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Book Review
| Peter Judson Richards, Extraordinary Justice: Military Tribunals in Historical and International Context, New York and London: New York University Press, 2007. Pp. 272. $45.00 (ISBN 0-8147-7591-8).
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| The revival of the military commission in the wake of 9/11 has caused a resurgence of interest in its history. The Supreme Court's review of that history in Hamdan v. Rumsfeld shows that a grasp of the past is essential to argumentation about those tribunals' constitutionality and the allocation of power to establish them as between the president and Congress. Each major armed conflict in U.S. history (except Korea and Vietnam) has produced a spate of military commissions. They started with the Revolution, the most cited case being the trial of British major André, caught trying to get in touch with the traitor Benedict Arnold. Invasion of Mexico required extensive use of commissions to maintain order in conquered territory. The Civil War involved several thousand trials mostly of Southerners who conducted un-uniformed guerilla warfare and espionage. It also occasioned a handful of trials of northerners who cooperated in rebel activities, most notoriously Ex parte Milligan. In the wake of that war Union commanders resorted to commissions to suppress the resistance of white Southerners to Reconstruction. In the latter half of the nineteenth century, military commissions tried rebellious American Indians and Filipinos. A few uses of military tribunals in the occupation of the German Rhineland after 1918 were far less significant than their employment after 1945. American courts in Germany had to substitute for German courts in the early days and continued to monopolize the trial of Allied nationals. A program of prosecuting war criminals and other authors of atrocities involved several thousand cases though it was terminated quite prematurely. Military commissions also handled war crimes committed by the Japanese, mostly abuses of prisoners of war. |
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Richards's book covers all of these episodes except for the Spanish American war usage. He adds two interesting chapters on other countries' experiences with military courts: their use by the British in breaking the resistance of the Boers (1899–1902) and by the French in handling breaches of the laws of war by the Kaiser's invading armies in 1914. Neither appears in the prior American literature. His coverage is in each case not as extensive as a treatment in some other volume. For example, he devotes one paragraph (42) to the trial of the alleged accomplices of John Wilkes Booth in the murder of Abraham Lincoln. One can choose between several books dedicated to this case alone. A bit more space (105–10) is devoted to Ex parte Quirin, the case of the Nazi saboteurs who landed on American beaches by U-boats. |
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What conclusions does the author derive from this survey? Unlike some authors who find a "putrid heritage" leading up to the present commission system, Richards concludes that commissions compare favorably with international courts and civilian courts in dealing with the crimes of terrorism. In approving of the new use of military commissions he fully accepts the designation by the Bush administration of the deeds of 9/11 and other al Qaeda actions as constituting acts of war (139). One can concur in the need for military commissions in certain contexts. Who else could have tried Japanese prison camp personnel who killed and tortured American P.O.W.s on Kwajalein Atoll? The great strength of military courts is their ability to act at the scene of the crime and do so speedily—virtues that do not belong to the courts that some time in 2008 may begin to try persons detained since 2002. Richards agrees with the particulars of the Bush program—the long-term detention of terror suspects, the changing the evidence rules to allow greater secrecy, and the denial of habeas corpus to alien defendants and detainees. He sees no serious problems with such obstacles as the constitutional prohibition on the suspension of the writ and the constitutional assurance of equal protection to aliens. |
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The author fails to grapple with one historical issue: the military commissions of the past, with the exception of the war crimes tribunal in the Far East, have used the procedures specified for regular courts martial. This meant that protections for the accused have improved with the successive rounds of legislation (1920, 1950, and 1968) aimed at reform of the regular military justice system. It was the attempt to create new and idiosyncratic rules for the post 9/11 commissions that led to protracted litigation that in turn led to extraordinary delays in actually taking up cases. Since the author has been an active participant in trials under the Uniform Code of Military Justice one might have expected him to resist the downgrading of procedures involved in the present rules; many former Judge Advocates—including this reviewer—have decried this move. |
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| Detlev Vagts
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| Harvard Law School |
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