The dominant story of transboundary environmental impact assessment in international law has the following elements: (1) customary international law prohibits transboundary pollution; (2) according to the classic version of this prohibition, contained in Principle 21 of the 1972 Stockholm Declaration, states must ensure that activities within their territory or under their control do not harm the environment beyond their territory; (3) to ensure that activities within their jurisdiction will not cause transboundary harm, states must assess the potential transboundary effects of the activities; and (4) to that end, states enter into international agreements requiring them to carry out transboundary environmental impact assessment (transboundary EIA) for activities that might cause transboundary harm.

In the wake of the terrorist attacks in the United States on September 11, 2001, a variety of proposals emerged for bringing the perpetrators tojustice. These proposals included the use of courts-martial, the creation of a special tribunal (whether under the auspices of the United Nations or otherwise), and prosecution in U.S. federal courts.1 On November 13, 2001, President George W. Bush issued a military order entitled "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism" (Military Order).2 Pursuant to the Military Order, the United States may establish military commissions to prosecute terrorists for violations of the laws of war and "other applicable laws."

It is now more than an academic question whether one should regard terrorism as crime or as war. The attacks mounted by the Al Qaeda organization on September 11, 2001, were of unprecedented scale, heretofore seen only in wartime, killing three thousand people in a few hours’ time. Most victims were civilians, and most were Americans, yet the dead included people from eighty-seven countries. Had the emergency evacuation of the World Trade Center towers not run efficiently, as many as twenty-five thousand more might have died.

The psychological sense that this was an act of war is founded on the extraordinary destructiveness of the act. In the past, even terrorism has evinced an implicit set of expectations—using violence to intimidate or gain publicity, targeting civilians so as to undermine the confidence placed in organized authority, but generally stopping short of this irrational magnitude of destruction. Only nihilism might seem to explain a scale of wreckage that serves no programmatic demands or political ambition.

In January 2002, Zacarias Moussaoui, a French national of Moroccan descent, pleaded not guilty in Virginia federal court to six counts of conspiring to commit acts of international terrorism in connection with the September 11 attacks on the Pentagon and the World Trade Center. In other times, it would have seemed unremarkable for someone charged with conspiring to murder American citizens and destroy American property on American soil to be tried in a U.S. civilian court. More than two centuries ago, Article I, Section 8, Clause 10 of the United States Constitution granted Congress the power to "define and punish Piracies, Felonies committed on the High Seas, and Offenses against the Law of Nations," a power that Congress immediately exercised by criminalizing piracy, the eighteenth-century version of modern terrorism. Since then, Congress has criminalized numerous other international offenses. In recent decades, United States courts have decided criminal cases convicting international hijackers, terrorists, and drug smugglers, as well as a string of well-publicized civil lawsuits adjudicating gross human rights violations. Most pertinent, federal prosecutors have successfully tried and convicted in U.S. courts numerous members of Al Qaeda, the very terrorist group charged with planning the September 11 attacks, for earlier attacks on the World Trade Center and the U.S. embassies in Tanzania and Kenya.

The Military Order issued on November 13,2001,1 by President George W. Bush does not offer a clear rationale for subjecting international terrorists, and persons suspected of links to them, to trial by military commissions. Military commissions can be designed for several purposes: (1) to prosecute violations of the law of war, as an alternative to courts-martial; (2) to fill a legal vacuum where armed conflict disables the civil courts; and (3) to impose swift and certain punishment against civilians suspected of specific crimes. While the first two purposes are legitimate and reflected in past United States practice, the third is questionable and a sharp departure from democratic traditions. The ambiguous nature of the “war” against international terrorism and the sweeping text of the November 13 Military Order obscure which objective(s) the order is intended to accomplish.

At the time this essay is being written (in mid-February), much is still not known about the system of military commissions contemplated by the president’s Military Order of November 13, 2001, and about the circumstances in which such commissions will be used. For example, it is not yet clear what offenses will be tried, what rules of evidence will be adopted, whether the defendants’ choice of counsel will be restricted, and whether defendants will be able to pursue ajudicial appeal of their conviction or a collateral challenge to their detention. Presumably, these points will be clarified by further orders or regulations from the executive branch.