Mercenaries, however, are unlawful combatants if they do not act at the behest of a recognized government.\n Somewhere in the interface between this nation's domestic and foreign affairs since September 11, 2001, a little piece of land on a small island a few hundred miles away in the Caribbean-Guantanamo-emerged as a symbol of the Bush administration's drive to chisel away at our historic laws and statutes, to rebalance this country's tripartite system of governing, and to commit military aggression against populations abroad.
The post-911 executive detention cases provide occasion to consider how courts have conditioned deference upon transparency and deliberation in the crafting and implementation of security-related policy. By invoking procedural devices in this way, courts have brought large numbers of cases to effective resolution. Moreover, they have insisted that the coordinate branches engage in a more thorough and deliberative decision-making process. Courts have required Congress to oversee executive branch decision-making through clear legislation, and required the President to reasonably interpret authorizing legislation and properly implement congressional delegations of power. This muscular judicial review has generally focused on the means of coordinate branch decision-making, avoiding substant...
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