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Military Tribunals
Military Tribunals

On November 13, 2001, President George W. Bush issued a new military order in the war against terrorism. The order called for the secretary of defense to detain non-citizens accused of international terrorism. The order specifically applies to members of the terrorist organization Al Qaeda. But it also includes all those who have engaged in, aided, or conspired to commit international terrorist acts against the United States or its citizens. Those who knowingly harbor such individuals are also subject to the order. Under the order, the secretary is charged with establishing military tribunals (also called military commissions) to conduct trials of non-citizens accused of terrorism either in the United States or in other parts of the world.

A military tribunal, or commission, is different from a regular civilian criminal court. In a tribunal, military officers act as both judge and jury. After a hearing, guilt is determined by a vote of the commissioners. Unlike a criminal jury, the decision does not have to be unanimous.

The order required the U.S. Secretary of defense to establish procedures for the commissions that would assure an accused a "full and fair trial."

On March 21, 2002, the Department of Defense issued its proposed procedures for the commissions. Under the rules, a commission will consist of three to seven members appointed by the secretary of defense or by a committee established by the secretary. All commission members will be officers in the U.S. armed forces. A presiding officer will be chosen for each commission and must be a military lawyer. The presiding officer will have the authority to admit or exclude evidence. The officer may also conduct the trial in closed session if this is necessary to protect classified information or to assure the safety of defendants, witnesses, or commission members.

Under the procedures, a defendant would receive many, but not all, of the due process protections guaranteed to a defendant in a U.S. civilian criminal court. The tribunal procedures guarantee the following due process protections:

  • An accused will be provided with defense counsel and can also have a lawyer of his or her own choosing, either a military or civilian attorney.
  • The accursed will be presumed innocent until proven guilty. The prosecution must prove its case beyond a reasonable doubt.
  • An accused may refuse to testify during trial. The accused will have the right to obtain witnesses and documents necessary for the defense.
  • A person accused may not be tried twice before a military commission for the same offense
  • An accused will be allowed to negotiate and enter into a plea agreement.

Under the procedures, however, a person can be convicted in a commission trial by a two-thirds majority of the commissioners: Unanimous verdicts are not required. Evidence, including previous trial testimony and written statements, will be admissible if it tends to prove or disprove the case at hand. The exclusionary rule, which keeps illegally seized evidence out of a civilian criminal trial, does not apply. The procedures do not provide for appeals from a guilty verdict to civilian judges. They do, however, call for "reviews" of a verdict by a three-member panel selected by the secretary of defense. No verdict will be final until approved by the president or the secretary of defense .

Critics of President Bush's order worry that defendants in military tribunals may not receive a fair trial. They think that using tribunals to try non-U.S. citizens suspected of terrorism might undermine American credibility overseas. President Bush and his administration defend their use. "We are an open society," stated the president, "but we are at war. We must not let foreign terrorists use the forums of liberty to destroy freedom itself."

Military Tribunals in American History

This is not the first time military tribunals have been used in American history. During the Revolutionary War, General George Washington ordered a military commission to try Major John Andre, a British officer accused of spying. The commission convicted him, and Andre was hanged.

The adoption of the U.S. Constitution in 1787 gave the president broad powers in times of war as commander in chief of the armed forces (Article II, Section 2). It also gave Congress the power to define and punish offenses against the law of nations (Article I, Section 8, Clause 10).

In the U.S.-Mexican War (1846-48), the U.S. government first used military commissions. In Mexico, commissions tried guerrilla fighters and other resisters who were not part of the Mexican army.

During the Civil War, President Abraham Lincoln proclaimed that all rebels arrested within the United States would be subject to martial law. Military commissions tried an estimated 4,000 people. One was Southern sympathizer Lambdin P. Milligan, an Indiana lawyer and politician. Milligan was involved in a failed conspiracy. He had planned to seize federal armories in the Midwest, arm Southern sympathizers, and lead a rebellion against federal troops. He was tried, found guilty, and sentenced to hang for inciting insurrection. Milligan filed a petition with the federal district court in Indiana claiming that he was being held illegally.

The war ended before Milligan's sentence could be carried out, and his case eventually reached the U.S. Supreme Court. In 1866 in Ex Parte Milligan, the court unanimously held that martial law should be confined to areas of actual warfare. The courts never closed in Indiana during the war, and the state was far removed from the battlefront. The court therefore concluded that Milligan should have been tried in a regular civilian criminal court, not by military tribunal. In sweeping language, the court declared: "The Constitution of the United States is the law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances."

Another famous military tribunal took place near the end of the Civil War. After the assassination of President Lincoln, eight people were accused of participating in a conspiracy to kill the president. President Andrew Johnson appointed a military commission, the Hunter Commission, to try the accused. The commission found all eight guilty; four were hanged and four were sentenced to long prison terms. Historians and legal scholars have debated these results ever since. Some claim that several of the accused did not deserve the death penalty or long prison sentences.

