When President George W. Bush issued a military order in 2001 authorizing the use of military tribunals to try detainees deemed "enemy combatants," he turned to a procedure that had not been used since WWII. Although the administration argues that historical precedents support the use of military tribunals, Louis Fisher asserts in Military Tribunals and Presidential Power that the Constitution does not give the executive branch the sole power to create such tribunals nor do precedents justify turning to them when the civil courts are functioning.

Speaking at a discussion organized by the Division of U.S. Studies, Dr. Fisher noted that President George Washington considered military tribunals to be illegitimate when civil courts were available. The Supreme Court, speaking at the time of the Civil War, validated that view (Ex parte Milligan, 1864). During the Mexican-American war, when General Winfield Scott was unable to utilize the Mexican court system to deal with infractions committed by American volunteers on Mexican soil and instead created military tribunals, he specifically acknowledged the ultimate authority of Congress over them. That, Fisher said, was appropriate, because Scott recognized that the power to create judicial bodies lies with the legislature.

The Bush administration has relied heavily on the precedent of Ex parte Quirin (1942). When eight German spies on a sabotage mission were apprehended in the United States, President Franklin D. Roosevelt quickly created a military tribunal to try them and the Supreme Court upheld his actions as constitutional. Roosevelt's motives, Fisher found, were suspect. The FBI announced the would-be saboteurs' capture with great fanfare, ignoring the fact that the Bureau caught them only because one of the men turned himself and the others in. FBI Director J. Edgar Hoover was anxious to avoid a civil trial in which the real story would be told. In addition, Roosevelt wanted the men to be given the death penalty (they were); under existing law, a civil court could have passed sentence of no more than a few years. Roosevelt created the tribunal, named its members and both the prosecutors and the defense counsel, and mandated that any appeal from their decision would go directly to him. Fisher noted that by 1945 Roosevelt had second thoughts about disregarding the requirements of due process. When two more German saboteurs were caught, he turned the matter over to the military, instructing it to utilize well-established systems of military justice.

Fisher expressed concern about a similar disregard for separation of powers in the creation of the current tribunals. In peacetime, Congress decides what constitutes a criminal offense, the executive branch enforces the law, and an independent judiciary hears cases under it. That, Fisher declared, is the procedure that the framers meant to have followed in times of war as well.

Eugene Fidell, focusing on the secrecy surrounding the creation and processes of the current tribunals, deplored what he called a "throwback to an era that I thought had been relegated to the history books." None of the orders establishing the tribunals and almost none of the procedures they were instructed to follow were published in the Federal Register for comment by the public. Instead, the media were called in without notice, handed complicated legal documents in an arcane area of law, and invited to ask questions. The National Institute of Military Justice has brought suit under the Freedom of Information Act in an attempt to dispel some of the secrecy but has been largely unsuccessful at obtaining the relevant documents. Fidell was particularly critical of what he labeled Congress' "indefensible" failure to exercise its authority here.

Prior to the issuance of the administration's military order, Jennifer Elsea began to study the legality of using military commissions for those captured in a possible war against al Qaeda and its supporters. The precedents, as noted in Fisher's book, are both inconclusive and controversial. She eventually concluded that executive branch authority to act unilaterally during an emergency situation must come from Congress. An important question is the extent of the power Congress meant to give the president when, after 9/11, it authorized him to conduct a war on terrorism. The danger of inchoate authority regarding, e.g., the definition of enemy combatants, she argued, is that both due process and innocent people are put at risk. Under the definitions currently being used by the administration, Elsea asserted, it is entirely possible that an American who contributes money to a charity, unaware that the U.S. government has deemed the organization to be a terrorist front, can be declared an enemy combatant and subjected to military law. Congress has done nothing to clarify this situation.

Philippa Strum, Director of U.S. Studies (202) 691-4129