Stephen Young is a reference librarian at The Catholic University of America, Kathryn J. DuFour Law Library. Stephen has written extensively in the area of United Kingdom law, and has contributed a number of articles to LLRX.com.
To protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks, it is necessary for individuals subject to this order … to be tried for violations of the laws of war and other applicable laws by military tribunals.
[Military Order: Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism §1 (e). Issued by President George W. Bush (November 13, 2001)]
Historical Introduction
Military commissions derive their authority from the United States Constitution (Articles I and II) and the powers vested in them by statutory law (e.g., Authorization for Use of Military Force, PL 107-40). Although their origins in the United States can be traced to the U.S.- Mexico War of 1846-48, when “councils of war” were convened by General Winfield Scott (General Orders, No. 20 of February 19, 1847, reprinted in Appendix 1 of Military Government and Martial Law), the validity and jurisdiction of military commissions was not fully tested until the Civil War. In 1863 Union Army General Order 100 helped to solidify the place of military commissions in the field of military justice by stating that under the common law of war military commissions were allowed to prosecute “cases which do not come within the Rules and Articles of War, or the jurisdiction conferred by statute on courts-martial.” This statement was reiterated by the Supreme Court in Ex Parte Vallandigham, 68 US 243 (1863), when the court drew a clear distinction between military commissions and courts-martial.
The first major legal test of the jurisdiction of military commissions occurred in the period immediately after the Civil War in the landmark 1866 United States Supreme Court decision, Ex Parte Milligan (see below). The jurisdictional boundaries of military commissions were further solidified during World War I when Congress adopted Article of War 15.At the time Judge Advocate General Crowder, seeking to clarify the status of the military commission, argued “a military commission is our common-law war court. It has no statutory existence, though it is recognized by statute law.” (S. Rep. No. 130, 64th Cong., 1st Sess.) This formal recognition by Congress authorized the use of military commissions for the purposes of prosecuting violations of the law of war. Article of War 15 was later the basis for Article 21 of the Uniform Code of Military Justice, first adopted in 1950 and put into force in 1951.
Tribunals & Commissions
A military commission is a form of military tribunal. The correct use of the term “military commission” has itself been the subject of some debate. In Madsen v. Kinsella (see below) United States Supreme Court Justice Burton stated that “[military commissions] have taken many forms and borne many names.” Most commonly, military tribunals exist in the form of one of the three types of courts-martial authorized by the Uniform Code of Military Justice; General Courts-Martial, Special Courts-Martial, and Summary Courts-Martial. In addition, a military tribunal may also exist in the form of a military commission. This guide will attempt to provide assistance in locating primary and secondary materials related to United States military commissions. International military tribunals, such as the Nuremberg trial of major German war criminals, the International Military Tribunal for the Far East, and the International Criminal Tribunal for the Former Yugoslavia (ICTY), are outside of the scope of this document. However, it should be noted that extensive materials for both of the World War II related tribunals can be located at Yale Law School’s Avalon Project website. This guide was designed to be only a starting point for researchers locating resources on the subject of U.S. military commissions, and it should not be considered comprehensive in coverage.
1. Statutory Authority
Uniform Code of Military Justice. The U.C.M.J. is the basis of the military system of justice in the United States armed forces. Article 21 of the U.C.M.J. provides the authority for the existence and operation of military tribunals. The U.C.M.J. was originally promulgated in 1950 as Pub. L. No. 81-506, 64 Stat. 107-49, and came into force May 31, 1951. It is codified at 10 United States Code §§ 801-946.A comprehensive legislative history of the U.C.M.J. was recently published by W.S. Hein, Index and Legislative History: Uniform Code of Military Justice (2000).
The Constitution of the United States. Article I, section 8, clause 10 of the Constitution of the United States provides authority for national trials for those who commit criminal offenses against “the law of Nations.” Article II confers on the President the title of “Commander in Chief,” thereby authorizing him to establish military commissions.
2. Judicial Consideration
The Supreme Court of the United States has visited the subject of military commissions on a number of occasions. The following cases have been selected as being particularly important in the creation of the common law definition of the authority and jurisdiction of military commissions.
Ex Parte Milligan, 71 US 2 (1866). Lambdin P. Milligan, a civilian and member of the “Sons of Liberty,” was sentenced to death for allegedly disloyal activities by an army court in Indiana. He appealed to the circuit court in Indiana for his release under the 1863 Habeas Corpus Act. The federal circuit court split on the question of whether civilian courts had jurisdiction over appeals from military tribunals. The Supreme Court held that military rule could not supersede the civil courts in areas where the civil courts and government remained open and operational (e.g. Indiana). This landmark Supreme Court decision is discussed at length in many of the secondary sources listed at the end of this guide. Also available at 18 L.Ed. 281 & 4 Wall. 2.
