Bunty Sagar 3rd Semester

8/4/2019 Bunty Sagar 3rd Semester

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The First Law Commission was established in 1834 by the British Government under the Chairmanship of LordMacaulay. It suggested various enactments to the British Government, most of which were passed and enacted andare still in force in India. Few of the most importance recommendations made by this First Law Commission werethose on, Indian Penal Code (first submitted in 1837 but enacted in 1860 and still in force),Criminal Procedure Code(enacted in 1898, repealed and succeeded by the Criminal Procedure Code of 1973), etc. Thereafter three more LawCommissions were established which made a number of other recommendations the Indian Evidence Act (1872) and

Indian Contract Act (1872), etc. being some of the significant ones. The contribution of these Law Commissions canbe enumerated as under

The British government under the chairmanship of Lord Macaulay established the first law commission in 1834. Itpassed various enactments most of which are still in use like the Indian Penal Code (submitted in 1837, enacted in1860), Criminal Procedure Code (enacted in 1898 and succeeded by Criminal Procedure Code of 1973), etc.Thereafter, 3 more law commissions were established which made number of other recommendations like the IndianEvidence Act and Indian Contract Act. Below is a brief of the work done by all the four law commissions.

First Law Commission

The First Law Commission was established in 1834 by the British Government under the Chairmanship of LordMacaulay. The team comprised of the fol lowing members:

1. J.M. Macleod

2. G.W. Anderson

3. F. Millet

The team worked and recommended many enactments to the British government and most of them were passed.The most important acts include The Indian Penal Act (submitted on 2nd May, 1837), Criminal Procedure Code, LexLoci (role and authority of English law in India).

Second Law Commission

Established in 1853 under the chairmanship of Sir John Romilly, this commission enacted the following acts:

1. Code of Civil Procedure and Law of Limitation (1859)

2. Penal Code (1860)

3. Code of Criminal Procedure (1861)

The members of this commission included Sir Lord Jervis, Sir Edward Ryan, R. Lowe, J.M. Macleod, C.H. Cameronand T.E. Ellis.

Third Law Commission

Formed under the chairmanship of Sir John Romilly in 1861, with initial members as Sir Edward Ryan, R. Lowe, J.M.Macleod, Sir W. Erle(succeeded by Sir. W.M. James) and Justice Wills (succeeded by J. Henderson), the Third LawCommission presented the following reports:

1. A code for Succession and Inheritance for Indians other than Hindus and Muslims (1865)

2. Draft Contract Law (1866)

3. Draft Negotiable Instruments Law (1867)

4. Draft Evidence Law (1868)


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5. Revision of Code of Criminal Procedure (1870)

6. Draft Transfer of Property Law (1870)

7. Draft Code on Insurance (1871)

Fourth Law Commission

Formed in 1879 under the chairmanship of Dr. Whitney Stokes, the fourth Law Commission presented the followingreports:

1. Code of Negotiable Instruments (1881)

2. Code on Trusts Law (1882)

3. Code on Transfer of Property and Easements (1882)

4. Revised Code of Criminal Procedure (1882)

5. Revised Code of Civil Procedure (1882)

The members who accompanied Dr. Whitney Stokes were Sir Charles Turner, and Raymond West.

Apart from these four Law Commissions, pre-independence, a two member Viceroy's Executive Council comprisingof Sir Henry Maine and Sir James Fitzjames Stephen also worked on the side-lines of the Law Commissions andensured the passage of the following noteworthy laws:

1863 - Religious Endowments Act 1864 - Official Trustees Act

1865 - Carriers Act 1865 - Parsi Marriage and Divorce Act

1865 - Parsi Intestate Succession Act 1866 - Indian Companies Act

1866 - Native Converts Marriage Dissolution

Act 1866 - Trustees Act

1866 - Trustees and Mortgage Powers Act1867 - Press and Registration of BooksAct

1868 - General Clauses Act 1869 - Divorce Act

1870 - Court Fees Act 1870 - Land Acquisition Act

1870 - Female Infanticide Act 1870 - Female Infanticide Prevention Act

1870 - Hindu Wills Act1872 - Code of Criminal Procedure(revised)

1872 - Indian Contract Act 1872 - Indian Evidence Act

1872 - Special Marriages Act 1872 - Punjab Laws Act


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UK seeks emergency detention powers

HUMAN RIGHTS

November 11, 2001

Civil liberties campaigners have criticised a plan by the UK government to seekemergency powers to detain terrorist suspects without trial.

The move follows a warning by United States Vice-President Dick Cheney that London'sstaunch support for the U.S.-led military campaign against Afghanistan could promptretaliation by al Qaeda.

Home Secretary (Interior Minister) David Blunkett will on Monday seek Parliament'sapproval to claim a derogation from article 5 of the European Convention on HumanRights, which guarantees the right to liberty and prohibits detention without trial.

A spokesperson for Prime Minister Tony Blair told the Press Association: "Britain isclosed to terrorism, and we will take whatever action we can.

"People will object to it, but we are absolutely determined to get the balance rightbetween human rights, which are important, and society's right to live free from terror."

The comments came after Cheney told The Sun newspaper on Saturday: "I assume binLaden is well aware of the effort being made by Britain alongside the United States andleaders of this international effort.

"Obviously the possibility exists that at some point he'll try and launch some kind ofattack on the UK."

But John Wadham, director of the civil rights group Liberty, said: "This is a fundamentalviolation of the rule of law, our rights and traditional British values."

Under article 15 of the convention, governments are allowed to derogate from, orrepeal, article 5 in times of war or other "public emergency."

Blunkett will seek a derogation allowing detention without trial under what a HomeOffice spokesman told CNN were "very limited circumstances."
http://articles.cnn.com/keyword/human-rightshttp://articles.cnn.com/keyword/human-rightshttp://articles.cnn.com/keyword/human-rights


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These would relate to a situation where a foreign national was suspected of involvementin international terrorism and posed a threat to British national security, but there was noprospect of that individual being returned to their country of origin.

The definition would cover, for example, asylum-seekers suspected of terrorist

involvement who could not be sent to their home country due to a well-founded fear thattheir lives would then be in danger.

Internment without trial has been used before, against Northern Ireland terroristsuspects, and German citizens during World War II.

The public emergency move is one of a series of measures the British governmentwants to rush through Parliament in response to the September 11 terror attacks on theU.S..

U.S. campaigners have also voiced strong concerns that proposals to expand law

enforcement powers to ratchet up the fight on terrorism could end up treading on civilliberties enjoyed by all Americans.

More than 1,100 people have been detained or arrested in the U.S. as part of theongoing terrorist investigation.


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Pre- Independence Law Commissions

0

The First Law Commission was established in 1834 by the British Government under the Chairmanship of Lord

Macaulay. It suggested various enactments to the British Government, most of which were passed and enacted and

are still in force in India. Few of the most importance recommendations made by this First Law Commission were

those on, Indian Penal Code (first submitted in 1837 but enacted in 1860 and still in force),Criminal Procedure Code

(enacted in 1898, repealed and succeeded by the Criminal Procedure Code of 1973), etc. Thereafter three more Law

Commissions were established which made a number of other recommendations the Indian Evidence Act (1872) and

Indian Contract Act (1872), etc. being some of the significant ones. The contribution of these Law Commissions can

be enumerated as under

The British government under the chairmanship of Lord Macaulay established the first law commission in 1834. It

passed various enactments most of which are still in use like the Indian Penal Code (submitted in 1837, enacted in

1860), Criminal Procedure Code (enacted in 1898 and succeededby Criminal Procedure Code of 1973), etc.

Thereafter, 3 more law commissions were established which made number of other recommendations like the Indian

Evidence Act and Indian Contract Act. Below is a brief of the work done by all the four law commissions.

First Law Commission

The First Law Commission was established in 1834 by the British Government under the Chairmanship of Lord

Macaulay. The team comprised of the following members:

1. J.M. Macleod

2. G.W. Anderson

3. F. Millet

The team worked and recommended many enactments to the British government and most of them were passed.The most important acts include The Indian Penal Act (submitted on 2nd May, 1837), Criminal Procedure Code, LexLoci (role and authority of English law in India).

