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

Vol. 15 No.9 (September 2005), pp.834-842

MILITARY TRIBUNALS AND PRESIDENTIAL POWER: AMERICAN REVOLUTION TO THE WAR ON TERRORISM, by Louis Fisher. Lawrence, Kansas: University Press of Kansas, 2005. 296pp. Cloth $35.00. ISBN 0-7006-1375-7. Paper. $16.95. ISBN 0-7006-1376-5.

Reviewed by Craig Hanyan, Professor Emeritus, Brock University, St. Catharines, Ontario, Canada. Email: chanyan [at] brocku.ca

In a 1986 judgment, the Court of Military Appeals “emphasized that ‘Command influence is the mortal enemy of military justice’” (Everett 2001, at 26). “Unlawful command influence” by superior officers has concerned American military jurists acting under the evolving Uniform Code of Military Justice that Congress established on 5 May 1950. Yet ultimate control lies with other than uniformed Americans. Article II, Section 2 of the United States Constitution specifies that the president shall command the armed forces of the country. Given civilian leadership, and the power of Congress to define law by statute, restraints on inappropriate command influence in military justice should both reach to and extend from the very top.

Louis Fisher, surveying the development of military justice, nevertheless warns us that “unchecked executive power always poses a threat to individual rights and liberties” (p.xii). A specialist in the separation of powers in the Research Service of the Library of Congress, Fisher has contributed to an understanding of the growing authority of the U.S. president. Recently (2000; 2004), he tracked the diminution of legislative fiscal power and the increasing power of the executive to lead the nation into armed conflict. In MILITARY TRIBUNALS AND PRESIDENTIAL POWER, he focuses not so much on courts-martial as on the military tribunals and commissions that are less firmly governed by federal law and by the codes of military justice that the Congress has created. Fisher finds that these tribunals, which, with the Civil War, became consistently distinct from courts-martial, have served as vehicles for military and presidential encroachment on the equitable rights of both civilian Americans and of foes of the United States. Cloaked by the war powers of the executive, this encroachment has been most visible during times of national stress. He presents his case by exploring the function of the tribunals, the response of the judiciary to the issue of their operations, and the political setting of both of these facets of the problem.

More than one-third of MILITARY TRIBUNALS AND PRESIDENTIAL POWER concentrates on legal developments that followed the attacks of 11 September 2001. He begins earlier. Chapters on the “Law of War” and “American Precedents” establish the nature of military justice of the antebellum republic. The founders of the republic committed the nation to legislatively created martial law. They denied that the nation had endowed the executive commander-in-chief with monarchical power to make law for the [*835] army and navy. Just as Article 1, Section 8, of the Constitution gave Congress the power to declare war, it also gave the legislature the power “to define . . . Offences against the Law of Nations.” Earlier, in that spirit, George Washington had looked to the Congress to revise Continental military regulations, and he believed that state laws, where they existed, should address the misdeeds of civilians who trafficked with the enemy. Winfield Scott assumed a similar legal posture. During the Mexican War General Scott faced the problem of disciplining disorderly American volunteers and errant Mexicans. In vain, he sought federal legislation that would update and improve the 1806 statutory Articles of War but was obliged to impose rules of his own. Doing that, he distinguished between tribunals, which enforced those rules, and courts-martial that sat on cases addressed by the Articles of War. Subsequently, the Supreme Court agreed with Scott’s judgment. It gave ample warning that neither the military nor the president could presume to create courts of standing outside of the United States. That power lay with Congress. There were exceptions to Congressional control in the antebellum republic. Fisher explores Andrew Jackson’s maintenance of martial law in New Orleans after the battle that saved the city and then Jackson’s role in the trial, and more to the point, the execution of Alexander Arbuthnot and Robert Ambrister. Such exceptions merely “left a shadow of illegitimacy over executive power” (p.40).

