In 1942, eight Nazi saboteurs were caught on American beaches and executed. The decision was challenged in court but eventually upheld in the Supreme Court's ruling in Ex parte Quirin-a case that has frequently been cited by the George W. Bush administration in support of its declared power to hold "enemy combatants" and try them by military commission. But O'Donnell, a former Supreme Court law clerk, argues that we should be cautious in applying it as precedence, because the process by which it was decided by the Supreme Court was illegitimate.