Second Law Commission

Established in 1853 under the chairmanship of Sir John Romilly, this commission enacted the following acts:

1. Code of Civil Procedure and Law of Limitation (1859)

2. Penal Code (1860)

3. Code of Criminal Procedure (1861)

The members of this commission included Sir Lord Jervis, Sir Edward Ryan, R. Lowe, J.M. Macleod, C.H. Cameronand T.E. Ellis.

Third Law Commission
http://law.entrancecorner.com/legal-gk/203-pre-independence-law-commissions.htmlhttp://www.google.com/buzz/posthttp://www.google.com/buzz/posthttp://law.entrancecorner.com/legal-gk/203-pre-independence-law-commissions.pdfhttp://law.entrancecorner.com/legal-gk/203-pre-independence-law-commissions.html?tmpl=component&print=1&page=http://law.entrancecorner.com/component/mailto/?tmpl=component&link=1d8bd31d13baa9cb4f8c88ebcb8d9e2d9974e2c1http://law.entrancecorner.com/legal-gk/203-pre-independence-law-commissions.pdfhttp://law.entrancecorner.com/legal-gk/203-pre-independence-law-commissions.html?tmpl=component&print=1&page=http://law.entrancecorner.com/component/mailto/?tmpl=component&link=1d8bd31d13baa9cb4f8c88ebcb8d9e2d9974e2c1http://law.entrancecorner.com/legal-gk/203-pre-independence-law-commissions.pdfhttp://law.entrancecorner.com/legal-gk/203-pre-independence-law-commissions.html?tmpl=component&print=1&page=http://law.entrancecorner.com/component/mailto/?tmpl=component&link=1d8bd31d13baa9cb4f8c88ebcb8d9e2d9974e2c1http://www.google.com/buzz/posthttp://law.entrancecorner.com/legal-gk/203-pre-independence-law-commissions.html


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Formed under the chairmanship of Sir John Romilly in 1861, with initial members as Sir Edward Ryan, R. Lowe, J.M.Macleod, Sir W. Erle(succeeded by Sir. W.M. James) and Justice Wills (succeeded by J. Henderson), the Third LawCommission presented the following reports:

1. A code for Succession and Inheritance for Indians other than Hindus and Muslims (1865)

2. Draft Contract Law (1866)

3. Draft Negotiable Instruments Law (1867)

4. Draft Evidence Law (1868)

5. Revision of Code of Criminal Procedure (1870)

6. Draft Transfer of Property Law (1870)

7. Draft Code on Insurance (1871)

Fourth Law Commission

Formed in 1879 under the chairmanship of Dr. Whitney Stokes, the fourth Law Commission presented the followingreports:

1. Code of Negotiable Instruments (1881)

2. Code on Trusts Law (1882)

3. Code on Transfer of Property and Easements (1882)

4. Revised Code of Criminal Procedure (1882)

5. Revised Code of Civil Procedure (1882)

The members who accompanied Dr. Whitney Stokes were Sir Charles Turner, and Raymond West.

Apart from these four Law Commissions, pre-independence, a two member Viceroy's Executive Council comprisingof Sir Henry Maine and Sir James Fitzjames Stephen also worked on the side-lines of the Law Commissions andensured the passage of the following noteworthy laws:

1863 - Religious Endowments Act 1864 - Official Trustees Act

1865 - Carriers Act 1865 - Parsi Marriage and Divorce Act

1865 - Parsi Intestate Succession Act 1866 - Indian Companies Act

1866 - Native Converts Marriage Dissolution Act1866 - Trustees Act

1866 - Trustees and Mortgage Powers Act 1867 - Press and Registration of Books Act

1868 - General Clauses Act 1869 - Divorce Act

1870 - Court Fees Act 1870 - Land Acquisition Act


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1870 - Female Infanticide Act 1870 - Female Infanticide Prevention Act

1870 - Hindu Wills Act 1872 - Code of Criminal Procedure (revised)

1872 - Indian Contract Act 1872 - Indian Evidence Act

1872 - Special Marriages Act 1872 - Punjab Laws Act


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Preventive Detention in India: Constitutional Tyranny

The establishment of the National Commission to Review the Working of the Constitution(NCRWC) has created a stir in Indian politics. Many have questioned the motives of the

Bharatiya Janata Party Government in creating such a commission. Yet, there is no denying the

fact that the Constitution of India has several flaws. The preventive detention regime surelyranks among its worst, and the Commission perhaps provides the opportunity to repair that

problem.

India is one of the few countries in the world whose Constitution allows for preventive detention

during peacetime without safeguards that elsewhere are understood to be basic requirements for

protecting fundamental human rights. For example, the European Court of Human Rights haslong held that preventive detention, as contemplated in the Indian Constitution, is illegal under

the European Convention on Human Rights regardless of the safeguards embodied in the law.

South Asia Human Rights Documentation Centre (SAHRDC), in its submission to the NCRWC

in August 2000, recommended deleting those provisions of the Constitution of India that

explicitly permit preventive detention.

Specifically, under Article 22, preventive detention may be implemented ad infinitum -- whetherin peacetime, non-emergency situations or otherwise. The Constitution expressly allows an

individual to be detained -- without charge or trial -- for up to three months and denies detainees

the rights to legal representation, cross-examination, timely or periodic review, access to thecourts or compensation for unlawful arrest or detention. In short, preventive detention as

enshrined under Article 22 strikes a devastating blow to personal liberties.

It also runs afoul of international standards. Article 4 of the International Covenant on Civil and

Political Rights (ICCPR) -- which India has ratifiedadmittedly permits derogation from

guaranteeing certain personal liberties during a state of emergency. The Government, however,has not invoked this privilege, nor could it, as the current situation in India does not satisfy with

standards set forth in Article 4.

If preventive detention is to remain a part of Indias Constitution, it is imperative that its use beconfined to specified, limited circumstances and include adequate safeguards to protect the

fundamental rights of detainees. Particular procedural protections are urgently needed (i) to

reduce detainees vulnerability to torture and discriminatory treatment; (ii) to prevent officialsmisusing preventive detention to punish dissent from Government or from majority practices;

and (iii) to prevent overzealous government prosecutors from subverting the criminal process. In

pursuit of these goals, SAHRDC made the following recommendations in its submission to the

NCRWC:

First, Entry 3 of List III of the Constitution of India, which allows Parliament and state

legislatures to pass preventive detention laws in times of peace for the maintenance of publicorder or maintenance of supply and services essential to the community, should be deleted.

Assuming that preventive detention could be justified in the interest of national security asidentified in Entry 9 of List I of the Constitution, there is still no compelling reason to allow this

extraordinary measure in the circumstances identified in Entry 3 of List III.


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Second, lacking clear guidance from the Constitution, courts have applied vague and toothless

standards -- such as the subjective satisfaction of the detaining authority test -- to govern theimplementation of preventive detention laws. If preventive detention is to remain in the

Constitution, constitutional provisions must include well-defined criteria specifying limited

circumstances in which preventive detention powers may be exercised -- and these standards

must be designed to allow meaningful judicial review of officials actions.

Third, under Article 22(2) every arrested person must be produced before a magistratewithin 24hours after arrest. However, Article 22(3)(b) excepts preventive detention detainees from Clause

(2) and, as a consequence, it should be repealed in the interest of human rights. At present,

detainees held under preventive detention laws may be kept in detention without any form ofreview for up to three months, an unconscionably long period in custody especially given the real

threat of torture. At the very least, the Government should finally bring Section 3 of the Forty-

fourth Amendment Act, 1978into effect, thereby reducing the permitted period of detention to

two months. Though still a violation of international human rights law, this step would at leastreduce the incidents of torture significantly.

