Military tribunal

A military tribunal is a kind of military court designed to 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 a military authority, prosecuted by a military authority, judged by military officers, and sentenced by military officers against a member of an adversarial force.

Military tribunals in the United States

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.

General George Washington used military tribunals during the American Revolution. Bradley & Goldsmith, "Foreign Relations Law", 2nd Edition, Aspen Publishers, 2006, p.266.] 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.

The Union used military tribunals during and in the immediate aftermath of the American Civil War [For general history of Civil War commissions, see Neely, M. "The Fate of Liberty: Abraham Lincoln and Civil Liberties" (1991) ISBN 0-19-506496-8 and Klement, F. "Dark Lanterns: Secret Political Societies, Conspiracies, and Treason Trials in the Civil War" (1984) ISBN 0-8071-1174-0. For extensive discussion of the Lincoln conspiracy trial, see Kauffman, M. "American Brutus: John Wilkes Booth and the Lincoln Conspiracies" (2004) ISBN 0-375-50785-X] . Military tribunals were used to try Native Americans who fought the United States during the 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 Gwynn Harris. All were convicted, and Harris was expelled from the Congress as a result. It must be noted that 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, 71 U.S. 2 (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".

President Franklin D. Roosevelt ordered military tribunals for eight German prisoners accused of planning sabotage in the United States as part of Operation Pastorius. Roosevelt's decision was challenged, but upheld, in "Ex parte Quirin". 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 and deported to the American Zone of occupied Germany.

Most recently, as discussed below, the administration of George W. Bush has 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.

Jurisdiction

Courts-martial generally take jurisdiction only over members of their own military and sometimes, civilians present with them. Even when court-martial procedures are used to try enemies, the body convened is often instead called a military tribunal or military commission.

A military tribunal or military commission, in contrast, is generally used to refer to bodies who assert jurisdiction over persons who are held in military custody and stand accused of being enemies in a conflict in which the military is engaged who a combatants who have violated a law of war.

Military tribunals convened to impose punishment (as opposed to tribunals established solely to classify persons in military custody as combatants or non-combatants), generally limit themselves to accusations that an individual violated the laws of war. Military tribunals generally do not consider cases where an individual is merely being accused of being a combatant on behalf of the enemy.

Military tribunals also, generally speaking, do not assert jurisdiction over people who are acknowledged to be non-combatants who have committed ordinary civil crimes. But, military tribunals are sometimes used to try individuals not affiliated with a national military who are nonetheless accused of being combatants acting in violation of the laws of war.

Controversy

While tribunals can provide for quick trials under the conditions of war, many critics say this occurs at the expense of justice.

Time constraints and the inability to obtain evidence can greatly hamper a case for the defense. Others have tried to use this argument in favor of commissions, as issues such as chain of evidence and hearsay, which are applied in civilian and criminal trials, could preclude conviction if such rules were applied (e.g., how to claim a bomb was in proper custody from a battlefield to a courtroom?) Civilian trials must be open to the public, while military tribunals can be held in secret. Because conviction usually relies on some sort of majority quota, the separability problem can easily cause the verdict to be displeasing not only to the defendant but also to the tribunal.

Decisions made by a military tribunal cannot be appealed to federal courts. The only way to appeal is a petition for a panel of review (which may or may not include civilians as well as military officers) to review decisions, however the President, as commander-in-chief, has final review of all appeals. No impartial arbiter is available.

Although such tribunals do not satisfy most protections and guarantees provided by the United States Bill of Rights, that has not stopped Presidents from using them, nor the U.S. Congress from authorizing them, as in the Military Commissions Act of 2006. All U.S. Presidents have contended that the Bill of Rights does not apply to noncitizen combatants.

Trial by military commission of the Guantanamo detainees

President George W. Bush has ordered that certain detainees imprisoned at the Naval base at Guantanamo Bay were to be tried by military commissions. This decision sparked controversy and litigation. On June 29, 2006, the U.S. Supreme Court limited the power of the Bush administration to conduct military tribunals to suspected terrorists at Guantánamo Bay.

In December 2006, the Military Commissions Act of 2006 was passed and authorized the establishment of military commissions subject to certain requirements and with a designated system of appealing those decisions. A military commission system addressing objections identified by the U.S. Supreme Court was then established by the Department of Defense. Litigation concerning the establishment of this system is ongoing. [http://www.scotusblog.com/movabletype/archives/2007/06/hamdan_seeks_ne_1.html#comments] [http://www.scotusblog.com/movabletype/archives/2007/06/broad_new_chall.html#more] As of June 13, 2007, the appellate body in this military commission system had not yet been constituted.

