Military Tribunals and Legal Culture: What a Difference Sixty Years Makes
Goldsmith, Jack L., Sunstein, Cass R., Constitutional Commentary
President Bush's Military Order of November 13, 2001 established a legal framework to enable military commissions to try terrorists associated with the attacks of September 11, 2001 on Washington, DC, and New York City. (1) This Military Order was greeted with impassioned criticism in the press, the legal academy, and Congress. But it hardly lacked precedent. Sixty years earlier, in the midst of World War II, President Franklin Delano Roosevelt (FDR) established a Military Commission to try eight Nazi agents who had covertly entered the United States to commit acts of sabotage and terrorism. Although the Nazis failed in their mission, their aims were similar to those of the 9/11 terrorists. And yet Roosevelt's creation of the Commission, and the subsequent secret trial of the Nazi saboteurs, received widespread praise from the same institutions that protested Bush's action.
Our purpose here is not to investigate, except in passing, issues of law and policy. (2) We instead explore three other questions: What explains the dramatically different reactions? What lessons do the different reactions offer about changes, over time, in the legal culture and in culture in general? What lessons do they offer about the evolution of protections for civil liberties in general and during wartime in particular?
The most tempting, and common, explanation for the different reactions is that there is a significant difference in law--that President Roosevelt's Order stands on much firmer legal ground than President Bush's Order. We show that this and related explanations are weak. The different reactions are instead best explained in terms of two large differences between the United States of 1942 and the United States of 2001. In 1942, the nation perceived a far greater threat to its own survival; for this reason Americans were far less solicitous of the interests of defendants thought to have participated in a war effort against the United States. But this explanation is inadequate by itself. It must be supplemented with an understanding of the large-scale, post-1960s shift in American attitudes, involving decreased trust of executive and military authority, and a strengthened commitment to individual rights in the legal system and broader culture. Our general claim is that with respect to these issues, the legal culture is fundamentally different from what it was before, so much so that many previous practices are barely recognizable. We use the different reactions to the Bush and Roosevelt Military Orders as a way of obtaining a window on this shift.
After making out these claims, we conclude with some general reflections on the evolution of civil liberties protections during wartime. In particular, we identify a mechanism behind the trend toward greater protection for civil liberties during wartime, namely: A judgment, in hindsight, that past civil liberty intrusions were unnecessary or excessive. We also suggest that this trend is, in a way, an accident of America's distinctive history.
I. THE NAZI SABOTEURS AND THE REACTION TO ROOSEVELT'S ORDER
On June 12, 1942, six months after Hitler declared war against the United States, four Nazi agents who had traveled by submarine from France landed in darkness on a beach in Long Island, New York. (3) A few days later, four more Nazi agents landed on the north Atlantic coast of Florida. The eight men had all lived in America before returning to Germany after Hitler rose to power; two of them, Herbert Haupt and Ernest Burger, were naturalized American citizens. (4) The saboteurs' mission was the brainchild of Hitler himself, who wanted to cripple U.S. military production capacities and demoralize the American civilian population. Their task was to blow up aluminum plants, railroad lines, canal locks, hydroelectric plants, and bridges. They also had plans for "nuisance bombings" of railroad terminals and Jewish-owned department stores. …