Military Tribunals

President Bush signed a Military Order on Nov. 13, 2001, stating that suspected terrorists could

be tried in military tribunals rather than regular courts. The order has raised concerns for a variety

of reasons.

By the end of January 2002, the government had not yet issued specific regulations for the

proposed military tribunals. It is therefore difficult to evaluate how a tribunal might work.

However, there are a few examples that might provide guidance for determining whether there

should be press access to a military tribunal.

How have tribunals been used in the past?

The first Supreme Court case to consider the use of a military tribunal was Ex Parte

Vallandigham, decided in 1863. Clement Vallandigham was a U.S. citizen living in Ohio during

the Civil War. Major-General Burnside, commander of the Ohio military, had declared that any

person who expressed "sympathies for the enemy" would be tried for treason. Vallandigham was

arrested for saying that the war was "wicked, cruel and unnecessary," and that it would "crush

liberty" and establish "despotism." He was tried by military tribunal, convicted and imprisoned.

Vallandigham appealed to the U.S. Supreme Court. He argued that the military tribunal had no

jurisdiction to try him. The Supreme Court denied certiorari, finding that it did not have the

authority to hear the case for procedural reasons, even if it thought that the military had acted

improperly.

A different result was achieved a few years later in Ex Parte Milligan. Milligan was a U.S.

citizen living in Indiana. A general ordered that Milligan be arrest and tried for his membership

in an organization known as the Sons of Liberty. The general believed that this group, including

Milligan, conspired to overthrow the U.S. government and that Milligan gave aid to insurgents.

Milligan was convicted and sentenced to be hanged. He then sought a writ of habeas corpus and

argued that the military had no jurisdiction to try him.

The Supreme Court began by noting that emotions had run high during the war and that

improvident decisions had been made. "During the late wicked Rebellion, the temper of the times

did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of

a purely judicial question."

The Court stated that the Constitution governs "equally in war and in peace." It found that the use

of a military tribunal was improper.

The Court noted that, during the War of 1812, American "officers made arbitrary arrests and, by

military tribunals, tried citizens who were not in the military service. These arrests and trials,

when brought to the notice of the courts, were uniformly condemned as illegal."

A few years later, however, at the end of the Civil War, a group of insurgents conspired to

assassinate President Lincoln and other government officials. The accused conspirators were

tried by military tribunal, despite the ruling in Milligan.

As a practical matter, it seems that military tribunals were used, despite the questions as to their

constitutionality. Their use was again questioned before the Supreme Court during World War II

in the case of Ex Parte Quirin.

In Quirin, a group of Nazi saboteurs attempted to sneak into the United States for the purpose of

destroying U.S. infrastructure. They were captured almost immediately and tried by military

tribunal. Defense lawyers argued that the accused spies were entitled to a speedy and public trial

by an impartial jury, as well as the other constitutional protections contained in the Bill of Rights.

The attorney for the spies, relying on Milligan, argued that the Constitution applied even during

war.

By the time the case was appealed to the Supreme Court, there was a great deal of political

pressure to uphold the convictions. The Quirin decision upheld the use of a military tribunal as

used under the specific circumstances of that case, because the accused spies were "unlawful

belligerents." Nevertheless, many experts argue that it does not provide blanket authorization for

the use of military tribunals. Scholar Michael Belknap wrote that Justice Stone thought it was a

"dubious decision." Justice Douglas also regretted the ruling. "It is extremely undesirable to

announce a decision on the merits without an opinion accompanying it," he said, referring to the

fact that the Court entered a brief order upholding the tribunals shortly after the arguments, but

did not issue a full opinion until many months later. Justice Stone, in writing the opinion,

admitted that "a majority of the full Court are not agreed on the appropriate grounds for the

decision." The Court also recognized that some offenses cannot be tried by a military tribunal

because they are not recognized by our courts as violations of the law of war or because they are

in the class of offenses constitutionally triable only by a jury.

Although the Quirin decision appears to authorize military tribunals for "unlawful belligerents,"

the court failed to articulate specific criteria that must be present in order for a military tribunal to

be valid. The Court stated, "[w]e have no occasion now to define with meticulous care the

ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of

war. It is enough that petitioners here . . . were plainly within those boundaries . . . ." The Court

narrowed its decision to avoid any sweeping statement regarding military jurisdiction and

provided little guidance for application to future cases.

In 1946, a few years after the Quirin decision, the Court ruled in Application of Yamashita that

military commissions may be used during war to try enemies captured overseas for violations of

war laws. The Court therefore upheld the conviction by military tribunal of a Japanese military

officer during World War II.

