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.

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