Military Detentions and the Judiciary: Al Qaeda, the KKK, and Supra-State Law

San Diego Journal of International Law, Vol. 5, p. 7, 2004

66 Pages Posted: 12 Jun 2010 Last revised: 5 Feb 2013

Wayne McCormack

University of Utah - S.J. Quinney College of Law

Date Written: June 11, 2004

Abstract

Three cases pending before the Supreme Court present a unique opportunity to clarify the respective roles of the military and the judiciary in time of crisis. All three cases involve military detentions and the administration’s claim of unreviewable discretion to imprison persons accused either of taking up arms against the United States or of plotting terrorist actions. The Bush administration’s challenge to judicial review lies at the heart of its so-called “war” on terrorism because it reflects the idea that civilian courts cannot second-guess the decisions of military commanders. It is important to the rule of law that courts not cede unreviewable authority to the military on our own soil.

Keywords: terrorism, detentions, judicial review

JEL Classification: K14, K33

Suggested Citation

McCormack, Wayne, Military Detentions and the Judiciary: Al Qaeda, the KKK, and Supra-State Law (June 11, 2004). San Diego Journal of International Law, Vol. 5, p. 7, 2004. Available at SSRN: https://ssrn.com/abstract=1623900

Wayne McCormack (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

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