Jack L. Goldsmith & Cass R. Sunstein, Military Tribunals and Legal Culture: What a Difference Sixty Years Makes, 19 Const. Comment. 261 (2002).
Abstract: President Bush's Military Order establishing Military Commissions was greeted with impassioned criticism in the press, the legal academy, and Congress. Sixty years earlier, in the midst of World War II, President Roosevelt 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 in this paper is not to investigate, except in passing, issues of law and policy. 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 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 authority and military authority. 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.