Fisher traces the next phases of development through his chapters on “The Civil War” and “Codes of Modern Warfare.” At the beginning of the struggle to save the Union Lincoln moved gingerly to suspend the writ of habeas corpus and sought Congressional approval for this emergency measure. Congress approved and subsequently gave Lincoln the power to suspend the writ. Meanwhile, military leaders acted under him to set up tribunals to deal with infractions that could not be addressed by courts-martial. At their best, guided by statute, they “emphasized the need for strict procedures” that reflected the procedural rules of courts-martial (pp.48-49). Lincoln overturned tribunal decisions that he found defective or unduly harsh.

Of course, there were abuses during these years: Chief Justice William H. Rehnquist (1998, at 74) has concluded that too often “martial law was the voice of whichever general was in command.” After the murder of Lincoln, military tribunals acted harshly, with less restraint. The trials of Henry Wirz, commandant of the Andersonville prison, and the eight charged with Lincoln’s murder illustrate this shift. Fisher imputes the ultimate responsibility for the hanging of Wirz and of Mary Surratt to President Andrew Johnson: final authority over death or imprisonment rested with him. In 1866, on the other hand, the Supreme Court appeared to offer protection from overreaching military-executive authority. On a petition of habeas corpus, in EX PARTE MILLIGAN, it freed a citizen of Indiana, who had been condemned to hang by a military tribunal even though the civilian [*836] courts were open to try him. Yet the victory for civil jurisdiction had limits. A substantial minority on the Court held that Congress had the right to authorize military commissions when civilian courts were open. Moreover, Congress soon “passed legislation to limit the [Supreme] Court’s jurisdiction to hear cases involving military law” (p.59), and, thirdly, military tribunals sat in the South during Reconstruction. Fisher’s exploration of the history of civil liberty during the Civil War is necessarily less nuanced that of Mark E. Neely, Jr. (1991), but he clearly concurs with Neely’ s judgment that “war and its effect on civil liberties remain a frightening unknown” (p.235).

Thereafter, in “Codes of Modern Warfare” MILITARY TRIBUNALS traces a basically twofold and potentially divergent development. First came General Orders No. 100, the executive order composed largely by Francis Lieber of Columbia College. These orders set guidelines for the Union army. These attempted to humanize conflict without denying military necessity. It has been judged that here “for the first time a government issued instructions to its army relating to its conduct in the field, which purported to be expressive of generally accepted practice, and on which it was in fact based” (Green 1985, at 87). In turn, Lieber’s jus in bello had marked influence on international law. Later, the aging 1806 Articles of War underwent change that pointed in a somewhat different direction. While Lieber stipulated the authority of Congress over this statutory body of military law, he also recognized an international common law of war that fell under executive authority and guided military commissions—tribunals. The revised Articles of War embodied these creatures of executive power in the 1920 National Defense Act, gave them concurrent jurisdiction with courts-martial, and empowered the president to define procedures and, insofar as he deemed practicable, to impose rules of evidence consistent with those that obtained in federal district counts. The looseness meant that those rules could stray from federal rules of evidence and the international standards that Lieber had helped to foster.

This brings us to the chapter on the “Nazi Saboteurs” and to EX PARTE QUIRIN (1942), explored in a previous book by Fisher (2003). In MILITARY TRIBUNALS he early tells us that this World War II development illustrates “the same concentration of power in the executive branch . . . found in . . . the military tribunals authorized by President George W. Bush” (p.61). In 1942, a wartime military tribunal could hush up the fact that the apprehension of the saboteurs had rather less to do with FBI sleuthing than with the fact that one of the Germans had betrayed their mission. Moreover, secrecy and a vigorous application of the death penalty would also deter other spies. President Roosevelt, citing statutory authority and his power as commander in chief, issued a proclamation that denied the Germans access to civilian courts and established a seven-man tribunal to try the men under the “laws of war” rather than the strictly defined procedures of a court martial. The Judge Advocate General would join the Attorney General in prosecution rather than act as reviewer of the case: final review would lie with the President, who had already judged the men unworthy of proceedings in a civil court.

