Military Tribunals & Presidential Power: American Revolution to the War on Terrorism

One important point to remember about this book is that the author, Louis Fisher, is not a lawyer and the legal history, while very interesting and informative, lacks the nuanced analysis one might expect of a legal scholar. First, he examines a range of cases with very different factual backgrounds (citizens and non-citizens, some held in the United States and some held overseas, some involving Article II and others Article III judges, in time of peace and in time of war, and some held for violations of federal law and others held for violations of international law). Thus, some cases may provide persuasive or controlling precedent for later cases, while some earlier cases might be readily distinguishable. This lack of attention to detail is important because he sometimes argued that the certain principles could be drawn from "comparable" cases when that was not necessarily true. Second, I do not agree with his comments on the Suspension Clause (that the writ can only be suspended by the Congress); this view is based on a structural analysis of the Constitution (i.e., the clause is located in Article I, therefore Congress must hold the sole power to suspend). Here, it would have been helpful if Mr. Fisher had offered the alternative views. Third, the case of the U.S. District Court for Berlin, it would have been helpful to provide a better introduction to the case by explaining the political and legal status of that city at that time under the Four Powers Agreement for some readers who might not understand that interesting "corner" of legal history. Thus, the book could have benefited from a greater articulation of context, separating the cases and analysis in different relevant categories. In any case, this book illustrates important issues in the separation of powers debate.

You may have heard of military courts-martial, which in U.S. practice have evolved into something parallel to other U.S. courts, with independent judges and defense counsel, rules of evidence and procedure, military courts of appeal, and rooted in case law and applicable Constitutional law. The tribunals -- "military commissions" -- were different: an extraordinary and special proceeding with none of those guarantees, and, until 9/11, a freak wartime event last seen in WWII (Mr. Fisher's recent and excellent "Nazi Saboteurs on Trial" addresses one such case). Now the Bush Administration has revived the military commissions and this book is a timely (mid-2005) re-telling of the history and practice of these tribunals. I've written and researched on this topic and find Mr. Fisher's book is possibly the best single volume on the subject. His prose is clear to the layperson, he is brilliant in putting the tribunals in context, and is quick to find parallels in the detention (WWII + post-9/11) case law.(Postscript: the U.S. Supreme Court ruling on Hamdan v. Rumsfeld, June 29, 2006, was directly on point to military commissions and Presidential powers. The book is still very worth reading in light of possible attempts in Congress to address the issue.)