Fourth, the Advisory Board review procedure prescribed by the Constitution involves executivereview of executive decision-making. The absence of judicial involvement violates detaineesright to appear before an independent and impartial tribunal, in direct contravention of

international human rights law including the ICCPR (Article 14(1)) and the UniversalDeclaration of Human Rights (Article 10). The Constitution must be amended to include clear

criteria for officials to follow, and subject compliance with those standards to judicial review.

Fifth, the Constitution provides that the detaining authority must refer to the Advisory Board

where detention is intended to continue beyond three months. No provision exists for the

consideration of a detainees case by the Advisory Board more than once. Yet, periodic review

is an indispensable protection to ensure that detention is strictly required and fairlyadministered. Hence, the Constitution should mandate periodic review of the conditions and

terms of detention.

Sixth, detainees must receive detailed and prompt information about the grounds of theirarrest.

Currently, the detaining authority is required only to communicate the grounds of detention to

the detainee as soon as may be after the arrest. Article 9(2) of the ICCPR provides that [a]nyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and

shall be promptly informed of any charges against him. Detainees must be guaranteed a

minimum period in which the grounds are promptly communicated to them, and be given

information sufficient to permit the detainee to challenge the legality of his or her detention

Seventh, individuals held under preventive detention must be given the right to legal counsel andother basic procedural rights provided by Articles 21, 22(1)and 22(2) of the Constitution.

Article 22(1) of the Constitution, for example, guarantees the right to legal counsel, but Article

22(3)(b) strips this right from persons arrested or detained under preventive detention laws.

Relying on these provisions, the Supreme Court stated, in AK Roy v. Union of India, thatdetainees do not have the right to legal representation or cross-examination in Advisory Board

hearings. Contrary to Indias constitutional practice, the U.N. Human Rights Committee has


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stated, all persons arrested must have immediate access to counsel. Article 22(3)(b) of the

Constitutiondenying detainees virtually all procedural rights during Advisory Board hearingsmust be repealed.

Eighth, Article 9(5) of the ICCPR provides the right to compensation for unlawful detention,

except during public emergencies. A similar provision creating a right to compensation isincluded in section 38 of the Prevention of Terrorism Bill of 2000 (though the bill is otherwise

effectively a reconstitution of the lapsed Terrorist and Disruptive Activities Prevention Act(TADA)). The Law Commission charged with reshaping the anti-terrorism legislation observed

that Supreme Court orders have held that people are effectively entitled to compensation, in

practice superseding Indias reservation to Article 9(5) of the ICCPR. In this light, theGovernment of India should promptly withdraw its reservation to Article 9(5) of the ICCPR and

include a Constitutional provision guaranteeing the right to compensation, at least for unlawful

detention during peacetime.

In keeping with the overriding spirit of the Constitution and with minimum standards of

international human rights law, it is essential that the Constitutional reforms discussed above beadopted. The process set in motion by establishing the NCRWC provides a unique opportunityfor such an important realignment of Indias Constitution with prevailing international humanrights standards. The key will be political willpower and the commitment to seeing justice done.

-Human Rights Features


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Article 22 in The Constitution Of India 1949

22. Protection against arrest and detention in certain cases

(1)No person who is arrested shall be detained in custody without being

informed, as soon as may be, of the grounds for such arrest nor shall he

be denied the right to consult, and to be defended by, a legal practitioner

of his choice

(2)Every person who is arrested and detained in custody shall be

produced before the nearest magistrate within a period of twenty four

hours of such arrest excluding the time necessary for the journey from

the place of arrest to the court of the magistrate and no such person shallbe detained in custody beyond the said period without the authority of a

magistrate

(3)Nothing in clauses ( 1 ) and ( 2 ) shall apply (a) to any person who for

the time being is an enemy alien; or (b) to any person who is arrested or

detained under any law providing for preventive detention

(4)No law providing for preventive detention shall authorise the

detention of a person for a longer period than three months unless (a) anAdvisory Board consisting of persons who are, or have been, or are

qualified to be appointed as, Judges of a High Court has reported before

the expiration of the said period of three months that there is in its

opinion sufficient cause for such detention:

(5)When any person is detained in pursuance of an order made under

any law providing for preventive detention, the authority making the

order shall, as soon as may be, communicate to such person the groundson which the order has been made and shall afford him the earliest

opportunity of making a representation against the order

(6)Nothing in clause ( 5 ) shall require the authority making any such

order as is referred to in that clause to disclose facts which such

authority considers to be against the public interest to disclose
http://www.indiankanoon.org/doc/1293832/http://www.indiankanoon.org/doc/1293832/http://www.indiankanoon.org/doc/1371971/http://www.indiankanoon.org/doc/1371971/http://www.indiankanoon.org/doc/825787/http://www.indiankanoon.org/doc/825787/http://www.indiankanoon.org/doc/1262401/http://www.indiankanoon.org/doc/1262401/http://www.indiankanoon.org/doc/1709581/http://www.indiankanoon.org/doc/1709581/http://www.indiankanoon.org/doc/1782826/http://www.indiankanoon.org/doc/1782826/http://www.indiankanoon.org/doc/1782826/http://www.indiankanoon.org/doc/1709581/http://www.indiankanoon.org/doc/1262401/http://www.indiankanoon.org/doc/825787/http://www.indiankanoon.org/doc/1371971/http://www.indiankanoon.org/doc/1293832/


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(7)Parliament may by law prescribe

(a)the circumstances under which, and the class or classes of cases in

which, a person may be detained for a period longer than three months

under any law providing for preventive detention without obtaining theopinion of an Advisory Board in accordance with the provisions of sub

clause (a) of clause ( 4 );

(b)the maximum period for which any person may in any class or classes

of cases be detained under any law providing for preventive detention;

and

(c)the procedure to be followed by an Advisory Board in an inquiry

under sub clause (a) of clause ( 4 ) Right against Exploitation
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PREVENTIVE DETENTION -(The rights of the accused under the Indian Constitution)

Art 22:

No person shall be detained in custody without being informed, as soon as may be, of the

grounds for such arrest nor shall he be denied the right to consult and to be defended by, legalpractitioner of his choice.

Every person who is arrested and detained in custody shall be produced before the nearest

magistrate within a period of twenty four hours of such arrest excluding the time necessary forsuch journey from the place of arrest to the court of magistrate and no person shall be detained in

custody beyond the said period without the authority of the magistrate.

Nothing in clauses (1) and (2) shall apply-

to any person for the time being an enemy alien

to any person who is arrested or detained under any law providing for preventive

detention.

(4) No law providing for preventive detention shall authorize the detention of any person

for a period longer than three months unless-

an advisory Board consisting of persons who are qualified to be appointed as, Judges of HighCourt has reported before the expiration of the said period that there is, in its opinion sufficient

cause for such detention:

Provided that nothing in this clause shall authorize such detention beyond the period specified byany law made by Parliament

(5)When any person is detained in pursuance of an order made under any law providing for

preventive detention, the authority making the order shall, as soon as may be, communicate tosuch person the grounds on which the order has been made and shall afford him the earliest

opportunity of making a representation against the order.

(6) Nothing in clause (5) shall require the authority making such order to disclose the facts whichsuch authority considers to be against the public interest to disclose.

'Preventive detention' means the detention of a person without trial in such circumstances that theevidence before the authority is not sufficient to make out a legal charge or to secure the

conviction of the detenue by legal proof, but still may be sufficient to justify his detention. The

object of preventive detention is to prevent a person from doing something. No offence isproved, nor any charge formulated: and the justification is suspicion or reasonable probability

and not criminal conviction which only can be warranted by legal evidence.


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The object of the framers of the Constitution to give Constitutional status to preventive detention

was that though they recognized the need for such laws, they wanted to provide safeguards toprevent abuse of power. The procedural requirements are mandatory and any violation would

render the detention invalid.


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Preventive detention an anachronism

INDIA IS one of the few countries in the world where laws allowing preventive detention enjoy constitutional

validity even during peacetime. In contrast, the European Court of Human Rights has long held that such

laws are illegal under the European Convention on Human Rights regardless of the safeguards inherent in

them to prevent their misuse.

