Abstract

Over the twenty years since the September 11, 2001 terrorist at-tacks, the Guantánamo military commissions transitioned from exceptional wartime tribunals to regularly constituted courts, defying familiar legal doctrines. This article argues for an imperial turn – both empirical and theoretical – in analyzing the Guantánamo commissions. By comparatively analyzing the emergency military courts of the late British Empire and the U.S. military commissions, I show how the United States ultimately reproduced an imperial model of emergency military courts. Wartime military tribunals and criminal courts represent two well-known models for wartime and terrorism related prosecutions: the armed conflict model and the criminal law model. I argue that emergency military courts represent a third model – emergency powers – a hybrid model between wartime tribunals and criminal courts, and these three models together comprise a new comprehensive framework for the study of military courts. The article analyzes the hybridity of the military commissions as manifested in their territorial, temporal, personal, and organizational features: operating beyond sovereign borders, beyond wartime, over “enemy aliens”, and combining civilian and military institutions. Just like the threats against empire, the “war on terror” transcended sovereign borders, combining the danger of organized violence with fear of a racialized “Other.” Shifting from a state-centered perspective to an imperial one demonstrates the relevance of empire as a transnational category of analysis for contemporary law and security, extending beyond domestic law and sovereign borders.

Keywords: Imperial, Injustice, Guantanamo, Military, Commissions, Tribunal, Courts, Military Courts, Terrorist, Emergency Military Courts, Wartime, Criminal Courts, Prosecutin, Armed Conflict, Sovereign, Enemy Aliens, Civilian, Military Institutions, War, Terror, Transnational, Empire, Security, National, Domestic, War on Terror, Emergency Powers