension Clause. Relying on Ex Parte Quirin, the

district court dismissed Padilla's claims on the merits, upholding the legality of his

detention.

On appeal, however, the United States Court of Appeals for the Second

Circuit reversed.547 Carefully limiting its holding to arrest and detention in the

United States, the Second Circuit reasoned that while the President is entitled to

deference as Commander in Chief, particularly in times of emergency, it is Congress,

not die President, which should control the operation of war powers in the domestic

sphere. Citing Congress' power to define criminal offences, the Suspension Clause

and the Third Amendment, the majority stated that "Congress may have the power

to authorize the detention of United States citizens under the circumstances of

Padilla's case, [but] the President, acting alone, does not."548

The Supreme Court granted certiorari, but in what Owen Fiss described as

"judicial cowardice,"549 the majority declined to reach the merits of Padilla's challenge to the executive's authority to detain, finding that Padilla named the wrong respondent and thus must refile in a different jurisdiction.550 Thus, the Court

547 Padilla v Rumsfeld, 352 F3d 695 (2d Cir. 2003). 548 Ibid 715-17. The court distinguished Quirin on the ground that Congress had expressly authorised the military trials of the defendants where in Padilla's case, there was no such express authorization for detention. Ibid 715-16. Moreover, the court pointed out that the Non-Detention Act was not in effect at that time. Ibid 718. Finally, the court acknowledged that Padilla contests his status as a combatant whereas the Quirin defendants conceded that status. The court found that both Quirin and Milligan support the principle that the "primary authority for imposing military jurisdiction upon American citizens lies with Congress." Ibid 715-16. 549 See Owen Fiss, "The War Against Terrorism and the Rule of Law," (2006). Oxford Journal of Legal Studies, Vol. 26, No. 2 , 239 (stating that "[g]iven the stakes for the individual and the nation, the failure of the Court even to address the merits of Padilla's claim of freedom was, pure and simple, an act of judicial cowardice."). 550 Rumsfeld v Padilla, 542 US 426 (2004).

-1 3 1 - once again found a way to avoid other critical questions regarding the scope of

executive authority in the war on terrorism.

Nevertheless, had the case been decided on the merits, it seems likely that a

majority of the Court would have found the detention of Padilla would have been

unlawful. The four dissenting justices, Justices Stevens, joined by Souter, Ginsburg

and Breyer, argued that the Court should address the merits, given that the case

raised questions of "profound importance to the Nation,"551 and while they did not

address the merit in full, they made clear that the detention of Padilla would be

unlawful. They declared that the Non-Detention Act prohibits — and the AUMF does

not authorise — "the protracted, incommunicado detention of American citizens

arrested in the United States."552 Describing the government's purported justification

for detaining Padilla — investigating and preventing subversive activity — as the

"hallmark of the Star Chamber", they stated:

Executive detention of subversive citizens, like the detention of enemy

soldiers to keep them off the battlefield, may sometimes be justified to

prevent persons from launching or becoming missiles of destruction. It

may not, however, be justified by the naked interest in using unlawful

procedures to extract information. Incommunicado detention for

months on end is such a procedure. Whether information so procured

is more or less reliable than that acquired by more extreme forms of

torture is of no consequence. For if this Nation is to remain true to the

ideals symbolized by its flag, it must not wield the tools of tyrants even

to resist an assault by the forces of tyranny.553

Justice Scalia had not joined in the dissent, but given his disapproval of the preventative detention of citizens captured overseas in Hamdi, there is little

Ibid 455 (Stevens, Souter, Ginsburg, Breyer JJ dissenting). Ibid 464 n. 8. Ibid 465.

-132 - doubt that he would find that detention of citizens captured in the United

States similarly unlawful on constitutional grounds.

The Supreme Court, however, never had a second opportunity to address the

merits of the case, again leaving the scope of executive authority to detain an open

question. On , the district and appellate courts were at odds with one

another, the former finding in favour of Padilla554 and the later dismissing his

claims.555 Padilla petitioned for a writ of certiorari, but within days of when the

government's response was due, the government filed a motion in the Fourth Circuit

declaring its intention to transfer Padilla from military to civilian custody and try

him on criminal charges in a federal court in Florida.556

Harridan v United States

The most recent case arising from Guantanamo Bay was Hamdan v Rumsfeld.557

In that case, the Court for the first time addressed the legality of the military

commissions established under the November 13 executive order (and subsequent

orders). The petitioner, Salim Ahmed Hamdan, a Yemeni national held in

Guantanamo Bay, had been captured in Afghanistan by a militia and turned over to

the U.S military, which then transferred him to the detention center in Guantanamo

Bay.558 In 2003, the President deemed Hamdan eligible for military trial, though it was not until a year later when Hamdan was charged with conspiracy to “commit..

554 The district court distinguished Hamdi, noting that unlike the Hamdi case, Padilla was seized in a civilian setting, by civilian law enforcement authorities, and was initially detained under a civil statute, the material witness statute. The court concluded t hat “[sjimply stated, this is a law enforcement matter, not a military matter." Ibid 691. 555 On appeal, however, the Fourth Circuit reversed, affirming the summary power of the government to detain Padilla as an enemy combatant, concluding that his alleged unlawful acts in Afghanistan were dispositive of his status as an enemy combatant. Padilla v Hanft, 423 F 3d 396 (4th Cir. 2005). The locus of the capture, in their opinion, was irrelevant. 556 Padilla v Hanftf 128 S Ct 1649,1649-50 (2006) 557 Hamdan v Rumsfeld, 126 S Ct 2749 (2006). 558 Ibid 2759.

-133- . offenses triable by the military commission/'559 Hamdan filed a habeas petition in

federal court, arguing that the commissions were unlawful in that they conflicted

with the laws of war, as well as military and international law and, thus, the

commission lacked the authority to try him on the conspiracy charges.560

In a 5-3 decision, die Supreme Court held that the military commissions

established by the executive were unlawful. Like the Court's prior decisions, the

Court steered away horn constitutional due process principles, deciding most of the

issues on highly technical statutory grounds as well as separation of powers

principles. First, the Court rejected the government's argument that Hamdan's habeas

claim was barred by the jurisdiction restrictions of the Detainee Treatment Act

(DTA).561 As in Ra sul, the Court found no need to address any constitutional issues

regarding the right to judicial review, finding that as a matter of statutory

interpretation, the DTA only placed restrictions on those claims filed after the

legislation took effect and did not limit the Court's jurisdiction with respect to those

claims already pending in federal court.562 Because Hamdan's claim was pending at

the time the DTA was passed, the Court's jurisdiction was unaffected by the

legislation.563

On the merits, the Court held that military commissions established by the

November 13 order were unlawful because they were not authorised by Congress,

conflicted with the UCMJ procedures as well as the law of war, and violated Article

559 Ibid. 560 Ibid. 561 Ibid 2762-69. 562 Ibid. Hamdan also had argued that the DTA's limits on the jurisdiction of the courts to hear habeas claims are an unconstitutional suspension of the writ. Ibid 2764. The Court stated it was unnecessary to reach this argument, "at least in so far as this case," given its ruling on statutory interpretation and the fact that the case was pending at the time the DTA was enacted. Ibid. 563 Ibid. The government also had argued that under the doctrine of abstention, the Court should await the final outcome of the on-going military proceedings before reviewing the legality of such proceedings. Ibid 2769-72. The court found that under the circumstances of this case, abstention was not justified. Ibid.

-134- 3 of the Geneva Convention.564 The Court's decision was a significant blow to the Bush Administration's counter-terrorism strategy, and more generally to presidential unilaterism. As Professor Cass Sunstein explained, the "prevailing view in Hamdan can be captured in a single idea: If the President seeks to depart from standard adjudicative forms through the use of military tribunals, the departure must be authorized by an explicit and focused decision from the national legislature."565 Yet, while the Court upheld important separation of powers principles, it was silent on the issue of constitutional due process rights. The Court pointed out several significant problems with the military commission process, but only to establish that they violated the laws of war, the UCMJ and the Geneva Convention. Specifically, it was noted that the commissions' procedures departed from the admissibility or relevance rules typically applicable in criminal trials and military tribunals.566 Under the commission system, a defendant could be convicted based on evidence that the defendant has not seen or heard.567 Testimonial hearsay and evidence obtained through coercion was fully admissible, and neither the government's live testimony nor witnesses' written statements needed to be sworn.568 The Court also stated that under the commission scheme, the defendant and his counsel are denied access to evidence which is "protected information," including information that is classified or would affect national security interests.569 Yet, in making these points, the plurality made clear that the primary flaw was that the procedures were not 564 Ibid 2772-99 (plurality opinion). The Court was sharply divided on several sub­ issues. Professor Cass Sunstein outlines in detail the different opinions on each issue in his recent paper on the decision. Cass R. Sunstein, "Clear Statement Principles and National Security: Hamdan and Beyond," Public Law and Legal Theory Working Paper No. 134, The Law School, The University of Chicago (July 2006). 565 Cass R. Sunstein, "Clear Statement Principles and National Security: Hamdan and Beyond," Public Law and Legal Theory Working Paper No. 134, The Law School, The University of Chicago (July 2006). 566 Ibid 2786. 567 Ibid 2786-87. Ibid 2786-87. 569 Ibid.

-135- authorised by Congress, not that they denied the accused defendant due process or a fair trial under the Constitution. Thus, the constitutional question regarding the legality of the process is an open one. Nothing in the Court's decision prevents Congress from passing legislation with identical restraints on due process. The plurality made clear that its decision had no direct bearing on the authority of the executive to preventatively detain enemy combatants. At the conclusion of plurality opinion, Justice Stevens stated: "It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government's power to detain him for the duration of active hostilities in order to prevent such harm."570 Accordingly, even though the commissions were held to be unlawful, the decision had no bearing on the legality of preventatively detaining those 10 detainees charged with violations of the law of war, nor did affect the authority of the military to preventatively detain the other 600 plus detainees who have not been charged with any crimes. Nevertheless, the Court's findings regarding the application of Common Article 3 of the Geneva Convention to the United States' war against al Qaeda were significant to those detainees in preventative detention. As part of its findings that the military commissions violated international law, the Court found that Common Article 3 of the Geneva Convention — the Article providing certain protections for prisoners from torture and inhuman treatment— applied to the United States' war against al Qaeda and was enforceable in court.571 The Court, however, did not address whether other Articles of the Geneva Convention applied to the detention scheme. Hamdan also had argued that he was entitled to a hearing by a "competent" tribunal under Article 5 of the Third Geneva Convention regarding his prisoner of war status before he could be tried by a military tribunal, but the Court held that it

Ibid 2798. 571 Ibid 2793.

-136- need not decide this question given that the commissions were unlawful on other grounds.572

Accordingly, since Hamdan, the Administration has recanted some of its prior positions regarding the non-applicability of the Geneva Conventions to die Guantanamo Bay detainees, at least with respect to Common Article 3. On July 11, 2006, the Administration released a statement that all detainees at Guantanamo Bay and in US military custody in other locations are entitled to humane treatment under the Common Article 3 of the Geneva Convention.573 The Secretary of Defense directed all military personnel to review its policies, directives and doctrine to ensure that they comply with Common Article 3 of the Convention.574 Also in response to the Court7 s decision, the Bush Administration proposed legislation in Congress regarding a new scheme of military detentions, which was passed into law on October 17, 2005.575 The Act purports only to relate to the trial and punishment of enemy combatants by military commissions, and does not directly address the preventative detention of "enemy combatants/' Nonetheless, the Act's definition of "enemy combatants" may be argued to apply to the preventative detention as well as the trial of enemy combatants. The Act defines an "enemy combatant" as:

572 Ibid 2795 n 61. Under the Third Geneva Convention Relative to the Treatment of Prisoners of War, individuals deemed to be a prisoner of war must be tried using the same procedures and courts applicable to US military personnel - courts martial or civilian courts. They cannot be tried by military commissions. Under Article 5 of the Third Geneva Convention, detainees are entitled to a determination by "competent tribunal" regarding their prisoner of war status. 573 7 July 2006 Memorandum for Secretaries of Military Departments re Application of Common Article 3 of the Geneva Conventions to the Treatment of Detainees in the Department of Defense. See David Stout, "In Big Shift, U.S. to Follow Geneva Convention for Detainees, New York Times (11 July 2006), http://www.nytimes.com/2006/07/ll/ world/llcnddetain.html?ex=1310270400&en=41fbfla6950392c3&ei=5088&partner=rssnyt&e mc=rss. 574 Ibid. 575 Military Commissions Act of2006, Pub. L. No. 109-366,120 Stat. 2600 (17 October 2006).

-137- (i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a forces); or lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces; or (ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.576 Section 948b states that ”[t]his chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants." Accordingly, the military commission procedures apply only to aliens; not to citizens. Nevertheless, nothing in the act bars the government from holding citizens and non-citizens alike as unlawful enemy combatants for purposes of preventative detention. In the end, this new definition, like that under the CSRT provisions, is vague and undoubtedly far broader than the definition approved of in Hamdi. The detention of individuals who have provided material support exceeds well accepted standards of the law of war. Like the CSRT provisions, anyone who has donated money or unknowingly performed services for an organization which later is found out to have a connection to the Taliban or al Qaeda could be arrested and preventatively detained as an enemy combatant. Moreover, the second prong of the definition suggests that an enemy combatant may be anyone who the CSRT deems to be a combatant. Thus, Congress has delegated complete authority to the executive in determining the scope of the legislation. The subsection says nothing about the substance of the criteria that the tribunal should apply in making this determination. Accordingly, the legislation

576 10 USC § 948a. The Act restricts the jurisdiction of military tribunals to alien enemy combatants. Ibid.

-138- ultimately does nothing to narrow the scope of the government's authority to detain suspected terrorists.

c. The Detention of Enemy Combatants Arrested in the United States. The Guantanamo Bay decisions set important limits on the authority of the executive to act unilaterally, but left open the more difficult constitutional questions regarding the scope of the government's detention powers. Even the dissenting justices in Padilla argued only that the executive detention of citizens as enemy combatants would violate the Non-Detention Act. They said nothing as to whether the arrest and preventative detention of civilians in the United States is barred by constitutional considerations. Thus far, only one district court has addressed that constitutional issue.577 In

Al-Marri v Hanft, Ali Saleh Kahlah al-Marri, a Qatari national, legally entered the United States on September 10, 2001, with his wife and children to return to his alma mater at Bradley University in Indiana to obtain a master's degree.578 On December 12, 2001, al-Marri was arrested by the FBI as a material witness in the investigation of the September 11, 2001, terrorist attacks, and was transferred to New York City.579 Nearly two months later, he was charged and indicted with various offenses related to credit card fraud as well as making a false statement to the FBI.580 He pled not guilty on all counts.581 Just weeks before al-Marri's trial was to begin, President Bush issued an order designating al-Marri as an enemy combatant and directing that he be transferred to the Naval Brig in Charleston, South Carolina.582 The order vaguely alleged that al- Marri was "closely associated with al Qaeda;" "[has] engaged in conduct that

577 Al-Marri v Hamft, 378 F Supp2d 673 (D.S.C. 2003). 578 Ibid 674. 579 Ibid 675-75. 580 Ibid. 581 Ibid. 582 Ibid.

-1 3 9 - constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism with the aim to cause injury to or adverse effects on the United States."583 The order contained typical boilerplate allegations that al-Marri has intelligence which "could prevent attacks by al-Qaeda" and that detention "is necessary to prevent him from aiding al-Qaeda in its efforts to attack the United States."584

Al-Marri petitioned for a writ of habeas corpus, contesting the legality of his indefinite detention without charges. In response, the government submitted a declaration by a DOD intelligence officer, Jeffrey N. Rapp, which alleged further details about the government's allegations about al-Marri's activities. Specifically, the government asserted that intelligence sources confirm that al-Marri was a "sleeper agent" for al Qaeda, sent to the United States for the purpose of engaging in ways to hack into the computer systems of US banks and financial institutions.585 The declaration further asserted that al-Marri met personally with Bin Laden, volunteered for a martyr mission, and trained in an al Qaeda training camp.586 The district court dismissed al-Marri's petition, finding the detention lawful.