Ex Parte Quirin, 317 US 1 (1942). In Quirin the Supreme Court denied habeas relief to eight Germans detained during trial by a military commission. They were held on charges that they violated the law of war (specifically articles 81 and 82 of the Articles of War) and that they had committed acts of sabotage and spying. The Supreme Court upheld the jurisdiction of the commission. The Court reasoned that article 15 of the Articles of War gave Congress its authority to define and punish offenses against the law of nations and that this included sanctioning the jurisdiction of military commissions to try persons for violations of the law of war. Most notably, the Court refused to be drawn into a discussion of the jurisdictional boundaries of military commissions when it stated, “we 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.” Also available at 63 S.Ct. 1 & 87 L.Ed. 3.
Application of Yamashita, 327 US 1 (1946). An American military commission, established pursuant to the law of war, tried Japanese General Yamashita in the fall of 1945 for alleged war crimes in the Philippines. The crimes concerned Yamashita’s failure to exercise command responsibility for the conduct of his troops. The Supreme Court upheld the commission’s jurisdiction. Also available at 66 S.Ct. 340 & 90 L.Ed. 499.
Duncan v. Kahanamoku, 327 US 304 (1946). At issue in this case was whether military commissions established during wartime in Hawaii had the authority to sentence civilians to prison. The Supreme Court held that martial law alone was no excuse for replacing civilian courts with military commissions. Also available at 66 S.Ct 606 & 90 L.Ed. 688.
Madsen v. Kinsella, 343 US 341 (1952). In this decision the United States Supreme Court upheld the trial of a military spouse (i.e., civilian) by a military commission. The spouse was convicted by the commission of murdering her husband while he was stationed in U.S. occupied Germany following World War II. Also available at 72 S.Ct 699 & 96 L.Ed. 988.
United States Ex Rel. Toth v. Quarles. 350 US 11 (1955). The Supreme Court reversed a Court of Appeals decision regarding application of military commissions to civilians. A former serviceman was arrested on charges of murder and conspiracy to commit murder while stationed in Korea. The Supreme Court held that since he was no longer in service he could not be subjected to trial by court-martial. Also available at 76 S.Ct. 1 & 100 L.Ed. 8.
3. Executive Authority
As Commander in Chief of the Armed Forces the President is authorized to convene military commissions. The following documents are presented as examples of instances when this authority has been exercised.
Military Order: Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism.Issued by President George W. Bush, November 13, 2001, in response to the terrorist attacks on the World Trade Center and the Pentagon. Located at 66 FED. REG. 57833 (2001).
Presidential Proclamation 2561: Appointment of a Military Commission. Issued by President Franklin D. Roosevelt, July 2, 1942, for the purposes of appointing a military commission to try the eight Nazi saboteurs caught in the United States. Located at 7 FED. REG. 5101 (1942). Subsequent Military Orders of July 2, 1942 and January 11, 1945 provide further authorization for the use of military commissions during World War II. All of these documents are reprinted in the appendix of the CRS study mentioned below.
4. Secondary Resources
A. Internet Resources
There are a large number of Internet sites that link to the same materials. For the purposes of efficiency I have tried to reduce the number of duplicate references by only including websites that do not significantly overlap in their coverage of this topic. The usual caveats regarding material sourced from the Internet apply to these sites, i.e., always bear in mind the authority of the source and the timeliness of the information.
Field Manual (FM) 27-1: Legal Guide for Commanders. Field Manual (FM) 27-10: The Law of Land Warfare. These are two of the U.S. Army’s Field Manuals for commanding officers. They provide guidance in legal matters for officers in the field, including remedies for violations of international law.
Findlaw’s Tribunal Forum. A useful collection of short, timely essays by noted scholars regarding the history and application of military tribunals.
Human Rights Watch: The Proposed U.S. Military Commissions. This is a collection of short articles written in response to President Bush’s Military Order. The focus is on legal alternatives to the use of commissions.
Jurist Hot Topic: Military Tribunals. A collection of articles, primary documents, and useful links related to the topic of military tribunals. Although lacking in historical coverage it does provide a good collection of materials related to post 9-11-01 activity.
Manual for Courts-Martial United States. (2000ed.) This is a link to the full-text PDF version of the manual used in U.S. courts-martial. Included in the text are the Military Rules of Evidence, which may, or may not apply to trials by military commissions. The President prescribes the rules to be followed by a commission, however the rules may differ from one commission to the next.
A Realistic Look at Terrorism Trials by Military Commission. This article, by attorney and former JAG Captain Mitchell Lathrop, was written in November 2001 in response to President Bush’s Military Order.
Report and Recommendations on Military Commissions. Prepared by the American Bar Association Task Force on Terrorism and the Law (2002). This recently released document provides useful background information on the jurisdiction of military commissions, however it’s focus is on whether their use in response to the terrorist attacks of 9-11-01 is appropriate or not.
Terrorism and the Law of War: Trying Terrorists as War Criminals Before Military Commissions. Published by the Congressional Research Service in December 2001, this document is an excellent guide to military commissions and should be considered an essential starting point for anyone wishing to research the subject. It includes good historical and background information together with a useful appendix that includes copies of military orders and presidential proclamations. It should be noted that this was originally published in October 2001 as “Trying Terrorists as War Criminals” (RS21056), however following President Bush’s M.O. in November the document was extensively rewritten.