Counsel for the defendants maneuvered the case before the Supreme Court, petitioning for a writ of habeas corpus. The Court did not produce its full [*837] opinion rejecting their plea until after six of the men had been executed. The appellants elaborated on EX PARTE MILLIGAN and, to emphasize the law making power of Congress, cited in U.S. v. HUDSON & GOODWIN (1812), to deny that the law of war, as a species of common law of crimes, could be applied to the defendants: not only had Roosevelt acted contrary to MILLIGAN, he had legislated, creating an offense ex post facto and assuring its application by rigged procedure. Fisher observes that: “Without the proclamation, the maximum penalty for sabotage in time of war could not exceed 30 years. In the case of espionage, the death penalty was not mandatory. Roosevelt’s proclamation allowed the death penalty if two-thirds of the tribunal agreed, even though Article of War 43 required a unanimous vote for a death sentence” (p. 109). The executive had changed the rules drastically.

The Supreme Court denied habeas corpus. By enacting the Articles of War and recognizing jurisdiction of military tribunals, Congress had adopted the species of common law that they were understood to apply. “Unlawful combatants,” such as those not in uniform, were subject to military tribunals, and the case of Milligan, a civilian and a citizen, did not apply. Fisher explores subsequent criticism faulting the proceedings in QUIRIN and concludes that the government wisely retreated. The United States collaborators of the 1942 saboteurs went before the civil courts, and the Roosevelt administration intruded less in the 1945 tribunal that sat in judgment of two German spies who had arrived in 1944.

Fisher concludes that “in other military actions during World War II and in the years immediately following, the U. S. government gave little thought to procedural safeguards or principles of fundamental justice” (p.129). Under “Other World War II Tribunals,” he delves into the period of martial law in Hawaii, where “every violation, from the most serious violent crimes to curfew violations and dog-leash infractions, was prosecuted in military courts with no conformity to normal constitutional requirements of due process” (Scheiber and Scheiber 1990, at 238), mostly before provost courts. He explores the deprivation of the rights of Japanese-Americans, and cases arising during the American occupation of Germany. Here the reader perceives that, once the sense of conflict waned, the judiciary slowly reasserted its authority to restrain executive branch power and defend due process, but not always at the Supreme Court level. Two cases, those of General Tomoyuki Yamashita and the Vietnam war trial of Captain Ernest L. Medina, illustrate another shift—a shift away from command responsibility for atrocities. Also the chapter touches on the D.C. Circuit decision in EISENTRAGER v. FORRESTAL (1949) and the Supreme Court reversal thereof in JOHNSON v. EISENTRAGER (1950), quite relevant to the last third of the book. The lower court held that enemy agents tried and convicted abroad by a military tribunal had a right to a writ of habeas corpus. The Supreme Court disagreed, observing that the lower court decision gave enemy aliens Fifth Amendment rights denied to Americans in service. Fisher notes, however, that “American soldiers tried by court-martial have more procedural [*838] protections than aliens tried by military tribunal” (p.156).

In Chapter 7, “9/11: A Nation at War,” MILITARY TRIBUNALS tracks the proposals set forth by the Bush Administration to deal with aliens who threaten to commit, or who had committed, acts of terror. Changes in the administration’s position came as a result of State Department, Congressional, international, public and professional criticism—and perhaps because an election was in the offing. Bush’s executive order of 13 November 2001 echoed the Roosevelt proclamation of 1942, even though it addressed a much more numerous and less clearly defined population, aliens all, and Attorney General John Ashcroft held that foreign terrorists could not avail themselves of constitutional rights. The American Bar Association, however, observed that many aliens in the United States should have due process protections, and the rules of procedure should be consistent with those laid out in the International Covenant of Civil and Political Rights. The National Association of Criminal Defense Lawyers concluded that the President had legislated penalties, and for ex pos facto infractions, at that. Military lawyers at Guantánamo argued that the lack of a proper appeals process endowed the President with “monarchical powers.” The State Department preferred that the United States honor the Geneva Conventions, particularly the third, which addressed the treatment of prisoners of war and which the administration did not wish to regard as legally binding. Military lawyers, who had been largely brushed aside by the Bush Administration, could have guided the thinking of the Attorney General’s office, in which civilian lawyers toyed with redefining the nature of torture. As it was, “the shoddy quality of the agency legal memos [dealing with torture], combined with their shock effect on the American public and other nations, forced the administration into a retreat” (p.208). Even before the abuses at Abu Ghraib became public, the administration had tightened up tribunal procedures and improved the appeals process. Fisher discusses the abuses and the memoranda after touching on the improvements.