Normal1y preventive detention is resorted to against enemy aliens in emergencies such as war when the

evidence in possession of the detaining authority is not sufficient to secure the immediate conviction of the

detenu by the normal legal process. In India the history of preventive detention dates back to the early days

of the British rule when under the Bengal Regulation III of 1818 (the Bengal State Prisoners Regulation)

the government was empowered to detain anybody on mere suspicion. There was also Rule 26 of the Rules

framed under the Defence of India Act 1939, again a war time legislation, which allowed the detention of a

person if it was "satisfied with respect to that particular person that such detention was necessary to

prevent him from acting in any manner prejudicial" to the defence and safety of the country (Emp. vs.

Sibnath A. 1945 P.C.l56).

In the normal course of things preventive detention laws should have lapsed after India attained

Independence; but perhaps as the Republic of India had its birth amidst the ravages of civil commotion

involving huge loss of lives and property, the framers of our Constitution decided to retain preventivedetention as a means to curb anti-national activity. Thus, the Preventive Detention Act was passed by

Parliament in 1950. After the expiry of this Act in 1969, the Maintenance of Internal Security Act (MISA) was

enacted in 1971, followed by its economic adjunct the Conservation of Foreign Exchange and Prevention of

Smuggling Activities Act (COFEPOSA) in 1974 and the Terrorism and Disruptive Activities (Prevention) Act

(TADA) in 1985. Though MISA and TADA have been repealed, COFEPOSA continues to be operative along

with other similar laws such as the National Security Act (NSA) 1980, the Prevention of Blackmarketing and

Maintenance of Essential Commodities Act 1980 and the draconian Prevention of Terrorism Act (POTA)

2002; not to mention laws with similar provisions enacted by the State governments.

It is unbelievable that our Constitution allows the government to pass preventive detention laws against its

own citizens in the name of national security and "maintenance of public order" as per Entry 9 of List I and

Entry 3 of List III of the Constitution. Assuming that the situation in the country at the time of Independence

warranted such legislation, there is still no compelling wisdom in allowing these laws to continue particularly

when the circumstances identified in the aforementioned Entries do not exist today. Moreover, in the

absence of proper safeguards, preventive detention has been grossly misused, particularly against the Dalits

and the minorities. For instance, in May last year a Division Bench of the Madras High Court penalised the

Kancheepuram Collector and a police Inspector to pay a sum of one lakh rupees for illegally detaining one

Thameem Ansari under the Goondas Act. (The Hindu, May 3, 2003).

Another law which is misused is the COFEPOSA, under which a person found in possession of contraband can

be imprisoned without trial and bail for a period of one year despite the possibility that the person may have

been duped into carrying the contraband, because, it is often seen that baggage carried by people in good

faith on behalf of their friends or relatives contains smuggled goods and they end up in prison under

COFEPOSA. Unfortunately, the law does not recognise innocence even in such genuine cases.

Normally before a preventive detention case is brought before the High Court, a three member Advisory

Board headed by a sitting High Court Judge is constituted by the government to examine whether the

detention is justified or not. Surprisingly, the proceedings of the Board are confidential except for that part

of the report which expresses the opinion of the Board. But what is more appalling is the denial of the

detenu's fundamental right to be represented by a professional lawyer before the Board. This is a blatant

violation of human rights and goes against Article 22(1) of the Constitution, which says "No person who is

arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such

arrest nor shall he be denied the right to consult, and to be defended by a legal practitioner of his choice."

Thus in a majority of cases the Advisory Board upholds the detention due to lack of proper legal

representation on behalf of the detenu.


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It takes up to six months or sometimes even more before a habeas corpus petition is filed and taken up by

the High Court, and till such time the detenu languishes in prison under extremely trying conditions. No

wonder, as per the NHRC report released in May last year, out of a total of 3,04,893 prisoners in India,

2,25,817 are awaiting trial. In other words, more than 74 per cent of the total prison population are

undertrials. It is therefore clear that preventive detention is harmful to a secular democracy like India as it is

extremely prejudicial to personal liberty. As the existing laws are more than sufficient to deal with any

offence, the government must seriously consider abolishing all preventive detention laws which have

consistently exposed not only the shabby investigative skills of the sponsoring authority, but also their

illogical and mechanical application by the detaining authority.

(The article was part of a memorandum presented to the Prime Minister, the Home Minister and Ms. Sonia

Gandhi when the author met them on August 6 as a member of a minority community delegation led by the

Prince of Arcot Nawab Mohd Abdul Ali.)


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Preventive detention

Preventive detention is animprisonmentthat is not imposed as the punishment for a crime, but

in order to prevent a person from committing a crime, if that person is deemed likely to commit a

crime.

In mostdemocracies, no one can be arrested without being told the grounds for such an arrest,except under rare and special circumstances (usuallyanti-terrorism legislation). An arrested

citizen has certain rights: He or she must be subject to and informed of acriminal chargeand

brought before the nearest magistrate within a certain amount of time, and has the right to defendhimself by a lawyer of his choice. Depending on the laws, this lawyer can be called for as soon

as the detention starts, or sometimes days or weeks later.

In contrast to this, under preventive detention the government can imprison a person for sometime without a criminal charge. It means that if the government feels that a person being at

liberty can be a threat to the law and order or the unity and integrity of the nation, it can detain orarrest that person to prevent him from doing this possible harm. Some jurisdictions allow

preventive detention only in specific cases, for example only for persons who have already been

sentenced for a serious crime.

A related, but different form of detention isdetention of suspects. In contrast to preventivedetention, detention of suspects must quickly be followed by a criminal charge (or happen afterthe charge).

In most jurisdictions, people suffering from serious mental illness may be subject toinvoluntarycommitmentunder mental health legislation. This is undertaken on health grounds or in order to

protect the person or others. It does not strictly speaking constitute a form of preventivedetention, because the person is detained for treatment and released once this has proved

effective.

Contents

Specific jurisdictions

India

InIndia, preventive detention can be extended for only three months. After three months, such a

case is brought before an advisory board for review. In India, this is given in the Constitution of

IndiaunderRight to Freedom, a Fundamental Right.

United States

In theUnited States, theSixth Amendment to the United States Constitutionguarantees the rightto "a speedy and public trial". Thus, arrested persons may not be held for extended periods oftime without trial.
http://en.wikipedia.org/wiki/Imprisonmenthttp://en.wikipedia.org/wiki/Imprisonmenthttp://en.wikipedia.org/wiki/Imprisonmenthttp://en.wikipedia.org/wiki/Democracyhttp://en.wikipedia.org/wiki/Democracyhttp://en.wikipedia.org/wiki/Democracyhttp://en.wikipedia.org/wiki/Anti-terrorism_legislationhttp://en.wikipedia.org/wiki/Anti-terrorism_legislationhttp://en.wikipedia.org/wiki/Anti-terrorism_legislationhttp://en.wikipedia.org/wiki/Criminal_chargehttp://en.wikipedia.org/wiki/Criminal_chargehttp://en.wikipedia.org/wiki/Criminal_chargehttp://en.wikipedia.org/wiki/Detention_of_suspectshttp://en.wikipedia.org/wiki/Detention_of_suspectshttp://en.wikipedia.org/wiki/Detention_of_suspectshttp://en.wikipedia.org/wiki/Involuntary_commitmenthttp://en.wikipedia.org/wiki/Involuntary_commitmenthttp://en.wikipedia.org/wiki/Involuntary_commitmenthttp://en.wikipedia.org/wiki/Involuntary_commitmenthttp://en.wikipedia.org/wiki/Indiahttp://en.wikipedia.org/wiki/Indiahttp://en.wikipedia.org/wiki/Indiahttp://en.wikipedia.org/wiki/Constitution_of_Indiahttp://en.wikipedia.org/wiki/Constitution_of_Indiahttp://en.wikipedia.org/wiki/Constitution_of_Indiahttp://en.wikipedia.org/wiki/Constitution_of_Indiahttp://en.wikipedia.org/wiki/Fundamental_Rights,_Directive_Principles_and_Fundamental_Duties_of_India#Right_to_Freedomhttp://en.wikipedia.org/wiki/Fundamental_Rights,_Directive_Principles_and_Fundamental_Duties_of_India#Right_to_Freedomhttp://en.wikipedia.org/wiki/Fundamental_Rights,_Directive_Principles_and_Fundamental_Duties_of_India#Right_to_Freedomhttp://en.wikipedia.org/wiki/United_Stateshttp://en.wikipedia.org/wiki/United_Stateshttp://en.wikipedia.org/wiki/United_Stateshttp://en.wikipedia.org/wiki/Sixth_Amendment_to_the_United_States_Constitutionhttp://en.wikipedia.org/wiki/Sixth_Amendment_to_the_United_States_Constitutionhttp://en.wikipedia.org/wiki/Sixth_Amendment_to_the_United_States_Constitutionhttp://en.wikipedia.org/wiki/Sixth_Amendment_to_the_United_States_Constitutionhttp://en.wikipedia.org/wiki/United_Stateshttp://en.wikipedia.org/wiki/Fundamental_Rights,_Directive_Principles_and_Fundamental_Duties_of_India#Right_to_Freedomhttp://en.wikipedia.org/wiki/Constitution_of_Indiahttp://en.wikipedia.org/wiki/Constitution_of_Indiahttp://en.wikipedia.org/wiki/Indiahttp://en.wikipedia.org/wiki/Involuntary_commitmenthttp://en.wikipedia.org/wiki/Involuntary_commitmenthttp://en.wikipedia.org/wiki/Detention_of_suspectshttp://en.wikipedia.org/wiki/Criminal_chargehttp://en.wikipedia.org/wiki/Anti-terrorism_legislationhttp://en.wikipedia.org/wiki/Democracyhttp://en.wikipedia.org/wiki/Imprisonment


