Military tribunals in the United States aremilitarycourts designed tojudicially try members of enemy forces duringwartime, operating outside the scope of conventionalcriminal andcivil proceedings. The judges are militaryofficers and fulfill the role ofjurors. Military tribunals are distinct fromcourts-martial.
A military tribunal is aninquisitorial system based on charges brought by military authorities, prosecuted by a military authority, judged by military officers, andsentenced 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 acourt-martial, within the military justice system, during times of declared war or rebellion.
Most recently, as discussed below, the administration ofGeorge 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 atGuantánamo 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 thelaws 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 becivilians 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 beingcombatants and acting in violation of the laws of war.
GeneralGeorge Washington used military tribunals during theAmerican Revolution, including the prosecution of BritishMajorJohn André, who was sentenced to death forspying and executed byhanging.[1] Commissions were also used by General (and later President)Andrew Jackson during theWar of 1812 to try a British spy; commissions, labeled "Councils of War," were also used in theMexican–American War.[1]
TheUnion used military tribunals during and in the immediate aftermath of theAmerican Civil War.[2] Military tribunals were used to tryNative Americans who fought theUnited States during thoseIndian Wars which occurred during the Civil War; the thirty-eight people who were executed after theDakota War of 1862 were sentenced by a military tribunal. The so-calledLincoln conspirators were also tried by military commission in the spring and summer of 1865. The most prominent civilians tried in this way were Democratic politiciansClement L. Vallandigham,Lambdin P. Milligan, andBenjamin 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 inMilligan.
The use of military tribunals in cases of civilians was often controversial, as tribunals represented a form of justice alien to thecommon 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 nolegal 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 wereunconstitutional, with its decision inEx parte Milligan (1866).
Military commissions were also used in the Philippines in the aftermath of theSpanish–American War; as these were used in an active war zone as an expedient of war, they did not fall afoul ofMilligan.[1]
DuringWorld War II, PresidentFranklin D. Roosevelt ordered a military tribunal for eightGerman prisoners accused ofespionage and planningsabotage in the United States as part ofOperation Pastorius. Roosevelt's decision was challenged, but upheld, inEx parte Quirin (1942). All eight of the accused were convicted and sentenced to death. Six were executed byelectric chair at theDistrict 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 PresidentHarry S. Truman and deported to theAmerican occupation zone of Germany.
Hamdi v. Rumsfeld, 542 U.S. 507 (2004), is aUnited States Supreme Court case in which the Court recognized the power of theU.S. government to detainenemy combatants, including U.S. citizens, but ruled that detainees who are U.S. citizens must have the rights ofdue process, and the ability to challenge their enemy combatant status before an impartial authority.
It reversed the dismissal by a lower court of ahabeas corpus petition brought on behalf ofYaser Esam Hamdi, aU.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 toSaudi 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 theGuantanamo Bay detention camp are governed by theMilitary Commissions Act of 2009.
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