When President Barack Obama announced on Friday that he was reviving military commissions to try suspected terrorists, the reaction among his supporters was shock and dismay. It is understandable. As a Senator, Obama called the military commissions "an enormous failure" and "a dangerously flawed legal approach" that "undermines the very values we are fighting to defend."
So what happened? The first sentence of Obama's statement announcing the return of the commissions noted that they have "a long tradition in the United States." But it is unlikely that more careful historical study changed Obama's mind, for the tradition is not a happy one for the kind of commissions he is bringing back.
When civilian courts are unavailable, military commissions may be the only means of administering justice. Necessity is a powerful justification, and it is hard to object to commissions used for that reason. But when military commissions are used as an ad hoc alternative to civilian courts, their record is worse.
In 1864, federal officials tried Lambdin Milligan and others before a military commission, accusing them of conspiring to aid the Confederacy. The commission was used to guarantee a conviction. It allowed the prosecutors to bypass a possibly sympathetic Indiana jury and to avoid the constitutional rights granted criminal defendants. Rather than being presumed innocent, for instance, Milligan was told that he would have to prove it.
Unsurprisingly, death sentences were returned, and the defendants were set to hang. But the Supreme Court intervened. Civilians could not be subjected to military justice while the civil courts were open, the Court said. The Constitution "is a law for rulers and people, equally in war and in peace."
Eighty years later, new ad hoc commissions were convened to try Nazi saboteurs who had landed on the beaches of Florida and Long Island in the summer of 1942. The reason this time was not that convictions could not be had in federal courts. There was plenty of evidence against the saboteurs, including the testimony of two who had gone to the FBI and exposed the plot. Instead, the reason was that President Franklin Roosevelt wanted the death penalty, and the saboteurs had done nothing that would justify it under federal law.
These World War II commissions are the direct forerunners of the Bush commissions. The Bush executive order creating commissions to try terrorism suspects tracks the language of FDR's very closely.
The Supreme Court reviewed FDR's use of commissions, and it upheld them. It did so in part, perhaps, because then-Attorney General Francis Biddle had conveyed to the Justices FDR's intent to execute the saboteurs no matter how the Court ruled, and in part because the Justices wanted to support the war effort. Experts at the time, and most scholars now, think the Court's decision was wrong. It was at least partially repudiated by the 2006 decision in Hamdan v. Rumsfeld, holding that the President could not create commissions contrary to the rules set out by Congress.
Ad hoc commissions used to obtain convictions or punishments that could not be won in federal court, have, in short, been sorry chapters in our history. Why would Obama want to bring them back? The most likely answer is that, having reviewed the available information, he believes that among the Guantanamo detainees are men who are too dangerous to release, but who could not be convicted in federal court, probably because of federal rules governing hearsay evidence. If that is the answer, though, the revival of the military commissions is a terrible mistake.
Military commissions have proven ineffective as an alternate means of detaining people. The Bush administration ran a system so slanted towards conviction that some prosecutors resigned in protest.
It managed to win a six-month sentence for Osama bin Laden's driver and a plea bargain entailing immediate release from Guantanamo for an itinerant kangaroo skinner. It is hard to imagine that Obama's reconstituted commissions will do any better.
But there is a more serious problem with this use of military commissions. We have our rules of criminal procedure for good reasons.
Some people whose guilt seems sure turn out to be innocent, and this is especially true for the worst of the worst. (That is who we brought to Guantanamo, remember-and the Bush administration let over 500 go, realizing they were not who we thought.) Perhaps more deeply, a willingness to set aside established rules when they become inconvenient says something about us as a people.
It is one of the proudest principles of American justice that we do not change our system for people accused of particularly heinous crimes. Child abusers, serial killers, and traitors all get the same procedural protections as the garden-variety bank robber. (Traitors, in fact, get a bit more. The Constitution provides that no one shall be convicted of treason except on the testimony of two witnesses or confession in open court.)
Bending the rules to punish people we especially dislike is simply impossible to justify.
And in fact, punishment is not our aim. The goal with people deemed too dangerous to release is not to punish them for things they have done in the past but to prevent them from doing bad things in the future. There are laws that allow preventive detention for dangerous criminals, and incapacitation is of course the justification for holding prisoners of war.
If we need a regime of preventive detention for terrorism suspects, we should be discussing that possibility and exploring options. We should not be using ad hoc commissions as a substitute.
By Kermit Roosevelt
Special to CBSNews.com