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Hastings International and Comparative Law Review

Abstract

On November 13, 2001, President George W. Bush issued a Military Order in which he claimed power as Commander in Chief to detain indefinitely and to try, by ad hoc military commissions, persons designated by him as international terrorists. This Order represents a stunning claim to absolutist power and a rejection of any meaningful legal constraints on the treatment of the captives. The Order and the "War on Terrorism" on which it is premised challenge the most commonly accepted principles of post-Westphalian sovereignty: exclusive control over territory, noninterference, and equality among states.

The legal premise for the Order is the asserted existence of a "state of armed conflict," yet the November 13 Order does not characterize the "armed conflict" on which it rests, and specifies neither its parties nor its duration. The refusal to provide a clear characterization of the "armed conflict" on which the Order is premised appears to be a strategy to escape the application of constraining legal norms and to preserve flexibility to subject persons to the Order without temporal or geographic limits.

This essay will explore what the Order and the Bush Administration's actions pursuant to it reflect about perceptions of sovereignty, the linkage or disconnection between sovereignty and territoriality, and the consequences for the rule of law. Because the treatment of the captives also implicates important international legal norms, the Bush Administration and the international community are engaged in an active dialogue that may ultimately produce important clarifications of contemporary doctrines of sovereignty.

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