Military Tribunals and the American Court System - Essay Example

Military Tribunals: Their Legitimate Use and ity Since man began to go to war eons ago he has set out to make war more civilized. Over the centuries, this effort has culminated in national and international rules of war that are accepted, at least in principle, by the warring factions. These rules spell out the proper conduct of soldiers and the punishments for violations. Countries and armies define what conduct is unacceptable to their cause and create vehicles for prosecution of the transgressors. Historically these rules were aimed at discouraging cooperation with the enemy, spying, or comforting the enemy. Modern warfare has extended the rules to include cowardice, dereliction of battlefield duty, mutiny, and desertion. International agreements define the proper treatment of prisoners and the acceptable treatment of civilians during times of war. This has had a practical reason as it has traditionally prevented field commanders from committing atrocities that would so inflame the enemy that they would seek widespread revenge on their opponent. To assure that armies would keep war civilized, special processes have been set up to deal with those that transgress the rules and prearranged agreements. A court martial is often used to prosecute individuals of one's own armed forces. However, when the enemy is conquered and has violated the principle and sensibilities of the victor, they can become the defendants in a military tribunal, a seldom used process to handle unusual cases in unique situations. This paper will explain the process of the military tribunal. It will discuss the history of US tribunals and their relevance to international events and conventions. It will define the difference between civilian courts, courts martial, and the military tribunal. It will further explore the requirements and rationalizations for holding a military tribunal as opposed to civilian courts. More importantly, it will discuss the constitutional evolution of the military tribunal and will examine key cases from the past. In light of 9/11 and recent actions by the Bush administration, it will explain the status of the tribunal today and the prisoners held in the war on terror. It will provide a backdrop for the controversy that surrounds this important issue. This paper will not form any legal opinion on the constitutionality of the military tribunal. It also will not offer a social or political opinion of the process. These are beyond the scope of this research. It will, however, offer the rationale used by the courts and government officials to arrive at their various opinions. It will include both sides of the controversy as seen by those that are most directly involved. It will highlight the unusual cases in history that have created the controversy over congressional and presidential power with respect to military tribunals. To begin a discussion of the military tribunal, it needs to be put into the context of more conventional and familiar court systems. The military tribunal differs from our civilian courts and a court martial in their purpose, approach, rules of evidence, and method of operation. Court martial is used to prosecute members of the military for criminal offenses that may be a violation of the articles of war or crime such as theft, violence, or criminal activity. They are similar to civilian courts in their guarantee of rights except that they make no allowance for a jury of peers. The jury is composed of appointed military officers. They do follow the same rules of evidence and due process for the defendant. Where a civilian court is used to prosecute civilians who violate the civilian law, tribunals have historically been used for the purpose of prosecuting an armed service's personnel who have violated the articles of war or international agreements. However they have occasionally been used in extraordinary situations to control the civilian population. The war on terror has brought about new definitions of 'enemy combatant' and the current administration has advocated that civilians and US citizens that are a danger to the nation should be tried by a military tribunal. Trying these cases in a military court holds several advantages for the prosecution over civilian courts. Unlike the civilian court, which is adversarial, the tribunal is an inquisitorial system. In an adversarial system, the court plays an impartial role as referee to assure that the trial is fair and the defendant receives due process. In an inquisitorial system, the court is active in pursuing evidence, questioning, fact finding, and determination of guilt. The jurors in a military tribunal are appointed officers unlike a civilian court that requires an impartial jury of peers. The tribunal system also has fewer restrictions for the prosecution. Convictions in civilian courts must be unanimous, while military tribulnals routinely only require a two-thirds majority for conviction (Military Commission). This may be increased to unanimous where the death penalty is involved. The rules of evidence are also more lax in a military tribunal. Hearsay evidence may be allowed and coerced testimony may be admitted. Evidence is admissible if it. "[...] would have probative value to a reasonable person" (Military Commission Order No. 1). There is no right to an appeal in a military tribunal. There may be a judicial review, but the court does not guarantee the defendant any particular rights. Of more importance to the military is the ability to hold the trial in secret without the confrontation of witnesses. It is the different rules and requirements of a military tribunal that have sparked public debate over the centuries, and these are the issues at the core of the debate today. According to Greene, "Opponents of military tribunals have argued that they violate guarantees provided by the constitution [...]". However, advocates