Alarm Bells from the Past: The Troubling History of American Military Commissions

Abstract

Alarm Bells from the Past: The Troubling History of American Military Commissions MICHAL R. BELKNAP Among the most controversial of President George W. Bush’s responses to the deadly September 11, 2001 al-Qaeda attacks on the World Trade Center and the Pentagon was his issuance two months later ofan order authorizing the trial before military commissions ofaliens suspectedofmembership inthatmurderous organization or ofinvolvement in terroristactivities.1 Two years after Bush’s promulgation ofthat November 13, 2001 military order, no terrorist has yet stood trial before such a tribunal. That is not a bad thing. The history ofAmerican military commissions suggests that this is a legal device vulnerable to abuse that should be used only with the utmost caution. Besides being susceptible to misuse, mil­ itary commissions are a type of court unfa­ miliarto mosttwenty-first-centuryAmericans. The United States has not employed such tri­ bunals since the immediate aftermath ofWorld War II. Although long forgotten here, military commissions are a well-recognized method for dealing with irregular fighters, such as al-Qaeda terrorists, who ignore internationally accepted laws of war. When such “unlawful combatants” fall into the hands of the enemy, the detaining state may subject them to trial in either a civil court or a military one.2 Americans began subjecting such defen­ dants to militaryjustice during the Revolution­ ary War. In 1780, acting pursuant to a congres­ sional resolution, a court martial tried and con­ victed Joshua Hett Smith, a civilian, of aiding and abetting the treason of General Benedict Arnold.3 A military court also decided the fate of a more famous Arnold accomplice, Major John Andre ofthe British Army, who, while out of uniform and in disguise, received from the notorious traitor papers concerning the Amer­ ican fortifications at West Point. Andre was convicted ofspying, a violation ofthe custom­ ary laws ofwar.4 In 1818, U.S. General Andrew Jackson used courts martial to try two British civilians accused of inciting Creek Indians to wage war against the United States.5 Although in each of these cases a group ofsoldiers vested withjudicial poweradjudged ALARM BELLS FROM THE PAST 301 Major John Andre of the British Army was captured as a spy near West Point in 1780 after receiving secrets about American fortifications from General Benedict Arnold. The first military commission occurred during the Mexican War, when General Winfield Scott declared martial law and issued a general order providing that certain crimes against American soldiers (and crimes committed by American soldiers) should be punished by military commissions. This lithograph shows Vera Cruz during the bombardment on March 25, 1847. 302 JOURNAL OF SUPREME COURT HISTORY Military commissions such as the one utilized to try Confederate Army Captain Henry Wirz, the commander of the notorious Andersonville prison camp (pictured), were used widely during the Civil War. Such commissions continued for more than five years after the end of the war. a defendant guilty of violating the laws of war, the tribunals that decided them were not military commissions. The first use of some­ thing comparable to what President Bush au­ thorized in his order of November 13, 2001 occurred during the Mexican War. After in­ vading central Mexico, General Winfield Scott declared martial law and issued a general order providing that certain crimes against Amer­ ican soldiers committed by Mexican civil­ ians (including murder, robbery, and theft) should be punishable by military commis­ sions. In addition, Scott mandated the use of such tribunals to try members of his own army who had been accused of similar of­ fenses; the Articles of War authorized the court-martial of American troops only for the offenses the Articles enumerated, which were limited mainly to breaches of discipline.6 “In essence,” law professor Carol Chomsky ex­ plains, “these military commissions [which General Zachary Taylor also employed] re­ placed the civilian criminal courts in occupied, hostile territory after the declaration of mar­ tial law.”7 To punish violations ofthe “laws of warfare,” Scott employed another type ofmili­ tary tribunal, referred to as a “council ofwar.” These court-martial-like bodies provided the models for what we refer to today as military commissions.8 During the Civil War, the Union Army made extensive use...