THE REPORT OF THE 9/11 COMMISSION STATES THAT “[c]ountering terrorism has become, beyond any doubt, the top national security priority for the United States.” This is reflected in the high priority given to counterterrorism in the National Security Strategies that followed 2001 and, indeed, in the way in which the United States responded more directly to the devastating attacks of 9/11. In policy, word, and deed prevention became a dominant concern, particularly in states’ approaches to noncitizen (or foreign) suspected terrorists. This both reflects and constitutes an intensification of contemporary preventative approaches to risk management and security. The prominence of prevention as a concern is important because a strategy and approach that is focused on preventing future attacks is of a different hue to one that is committed to prosecuting past ones. Rather than evidence gathering states are intelligence gathering; rather than prosecuting, prejudging; rather than innocent before proven guilty, suspects are dangerous until proven otherwise. In this kind of system prosecution is not front and center; it is ancillary and perhaps even extraneous. It is also almost invariably extraordinary.

The detention of suspected terrorists has been core to the United States’ preventative counterterrorism strategy over the past decade. Whereas the United Kingdom has tended to prioritize deportation as a means of dealing with noncitizen suspected terrorists – with detention being a second-place option for situations where an individual suspected of terrorist activity cannot be deported for legal reasons (especially because it would breach Article 3 of the European Convention on Human Rights) – during the Bush Administration the United States focused on disabling suspected terrorists by depriving them of liberty. Whereas the Obama administration has greatly expanded the targeted killing program and focused less attention on detention, hundreds of suspected terrorists remain in preventative detention, held around the world.