Eugene R. Fidell: The Trouble With Tribunals

Roundup: Historians' Take

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

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....

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.

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