The Military -Judicial Nexus in Response to Terrorism: KKK and AlQaeda


In considering the validity of "enemy combatant" status and military detention for alleged terrorists, several additional propositions emerge. Indefinite military detention of a US citizen arrested on US soil for a domestic crime is far beyond the pale of basic constitutional underpinnings. With respect to noncitizens and citizens captured overseas, military power is arguable but far from solid. In that event, why not take the route that does the least disruption to our system? Second, because the law abhors incoherence, we should be able to make coherent distinctions among alleged terrorists for the purpose of deciding who is tried in civilian courts, who is tried in military tribunals, and who if anyone is detained indefinitely with no trial at all. US military commissions are available only to prosecute violations of the “law of war,” so it becomes important to distinguish those violations from the actions of ordinary criminals. The history of federalism and terrorism in the United States under the post-Civil War statutes can be helpful in defining offenses that have multi-sovereign implications. Third, indefinite detention of “combatants” in an offshore prison camp is highly doubtful, although apparently beyond the reach of US courts, and subject to diplomatic negotiations.


Constitutional Law | International Law | Military, War, and Peace

Date of this Version

September 2003