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

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