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24 Wash. U. Global Stud. L. Rev. 1 (2024-2025)

handle is hein.journals/wasglo24 and id is 1 raw text is: Imperial Injustice: On the Imperial Features of the Guantanamo Military Commissions' Smadar Ben-Natan Abstract .......................................................................................................1 I. Introduction ...................................................................................... . 3 II. Emergency Powers and Military Courts in the British Empire.....8 III. The Imperial Features of Emergency Powers..................................12 IV. The U.S. Military Commissions: From War to Emergency .......22 A . Pre-9/11 H istory ................................................................ . 22 B. The Post-9/11 Transformation ................................................26 C. From Wartime Tribunals to Emergency Courts ............... 30 V . C onclusion .................................................................................. . 36 ABSTRACT Over the twenty years since the September 11, 2001 terrorist attacks, the GuantAnamo 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 GuantAnamo commissions. By compara- tively analyzing the emergency military courts of the late British Empire and the U.S. military commissions, I show how the United States ulti- mately 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 emer- gency 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 1 The author wishes to thank numerous colleagues whose comments contributed greatly to this article, including participants in the Institute for Global Law and Policy Global Scholars Academy, 2021, the Sacramento State University Law School workshop, 2021, The Law & Society Annual Meeting 2022; and the Law, Societies and Justice workshare at the University of Washington, 2022. I especially thank Danial Bessner, Omar Dajani, Irit Ballas, Vasuki Nasiyah, and Christopher Gevers. 1

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