of a tribunal trial for the suspected terrorists held by the US government have relied on the precedent of Lincoln and Roosevelt and contend that the trials are necessary due the nature of the war (Greene). Traditionally, the Supreme Court has ruled that US citizens may not be tried in a military tribunal. In 1918, Attorney General Thomas W. Gregory went further and concluded that no person could be charged for an offense, "[...] committed outside of the field of military operations or territory under martial law or other peculiarly military territory except members of the military or naval forces [...]" (Fisher 88). This was reaffirmed in 1957 when a case involving a military dependent stationed in Germany. The Supreme Court ruled that, "Citizens must be tried in Article III courts, not military courts" (Fisher 159). In fact, it has been long held that military tribunals were a court of last resort. They were to be used only for the sake of expedience when necessary or the absence of any civilian mechanism. The issue of the enemy combatants held at Guantanamo challenges this notion. The articles of war adopted by the US during the revolutionary war were for the most part a carry over from the British tradition. The First Continental Congress of 1774 objected to the British that colonists "may be transported to England, and tried thereupon accusations [...] of treasons committed in the colonies" (qtd. in Fisher 5). They had protested the lack of the privilege of being tried by a jury of their peers. As hostilities between the factions rose, the Continental Congress in 1775 created a committee "to bring in a draft of Rules and regulations for the government of the army" (qtd. in Fisher 6). After the Declaration of Independence and the start of the war, General Washington issued orders that prohibited soldiers from "plundering any person whatsoever, whether Tories or others" (qtd. in Fisher 7). Washington further expected his soldiers to act humanely to women, children, and prisoners of war. During the war, Washington issued an order, which first defined the use of the military tribunal by the US government. On August 21, 1776 Congress adopted a resolution that called for all persons not having allegiance to America and found lurking near enemy encampments or fortifications be considered spies and sentenced to death by a military court (Fisher 9). Nathan Hale was the first American of record to be sentenced under this resolution by a military court. Andrew Jackson tested the limits of military courts during the War of 1812. During the war, Jackson had placed New Orleans under martial law and declared that any one found in the streets after 9 PM "shall be apprehended as spies and held for examination" (qtd. in Fisher 25). After the successful conclusion of the war, Jackson left martial law in place. He had a critic arrested and directed him to be tried by a military tribunal. A judge, attempting to secure constitutional protection for the defendant was also arrested. Their convictions were never secured largely due to the high profile of the defendants, a newspaper publisher and a federal judge. It did however initiate the debate on the limits of the executive branch and the strength of the Constitution. At the outbreak of the Civil War, Lincoln issued proclamations that suspended the writ of habeas corpus and placed blockades on selected territories. In an explanation to Congress, Lincoln reasoned, "[...] whether strictly legal or not, were ventured upon under what appeared to be a popular demand and a public necessity [...]" (qtd. in Fisher 41). Lincoln had used the powers of Congress to grant him the authority. The next day, Attorney General Edward Bates submitted his legal analysis of Lincoln's actions. In it he contended that the fundamental right of a prisoner to request that the court defend the detention could be suspended during times of "great and dangerous insurrection" (qtd. in Fisher 42). Though Bates found that the concentration of such power in the presidency was dangerous, there was always a potential for abuse by any branch and the President's power was "temporary and exceptional" (qtd. in Fisher 43). In the case of Lincoln, as well as the case of Washington, actions were taken in extreme and unusual circumstances. The Supreme Court has also taken into consideration the availability of legitimate state courts when ruling on the constitutionality of a military tribunal. In 1864, Lambdin Milligan was arrested by a Union General for conspiracy to release and arm Confederate prisoners. He was tried 'ex parte' meaning he had no right to notification or attendance at the trial. His right of habeas corpus had been previously suspended. He was tried before the military court in Indiana, convicted, and sentenced to death even though the civilian courts were in operation at the time. Milligan appealed to a civilian court for a writ of habeas corpus. In 1866, the Supreme Court ruled, "that suspending the right of habeas corpus and trying civilians in military courts when there were civilian courts still operating violated the Constitution" (Patrick 125). Thus, after the extreme circumstances of the civil war, the court was reigning in the power of the presidency. After the conclusion of World War II, the Japanese were subject to the agreements of the Potsdam Resolution. Though the Japanese surrender had been to the Allied Powers, the US held the overwhelming power in the post war period (Piccigallo 6). As Supreme Allied Commander, General Douglas MacArthur assumed responsibility for the International Tribunal. Though it was to be an international trial, the US heavily influenced the Far East Commission (FEC). The FEC " [...] generally recognized, respected, and followed the lead of the United States" (Piccigallo 6). To many, these trials were to be a new emerging spirit of international cooperation towards the vision that Roosevelt had of