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In late June 2009,United States PresidentBarack Obamawas reported to have been consideringindefinite preventive detention for someGuantanamo captives.

[1][2][3]

Canada

InCanada, anyone declared adangerous offenderby the courts is subject to an indefinite period

of detention.

United Kingdom

England and Waleshas provisions to deal withdangerous offenderssimilar to what is used in

Canada.

Australia

In Australia the legislation differs depending on the state, but the bulk of the preventive detention

laws have been aimed at dangerous sex offenders. Some academics argue that this is fair,

because of the dangerous offender's prior fault. Dennis J. Baker, Punishment Without A Crime:Is Preventive Detention Reconcilable With Justice? (2009) 34 Australian Journal of Legal

Philosophy 120.

Costa Rica

TheRepublic of Costa Rica, where the 1998 Criminal Proceedings Code allows for a normal"preventive" imprisonment of 12 months if the person is considered a "flight risk", but if the case

is declared "complex", it can be increased to up to three years and a half of imprisonmentwithout conviction, or even more in some cases. In fact, in Costa Rica, as of 2006, over 4,000

people were serving terms of preventive detention.[citation needed]

Denmark

The police can detain people for 6 hours without involving the courts or pay compensation for

wrongful arrest.[4]

In relation to the ongoing gang war in Copenhagen between the biker gangs

and second generation youth gangs it has been suggested to extend the 6 hour limit to severalweeks.[5]Before theCopenhagen Climate Councila new set ofemergency lawswas introduced

allowing the police to detain people for up to 12 hours without charging them for a crime.[6]

Critics fear that they will remain as permanent laws when the summit is over .[7]

New Zealand

InNew Zealand, "preventive detention" is an indeterminate life sentence, and is handed down toindividuals convicted of violent and/or sexual crimes (such as sociopathic murderers, serial

rapists or recidivist pedophiles) where it is likely that the offender will reoffend if released. Suchindividuals will only receive parole if they can demonstrate they no longer pose a threat to the

community. In October 2010, a total of 269 prisoners in New Zealand were serving terms of

preventive detention.
http://en.wikipedia.org/wiki/United_States_Presidenthttp://en.wikipedia.org/wiki/United_States_Presidenthttp://en.wikipedia.org/wiki/Barack_Obamahttp://en.wikipedia.org/wiki/Barack_Obamahttp://en.wikipedia.org/wiki/Barack_Obamahttp://en.wikipedia.org/wiki/Guantanamo_captivehttp://en.wikipedia.org/wiki/Guantanamo_captivehttp://en.wikipedia.org/wiki/Preventive_detention#cite_note-Salon2009-06-26-0http://en.wikipedia.org/wiki/Preventive_detention#cite_note-Salon2009-06-26-0http://en.wikipedia.org/wiki/Preventive_detention#cite_note-Attackerman2009-06-27-2http://en.wikipedia.org/wiki/Preventive_detention#cite_note-Attackerman2009-06-27-2http://en.wikipedia.org/wiki/Canadahttp://en.wikipedia.org/wiki/Canadahttp://en.wikipedia.org/wiki/Canadahttp://en.wikipedia.org/wiki/Dangerous_offenderhttp://en.wikipedia.org/wiki/Dangerous_offenderhttp://en.wikipedia.org/wiki/Dangerous_offenderhttp://en.wikipedia.org/wiki/England_and_Waleshttp://en.wikipedia.org/wiki/England_and_Waleshttp://en.wikipedia.org/wiki/Dangerous_offenderhttp://en.wikipedia.org/wiki/Dangerous_offenderhttp://en.wikipedia.org/wiki/Dangerous_offenderhttp://en.wikipedia.org/wiki/Republic_of_Costa_Ricahttp://en.wikipedia.org/wiki/Republic_of_Costa_Ricahttp://en.wikipedia.org/wiki/Republic_of_Costa_Ricahttp://en.wikipedia.org/wiki/Wikipedia:Citation_neededhttp://en.wikipedia.org/wiki/Wikipedia:Citation_neededhttp://en.wikipedia.org/wiki/Wikipedia:Citation_neededhttp://en.wikipedia.org/wiki/Preventive_detention#cite_note-3http://en.wikipedia.org/wiki/Preventive_detention#cite_note-3http://en.wikipedia.org/wiki/Preventive_detention#cite_note-3http://en.wikipedia.org/wiki/Preventive_detention#cite_note-4http://en.wikipedia.org/wiki/Preventive_detention#cite_note-4http://en.wikipedia.org/wiki/Preventive_detention#cite_note-4http://en.wikipedia.org/wiki/Copenhagen_Climate_Councilhttp://en.wikipedia.org/wiki/Copenhagen_Climate_Councilhttp://en.wikipedia.org/wiki/Copenhagen_Climate_Councilhttp://en.wikipedia.org/wiki/State_of_emergencyhttp://en.wikipedia.org/wiki/State_of_emergencyhttp://en.wikipedia.org/wiki/State_of_emergencyhttp://en.wikipedia.org/wiki/Preventive_detention#cite_note-5http://en.wikipedia.org/wiki/Preventive_detention#cite_note-5http://en.wikipedia.org/wiki/Preventive_detention#cite_note-5http://en.wikipedia.org/wiki/Preventive_detention#cite_note-6http://en.wikipedia.org/wiki/Preventive_detention#cite_note-6http://en.wikipedia.org/wiki/Preventive_detention#cite_note-6http://en.wikipedia.org/wiki/New_Zealandhttp://en.wikipedia.org/wiki/New_Zealandhttp://en.wikipedia.org/wiki/New_Zealandhttp://en.wikipedia.org/wiki/New_Zealandhttp://en.wikipedia.org/wiki/Preventive_detention#cite_note-6http://en.wikipedia.org/wiki/Preventive_detention#cite_note-5http://en.wikipedia.org/wiki/State_of_emergencyhttp://en.wikipedia.org/wiki/Copenhagen_Climate_Councilhttp://en.wikipedia.org/wiki/Preventive_detention#cite_note-4http://en.wikipedia.org/wiki/Preventive_detention#cite_note-3http://en.wikipedia.org/wiki/Wikipedia:Citation_neededhttp://en.wikipedia.org/wiki/Republic_of_Costa_Ricahttp://en.wikipedia.org/wiki/Dangerous_offenderhttp://en.wikipedia.org/wiki/England_and_Waleshttp://en.wikipedia.org/wiki/Dangerous_offenderhttp://en.wikipedia.org/wiki/Canadahttp://en.wikipedia.org/wiki/Preventive_detention#cite_note-Attackerman2009-06-27-2http://en.wikipedia.org/wiki/Preventive_detention#cite_note-Salon2009-06-26-0http://en.wikipedia.org/wiki/Preventive_detention#cite_note-Salon2009-06-26-0http://en.wikipedia.org/wiki/Guantanamo_captivehttp://en.wikipedia.org/wiki/Barack_Obamahttp://en.wikipedia.org/wiki/United_States_President