The court's reasoning, however, was seriously flawed. Citing Johnson v Eisentrager and the Alien Enemy Act of 1798, the court reasoned that there is a significant difference between the due process rights afforded to citizens and "enemy aliens" in times of "war."587 The court acknowledged that the Alien Enemy Act does not have a direct application because the United States is not in a "declared war" against any

583 Ibid 675, n 3 (quoting President's Order of June 23, 2003, cited in the Respondent's Answer to Habeas corpus Petition (filed September 9, 2004)). 584 Ibid. 585 See Unclassified Declaration of Mr. Jeffrey N. Rapp, Director, Joint Intelligence Task Force for Combating Terrorism, Attachment B to Respondent's Answer to Habeas corpus Petition 1 7 (filed September 9, 2004), available at http://collegefreedom.org/marri.htm. 586 Ibid 11 7, 9. 587 378 F Supp 2d at 677. -140- nation, let alone Qatar, but still concluded that al-Marri is the equivalent of an "enemy alien" and, thus, could be detained preventatively.588

The court's reliance on both Eisentrager and the Alien Enemy Act is misplaced.

As pointed out by the Court in Rasul, the Eisentrager case is distinguishable from the situation of al-Marri in that the Eisentrager detainees were tried and convicted for violations of the law of war, whereas al-Marri is being held indefinitely and denies that he committed any acts which would violate the laws of war. Moreover,

Eisentrager involved detainees who had never entered the United States, but were captured and detained overseas for acts which took place overseas. In contrast, al- Marri was alleged to have committed unlawful acts in the United States and was arrested by criminal law enforcement authorities in Illinois and held in a federal detention center. Thus, unlike the Eisentrager detainees, al-Marri is subject to the jurisdiction and protections of the US criminal justice system. Likewise, the Alien Enemy Act bears no relevance to al-Marri's case. As discussed in Chapter III, the Alien Enemy Act has been upheld based on the long- established tradition that, in times of declared war against a sovereign nation, the due process rights of "enemy aliens" are curtailed. An "enemy alien" is not simply any non-citizen in the United States, but is a term of art which applies only to those aliens who are citizens of a country which has declared war against the United States. Because of their citizenship status, courts have reasoned that enemy aliens are presumed to have allegiance to his or her country of citizenship.589 Regardless of the wisdom of this reasoning, the rationale of allowing "enemy alien" detentions has no application in the "war on terrorism," where the United States is not in a declared war (or even an undeclared war) with a nation state.

While al-Marri, as a non-citizen, is not covered under the Non-Detention Act, it is well established that as a resident of the United States, he is entitled the same criminal due process protections than those afforded to US citizens, including the

388 Ibid. 589 See Johnson v Eisentrager, 339 US 763, 773 (1950). -141- right to a fair trial under the Fifth and Sixth Amendments.590 While the government has plenary authority over aliens with respect to matters of immigration — indeed, al-Marri may be vulnerable to deportation on the basis of the government's allegations — the government's detention of al-Marri has nothing to do with immigration or deportation. Thus, the court's suggestion that aliens have diminished due process rights with respect to detention outside immigration has no basis under US law.

Nor can the indefinite detention of al-Marri be defended under Ex parte

Quirin. Aside from the fact that Ex parte Quirin arose out of a declared war against a sovereign state, whereas al-Marri's detention is based on the amorphous war against

Al-Qaeda, the defendants in Ex Parte Quirin conceded to be affiliated with the military and, thus, there was no question regarding the military's jurisdiction over the defendants. Al-Marri, on the other hand, contests that he has any affiliation with al Qaeda. Nor is al-Marri in the same position as Hamdi. Hamdi was captured on the battlefield in Afghanistan. Al-Marri was arrested in the United States. Indeed, he was residing in the United States before the war in Afghanistan even began.

Likewise, the wartime internment cases, such as Korematsu, do not support government's detention scheme. Even assuming that these cases have any precedential value, these cases were expressly limited to situations of declared war. They were decided on the basis of specific evidence submitted by the government regarding a threat from Japan in the Pacific. Moreover, the Court did not expressly authorise the detention scheme, but rather only addressed the validity of curfew and exclusion orders, specifically noting that the legality of a detention order was a

590 United States ex rel v Williams, 194 US 279, 291 (1904) (observing that aliens are protected under the Fifth and Sixth amendments once they are in this country); Wing-Wong v United States, 163 US 228 (1896) (stating that while Congress can "forbid aliens or classes of aliens from coming within [our] borders," it cannot punish such aliens without "a judicial trial to establish the guilt of the accused"). See also Mathews v Diaz, 426 US 67, 77 (1976) (explaining that all aliens within the jurisdiction of the United States enjoy the protections of the Fifth and Fourteenth amendments and may not be invidiously discriminated against by the federal government).

-1 4 2 - different matter.591 While the Court admitted that some detention may be necessary to effect the exclusion orders, thus implicitly upholding the government's preventative detention measures, the decision in Endo made clear that detention must not be indefinite. The arrest and indefinite detention of individuals as enemy combatants on US soil in the government's war on terrorism exceeds constitutional limits. The Supreme

Court made clear in Ex parte Milligan that the jurisdiction of the military does not extend to civilians suspected of criminal activity in the United States, even if that activity involves acts of terrorism. As in Milligan's case, there is a wide array of criminal laws under which al-Marri could be prosecuted if in fact the government possesses credible evidence that al-Marri was assisting Al-Qaeda, or at the very least was committing fraud. The government's position that any individual who may be assisting or otherwise associated with a terrorist organisation is subject to military detention indefinite is untenable and unsupported by any legal precedent. The designation of suspected terrorists arrested in the United States as enemy combatants can no longer be supported by a war paradigm. Five years have passed since September 11 and, while terrorism remains a serious threat, the current situation in the United States no longer bears any resemblance to a war or . As the war in Afghanistan abates, the Court's reasoning in Hamdi no longer can serve as a support for the indefinite preventative detention of terrorists as enemy combatants becomes. The rationale for the preventative detention of individuals as enemy combatants by the military does not hold when the government is engaged in war where there are no boundaries to the battlefield and there is no identifiable end to the conflict.

591 Korematsu, 323 U.S at 221 (stating that the Endo case "graphically illustrates the difference between the validity of an order to exclude and the validity of a detention order after exclusion has been effected"). -143- 2. The Material Witness Statute A second form of preventative detention employed by the Bush Administration after September 11 was the detention of suspected terrorists as material witnesses. Following the terrorist attacks on September 11, 2001, the US Department of Justice and the FBI initiated a terrorism investigation (called "PENTTBOM"). Because in most cases the government lacked sufficient evidence to obtain criminal arrest warrants, it adopted what was, in effect, a "hold until cleared policy" whereby the government used administrative detention to hold an individual while investigating the individual's ties to terrorism. Then Attorney General John Ashcoft directed federal law enforcement agencies to use "every available law enforcement tool" to arrest those who "participate in, or lend support to, terrorist activities,"592 including the material witness statute.593 Pursuant to these policies, individuals were detained without charges and were held in secret, the hearings and dockets sealed from the public, while the government investigated whether they had ties to terrorist organizations. Unlike the enemy combatant policy, the preventative detention of material witnesses is accomplished through Congressional legislation which is designed to apply in times of peace. Accordingly, the scheme incorporates more procedural protections than the enemy combatant policy. Nevertheless, the detention of material witnesses is constitutionally problematic. The statute is drafted so broadly

592 See US Dept, of Justice, Office of the Inspector General, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection With the Investigation of the September 11 Attacks", April 2003, 1 (quoting Memorandum from Attorney General to United States Attorneys entitled "Anti-Terrorism Plan" (17 September 2001)). 593 John Ashcroft reportedly stated that the "[ajggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting, or delaying new attacks." See Cam Simpson, "Roundup Unnerves Oklahoma Muslims," 4/21/02 Chicago Tribune 1, 2002 WL 2647213. Ashcroft has also declared that possible suspects of terrorism are to be detained by whatever means possible. See Attorney General John Ashcroft Testimony Before the House Committee on the Judiciary (24 September 2001), http://www.usdoj.gov/archive/ag/ testimony/2001/agcrisisremarks9_24.htm.

-144- that the government is able to use the statute to sidestep constitutional protections afforded criminal defendants, and detain suspects of terrorism. It fails to incorporate sufficient procedural safeguards, most importantly time limits on detention. Likewise, the burden of proof is so low that applications for material arrest warrants are rarely, if ever, denied. As a result of these and other constitutional shortcomings, detention under the material witness statute has resulted in several miscarriages of justice and resulted in the extended detention of individuals who have had no connection to terrorist activities at all.

a. An Overview of the Material Witness Statute. The material witness statute is not a statute aimed at protecting the community from terrorists or other dangerous individuals nor is it an investigative tool for law enforcement officials. Rather, it is a law aimed at securing an unwilling witness' presence in a criminal proceeding.594 Under the statute, the federal government may arrest and detain a witness where it is able to establish before a magistrate that 1) the witness' testimony is material to the proceeding, and 2) "it may become impracticable" to secure the presence of the witness by subpoena. The government's burden to establish that the witness' testimony is material is an extraordinarily easy one. Courts have required little, if any, factual support to

594 Section 3144 provides: If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure. 18 USC §3144 (2006).

-145- support an allegation that the witness' testimony will be material to the proceeding.595 In Bacon v United States, the Ninth Circuit declared that "in the case of a grand jury proceeding, we think that a mere statement by a responsible official, such as the United States Attorney, is sufficient to satisfy [the materiality requirement]."596 The appellate court based its conclusions on the broad powers of investigation vested in a grand jury, as well as the secrecy of such proceedings.597 Likewise, courts have been increasingly deferential to government submissions in establishing the second prong — that it "may become impracticable" to serve a witness with a subpoena. Several recent cases have held that the government need not allege that the witness tried to evade service of process of a subpoena, nor does the government need to establish that it even attempted to serve a witness with a subpoena.598 Indeed, courts have granted arrest warrants for material witnesses where the facts demonstrate that the witness was entirely cooperative in the police investigation.599 For example, after the bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, killing 169 people and injuring many others, authorities arrested Timothy McVeigh and charged him with crimes connected with the bombing.600 Two days later, a federal court in Oklahoma issued a material witness warrant for the arrest of Terry Nichols, finding that the witness' testimony is material to McVeigh's criminal proceeding and that Nichols had attempted to leave the jurisdiction of the United States.601 In fact, the affidavit supporting the application for the warrant failed to allege any facts supporting a

595 United States v Awadallah, 349 F3d 42, 66 (2d Cir 2003) (stating that "in the case of a grand jury proceeding, we think that a statement by a responsible official, such as the United States Attorney is sufficient"). See also In re De Jesus Berrios, 706 F2d 355, 358 (1st Cir 1983); United States v Oliver, 693 F2d 224, 231 (7th Cir 1982) (finding that the materiality determination of a "responsible official" was adequate); In re Application of the United States for a Material Witness Warrant, 213 F Supp 2d 287,294 (S.D.N.Y. 2002). 596 United States v Bacon, 449 F2d 933,943 (9th Cir 1971). s9^ Ibid. 598 Ibid. 599 Ibid. 600 See In re Material Witness Warrant, 77 F.3d 1277,1278-79 (10th Cir 1996). 601 Ibid. -146- claim that Nichols was a flight risk. Nichols had voluntarily appeared at a police department in Kansas when he found out that he was being sought for questioning.602 Ultimately, Nichols7 challenge to the material witness warrant was dismissed as moot because the government had initiated charges against Nichols for crimes in connection with the bombing.603 Once a witness is arrested under a material witness warrant, the witness is to be treated under the same provisions which govern the conditions of release and bail of criminal defendants charged with a crime and awaiting trial.604 Under these provisions, a court has a variety of options. It can 1) Release the witness on personal recognizance; or 2) Release the witness upon execution of a bond and/or other conditions.605 Conditions may include the witness regularly reporting to the court or a government agency, maintaining employment, abiding by restrictions on travel, being placed in the custody of another person, complying with a curfew, posting bail, or being placed in home detention;606 or 3) Order temporary detention of the witness for purposes of immigration or probation; or 4) Order detention upon a finding that the imposition of release conditions will not reasonably assure the witnesses appearance at the proceeding for which his testimony is sought.607

602 Ibid. 603 Ibid. 604 See 18 USC § 3142. Section 3142 authorises judicial officers to "order the pretrial release of the person on personal recognizance, or upon execution of an unsecured appearance bond in an amount specified by the court . . . unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required." 18 USC § 3142(b). 605 18 USC § 3142(c). 606 See § 3142(c)(1)(b). 607 1 8 USC § 3142(g). -147- The statute places no specific time limits on detention. If ordered detained, a witness can request to be deposed in lieu of detention by filing a written motion and notifying the government.608 A request for a deposition, however, may be denied if the government can show that the witness' testimony cannot be adequately secured by deposition.609 Before an order of detention is imposed, the court must hold a detention hearing.610 At the hearing, both the government and the witness may submit evidence and put on live testimony. The rules concerning the admissibility of evidence in criminal trials, however, do not apply to the presentation and consideration of information at the hearing.611 Thus, the government may submit hearsay testimony and other forms of evidence which may be difficult, if not impossible, to rebut. The witness may testify and present witnesses and other information by proffer. The witness also is afforded an opportunity to cross-examine those witnesses who are present at the hearing. Of course, where the government presents evidence by proffer or affidavit, the witness has no way of cross-examining or testing that evidence. The statute does not require counsel to be appointed in cases of material witnesses, and in many cases witnesses were denied legal representation.612 Nevertheless, it now is the practice of courts to appoint counsel where a witness cannot afford legal representation, and at least one federal court held that the Fifth Amendment requires that counsel be appointed by the court if the witness is financially unable to obtain representation.613 While most courts now agree that material witnesses are entitled to counsel at their detention hearing, it has been 608 18 USC § 3144. 609 Ibid. See also Fed. R. Crim. P. 15. 610 18 USC § 3142(f). The hearing date may be extended upon motion by either the government or the witness. 611 18 USC § 3142(f). 612 Human Rights Watch, "Witness to Abuse, Human Rights Abuses under the Material Witness Law since September 11", Vol. 17, No. 2 (June 2005), 56-57. 613 In re Class Action Application for Habeas corpus on Behalf of All Material Witnesses in the Western District of Texas, 612 F Supp 940, 944 (WD Tex 1985).

-1 4 8 - reported that officials have often restricted or delayed detainees' access to counsel while in detention.614 In addition, the statute does not abridge the attorney-client privilege. However, new regulations adopted after September 11 allow government officials to monitor attorney communications with detainees where the Attorney General certifies that "reasonable suspicion exists to believe than an inmate may use communications with their attorneys or their agents to further facilitate acts of violence or terrorism."615 If a court orders a material witness detained, the court must provide a written statement explaining the reasons for detention, yet does not require that the witness be provided with any underlying evidence submitted in support of the warrant application.616 In a recent report analysing die government's use of the material witness statute to detain terrorist suspects,617 Human Rights Watch notes that during the September 11 investigation, the Department of Justice repeatedly failed to provide material witnesses with information - including the arrest warrant, affidavit or underlying evidence — regarding the basis for their arrest.618 While criminal suspects are entitled to see the evidence suggesting their guilt or innocence, material witnesses may never have access to the information underlying their detention. The Human Rights Watch Report recounted one detainee's experience: I kept asking what am I being charged. They would respond you're not being charged with anything. I asked why am I here. They said I was a witness. I said a witness to what? They said they couldn't tell me. It was like playing "Who's on First?" [an Abbott and Contello routine] for two hours.619

614 Ibid 55-58. 615 66 Fed. Reg. 55,061, 55,063 (31 October 2001). 616 18 USC § 3142(i)(l). 617 Human Rights Watch, "Witness to Abuse, Human Rights Abuses under the Material Witness Law since September 11", Vol. 17, No. 2 (June 2005). 618 Ibid 48-54. 619 Ibid 49 & n 154 (citing HRW/ACLU Interview with Mujahid Menepta, St. Louis, Missouri, 22 July 2004).

