The Historical and Legal Norms Governing the Detention of Suspected Terrorists and the Risks Posed by Recent Efforts to Depart From Them
12 TEX. REV. L. & POL. 223 (2008)
Recently, controversy has surrounded the procedures governing the detention of those the United States military has determined are unlawful enemy combatants involved with terrorist organizations. This article provides some broader historical and legal context to debates regarding the detention of suspected terrorists and other unlawful enemy combatants that do not wear the uniform of a foreign state but rather roam in disguise targeting civilians. It begins with an analysis of the legal context in which unlawful enemy combatants have been held and tried, from the Revolutionary War through the post-Civil War period and efforts to try terrorist members of the Ku Klux Klan by military commission and the Supreme Court's cases addressing these issues during and following World War II. The article then discusses that history in the context of the recent Authorization for the Use of Military Force in the defense against terrorism and recent litigation in the Supreme Court regarding terrorist detention procedures. The article then describes the large variety of risks posed by departing from historical precedents and the modern laws of war and treating terrorists that have traditionally been considered unlawful enemy combatants as something more akin to ordinary domestic criminals.
