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Abstract

Three years after an attack that traumatized the nation and prompted massive military and law-enforcement counter-measures, we continue to wrestle with the central dilemma of the rule of law. Which is more to be feared - the danger of unchecked executive and military power, or the danger of terrorist attacks that only an unconstrained executive could prevent? Posed in varying configurations, the question has already generated extensive litigation since September 11, 2001, and a dozen major appellate rulings. Last Term's Supreme Court trilogy - Rasul v. Bush, Hamdi v. Rumsfeld and Rumsfeld v. Padilla - clarified several important points but deferred decision on most of the significant issues. Ever cautious and understandably daunted, the Court avoided grappling in any final way with the underlying problem of reconciling the benefits and dangers of constraints on executive power. The problem, of course, is inherent in government itself. But in a national emergency it arises in less familiar settings, with much higher stakes and more difficult choices that will bedevil us, in changing forms, as long as the "war on terrorism" continues. Part I of this Article summarizes recent Administration assertionsof executive detention power and the arguments advanced in support of them. Part II briefly outlines the history of executive detention in previous American wars and the often-overlooked pattern of judicial insistence on preserving rule-of-law norms. Part III examines British and Israeli efforts to reconcile those norms with a persistent terrorist threat.The conclusions, summarized in Part IV, indicate that in both Britain and Israel, executive and military authorities claimed extraordinary powers and sought to dilute normal judicial checks. In both nations, such measures provoked controversy, and other branches reined them in to some extent. In these respects the foreign experience mirrors that of the United States over the past three years.