Military tribunals in the United States are military courts designed to judicially try members of enemy forces during wartime, operating outside the scope of conventional criminal and civil proceedings. The judges are military officers and fulfill the role of jurors. Military tribunals are distinct from courts-martial.
A military tribunal is an inquisitorial system based on charges brought by military authorities, prosecuted by a military authority, judged by military officers, and sentenced by military officers against a member of an enemy army.
The United States has made use of military tribunals or commissions, rather than rely on a court-martial, within the military justice system, during times of declared war or rebellion.
Most recently, as discussed below, the administration of George W. Bush sought to use military tribunals to try "unlawful enemy combatants", mostly individuals captured abroad and held at a prison camp at a military base at Guantánamo Bay, Cuba.
A military tribunal or commission is most usually used to refer to a court that asserts jurisdiction over persons who are members of an enemy army, are held in military custody, and are accused of a violation of the laws of war. In contrast, courts-martial generally take jurisdiction over only members of their own military. A military tribunal or commission may still use the rules and procedures of a court-martial, although that is not generally the case.
Military tribunals also, generally speaking, do not assert jurisdiction over people who are acknowledged to be civilians who are alleged to have broken civil or criminal laws. However, military tribunals are sometimes used to try individuals not affiliated with a particular state's military who are nonetheless accused of being combatants and acting in violation of the laws of war.
General George Washington used military tribunals during the American Revolution, including the prosecution of British Major John André, who was sentenced to death for spying and executed by hanging. [1] Commissions were also used by General (and later President) Andrew Jackson during the War of 1812 to try a British spy; commissions, labeled "Councils of War," were also used in the Mexican–American War. [1]
The Union used military tribunals during and in the immediate aftermath of the American Civil War. [2] Military tribunals were used to try Native Americans who fought the United States during those Indian Wars which occurred during the Civil War; the thirty-eight people who were executed after the Dakota War of 1862 were sentenced by a military tribunal. The so-called Lincoln conspirators were also tried by military commission in the spring and summer of 1865. The most prominent civilians tried in this way were Democratic politicians Clement L. Vallandigham, Lambdin P. Milligan, and Benjamin Gwinn Harris. All were convicted, and Harris was expelled from the Congress as a result. All of these tribunals were concluded prior to the Supreme Court's decision in Milligan.
The use of military tribunals in cases of civilians was often controversial, as tribunals represented a form of justice alien to the common law, which governs criminal justice in the United States, and provides for trial by jury, the presumption of innocence, forbids secret evidence, and provides for public proceedings. Critics of the Civil War military tribunals charged that they had become a political weapon, for which the accused had no legal recourse to the regularly constituted courts, and no recourse whatsoever except through an appeal to the President. The U.S. Supreme Court agreed, and unanimously ruled that military tribunals used to try civilians in any jurisdiction where the civil courts were functioning were unconstitutional, with its decision in Ex parte Milligan (1866).
Military commissions were also used in the Philippines in the aftermath of the Spanish–American War; as these were used in an active war zone as an expedient of war, they did not fall afoul of Milligan. [1]
During World War II, President Franklin D. Roosevelt ordered a military tribunal for eight German prisoners accused of espionage and planning sabotage in the United States as part of Operation Pastorius. Roosevelt's decision was challenged, but upheld, in Ex parte Quirin (1942). All eight of the accused were convicted and sentenced to death. Six were executed by electric chair at the District of Columbia jail on August 8, 1942. Two who had given evidence against the others had their sentences reduced by Roosevelt to prison terms. In 1948, they were released by President Harry S. Truman and deported to the American occupation zone of Germany.
Hamdi v. Rumsfeld, 542 U.S. 507 (2004), is a United States Supreme Court case in which the Court recognized the power of the U.S. government to detain enemy combatants, including U.S. citizens, but ruled that detainees who are U.S. citizens must have the rights of due process, and the ability to challenge their enemy combatant status before an impartial authority.
It reversed the dismissal by a lower court of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen who was being detained indefinitely as an illegal enemy combatant after being captured in Afghanistan in 2001. Following the court's decision, on October 9, 2004, the U.S. government released Hamdi without charge and deported him to Saudi Arabia, where his family lived and he had grown up, on the condition that he renounce his U.S. citizenship and commit to travel prohibitions and other conditions.
