Originally published 03/28/2013
Jill Lepore, a staff writer, has been contributing to The New Yorker since 2005.On November 13, 2001, George W. Bush, acting as President and Commander-in-Chief, signed a military order concerning the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.” Under its provisions, suspected terrorists who are not citizens of the United States were to be “detained at an appropriate location designated by the Secretary of Defense.” If brought to trial, they were to be tried and sentenced by a military commission. No member of the commission need be a lawyer. The ordinary rules of military law would not apply. Nor would the laws of war. Nor, in any conventional sense, would the laws of the United States. In the language of the order, “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.”
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