How do courts balance their duty to show deference to the executive and their duty to decide on the legality of the executive's actions? This paper explores this issue by comparing two terrorism cases: the United States' case Al-Marri v. Pucciarelli, and the UK Belmarsh case. It is seen that the fluctuation of the levels of deference to the executive by courts cannot only be explained by the letter of the law, discourse must be examined as well. The discourses of the "war on terror" and "the separation of powers" help explain the US courts' decisions as well as show the weakness of the these courts' ability to protect human rights in relation to the UK court.