In the Name of Necessity: Military Tribunals and the Loss of American Civil Liberties (review)

With the renewal of the Patriot Act, detainees being held in secret by the Central Intelligence Agency, the president reinterpreting the provisions of the Geneva Convention, and Congress approving rules that will deny habeas corpus, Marouf Hasian Jr.’s work, In the Name of Necessity: Military Tribunals and the Loss of American Civil Liberties, is a timely and thoughtful analysis. Hasian demonstrates how the concept of “necessity” is socially constructed as part of our national narrative by examining six historic cases: Major Andre during the Revolutionary War, the 1862 U.S.-Dakota tribunal that sentenced hundreds and executed dozens of Sioux, Ex Parte Milligan and Major Wirz following the Civil War, Ex Parte Quirin during World War II, and General Yamashita following World War II.

Hasian’s work offers a unique perspective on military tribunals because he frames “necessity” as a rhetorical construct used to deny due process and to suspend habeas corpus. His ideographic analysis enables his reader to understand how the concept of necessity works in both synchronic and diachronic rhetorical communities; each case study responds to particular contemporary rhetorical exigencies but can also be observed in the discourse of the day about terrorism and trying political prisoners. Invoking necessity makes necessity a material reality at the time of its use, just as it also creates a precedent for the future.

Hasian contends that two narratives regarding necessity exist in United States history: “tory” and “whig.” According to the tory version of necessity, society often is faced with times of crisis in which political and military leaders should be given broad discretion to act in the best interest of the public. The whig version of necessity, on the other hand, maintains that society rarely is confronted with such crises and locates the control over those times in the democratically elected legislature and the people themselves. In the case studies provided, the tory arguments favor military tribunals, whereas the whig arguments oppose them.

Throughout the book Hasian presents often neglected historical evidence to show how the outcome of the tribunal was a reflection of choices made within that particular rhetorical culture and its biases in one direction or the other. A large portion of this work is devoted to what some might call revisionist history; others might say that Hasian complicates the dominant cultural memory by infusing historical evidence into the discursive memory about the event. Regardless, the author effectively demonstrates the impact of rhetorical culture on the outcomes of tribunals. For example, Hasian considers how collective memory and current institutional rhetoric remembers Major Andre as a spy, tried according to military law. Yet Andre’s contemporaries contested many aspects of the context surrounding the proceedings, including the power of the American “volunteers” to capture Andre, the classification of Andre as a spy, the ability to capture someone in neutral territory, the legality of the president’s tribunal, and the misapplication of military law.

Hasian continues recontextualizing landmark military tribunals by considering the ways in which society selects to remember, and therefore forgets, historical events. For example, he examines the legality of the Dakota tribunals and the discursive constructions of Native Americans in the 1800s. His consideration of Indians from the rhetorical perspective of “other” demonstrates how Indians were crafted discursively as subalterns, removed from their territories, and relegated to small reservations on the basis of “necessity.” We remember the white population as being united against the “Indian threat” and convinced of the fairness of the trails, while forgetting contemporary critics of the tribunals and the questionable evidence allowed.

Two chapters of this work consider the Supreme Court decisions most cited regarding the role of the president in the creation of military tribunals. Hasain shows how the Supreme Court placed Ex Parte Milligan within the whiggish narrative of the founders’ fear of military abuse by political leaders. Ex Parte Quirin, on the other hand, adopted a tory narrative, constructing...