-149- Often witnesses are not apprised of the grounds for their detention until their first appearance, making it impossible to prepare an adequate defence at the hearing.620 The statute places no limitations on the interrogation of material witnesses by law enforcement officers. Witnesses have been aggressively interrogated without counsel and threatened with criminal charges, even though they presumably are not suspects in the government's investigation. b. Constitutional Validity of the Material Witness Statute. Prior to September 11, the majority of persons arrested as material witnesses were immigrants who had been illegally smuggled into the United States.621 The INS most often used the material witness statute to ensure the immigrants' testimony in trials against the smugglers before the witnesses returned to their home country.622 However, since September 11, US government officials have openly acknowledged that the government was using the material witness statute to investigate and detain suspects of its investigation into September 11, not merely witnesses,623 Such persons have been detained until they are either cleared or until the government had sufficient evidence against them to bring criminal charges. FBI Director Robert Mueller, who headed up the September 11 investigation, confirmed the government's policy of detaining suspects of terrorism under the material witness statute, stating: "In the United States, a number of suspects were detained on federal, state, or local charges; on immigration violations; or on material witness

620 Ibid. 621 See Human Rights Watch, "Witness to Abuse: Human Rights Abuses under the Material Witness Law since September 11," Vol. 17, No. 2 (G) (June 2005), 14-15. Based on government reported statistics, Human Rights Watch reported that prior to September 11, 94% of the 4,168 federal material witness arrests were made by INS, and less than 2% of the arrestees were citizens. Ibid, (citing Bureau of Justice Statistics, US Department of Justice, Compendium of Federal Justice Statistics 2000). 622 Ibid, (collecting cases). 623 See In Re Class Action Application for Habeas corpus on Behalf of All Material Witnesses in the Western District of Texas, 612F Supp at 944 (noting that the "vast majority" of persons held in the Western District ofTexas arenot innocent, but are persons who have illegally entered the United States).

-150- warrants."624 Likewise, Assistant Attorney General Michael Chertoff stated that the material witness warrants were an "important investigative tool in the war on terrorism."625 While several scholars and commentators describe these and other similar cases as examples of government "misuse" of the material witness statute, the cases illustrate a more fundamental constitutional problem with a statute which authorises detention without charges for extended periods of time with few procedural protections. Few courts, however, have addressed or analysed the constitutionality of detaining material witnesses without charges. Indeed, to date, the only case to examine the issue closely has been Awadallah v United States, a case in the United States Court of Appeals for the Second Circuit arising out of the September 11 investigation.626 In that case, a search of the car of one of the highjackers of American Airlines Flight 77, which crashed into the Pentagon, produced a piece of paper with a phone number on it which FBI agents tracked to a residence previously occupied by Osama Awadallah, a permanent resident and Jordanian national enrolled at Grossman College in San Diego.627 The FBI found Awadallah outside his current apartment and instructed him to accompany them to the FBI office for questioning. The agents also asked him to sign a consent form to search his house and his car, which he did. The FBI agents described Awadallah to be "very very cooperative." At the FBI office, Awadallah was questioned by FBI agents for six hours about the September 11 highjackers. He was not advised of his rights or told that he could leave. Awadallah told the FBI that he knew one of the highjackers and had frequently seen 624 Robert S. Mueller, III, director, FBI, "Speech at the Commonwealth Club of California," San Francisco, California, April 19, 2002, http://www.fbi.gov/pressrel/speeches/ speech041902.htm. 625 Steve Fainaru and Margot Williams, "Material Witness Law Has Many in Limbo," Washington Post, 24 November 2002,11. 626 See United States v Awadallah, 202 F Supp 2d 82 (S.D.N.Y. April 30, 2002), amended, 202 F Supp 2d 55 (S.D.N.Y. May 13, 2002), rev'd, 349 F 3d 42 (2d Cir. 2003). 627 The facts and procedural history discussed forthwith are set forth in United States v Awadallah, 349 F 3d at 45-50; and United States v Awadallah, 202 F Supp 2d at 55-58.

-151 - another man with him. Before allowing Awadallah to leave, they told him that he must appear for a polygraph the next day. Awadallah later told the FBI he wanted to find an attorney before agreeing to a polygraph, but the FBI threatened arrest so Awadallah consented. The agents told him that he had lied in the polygraph test and accused him of being a terrorist. A search of Awadallah's home and car produced several computer-generated photographs of Osama bin Laden, two videotapes on Bosnia and a retractable razor. The US Attorney's office applied for a material witness warrant and attached an affidavit signed by one of the FBI agents. The court granted the government's application and issued a warrant of arrest. Over the next twenty days, Awadallah was treated as a high-security inmate, transferred to prisons across the country. In a New York detention center, he was kept in solitary confinement, shackled and strip searched whenever he left his cell. He was denied family visits or use of the telephone. On October 10, 2001, Awadallah testified without immunity before a grand jury in New York convened to investigate the September 11 attacks. He was dressed in a prison jumpsuit and handcuffed to a chair. He answered several hundred questions over the course of the day and all of his testimony was consistent with what he had previously told the government. He admitted that he had met al-Hazmi approximately forty times, mostly at work at the mosque, and had met the second highjacker but didn't know his name. Confronted with a notebook of his with the name Khalid written in it, he testified later that he "thought the man's name was Khalid." The government charged Awadallah with perjury, and he was held for 83 days until finally released on bail. In challenging the constitutionality of the statute, Awadallah argued that detaining material witnesses to testify in grand jury investigations violates the Fourth Amendment which prohibits "unreasonable seizures." The government objected, relying heavily on the Ninth Circuit's decision in Bacon v United States, which held that, as a matter of statutory interpretation, the detention of material

-1 5 2 - witnesses extended to grand jury investigations. The Bacon court had declined to address the petitioner's constitutional challenge, stating that the issue had been presented to the court in a "perfunctory manner, without adequate briefing and argument."628

The district court found in favour of Awadallah, rejecting the Bacon decision as wrongly decided. 629 Significantly, the court found that the extention of the statute to grand jury investigations raises "serious constitutional problems" under the Fourth Amendment.630 Under the Fourth Amendment, the court explained, the "nature and quality of the intrusion on the Fourth Amendment's interests" must be weighed against "the importance of the governmental interested alleged to justify the intrusion."631 Applying this balancing test to the detention of material witnesses, the court concluded that the government's interests in criminal investigation did not justify such a significant intrusion on individual liberty. In support of its conclusion, the district court relied on the Supreme Court's

decision in Terry v Ohio, which held that, under the Fourth Amendment, investigating criminal behaviour justifies only temporary intrusions on an individual where there is no probable cause that a crime was committed.632 The district court

pointed out that in Terry, the Supreme Court considered the extent to which enforcement officers could intrude on a person's liberty given their interest in "'effective crime prevention and detention,' the same interests that underlie grand jury investigations."633 In balancing these interests, the Supreme Court in Terry held the government's interests in police investigation justifies only a temporary stop and

628 See Bacon, 449 F 2d at 941. At the time of the Bacon decision, s3144 had not yet been enacted, but the Court found an implied power to detain material witnesses under 18 USC former 3149 and former Federal Rule of Criminal Procedure 46(b). 629 Awadallah IV, 202 F Supp 2d at 72-76. 630 Ibid 76-77. 631 Ibid 77 (quoting Tennessee v Gamer, 471 US 1, 8 (1985). 632 Ibid 78 (quoting Terry v Ohio, 392 US 1 (1968)). 633 Ibid 78 (quoting Terry, 392 US at 22)).

-153- frisk, and requires that the police have reasonable suspicion that a crime has been committed. Compared to the temporary intrusion of a stop and frisk, the court concluded that the intrusions suffered by a detained material witness were far beyond those deemed permissible under the Fourth Amendment. As a material witness, Awadallah was "strip-searched, shackled whenever he is moved, denied food that complies with his religious needs [and] prohibited from seeing or even calling his family over the course of twenty days."634 The court found there were insufficient safeguards in the material witness statute to protect grand jury witnesses from extended and prolonged detention.635 In particular, while a witness detained for trial testimony could demand a deposition be taken instead of prolonged detention, the court held that the rules for taking depositions could only apply after an indictment had been issued and, thus, were not applicable to grand jury witnesses.636 As a result, the court concluded that those provisions in section 3144 which authorised release upon the taking of a deposition were "meaningless" for grand jury witnesses.637 Pointing out the history of serious abuses of the material witness statute after September 11, the court concluded that without further safeguards, section 3144 "pose[d] the threat of making detention the norm and liberty the exception."638 On appeal, however, the Second Circuit reversed, holding that there was no constitutional violation in extending the material witness statute to authorise the detention of grand jury witnesses.639 The appellate court7s analysis, however, was flawed from the start. Citing three Supreme Court decisions, the court concluded that the "detention of material witnesses for the purpose of securing grand jury

634 Ibid. 78. 635 Ibid. 636 Ibid. 6 3 7 Ibid 79. 638 Ibid. 639 349 F 3d 42, 55-64 (2d Cir. 2003).

-154- testimony has withstood constitutional challenge."640 Yet, as Professor Ricardo Bascuas has pointed out, the court's sweeping conclusion that detaining material witnesses has been upheld by the Supreme Court is entirely unfounded.641 Professor Bascuas explains that, contrary to popular belief, there is no basis in historical common law or statutory law authorising the detention of witnesses who have given a recognisance — that is, an oral promise — to appear to testify. Under the Judiciary

Act of 1789, as well as the material witness statutes enacted in 1846 and 1925, only those witnesses who refused to give a recognisance could be imprisoned or required to post bond.642 Thus, the history of the statute does not support the conclusion that witnesses was may be detained on mere risk of flight, but requires an affirmative refusal to testify before detention may be imposed. The Second Circuit, however, further held that even putting history and precedent aside, the government's interests in detaining witnesses for grand jury investigations outweighed the deprivation of individual liberty and thus the detention was lawful.643 The court reasoned that the giving of grand jury testimony is an important and long recognised public duty, and while the deprivation of individual liberty is a significant infringement, the statute was "sufficiently calibrated" to comply with due process.644 The court, however, failed to cite a single case in its analysis. The court entirely omitted any discussion of Terry v Ohio, even though it was a critical case in the district court's decision and involved a balancing of nearly identical interests - law enforcement investigations and physical liberty.

Nor did the Court address the Salerno decision, which involved similar questions of administrative detention in the context of the criminal justice system. Compared to the pretrial detention of indicted defendants who are found to be

640 Ibid. 641 See Ricardo Bascuas, "The Unconstitutionality of 'Hold Until Cleared': Reexamining Material Witness Detentions in the Wake of September 11th Dragnet", 58 Vand L Rev 677, 702-715, 725-31 (April 2005). 642 Ibid 705-07. 643 Ibid. 644 Ibid.

-155- dangerous, the material witness statute furthers less compelling interests, yet potentially involves greater intrusions on individual liberty. While the length of pretrial detention is limited by the Speedy Trial Act, there are no time limits on how long a material witness may be held. Unlike trial proceedings, which at least are limited in theory by the Speedy Trial Act,645 there is no such limitation for testimony at grand jury proceedings, which can go on for years. The scheduling of testimony is entirely at the whim of the prosecutor. While a deposition may in some cases be used in lieu of live testimony, it may be denied where the government finds it to be an "inadequate" substitute. Indeed, since September 11, the Justice Department has consistently opposed depositions or stalled taking them.646 In 2002, it was reported that nearly half of the material witnesses held in the war on terror never actually testified at all.647 Moreover, the statute incorporates no other safeguards to ensure that a material witness's rights are protected. The Second Circuit acknowledged that "it would be improper for the government to use § 3144 for other ends, such as the detention of persons suspected of criminal activity for which probable cause has not yet been established." Nevertheless, it concluded that there was no evidence that the government was engaged in such "improper" conduct -- a conclusion which is disingenuous at best.648 In fact, putting aside the dearth of misrepresentations the court found in the government's affidavit in support of its petition for a material

645 Witnesses, however, have no control over the scheduling of the trial date. Thus, the defendant may extend the trial date beyond the limitations in the Speedy Trial Act thereby extending the detention period for any material witnesses in custody. 646 See Human Rights Watch, "Witness to Abuse: Human Rights Abuses under the Material Witness Law since September 11," Vol. 17, No. 2 (G) (June 2005), 79. 647 Steve Fainaru and Margot Williams, "Material Witness Law Has Many in Limbo: Nearly Half Held in War on Terror Haven't Testified," Washingtonpost.com, A01 (24 November 2002) (reporting that as of Nov. 24, 2002, that at least 44 persons were arrested and detained as potential grand jury witnesses but nearly half have never been called to testify). 648 Judge Straub dissented, strongly disagreeing that the government produced sufficient evidence to demonstrate probable cause to believe that it would be impracticable to secure Awadallah's testimony before the grand jury by subpoena.

-1 5 6 - witness arrest warrant, the only admissible evidence supporting the court's conclusion that Awadallah was a flight risk was the government's speculation that Awadallah may try to avoid appearing before the grand jury because of a concern that he was a suspect in the September 11 investigation. In other words, Awadallah was a flight risk by the very fact that he was a suspect in the government's investigation.649 As a result of the lack of safeguards in the material witness statute, there have been several cases of government blunders and miscarriages of justice. An infamous example is the case of Brandon Mayfield. In March 2004, the FBI initiated an investigation of Mr. Mayfield — a US citizen, veteran of the US Army, and Muslim convert, who lived in a suburb in Portland, Oregon — in connection with the March 2004 Madrid train bombings.650 The FBI became focused on Mr. Mayfield as a suspect after it concluded that a fingerprint horn a bag of detonators found by the Spanish National Police (SNP) in a stolen van parked near the station where the bombed trains departed belonged to Mr. Mayfield. After weeks of 24-hour surveillance on Mr. Mayfield, the government authorities became concerned that its investigation may be publicized in the media and that Mr. Mayfield would flee. Accordingly, the US Attorneys' office submitted an application for a material witness warrant to detain Mr. Mayfield pursuant to § 3144. That same day, the FBI and DOJ applied to the Court for critical search warrants of Mr. Mayfield's home

649 In a recent case, A l-K id d v Gonzales, a material witness detainee brought a Federal Tort Claims Act suit against government officials claiming, among other things, that the government "abused process" by detaining Al-Kidd as a terrorist suspect under the material witness statute. No. CV:05-093-S-EJL, 2006 WL 2682346, *8-9 (D. Idaho 18 September 2006). The district court, affirming that the detention of criminal suspects under the material witness statute would be unconstitutional, denied the government's motion to dismiss and allowed Al-Kidd's case to go forward on this claim. Ibid. 650 See A Review of The US FBI's Handling of the Brandon Mayfield Case, Office of Inspector General, United States Department of Justice, January 2006 at page 1 of Executive Summary (hereinafter "IOG Mayfield Report"). A summary of the facts of Mr. Mayfield's case can also be found at Ricardo Bascuas, The Unconstitutionality of "Hold Until Cleared": Reexamining Material Witness Detentions in the Wake of the September 11th Dragnet, 58 Vanderbilt L. Rev 677, 678-80 (April 2005).

