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A Long And Mostly Honorable History


Friday, Dec. 07, 2001

Civil libertarians, from both the right and left, have expressed continuing concern over the President's proposed use of military tribunals for bringing terrorists to justice. Even before knowing what procedures will be used, or who will be tried by these military panels, many have anticipated that worst case scenarios will be the likely norm.

It is easy to complain. But hand wringing is not terribly helpful. Personally, I'm withholding judgment. The potential of having to mete out justice to possibly thousands of alien enemy terrorists, or unlawful combatants, who are openly violating the common law of war makes the use of these military proceedings very appealing.

As I discussed at greater length in a previous column on critiques of the tribunals, I am baffled why the critics (particularly those who support the war) want to change the rules of warfare when enemy combatants are captured. It is unclear to me why they want to use our civilian courts in a military situation.

To learn more of the historical use of military commissions, I have been looking at their history. Military commissions (interchangeably called tribunals) are not the legal equivalent of kangaroo courts, nor are they odious star chambers incapable of administering justice. Rather, they have been used repeatedly in time of war.

While military commissions were used by George Washington during the American Revolution, I have focused on their use since our Constitution was adopted in 1789. The legal scholarship of a retired Army attorney, Colonel Frederick Bernays Wiener, served as my guide. He's an expert on the history of our military law. (I learned of Colonel Wiener's work in a 1995 article by Gary Wills in the New York Review of Books.)

Early Uses Of Military Commissions: The Mexican-American War

Colonel Wiener traces the original creation of American military tribunals to the Mexican-American War (1846-48) and Major General (his then-rank) Winfield Scott. Military commissions were used with both volunteer American troops who went out of control once below the Rio Grande, and to deal with the offenses of Mexican guerrilla fighters, and the fractious local populace, in Mexico.

History reports no criticism of General Scott's use of these panels to administer justice against enemy belligerents and citizens harboring such combatants. Trying Mexican guerrilla fighters, who were not part of the Mexican Army, before military commissions is an early precedent for bringing contemporary foreign terrorists before such tribunals today.

Uses of Military Commissions in the Civil War

It was during the Civil War that the most extensive use was made of these military forums to administer justice. Senior officers of the Union Army took their guidance from their experiences with such tribunals during the Mexican-American War.

Presumably, President Bush feels towards the al Qaeda terrorists as FDR felt about the Nazis: rather cold and heartlessly. No doubt he wants known enemies treated as such. Certainly, WW II did not bring out FDR's civil libertarian instincts; to the contrary.

In his recent book, Roosevelt's Secret War: FDR and World War II Espionage, Joseph Persico reports FDR's response when Attorney General Francis Biddle reported to the President that the saboteurs - two of whom had at one time been American citizens -- had all been arrested, and nearly $174,000 in cash the Nazis had provided the group had been seized. FDR's response evidences his thinking, and the civil liberties of the Nazis bent on sabotaging our nation were not foremost in his mind.

"Not enough, Francis. Let's make real money out of them," he quipped. "Sell the rights to Barnum and Bailey for a million and a half - the rights to take them around the country in lion cages at so much a head." President Roosevelt had also decided their fate. "The two Americans are guilty of treason. I do not see how they can offer any adequate defense ... it seems to me that the death penalty is almost obligatory." As for the six German citizens, FDR found "an absolute parallel" with the Revolutionary War cases of Major John Andre and Nathan Hale. As FDR noted, "Both of these men were hanged."

Persico says that FDR, in essence, took charge of the case. Drawing on his knowledge of the Civil War, he instructed his Attorney General that he wanted all eight tried by a military tribunal. They were not entitled to a civilian trial because they "were waging battle within our country." Thus, they fell under the law of war. This would be a fast way to convict them, and one that would not be subject to protracted appeals. And a tribunal could impose a death sentence with a two-thirds vote.

As Persico explains, use of a military tribunal assured the president of the outcome he wanted. "I want one thing clearly understood, Francis," he said. "I won't hand them over to any United States Marshal armed with a writ of habeas corpus. Understand!" Accordingly, FDR issued his order to establish a military tribunal.

FDR's action would be tested in a special session of the U.S. Supreme Court, but it would pass the test: The Court unanimously approved of his use of military tribunals in Ex Parte Quirin.

Later, the United States and its Allies would bring other WW II combatants, both Nazis and Japanese officers, to trial in military tribunals. There were hundreds of these proceedings. Many of them - like those at Nuremberg, to mention the obvious - remain models of fairness and justice.

Congress Should Strengthen The Authority For the Use Of Military Tribunals

History suggests that the use of military commission should be authorized by Congress. Both Lincoln and FDR had the blessings of Congress

Critics of President Bush's planned use of military commissions assert that, unlike in the Civil War and WW II, the Congress has not declared war. Thus, unlike Lincoln and FDR, he does not have the same latitude. This is a matter that Congress can clear up, and should - although, as I explained in a prior column, I am not sure it is legally necessary in light of prior Congressional actions, as well as the fact that courts avoid adjudicating issues such as the extent of Presidential power vis-a-vis Congress.

During the Vietnam War, there were regular efforts to get federal courts to enjoin this or that government activity as unauthorized because there was no Congressional declaration of war (only the Gulf of Tonkin Resolution). These Vietnam era efforts consistently failed, for courts stay out of foreign affairs.

For example, as one federal court noted in the 1972 case of Atlee v. Laird: "Congress is, of course, the only branch of government with the power to declare war. Implicit in this constitutional provision may be congressional authority to take steps short of a formal declaration of war, equivalent to an authorization." [Emphasis added.] But this court, like other courts, noted the judicial branch has no business deciding such political questions.

To be safe, however, Congress should pass a joint resolution authorizing the use of military tribunals. But it should go no further. It would be unprecedented for Congress to write laws as to how the President should try non-citizen enemy combatants, or to require the same standards to be applied in the tribunals as are used in our criminal justice system. We are engaged in a war on terrorism, not a peace-keeping mission. It is vital that we remember there is a difference.

John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

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