Terrorists, Military Tribunals and the Constitution. This is the transcript of a Cato Institute Policy Forum that was held on December 6, 2001.The panelists debate the use of military tribunals for the purposes of trying suspected terrorists.
Testimony Before the Senate Armed Forces Committee. Hearings held in December 2001 in response to President Bush’s Military Order authorizing the use of military tribunals to try suspected terrorists.
Testimony Before the Senate Judiciary Committee. Hearings held in December 2001 in response to President Bush’s Military Order authorizing the use of military tribunals to try suspected terrorists.
B. Texts
All the Laws But One: Civil Liberties in Wartime, William H. Rehnquist (1998). The focus of this text is on the Civil War era, however as an insight into the Chief Justice’s views on the use of military tribunals it is invaluable. Additional insight may be gleaned from a recent address of the Chief Justice to the Norfolk and Portsmouth Bar Association of Virginia.
Military Tribunals and International Crimes, John Alan Appleman (1971). Although this is a classic text on the international military commission at Nuremburg, it also provides useful commentary on the jurisdiction and operation of military commissions in general. In particular, part V of the book focuses on describing the workings of all types of military commissions.
Ex Parte: In the Matter of Lambdin P. Milligan, Samuel Klaus (1929). An historical overview of the landmark Supreme Court case. This text includes original documents submitted to the Supreme Court and the proceedings of the military commission.
Military Law and Precedents, William Winthrope (2nd ed. 1920). This is one of the classic texts on military law. Winthrope provides excellent historical coverage of military tribunals and their authority.
Military Government and Martial Law, William Birkhimer (3rd ed. 1914). This 411 page work is now available full-text on the Internet. Included in the text are useful descriptions of the history and operation of military tribunals and appendices containing primary documents.
C. Journal Articles
The following references comprise a select list of relevant journal articles. In addition to the journal articles listed below, there have recently been a large number of newspaper descriptions of the jurisdiction and operation of military commissions. One example of these is an article from the New York Times’ series “A Nation Challenged” entitled “The Tribunals: A Closer Look at a New Plan for Trying Terrorists.” [November 15, 2001 §B, p.6, col. 1]
48 Federal Lawyer 20 (November/December, 2001). The Law of War: Military Tribunals and the War on Terrorism. Hon. Robinson O. Everett.
157 Military Law Review 1 (1998). He Called for his Pipe, And he Called for his Bowl, And he Called for his Members Three – Selection of Military Juries by the Sovereign: Impediment to Military Justice. Maj. Guy Glazier.
14 Constitutional Commentary 431 (1997). The World War II German Saboteur’s Case and Writs of Certiorari Before Judgment by the Court of Appeals: A Tale of Nunc Pro Tunc Jurisdiction. Borris Bitker.
153 Military Law Review 1 (1996). Continuum Crimes: Military Jurisdiction Over Foreign Nationals Who Commit International Crimes. Maj. Michael Newton.
36 Virginia Journal of International Law 659 (1996). National Forums for Punishing Offenses Against International Law: Might U.S. Soldiers Have Their Day In the Same Court? Mark S. Martins.
21 Oklahoma City University Law Review 349 (1996). Justice for War Criminals of Invisible Armies: A New Legal and Military Approach to Terrorism. Spencer J. Crona, Neal A. Richardson.
148 Military Law Review 114 (1995). Lack of Extraterritorial Jurisdiction Over Civilians: A New Look at an Old Problem. Maj. Susan S. Gibson.
29 Wake Forest Law Review 509 (1994). Forums for Punishing Offenses Against the Law of Nations. Scott L. Silliman.
34 Virginia Journal of International Law 289 (1994). Possible Use of American Military Tribunals to Punish Offenses Against the Law of Nations. Robinson O. Everett.
37 Catholic University Law Review 1 (1987). The Constitution in the Supreme Court: The Second World War, 1941-46. David P. Currie.
29 Southern California Law Review 228 (1955). Trial of Civilians by Military Tribunal. Comment.
42 American Journal of International Law 832 (1948). The Military Commission. A. Wigfall Green.
59 Harvard Law Review 833 (1946). The Supreme Court on Military Jurisdiction: Martial Rule in Hawaii and the Yamashita Case. C. Fairman.
5 American Journal of International Law 958 (1911). Military Tribunals and their Jurisdiction. H.W. Halleck.
5. Conclusion
This guide has attempted to highlight some of the more useful and authoritative writings that currently exist on the subject of military commissions, however it is inevitable that over the next few months many articles and a number of texts will be written on this topic. Since their first use in the U.S.-Mexico War in the mid 19th Century military commissions have been a constant source of controversy in the legal community. It is unlikely that their current incarnation will be any less controversial or provoke any less debate than previous military commissions.