Army Newspaper: Military Review Atricle re: Military Commissions, Past and Future

Army Newspaper: Military Review Atricle re: Military Commissions, Past and Future written by Lieutenant Colon.el Jody Prescott, U.S. Army, and Major Joanne Eldridge, U.S. Army Reserve.

Saturday, March 1, 2003
Tuesday, February 14, 2006

Military Commissions,
Pas! and future

Lieutenant Colon.el Jody Prescott, U.S. Army, and Major Joanne Eldridge, U.S. Army Reserve
The detention of suspected ten-orists has raised questions about how they will be held accountable for their alleged crimes. President George W. Bush authorized the use of nzilitary coninzissions to tzy non-U.S. citizens involved in terrorist activities. Lieutenant Colonel Jody Prescott and Major Joanne Eldridge examine the role of militazy commissions in the U.S. Army's history.
0 N 17 JANUARY 1865, Confederate Army
Captain Robert Kennedy was convicted by a military commission of spying and other violations of the law of war "in undertalcing to carry on irregu­lar and unlawful warfare."' Kennedy apparently in­tended to set New York City on fire and was seen in other parts of the state while in disguise. A mili­tary commission sentenced him to hang, and the re­viewing authority confin-ned the sentence.
Kennedy's case is not merely of historical inter­est because of the 11 September 2001 terrorist at­tacks on New York City; it is pertinent in light of President George W. Bush's Military Order of 13 November 2001, which authorizes the use of mili­tary commissions to try non-U.S. citizens involved in attacks for certain terrorist activities.2Signficantly,
U.S. Department of Defense (DOD) Military Com­mission Order (MCO) 1, which Secretary of De­fense Donald Rumsfeld issued on 21 March 2002 to implement the Military Order, authorizes line of­ficers to sit as members of military corrunissions or as members of review panels to review convictions of individuals tried by military commissions.'
What is a military commission, and when and why is it used rather than a court-martial? Generally, a military commission is a "court convened by military authority for the trial of persons not usually subject to military law but who are charged with violations of the laws of war, and in places subject to military government or martial law, for the trial of such per­sons when charged with violations of proclamations, ordinances, and domestic civil and criminal law of the territory concemed."4
Since the Mexican-American War, U S and civilian commanders have faced circumstances requiring the administration of justice in cases for which courts-martial, authorized by statute or ordi­nary civilian courts, were inadequate or unavailable. Over time, the military commission evolved as a tool that commanders could use in such situations.
The case of Major John Andre, the British spy who conspired with Benedict Arnold during the Revolutionary War, is sometimes cited as an example of a military commission. However, the Andre case was actually held before a board of officers con­vened on 29 September 1780 by General George Washington to serve as a board of inquiry, which was not empowered to adjudge a conviction or to deter­mine a sentence. After interrogating Andre, the board recorrunended to Washington that Andre "be considered as a spy from the enemy, and that ag,ree­able to the law and usage of nations, he ought to suffer death."'

In 1776, the Continental Congress passed a law making espionage by non-U.S. citizens or nationals a capital offense triable by court-martial. Similarly, the 1776 Articles of War made giving assistance to the enemy and giving intelligence to the enemy capital offenses triable by court-martial. Interestingly, one of Andre's and Arnold's alleged accomplices, Joshua Hett Smith, was tried by court-martial and acquit­ted.6 Washington, however, thought further inquiry into Andre's case was unnecessary and ordered Andre to be hanged.'
Under the provisions of the 1806 Articles of War, which retained court-martial jurisdiction over spies

March-April 2003 MILat4Q42/9


and those who assisted or gave intelligence to the enemy, General Andrew Jacicson court-martialed ci­vilians accused of hostile acts. In March 1815, while New Orleans was still under martial law, Louis Louillier was tried by a general court-martial for a number of alleged offenses, including spying.' The court-martial found it only had jurisdiction over the spying offense, of which Louillier was acquitted.' In 1818, Jacicson tried tvvo British citizens by general courts-martial in Florida for espionage and for pro­viding assistance to hostile Indians Both were con­victed and executed.1°

