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Abstract

On November 13, 2001, President Bush issued a sweeping and highly controversial Military Order for the purpose of creating military commissions with exclusive jurisdiction to try certain designated foreign nationals "for violations of the laws of war and other applicable laws" relevant to any prior or future "acts of international terrorism." The Order reaches far beyond the congressional authorization given the President "to use all necessary and appropriate force," including "use of the United States Armed Forces," against those involved in the September 11th attack "in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. The Order contains no time limit, it is potentially applicable to any acts of international terrorism that have "adverse effects on the U.S., its citizens, national security, foreign policy, or economy," and prosecutions under it can involve war crimes or violations of "other applicable laws." In the Order, the President also declared that "it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts." This statement defies logic since its validity must be tested contextually, yet it was made before the creation of any military commission for trial of any particular persons and before any particular rules of evidence had been devised by the Secretary of Defense. In addition, it purports to apply to every future military commission created under the Order regardless of its location or time of creation or other relevant circumstances.

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