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Preventive detention has a minimum non-parole period of five years in prison, but the sentencingjudge can extend this if they believe that the prisoner's history warrants it. It should be noted thatprisoners on preventive detention are very rarely ever released, and generally persons given the

sentence are kept in prison for life. Currently only 16 of the 269 persons serving sentences of

preventive detention are on parole.[8]

The longest non-parole period on a sentence of preventive detention is one of 26 years, being

served by sadistic killer Graeme William Burton, who shot dead two people and injured fourothers between 1992-2007.

Currently New Zealand's longest serving inmate, Alfred Vincent, who became eligible for parolein 1975, is still serving a sentence of preventive detention after 43 years .[9]

Germany

InGermany, "preventive detention" (German: Sicherungsverwahrung,66Strafgesetzbuchhas asimilar meaning to that in New Zealand. The sentence has to be imposed by a judge, and it is

handed down to individuals who have commited a grave offence and is considered a danger to

public safety. It is an indeterminate life sentence that follows a regular jail sentence. To assurethe suitability of the preventive detention, it has to be reviewed every two years to determine the

ongoing threat posed by the individual. Preventive detention is typically served in regular

prisons, though separated from regular prisoners and with certain privileges. The

Sicherheitsverwahrung is usually imposed in the original verdict. But it could also be imposedlater. This practice of subsequent incapacitation orders was ruled a violation of Art 7 of the

European Convention on Human Rightsby theEuropean Court of Human Rights.[10]

Subsequently a huge discussion in Germany over the handling of this verdict occurred. In

reaction to this theFederal Constitutional Court of Germanyissued a verdict onSicherheitsverwahrung in May 2011.[11]

See also

Australian Anti-Terrorism Act 2005

Arbitrary arrest and detention

Criminal Law (Temporary Provisions) Act (Singapore)

Internal Security Act (Singapore)

Internal Security Act (Malaysia)

Civil confinement

References

1. ^Glenn Greenwald(2009-06-27)."Obama contemplates Executive Order for detention without

charges".Salon magazine.

http://www.salon.com/opinion/greenwald/2009/06/27/preventive_detention/index.html.

Retrieved 2009-06-27.

2. ^Stephen Lee(2009-06-27)."Proposed executive order on preventive detention: holes in the

story".The Examiner.http://www.examiner.com/x-13426-CIA-Examiner~y2009m6d27-
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009/06/27/preventive_detention/index.htmlhttp://en.wikipedia.org/wiki/Glenn_Greenwaldhttp://en.wikipedia.org/wiki/Preventive_detention#cite_ref-Salon2009-06-26_0-0http://en.wikipedia.org/wiki/Civil_confinementhttp://en.wikipedia.org/wiki/Internal_Security_Act_(Malaysia)http://en.wikipedia.org/wiki/Internal_Security_Act_(Singapore)http://en.wikipedia.org/wiki/Criminal_Law_(Temporary_Provisions)_Act_(Singapore)http://en.wikipedia.org/wiki/Arbitrary_arrest_and_detentionhttp://en.wikipedia.org/wiki/Australian_Anti-Terrorism_Act_2005http://en.wikipedia.org/wiki/Preventive_detention#cite_note-10http://en.wikipedia.org/wiki/Federal_Constitutional_Court_of_Germanyhttp://en.wikipedia.org/wiki/Preventive_detention#cite_note-9http://en.wikipedia.org/wiki/European_Court_of_Human_Rightshttp://en.wikipedia.org/wiki/European_Convention_on_Human_Rightshttp://en.wikipedia.org/wiki/Strafgesetzbuchhttp://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#StGBengl_000P66http://en.wikipedia.org/wiki/Germanyhttp://en.wikipedia.org/wiki/Preventive_detention#cite_note-8http://en.wikipedia.org/wiki/Preventive_detention#cite_note-7


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Proposed-executive-order-on-preventive-detention-holes-in-the-story. Retrieved 2009-06-

27.[dead link]

3. ^Spencer Ackerman(2009-06-27)."Uh, Which Civil Liberties Groups Pushed For A Prolonged

Detention Executive Order?". http://attackerman.firedoglake.com/2009/06/26/uh-which-civil-

liberties-groups-pushed-for-a-prolonged-detention-executive-order/. Retrieved 2009-06-27.

4. ^The police law (Danish), Web page of the Danish police

5. ^S vil stte bandekrigen bag tremmer, by Bente Lund, Denmarks Radio, February 22, 2009(Danish)

6. ^Hrdt politisk opgr fr Folketinget sagde ja til lmmelpakken, by Jens Ringberg, Denmarks

Radio, November 26, 2009 (Danish)

7. ^Lmmelpakken bekymrer dommerne, Politiken, November 13, 2009 (Danish)

8. ^http://www.stuff.co.nz/national/crime/4211709/Preventive-detention-rates-rocket

9. ^http://www.safe-nz.org.nz/sxdb/vincentalfred.htm

10.^http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=860012&portal=hbkm&

source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649l

11.^http://www.dw-world.de/dw/article/0,,15046630,00.html
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NATIONAL SECURITY AND THE RULE OF LAWMICHAELB. MUKASEY*

I have long had a deep respect for the Federalist Society and

for its principles, and so I feel particularly privileged to be at this

podium tonight. For over twentyfive years, the members of this

Society have committed themselves to vigorous and open debateabout the pressing legal issues of our day and how they ought to

be resolved under the constant and durable provisions of our

Constitution. The Federalist Society is committed to taking the

Constitution seriously and understanding it to be a legal document,

rather than an empty vessel to be filled by the policy preferences

of those who happen to be wielding the pen at any given

moment. On this evening, I want to applaud your contributions

to the nations legal culture and your efforts particularly over the

past eight years to elevate the discourse surrounding the most

important legal and policy issues facing our nation.

It is my privilege to be here tonight with such distinguishedguests, including members of the Supreme Court and the rest

of the judiciary. There are also dozens of lawyers here who

have served their country during this Administration, some of

whom have now returned to the private sector and some of

whom I have had the pleasure of working with during my tenure

at the Justice Department. There are likely others in attendance

who will have the opportunity to serve in the new Administration,

all of which is a testament to those who founded

this Society and who have a great deal to be proud of. The

principles of the Society you founded have inspired a generation

of lawyers and are now inspiring the next generation.

As we near the end of this Administration and as we approach

the first transition that our government has seen since

the attacks of September 11, 2001, I would like to focus on the

successes of this Administration that relate to matters that con* United States Attorney General, 20072009. This Essay was delivered as a speech

to the Federalist Society National Lawyers Convention in Washington, D.C., on

November 20, 2008.

832Harvard Journal of Law & Public Policy[Vol. 32

cern this Society, the legacy that will remain when this Administration

leaves office, and on a matter relating to our national

security that I think should continue to receive the attentionof this Society.

Perhaps of most obvious interest to the members of the Federalist

Society are the judges and Justices whom the President

has appointed to the federal bench. As the President recently

explained to the Cincinnati chapter of this Society, he has

sought out judges who would faithfully interpret the Constitution


22/58

not use the courts to invent laws or dictate social policy.

1With the help of many in this room, the President has

succeeded in this effort and appointed many wellqualified and

accomplished judges who have understood their role in interpreting

not writingthe laws.