Justice Murphy, however, wrote a dissenting opinion, in which he expressed concern that

military tribunals were improper because they failed to provide an accused with the procedural

protections required of American courts. He stated, "[a]t a time like this when emotions are

understandably high it is difficult to adopt a dispassionate attitude toward a case of this nature.

Yet now is precisely the time when that attitude is most essential. While people in other lands

may not share our beliefs as to due process and the dignity of the individual, we are not free to

give effect to our emotions in reckless disregard of the rights of others. We live under the

Constitution, which is the embodiment of all the high hopes and aspirations of the new world.

And it is applicable in both war and peace. We must act accordingly. Indeed, an uncurbed spirit

of revenge and retribution, masked in formal legal procedure for purposes of dealing with a fallen

enemy commander, can do more lasting harm than all of the atrocities giving rise to that spirit."

Later that year, in Duncan v. Kahanamoku, the Court ruled that military tribunals could not be

used to try citizens, even when martial law had been declared in Hawaii after Pearl Harbor had

been attacked. The Court found that the due process protections of American courts were still

necessary.

In Hirota v. MacArthur, the Court considered habeas corpus petitions from Japanese citizens

who were being held in custody pursuant to the judgments of a military tribunal in Japan after

World War II. The tribunals had been set up by General Douglas MacArthur of the U.S. military,

but his actions had been authorized by the Allied Powers and the tribunals were condoned by all

of the Allied nations. Many of the judges, in fact, came from other Allied nations. The Court

therefore ruled that it had no jurisdiction to hear the petitioners claims because the tribunal was

"not a tribunal of the United States." It was an international tribunal in which the U.S. happened

to play a lead role.

In 1950, the Court's decision in Johnson v. Eisentrager again confirmed the use of military

tribunals. In Johnson, a group of Germans who had been captured in China during World War II

challenged their trial and conviction by military tribunal. The Court held that nonresident aliens

have no right of access to American courts during wartime, and therefore they may be tried by

military tribunal.

A few years later, the Court upheld the conviction of an American citizen who was tried for

murder by a military tribunal. In Madsen v. Kinsella, the Court ruled that the wife of an

American soldier could be tried by military commission for murdering her husband while in

U.S.-occupied Germany after World War II. However, in a 1957 case, Reid v. Covert, the Court

ruled that the military could not try dependents of American soldiers in military courts, at least in

capital cases. The Reid case also involved the trial of an American woman who was charged with

killing her husband, a member of the U.S. military.

The late-1950's cases of Reid and United States ex rel. Toth v. Quarles expressed a certain

distrust of the military and found it an unsuitable forum for fair trials. In Toth, the Court held that

a person who was in the military but who has since been discharged may not be subject to trial by

court-martial, even if the alleged crime occurred while the accused was in the military. The Court

noted that Congress had constitutional authority to regulate the armed forces, and thus, those

serving in the military could be disciplined in military courts as Congress directed. But the

Constitution grants no authority that would permit Congress to apply military courts to civilians,

even to those who were formerly in the military. Expanding the jurisdiction of military courts

beyond the most limited definition would encroach on the jurisdiction of federal courts which

had been established under Article III of the Constitution. The Court noted that the federal court

system was constitutionally preferable to a military court and did not want to expand the

jurisdiction of the less preferred system.

Is the press entitled to access to military courts in general?

In general, military trials are open to the public. Rule for Courts-Martial 806(b) states that

military courts are presumptively open to the public. However, they may be closed if classified

evidence is used or if there are other security concerns.

Military courts have also acknowledged that there is a First Amendment right of access to

military proceedings, but that right accrues to the "public," and there is no special right of access

for the press. (ABC, Inc. v. Powell)

It is unclear whether the general military court rules would be applied to the proposed military

tribunals.

Has there been press access to military tribunals in the past?

There may have been at least one instance of press access to a U.S. military tribunal.

Military tribunals were used to try the alleged conspirators who planned President Lincoln's

assassination. A recent article in The Washington Post reported that the trials were originally

closed, but reporters complained to General Ulysses S. Grant, who arranged for a meeting with

President Andrew Johnson. The result was press access to the trials.

Also, in the past, the identities of the judges who have served on military tribunals have been

available to the press. In the post-World War II Tokyo Tribunals, for example, the identity of the

judges were known.

Although it is not clear whether the administration will try to bar press access to any potential

military tribunals, there is some historical support for access.