Three cases had been commenced in the new system, as of June 13, 2007. One detainee, David Matthew Hicks plea bargained and was sent to Australia to serve a nine month sentence. [ [http://www.usatoday.com/news/world/2007-03-30-guantanamo-hicks_N.htm Australian Gitmo detainee sentenced - USATODAY.com ] ] Two case were dismissed without prejudice because the tribunal believed that the men charged had not been properly determined to be persons within the commission's jurisdiction on June 4, 2007, and the military prosecutors asked the commission to reconsider that decision on June 8, 2007. [http://www.scotusblog.com/movabletype/archives/2007/06/a_hitch_in_the.html#comments] One of the dismissed cases involved Omar Ahmed Khadr, who was captured at age 15 in Afghanistan after having allegedly killed a U.S. soldier with a grenade. The other dismissed case involved Salim Ahmed Hamdan who is alleged to have been Osama bin Laden's driver and is the lead plaintiff in a key series of cases challenging the military commission system. The system is in limbo until the jurisdictional issues addressed in the early cases are resolved.

History

As field commander of Swedish forces during the Thirty Years War, Gustavus Adolphus was among the first to introduce a military commission as a new techniques to enforce discipline.

Further reading

*Macomb, Alexander, Major General of the United States Army, [http://books.google.com/books?hl=en&id=sl4NAAAAIAAJ&dq=Alexander+Macomb&printsec=frontcover&source=web&ots=hzdytokkfG&sig=-4UUZ8tNmejoS8kJYIOQ1_nkf88&sa=X&oi=book_result&resnum=9&ct=result "The Practice of Courts Martial", (New York: Harper & Brothers, 1841) 154 pages.]
*Macomb, Alexander, "A Treatise on Martial Law, and Courts-Martial". (Charleston: J. Hoff, 1809), republished (New York: Lawbook Exchange, June 2007), ISBN 1584777095, ISBN 978-1584777090, 340 pages. [ [http://www.antiqbook.com/boox/law/44805.shtml Macomb on Martial Law and Courts Martial.] ]

ee also

*Guantanamo military commission
*Military rule
*Military law
*Office of Military Commissions—Office that would administer the trials in Guantánamo
*Captain John Carr—former prosecutor who described the Guantánamo trials as "rigged"
*Major Robert Preston—former prosecutor who described the Guantánamo trials as "rigged"
*Captain Carrie Wolf—former prosecutor who described the Guantánamo trials as "rigged"
*Combatant Status Review Tribunal
*Administrative Review Board

References

External links

* [http://www.dod.gov/news/commissions.html Official DoD site describing the history or Military Commissions]
* [http://digital.library.unt.edu/govdocs/crs/permalink/meta-crs-5797 Congressional Research Service (CRS) Report "Military Tribunals: Historical Patterns and Lessons"]
* [http://jurist.law.pitt.edu/currentawareness/militarycommissions.php Military Tribunals - legal news and resources] , JURIST
* [http://www.fpc.state.gov/documents/organization/7951.pdf Terrorism and the Laws of War: Trying Terrorists as War Criminals before Military Commissions (.pdf)] , Congressional Research Office - Library of Congress, December 11, 2001
* [http://news.bbc.co.uk/2/hi/americas/1701789.stm Analysis: Military Tribunals] ,, BBC, March 4, 2003
* [http://www.theage.com.au/articles/2004/09/16/1095320895841.html?oneclick=true Prosecutor doubts over Guantánamo trials] , The Age, September 17, 2004
* [http://www.cbsnews.com/stories/2004/11/23/opinion/main657375.shtml Executive Power, Gonzales Style] , CBS News, November 23, 2004
* [http://www.abc.net.au/news/newsitems/200508/s1426797.htm Leaked emails claim Guantánamo trials rigged] , The Age, August 1, 2005
* [http://www.abc.net.au/news/newsitems/200508/s1428749.htm Third prosecutor critical of Guantánamo trials] , The Age, August 3, 2005
* [http://www.washingtonpost.com/wp-dyn/content/article/2005/09/06/AR2005090601705.html?nav=hcmodule The Guantánamo Trials] , Washington Post, September 7, 2005
* [http://jurist.law.pitt.edu/forumy/2005/10/guantanamo-process-as-public-danger.php Guantánamo Process as a Public Danger] , JURIST, October 11, 2005