Deviance, Risk, and Law: Reflections on the Demand for the Preventive Detention of Suspected Terrorists (original) (raw)
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Within criminology and criminal law the reception of post-9/11 counter-terrorist law has generally been critical, if not hostile. The undeniable proliferation of preventive statutes has been regarded as incompatible with conventional liberal norms and as dangerously innovative in its embrace of new strategies of control. But is such law innovative, and does it threaten to leach into other areas of criminal law, as some have feared? Exploring three governmental innovations that developed as expressions of the liberal state’s desire to ensure the safety of its citizens in times of peace and war, i.e. mental health law, habitual criminal controls, and civilian internment in war-time, we argue that a more historically grounded understanding of the governmental and geopolitical contexts of security provides a surer foundation on which to construct the frameworks of interpretation of contemporary counter-terrorism law.
Securing Liberty in the Face of Terror: Reflections from Criminal Justice
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Post-9/11 the equilibrium between security and liberty has been subject to intense political and philosophical interrogation. The metaphor of balance, although perilous, is so pervasive as to demand scrutiny of what lies in the scales, what tips them, and in whose interest. Though international and constitutional lawyers have dominated the debate about balance, the experience of criminal justice suggests that articulating a principled approach provides greater prospects of protecting rights against unwarranted erosion. This more modest approach imposes structural and procedural safeguards through the twin engines of judicial oversight and unremitting defence of due process. In this way it may be possible to enhance collective security against terrorism without diminishing individual security against the state.
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Law. I acknowledge with appreciation the financial support provided by McGill University through the McGill Graduate Studies Fellowship, and by the Social Sciences and Humanities Research Council of Canada through the Canadian Graduate Scholarship. I am indebted to Professor Stephen Toope for his invaluable insight and guidance. I acknowledge the superb work of the Hastings Law Journal, especially Emily Cohen and John F. Stanley, for their thoughtful and instructive editorial suggestions. I thank Professors Eyal Benvenisti and Richard Pildes for educating me on these issues and for challenging my thinking in this area of the law. I am also grateful to the rest of the staff at the NYU Center on Law and Security, especially Professors Stephen Holmes and Karen Greenberg, for organizing a stimulating and thought-provoking colloquium on law and security in the post-9/ II era. More generally, I thank Professors Mark Geistfeld and Benedict Kingsbury for their helpful advice. Finally, my deep appreciation goes to Professor Aaron A. Dhir and Mdlissa Landel for constantly engaging the human rights project and for their interest in discussing post-9/i i legal issues with me. I dedicate this piece to Naya Bousmali, whose love and support are a constant source of inspiration. The opinions expressed in this article are my own and do not necessarily reflect the views of the persons listed above. Any omissions or mistakes remain my own. I am available to further discuss these issues at vinjo@'nyu.edu.
Crime, Law and Social Change, 2020
Scholars have noted that pre-emptive security practices have gradually been transforming the probabilistic logics of criminal law towards increasingly possibilistic logics. Our article is focused on the terrorism peace bond regime in Canada since 2015, which provides an explicit illustration of the movement from probabilistic to possibilistic thresholds in criminal law. Documenting specific experiences of terrorism peace bond proceedings through the narratives of defence lawyers involved in recent cases, we focus on several manifestations of possibilistic practices; including the difficulties of contesting accusations about future activities, the erosion of evidentiary standards, conjectural reasoning animated by the racialized character of the 'war on terror,' and a reverse onus placed on accused subjects in these proceedings. Contributing to research examining the transformations of criminal law, we suggest that terrorism peace bonds are not an exceptionalist practice but a modulation that allows previously excluded legal norms into a broadened, more authoritarian umbrella of criminal law. To conclude, we position terrorism peace bonds not so much a return to the criminal justice model but as a possibilistic modulation of criminal law that accommodates pre-emptive and racialized practices in more depoliticized forms.
The New Criminal Law Review, 2016
Contrary to the assumption that ''9/11 changed everything,'' post-2001 criminal justice practices in the area of terrorism show a surprising consistency with pre-2001 criminal justice practices. This article relies on an analysis of over 300 terrorism prosecutions between 2001 and 2010, as well as twenty full trial transcripts, content coding, and traditional legal analysis, to show the continuity of criminal justice over this time in regard to some of the most controversial supposed developments. This continuity belies the common assumption that current extreme policies and limitations on due process are a panicked response to the terror attacks of 2001. To the contrary, terrorism cases appear to have shed light on the direction in which the United States was heading for decades.
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