ABSTRACT
This chapter summarizes the events of September 11 and then discusses the November 13 Military Order. It examines the historical precedent for convening military commissions to prosecute war crimes, and it also considers the various arguments supporting the president's Military Order. The chapter describes the unique factual background and holding of Ex parte Quirin, and then analyzes the applicability of this opinion to the acts of September 11. It discusses the inapplicability of the laws of war to terrorist organizations and the Bush administration's attempt to bring about a sudden change in existing customary international law. The chapter considers the policy implications of using military commissions, as well as the administration's desired change in customary international law. Justice Stone's opinion in Quinn seems to contemplate the president's authority to punish violations of the law of war through military commissions, even in the absence of an express declaration of war by Congress.