The reader therefore has the abuses fresh in mind when proceeding to the chapter on “Judicial Process against Terrorists.” In spite of the administration’s treatment of military tribunals, we find ourselves in civil court. Here MILITARY TRIBUNALS follows closely the secretive trial of Zacarias Moussaoui, indicted 11 December 2001, but whose objectives eluded precise definition. Fisher traces the extensive give and take between the government and Judge Leonie M. Brinkema, who sought to give the defendant some vestige of the Sixth Amendment right, if not to “a speedy and public trial, then “to be confronted with the witnesses against him,” in this case captured al Qaeda figures who had undergone interrogation.

Moussaoui, an alien, had his days in court. Lousiana-born Yaser Esam Hamdi, captured in Afghanistan and defined as an “enemy combatant,” synonymous with QUIRIN’s, “unlawful combatants,” was denied counsel and failed to find a remedy before the Fourth Circuit. In June 2004 the Supreme Court, eight to one, “rejected the government’s central argument that Hamdi’s detention was quintessentially a [*839] presidential decision not to be reevaluated and second-guessed by the courts” (p.225). Fisher finds that “several of the plurality’s judgments and prescriptions were shallow and contradictory” (p.225). Boiled down, they directed that Hamdi’s status be determined by a neutral arbiter. Hamdi, however, did not go before a military panel or any other executive commission: the government instead released him to Saudi Arabia.

In the case of Jose Padilla, also American-born, the Second Circuit drew on YOUNGSTOWN CO. v. SAWYER. That decision was construed to deny a president’s capacity, without clear statutory authority, to override the Non-Detentions Act of 1971, which had repealed the Emergency Detentions Act of 1950. Although the HAMDI Court displayed deference to QUIRIN, the Second Circuit pointed out that Germans had admitted their status: Padilla had made no such admission. The court had decided in Padilla’s favor, and the case went to the Supreme Court as RUMSFELD v. PADILLA, which, to use Fisher’s verb, “ducked” (p.237). Without giving proper notice to Padilla’s attorney, the government had moved the man from New York to South Carolina. The majority of the court decided that the correct respondent to the habeas corpus petition must be Padilla’s military jailer in South Carolina. Fisher notes that “if anyone was doing forum shopping to gain advantage it was the government, not the petitioner” (p.238).

As the Guantánamo detainees came before the courts, EISENTRAGER was at first held to exclude their right to petition for a writ of habeas corpus. So ruled the D.C. Circuit in AL ODAH v. UNITED STATES in March 2003. The Ninth Circuit disagreed in GHEREBI v. BUSH, handed down in December 2003. The decision deemed it desirable that the government have the power to prevent terrorist attacks, but American legal values denied abusive use of the power over citizens and aliens. In April 2004 the Supreme Court agreed to hear consolidated cases from the D.C. Circuit, and in a 6-3 decision of 28 June 2004 in RASUL v. BUSH ruled that EISENTRAGER did not exclude aliens. The government responded by establishing a Combatant Status Review Tribunal, argued that aliens held outside of the United States should not have constitutional rights, and proceeded to bring those designated as enemy combatants before tribunals. Yet at least “executive judgments and actions were now more open to scrutiny by another branch” (p.252).

