Detentions, Military Commissions, Terrorism, and Domestic Case Precedent – Article by Carl Tobias

From Volume 76, Number 6 (September 2003)
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Laura Dickinson’s recent article in this journal substantially improves appreciation of how the United States has detained suspects and instituted military commissions as well as of the roles played by the controversial procedure and tribunals when fighting terrorism. She meticulously traces how detentions and the commissions evolved, trenchantly criticizes them, and persuasively shows international tribunals’ comparative advantage. Dickinson accords relevant domestic case precedent a somewhat laconic analysis, however. For example, she briefly mentions separation-of-powers concerns and Supreme Court opinions that detentions and military commissions implicate while rather tersely assessing Ex parte Quirin, the Second World War decision on which President George W. Bush’s Administration has heavily relied to detain suspects, to create the tribunals, and to support numerous antiterrorism initiatives, especially litigation. Dickinson suggests that closer evaluation of these critical rulings is unwarranted because they lack application for her work and others have explored the opinions. Dickinson’s treatment allows many observers, most prominently cabinet members and federal judges, to overstate Quirin and to ignore Youngstown Sheet & Tube Co. v. Sawyer.

Dickinson contributes substantially to the ongoing debate over the use of detentions and military commissions in national emergencies. She illuminates myriad complex phenomena and convincingly demonstrates how international tribunals are preferable. Her recommendation may prove superior in terms of theory, policy, and international law. Nonetheless, the very realpolitik that Dickinson so incisively criticizes, and is so clearly exemplified by the Bush Administration’s war on terrorism, mandates elaboration of the governing United States case law.


 

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