Military Tribunals

A military tribunal is a court created or established to hold trials of members of enemy armed forces or others subject to the court’s jurisdiction during a time of war. On November 13, 2001, President George Bush signed a military order that authorized the creation of military tribunals to try some of those individuals seized during the war on terrorism. The presidential order was a reaction to the terrorist attacks on New York City on September 11, 2001. The order included specific findings that a state of emergency existed and set out many of the terms under which noncitizens would be detained, treated, and tried by the military tribunals.

Many have questioned the use of military tribunals to try persons charged with terrorist acts. In part, these are concerns about the status of those who are acting as warriors but who may not be wearing the distinctive identification of legitimate state combatants. Questions have included whether or not the traditional laws of war apply to such combatants and whether or not it would be more appropriate to try these combatants under the established Criminal Laws of the United States or other nations.

What Type of Tribunal Is Established?

These courts can be compared to and contrasted with the nation’s civilian judiciary. The military tribunals are created under the authority of provisions in Articles I and II of the U.S. Constitution. Article I, Section 8, grants to the Congress the powers to declare war, raise and support army and naval forces, and make laws governing the conduct of the nation’s armed forces. Article II confers the executive power upon the president and makes him the nation’s military commander in chief.

The president’s order gives exclusive jurisdiction to the military tribunals over these seized persons. The tribunals are not ordinarily bound by the procedures followed in civilian courts. Among the significant differences, for example, are the lesser standards for admissible evidence. Defendants are not allowed to appeal decisions to the federal courts. The president, furthermore, retains the power of final review. A series of MilitaryCommission Instructions setting the organizational rules, procedural rules, and the elements of the crimes that could be tried by the tribunals were issued by the Department of Defense on April 30, 2003.

Have Military Tribunals Been Used Before?

The use of military tribunals is controversial. They have, however, been used in some form in every prior American war. Military tribunals were used extensively during and after the Civil War to try combatants and noncombatant civilians. The U.S. Supreme Court, shortly after the Civil War, ruled on the constitutionality of trials of citizens by military tribunals. But it was only with World War II that the Court ruled on the constitutionality of the use of military tribunals to try foreign belligerents.

Lambin Milligan, an Indiana resident, was tried and convicted by a military tribunal and sentenced to death for alleged disloyal activities during the Civil War. His sentence was later commuted to life imprisonment. Employing the Habeas Corpus Act of 1863, Milligan appealed to the federal courts. The U.S. Supreme Court did not decide the basic issue of the jurisdiction of a military tribunal or the power of military tribunals to try civilians. The Court held, however, that the president did not have the authority to try civilians in military tribunals in a state that was not in rebellion.

The next major case arose during World War II. President Roosevelt had issued a proclamation subjecting enemy combatants who entered the United States to trial by military tribunal. Eight German nationals trained in sabotage techniques were secreted into the United States. The eight were captured before they were able to carry out their plans. On appeal to the U.S. Supreme Court, the petitioners argued that they were entitled to a trial by civil courts following the precedent set in Milligan. The Supreme Court, in Ex Parte Quirin, 317 U.S. 1 (1942), upheld the constitutionality of military trials for offenses against the United States during time of war. The Court, however, reserved the right of the federal courts to review the constitutionality of further appeals in individual cases.

The Supreme Court did later affirm the constitutionality of military tribunals to try foreign combatants in In Re Yamashita, 327 U.S. 1 (1946). The Court found that Congress had legally authorized the creation of military tribunals to try violations of the law of war.

Despite the extensive prior use of military tribunals, the perpetrators of the 1993 World Trade Center bombing in New York City and those accused of bombing two U.S. embassies in Africa in 1998 were all tried in the federal civilian courts. In addition, one of the accused September 11 hijackers, a French citizen, was also tried in federal court.

Are Military Tribunals Justified Today?

The use of military tribunals is controversial. The Court in Milligan asked the question whether American citizens should be subjected to military tribunals when the civilian courts are functioning. Human rights concerns are also raised when noncitizens are held for trial by the nation’s military. With concerns like these in mind, the U.S. Supreme Court has agreed to rule on the constitutionality of the military tribunals. This appeal is a test of presidential wartime authority. On November 7, 2005, the Supreme Court agreed to hear the appeal in Hamdan v. Rumsfeld (415 F.3d 33, D.C. Cir. 2005, cert. granted, 74 U.S.LawW. 3284, U.S. Nov. 8, 2005, No.05-184), an appeal from the D.C. Circuit Court.

In Hamdan, the U.S. Supreme Court will be asked whether the noncitizen may be tried by the military tribunal; whether the military tribunal established to try alleged war crimes in the war on terror is authorized under provisions of the U.S. Constitution and federal law; and whether petitioners and others similarly situated can obtain civilian judicial enforcement from an Article III court of rights in an action for a writ of habeas corpus challenging the legality of their detention by the executive branch. A decision by the U.S. Supreme Court in Hamdan will be issued in 2006.

JERRY E. STEPHENS

References and Further Reading

• Council on Foreign Relations. Terrorism Questions & Answers: Military Tribunals. New York, 2004. (https://cfrterrorism.org/responses/tribunals.html).
• Crona, Spencer J., and Neal A. Richardson, Justice for War Criminals of Invisible Armies: A New Legal and Military Approach to Terrorism, Oklahoma City University Law Review 21 (1996): 349–407.
• Fisher, Louis. Military Tribunals: Historical Patterns and Lessons. (Report RL32458) Washington, D.C.: Congressional Research Service, July 2004. (The report is available at https://www.fas.org/irp/crs/RL32458.pdf.).
• Tushnet, Mark, ed. The Constitution in Wartime: Beyond Alarmism and Complacency. Durham, NC: Duke University Press, 2005.

Cases and Statutes Cited

• Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866)
• Ex Parte Quirin, 317 U.S. 1 (1942)
• Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005), cert. granted, 74 U.S.LawW. 3284 (U.S. Nov. 8,2005(No.05-184)
• In Re Yamashita, 327 U.S. 1 (1946)
• Habeas Corpus Act of 1863, 12 Stat. 755 (1863)