Military Tribunals
Table of contents
Military tribunals or commissions are "courts" established by the Executive Branch, typically after Congress also provides authorization, to deal with issues arising in war time. The judges of military tribunals are usually military officials. The U.S. Constitution permits military tribunals to conduct trials for violations of the laws of war and for offenses committed under military occupation or marshall law.
The protections established by the Fourth, Fifth and Sixth Amendments, including a trial by jury, do not directly apply to such tribunals; for this reason, defendants prefer to be tried in an Article III court (a criminal court on U.S. territory) as opposed to a military tribunal.
According to the President's order authorizing military tribunals under the War on Terror, entitled the "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism", the conditions of trial are less protective of the defendants' rights and more favorable to the prosecution. [insert FN to Pres Power Stories --- not sure what this source is & what page #, etc to put in the footnote -- ajay; It is the book "Presidential Power Stories" but it is not available at any of UCLA's libraries--alicia]. "Conviction, for example, [is] possible on a two-thirds rather than unanimous vote, upon a lesser standard of proof than beyond a reasonable doubt, on evidence [that is not allowed in federal courts and on secret evidence], and with no right of appeal." Id. at ?. The justifications offered for these procedural changes "was the need for swift justice." Id. at ?.
Using Military Tribunals Inside the U.S.
There are three Supreme Court decisions that deal with the use of military tribunals within the United States. The first arose out of Reconstruction, the period immediately following the Civil War. The second decision involved the trial of eight Germans apprehended in the United States during World War II, in 1942. The third decision is more recent and concerns the use of such tribunals for people detained at Guantanamo Bay.
Ex Parte Milligan, 71 U.S. 2 (1866)
Ex Parte Milligan was tried in 1866. The case involves the detention of a U.S. citizen living in Indiana who was accused of conspiring to aid the Confederacy. In this case, the Supreme Court decided that a military tribunal did not have jurisdiction to try a U.S. citizen: "[Military tribunals] can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed." Id. at 121.
Ex Parte Quirin, 317 U.S. 1 (1942)
The situation in Quirin was different than that of Milligan, leading to a different Court decision. In this case, eight German citizens were apprehended in the U.S. during World War II, and were accused of attempting to commit sabotage. According to the facts in the Court decision, the men got to the U.S. on board a German submarine and disembarked while still wearing their military uniforms. They then buried their uniforms so as to maintain anonymity.
Here, the Supreme Court decided that military tribunals do have jurisdiction to try people apprehended in the U.S. Because the men buried their military uniforms and intended to commit acts of war, they were charged with violating "the law of war" Id. at 30-1. The Court decided that the President allowed "trial of offenses against the law of war before [military] commissions." Id. at 29. In making its decision, the Court argued that "the law of war draws a distinction between lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful." Id. at 31.
One of the men in the case was a U.S. citizen, and because he was an American citizen captured on American soil, it was not clear whether the decision in Milligan applied to him - that is, whether he could be tried in a military tribunal. The Court ultimately decided that because he was an "enemy belligerent" committed of attempting acts in violation of the law of war, the decision in Milligan did not apply to him and he could be tried by military tribunal.
Historically, justices have disagreed as to the extent that Milligan and Quirin actually differ. Such differences came to the fore in Hamdi v. Rumsfeld.
Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
Yaser Esam Hamdi is a U.S. citizen who was captured in Afghanistan and taken to Guantanamo Bay. The Court's opinion dealt with whether the President can detain a U.S. citizen captured and held under these circumstances.
The Supreme Court decided that, according to Quirin, a U.S. citizen can be punished and detained as an enemy combatant so long as such actions are permissible under the law of war. The Court argued, however, that Hamdi was entitled to challenge his designation as an enemy combatant "before a competent tribunal", which could be a military commission. Id. at 538-9. This is the primary difference between Hamdi and the former two, for the other cases do not authorize the use of military tribunals to determine whether a detainee is an enemy combatant. Hamdi, however, does, and as a consequence expands the use of military tribunals in wartime.
Using Military Tribunals Outside of U.S. Territory
The Executive's right to use military tribunals outside of U.S. territory is more expansive than the right to use such tribunals inside the U.S. During World War II, over 1600 individuals in Germany and 1000 in Asia were tried for war crimes in military tribunals operated by the U.S. Army.
Trying Non-U.S. Citizens in Military Tribunals Abroad
The Supreme Court has found that an occupying power that remains in a war zone until it determines that domestic civil government has been restored can use military tribunals to try ordinary criminal offenses committed by non-U.S. citizens. Madsen v. Kinsella, 343 U.S. 351, 360 (1952). In addition, alleged violations of the laws of war can be tried in such commissions even after the termination of hostilities. See In re Yamashita, 327 U.S. 1, 11-13 (1946).
As a result, the rights of non-citizens detained during hostilities abroad are quite limited. Some justices have even gone so far as to argue that non-U.S. citizen enemies detained on foreign soil have no constitutional rights to be free from detention and trial by military commission. Johnson v. Eisentrager, 339 U.S. 763, 788-89 (1950).
Trying U.S. Citizens in Military Tribunals Abroad
Unlike cases brought by non-citizens, in a recent decision the Supreme Court decided that U.S. federal courts do have authority to review the habeas petitions of U.S. citizens detained abroad by the United States. Munaf v. Geren, 128 S. Ct. 2207 (2008). The decision also states that habeas protection applies to those detained by multinational forces, so long as such persons are "held 'in custody under or by color of the authority of the United States.' . . . The disjunctive 'or' in 2241(c)(1) makes clear that actual government custody suffices for jurisdiction, even if that custody could be viewed as 'under ... color of' another authority, such as [the multinational forces]." Id. at 2217 (citing 28 U.S.C.A. 2241(c)(1)) (citations omitted).
In essence, U.S. citizenship confers access to the American federal courts system. However, before U.S. courts can decide whether to hand over the detainee to foreign authorities, they must review the merits of the habeas petition and determine whether the claim to habeas rights can withstand constitutional muster.
| Author: Nina Farnia Status: Student Authored, Student Reviewed (Substantive), Not Faculty Reviewed Last Major Update: June 14, 2009 Suggested Citation: Nina Farnia, Military Tribunals, UNDERSTANDING RACE: AN ENCYCLOPEDIA OF CRITICAL RACE STUDIES (Jerry Kang, ed., 2009), http://add/ |
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