-157- and office. The government was frank in its court filings that Mr. Mayfield was a suspect under investigation by the FBI, not merely a witness, and did not attempt to serve Mr. Mayfield with a subpoena.651 Both the material witness warrants and the criminal search warrant were issued by the court based on the government's affidavit, which contained several ambiguous allegations and, in some cases, flagrant misrepresentations. The affidavit asserted that the fingerprinting was a "100% positive identification" and suggested that the SNP agreed with the FBI on the identification, which in fact it had not.652 Moreover, it asserted an unfounded inference that Mayfield travelled to Madrid on false documents. The only basis for this allegation was that there was no record of Mayfield leaving the country. Mr. Mayfield was detained indefinitely in a detention center where he spent the first week in solitary confinement, and was kept in his cell for up to 22 hours a day. He was later moved to a less restrictive detention area, but was housed with pretrial detainees. Mr. Mayfield had been detained for two weeks when the government suddenly filed a motion agreeing to his release. The government's motion was based on the discovery by the SNP that the recovered fingerprint in fact belonged to Ouhnane Daoud, an Algerian man, not Mayfield. Mr. Mayfield has since filed a lawsuit against the government for their mishandling of his case and unlawful detention. Another case where the government made a serious mistake in a material witness detention was that of Abdallah Higazy.653 Mr. Hizgazy, an Egyptian-bom graduate student, was living in the United States on a grant from the US Agency for

651 Ibid. 652 Ibid 19. 653 A summary of the facts of Mr. Higazy's case can be found in the following materials: See See Human Rights Watch, "Witness to Abuse: Human Rights Abuses under the Material Witness Law since September 11," Vol. 17, No. 2 (G) (June 2005), 24; Higazy v Millenium Hotel and Resort, 346 F. Supp.2d 430 (S.D.N.Y. 2004) (civil action by Higazy arising out of material witness detention), United States v Awadallah, 202 F. Supp.2d 55, 79 n.29 (S.D.N.Y. 2002) (summarizing Higazy case).

-158- International Development (USAID) to attend a graduate program at Brooklyn Polytechnic. On September 11, he was staying at the Millennium Hotel near the World Trade Center. Following the attacks and an evacuation of the hotel, a hotel security guard claimed that he found a ground-to-air radio in a safe in Higazy's hotel room. The Justice Department had received reports that the hijackers were assisted by people on the ground in New York using air to ground radios, and thus suspected Higazy of assisting in the attacks. On December 17, 2001, when Higazy returned to his room to retrieve his belongings he was arrested on a material witness warrant. During his three week detention, he was subjected to three sets of interviews. Higazy voluntarily agreed to a polygraph examination and was examined without counsel. According to Higazy's lawyer, the agent came out of the interrogation room declaring that Higazy had confessed. Higazy, visibly upset, told his lawyer that he had almost fainted and didn't recall exactly what he had said but began to sense that there was no way he could convince the government that he didn't have the radio. Based on this alleged confession, the government charged Higazy with lying to federal investigators and interfering with a government investigation. Five days later, the government dropped the charges when another hotel guest came forward to claim the radio. The hotel security guard later admitted to lying to the FBI, admitting that he did not find the radio in Higazy's room, but rather found it in another room. After spending 31 days in solitary confinement in a New York detention center, Higazy was released in his prison scrubs and given three dollars for subway fare. Unfortunately, these cases are not isolated incidents. In more than a dozen cases, the Department of Justice apologized for a mistaken or unwarranted arrest under the material witness statute.654

654 See Testimony at an Oversight Hearing on the USA PATRIOT ACT of 2001 and the Material Witness Statute Before the Subcomittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee, Submitted by Gregory T. Nojeim, American Civil Liberties U, 26 May 2005, 8.

-1 5 9 - The detention of material witnesses who refuse to appear to testify may be a permissible and narrow exception to the general bar on executive detention as long as there are time limits and other adequate safeguards to prevent misuse. However, as these cases demonstrate, the material witness statute as it is currently drafted extends far beyond those constitutional limits and allows the government to subvert the criminal justice process through pretextual means. The requirement that an individual be arrested only upon probable cause has no meaning if the government is so easily able to circumvent the requirement with a warrant which authorises indefinite detention upon a far lesser showing. In short, the material witness statute is a prime example of the dangers of preventative detention laws that lack the necessary protections to prevent the subversion of constitutional guarantees in the criminal justice process.

B. Australia: Preventative Detention and Control Orders Unlike the United States, Australia has not used pretextual measures or wartime models of detention to accomplish preventative detention. Rather, the government has implemented preventative detention into its Criminal Code through anti-terrorism legislation. In 2005, the Commonwealth Parliament passed the Anti-

Terrorism (No. 2) 2005 Act, adding new divisions to the Criminal Code. Among other things, the Act authorised the Australian Federal Police to preventatively detain individuals for up to 48 hours with the aim of preventing an imminent terrorist attack or to preserve evidence related to recent terrorist attack.655 Pursuant to an agreement with the Commonwealth government, State legislatures have enacted similar laws authorizing extended periods of preventative detention — up to 14 days.656 The Act also authorised courts to issue control orders to suspected terrorists

655 The preventative detention order provisions of the Act are codified in the Criminal Code at Division 105. 656 See, eg, (Terrorism) Police Powers Act 2002 (NSW ) s 26K.

-160- that could impose significant obligations, prohibitions and/or restrictions on individuals, including house arrest, for even more extended periods of time.657 In contrast to the US preventative detention measures, the Australian legislation sets forth a scheme which is far more limited in scope. Unlike the US measures, which authorise indefinite detention, the Australian preventative detention orders strictly limit the length of detention to a maximum of two weeks. While control orders may last longer — up to one year with an option to renew — they impose lesser constraints on individual liberty than incommunicado detention in a government facility. Moreover, as discussed in more detail below, both the preventative detention and control order legislation sets forth a detailed procedural process for the application and issuance of the orders and incorporates various other safeguards to deter government abuse. Furthermore, in contrast to the US measures, the Australian preventative detention measures have been sparingly used. While Australia has not yet suffered a terrorist attack like 9/11 on its own soil, the government has arrested and tried individuals for various planning and preparation offences. For example, in November 2005, police arrested 17 people in coordinated anti-terrorism raids in Melbourne and Sydney following reports that a group of men were stockpiling chemicals to carry out a terrorist attack.658 During that investigation, as well in others which have led to arrests, the executive never applied for a preventative detention order, and to date has used a control order only once.659

657 The control order provisions of the Act are codified in the Criminal Code at Division 104. 658 See Elizabeth Lopez, Dewi Cooke, "Raid's disrupt 'imminent' attack," The Age, 8 November 2005. 659 See Australian Federal Police, Preventative Detention and Control Orders Annual Report (2005-06) (report on number of preventative detention and control orders issued from 2005 to 30 June 2006) and 27 August 2006 Order issued by Federal Magistrates Court of Australia, Canberra, File No. (P)CAG47/2006.

-161- 1. T h e Anti-Terrorism Act (No. 2) 2005 ( C t h ) Like most western nations, the events of September 11 prompted die Australian government to set into motion a legislative initiative to expand dramatically executive powers in law enforcement and security. Then Attorney- General Daryl Williams noted that while there was no known specific threat against Australia, "the profound shift in the international security environment has meant that Australia's profile as a terrorist target has risen and our interests abroad face a higher level of terrorist threat."660 In the five years following September 11, the Australian Parliament has passed over 35 acts relating to anti-terrorism. Like the United States, the Australian response was one that emphasized prevention. Attorney-General Philip Ruddock stated: "The first line of defence in the war in terrorism is to make sure that we have the power to deal with terrorists and to catch them before they have a chance to commit a crime."661 To this end, the laws passed by Parliament incorporated new preparatory criminal offences related to terrorism which would allow law enforcement authorities to make arrests and prosecute before the terrorist act is completed and its horrible consequences are suffered.662 By 2005, the Criminal Code criminalized preparatory acts such as providing or receiving training connected with terrorist acts, possessing things connected with terrorist acts, collecting or making documents likely to facilitate terrorist acts, and acting in preparation for, or

660 Daryl Williams, Attorney-General's Department, "Upgrading Australia's counter­ terrorism capabilities," (Press Release, 18 December 2001). 661 Statement by the Attorney-General Philip Ruddock on National Security - Overseas Developments (19 February 2004), http://www.ag.gov.au/agd/www /Minister Ruddockhome.nsf/Page/RWP5B8D376BE792B92CCA256E3F001D407E?OpenDocument. 662 See Criminal Code ss 101.1 et seq. For a summary of the criminal offences related to terrorism see Chapter 1 of A Lynch, G Williams, What Price Security? (2006), 14-28.

- 1 6 2 - planning, a terrorist act.663 Similarly, the Code barred certain conduct which involves a connection with a terrorist organization regardless of preparation or planning.664 In addition to crafting new criminal offences for terrorism, Parliament expanded the powers of the Australian Security Intelligence Organisation (ASIO) to question and detain terrorist suspects in the ASIO Bill (No. 2) (2003) (Cth). As initially drafted, the bill authorised ASIO to detain without trial anyone who may have useful information about terrorism.665 The detention could be for two-day periods but could be renewed repeatedly such that detention could be indefinite.666 After intense scrutiny by two parliamentary committees, the bill was declared to "undermine key legal rights and erode the civil liberties that make Australia a leading democracy/'667 After 15 months of debate and revisions, a new scheme was passed in June 2003 which authorised ASIO to detain and question witnesses for up to one week.668 Nevertheless, the London Underground bombings in July 2005 prompted the to declare that additional powers were needed to combat the threat of terrorism. Recognising that the nature of the terrorist threat had changed from a "known threat from overseas to include a relatively unknown 'home grown' one," Prime Minister Howard argued that preventative detention measures were needed for law enforcement agencies (specifically, the Australian Federal Police

663 Criminal Code ss 101.2,101.4,101.5,101.6. 664 See Criminal Code ss 102.2 (directing the activities of a terrorist organisation); s 102.3 (membership in a terrorist organisation); sl02.4 (recruiting a terrorist organisation); s 102.5 (training or receiving training from a terrorist organization); sl02.6 (getting funds to or from a terrorist organisation). 665 The powers relating to ASICXs questioning and detention powers are located in Division 3 of the Australian Security Intelligence Organisation Act 1979 (Cth). A concise summary of ASIO's new power is set forth in Chapter 2 of A Lynch, G Williams, W hat Price Security? (2006), 29-40 666 Ibid 32. 667 Ibid 33 (quoting Commonwealth of Australia, Parliamentary Joint Committee on ASIO, ASIS, DSD, An Advisory Report on the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002, May 2002, p. vii. 668 Ibid 33-34.

-1 6 3 - "AFP") to "better deter, prevent, detect and prosecute acts of terrorism."669 On September 27, 2005, representatives from the Commonwealth, State and Territory Governments (COAG) met in Canberra for a Terrorism Summit and reached an

Agreement, pursuant to which, the federal government would introduce the Anti-

Terrorism (No. 2) Bill. The Bill authorised, among other things, preventative detention orders for up to 48 hours and control orders to restrict the movement of those who pose a terrorist threat to the community.670 The State Premiers and Northern Territory and ACT Chief Ministers agreed to introduce complementary legislation authorising preventative detention for a period of up to 14 days. Thus, like the United Kingdom and Canada, Australia enacted a scheme providing for the preventative detention of suspected terrorists.671

The Anti-Terrorism (No. 2) Bill was pushed through Parliament far more quickly than the ASIO Bill. The Bill was referred to the Senate Legal and Constitutional Legislation Committee on November 3, 2005.672 Only eight days were provided for public submissions, though the Committee did receive 294 submissions.673 The Committee responsible for reviewing the legislation further held three days of public hearings on the Bill.674 Despite strong objections against the preventative detention and control order provisions of the Bill voiced by

669 The Senate Legal and Constitutional Committee, Provisions of the Anti-Terrorism Bill (No. 2) 2005 (November 2005) ss 2.6-2.15 (hereinafter "Senate Committee Report"). http://www.aph.gov.au/senate/committee/legcon_ctte/terrorism /report/report.pdf.; The Hon MP, "Counterterrorism laws strengthened," (Media Release , 8 September 2005), http://www.pm.gov.au/News/media_releases/ media_Releasel551.html 670 Council of Australian Governments' Communique (27 September 2005). 671 See Kent Roach, "Must We Trade Rights for Security? The Choice Between Smart, Harsh, or Proportionate Security Strategies in Canada and Britain," (April 2006) 27 Cardozo L Rev 2151, 2196 (outlining preventative detention laws in the UK and Canada). 672 Senate Committee Report, above n 669, s 1.1, p. 1. 673 Ibid s 1.3, p. 1. 674 Ibid ss 1.1.-1.5, p.l.

-164- constitutional scholars, professional organizations, civil liberties groups, and citizens,675 the provisions were made law on December 14, 2005.

a. Division 105: Preventative Detention Orders. Division 105 of the Act authorises the AFP to preventatively detain an individual without charges to either prevent an imminent terrorist attack or to gather evidence relating to a recent terrorist attack. An individual subject to a preventative detention order may be detained for up to an initial period of 24 hours.676 That 24-hour period may be continued under a second order for a total period not exceeding 48 hours.677 Nevertheless, while the time period of detention under the federal law is limited to 48 hours, suspects may be detained longer under a corresponding state preventative detention statute. For example, under the New

South Wales Terrorism (Police Powers) Act 2002, a suspect of terrorism may be detained for up for 14 days.678 Accordingly, an individual may be turned over to NSW authorities and subjected to a more extended detention period.679

The preventative detention scheme under the Anti-Terrorism (No. 2) Act (Cth) aims to be purely administrative in nature. Applications are submitted by the AFP in writing to an "issuing authority" who has the power to authorise a detention order.680 With respect to an initial preventative detention order — authorising detention for up to 24 hours, — the "issuing authority" is a senior member of the

675 For example, Allan Behm, a former senior government advisor on security and counter terrorism advised the committee that, in his view, the Bill was "ill-considered, unnecessary, and will almost certainly be ineffectual." Submission by Allan Behm regarding the Inquiry into the Provisions of the Anti-Terrorism (No. 2) Bill 2005 (11 November 2005). For a summary of the criticisms of the bill see Senate Committee Report, 17-70 (Chapters 3 & 4). 676 Criminal Code s 105.8 (5). 677 Ibid s 105.10(5). 678 (Terrorism) Police Powers A ct 2002 (NSW) s 26K. 679 The federal law does bar applications for an order under the federal statute where an order is made under the corresponding State preventative detention law. Criminal Code s 105.6. The NSW laws, however, does not incorporate a similar prohibition. 680 Criminal Code s 105.7.

-1 6 5 - AFP.681 Thus, the authority applying for an order and issuing the order belong to the same executive agency. No judicial or other form of independent judgment authorisation is required for an initial detention order.

A continued preventative detention order — which would extend detention to up to a total of 48 hours — requires approval from a more independent authority: a serving or retired Federal or State Supreme Court judge, a Federal Magistrate or a lawyer holding an appointment to the Administrative Appeals Tribunal as President or Deputy President.682 Accordingly, judicial officers may serve as "issuing authorities," but may only do so in their personal capacity, and not in their official capacity as members of the court.683 Not only are the time limits strict, but the scope of individuals subject to detention is far more limited than the US material witness statute or enemy combatant policy. Under the Act, a preventative detention order only may be issued in two situations: 1) to prevent a terrorist attack that is "imminent" and "expected to occur at some time in the next 14 days;"684 or to 2) preserve evidence related to a terrorist attack that has occurred in the past 28 days.685 With respect to the first situation — a preventative detention order to prevent an imminent terrorist attack — the issuing authority must be satisfied that there are "reasonable grounds to suspect" that the individual: 1) will engage in a terrorist act; 2) possesses a thing that is connected with the preparation for, or the engagement of a person in, a terrorist attack; or 3) has done an act in preparation for, or planning of, a terrorist act.686 The issuing authority must also be satisfied that

Criminal Code s 100.1(1). M s 100.1(1). Ibid s 105.19(2). Ibid ss 101.1, 105.4(5) & (6). Ibid ss 101.1,105.4(6). Ibid s 105.4(4)(a).

