Book Review - Extraordinary Justice: Military Tribunals in Historical and International Context

Extraordinary Justice: Military Tribunals in Historical and International Context

Written by: Peter Judson Richards,

New York University Press, New York, 2007,

ISBN: 9780814775912, 272 pp.

Reviewed by: Wing Commander Terence O’Connor

Against the background of the ongoing Guantanamo Bay controversy, the time is right for a book that presents a balanced analysis of the history and current utility of Military Tribunals and Military Commissions. Extraordinary Justice: Military Tribunals in Historical and International Context by Peter Judson Richards is not that book. Regrettably, Extraordinary Justice is nothing more than a deeply flawed attempt to justify the continued use of the Military Tribunals and Commissions in the face of twenty-first century jurisprudence.

The author’s fundamental thesis is that in times of war and civil emergency, the normal civilian courts of justice are either inadequate or incompetent to deal with the transgressions of so-called unlawful combatants, sundry conspirators and traitors, and other civilians who allegedly breach the rules of war. In short, in such times of emergency, the ordinary civilian courts cannot be trusted and the Executive (often in the guise of military commanders) should retain exclusive control of the adjudication of these complex legal issues by means of the establishment of ad-hoc military commissions. The author asserts that ‘the nature of the wartime adjudicative enterprise, as a matter of international political and military import, requires a different set of skills and expertise than are available to most lawyers’. This is an untenable proposition.

The author argues that in times of great civil calamity, for instance the American Civil War, the ordinary civilian courts (as opposed to extraordinary military courts) were overwhelmed and could not cope. This historical hypothesis is less than compelling. Indeed, it was the United States Supreme Court itself in the Post-Civil War Reconstruction period that handed down the landmark Milligan decision in which it said:

[T]he Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.

In contradistinction to the Supreme Court, the author advances the proposition that all power during such times of emergency should reside in the Executive whom, on the basis of military necessity (whatever that means) will suspend habeas corpus and other fundamental instruments of civil liberty it deems fit; and that dissenters will be dealt with by ‘extraordinary’ courts set up by the Executive, which will administer justice expeditiously and perhaps imperfectly but in ways that enhance the security of the nation. It is the perennial ‘desperate times call for desperate measures’ argument predicated upon the belief that the ordinary organs of government that operate so effectively in peacetime are deemed inappropriate in wartime.

The author also demonstrates an incomplete appreciation of the concept of the rule of law especially when he says ‘the institutions and safeguards represented under the rubric, the rule of law, are not self-sustaining or impervious to the destructive forces of war’. The rule of law is much more than simply a set of institutions and safeguards; it is the concept that the law applies equally to everyone, including the Executive, during times of war and civil emergency, and the corollary of that proposition is the doctrine of the separation of powers that is the cornerstone of the United States Constitution as well as the Constitution of Australia. Under this doctrine it is indeed the judiciary—that is, the ordinary civilian courts, that are the guardians of the rule of law, a role recently demonstrated by the US Supreme Court in the Hamden case which declared illegal the military commissions created by the Bush administration for dealing with the detainees at Guantánamo Bay.

The author by implication rejects the possibility of a third option. The condemnation of the Bush military commissions not only by the US Supreme Court but by many jurists worldwide was not because they were military in nature or ad-hoc in form, but that they failed to reach the benchmark of what in the twenty-first century is regarded as guaranteeing a fair trial—the provisions of the United Nations Charter on Civil and Political Rights. That is why it is nonsense for the author to suggest that in the twenty-first century any Tribunal endowed with legal coercive powers and functions but falling short of those standards can claim legitimacy.