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Military Tribunals or Civilian Prosecution: The Dilemma of Unlawful Enemy Combatants

NCJ Number
Global Crime Volume: 7 Issue: 3-4 Dated: August-November 2006 Pages: 379-406
Brian Levin
Date Published
August 2006
28 pages
This article examines the evolving role of military and civilian courts and laws throughout history and their relationship to due process and civil liberties during times of conflict.
As history has shown, in the wake of armed conflict, executive authority is often enhanced and tolerated in the name of national security. However, when these broadened powers cease to be regarded as an immediate necessity, the hands of politics, the courts, and diplomacy act to define both the limits of governmental authority, as well as the extent of individual protections. In other words, if the military wants to hold them indefinitely, it must provide a basic standard of care and a hearing to challenge their status. Over the centuries, Europeans, and later the Americans, instituted rules, laws, and mechanisms to address certain forms of violence by soldiers, guerillas, terrorists, and those under military occupation. In the United States, a well developed body of law evolved to govern the activities of its soldiers and civilian support personnel. As America grapples with an increasingly nebulous, as well as sophisticated terrorist threat, the need to examine the role of military and civilian courts and laws throughout history becomes apparent, as well as the relationship to due process and civil liberties. 72 footnotes, 1 appendix


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