-1 6 6 - 1) the making of a preventative detention order would substantially assist

in preventing a terrorist act from occurring; and

2) detaining the subject for the period for which the person is to be

detained is 'reasonably necessary' for this purpose;

3) the terrorist attack is imminent and expected to occur within the next

14 days.687

This provision is narrow in some respects and incredibly broad in others. On one hand, the requirement that a terrorist attack be "imminent" places significant limits the government's ability to obtain a preventative detention order in the ordinary terrorism investigation. Law enforcement authorities aim to prevent terrorism attacks in their early stages, yet this law may only be used when the planning is in its final stages. The "reasonably necessary" requirement is vague, but does suggest a type of proportionality analysis that should take into account whether other less intrusion measures are available.

On the other hand, the government's burden of proof is extremely low. The

"reasonable grounds to suspect" is a significantly lower standard than the test of

"reasonable cause" typically required in criminal arrests. Rebutting an assertion that the authorities had "reasonable grounds to suspect" a person of involvement in a terrorist act would be a difficult, if not impossible, burden on the detainee.

Moreover, the requirement that the evidence "substantially assist" the prevention of a terrorist attack is as a vague as the "reasonably necessary" requirement and equally difficult to contest successfully.

With respect to the second situation — a preventative detention order for the purpose of gathering evidence relating to a past terrorist attack — the issuing authority must be satisfied that that the preventative detention is:

1) necessary to detain the subject to preserve evidence of, or relating to, the

terrorist act; and

Ibid s 105.4(4) & (5).

-167- 2) that detaining the subject is "reasonably necessary" for the purpose of

gathering evidence of a recent terrorist attack.688

A preventative detention order under this second subsection casts a wider net of potential detainees. Unlike the first subsection, the government need not establish any connection between the subject of the order and any terrorist related activity and thus, not only terrorist suspects may be detained, but also witnesses and any other persons who may come within the scope of a terrorist investigation. As media organizations pointed out in their submissions to Parliament, under these provisions, journalists and other media personnel could be subject to detention if they refused to turn over material, even if the material was subject to professional privilege or a journalist's obligation to protect the identity of confidential sources.689

At the same time, the government's burden of proof appears somewhat heavier than that under the first subsection. The requirement that the government establish that the detention is "necessary" to preserve evidence suggests that government must show that detention is the only way that the government can preserve the evidence. Still, the statute still does not include any language which requires the government to demonstrate that the evidence could not be obtained by less intrusive methods. Furthermore, again, the issuing authority will likely defer to the executive's determination what measures are "necessary" with respect to the police investigation and the preservation of evidence.

Unlike the US preventative detention schemes which are geared toward interrogation and information gathering, the police and ASIO are barred from questioning a detainee held under a preventative detention order (either State or federal) on any matter other than verifying the detainee's identity or inquiring about their safety and well-being.690 An officer who fails to comply with this requirement

Ibid ss 105.4(6)(b)&(c). Senate Committee Report, above n 669, p. 27. Criminal Code s 105.42 (1).

-168- may be subject to criminal sanctions.691 The restriction on questioning is an important safeguard from using the detention as a method of coercion to obtain information through interrogation. In the Explanatory Memorandum accompanying the Anti-Terrorism Bill, Parliament acknowledged that the "detention itself . . . can impact the reliability of the answers to questions/' and thus interrogation of the detainee is not permissible.692

Nevertheless, preventative detention orders can operate in conjunction with other questioning and detention powers. A detainee may be released from preventative detention and immediately transferred to ASIO custody and detained under a questioning warrant.693 Similarly, a detainee may be transferred to criminal custody and subjected to questioning in relation to criminal offences.694

While the Australian preventative detention scheme is significantly narrower in scope than the US preventative detention measures, and incorporates strict time limits on detention, it shares similar problems relating to unreliable evidence, lack of judicial review and secrecy. The issuing authority may consider evidence which would not otherwise be admissible in regular court proceedings. Indeed, an application for an initial order need not even be sworn by the AFP officer. Once a preventative detention order is issued, the police are required to inform the arrestee of a summary of the grounds of the order and must provide the detainee a copy of the order.695 The preventative detention order sets forth the name, date and duration of custody, as well as a summary of the grounds upon which the order is made, but may exclude any information that is likely to prejudice national security even if that

691 Ibid s 105.42(1) 692 Explanatory Memorandum, Parliament of the Commonwealth of Australia, House of Representative, Anti-Terrorism Bill (No. 2) 2005 (2004-2005), 66. 693 Criminal Code s 105.42(1). 694 Division 4, part IAA and Part IC of the Crimes Act 1914. 695 Criminal Code s 105.19. In taking the subject of a preventative detention order into custody, the police have the same powers and obligations as if in cases of arrest for a criminal offence. Ibid s 105.19(2). As with criminal arrests, the police have the power to enter and search the premises upon which the subject of the order is reasonably believed to be, and to conduct a frisk search of that person. Criminal Code ss 105.22.-105.24

-169- information is the sole ground for the order.696 Yet, detainees are not entitled to see

the application, nor are entitled to any of the underlying evidence or materials

supporting the application.

Even if a detainee were provided with more extensive information regarding

the grounds for their detention, the Act is silent regarding potential avenues to

contest the information upon which an order is based before the issuing authority.

Thus, while the US material witness statute and die enemy combatant order (after

Hamdi) require a hearing at which a detainee may present evidence and contest the

basis of the detention, the preventative detention order provisions fail to provide the

detainee any right to a hearing following arrest at which the detainee may contest

the government's application and present rebuttal evidence.

Moreover, opportunities for judicial review are limited for subjects of

preventative detention orders. A detainee may seek a common law remedy in a

federal court through a habeas petition, however the scope of such review is limited

to errors of law and does not allow for any de novo examination of the evidence.697

The Act does allow appeal to the Administrative Appeal Tribunal (AAT), but only after the order has expired.698 In addition, a detainee may submit a complaint to the

Commonwealth Ombudsman under the Complaints (Australian Federal Police) Act

1981 or to an equivalent State or Territory body, however the complaint procedure is not designed to address petitions for release.699

Similar to the US preventative laws, the preventative detention orders in

Australia are cloaked in secrecy and eliminate a significant check on government power: public scrutiny. While individuals arrested under the Crimes Act 1914 (Cth) have the right to freely communicate with a friend, relative, and legal practitioner

Criminal Code s 105.8(6A). Ibid s 105.51(1). Ibid s 105.51(4) & (5). Ibid s 105.28(2)(e).

-17 0- before being questioned by police/ 00 the right to communicate with any one in the outside world while in custody under a preventative detention order is severely limited. As a general rule, contact with the outside world is prohibited. A detainee may contact one family member, one housemate (if not living with a family member), his or her employer, an employee if detainee is an employer, one business partner, and any other person that the detaining police officer allows the detainee to contact.700 701 When making contact, however, the detainee may only say that he or she is "safe but is not able to be contacted for the time being," and the communications are monitored.702 The AFP also may seek an order from the issuing authority prohibiting even these limited contacts under certain specified circumstances where the contacts may harm or impede a terrorist investigation.703 Moreover, die consequences of violating the non-communication provisions are severe. The Act makes it a crime for anyone to disclose the existence of a preventative detention order punishable by up to 5 years in prison.704 Thus, individuals who have been detained are not permitted to discuss their detention with the media or anyone else either during or after their detention.

The Act further infringes on the detainee's access and communication with an attorney. A detainee is permitted to contact an attorney for the limited purpose of obtaining advice about rights under a preventative detention order, or for the lawyer to act for them in proceedings, including those relating to an order.705 Nevertheless, all contacts with an attorney or other persons may be monitored by the police.706 As noted by the Australian Council for Civil Liberties and the Law Council in their submissions to the Senate Committee, the monitoring of attorney-client

700 See Part IC of the Crimes Act 1914 (Cth) (providing that a person under arrest or being questioned by police have the right to communicate with a friend, relative, and legal practitioner before being questioned by police). 701 Criminal Code s 105.34,105.35(1). 702 Ibid s 105.35(1) 703 Ibid ss 105.15, 105.16. 704 Ibid s 105.41. 705 Ibid s 105.37. 706 Ibid s 105.38.

-1 7 1 - communications conflicts with the practice in place for hundreds of years that an attorney's communications with his or her client in police custody are confidential.707

If a preventatively detained person is aware that the conversation is being monitored and taped by government officials, the detainee will not be open with his attorney for fear that the information will be used in other investigations.708 While the Act further provides that the lawyer-client communications are inadmissible in any court proceedings, the use immunity only applies to those communications which fall within the strict limits for which access to legal advice is permitted 709

Finally, with respect to conditions of detention, subjects of a preventative detention order are detained in state prisons. There are no requirements that they be housed separately from those charged or convicted of a crime, except that children under 18 years of age are to be housed separately from adults.710 The Act requires that a person detained must be treated with humanity and with respect for human dignity and must not be subject to cruel, inhuman or degrading treatment.711 AFP officers who violate these terms are subject to criminal prosecution.712

b. Division 104: Control Orders

Control orders are distinct from preventative detention orders in that they stop short of authorising the detention of an individual in a government facility.

Nevertheless, like preventative detention orders, control orders impose significant obligations, prohibitions and/or restrictions on individual liberties for the purpose of protecting the public from a terrorist act. Indeed, Justice Sullivan of the High Court in the United Kingdom found that a control order which had been issued under a

707 Senate Committee Report at 50-52 (citing ACCL Submission No. 17, p. 11 and Law Council Submission No. 222, p. 8) 708 Ibid. 709 Criminal Code s 105.38(5). 710 Ibid s 105.33A. 711 Ibid s 105.33. 712 Ibid s 105.44 (2 year imprisonment penalty for violation of sl05.33).

-17 2- similar scheme in the UK, and imposed house arrest for 18-hours/day, amounted to imprisonment.713

Control orders impose broad restrictions on a person's physical movements and communications including:714

• A prohibition or restriction on the person being at specified areas or

places;

• A requirement that the person remain at specified premises between

specified times each day, or on specified days;

• A prohibition or restriction on the person communicating or associating

with specified individuals;

• A requirement that the person wear a tracking device;

• A prohibition or restriction on the person carrying out specified activities

(including in respect of his or her work or occupation;

Other possible prohibitions under the Act include a restriction on the use of communication devices, such as the Internet, or a restriction on the possession of certain articles or substances.715 Jh addition, a control order may impose certain obligations such as a requirement that the person report to a specified person at specified times and places, that a person be photographed or fingerprinted or participate in specified counselling or education.716 Significantly, failure to comply with a control order is a criminal offence punishable by up to five years in jail.717

Unlike preventative detention orders, control orders are issued by the courts.718 Before requesting a court for a control order, a senior member of the AFP first must obtain written consent from the Attorney General.719 Once the Attorney

713 See Secretary of State for the Home Department v JJ [2006] EWHC 1623 (Admin), *2*5 69- 80. 714 Criminal Code s 104.5(3) (listing obligations, prohibitions, and restrictions). 715 Ibid s 104.5(3). 716 Ibid. 717 Ibid S104.27. 738 Ibid ss 104.5; 100.1 719 Ibid s 104.2.

-173- General has consented to the proposed order, die AFP member may apply for an interim order from an issuing court.720 Those courts which qualify as issuing courts are Federal Courts, Family Courts or Federal Magistrate's Court.721

The scope of individuals subject to a control order is significantly broader than those subject to a preventative detention order. The AFP member merely must establish on the "balance of probabilities" that

1) "making the court would substantially assist in preventing a

terrorist act" or

2) "that the person subject to the order has provided training to, or

received training from a listed terrorist organization."722

Thus, there is no requirement that the individual subject to the order be suspected of involvement in any terrorist activity or attack. Indeed, the government need not establish any evidence that any specific attack is even being planned. Rather, the Act authorises the imposition of a control order as a measure to prevent terrorism generally.

A control order imposed on an individual who has provided or received training from a listed terrorist organization is likewise incredibly broad. The Act does not require that the training be related to terrorism, but rather may include non-violent training including religious study or community service. There are no time limits as to when the training may have taken place and, thus, a person trained by a listed organization a decade ago may be subject to a control order today.

Without a time limit, a person who has provided or received training will always fall within the scope of the control order and thus may be subject to control orders for life.

A request for an interim control order is made ex parte by a senior AFP member after obtaining consent from the Attorney General.723 The AFP officer must

720 Ibid s 104.3. 721 Ibid s 100.1 722 Ibid s 104.1(2).

-17 4- set forth a statement of facts supporting the application and an explanation as to why each of the obligations, prohibitions and restrictions should not be imposed on the person, as well as any mitigating facts relating to why the order should not be made.724 Again, if there is information which is likely to prejudice national security, it simply need not be included in the statement of facts.725 Nor is there any requirement that the statement be sworn. While a court may request further information from the

AFP officer should it deem necessary,726 there is no requirement that the AFP member submit admissible (or even inadmissible) evidence in support of the statement in the form of witness affidavits or other documents.

Once a court is satisfied that the terms of the interim control order are

"reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act," it will issue an interim order outlining its terms and length.727 There is no provision for a hearing, either ex parte or otherwise, with respect to interim orders. Thus, the subject of the order is not allowed any opportunity to contest a request for an interim order, nor is he or she even notified of the application before the order is issued.

The subject of a control order, however, is allowed a hearing to contest a confirmation of a control order. That hearing date must be "as soon as practicable" but at least 72 hours after the order is made.728 The subject of the order must be served with the order at least 48 hours prior to the hearing date.729 In addition to the order, the AFP must provide the subject a copy of the application for the order and

"any other details required to enable the person to understand and respond to the substance of the facts, matters and circumstances which will form the basis of the

Ibid ss 104.2(3), 104.3. Ibid s 104.2(3). Ibid s 104.2(3A). Ibid s 104.4(l)(b). Ibid s 104.5. Ibid 104.5(1A). Ibid 104.5.

-175- confirmation of the order."730 Nevertheless, the statute provides a gaping hole of exceptions to this general rule of disclosure. The AFP need not turn over any information or documents if the disclosure is likely to:

(a) prejudice national security. . . ; or

(b) to be protected by public interest immunity; or

(c) to put at risk ongoing operations by law enforcement agencies or intelligence

agencies; or

(d) to put at risk the safety of the community, law enforcement officers or

intelligence officers.731

At the "confirmation" hearing, the subject of the control order will have an opportunity to challenge the government's application for the control order, and both parties are afforded the opportunity to provide evidence and make submissions. The Act, however, is silent as to the admissibility of evidence that may be submitted or considered. According to the Senate Committee Report, the government has advised that the Evidence Act would apply to interim control orders

(as interlocutory proceedings) and confirmation hearings (as proceedings in a federal court).732 Nevertheless, the Act also fails to address whether evidence not turned over to the subject of the order because of national security or "community safety" concerns may be relied upon by the court in confirming the order.

Unlike a preventative detention order, a control order may be imposed for an extended, and indeed indefinite, period of time. The Act states that an order may last up to one year, but also provides that an order may be renewed after expiration.733

There are no limits on how many times a control order may be renewed and thus, a person could be subject to a control order for years, if not a lifetime.