world peace. The China Press at the time characterized the prosecution as advancing "the cause of peace and right notions of international law" (qtd. in Piccigallo 8). Ideally, these war criminals would have been tried in Japanese courts, but there was no legitimate Japanese government that could convene a court. The FEC was being used as a legitimate court of last resort. The power to convene and prosecute has, until the last 60 years, resided with Congress. However, since the Roosevelt case of the Nazi Saboteurs in 1942, the power has moved from the elected members of Congress and into the executive branch (Fisher xi). In the case of the Nazi Saboteurs, the enemy was caught in America and was believed to be plotting to commit acts of violence against the nation during a time of war. Roosevelt, declaring executive power, directed a highly authoritarian military tribunal to try the eight defendants. Roosevelt felt that the unusual nature of the offense and the need for secrecy superseded any right to a constitutional civilian court. The Supreme Court had ruled that in no case can Congress or the President "posses power not derived from the Constitution" (Fisher 117). However, it was reasoned that Congress had granted Roosevelt the authority exercised. This 1942 case was a landmark in the move away from congressional to executive authority to define detainees and hold military tribunals. The court had previously held that defendants in a tribunal could not be US citizens. Relying on the authority granted to Roosevelt in 1943, President Bush issued a military order broadening the scope of the definition of enemy combatant. The 1942 Roosevelt case had defined "lawful combatants" as uniformed soldiers and "unlawful combatants" as enemies who are not distinguishable from the civilian population by dress or uniform (Fisher 117). The November 13, 2001 order from President Bush defined unlawful enemy combatant as "[...] any individual who is not a United States citizen [and] is or was a member of the organization known as al Qaida; has engaged in, aided or abetted, or conspired to commit, acts of international terrorism" (Bush). In issuing this order, the President opened the possibility for these subjects to be tried in military tribunals. According to law, the defendant must meet certain definitions of an enemy to be tried in a military tribunal. They can not be considered prisoners of war (POW) which would accord the extra protection under the Geneva Conventions. To obtain POW status, the combatant must use force with discrimination, adhere to the law of armed conflict, and not disguise themselves as non-combatants (Elsea 2,3). Clearly the terrorists responsible for 9/11 and similar acts of terrorism do not seem to fit the definition of a POW and are in a special class. Though Bush used the 1942 Roosevelt decision to base the 2001 order on, there were significant differences in the implications. The Roosevelt 1942 case was targeted at 8 specific defendants for a specific crime. Bush broadened the definition to include a whole class of people that may be ideologically based. He further followed Roosevelt's strategy of having judicial review be performed "[...] by me or by the Secretary of Defense if so designated by me for that purpose" (Fisher 169). This order gave the Executive branch sweeping powers against a vaguely defined enemy for vaguely defined crimes or the intention to commit such crimes. This amounted to a lack of access to Constitutional guarantees. This order was later extended to also include US citizens (Fisher xii). In issuing the 2001 order, the Bush administration failed to consider a 1945 action by Roosevelt reflecting the experience of 1942. In 1944, Nazi Saboteurs were again caught entering the United States for the purpose of sabotage. However, in this case the President directed the men be tried by officers appointed by commanding Generals and the judicial review be performed by trained legal experts in the Judge Advocate's office (Fisher 129). In the Bush order of 2001, the President holds the authority for judicial review. This broad new use of executive power places the debate into the current context of the enemy combatants held at Guantanamo and elsewhere. The current war on terror takes on some of the overtones of an international spirit to rid the world of terrorism, much in the vision of Roosevelt and the FEC. However, the modern war on terrorism does not require that the defendants commit a crime to be held. They are also held, to be tried, without any constitutional guarantees and may include US citizens. In these important ways, the Bush administration has broken from previous precedent. The administration uses the reasoning of Lincoln's as being "temporary and exceptional" when it is rephrased as "in light of grave acts of terrorism and threats of terrorism" (Bush). Yet, the definition is so vague as to endanger the civil liberties of all citizens. This is the danger that lies in the power of the presidency that Bates spoke about in 1861 when Lincoln suspended the writ of habeas corpus. In today's campaign against terrorism, using the Patriot Act to define an act of terrorism could include a wide range of criminal acts already outlawed by federal statute. "The definition in the Anti Terrorism and Effective Death Penalty Act of 1996 is also vague and sweeping" (Michaels 207). The concentrated powers of the presidency and the broad scope of their application rests at the center of the debate today. The US State Department routinely weighs in an opinion on the fairness of military tribunals used around the world. The State Department has "[...] repeatedly criticized the use of military tribunals to try civilians and other similar limitations on due process around the world" ("Fact Sheet"). They criticize military tribunals in Peru that have tried civilians for terrorism and state that, "[...] proceedings in these military courts - and those for terrorism in civilian courts - do not meet internationally accepted standards of openness, fairness, and due process" ("Fact Sheet"). In fact, in 1996 Crona and Richardson warned that, "Trial of terrorist war criminals by military tribunal may appear to be a novel concept, and suggestive of the way terrorists are handled in less developed democracies such as Egypt and Peru". These criticisms are leveled at the US by groups and persons concerned with the presidential abuse of power. Critics contend that civilian court such as the federal court system is a more appropriate avenue for prosecution. Others have expressed concern that there are far too few specific guidelines detailing the detention, rules of trial, and procedure of evidence to assure any amount of fairness in a military tribunal. David Cole, law professor at Georgetown University Law Center and an attorney for the Center for Constitutional Rights, puts the result as "[...] you could be convicted on evidence that you've never had an opportunity to see. Secondly, there's no independent review. The president picks you as a defendant, and then the ultimate decider on whether you're guilty is the president" (qtd. in Warner). John Dean, former White House counsel under Nixon, contends that the defendants would receive many if not all the constitutional protections of a civilian court. He asserts, "Whether or not the Constitution forces the President to [...] it is likely the Defense Secretary will choose to set up procedures that respect all, or virtually all of these rights". His contention is that an inquisitorial process could respect and uphold rights and rules that are not generally afforded to a military tribunal. Ruth Wedgewood, professor of international law at Johns Hopkins University, argues that a civilian court would be an inappropriate venue for trial and states Military courts are the traditional venue for enforcing violations of the law of war. The Sept. 11 murder of 4,000 civilians was an act of war, as recognized by the U.N. Security Council in two resolutions endorsing America's right to use force in self-defense. Wedgewood further contends that the task of protecting jurors, transporting the large number of prisoners, and the burden on the system renders it an extreme case in need of special treatment. Ultimately, Congress will decide the form and structure of the trial of the Guantanamo detainees and others. In a recent Supreme Court decision, the court ruled 5-3 that the proposed tribunals were in violation of the Uniform Code of Military Justice and the Geneva Convention which protects prisoners during wartime (Beehner). This ruling supports the administration's critics who contend that the executive branch "[...] oversteps its legal authority and largely disregards the laws of war" (Beehner). This is one more action that the court has taken in times of temporary and extreme circumstances to assure a balance between the different branches of government. As can be seen, the military tribunal has played an important part in our nation's history. Though generally relegated to times of war, the new war on terrorism has brought about increased efforts to redefine the enemy who does not fit the traditional model. The Supreme Court has at times in the past allowed certain transgressions of the Constitution by a presidency. These powers were limited by future court action after the war such as in the case of Milligan ex parte. In the ongoing war on terror, there may be no end in the foreseeable future. As in the recent case, the Supreme Court steps in to limit the power of the presidency in respect to military tribunals and reasserts Congress' power. The debate as to the proper use of civilian courts versus military tribunals has raged since the days of Washington and will likely continue into the future. Military courts, reserved as the court of last resort, is a necessary part of our nation's security. They allow the President to act with expedience and conviction in times of a national security threat such as 9/11. The Supreme Court acts as the regulation to see that the balance does not tip as to deny anyone, citizen and non-citizen, the undue loss of guaranteed constitutional rights. Works Cited Beehner, Lionel. "High Court Reins in Administration." Daily Analysis. 30 June 2006. Council on Foreign Relations. 28 Nov. 2006 Bush, George W. "President Issues Military Order." The White House. 2001. U.S. Government. 28 Nov. 2006 . Crona, Spencer A., and Neal J. Richardson. "Justice For War Criminals of Invisible Armies: A New Legal and Military Approach to Terrorism." Oklahoma University Law Review (1996). 28 Nov. 2006 . Dean, John. "The Critics are Wrong." FindLaw Writ. 23 Nov. 2001. 28 Nov. 2006 . Elsea, Jennifer . "Trying Terrorists as War Criminals." CRS Report for Congress. 29 Aug. 2001. Congressional Research Service. 28 Nov. 2006 . "Fact Sheet: Past U.S. Criticism of Military Tribunals." Human Rights News. 28 Nov. 2001. Human Rights Watch. 28 Nov. 2006 . Fisher, Louis. Military Tribunals and Presidential Power; American Revolution to the War on Terrorism. Lawrence, KS: University Press of Kansas, 2005. Greene, Richard A. "Analysis: Military Tribunals." BBC News 29 June 2006 [Washington] . 28 Nov. 2006 . Michaels, William C. No Greater Threat : America After September 11 and the Rise of a National Security State . New York: Algora Publishing, 2002. Military Commission Order No. 1, Department of Defense, (2002). Patrick, John J. The Supreme Court of the United States : A Student Companion. 2nd ed. New York: Oxford University Press, 2001. Piccigallo, Philip R. The Japanese on Trial: Allied War Crimes Operations in the East. Austin, TX: University of Texas Press, 1979. Warner, Margaret. "Military Tribunals." Online News Hour. 26 May 2003. PBS. 28 Nov. 2006 . Wedgwood, Ruth. "The Case for Military Tribunals." Wall Street Journal 3 Dec. 2001. 28 Nov. 2006 . Read More