The Mexican-American War to Reconstruction
The first documented use of a proceeding called a military commission by the U.S. Anny occurred in Mexico in 1847. The U.S. Army occupied large expanses of Mexican territory that lacked the civil­ian judicial infrastructure to adjudicate cases not cov­ered by the Articles of War." That year, General Winfield Scott issued General Order (GO) 20, which allowed enumerated offenses committed by Mexi­cans and other civilians outside the jurisdiction of the 1806 Articles of War to be tried before military com­missions. Military commissions were also given ju­risdiction to try U.S. Army personnel for offenses not covered by the Articles of War. As many as 29 military commissions were held, some of which tried multiple defendants.12
Although sometimes cited as examples of military commissions, the trials of members of the Saint Patrick's Battalion, a unit of primarily ethnic Irish soldiers who fought for the Mexicans, were actu­ally courts-martial for desertion from the U.S. Army.13 Scott also ordered the creation of "coun­cils of war," similar to military commissions, which tried violations of the law of war. Few cases were tried in this fashion, however, and such councils were not used again."
The difficulties U.S. commanders faced in the Mexican-American War with regard to administer­ing justice in the former Mexican areas for which they were responsible pale in comparison with the challenges confronting Union commanders during the Civil War. As the war prog,ressed, the Union states were under limited martial law. Some Union states, like Kansas, were under greater degrees of martial law at various times. Stricter martial law of­ten applied to border states lilce Kentucky and Mis­souri, where populations with Confederate sympa­thies provided support for Confederate irregulars. As the Union occupied ever more Confederate territory, Union commanders faced hostile populations in the area of operations, and strong, sometimes violent, antiwar sentiment in the rear.'6 From early in the Civil War, the military commission proved useful to Union commanders. By war's end, thousands of cases had been tried."
Although Union forces were used for various law-enforcement purposes during the war, the authority for use of military commissions was unclear. Statu­tory recognition of military conunissions was sparse during the early part of the Civil War, and the com­missions were not included in the Articles of War.19 Union forces, under the command of Major Gen­eral John Fremont, began using military commissions in Missouri as early as September 1861.2° Fremont's successor, Major General Henry Halleck, had served as Secretary of State in the military goverrunent of Califomia during the Mexican-American War, and he was familiar with the use of military commis­sions?' On 1 January 1862, Halleck issued a gen­eral order permitting and detailing the use of such conunissions. Although military commissions were
President Lincoln issued a proclamation
authorizing the use of military conunissions to
ny "rebels, insurgents, and all persons 'guilty of
any disloyal practice affording aid and comfort
to rebels.'" Lincoln suspended the writ of
habeas corpus for individuals convicted
and sentenced by courts-martial or military
commissions. Congress modified Lincoln's
proclamation [in 18631.

not required to use the same procedures as courts-martial, the general order directed that military com­missions be "ordered by the same authority, be con­stituted in a similar manner, and their proceedings be conducted according to the same general rules as courts-martial, in order to prevent abuses which might otherwise arise.""
Halleck's order tracics closely with Article 36 of the Uniform Code of Military Justice (UCMJ), which allows the President to prescribe regulations "which shall, so far as he considers practicable, apply the principles of law and the rules of evidence gener­ally recognized in the trial of criminal cases in the United States district courts" to cases tried "in courts-martial, military commissions and other mili­tary tribunals, and procedures for courts of in­quiry."" Other Union commanders followed Halleck's lead and issued their own general orders permitting the use of military commissions.24
In March and June 1862, after military commis­sion convictions from Missouri were forwarded to the War Department for review, U.S. Army Judge Advocate Major John Lee, advised the Secretary of War that there was no legal basis for military commission trials of civilians within the United States." Halleck assumed the post of general-in-
MILITARY REVIEW o March -ApriI2003

chief of the Army in July 1862, and when Congress created the new position of judge advocate general, Halleck did not recommend Lee for the position." Instead, Colonel John [Joseph?] Holt was appointed judge advocate general. In September 1862, Holt
Military commissions were a prominent feature of the U.S. Army's administration of justice in the South during Reconstruction and
were specifically authorized by Cong,ress.
Although some civilians were still tried for offenses that had occurred during the Civil War, nzilitary commissions more often tried civilians for violations of civilian law in areas where civil courts were not functioning or were perceived by commanders as not administer-ing justice impartially.
advised the secretary of war that the use of mili­ta—ry edmmissions was not only suited to the exigen­cies of the times, but that "long and uninterrupted usage made them part and parcel of military com­mon law.""
On 24 September 1862, President Abraham Lin­coln issued a proclamation authorizing the use of mili­tary commissions to try "rebels, insurgents, and all persons `g,uilty of any disloyal practice affording aid and comfort to rebels.'"" Lincoln suspended the writ of habeas corpus for individuals convicted and sen­tenced by courts-martial or military commissions." Congress modified Lincoln's proclamation with the Habeas Corpus Act of 1863. Persons imprisoned un­der the terms of the act were entitled to be dis­charged if a civilian grand jury did not indict them or if charges pendina against them had not been pre­sented to the grandbjury. Military authorities were required to provide civilian courts with lists of such persons.'
In October 1864, Union military personnel ar­rested Lambdin Milligan in Indiana on charges that included conspiracy against the U.S. Government and disloyal practices. Milligan belonged to a group with strong Southem sympathies, and he agitated publicly against the war. A military commission in Indiana convicted and sentenced him to death. Meanwhile, the appropriate grand jury convened, deliberated, and adjourned without returning an in­dictment against Milligan. The U.S. Supreme Court eventually decided Milligan's appeal for a writ of habeas corpus in 1866. The Court concluded that it had jurisdiction to hear the case and that under the Habeas Corpus Act of 1863, Milligan should have been released. Further, the Court found that the mili­tary commission was without jurisdiction to try a ci­vilian citizen of a loyal state (Indiana) when the ci-