730 Ibid s 104.12A(2). 731 Ibid s 104.12A(3). 732 Senate Committee Report ss 4.39, 4.40. See also Criminal Code s 104.28A (stating that proceedings in relation to an interim control order are to be taken as interlocutory proceedings for all purposes including for the purpose of section 75 of the Evidence Act 1995 and that confirmation proceedings are not to be classified as interlocutory proceedings. 733 Criminal Code ss 104.55(f), 104.55(h)(l)(2).

-176- Finally, the Act provides a sunset provision of 10 years for the control order provisions.734 During that ten year period, the Attorney General must issue annual reports reporting various statistics regarding the number of interim and confirmed control orders issued, as well as particulars of any complaints submitted by detainees.735

The only case to date in which the government has applied for a control order is the "Jihad" Jack Thomas case. Joseph Terrence Thomas, nicknamed by the media

"Jihad Jack," is an Australian citizen who had travelled to Afghanistan in March

2001, where he was alleged to have trained at the al Faroup training camp.736 Over the next year and a half, Thomas stayed in various al Qaeda safe houses and allegedly met several al Qaeda officials, including Osama bin Laden.737 On January 5,

2003, Thomas was arrested by Pakistani officials as he crossed the border into

Pakistan and was held in various detention facilities for 5 months.738

During that time, Thomas allegedly was tortured by Pakistani officials and interrogated without counsel by Pakistani, as well as US and Australian, officials about his al Qaeda ties and activities.739 During an interview with the Australian

Federal Police and ASIO, Thomas admitted that he had altered his passport and that he had been given money and an airline ticket by a high ranking al Qaeda official.740

In June 2003, he was released from Pakistani custody and deported to Australia, where he returned to live with his family in Melbourne.741 It was not until eighteen months later that he was arrested by the AFP and charged with several federal

734 Ibid s 104.32. 735 Ibid s 104.29. 736 R v Thomas, [2006] VSCA 165, para 1 (18 August 2006) (outlining facts and procedural history). See also Sally Neighbor, "The Transcript: What Thomas told Four Corners," The Austrailan, 21 August 2006, http://www.theaustralian,news.com.au/story/0,2087,20199530- 610,00.html (Thomas' account of his experience in Afghanistan). 737 R v Thomas [2006] VSCA 165, para 1-2. 738 Ibid, para 1-2. 739 Ibid, para 8-61 (outlining the various interviews of Jack Thomas in Pakistan). 740 Ibid. 741 Ibid para 2.

-177- offences, including receiving funds from a terrorist organization, providing resources to a terrorist organization, and holding a false passport.742

Thomas was tried on these charges before a jury in the Supreme Court of

Victoria.743 The case was controversial as the prosecution's evidence against Thomas relied heavily, if not exclusively, on the confession obtained by the Australian authorities in the Pakistani military prison, a confession which Thomas' defence counsel argued was inadmissible because it had been obtained under duress and without the option of counsel.744 The trial court disagreed and admitted the evidence, finding that the Thomas had made the statement voluntarily.745 On February 27,

2006, the jury convicted Thomas of receiving funds and false passport charges, and in March he was sentenced to five years in jail with a minimum term of two years.746

On appeal, the conviction was reversed 747 The appellate court found that

Thomas' statement was involuntary and therefore inadmissible.748 The appellate court issued an order acquitting Thomas on all charges.749 The government, however, argued that a retrial was in order based on "new evidence," an interview Thomas had given to ABC's Four Corners the day after his conviction where he admitted to falsifying his passport and receiving funds from al Qaeda officials.750

Significantly, in addition to requesting a new trial, the government also filed an application for an interim control order to be imposed on Thomas, which was granted.751 Among other things, the order required Thomas to remain in his house in the evenings and to report three times a week to a designated Victorian police

742 Ibid. 743 Ibid para 3. 744 Ibid para 4-5. 745 DPP v Thomas [2006] VSC 120 (31 March 2006). 746 Rv Thomas [2006] VSCA 165, para 1-2. 747 Ibid. 748 Ibid para 66-95. 749 Ibid para 120. 750 Sally Neighbor, "The Transcript: What Thomas told Four Comers," The Austrailan, 21 August 2006, http:/fwww.theaustralian,news.com.au/storyl0,2087,20199530-610,00.html. 751 27 August 2006 Order issued by Federal Magistrates Court of Australia, Canberra, File No. (P)CAG47/2006, available at

-17 8- station.752 It further prohibited him from leaving die country and from communicating with any individuals associated with terrorist organizations, and limited his use of telephones and internet services.753

The Thomas case is a poignant example of how control orders give the government a second bite at the apple at punishing suspected terrorists who it has insufficient evidence to prosecute. Through the control order system, die government, having failed to prove its case against Thomas through the criminal justice system, was able to impose an alternative form of "trial" and punishment on

Thomas for his past activities - activities for which Thomas was either acquitted or could not be charged. Yet his liberties were restricted based not upon a finding beyond a reasonable doubt that he violated the law, but rather a "balance of probabilities" that he had trained at a terrorist training camp. Thus, even though

Australia had not passed legislation criminalising such activities, control orders may be imposed based on acts which were lawful at the time they were undertaken.

Finally, the liberties denied Thomas under the control order may be less significant than the detention he would have faced had his conviction been upheld but, unlike a criminal sentence, a control order may be imposed for an indefinite period of time.

Indeed, Thomas could easily be subject to control orders for years if not for the rest of his life. The finding that he trained with a terrorist organization in 2001 will always support the issuance of an order under the Act regardless of whether the order is imposed this year or in 20 years.

2. Constitutionality of Preventative Detention and Control Orders.

The Australian preventative detention and control order laws, thus, are far more limited in scope that the US enemy combatant and material witness laws, yet there exist similar constitutional concerns regarding the imposition of detention

Ibid. 753 Ibid.

-179- outside the traditional criminal justice process.754 As discussed in Chapter One, the

Australian criminal justice system, like the US system, is founded on the principle

that persons not charged with or found guilty of a criminal offence should not be

punished and imprisoned without a judicial trial — a principle which underpins the

separation of powers embodied in the Commonwealth Constitution. By restricting

fundamental individual liberties without the usual attendant criminal charges or

trial, both preventative detention and control orders undermine basic tenets of the

criminal justice system, including presumption of innocence, the requirement of

proof beyond a reasonable doubt and the right to a fair trial. As a result, the

measures potentially usurp the exclusive power of the judiciary to detain

individuals through the criminal justice process and also conflict with the definition

and function of judicial power as it has been defined in the High Court's

preventative detention jurisprudence.

a. The Validity of the Executive Power to Issue Preventative Detention Orders Under Chapter III.

Preventative detention orders are both executive and judicial in nature, and thus, potentially violate separation of power principles in two related but distinct ways. First, the preventative detention orders authorise the executive to detain an individual without charges or a trial and, thus, may improperly usurp the exclusive power of the judiciary to punish and detain criminal suspects. Second, the preventative detention scheme authorises a judicial officer, in his or her personal capacity, to issue a continued detention order. While the High Court has upheld legislation authorising the delegation of certain non-judicial administrative powers,

754 See Andrew Lynch, Alex Reilly, "The Constitutional Validity of Terrorism Detention Orders," (publication forthcoming in Flinders J of L, Reform); A Lynch, G Williams, What Price Security? (2006), 54-58. See also, e.g., Submission to the Senate Committee on Legal and Constitutional by Dr. Gregory Came (10 November 2005); same by the Gilbert + Tobin Centre for Public Law (10 November 2005); same by the Law Council of Australia (11 November 2005).

-180- authorising a judge to detain an individual without charges or a trial may be incompatible with their judicial functions and undermine the integrity of the judiciary as a whole.

(1) Preventative Detention Orders and Usurpation of Judicial Power.

The scheme of preventative detention orders authorises the executive — specifically the AFP, as well as other individuals not currently serving as judges — to issue detention orders, and thus resurrects the question in Lim regarding the scope of executive power to detain individuals without trial. As discussed in

Chapter Two, the High Court in Lim recognised that, as a general rule, the power to detain individuals is exclusively a judicial function, and thus executive detention may be an unlawful usurpation of judicial power.755 Justice Gummow more recently reiterated this principle in Pardon, stating that "the involuntary detention of a citizen in custody by the State is permissible only as a consequential step in the adjudication of criminal guilt of that citizen for past acts/ ' 756 While the High Court in Lim and subsequent cases recognised certain exceptions to that general rule, including immigration, military tribunals and civil commitment for the mentally ill, the preventative detention orders set forth in Anti-Terrorism Act (No. 2) 2005 do not fall into any of these well-recognised and historically based categories of administrative detention. Thus, preventative detention orders will survive constitutional scrutiny only if the Court expands the list of acceptable categories to include the new counter-terrorism measures.

Echoing the language of administrative detention cases such as Al-Kateb, the

Attorney General has argued that the scheme is constitutionally permissible because it furthers the "non-punitive" purpose of "protecting the safety of the

Chu Kheng Lim v Minister of Immigration (1992) 176 CLR 1 at 27. Fardon v Attorney General (Qld) [2004] 210 ALR 50, 74.

-181- community."757 The justices have made clear that the categories of executive detention recognised in him are not closed and may be extended where detention is not punitive.758 Given the High Court's extreme deference to the government's assignment of a "non-punitive" purpose to detention legislation in other cases, the court may likely agree with the Attorney General's conclusion and find that the preventative detention scheme does not infringe on Chapter III judicial power. The anti-terrorism legislation clearly states that the orders are needed in order to

"prevent an imminent terrorist attack," or to "preserve evidence" relating to a recent attack — not to punish the detainees.759 Under reasoning like that of Justice McHugh, who said in In re Wooley that "protective laws" are "non-punitive," 760 the preventative detention orders would likely be upheld.

Nevertheless, as Justice Gummow pointed out in Al-Kateb, the overlapping purposes of criminal and civil law make the punitive/non-punitive purpose "apt to mislead," particularly in the case of preventative detention orders.761 Protecting the community from a terrorist attack is a purpose which is furthered not only by the preventative detention laws, but also those laws criminalising preparatory acts of terrorism. Indeed, preventative detention orders are virtually identical to those laws criminalizing acts of terrorism, yet simply apply lower standards of proof and a shorter detention period. The preventative detention orders authorise detention where an individual is planning or preparing to commit a terrorist attack, yet these acts are identical to those barred under the new criminal laws relating to terrorism.762

Indeed, the primary difference in detaining an individual under a preventative detention order versus detaining that same person for the criminal violation is

757 See Submission by the Third Defendant on behalf of the Commonwealth of Australia, in Thomas v Mowbray & Ors (submitted 17 November 2006), OT 41-55. 758 Pardon (2004) 210 ALR 50, 75, 92,108-09. See also Chu Kheng Urn (1992) 176 CLR 1, 55; Kruger (1997) 190 CLR 1,109-10; Vaslijkovic v Commonwealth (2006) 228 SLR 447, 460, 475, 491. 759 Criminal Code s 105.1. 760 Re Kit Wooley, 2004 WL 2244198 (HCA), 1 61 (McHugh J). 761 Al-Kateb v Godwin (2004) 219 CLR 562, 612. 762 See Criminal Code ss 101.2, 101.4, 101.5, 101.6. See also Chapter 1 of A Lynch, G Williams, What Price Security? (2006), 14-28.

-182- simply the burden of proof. In a criminal case, the government must prove its case beyond a reasonable doubt, but to obtain a preventative detention order it merely needs to establish that it has "reason to suspect" an individual of committing those prohibited acts. To suggest that a law serves a protective, and not punitive, purpose merely because it provides for a lighter burden or proof and carries a lighter sentence makes no sense. Were this true, the entire criminal code could be reinvented as a "non-punitive" civil code aimed at "protecting the community."

Moreover, it unclear whether the legislation can be connected to any existing head of power under section 51.763 The government has cited a variety of legislative powers supports it authority to implement preventative detention in cases of terrorism, including the defence power, the external affairs power, and the implied power to protect the Commonwealth and its authorities.764 However, as Andrew

Lynch and Alex Reilly have pointed out, the government's authority for the preventative detention legislation may largely rely on the constitutional "references" of power by the states to the Commonwealth Parliament pursuant to section

51(xxxvii) of the Commonwealth Constitution.765 Based on this power, it may be more difficult to conclude that the legislation is non-punitive.

Unlike the immigration detention cases upheld by the High Court, such as A l-

Kateb or Behrooz or the "social welfare" case of Kruger, preventative detention orders do not operate in a civil administrative arena separate and apart from criminal law enforcement, but are part and parcel of the criminal code itself. In immigration cases like Al-Kateb, detention was deemed necessary to the administration of the

763 Kruger v Commonwealth (1997) 190 CLR at 1 111 (Gaudron J); Al~Kateb v Goodwin 2004 WL 1743861187 (Hayne J). 764 See Criminal Code s 100.4(5) (listing powers authorizing legislation); Daryl Williams and James Renwick, "The War Against Terrorism, National Security and the Constitution", Bar News: Journal of NSW Association (Summer 2002/2003), 42,43. 765 Lynch and Reilly, above n 754, 3-4. See also Williams and Renwick, above n 764, 42- 43. Section 51(xxxvii) grants power regarding "matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law."

-183- deportation of non-citizens - a purpose which is distinct from the underlying the

detention of criminals. Here, the preventative detention orders aim to accomplish

precisely what the criminal justice system traditionally has barred - the detention of

criminal suspects without trial or the initiation of criminal charges. Detaining

criminal suspects without bringing them immediately to a magistrate for charges to

be laid is precisely the type of activity which was barred by the B ill of Rights of 1689,

the Petition of Right and Habeas Corpus Acts of 1641. Indeed, in 1908, Albert Venn

Dicey used a terrorism type scenario as a hypothetical to illustrate the strict

requirements of indictment and trial in the criminal justice system:766

Suppose, for example, that a body of foreign anarchists come to

England and are thought by the police on strong grounds of suspicion

to be engaged in a plot, say for blowing up the Houses of Parliament.

Suppose also that the existence of the conspiracy does not admit of

absolute proof. An English Minister, if he is not prepared to put the

conspirators on their trial, has no means of arresting them, or of

expelling them from the country. In case of arrest or imprisonment

they would at once be brought before the High Court on writ of habeas

corpus, and unless some specific ground for their detention could be

shown, they would forthwith set at liberty.767

Thus, even in the most serious of crimes - an attack on the Houses of Parliament -

the fundamental principles underlying the English system of criminal justice require

the executive to put forward the necessary proof to bring charges against the

suspects before they be arrested and imprisoned.

766 Albert Venn Dicey, Introduction to the Study of Law of the Constitution 222 (7th ed. 1908). 767 See also T. Cooley, General Principles of Constitutional Law 224 (1880) ("When life and liberty are in question, there must in every instance be a judicial proceedings; and that requirement implies an accusation, a hearing before an impartial tribunal, with proper jurisdiction, and a conviction and judgment before the punishment can be inflicted" (internal quotation marks omitted)); 3 J. Story, Commentaries on the Constitution of the United States §1783, p. 661 (1883) ("due process" includes "due presentment or indictment, and being brought in to answer thereto by due process of the common law").