Argued April 28, 2004
Decided June 28, 2004
The currently convened military commissions at the Guantanamo Bay detention camp are governed by the Military Commissions Act of 2009.
An unlawful combatant, illegal combatant or unprivileged combatant/belligerent is a person who directly engages in armed conflict in violation of the laws of war and therefore is claimed not to be protected by the Geneva Conventions. The International Committee of the Red Cross points out that the terms "unlawful combatant", "illegal combatant" or "unprivileged combatant/belligerent" are not defined in any international agreements. While the concept of an unlawful combatant is included in the Third Geneva Convention, the phrase itself does not appear in the document. Article 4 of the Third Geneva Convention does describe categories under which a person may be entitled to prisoner of war status. There are other international treaties that deny lawful combatant status for mercenaries and children.
Ex parte Milligan, 71 U.S. 2 (1866), is a landmark decision of the U.S. Supreme Court that ruled that the use of military tribunals to try civilians when civil courts are operating is unconstitutional. In this particular case, the Court was unwilling to give former President Abraham Lincoln's administration the power of military commission jurisdiction, part of the administration's controversial plan to deal with Union dissenters during the American Civil War. Justice David Davis, who delivered the majority opinion, stated that "martial rule can never exist when the courts are open" and confined martial law to areas of "military operations, where war really prevails", and when it was a necessity to provide a substitute for a civil authority that had been overthrown. Chief Justice Salmon P. Chase and three associate justices filed a separate opinion concurring with the majority in the judgment, but asserting that Congress had the power to authorize a military commission, although it had not done so in Milligan's case.
Rasul v. Bush, 542 U.S. 466 (2004), was a landmark decision of the United States Supreme Court in which the Court held that foreign nationals held in the Guantanamo Bay detention camp could petition federal courts for writs of habeas corpus to review the legality of their detention. The Court's 6–3 judgment on June 28, 2004, reversed a D.C. Circuit decision which had held that the judiciary has no jurisdiction to hear any petitions from foreign nationals held in Guantanamo Bay.
Hamdi v. Rumsfeld, 542 U.S. 507 (2004), is a United States Supreme Court case in which the Court recognized the power of the U.S. government to detain enemy combatants, including U.S. citizens, but ruled that detainees who are U.S. citizens must have the rights of due process, and the ability to challenge their enemy combatant status before an impartial authority.
Yaser Esam Hamdi is a former American citizen who was captured in Afghanistan in 2001. The United States government claims that he was fighting with the Taliban against U.S. and Afghan Northern Alliance forces. He was declared an "illegal enemy combatant" by the Bush administration and detained for almost three years without charge. On October 9, 2004, on the condition that he renounce his U.S. citizenship and commit to travel prohibitions and other conditions, the government released him and deported him to Saudi Arabia, where he had been raised.
The Guantanamo military commissions were established by President George W. Bush – through a military order – on November 13, 2001, to try certain non-citizen terrorism suspects at the Guantanamo Bay prison. To date, there have been a total of eight convictions in the military commissions, six through plea agreements. Several of the eight convictions have been overturned in whole or in part on appeal by U.S. federal courts.
Enemy combatant is a person who, either lawfully or unlawfully, engages in hostilities for the other side in an armed conflict. Usually enemy combatants are members of the armed forces of the state with which another state is at war. In the case of a civil war or an insurrection "state" may be replaced by the more general term "party to the conflict".
Johnson v. Eisentrager, 339 U.S. 763 (1950), was a major decision of the US Supreme Court, where it decided that US courts had no jurisdiction over German war criminals held in a US-administered prison in Germany. The prisoners had at no time been on American sovereign territory.
Ex parte Quirin, 317 U.S. 1 (1942), was a case of the United States Supreme Court that during World War II upheld the jurisdiction of a United States military tribunal over the trial of eight German saboteurs, in the United States. Quirin has been cited as a precedent for the trial by military commission of unlawful combatants.