Fisher rightly admonishes us that inter armes silent leges “describes the past, [but] it does not deserve to be adopted as a principle of constitutional government” (p.260). He observes that the principle is nevertheless very much with us. Presidents have worked:

a stunning transformation from a republican form of government, characterized by legislative control and a vigorous system of checks and balances, to a system of military tribunals that concentrates power in the executive branch and particularly in the presidency. . . . It is a form of government that the framers would find repugnant. The . . . national security decisions issued by the Supreme Court on June 28, 2004, restored a semblance of judicial supervision, but they represent only a first and halting step in checking presidential power (p. 253). [*840]

A step in the other direction has followed, however, demonstrating the power of the courts to move elsewhere. In HAMDAN v. RUMSFELD, decided 15 July 2005, after MILITARY TRIBUNALS was published, the D.C. Circuit Court of Appeals held that the tribunals were an appropriate expression of executive power: they are fully justified under the Authorization for Use of Military Force (2001), by QUIRIN and IN RE YAMASHITA (1946). Justices A. Raymond Randolph and John G. Roberts, with Senior Judge Stephen F. Williams concurring, rejected Salim Ahmed Hamdan’s appeal to be tried my a court martial, where he would be present to face his accusers. Their decision points to the relevance of another path that should have been explored by Fisher in MILITARY TRIBUNALS. Conceivably, this path had begun with U.S. v. CURTIS-WRIGHT (1936), or indeed, the PRIZE CASES (1863), both omitted here from Fisher’s “Index of Cases (pp.271-273), but the first of which is clearly cited in QUIRIN (317 U.S. 1, 43). In CURTIS-WRIGHT, Justice Sutherland provided a strong statement of the plenary powers of the president in foreign affairs, powers that did not depend on Congressional delegation. This not only enhanced executive authority. It has, over time, pointed toward the diminution of the Charming Betsy canon, which held that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains” (MURRAY v. THE SCHOONER CHARMING BETSY, 6 U.S. [2 CRANCH] 64 [1804], 118). In HAMDAN, the Court of Appeals rejected the conclusion of the District Court that “the 1949 Geneva Convention conferred individual rights enforceable in federal court” (Randolph and Roberts, at 10), Article VI, Clause 2 of the Constitution notwithstanding.

MILITARY TRIBUNALS does not cover the state-level militia jurisprudence of the early republic or the not irrelevant “renditions” that have of late dispatched putatively dangerous individuals to uncomfortable locations abroad, such as the case Maher Arar of Canada. Its coverage is nevertheless focused and detailed, and it should find use in courses dealing with a number of facets of American law. The author’s views, however, along with those of Neal K. Katyal and Laurence H. Tribe (2002), should be weighed against other sources. Lieutenant Colonel John M. Bickers of the Department of Law of the U.S. Military Academy contends that “military commissions offer an advantage over other criminal trials that outweighs all of the other potential benefits: their complete focus on the truth-seeking function.” He observes that “half of the Bill of Rights directly affects trials,” and “often does so in order to advance . . . liberty interests beyond the vital one of ensuring that a trial accurately assesses guilt or innocence” (2003, at 926). Curtis A. Bradley and Jack L. Goldsmith, both of whom have recently served as executive-branch counselors, hold that “although the laws of war inform the boundaries of what the AUMF authorizes, that simply means that as a general matter the AUMF authorizes no more than what the laws of war permit, not that it incorporates law-of-war prohibitions” (2005, at 2097). The work of these three men informed the Court of Appeals in HAMDAN. [*841]

MILTARY TRIBUNALS and the thinking in HAMDAN must be viewed in the context of the “liberty interests” of both American citizens and aliens who might better bring out the truth about themselves when allowed to confront their accusers. Moreover, as the work of Louis Fisher has reminded us, judicial processes are not to be separated from political processes. The development of a judicial ethos that eschews confrontation in the search for truth can contribute to a political ethos that denies citizens the right to confidently confront command authority that can even be fatuous as well as abusive. Finally, MILITARY TRIBUNALS and HAMDAN must also be viewed in the context of the vital rules-based international system fostered by the United States and Great Britain following on the Atlantic Charter of 1941. If one, or indeed, both of the architects of that increasingly important and beneficent system eschew due process and international obligations, including the rules of jus ad bellum, the chaos engendered in Iraq may replace the slow and intellectually responsible effort to foster world order.