-184- Nor can the executive detention scheme be upheld under the wartime

authorities, such as L ittle v Commonwealth, Lloyd v Wallach or E x parte Walsh. As

Justice Kirby has pointed out, the wartime cases are considered "doubtful

authority", particularly in light of the Court's subsequent decision in the Communist

Party Case,768 in which the High Court struck down certain laws banning the

Communist Party as beyond the wartime authority of Parliament. Yet, even

assuming the wartime internment cases are still persuasive precedent, the threat of

terrorism does not trigger the type of war powers exercised during World Wars I

and II. Even Justice McHugh, who has defended the validity of the wartime

detention cases, qualified his defence of the detention power, stating internment

may be upheld today "if Australia was again at war in circumstances similar to those

of 1914-1918 and 1939-1945."769

As several of the Senate Committee submissions pointed out, Australia,

unlike the UK or the US, has not suffered a domestic terrorist attack as of yet and its

threat alert level has not changed from "medium alert" for four years.770 While

government officials assert vague admonitions of danger, they have failed to

provide any detail regarding the nature of the threat or the need for such

extraordinary "wartime" measures. Certainly, terrorism is a serious concern for all

western nations, particularly Australia, which suffered dozens of casualties in the

bombings in Bali in 2002 and 2005. Nevertheless, the Senate Committee analysing

the preventative detention laws acknowledged in its report 15 of 25 security experts

interviewed by the media believe that the laws are not proportionate to the terrorist

threat in Australia and would not deter or prevent terrorism in Australia.771

768 Australian Communist Party v Commonwealth (Communist Party Case) [1951] 83 CLR 1. 769 At-Kateb, 2004 WL 1747386 55-61 (McHugh J). 770 See National Counter-terrorism Alert Level, http://www.nationalsecurity.gov.au/agd/ www/nationalsecurity.nsf/AllDocs/F2ED4B7E7B4C028ACA256FBF00816AE9?OpenDocume nt (accessed on 15 December 2006). 771 Senate Committee Report, above n 669, s 2.12. -185- In sum, the constitutionality of the preventative detention orders is not entirely

sound. The Court has been extremely deferential in the past with respect to

upholding preventative detentions schemes which purport to further a non-punitive

purpose. Nevertheless, these cases addressed detention schemes which can be easily

distinguished from the most recent anti-terrorism scheme. There are strong

arguments that the preventative detention orders usurp the power of the judiciary to

detain individuals in criminal proceedings, and thus violate the protections of

Chapter III.

(2) The Incompatibility of Preventative Detention Orders with the Exercise of Judicial Power.

Preventative detention orders may also run afoul of separation of power

principles by requiring judicial officers to function in a way that is incompatible

with judicial power under Chapter III. As explained earlier, the "issuing authority"

for a continued preventative detention order includes Federal Magistrate Judges.

While the Act states that in issuing preventative detention order, the Magistrate

Judges would be acting in their personal capacity, not their official capacity, the

scheme raises serious questions about whether it is consistent with the nature of

judicial power for judges to detain individuals without the benefit of a trial or a

hearing based on evidence inadmissible in ordinary judicial proceedings.

On one hand, use of judicial officers to issue detention orders laudably seeks

to secure an independent and unbiased decision regarding the propriety of issuing a

preventative detention or control order. Yet, as Justices McHugh and Gummow have

stated, the reputation of the judicial branch for impartiality and nonpartisianship

"may not be borrowed by the political branches to cloak their work in the neutral

colors of judicial action."772 While federal judges acting in a personal capacity (as a persona designata) may exercise certain non-judicial functions, those functions may

Grollo v Palmer [1995] 184 CLR 348, 377 & 392.

-186- not be "inconsistent with the essence of the judicial function and the proper performance by the judiciary of its responsibilities for the exercise of judicial power."773 Thus, for example, in Grollo v Palmer, the Court upheld the authority to confer judges to act in their personal capacity and issue telephone interception warrants sought by police officers.774

Preventative detention orders, however, are significantly different than telephone interception warrants. Unlike telephone inception warrants, which merely authorise law enforcement officers to exercise their investigative functions, the preventative detention and control orders require judicial officers to do precisely what they cannot do under the traditional criminal justice system—detain an individual without trial merely on suspicion of criminality. For that reason, the orders more closely resemble the preventative detention orders found unconstitutional in Kable.775 Like the Community Protection Act in Kable, the preventative detention orders implemented by the Anti-Terrorism Act (No. 5) 2005 authorise detention "not on the basis that [the detainee] ha[s] breached any law," but

"by reference to material not admissible in legal proceedings that on the balance of probabilities they may do so."776 Similarly, as in Kable, the preventative detention orders impose a detention scheme for suspected criminals which dispenses with the presumption of innocence and authorises detention based on the standard of proof that falls well below that the "beyond a reasonable doubt standard" required for criminal conviction.777

While Kable was distinguished, and arguably narrowed, by the Court in

Fardon, the decision does not change the analysis, and indeed provides support for the invalidity of the preventative detention provisions. As discussed in Chapter

Two, the Court in Fardon upheld a Queensland preventative detention scheme

773 Hilton v Wells (1985) 157 CLR 57, 83. 774 Grollo v Palmer [1995] 184 CLR 348. 775 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. 776 Ibid 107 (Gaudron J). 777 Ibid.

-187- authorising the extended detention of convicted sexual offenders beyond their initial prison sentence. Yet, one of the critical facts in Fa r don was that the detainee had been convicted of a crime. For this reason, the Court deemed die extended detention a

"consequential step in the adjudication of guilt." In contrast, the preventative detention orders under the anti-terrorism legislation authorise detention that is entirely divorced from any adjudication of guilt. Preventative detention orders are not the extension of a sentence of a criminal who has been convicted through the criminal justice system, but rather serve as a substitute for criminal justice in its entirety. Moreover, the Fardon preventative detention scheme incorporated and applied the rules of evidence to decisions regarding detention, whereas the rules of evidence do not apply to anti-terrorism preventative detention orders. As pointed out by Chief Justice Gleeson, the Queensland measures also provided a right of appeal, a list of matters that are relevant to the criterion, and provided for a public hearing conducted in accordance with the ordinary judicial process.778

In contrast, the anti-terrorism laws authorise preventative detention under a process which falls far short of that upheld in Fardon. An individual may be detained based on merely a "reason to suspect," a burden of proof that is so low it is for all practical purposes impossible to rebut except in the most egregious of circumstances.

Moreover, the detention scheme is silent regarding any type of hearing process at which a detainee may rebut the case against him. Even if there were a hearing, detainees may be denied access to certain information and evidence submitted by the government. Moreover, preventative detention orders do not incorporate the rules of evidence applicable to judicial proceedings. Preventative detention orders may be issued based on evidence that would be ruled inadmissible in court, including evidence that is procured by torture or that is otherwise unreliable. To allow judges to detain individuals under such circumstances, even for a limited

Fardon (2004) HCA 46,119 (Gleeson J).

-188- period of time, would seriously undermine the integrity of the court and the principles upon which the judicial process is founded.

b. The Validity of Control Orders under Chapter III.

Like preventative detention orders, control orders place significant restrictions on individual liberty which rise to the level of criminal sanctions. In fact, while control orders do not authorise imprisonment, the restrictions can be equally onerous and may be imposed for far longer period of time than preventative detention orders, and thus bear an even closer resemblance to a criminal sentence than preventative detention orders. The control order scheme authorises courts — both federal and state — to deprive individuals of significant, if not fundamental, liberties with the benefit of a trial. Courts are to issue the control orders in their official capacity as courts, not in a personal or administrative capacity as with preventative detention orders. Thus, the question with respect to control orders is a slightly different one. It is not simply whether the imposition of control orders is incompatible with judicial power, but rather whether it falls within the scope of the definition and function of judicial power under the Commonwealth Constitution.

The issue can be addressed from two different angles. First, it could be argued that control orders are in fact punitive, not protective, and thus must not only be issued by courts, but can only be imposed upon adjudication of guilt in accordance with the established processes of the criminal justice system. Like preventative detention orders, control orders arguably authorise the imposition of what, in effect, are sanctions based on allegations of criminal behaviour. Accordingly, they implicate such fundamental principles as the presumption of innocence and the requirement of proof beyond a reasonable doubt. Because control orders lack the necessary process required for criminal cases, they fail to fall within the function of judicial power.

The Jack Thomas case is illustrative of how the control order regime can operate as a parallel system of criminal justice. The government, unable to secure a

-189- criminal conviction because of inadmissible evidence, has been able effectively prosecute Thomas a second time through a process which replaces the traditional

"beyond a reasonable doubt" standard of proof with "on a balance of probabilities," and defines elements of a criminal offence, including mens rea, with a showing that the order would "substantially assist in preventing a terrorist attack." While the government adamantly argues that the restrictions imposed on Thomas are not punishment, but rather are protective, it seems clear that the government seeks to incapacitate Thomas in a similar way it would a criminal defendant.

In the United Kingdom, Justice Sullivan, in In Re M B , addressed a similar question in relation to the legality of a system of control orders passed by the UK

Parliament to combat terrorism. In that case, Justice Sullivan, in addressing the legality of a similar system of control orders, noted that that an allegation of

"terrorism-related activity" is "a more serious and more closely akin to an allegation of criminal behaviour" than a system of restrictions aimed at curbing "anti-social behaviour" deemed to be civil in nature. Justice Sullivan further queried whether there was "any limit to the severity of sanctions that can be imposed if the purpose of the sanction is prevention, not punishment."779 While Judge Sullivan concluded that he was bound by the Court's decision in A & Others v Secretary of State fo r the

Home Department780 to conclude that the control orders were "rivil" as opposed to

"criminal" in nature for purposes of Article 6.1 of the European Convention of

Human Rights,781 he made clear that control orders were very close to, if not beyond, the line between civil and criminal.

Even assuming that control orders are in fact protective, and not punitive, the orders may still violate Chapter III if the Court determines that the issuance of control orders falls outside the definition and function of judicial power. In cases like Al-Kateb, In re Wooley or even Kruger, the preventative detention authority was

779 In re MB, [2006] EWHC 1000 (12 April 2005) (Sullivan J), H 40-41. 780 [2004] QB 335. 781 In re MB, [2006] EWHC 1000 (12 April 2005) (Sullivan J), H 40-41.

-19 0- delegated by the legislature to the executive branch, not the judiciary. Likewise, in the wartime cases, orders authorising internment were executed by the Minister of

Defence. Indeed, as noted in Chapter III, Chief Justice Griffith found in Lloyd v

Wallach that judicial inquiry into the internment proceedings would be "inconsistent with the character of the [defence] power itself, to allow any judicial inquiry on the subject in these proceedings."782 Accordingly, it could be inferred that preventative detention is not a function of judicial power.

The Court7s more recent decision in Fardon, however, indicates that preventative detention orders may not necessarily be issued only by the executive, but may be ordered by courts as well. Indeed, in Fardon, the Chief Justice concluded that there is nothing inherently wrong with a court making of an order for preventative, as distinct from punitive, detention which would compromise the institutional integrity of a court.783 Indeed, the Court suggested that judicial power is defined not by the purpose of the law, but the procedural due process afforded in the scheme.784

Compared to preventative detention orders which provide the detainee with virtually no due process rights, the control order provisions detail a process which more closely resembles that in Fardon. Like the Queenland Act in Fardon, the control order provisions place the burden of proof on the government. Likewise, die rules of evidence apply and the subject of the order has a right to appeal. The court has discretion in issuing the control order and, in confirming a control order, conducts a hearing at which both sides are permitted to present evidence.

Nevertheless, there are key distinctions between the control order scheme and the preventative detention upheld in Fardon. Again, unlike the Queensland scheme, control orders are not consequent upon an adjudication of guilt and, therefore, cannot be viewed as an extension of the judicial sentencing power or more general

782 Id. 304-06 (Griffith, CJ). 783 Fardon v Attorney-General, 2004 WL 2189532,120 (Gleeson, CJ) (190 (Gummow 784 See, e.g, Fardon v Attorney-General, 2004 WL 2189532, 119 (Gleeson, CJ) ( 190 (Gummow J).

-1 9 1 - power to administer criminal adjudications. As illustrated by the Jack Thomas case,

a conviction is not a prerequisite to the issuance of a control orders. Rather, a control

order may be imposed based on criminal allegations even where the subject of the

order was cleared of all criminal charges. Thus, Thomas, who had been acquitted of

criminal charges, was still held to be subject to restrictions under a control order

based on allegations identical to those which were dismissed in the criminal

proceeding.

In addition, while control orders do provide certain due process protections,

there remain substantial differences between the hearing process in a typical judicial

proceeding and that in a control order proceeding. The most glaring shortcoming is

that an individual is not necessarily provided access to the grounds upon which die

control order is based or the evidence supporting the control order. Under the

control order provisions, an individual is only provided with a summary of grounds

upon which the control order is based. Information deemed by the government to be

related to national security may be withheld from both the subject of the order and

his or her attorney, yet may still serve as a principal, if not the exclusive, basis for the

imposition of the order. Finally, with respect to interim control orders, die subject of

the order has no opportunity to contest the validity of the interim order. Thus, until

a confirmation hearing is held — which in the Thomas case was not a matter of days,

but months — an individual is subject to the order's restrictions without any

opportunity to contest the basis of the order.

In the In re M B case, similar flaws in process under the UK provisions

prompted Justice Sullivan to conclude that control order measures were

incompatible with the respondent's right to a fair hearing under Article 6.1 of the

European Convention on Human Rights.785 Justice Sullivan found particularly troubling the low standard of proof required in issuing a control order, as well as the procedure which allows the government to put "a significant part of his case, and in

In re MB, [2006] EWHC 1000 (12 April 2005), para 104.

-1 9 2 - some cases the significant part of his case, before the court in the absence of the respondent and his legal representatives/'786 "Without access to the material,"

Justice Sullivan concluded, "it is difficult to see how, in reality, the respondent could make any effective challenge to what is, on the open case before him, no more than a bare assertion."787 While the Australian Constitution does not incorporate an express right to a fair hearing, like that in the EU Convention on Human Rights, the High

Court in Fardon recognised that certain due process rights are inherent to the character and function of judicial power under Chapter III. Accordingly, even if the exercise of judicial power incorporates the power to preventatively detain or otherwise restrict the liberty of individuals to protect the community from terrorism,

Chapter III may still require that individuals are entitled to fair process before they are deprived of these fundamental rights.

In short, control orders, like preventative detention orders, authorise judges to significantly curtail an individual's liberty without the benefit of a judicial trial and, thus, are constitutionally problematic. Under a control order, an individual may be subjected to severe restrictions for years based solely on speculation regarding crimes that they might commit, not on crimes that have been committed. Moreover, they lack the necessary procedural protections afforded in other judicial proceedings. Accordingly, they raised serious issues of constitutional invalidity.

C. Conclusions

The recent laws adopted by the United States and Australia enabling preventative detention raise serious questions of constitutional validity. In the

United States, the preventative detention of suspected terrorists as "material

786 Ibid para 65. 787 Ibid. Judge Sullivan, however, based his conclusion that the procedures were unfair based on several procedural flaws, some of which are not applicable to the Australian regime. For example, he noted that under the UK control order system, an order is issued by the Secretary of State and the court's role is more supervisory. Ibid para 51-52. Under the Australian regime, the court is the principal decision-maker and issuing authority of the control order.

-193- witnesses" and enemy combatants is extreme and violates due process protections.

The material witness statute is overly broad and fails to set forth a scheme of detention that is narrowly tailored to its purported non-punitive purpose of securing a witnesses' testimony at trial. As a result, the government has been able to use the statute to accomplish what it otherwise cannot do in the criminal justice system — detain individuals for extended periods of time without a finding of probable cause.

Likewise, the detention of suspected terrorists as enemy combatants is unconstitutional, at least to the extent that the detentions exceed that which are recognised under the laws of war. While the detention of combatants on the battlefield of war may be permissible as an exercise of executive war power, the arrest and indefinite detention of suspected terrorists in the United States is not supported by those authorities. This is all the more true where the United States is not in a declared war against a sovereign nation, but is involved in an undefined

"war on terrorism" which may literally have no end.

Unlike the United States, the Australian legislation adopting preventative detention is more limited in scope, and incorporates far more extensive procedural safeguards than those afforded by the US government. While US officials try to mask the constitutional flaws of their preventative detention policies by arguing that the subjects of detention are not criminal suspects, but are "witnesses" or "combatants",

Australia's policies freely acknowledge that the principal targets of the preventative detention laws are terrorism suspects.