The Combatant Status Review Tribunals (CSRT) were a set of tribunals for confirming whether detainees held by the United States at the Guantanamo Bay detention camp had been correctly designated as "enemy combatants". The CSRTs were established July 7, 2004 by order of U.S. Deputy Secretary of Defense Paul Wolfowitz after U.S. Supreme Court rulings in Hamdi v. Rumsfeld and Rasul v. Bush and were coordinated through the Office for the Administrative Review of the Detention of Enemy Combatants.
Hamdan v. Rumsfeld, 548 U.S. 557 (2006), is a United States Supreme Court case in which the Court held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay violated both the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions ratified by the U.S.
Salim Ahmed Hamdan is a Yemeni man, captured during the invasion of Afghanistan, declared by the United States government to be an illegal enemy combatant and held as a detainee at Guantanamo Bay from 2002 to November 2008. He admits to being Osama bin Laden's personal driver and said he needed the money.
Peter E. Brownback III is a retired military officer and lawyer. He was appointed in 2004 by general John D. Altenburg as a Presiding Officer on the Guantanamo military commissions. The Washington Post reported: "...that Brownback and Altenburg have known each other since 1977, that Brownback's wife worked for Altenburg, and that Altenburg hosted Brownback's retirement party in 1999."
Lambdin Purdy Milligan was an American lawyer and farmer who was the subject of Ex parte Milligan 71 U.S. 2 (1866), a landmark case by the Supreme Court of the United States. He was known for his extreme opinions on states' rights and his opposition to the Lincoln administration's conduct of the American Civil War.
The Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. The Act's stated purpose was "to authorize trial by military commission for violations of the law of war, and for other purposes".
In United States law, habeas corpus is a recourse challenging the reasons or conditions of a person's confinement under color of law. A petition for habeas corpus is filed with a court that has jurisdiction over the custodian, and if granted, a writ is issued directing the custodian to bring the confined person before the court for examination into those reasons or conditions. The Suspension Clause of the United States Constitution specifically included the English common law procedure in Article One, Section 9, clause 2, which demands that "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."
No-Hearing Hearings (2006) is the title of a study published by Professor Mark P. Denbeaux of the Center for Policy and Research at Seton Hall University School of Law, his son Joshua Denbeaux, and prepared under his supervision by research fellows at the center. It was released on October 17, 2006. It is one of a series of studies on the Guantanamo Bay detention center, the detainees, and government operations that the Center for Policy and Research has prepared based on Department of Defense data.
Boumediene v. Bush, 553 U.S. 723 (2008), was a writ of habeas corpus petition made in a civilian court of the United States on behalf of Lakhdar Boumediene, a naturalized citizen of Bosnia and Herzegovina, held in military detention by the United States at the Guantanamo Bay detention camps in Cuba. Guantánamo Bay is not formally part of the United States, and under the terms of the 1903 lease between the United States and Cuba, Cuba retained ultimate sovereignty over the territory, while the United States exercises complete jurisdiction and control. The case was consolidated with habeas petition Al Odah v. United States. It challenged the legality of Boumediene's detention at the United States Naval Station military base in Guantanamo Bay, Cuba as well as the constitutionality of the Military Commissions Act of 2006. Oral arguments on the combined cases were heard by the Supreme Court on December 5, 2007.
In United States law, habeas corpus is a recourse challenging the reasons or conditions of a person's detention under color of law. The Guantanamo Bay detention camp is a United States military prison located within Guantanamo Bay Naval Base. A persistent standard of indefinite detention without trial and incidents of torture led the operations of the Guantanamo Bay detention camp to be challenged internationally as an affront to international human rights, and challenged domestically as a violation of the Due Process Clause of the Fifth and Fourteenth amendments of the United States Constitution, including the right of petition for habeas corpus. On 19 February 2002, Guantanamo detainees petitioned in federal court for a writ of habeas corpus to review the legality of their detention.
Ex parte Vallandigham, 68 U.S. 243 (1864), is a United States Supreme Court case, involving a former congressman Clement Vallandigham of Ohio, who had violated an Army order against the public expression of sympathy for the Confederate States and their cause. Vallandigham was tried before a military tribunal by Major General Ambrose E. Burnside for treason after he delivered an incendiary speech at Mount Vernon; he then appealed the tribunal's verdict to the Supreme Court, arguing that he as a civilian could not be tried before a military tribunal.
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