REFERENCES:

Everett, Robinson O. 2001. “The 50th Anniversary of the Uniform Code: A Historical Look at Military Justice.” 16 CRIMINAL JUSTICE 21-28.

Bickers, John M. 2003. “Military Commissions are Constitutionally Sound: A Response to Professors Katyal and Tribe.” 34 TEXAS TECH LAW REVIEW 899-932.

Bradley, Curtis A. and Goldsmith, Jack L. 2005. “Congressional Authorization and the War on Terrorism,” 118 HARVARD LAW REVIEW 2047-2034.

Fisher, Louis. 2000. CONGRESSIONAL ABDICATION ON WAR AND SPENDING. College Station, TX: Texas A&M University Press.

Fisher, Louis. 2003. NAZI SABOTEURS ON TRIAL: A MILITARY TRIBUNAL AND AMERICAN LAW. Lawrence, KS: University Press of Kansas.

Fisher, Louis. 2004. PRESIDENTIAL WAR POWER (Revised edition). Lawrence, KS: University Press of Kansas.

Green, Leslie C. 1985. ESSAYS ON THE MODERN LAW OF WAR. Dobbs Ferry, NY: Transnational Publishers.

Kaytal, Neal K. and Tribe, Laurence H. 2002. “Waging War: Deciding Guilt,” 111 YALE LAW JOURNAL 1259-1310.

Neeley, Mark E., Jr. 1991. THE FATE OF LIBERTY: ABRAHAM LINCOLN AND CIVIL LIBERTIES. New York: Oxford University Press.

Rehnquist, William H. 1998. ALL THE LAWS BUT ONE: CIVIL LIBERTIES IN WARTIME. New York: Alfred A. Knopf.

Scheiber, Harry N. and Scheiber, Jane L. 1990. “Constitutional Liberty in World War II: Army Rule and Martial Law in Hawaii, 1941-1946,” 3 WESTERN LEGAL REVIEW 341-378. [*842]

CASE REFERENCES:

AL ODAH v. UNITED STATES, 321 F.3d 1134 (D.C. Cir. 2003).

EISENTRAGER v. FORRESTAL, 174 F.2d 961 (D.C. Cir. 1949).

GHEREBI v. BUSH, 352 F.3d 1278 (9th. Cir. 2003).

HAMDAN, APPELLEE v. RUMSFELD, ET AL., APPELLANTS (D.C. Cir. 2005 No. 04-5393) [http://pacer.cadc.uscourts.gov/docs/common/opinions/200507/04-5393a.pdf].

HAMDI v. RUMSFELD, 124 S.CT. 2633 (2004).

JOHNSON v. EISENTRAGER, 339 U.S. 763 (1950).

MILLIGAN, EX PARTE, 71 U.S. 2 (4 WALL.) 2 (1866).

MURRAY v. THE SCHOONER CHARMING BETSY, 6 U.S. (2 CRANCH) 118 (1804).

PADILLA v. RUMSFELD, 352 F.3d 695 (2d Cir. 2003).

PRIZE CASES, 2 BLACK 635 (1863).

RUMSFELD v. PADILLA, 124 S.CT. 2711 (2004).

RASUL v. BUSH, 124 S.CT 2686 (2004).

QUIRIN, EX PARTE, 317 U.S. 1 (1942).

UNITED STATES v. CURTIS-WRIGHT EXPORT CORP. 299 U.S. 304 (1936).

UNITED STATES v. HUDSON & GOODWIN, 7 CRANCH (11U.S.) 42 (1812).

YAMASHITA, IN RE, 327 U.S. 1 (1946).

YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952).

STATUTES:

Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).

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