Most notably, the President has appointed two members ofthe Supreme Court, Chief Justice John Roberts and Justice Samuel

Alito. These men are no strangers to the people in this

roomindeed, they both spoke to this Society last year. Both of

these remarkably accomplished Justices will continue to serve

the Nation for many years to come, and we are grateful not only

for their service but also for their approach to the difficult questions

of constitutional law and statutory interpretation that the

Court faces each Term. The President is rightfully proud of his

selection of both of these men, and the Federalist Society should

be proud of the role it played in supporting their nominations.

The President also has nominated, and the Senate has confirmed,many other wellqualified judges throughout the federal

courts. Unfortunately, still other good and wellqualified

people were denied the same opportunity. We have seen the

nominations of skilled, experienced, and wellrespected candidates

delayed or frustrated through procedural tactics. Quite

frequently, it has been hard for these nominees to receive a

vote in the Senate or even a hearing before the Judiciary Committee.

For those who never received a vote or even a hearing, I

offer my profound regret. You deserved better.

Tonight, however, we should take note of our successes. Indeed,

this Administrations judicial legacy includes sixtyone

judges appointed to the courts of appeals and 261 judges ap1. Sheryl Gay Stolberg,Bush, Though Not Campaigning, Delivers a Message to Voters:

Judges Matter,N.Y. TIMES, Oct. 7, 2008, at A20.

No. 3]Address by Attorney General Mukasey833

pointed to the district courts. The President and the members

of his Administration leave office in January, but these good

judges will remain in place, many for decades to come.

The Federalist Society should be proud of the role it played

in supporting these judges, but it also should be proud of the

basis on which it did so. As the members of this Society recognize,

the core meaning of judicial independence is independencefrom the political pressures and fashions of the moment.

Otherwise, judges become simply politicians who are independent

only in the sense that they have life tenure and so are

not subject to the discipline of the political processnamely,

elections. Although judges are appointed through a political

process, once they take the oath they are confined to exercising


23/58

a power that is, under Article III, judicial only. Which is to say,

one that should involve a faithful, not a fanciful, reading of the

laws and the Constitution.

I want to turn to another subject which I have taken from

Day One to be my most solemn responsibility as Attorney General.

That is ensuring that we put into place the institutions weneed to keep our country safe from the continuing threat posed

by al Qaeda and other international terrorists.

On September 11, 2001, nineteen terrorists inflicted the most

catastrophic attack on our homeland since Pearl Harbor. What

made that attack so devastating was not simply the toll inflicted

on our country, but the idea that nineteen lightly armed terrorists

could murder nearly 3000 Americans. The reality of such

asymmetric warfare required us to dramatically reconsider how

we should confront the threat of international terrorism.

When the terrorists attacked the World Trade Center in 1993,

and when al Qaeda attacked the U.S.S.Colein Yemen and ourembassies in Kenya and Tanzania, the United States deployed

the FBI to the scenes of these crimes to collect evidence, pursue

leads, and ultimately indict and prosecute at least some of

those responsible.

Following the September 11 attacks, however, it no longer

seemed prudent to treat international terrorism solely as a

criminal matter, where suspects are pursued and prosecuted

only after they have perpetrated a crime. Indeed, at the time of

the September 11 attacks, Osama bin Laden was already under

criminal indictment for his role in the embassy bombings. Apparently,

he was undeterred. Instead, the United States recognized

the attacks of September 11 to be what they were: an act


of wara war that had been declared years earlier by enemies

of the United States, and indeed of civilized people everywhere.

In response, this Nation, under our President, committed

to a comprehensive offensive strategy against the terrorists

abroad, using every resource at our disposalmilitary, intelligence,

financial, and law enforcement.

The U.S. military deployed to Afghanistan, where al Qaeda

had found a safe haven within the confines of the brutal andinhumane regime of the Taliban. When our forces or those of

our allies captured members of the enemy, we detained them

so that they could not simply return to the battlefield and,

where we thought it appropriate, transferred them for detention

to the U.S. Naval Station at Guantnamo Bay.

At home, the Administration sought to reorganize and modernize

our government to reflect the new priorities of the War


24/58

on Terror. We brought domestic security agencies, which historically

had been scattered throughout the Executive Branch,

under the umbrella of the Department of Homeland Security,

and we established a Director of National Intelligence to ensure

that our intelligence agencies would work together in tracking

terrorist threats and preventing new attacks.Within the Department of Justice, the FBI made preventing

terrorism its top priority and restructured its resources accordingly.

Since September 11, the FBI has transformed itself into a

worldclass intelligence agency designed to detect and prevent

attacks before they occur, rather than simply investigating them

afterwards. The FBI has doubled the number of intelligence analysts

and translators in its ranks and opened sixteen new offices

overseas, including in Kabul and Baghdad. We created the FBIs

new National Security Branch to bring together divisions responsible

for counterterrorism and intelligence and counterespionage,

and we made similar institutional reforms in establishingthe National Security Division at the Department of Justice.

The Administration worked with Congress in reorganizing

our government and with passing new laws to promote the collection

and dissemination of critically important intelligence.

Shortly after September 11, Congress passed the PATRIOT Act22. Uniting and Strengthening America by Providing Appropriate Tools Required

to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L.

No. 10756, 115 Stat. 272.


to ensure that analysts and investigators could access the information

they needed to protect our Nation, work together toconnect the dots, and pursue a strategy of prevention. And

this year, Congress did the same for our intelligence professionals,

passing bipartisan legislation that modernizes the Foreign

Intelligence Surveillance Act3to allow the intelligence community

to quickly and effectively monitor terrorist communications

while ensuring respect for our civil liberties.

Taken together, the Administrations policies in the War on

Terror represent nothing less than a fundamental reorganization

of our government and will ensure that the next President has

the tools he needs to continue to defend the country. The Administrations

strategy in defending the Nation from terroristthreats has not only been comprehensive, but has also been successful

based on what matters most: Since September 11, 2001,

al Qaeda has not managed to launch a single act of terrorism in

the United States. This is a remarkable achievement that no one

could have or would have predicted in the days following the

September 11 attacks. The credit for that goes to many people,

including many brave men and women in our armed forces, and


25/58

many brave men and women in law enforcement and intelligence

services, who put their lives at risk routinely in parts of

the world that most Americans, to their great comfort, will never

encounter. Much of the credit also goes to the President. In this

area, as in many others, leadership and resolve matter.

As the end of this Administration draws near, you wouldexpect to hear broad praise for this success at keeping our Nation

safe. Instead, Im afraid what we hear is a chorus with a

rather more dissonant refrain. Instead of appreciation or even a

fairappraisal of the Administrations accomplishments, we

have heard relentless criticism of the very policies that have

helped keep us safe. We have seen this in the media, we have

seen this in the Congress, and we have heard it from the legal

academy as well.

In some measure, these criticisms rest on a very dangerous

form of amnesia that views the success of our counterterrorism

efforts as something that undermines the justification for continuingthem. In an odd way, we have become victims of our own3. Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, Pub.

L. No. 110261, 122 Stat. 2436.


success. In the eyes of these critics, if al Qaeda has not struck our

homeland for seven years, then perhaps it never posed a threat

after all, and we didnt need these counterterrorism policies.

Other critics question the premisealmost universally accepted

following the September 11 attacksthat the United

States is engaged in a war against al Qaeda and other groups.

Even more common is the casual assumption among many inthe media, political, and legal circles that the Administrations

counterterrorism policies have come at the expense of the rule

of law. I am quite familiar with these criticisms, having heard

many of them myself during my tenure as Attorney General.

Now it is hardly surprising that the questions of how we

confront the terrorism threat could generate vigorous debate.

