Military Tribunals

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Louis Fisher, “To Have and To Hold: Those in U.S. custody deserve reliable evidence” (PDF, 108KB), Legal Times, March 16, 2009, pp. 38-39. After the 9/11 terrorist attacks, the Bush administration indefinitely detained U.S. citizens and aliens without charging them with crimes, providing legal assistance, or granting a hearing. Their detention depended on confidential information withheld from them. A similar situation occurred in 1948, when Ellen Knauff arrived in the New York Harbor to join her husband’s family. She was taken to Ellis Island and held there for three years. Confidential information supposedly indicated that her admission would be “prejudicial” to the United States. Eventually she was allowed to enter the country after members of Congress, newspapers, and some federal judges protested the government’s policy.

Review of Honor Bound: Inside the Guantanamo Trials (external link), by Kyndra Miller Rotunda (Durham: Carolina Academic Press, 2008), reviewed by Louis Fisher. US Army Captain (now Major) Kyndra Miller Rotunda served several tours as a Judge Advocate General officer, including an assignment in Guantanamo Bay. Among her criticisms of the administration is "giving detainees more rights than the Geneva Conventions require." However, the detainees at Gitmo needed more rights. Unlike prisoners of war, they were subject to prosecution and possibly the death sentence. Rotunda compares Gitmo with the more restrictive environment of a prison in Ohio, but prisoners have already been charged, tried, given counsel and procedural safeguards, and convicted. Detainees at Gitmo were held year after year without formal charges or trial.

Louis Fisher, "Military Commissions: Problems of Authority and Practice" (PDF, 154KB), 24 Boston U. Int'l L. J. 15 (2006). In deciding to authorize military commissions on November 13, 2001, President George W. Bush relied primarily on the Supreme Court's decision in Ex parte Quirin (1942). A close look at Quirin reveals a process and a decision with so many deficiencies that it should be remembered as a precedent not worth repeating. Other precedents cited by the administration for independent executive authority, including the trial of John Andre in 1780, are also misleading. Allowing military commissions to operate on the exclusive or "inherent" authority of the President poses a serious threat to basic constitutional principles, including the war prerogatives of Congress, separation of powers, and checks and balances.

Louis Fisher, "Detention and Military Trial of Suspected Terrorists: Stretching Presidential Power" (PDF, 229KB), 2 J. Nat'l Sec. L. & Policy 1 (2006). Although the Bush administration after the 9/11 terrorist attacks claimed independent authority to create military tribunals, Congress under the Constitution has primary responsibility over military courts, tribunals "inferior to the Supreme Court," "Offenses against the Law of Nations," the war power, and "Rules concerning Captures on Land and Water." This article covers the key differences between the German saboteur case of Ex parte Quirin (1942) and the Bush tribunals, the importance of the Non-Detention Act of 1971, and the litigation that challenged the Bush military tribunals, including the Supreme Court decisions of Hamdi v. Rumsfeld (2004) and Hamdan v. Rumsfeld (2006).

For book-length treatments of military tribunals, see Louis Fisher, Nazi Saboteurs on Trial: A Military Tribunal and American Law (Lawrence: University Press of Kansas, 2003) and Louis Fisher, Military Tribunals and Presidential Power: American Revolution to the War on Terrorism (Lawrence: University Press of Kansas, 2005).

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Last Updated: 08/03/2012