Plenty of precedents in American history. The last thing we need
is another terrorist event.
Military Tribunals--America Responds to Terrorism
Military Tribunals in American History
This is not the first time military tribunals have been used in American history. During the Revolutionary War, General George Washington ordered a military commission to try Major John Andre, a British officer accused of spying. The commission convicted him, and Andre was hanged.
The adoption of the U.S. Constitution in 1787 gave the president broad powers in times of war as commander in chief of the armed forces (Article II, Section 2). It also gave Congress the power to define and punish offenses against the law of nations (Article I, Section 8, Clause 10).
In the U.S.-Mexican War (1846-48), the U.S. government first used military commissions. In Mexico, commissions tried guerrilla fighters and other resisters who were not part of the Mexican army.
During the Civil War, President Abraham Lincoln proclaimed that all rebels arrested within the United States would be subject to martial law. Military commissions tried an estimated 4,000 people. One was Southern sympathizer Lambdin P. Milligan, an Indiana lawyer and politician. Milligan was involved in a failed conspiracy. He had planned to seize federal armories in the Midwest, arm Southern sympathizers, and lead a rebellion against federal troops. He was tried, found guilty, and sentenced to hang for inciting insurrection. Milligan filed a petition with the federal district court in Indiana claiming that he was being held illegally.
The war ended before Milligan's sentence could be carried out, and his case eventually reached the U.S. Supreme Court. In 1866 in Ex Parte Milligan, the court unanimously held that martial law should be confined to areas of actual warfare. The courts never closed in Indiana during the war, and the state was far removed from the battlefront. The court therefore concluded that Milligan should have been tried in a regular civilian criminal court, not by military tribunal. In sweeping language, the court declared: "The Constitution of the United States is the law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances."
Another famous military tribunal took place near the end of the Civil War. After the assassination of President Lincoln, eight people were accused of participating in a conspiracy to kill the president. President Andrew Johnson appointed a military commission, the Hunter Commission, to try the accused. The commission found all eight guilty; four were hanged and four were sentenced to long prison terms. Historians and legal scholars have debated these results ever since. Some claim that several of the accused did not deserve the death penalty or long prison sentences.
World War II
Military tribunals were again used during the Second World War. In 1942, a U-boat landed eight German soldiers on Long Island, New York, under the cover of darkness. Dressed as civilians, their mission was to sabotage U.S. defense factories. The operation failed when two of the men defected and informed authorities. The FBI arrested the saboteurs and turned them over to the U.S. military for trial. Shortly after the arrest, President Franklin D. Roosevelt authorized the use of military tribunals for trying those who entered the country to commit sabotage.
Within one month of capture, the eight Germans were tried by a military tribunal of army officers. The prosecution team consisted of 10 military lawyers. A single military lawyer, Colonel Kenneth Royall, represented the defendants. The tribunal found all eight guilty. Six were sentenced to death by electrocution, and the two defectors were sentenced to prison terms.
The defendants appealed to the U.S. Supreme Court claiming that under the Milligan decision, they should have been tried in a U.S. civilian criminal court. Meeting in a special summer session, the court heard arguments and issued a unanimous opinion. Writing for the court in Ex Parte Quirin, Chief Justice Harlan Fiske Stone denied the appeal. The court noted that Congress had authorized the use of military tribunals for offenses against the law of war. (The law of war is based on international treaties and, among other things, it forbids a country's military personnel from operating in another country out of uniform.) The court went on to distinguish the Milligan case. It ruled that the saboteurs were belligerents (enemy soldiers at war), who because they had entered the country out of uniform to conduct sabotage, had violated the law of war. They therefore were not entitled to the status of prisoners of war. Nor were they entitled to the protections under the Milligan case, which only applied to non-belligerents not associated with the enemy. This was true even for one German saboteur who claimed U.S. citizenship. "Citizenship in the United States of an enemy belligerent," wrote the court, "does not relieve him from the consequences of a belligerency which is unlawful because it is a violation of the law of war."
At the end of World War II, the U.S. armed forces also conducted military tribunals. They tried some 1,600 persons in Germany and nearly a thousand Japanese military personnel accused of committing war crimes. One of the Japanese, General Tomoyuki Yamashita, had commanded enemy forces in the Philippines. He was accused of permitting his troops to commit numerous atrocities against the civilian population and prisoners of war. Yamashita was tried in the Philippines and sentenced to death by a military commission appointed by Douglas MacArthur, commanding general of the western Pacific. His case was appealed to the U.S. Supreme Court. Yamashita argued that because the war had ended and the Philippines was a U.S. territory, he should have been tried before a civilian criminal court.
In 1946 in In Re Yamasita, the court upheld the authority of the military commission. The court ruled that military tribunals do have the right to operate after hostilities have ended, because it is only then that most offenders, especially major ones, could be captured and tried. The court also, as in Quirin, upheld the use of military commissions in all matters relating to the law of war.