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The Trouble With Tribunals—A Commentary by Eugene R. Fidell

The following commentary was published in The New York Times on June 13, 2009.

The Trouble With Tribunals
By Eugene R. Fidell

In a Manhattan courtroom last week, the first Guantánamo detainee to face a trial in a civilian court pleaded not guilty. President Obama has indicated that other terrorism cases will likewise be tried in the federal courts, but that does not necessarily spell the end for military commissions. In a speech at the National Archives in May, he confirmed that the commission system won’t be abolished, merely revised.

Whether his proposed changes will substantially improve the military commissions and increase public confidence in the commissions’ administration of justice will be the subject of debate in the coming months and years. There is, however, a more fundamental question: the president’s assertion that military commissions have long played a respectable role in American legal history.

The history is more ambiguous than many have assumed, and is not one of which we have much reason to be proud. Let’s consider the high points typically cited.

A board of general officers conducted an inquiry into the spying case of Maj. John André, a British officer, in 1780. Whether that board or the one convened in another Revolutionary War spying case constituted a military commission is open to doubt. At the time, of course, the country was an actual battleground and there were not yet any civilian federal courts. But these inquiries were isolated events and hardly a solid starting point for an entire system of justice.

Fast forward more than half a century to the Mexican-American War. Gen. Winfield Scott, who commanded the American contingent in southern Mexico, found his forces in a partial legal vacuum, as the Articles of War — the Army predecessor of the Uniform Code of Military Justice — did not cover non-military offenses. He had no alternative but to create a system of military commissions to try both American soldiers and enemy civilians.

Congress did not even acknowledge Scott’s system until 1862, when it did so backhandedly: the legislation dealing with the position of judge advocate general simply noted his duty to review military commission cases.

During the Civil War and Reconstruction, military commissions were used in a variety of settings. Famously, the Supreme Court forbade their use in states that had not seceded and in which the courts were open. In the South, however, civilian courts were closed or could not be relied on to prosecute offenders against the Union.

A commission was actually convened to try the conspirators in the Lincoln assassination. Why? The Civil War was for all practical purposes over by then and it was almost certainly the wrong impulse not to trust the District of Columbia’s courts.

Military commissions were occasionally used during the so-called Indian wars. An 1862 commission trial after a Sioux uprising in Minnesota led to the largest mass hanging in American history, even after Abraham Lincoln spared a number of those who had been condemned. Is the genocidal war our country waged against the original inhabitants a chapter of which we are proud?

We used military commissions in the aftermath of the Spanish-American War. But our efforts to suppress the Philippine insurrection of 1898 were brutal and in service of a blatantly imperialistic cause; and whether these commissions were conducted fairly or not, the setting is not one to be held out as a model for the 21st century. At least those commissions were conducted in the field — unlike the Guantánamo commissions.

Many Americans have heard of the military commission that convened in 1942 to try eight German saboteurs. But few are aware that a major reason the case was tried by commission rather than in the federal courts was that federal law at the time did not prescribe harsh enough penalties for what they had attempted to do. That is obviously not so today, thanks to the Patriot Act and other legislation passed since World War II.

In its review of the saboteurs’ case, Ex parte Quirin, the Supreme Court did sustain the military commission’s jurisdiction — but, in a discomfiting move, did not even release its legal reasoning until months after six of the Germans had been electrocuted. Though the ruling was unanimous, Justice Felix Frankfurter declared that Quirin was “not a happy precedent.”

Other commissions were held in the aftermath of World War II. Gen. Tomoyuki Yamashita, the Japanese commander in Manila, was hanged after an appallingly unfair military commission trial. Here again, at least his case was held overseas, not in territory over which the United States had full power to use its regular courts.

In 1950, Congress passed the Uniform Code of Military Justice, which substantially upgraded the military justice system and reduced the disparities among the disciplinary laws governing the various branches of the armed forces. From 1951, when the code took effect, until 2001, when President George W. Bush set the stage for the Guantánamo tribunals, we did perfectly well without military commissions, despite numerous armed conflicts, large and small — and despite a growing engagement with terrorism.

This is not to say that no military commission has ever been conducted fairly or in a worthy cause. At times the commissions’ work has been acceptable, especially when they applied general court-martial standards. Nonetheless, the history of our military commissions brings little credit on our country. We should not invoke that history without recognizing the combination of doubtful goals and missed opportunities to use other forums. The coming new-and-improved model of military commissions — our third effort in less than a decade — is unlikely to inspire confidence here or abroad in our administration of justice.

There is a second point to be made concerning President Obama’s recent speech. At no point did he give a detailed explanation of why military commissions had to be used rather than the federal district courts, or why some detainees will have full procedural safeguards in federal court while others will be afforded fewer rights before a military commission.

This is not a matter to be addressed generically. Rather, it is incumbent on the administration to state why any particular case cannot be tried in the federal courts. Those courts are open, and have demonstrated that they can try terrorists in ways that bring honor on our country and fully respect our legal values.

The issue is not whether it is easier or more convenient to use military commissions, but whether the conduct sought to be punished is literally outside the complex web of criminal provisions Congress has enacted over the years, including the Patriot Act.

President Obama justifiably reminded his audience at the National Archives that the last administration left the country with a terrible, and terribly complicated, legal mess. His personal commitment to the rule of law cannot be doubted. Nonetheless, unless his administration explains why specific cases cannot be prosecuted in the federal courts, it will have done no better than its predecessor on a pivotal threshold issue.

Eugene R. Fidell teaches military law at Yale Law School.