World War II

Military tribunals were again used during the Second World War. In 1942, a U-boat landed eight German soldiers on Long Island, New York, under the cover of darkness. Dressed as civilians, their mission was to sabotage U.S. defense factories. The operation failed when two of the men defected and informed authorities. The FBI arrested the saboteurs and turned them over to the U.S. military for trial. Shortly after the arrest, President Franklin D. Roosevelt authorized the use of military tribunals for trying those who entered the country to commit sabotage.

Within one month of capture, the eight Germans were tried by a military tribunal of army officers. The prosecution team consisted of 10 military lawyers. A single military lawyer, Colonel Kenneth Royall, represented the defendants. The tribunal found all eight guilty. Six were sentenced to death by electrocution, and the two defectors were sentenced to prison terms.

The defendants appealed to the U.S. Supreme Court claiming that under the Milligan decision, they should have been tried in a U.S. civilian criminal court. Meeting in a special summer session, the court heard arguments and issued a unanimous opinion. Writing for the court in Ex Parte Quirin, Chief Justice Harlan Fiske Stone denied the appeal. The court noted that Congress had authorized the use of military tribunals for offenses against the law of war. (The law of war is based on international treaties and, among other things, it forbids a country's military personnel from operating in another country out of uniform.) The court went on to distinguish the Milligan case. It ruled that the saboteurs were belligerents (enemy soldiers at war), who because they had entered the country out of uniform to conduct sabotage, had violated the law of war. They therefore were not entitled to the status of prisoners of war. Nor were they entitled to the protections under the Milligan case, which only applied to non-belligerents not associated with the enemy. This was true even for one German saboteur who claimed U.S. citizenship. "Citizenship in the United States of an enemy belligerent," wrote the court, "does not relieve him from the consequences of a belligerency which is unlawful because it is a violation of the law of war."

At the end of World War II, the U.S. armed forces also conducted military tribunals. They tried some 1,600 persons in Germany and nearly a thousand Japanese military personnel accused of committing war crimes. One of the Japanese, General Tomoyuki Yamashita, had commanded enemy forces in the Philippines. He was accused of permitting his troops to commit numerous atrocities against the civilian population and prisoners of war. Yamashita was tried in the Philippines and sentenced to death by a military commission appointed by Douglas MacArthur, commanding general of the western Pacific. His case was appealed to the U.S. Supreme Court. Yamashita argued that because the war had ended and the Philippines was a U.S. territory, he should have been tried before a civilian criminal court.

In 1946 in In Re Yamasita, the court upheld the authority of the military commission. The court ruled that military tribunals do have the right to operate after hostilities have ended, because it is only then that most offenders, especially major ones, could be captured and tried. The court also, as in Quirin, upheld the use of military commissions in all matters relating to the law of war.

Is the Bush Military Order Constitutional?

Some legal experts have raised constitutional questions about the use of military commissions in response to September 11 and its aftermath. Supreme Court cases have upheld the use of tribunals during wartime. But it has been argued that since there has not been a formal declaration of war, only civilian criminal courts should try those accused of terrorism.

Historically, however, both Congress and the Supreme Court have recognized that a state of war might exist without a formal declaration. Even without a formal declaration, the United States conducted war against the South during the Civil War and the Indian Nations later in the 19th century. In both cases, military tribunals were used. In the 20th century, states of war have existed many times without a formal declaration: in Vietnam, Korea and during the Gulf crisis.

It has also been questioned whether individuals not acting for a nation can be accused of violating the law of war. Al Qaeda and other terrorist groups are not nations, but rather a loosely organized network of individuals from many nations. Can such groups or individuals be accused of violations of the law of war?

Geneva Conventions define the law of war. They include provisions to protect civilians against rebel groups engaged in a civil war or insurrection within a country. Al Qaeda is not a rebel group within a single country. But many experts believe that the law of war covers terrorists, and if they violate the law, they can be tried by tribunal.

Most experts seem to agree that it is constitutional to try by military tribunal non-citizens accused of terrorism. But there are other concerns about President Bush's order. The American Bar Association assembled a task force of legal scholars to study the president's order. The task force questioned the use of military commissions against non-citizens who are actually in the United States when captured. It cited court cases holding that aliens, even those not lawfully within the country, are entitled to due process protections contained in the Fourth, Fifth and Sixth amendments. It argued that such individuals should not be tried by tribunals. Other experts, however, argue that the Quirin decision does permit trial by tribunal of even U.S. citizens who enter the country to violate the law of war.

The task force further recommended that military tribunals should be used only under narrow circumstances where security issues are compelling. To assure a "full and fair trial," it suggested incorporating the procedures currently required in the court martial of U.S. military personnel (as outlined in the Uniform Code of Military Justice). These include an open and public trial except for compelling reasons and most rights accorded a criminal defendant in a civilian court except for the exclusionary rule and unanimous jury verdicts. The task force also recommended that tribunal jurisdiction be subject to review by higher courts.

The procedures proposed by the secretary of defense include a number of these recommendations. But they do not include all of the requirements outlined by the Uniform Code of Military Justice. Most notably, they do not give convicted defendants the right to appeal to federal civilian courts.

Are Military Commissions Good Public Policy?

Aside from the constitutional and legal questions raised about military tribunals, controversy has arisen over their use. Even before the proposed procedures were issued, criticism came from both the right and the left of the political spectrum.

The Washington Times, a conservative newspaper, editorialized that, "The president and his men (and women) should think again" and abandon the plan for the tribunals. The Cato Daily Dispatch, a libertarian journal, cited a constitutional scholar who called tribunals, "law on the fly" for their and secrecy and lack of due process. The Washington National Office of the American Civil Liberties Union decried the tribunal plan as further evidence of "the government's increasing willingness to circumvent the Bill of Rights." Yet public opinion seems to support the president's plan. In a Washington Post-ABC News Poll released two weeks after the military order, 59 percent of Americans supported the use of special military tribunals, against 37 percent who favored the use of the regular U.S. criminal court system for trying terrorists.

Supporters of military tribunals cite their necessity under the circumstances. They fear that trying terrorists in open U.S. courts could compromise intelligence gathering by forcing the government to disclose its sources. They also fear that regular criminal trials would be tempting targets for further terrorist actions putting the lives of judges, jurors, and witnesses at risk. They argue that traditional due process standards, such as unanimous jury verdicts, would make the conviction of terrorists difficult, if not impossible, because traditional evidence such as informer and eyewitness testimony is so rare in such cases. Finally, they worry that big terrorist trials could turn into media circuses, such as the O.J. Simpson case and others, which would erode the image of America and its anti-terrorist cause around the world.

Critics of the tribunals argue that their use could set a bad precedent and someday might be used against American citizens denying them the full range of due process protections. Others worry that the use of the tribunals would let the government set up an alternative justice system, largely hidden from public scrutiny that would erode American freedoms and democratic controls. They point out that regular courts, as in the trial of those accused of bombing the World Trade Center in 1996, can convict terrorists and can be conducted safely. Some also argue that military tribunals could send the wrong message to the rest of the world, showing that America is ready to abandon its longstanding commitment to civil liberties in the face of terrorist threats. Finally, some think that military tribunals could be counterproductive. They argue that trying terrorists in tribunals could discourage other countries' willingness to turn over suspects for fear that they would not receive a fair trial.

Whether President Bush's plan for military tribunals is ever employed and what its results will be remain to be seen. But one thing is certain. The proposal to use military tribunals marks a significant change in government policy concerning terrorism. Instead of treating foreign terrorists as criminals subject to our criminal laws and procedures, the U.S. government now views terrorists as foreign enemies subject to the law of war and trial by military tribunal. Only time will tell if the rest of America holds the same view.

For Discussion and Writing

  1. What is a military tribunal or commission? How does it differ from a regular U.S. criminal court?
  2. What are some examples of the use of military commissions in U.S. history? Do you think their use was justified? Why or why not?
  3. Do you think it is constitutional to try by military tribunal people who are illegally in the United States? Why or why not?
  4. Do you support President Bush's military order on public policy grounds? Why or why not?


Terrorism Trial

In this activity, students role play members of juries and commissions deciding a terrorism case. To find a defendant guilty, both commissions and juries must find the defendant guilty beyond a reasonable doubt.

  1. Divide the class into groups of six or seven members.
  2. Assign half the groups as commissions and the other half as juries. (The commissions will be allowed to consider the one piece of Illegal Evidence, below, which is excluded from the criminal juries.)
  3. Each group should do the following:

    a. Read and follow the Instructions, below.

    b. Discuss the Facts of the Case, Evidence for the Prosecution, and Evidence for the Defense, also below.

    c. Vote on whether the defendant is guilty or not guilty. If you are a jury, you must reach a unanimous verdict. If you are a commission, two-thirds of your members must agree. Keep voting and discussing until you reach a verdict.

  4. Have the juries and commissions report their verdicts and record them on the board.
  5. Debrief the activity using these questions:

    a. What do you think are the pros and cons of requiring a unanimous verdict? A two-thirds verdict? Which do you think should be used in a military tribunal? Why?

    b. Why do you think criminal courts ban the use of illegally seized evidence? Do you think such evidence should be allowed in military tribunals? Explain.

Facts of the Case

On March 18, Kareem King, 32, was detained by the U.S. military for suspected terrorist activities. He had been the focus of an FBI investigation for his activities in the United States where he briefly resided on a tourist visa the previous January and February. Mr. King is a Moroccan citizen, the son of Algerian father and a British mother, but lived in the United States in the 1990s while attending school as an engineering student. There he became involved with a fundamentalist Islamic group and later received paramilitary training in Somalia. He has been transported to the United States for trial.

Mr. King is accused of aiding and abetting a failed Al Qaeda plot to blow up American bridges in two cities.

Evidence for the Prosecution

  • Using a search warrant, FBI agents searched Mr. King's vacated hotel room in an American city and found structural and load-bearing diagrams of that city's largest bridge (Bridge 1).
  • Police officer Peter Smith testified that he observed a man he identified as King taking measurements at the bridge late one night on January 22. When he approached King, King ran off. He gave chase, but did not catch King.
  • King was observed in the hotel coffee shop with a man suspected in the plot and listed by the FBI as a known Al Qaeda operative.
  • Notes were discovered in a rental car returned by the Al Qaeda operative that referred to "the engineer Kareem" and stated that Valentine's Day was targeted for the simultaneous bombings.
  • King's former girlfriend testified that he had visited her in January in a second American city (500 miles away) and advised her not to use that city's largest bridge (Bridge 2) in the second week of February.
  • A rental van filled with explosives was found abandoned on February 12 near Bridge 2. The man who rented the van was described as a "Middle Eastern man in his mid-30s." Airline records show that King had traveled to this city on February 8.

Evidence for the Defense

  • Testifying on his own behalf, King stated that he had been in the United States during the time period but was merely trying to continue his engineering studies and had visited three different important bridges. He claimed he got the diagrams from old engineering texts and off the Internet.
  • King denies that he ever knew or met the alleged Al Qaeda operative and that the person seen with him in the hotel was a Spanish tourist he met who was also interested in engineering.
  • King admits to running from the officer on the bridge. He testified that he was doing research for his engineering studies when he saw the officer and became scared. He said that he had suffered police brutality in Morocco. He said even though he wasn't doing anything wrong, he instinctively ran when he saw the officer.
  • On cross-examination, King's former girlfriend admitted that she had been extremely angry with King for breaking off their relationship and had once vowed to "make him pay big time."
  • Professor Khalid, King's former teacher, testified that Kareem told him of his plans to visit the United States to continue his engineering studies by examining American bridges.


A defendant may be found guilty of attempted bombing, even if the defendant personally was not going to take part in the actual bombing but did aid and abet the attempt. To prove a defendant guilty of aiding and abetting, the government must prove beyond a reasonable doubt:

The defendant knowingly and intentionally aided, counseled, commanded, induced or procured another person or persons to commit the attempted bombing.

It is not enough that the defendant merely associated with the person committing the crime, or unknowingly or unintentionally did things that were helpful to that person, or was present at the scene of the crime.

The evidence must show beyond a reasonable doubt that the defendant acted with the knowledge and intention of helping that person commit the attempted bombing.

Reasonable doubt. To find a defendant guilty, you must find the defendant guilty beyond a reasonable doubt. This does not mean that no possible doubt must exist, because doubt will always exist. But after hearing all the evidence, you must feel certain and fully convinced of the defendants guilt. There must be no reasonable doubt in the defendants guilt.

Illegal Evidence That May Be Used by Commissions Only

An illegal wiretap shows that the defendant talked with the Al Qaeda operative. The conversation was short and they spoke about setting a possible meeting in his hotel room or elsewhere in the city.

Sources: President Issues Military Order (Nov. 13, 2001) available at www.whitehouse.gov; "Rules for military tribunals unveiled (Mar. 20, 2001) available at www.msnbc.com; "Fact Sheet, Department of Defense Order on Military Commissions (Mar. 21, 2002) available at www.defenselink.mil; Edward Barrett, Constitutional Law (Mineola: The Foundation Press, 1973) 557-562.; Louis Fisher, "Bush Cant rely on the FDR Precedent, Los Angeles Times, Dec. 20, 2001; Reuters, "Legal Expert Attacks U.S. Plan for Military Courts," (Nov.23, 2002) available at www.newsfindlaw.com; Richard Morin and Claudia Deane, "Most Americans Back U.S. Tactics," (Nov. 11, 2002) The Washington Post on Line available at www.washingtonpost.com; Laura W. Murphy, Bush Order on Military Tribunals Is Further Evidence That Government Is Abandoning Democracy's Checks and Balances, (Nov. 14, 2002) available at www.aclu.org.