Yet, while Australia's laws are more limited, they still raise serious questions of constitutional validity. The preventative detention and control orders adopted to combat terrorism imposed restrictions based on activities which are already barred by criminal terrorism laws. While the legislature has declared that the preventative detention orders are not punitive, the imposition of executive detention for activities which are the subject of criminal laws may nonetheless be a usurpation of judicial power. For similar reasons, granting courts the authority to impose control orders and preventative detention orders on the basis of acts which are already

-19 4- criminalized raises related separation of powers issues. Thus, while the Australian system of preventative detention is far more favourable to civil liberties than the pretextual measures adopted by the United States, it still raises significant issues with respect to individual protections under the separation of powers.

-195-- 1 9 5 - Conclusions

The United States and Australian constitutions both protect individuals from involuntary detention without trial. However, the limits these constitutional constraints place on each government's authority to detain individuals without charges or a trial are not entirely clear. In times of peace, courts in both jurisdictions have recognised that the government's preventative detention powers are limited to certain exceptional categories such as immigration, civil commitment, pretrial detention and extradition. In Australia, the opinion of Justices Brennan, Deane and

Dawson in Lin t, had set forth a straightforward rule that the power to detain was exclusively a judicial power and thus, except in certain well-established categories, detention could only be imposed by a court as a consequential step in the adjudication of guilt. Similarly, in the United States, the Supreme Court repeatedly has recognised that the Constitution's Due Process Clause generally bars detention pursuant to criminal process without an adjudication of guilt. In so holding, courts in both jurisdictions recognised that detention without trial conflicts with English legal principles dating back to Magna Carta, which require that, in criminal matters, suspects who have been arrested must be brought before a magistrate to be charged with a crime and soon thereafter tried before a court or else released.

Cases dealing with non-punitive detention in both Australia and the United

States have generally been limited to instances of regulatory detention, such as civil commitment, immigration and pretrial detention. However, justices in both jurisdictions have noted that preventative detention may be extended to other areas as long as the detention serves a non-punitive purpose. The distinction between punitive and non-punitive confinement is an elusive one, particularly with respect to detention schemes enacted to protect the community by incapacitating suspicious groups when the government lacks evidence to charge particular group members.

In Australia, a majority of justices in the High Court have adopted an extremely deferential analysis in making this determination, suggesting that preventative

- 1 9 6 - detention is permissible as long as the legislature states that the detention is for protective purpose. Indeed, die opinions of Justices Gaudron and Hayne indicate that the principal limitations on the executive's authority to detain are found in the legislature's grants of power under section 51 of the Constitution, not the separation of judicial power. On the other hand, other justices, including Justices Gummow and

Kirby, have argued that the Court must not deviate from the general rule that aside from exceptional cases, persons should not be deprived of their liberty without an adjudication of guilt. In the end, the High Court has been extremely deferential to the legislature. The Court has upheld preventative detention laws in all but one case, and that case was unique in that it involved a bill of attainder against a particular person.

Like the Australian High Court, the US Supreme Court has found that preventative detention for the protection of the community is non-punitive, at least in cases of pretrial detention and civil commitment. Nevertheless, die Supreme

Court has recognised that due process rights in the US Constitution require additional protections. Thus, the Court has also required that any scheme which deprives an individual of fundamental liberty rights must be narrowly tailored to serve a compelling government purpose and incorporate adequate procedural safeguards. Further, the Court has noted that there must be a "special justification" for detention. While it is unclear what special justifications would suffice, the

Court's decision in Foucha indicates that, at least in times of peace, the government cannot constitutionally detain individuals based solely on their dangerousness as a means to prevent future crimes. Doing so would contravene the presumption of innocence guarded by the constitution.

In times of war, however, both US and Australian courts have upheld preventative detention policies extending beyond the traditional categories of regulatory detention recognised in times of peace. Each country's highest court has approved the detention of civilians based solely on dangerousness or disloyalty in wartime. Under wartime detention provisions that were later upheld, the executive

-1 9 7 - was afforded broad discretion to detain citizens and non-citizens alike for the

protection of the community without any meaningful judicial review. They set forth

few, if any, standards or criteria for the issuance of detention orders and provided

virtually no procedural safeguards or process for the detainees. This allowed the

United States and Australian governments to detain thousands of civilians based on

their race or national heritage during World War II.

Courts in both jurisdictions upheld the government's policies, exercising

extreme deference to legislature and executive in determining the nature and extent

of the threat and the means for combating such a threat. However, they were careful

to limit their holdings to cases of declared war. In the United States, the Supreme

Court found that in times when the country was facing imminent attack, the national

security interests of the country outweighed any individual liberty rights. In

Australia, the High Court did not even consider whether the protections of Chapter

III applied. Rather, it simply held that the government's war powers included the

authority to detain civilians when the country was a war to prevent attack or

interference.

The wartime cases have limited value as precedent for preventative detention in the age of terrorism — not only because there is no declared state of war, but also because the decisions themselves are questionable. The decisions upholding the government's wartime internment policies have been criticised by several judges and scholars as wrongly decided and undercut by subsequent caselaw. Indeed, courts in the United States have stated that these decisions stand as a caution that courts must be vigilant in protecting individual liberties in times of war and review preventative detention laws with close scrutiny.

In the age of terrorism, the preventative detention measures adopted in the

United States and Australia do not fit neatly into those traditional categories of peace and war, and thus raise serious constitutional questions. Given the strong protections of individual liberties in the United States, one would have expected that any preventative detention measures adopted by the US government to combat

-1 9 8 - terrorism would be limited in scope. However, this has not been die case. The

United States government's detention of suspected terrorists as material witnesses

and enemy combatants are extreme. Under both laws, detainees may be held

virtually incommunicado for an indefinite period of time with few procedural

protections. The preventative detention measures deny detainees fundamental

rights, such as notice and opportunity to review and contest the evidence upon

which their detention is based. As a result, the country with the strongest protections

of individual liberties has adopted the most repressive measures of preventative

detention.

In contrast, Australia's preventative detention laws are limited in scope and

thus better protect individual liberties. Australia's laws set forth a comprehensive

legal structure and process for preventative detention in terrorism cases that places

clear limits on the government's authority to detain individuals. While US measures

authorise the indefinite detention of terrorist suspects, the Australian preventative

detention orders place strict time limits on detention. Preventative detention orders

are also limited in terms of who can be targeted. They can be used only in situations

of recent terrorist attack or where an attack is believed to be imminent. While it is

unclear exactly how it would be determined that an attack was imminent, the US

measures incorporate no similar limitations. Moreover, both control orders and

preventative detention orders incorporate more extensive procedural safeguards and

oversight mechanisms to prevent misuse or injustices than exists in respect of their

US equivalents.

Based on the comparison between the US and Australian preventative

detention policies, it is tempting to conclude that bills of rights are meaningless. The

United States Constitution provides a powerful Bill of Rights, yet the Supreme Court often is still reluctant to invoke those rights in cases of preventative detention. While the Supreme Court suggested, without explicitly stating, that detention cases are to be analysed under its strict scrutiny approach, in practice this has not produced increased respect for rights. The Court has refused to address the glaring

-199- constitutional problems of indefinite preventative detention in the most recent

Guantanamo Bay cases. Even in those cases, such as Ex parte Endo and Zadvyvdas,

where the Supreme Court found the preventative detention of the petitioner to be

unlawful, the Court ordered release of the detainee on statutory grounds, not

constitutional grounds. In short, despite the United States having such strong and

express rights protections, the government has been able to get away with the

harshest preventative detention policies.

The relative aggressiveness of the US preventative detentions may be due to

the fact that its measures were undertaken unilaterally by the executive acting

through the Department of Justice. Unlike the US measures, the Australian

preventative detention system was the product of the legislative process, not

unilateral executive decision-making - enabling a compromise consensus on

reasonable limitations on government power to be reached.

Yet, ultimately, the courts' failure to exercise their judicial responsibility to

check executive and legislative power allows the extreme measures adopted by the

US government to persist. There may be valid reasons for deference to the legislature

and executive in the age of terrorism. The executive and legislature have access to

confidential information regarding threats to national security and the expertise in

how best to respond to such threats. Yet, while the other branches undoubtedly have

the expertise to thwart threats, that cannot justify the courts' abdicating their

responsibility to ensure that the government's measures respect civil liberties and

comply with constitutional limits on executive and legislative power. As illustrated by the World War II internment programs in both the United States and Australia, the executive has a tendency to overstate a threat, or at least omit mitigating facts, where a political agenda is at stake. The legislature then reacts to that characterization of the threat and grants the executive broad powers to do whatever it views as necessary to ensure national security. While it is the province of the executive and legislature to assess threats and fashion effective policies to address

-200- them, it is likewise the duty of the judiciary to ensure that such policies do not

encroach upon the limits on government power set forth in the nation's constitution.

A judicial check on executive and legislative power with regard to terrorism is

all the more necessary because the public is routinely denied access to information

underlying the government's claims of imminent threat. Both the US and Australian

governments have repeatedly stated that, when there is significant threat, national

security interests preclude them from disclosing their reasons for reaching that

conclusion. In essence, the public is asked to simply trust the government and

support legislation premised on assertions of danger without any further inquiry.

Just as in war, governments do not disclose all they know about the war effort or

campaigns, doubtless there are valid reasons for not disclosing intelligence on

terrorist activity. However, a government accountable to an uninformed

constituency is not accountable at all. Under these circumstances, principles of

democracy underlying parliamentary sovereignty and democratic populism are least

effective. The courts must therefore be particularly vigilant at this time rather than

excessively deferential.

The need for judicial oversight is all the more pressing given that, unlike a

declared war which has a finite end, the threat of terrorism is not going to go away

anytime soon and, like ordinary crime, may never abate. Accordingly, courts must

take an active role in ensuring that the counterterrorism measures adopted by the

government strike the right balance with individual liberties. The US Supreme Court

has placed limits on the executive's most egregious assertions of power by, for

example, requiring that enemy combatants have some opportunity to contest their

confinement. However, the Court has ignored the various ways through which the

executive has detained individuals arrested off the battlefield.

In Australia, the absence of a bill of rights has afforded the government more flexibility to implement forthright measures to address the threat of terrorism.

However, at the same time, without a bill of rights there is an increased danger that preventative detention may expand and become a permanent fixture of the criminal

-201- law. The separation of judicial power provides an awkward mechanism for the courts to protect civil liberties in Australia. While the US Supreme Court has recognised that deprivations of fundamental rights must further only the most compelling of government interests, the High Court of Australia has not inquired whether the government's preventative detention policies balance the government's interests with their impact on individual rights. Nor has the High Court been willing to examine whether the executive has provided sufficient safeguards in executive detention laws. As the US experience demonstrates, a bill of rights does not resolve the difficult questions posed by the government's asserted need to detain people without charges. However, the lack of an express bill of rights leaves the Australian

High Court without a clear framework for analysing or reviewing whether measures enacted by the democratic branches are excessive or heavyhanded.

The courts of each country could, of course, overcome these obstacles to exercising their review of preventative detention measures. US judges could hold the government to the standards set forth for incarceration in the Bill of Rights.

Likewise, there are strong arguments that Australia's preventative detention laws violate the separation of judicial power. Australia, at least, is poised to confront these questions when the High Court decides the Jack Thomas case in 2007. Whether the

US Supreme Court has the opportunity to review the A l M arri case, or another like it, is yet to be seen.

Despite the different approaches to civil liberties issues, neither country's legal tradition supports a system of preventative detention in lieu of charging individuals suspected of criminal activity, even for the most serious of crimes.

Preventative detention of suspected terrorists in the United States and Australia undermines the basic protections and purposes of the criminal justice system.

Fundamental to both systems of justice, and the rule of law, is the presumption of innocence and its concomitant principle that the government cannot establish order by identifying groups of potential criminals and imprisoning them. Preventative detention measures purport to carve out exceptions to this fundamental norm.

-202- Neither the protections of judicial power under Chapter III of the Commonwealth

Constitution nor the due process protections of the US Bill of Rights have much meaning if the executive can sidestep the criminal justice process through an alternative system of detention, dispensing with the presumption of innocence and the government's burden to prove guilt beyond a reasonable doubt.

The preventative detention mechanisms of both the United States and

Australia purport to authorise the detention of individuals for acts that could also provide a basis for prosecution. The difference is that the government's burden is lightened when the detention is labeled "preventative." The one exception to this rationale for the preventative detention laws, the United States' claim that individuals are incarcerated as material witnesses, is simply disingenuous. In fact, those individuals are also targeted for arrest and confinement because they are suspected of criminal behaviour, but proof is lacking. Accordingly, because these schemes simply allow the government to evade criminal process prescribed constitutionally by the law of both nations, the preventative detention laws are constitutionally invalid.

Moreover, the laws, as currently designed, lack the necessary procedural protections to ensure that defendants have a fair opportunity to contest their detention. The burden of proof is so low that contesting detention is effectively impossible. Additionally, a detainee and his lawyer may be denied access to evidence upon which the detention is based if the government decides that the evidence should be withheld for national security reasons. This decision too is essentially unquestionable. Indeed, even the court issuing the detention order may be denied access to such evidence. A fair hearing under these circumstances is simply not possible.

This is not to say that preventative detention for national security purposes is never permissible. Limited recourse to preventative detention may be appropriate, and indeed necessary, in situations of emergency. History shows that governments routinely resort to preventative detention in wartime and other emergencies. The

-203- law, in fact, recognises that safeguards on liberty may at times be limited during times of emergency or imminent threat. Most notably, it is well-established in both the United States and Australia that the legislature has the authority to suspend the writ of habeas corpus. In such cases, compliance with the traditional criminal processes may be impossible, and thus an exception to the general bar on detention without charges may be justified. Furthermore, as illustrated by the United States' recent terrorism strategies, a strict bar on preventative detention altogether may simply force the government to adopt more extreme measures outside the law. A legislative scheme for preventative detention limited to situations of declared emergency thus would not only sit more comfortably with constitutional protections of the criminal process, but also may prevent the widespread suspicionless detentions which have repeatedly occurred in times of crisis

The scope of the preventative detention in the age of terrorism has been the subject of great debate among legal scholars.788 Nevertheless, most scholars agree that critical to the constitutionality and success of any such detention scheme is the incorporation of adequate procedural safeguards. Such safeguards must include, at the very least, strict time limits, clear and objective standards upon which detention is to be imposed, a neutral decision-maker, notice to the detainee of the factual basis for the detention, an immediate hearing and opportunity to rebut the detention evidence and prompt judicial review. This is best accomplished through a legislative process in the manner that the Australian preventative detention scheme was created. At the same time, a just system for preventative detention must recognise

788 See, eg, Kent Roach, "M ust W e Trade Rights for Security? The Choice Between Smart, Harsh, or Proportionate Security Strategies in Canada and Britain," (April 2006) 27 Cardozo L Rev 2151, 2196; Laurie L Levenson, "Detention, Material Witnesses & The War on Terrorism," (June 2002) 35 Loyola of Los Angeles L Rev 1217; David Cole, "The Priority of Morality: The Emergency Constitution's Blind Spot," (2004) 113 Yale L J 1753,1755; Bruce Ackerman, "The Emergency Constitution," (March 2004) 113 Yale L J 1029,1031-37 (arguing in favour of preventative detention in times of declared emergency); Owen Gross, "Chaos and Rules: Should Responses to Violent Crises Always be Constitutional," (2003) 112 Yale L J 1011.

-204- the severe and fundamental infringement on individual rights that incarceration for any length of time entails, as the United States Constitution expressly acknowledges.

-205-