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Extraordinary Justice: Military Tribunals in Historical and International Context.

Extraordinary Justice:

Military Tribunals

in Historical and

International Context

Peter Judson Richards

New York University Press

267 pp., $45


The executive order President Bush issued shortly after 9/11 that authorized special military tribunals for "enemy combatants" suspected of terrorist activity sparked controversy and criticism in the years that followed, according to Peter Judson Richards in his book Extraordinary Justice: Military Tribunals in Historical and International Context.

Richards, who is a professor at the Southern Baptist Theological Seminary in Louisville, Kentucky, and director of the seminary's Center for Law and Theology, examines how military tribunals have functioned, primarily in four conflicts: the American Civil War, the Boer War(British tribunals), World War I (French tribunals), and World War II (Allied tribunals). He also ponders the future of warfare and wartime tribunals in the open-ended war on terror.

Richards examines the historical tribunals in great detail, with a somewhat stilted, academic style. His review of the past tribunals may be scholarly, but he gives short shrift to the real problems plaguing today's tribunals and fails to critically examine the current system. These tribunals consist of three-officer panels that determine whether each detainee is properly classified as an enemy combatant.

In 2001, Bosnian authorities ordered the release of six Bosnian citizens (Algerian natives) held on the suspicion of plotting to attack the U.S. Embassy in Sarajevo. Bosnian authorities, along with Interpol and the United States, conducted a three-month investigation, after which the Bosnian Supreme Court and the Bosnian prosecutor concluded that the evidence did not support the charge. The court ordered the men released, but instead they were quickly rearrested and taken to Guantanamo, where they have remained for six years, without charge, despite the Bosnian government's repeated statements that it is willing to take them back.

On December 5, 2007, in Boumediene v. Bush, the U.S. Supreme Court heard arguments concerning the rights of these detainees and 300 others at Guantanamo Bay. The Court is now considering whether the prisoners can take their case to U.S. courts to challenge their confinement.

Extraordinary Justice was published before Boumediene went before the Supreme Court, but it discusses other recent cases involving people detained as enemy combatants. The Court has ruled against the Bush administration in previous detainee rights cases, such as Rasul v. Bush in 2004. Richards explains how these decisions prompted Congress to erect new barriers to court access, allowing the administration to maintain the status quo. Now the Court must decide whether the new barriers were properly applied and whether the military tribunals provide an adequate alternative to federal court oversight.

The Bush administration claims that detainee rights are protected because the existing tribunal process was modeled after Army Regulation 190-8, which instructs the Army how to separate prisoners of war from civilians based on the Geneva Conventions. The detainees argue that this is the wrong standard to apply and that the tribunals fail to meet two necessary standards: that the proceedings inform detainees of the charges against them and that they have a meaningful opportunity to rebut the charges. Currently, most cases against detainees rely on classified information that is not disclosed to them. Moreover, detainees may not call witnesses, so they have no meaningful opportunity to rebut the charges.

Many lawyers support this view. They argue that the tribunal officers are not neutral, that they are routinely pressured by superiors to ratify the detentions, and that the detainees have no chance to prove their innocence.

Richards discusses instances when the Constitution has allowed the suspension of habeas corpus rights. The Constitution does allow it, but only in times of invasion or rebellion. Even when suspension is constitutional, the Supreme Court has required an alternative mechanism to habeas that is adequate and effective. The current process of denying detainees access to the evidence against them and the right to call witnesses, and subjecting them to repeat trials until they lose, is hardly the remedy envisioned by the Constitution.

Richards argues that military justice has a role to play in defeating terrorists, but he doesn't adequately address the real controversy of overlooked detainee rights or the new rules by which tribunals are playing. The book reads more like a college textbook than a provocative analysis of one of the most controversial legal topics of our day. It provides a comprehensive look at the history of tribunals, and it serves a purpose as a purely historical review.

But the book doesn't take on the tough questions that many of us want answered, and it falls short in analyzing the current controversy surrounding military tribunals reviewing the claims of Guantanamo detainees.


LAURIE HIGGINBOTHAM practices law in Austin, Texas.
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Author:Higginbotham, Laurie
Article Type:Book review
Date:May 1, 2008
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