Military Tribunals and Presidential Power: American Revolution to the War on Terrorism (review)

This book is a disappointment. Author Louis Fisher's views are so colored by his belief that President Bush's creation of military commissions to try al Qaeda terrorists is an abuse of presidential power that he fails to present a fair and balanced history of military tribunals. This is unfortunate, since the book brings together much valuable information, and Fisher, an accomplished author with more than a dozen books to his credit, tells an interesting story.

As the title suggests, the focus of Military Tribunals and Presidential Power is on executive branch military courts, as opposed to those (i.e., courts-martial) established by the Congress. The book's theme is that "military tribunals in U.S. history have generally been hostile to civil liberties, procedural due process, and elementary standards of justice" (p. xi). Military tribunals also are bad because they are executive branch attempts to undermine legislative and judicial checks; they "represent an unwise and ill-conceived concentration of power in the executive branch" (p. 255). There is no doubt that some military tribunals convened to prosecute war crimes have been flawed; Fisher shows that the military commission convened by President Roosevelt to try Nazi saboteurs in 1942 had serious procedural flaws, as did the military courts that tried Generals Yamashita and Homma in 1945 and 1946. The last 90 pages of Military Tribunals harshly criticize President Bush's Military Order of 13 November 2001, and argue that using military tribunals to try terrorists is yet another abuse of presidential power that threatens individual rights and liberties. Some of Fisher's points are well taken; the Guantanamo military commission process certainly has been less than perfect.

Unfortunately, Military Tribunals muddies the waters at the outset by insisting that military tribunals and military commissions are synonyms (p. xiii). Fisher further confuses the issue by talking about military justice when discussing military commissions—when military justice means courts-martial established by Congress. This failure to carefully distinguish between the different types of military tribunals only serves to confuse rather than clarify the place of military commissions in American legal history.

Courts-martial, provost courts, courts of inquiry, and military commissions—these are all military tribunals. Courts-martial, which exist in their present form under the Uniform Code of Military Justice enacted by the Congress in 1950, are courts for "doing justice" (although they also promote "discipline"). Provost courts are military-run courts in occupied territory and exist to handle general crimes committed by civilians; they were last used in occupied Germany and Japan in the aftermath of World War II. Courts of inquiry, although rarely used (a recent example was the Navy's use of such a court to inquire into the facts and circumstances surrounding an American submarine's fatal collision with the Japanese research vessel Ehime Maru off the coast of Hawaii in 2001) are also military tribunals. The last type of tribunal, the military commission, is a court of extraordinarily narrow jurisdiction—it exists only during war and is designed to try enemy soldiers and unlawful combatants who violate the law of war.

The chief shortcoming of Military Tribunals is that it insists that, unless authorized by Congress under its Article I powers, military commissions are both unconstitutional and unnecessary. This is simply untrue; in enacting the Uniform Code of Military Justice in 1950, the Congress itself recognized that courts-martial might coexist with other military tribunals, including military commissions. And it implicitly recognized—as has the Supreme Court—that the Commander in Chief and his military commander subordinates have the authority to convene military commissions. The book also fails to acknowledge that, despite their flaws (at least when measured against U.S. civilian courts), past military commissions have been both appropriate and necessary. A careful examination of American legal history—most notably the 900...