THE UNITED STATES'S CONTROVERSIAL GUANTáNAMO MILItary commissions epitomize the common conception of “exceptional” courts: adopting a substandard level of justice for trials limited to foreign nationals suspected of terrorism-related offenses. The irony is that although these commissions are justified in large part on the basis of historical precedent, the original U.S. military commissions reflected the antonymic concept of exceptional, comporting to domestic U.S. legal standards, while exceeding the international norms of their day. Although there were some episodic exceptions, prior to World War II, properly conducted military commissions provided trials fully equivalent to conventional U.S. military justice. These commissions evenhandedly tried Americans and foreign nationals alike at a time when other nations generally accepted the summary execution of enemy law-of-war violators. The irony of the modern commissions’ departure from traditional U.S. legal values is even greater given that the individual primarily responsible for it was Franklin D. Roosevelt's Attorney General Francis Biddle, a man otherwise noted as a civil libertarian who later sat as the U.S. judge on the International Military Tribunal at Nuremberg. The landing of eight Nazi saboteurs on U.S. soil was a rude shock to the American psyche and brought the war to the home front; that event led to the usage of military commissions, just as the traumatic events of 9/11 inspired the Bush administration to resurrect commissions after a half-century of dormancy.

Military commissions’ creation can be traced to General Winfield Scott during the Mexican-American War of 1846–48, although the U.S. commitment to trying even its wartime enemies before inflicting punishment predates the Constitution. In August 1776, Congress adopted language providing that: