Military Tribunals; An Historical Guide to Constitutionality

On November 13, 2001, President George W. Bush issued an executive order as part of the war against terrorism by authorizing the use of military tribunals to try international terrorists. These military tribunals apply specifically to non-citizens who are members of Qaeda or have “engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparations therefore, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, nations security, foreign policy, or economy, or has knowingly harbored… (such) individuals...” This executive order has raised concern for some in the country who are weary of the dangers to civil rights. In order to properly determine the constitutionality of military tribunals, it is important to understand exactly what a military tribunal is. Even armed with this knowledge, however, it is still necessary to determine if the use of military tribunals to try international terrorists violates the constitution? When faced with such an uncertainty, it is helpful to consider the historical uses of military tribunals. The le

The defendants filed an appeal to the U.S. Supreme Court claiming that under the Milligan decision, they should have been tried in a U.S. civilian criminal court. The Supreme Court heard the arguments and unanimously denied the appeal in Ex Parte Quirin. The court ruled that Congress had authorized the use of military tribunals for offenses against the law of war. The court stated that unlike the Milligan case, the saboteurs were belligerents (enemy soldiers at war), who had violated the law of war by entering the country out of uniform to conduct sabotage. They cited the Milligan case as only applying to non-belligerents with no association with the enemy. Furthermore, because they had shed their uniforms to appear as civilians, they were not entitled to the status of prisoners of war. This was true even for the one German who had claimed U.S. citizenship. The court wrote "Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because it is a violation of the law of war."

Having some knowledge of what military tribunals are, it is appropriate to consider how the United States has used military tribunals throughout its history. These tribunals were often called military commissions and have been used in connection with formally declared wars as well as other military conflicts, such as the Civil War and conflicts with Indian tribes. They have been used for three basic purposes: to try enemy belligerents for violations of the law of war; to administer justice in territory occupied by the United States; and to replace civilian courts where martial law has been declared.

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