Skip to main content Accessibility help
×
Home
Hostname: page-component-99c86f546-pkshj Total loading time: 0.402 Render date: 2021-11-30T15:51:57.343Z Has data issue: true Feature Flags: { "shouldUseShareProductTool": true, "shouldUseHypothesis": true, "isUnsiloEnabled": true, "metricsAbstractViews": false, "figures": true, "newCiteModal": false, "newCitedByModal": true, "newEcommerce": true, "newUsageEvents": true }

FOUR - Judicial Power to Determine the Status and Rights of Persons Detained Without Trial

Published online by Cambridge University Press:  24 November 2009

Jordan J. Paust
Affiliation:
University of Houston
Get access

Summary

INTRODUCTION

When the United States was formed, Alexander Hamilton reiterated a trenchant warning that “the practice of arbitrary imprisonments, [has] been, in all ages, the favorite and most formidable instrument[] of tyranny.” His warning remains relevant today, and the consequences of arbitrary detention, whether or not tyrannical in purpose, still threaten liberty and democratic values.

After the September 11 attacks on the United States in which terrorists hijacked four airplanes, crashing two of them into the World Trade Center and one into the Pentagon, the United States detained thousands of persons. The detentions raised several critical questions: Are there any legal limitations on Executive discretion to detain persons accused of participation in acts of terrorism or who are suspected of posing significant threats to national security? Is arbitrary detention proscribed and, if so, what is the proper role of the judiciary in response? Are Executive determinations of the status and rights of detainees reviewable in federal courts and, if so, what is the proper standard for judicial review?

Since September 11, the Bush administration has claimed a right to detain without trial any member of al Qaeda or the Taliban or other persons allegedly posing threats to national security as “enemy” or “unlawful” combatants, whether captured in or outside of a war in Afghanistan or Iraq and whether or not they are being detained in the United States, Afghanistan, Guantanamo Bay, or other countries.

Type
Chapter
Information
Beyond the Law
The Bush Administration's Unlawful Responses in the "War" on Terror
, pp. 65 - 85
Publisher: Cambridge University Press
Print publication year: 2007

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Send book to Kindle

To send this book to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle.

Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Send book to Dropbox

To send content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Dropbox.

Available formats
×

Send book to Google Drive

To send content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Google Drive.

Available formats
×