American Military Tribunals & Presidential Power: American Revolution to the War on Terror (review)

When President George W. Bush issued, on November 12, 2001, a "military order" authorizing the use of military tribunals to try non-citizens who provided assistance to terrorists, hardly anyone knew what he was talking about. Even officers in the Army's Judge Advocate General's Corps had to read an obscure twenty-year-old article by this reviewer in order to learn something about a type of court that this country had not seen for half a century. No longer unknown, military tribunals have sparked scholarly debate and public controversy. The Supreme Court even granted certiorari in a case, Hamdan v. Rumsfield, challenging their legality.

For anyone wanting to understand the current controversy, Fisher's Military Tribunals and Presidential Power is must reading. Fisher is the author of Nazi Saboteurs on Trial (Lawrence, 2003), an excellent short history of Ex parte Quirin, the 1942 case in which the Supreme Court handed down by far the most important decision on this subject. As Fisher and others have established, Quirin is a thoroughly disreputable precedent, the product of a judicial process hopelessly corrupted by wartime emotions. Yet it remains the controlling precedent in this area of the law.

Fisher devotes one long chapter of Military Tribunals and Presidential Power to summarizing his earlier assault on Quirin. This newer book, however, also offers a complete history of American military tribunals from colonial times to the disputes that followed the issuance of Bush's military order. It is by far the best available survey of the whole subject.

If that were all it was, this would be a terrific book. Fisher, however, has a broader purpose than simply chronicling the evolution of American military tribunals. "[M]y principal concern," he writes, "is the breadth of presidential power in time of war, at the cost of legislative and judicial control" (xii). Hence, he extends his coverage to other actions by presidents for which military justifications have been offered to augment political power, including the imposition of martial law in Hawaii and the forcible removal of the Japanese Americans from the West coast during World War II. Fisher also offers lengthy discussions of the post-9/11 cases of Zacarias Moussaoui, Yaser Esam Hamdi, Jose Padilla, and the Guantanamo Bay detainees, none of which involved military tribunals. These other topics are interesting, and Fisher, whose scholarship on military tribunals is outstanding, has done an impressive job of researching them as well. Unfortunately, what he has written reads more like two books pasted together than like one coherent monograph.

Fisher has sacrificed coherence to hammer home a point: The Constitution empowers Congress, not the president, to be the dominant branch so far as the law governing the military is concerned. Military tribunals are obnoxious to him because they "represent an unwise and ill-conceived concentration of power in the executive branch" (255). Bush's efforts to keep the judiciary from intervening in the Hamdi, Padilla, and Guantanimo detainee cases represent the same impropriety. Fisher's militant endorsement of legislative supremacy is hardly surprising; he is, after all, an employee of the Legislative Reference Service of the Library of Congress. Whatever his motivation, Fisher makes a damning case against military tribunals. Any judge familiar with this book could only have voted in Hamdan v. Rumsfield to condemn them.