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Monday, May 25, 2009 12:00 AM

Backlash grows against Obama's preventive detention proposal

Leading opponents of Bush terrorism policies object strongly to Obama's proposal

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  • Monday, May 25, 2009 01:30 PM

    sysprog (and others)

    You may be interested in this paper - it includes discussion of the cases you've posted about recently:

    Preventative Detention of Terrorist Suspects in Australia and the United States: A Comparative Constitutional Analysis
    Katherine Nesbitt, March 22, 2007

    From the Abstract

    The two countries' approaches to preventative detention, however, have been distinct. In the United States, the Bush Administration has adopted pretextual measures that authorized the preventative, and potentially indefinite, detention of terrorist suspects as enemy combatants or as material witnesses. In Australia, Parliament placed preventative detention directly into its Criminal Code, authorizing the imposition of preventative detention and control orders in cases of terrorism.

    This Article examines and compares these unique preventative detention strategies employed by the U.S. and Australia in the war on terrorism, and analyzes their constitutionality in light of the U.S. Supreme Court and Australian High Court precedent addressing administrative detention. In the United States, the Supreme Court, armed with the Bills of Rights, has been more assertive than its Australian counterpart in striking down detention schemes which authorize indefinite regulatory detention without charges. Nevertheless, the preventative detention strategies employed by the United States are far more intrusive of individual liberties than the Australian legislative model. Yet, while the Australian measures incorporate more procedural protections and safeguards from abuse than their U.S. counterpart, and therefore are the more favored approach, neither scheme is consistent with the fundamental principles and values underlying both the U.S. and Australian systems of criminal justice and due process.

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=975792&rec=1&srcabs=1055501

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