This Article touches on the choice of whether to use the language and tools of war or the language and tools of law enforcement in responding to terrorism. The principal focus, however, is on the limited issue of judicial review and military detentions. The Article reviews the case law created on this subject during the Civil War and World War II. Historical considerations are found by the author to be relevant and helpful in solving the incoherency of current legal responses to terrorism. For instance, indefinite military detention is not coherent with either the international law concept of violations of the laws of war (which would create a legal status as a POW) or with the notion of criminal acts held by the civilian courts. The author argues that the law being coherent is a first step in winning the hearts and minds of the disaffected portions of the world's population. To bring coherency he suggests several solutions including repatriating citizens to be tried in their home countries if those countries have suitable notions of human rights, placing detainees into the criminal system with due regard given to the sensitive nature of classified evidence, and the final solution of waiting for the international community to- defined terrorist crimes as violations of the "the law of war" which would allow appropriate classifications of detainees.
Military Detention and the Judiciary: Al Qaeda, the KKK and Supra-State Law,
San Diego Int'l L.J.
Available at: https://digital.sandiego.edu/ilj/vol5/iss1/3