These questions are among the most complex and consequential

that a democratic government can face. There is, understandably,

passionate debate about where the legal lines are

drawn in this new and very difficult conflict and, as a matter of

policy, how close to those legal lines we should go.As the members of the Federalist Society know, however, answering

legal questions often involves a close reading and a

critical analysis of a textthe Constitution, statutes, judicial

decisions, and the like. Regrettably, this point is much too often

lost in the public discourse on the subject. Newspapers, commentators,

and even prominent lawyers often discuss critical


26/58

questions about national security policies with barely any acknowledgement

that the answers may depend on the language

of, say, the Constitution or a statute. And critics of this Administrations

policies rarely draw distinctions between

whether a course of action is permitted as a matter of law and

whether that course of action is prudent as a matter of policy.For example, earlier this year, the head of a legal organization

that prides itself on what it calls its nonpartisan approach

to the law gave a speech condemning what he called the oppressive,

relentless, and lawless attack by our own government

on the rule of law and our liberty.4According to this person,

we live now in a time of repression, where the word Patriot

names a statute that stifles liberty, and where we face4. Michael Traynor, President, Am. Law Inst., Address at the American Law Institute

Annual Dinner: Remarks on Liberty, Equality, and the Rule of Law 89 (May

20, 2008),available athttp://www.ali.org/doc/Traynorspeech52008annotated.pdf.


assaults by our government on constitutional rights, the Separation

ofPower[s] and the Geneva Conventions.5We can practically

hear the rumble of tanks in the background.

It is interesting and telling that even in the published written

version of these remarksby a lawyerthe references and

footnotes largely ignore statutory text, the Constitution, treaties,

or laws. Instead, the author relied on such authorities as

theNew York Times,Washington Post, andNew York Review of

Books. This style of criticism can be called many things

provocative, perhaps, or evidence that the author could be regarded

by some as wellreadbut what it cannot be called is areasoned legal critique.

Also completely absent from these remarks, and from many

remarks like it, is any fair appraisal of the legal issues actually

involved or an acknowledgement of the difficulty or novelty of

the legal questions confronted by the Administration lawyers

who made these decisions. Nor was there any discussion of the

atmosphere in which these decisions were made. I was in New

York City when the two planes hit the Twin Towers, and I know

what it was like to be in the city at that time. But I cannot speak

from any experience of my own of what it was like to be a lawyer

in the Justice Department at that time. There must have beenalmost unimaginable pressure, without the academic luxury of

endless time for debate. The lawyers called on to make critical

legal judgments at that time, and in real time, certainly had no

time to consult theNew York Review of Bookswhen looking for

answers to these difficult and pressing questions.

If you listen only to the critics, you might assume, for example,

that this Administration, by asserting that habeas corpus did


27/58

not apply to enemy combatants, had tried to deprive the judiciary

ofa timehonored role in secondguessing our military

commanders decisions concerning whom to detain on foreign

battlefields. Of course, before this armed conflict, federal judges

had never asserted the authority to afford habeas corpus to alien

enemy combatants captured and detained abroad.As even the majority inBoumedieneacknowledged, the Supreme

Court had, in its words, never held that noncitizens

detained by our Government outside the United States had5.Id.at 9, 11.


any rights under our Constitution.6Indeed, following World

War II, the Court had specifically rejected that habeas corpus

would apply in that context.7The Administrations position in

Boumedienethus was at least arguably justified by text, history,

and precedent. A majority of the Supreme Court may have disagreed,

but the Administrations position hardly constitutes theattack on habeas corpus asserted, but not explained, by critics

like the author I quoted.

And when people denounce a purported assault on the Geneva

Conventions, you might expect some level of specificity in

the charges. One cannot assault a treaty as an abstract concept;

one can only violate a treaty by acting contrary to its words. The

Geneva Conventions contain 319 articles, of which 315 are

plainly addressed to armed conflicts among the nations that

signed the Conventions.8It is hardly surprising that the United

States concluded that those provisions would not apply to the

armed conflict against al Qaeda, an international terrorist groupand not, the last time I checked, a signatory to the Conventions.

One common article appearing in each of the four conventions,

Article 3, provides rules that govern conflict[s] not of an

international character, such as civil wars.9The President concluded

early on that the global war against al Qaeda had a decidedly

international character. InHamdan v. Rumsfield, a majority

of the Supreme Court disagreed.10This narrow legal

disputeagain turning on an Administration interpretation

that was both reasonable and indeed consistent with text, history,

and precedenthardly warrants the sweeping, dismissive,

and entirely conclusory criticisms so frequently heard.

I focus on these types of criticism not because they are so extraordinary,

but because they are, unfortunately, so typical of6. Boumediene v. Bush, 128 S. Ct. 2229, 2262 (2008).

7. Johnson v. Eisentrager, 339 U.S. 763, 781 (1950).

8.SeeGeneva Convention for the Amelioration of the Condition of the Wounded

and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31;

Geneva Convention for the Amelioration of the Condition of Wounded, Sick and

Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75


28/58

U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War, Aug.

12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection

of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.

9. Geneva Convention Relative to the Treatment of Prisoners of War,supranote

8, 6 U.S.T. at 3318.

10. 548 U.S. 557, 63031 (2006).


people who substitute their policy views for any serious legal

analysisand would turn a goodfaith legal disagreement into a

battle over the purported existence or nonexistence of the rule

of law. The irony, of course, is that the law requires a serious

analysis of text, precedent, and history, and it does not serve

the rule of law to substitute a smug sense of outrage for that

kind of analysis. In fact, this Administration has displayed a

strong commitment to the rule of law with all that it entails,

and I suspectand I admit that it is a suspicion tinged with

hopethat the next Administration will maintain far more of

this Administrations legal architecture than the intemperaterhetoric in some quarters would seem to suggest.

I remain concerned, however, that when relentless criticism of

this Administrations policies movesbeyond simply disagreement

into a realm where critics and even public officials seek to

invoke the criminal justice system to vindicate their policy

views, we are in a difficult time. For instance, in June of this

year, fiftysix members of Congress sentme a letter requesting

that I appoint a special counsel to conduct a criminal investigation

of the actions of the President, members of his cabinet, and

other national security lawyers and intelligence professionals,

into the CIAs interrogation of captured members of al Qaeda.The members who signed this letter offered no evidence that

these government officials acted based on any motive other than

a goodfaith desire to protect the citizens of our nation from a

future terrorist attack, nor did they provide any evidence or indication

that these government officials sought to authorize any

policies that violated our laws. Quite the contrary: it has become

wellknown that before conducting interrogations, CIA officials

sought the advice of the Department of Justice, and I am aware

of no evidence that these DOJ attorneys provided anything other

than their best judgment of what the law required.

Casual requests for criminal investigations, as well as the

even more prolific conflation of legal disagreements with policy

disagreements, reflect a broad trend whose institutional effects

may outlast the current Administration and could well

endanger our future national security. I have spoken in more

detail about these concerns in several recent speeches in which



29/58

I drew substantially on former Assistant Attorney General Jack

Goldsmiths book,The Terror Presidency.11

Lets all remember what Professor Goldsmith has said about

what he saw during his time in the Administration. Although he

may have disagreed with some of the legal reasoning employed

in making these decisions, he made it perfectly clear that despitehis disagreement he saw no evidence that those who provided

that advice did so in bad faith, for any reason other than to protect

the country during a time of war, or with the belief that

what they were doing was in any way contrary to the law.12It is

important for those who are so quick to condemn the attorneys

who were working nearly around the clock for months on end in

the wake of September 11 to keep that in mind.

In his book, Professor Goldsmith describes what he calls cycles

of timidity and aggression among political leaders in their

attitudes toward the intelligence community.13These cycles

have played out before, from the 1960s through the 1990s, butthose past cycles are now mainly of historic interest.14The most

recent cycle is of much more than historic interest. As Professor

Goldsmith explains, following theSeptember 11 attacks, The

consistent refrain from the [9/11] Commission, Congress, and

pundits of all stripes was that the government must be more

forwardleaning against the terrorist threat: more imaginative,

more aggressive, less riskaverse.15

After going seven years without another terrorist attack, our intelligence

professionals and national security lawyers now hear a

quite different message. When fiftysix members of Congress request

a cr

Bunty Sagar 3rd Semester

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