vilian courts were still functioning, when the state had not been a theater of war, and when the state had never been under military dominion. The dissent in this 5-4 decision believed that conditions of mili­tary exigency did in fact exist in Indiana at the time Milligan was tied, but that the military commission was without jurisdiction because it had not been spe­cifically authorized by Congress to try such cases." After his release, Milligan brought a civil suit against the commander who ordered him an-ested and the members of the military commission that had tried him The jury found the military personnel liable for false imprisonment, but awarded Milligan only nomi­nal damages."
After the war, military commissions tried hundreds of cases in different areas of the country." The two best lcnown are the trials of the conspirators to as­sassinate Lincoln and the trial of Captain Henry Wirz, warden of the Andersonville, Georgia, prisoner of war camp?' The U.S. Supreme Court deter­mined that a state of hostilities existed between the
U.S. and Confederate states (except Texas) until the presidential proclamation of 2 April 1866 and be­tween the United States and Texas until 20 August 1866." The U.S. Supreme Court eventually upheld military commission convictions that occurred in these states during the respective time periods." Before these decisions, however, at least two U.S. district courts in northern states found that military commission jurisdiction ceased when martial law ended in the respective southern states. Accordingly, these courts ordered the release of prisoners who had been tried and convicted after civil govemment had been reestablished."
Military commissions were a prominent feature of the U.S. Army's administration of justice in the South during Reconstruction and were specifically authorized by Congress for use at this time." Al­though some civilians were still tried for offenses that had occurred during the Civil War, military commis­sions more often tried civilians for violations of ci­vilian law in areas where civil courts were not func­tioning or were perceived by commanders as not administering justice finpartially. As during the Civil War, provost courts were used in various areas to adjudicate petty offenses. While the procedures of the military commissions had become fairly uniform by this time, the procedures before the provost courts often varied from command to command." There were approximately 200 trials before military commissions, many of which involved multiple defendants." For example, between March and September 1867, 216 individuals were tried before military commissions in North and South Carolina.41 As the southern states gained readmission to the Union and representation in Congress, martial law was terminated within them, and all military com-
March -April 2003 MILITARY REVIEW

missions ceased to oper­ate as of July 1870."

The Indian wars to World War II
U.S. Army command­ers occasionally used military commissions during conflicts with Na­tive American tribes on the western frontier. In autumn 1862, a military commission in Minne­sota tried 425 members of the Dakota tribe for offenses resulting from a bloody uprising that Au­gust." Of that number, 321 were convicted. In taking action on the cases after his review, Lincoln eventually ap­proved the death sen­tence in 38 of the 303 cases in which it had been adjudged° In 1872, a military commission was used to try Modoc tribesmen for the mur­der of General Edward Canby and others."
Military commissions were also employed dur­

: An officer from the 633d Medical Clearing Station pins
• 4-inch white aiming marks to the chests of German
soldiers captured in U.S. uniforms and convicted of Z.:•,
spying, Henri-Chapelle, Belgium, 23 December 1944.

Between October 1944 and May 1945, military commissions tried
approximately 67 individuals, and at least 32 were executed Among these
were 18 German soldiers captured while wearing U.S. uniforms behind
U.S. lines during the Batde of the Bulge. They were convicted of spying
and executed In the period between the end of the fighting in Europe and
General Dwight D. Eisenhower's 25 August 1945 proclamation of
a military government in Germany (with a system of military courts),
military commissions continued tO try individuals.

ing the 1898 Spanish-American War. Although mili­tary governments using the local court systems of Cuba and Puerto Rico were set up after the U.S. occupation of those islands, military commissions had jurisdiction to try cases until the peace treaty be­tween Spain and the United States was ratified on 1 April 1899." After the treaty became effective,
the U.S. military government in Puerto Rico was re­placed by a provisional govemment, which was it­self replaced by a civilian government in 1900." The situation in the Philippines might have been differ­ent, given the native insurgency, but the Philippines likewise had a civilian government by 1902."
During the labor strife and civilian unrest in the United States in the early 1900s, some governors in­stituted martial laws, and several states used mili­tary commissions to try civilians charged with vio­lations of martial law. In 1912 and 1913, state military commissions in West Virginia tried at least seven in­dividuals for violations of martial law Unposed by the state governor.° In Nebraska in 1922, several de­fendants were tried before a state military commis­sion during a period of martial law. They were con­victed and sentenced to prison terms. The U.S.
MILITARY REVIEW a March -April 2003
District Court for Nebraska, in denying the prison­ers' applications for writs of habeas corpus, held that although the state courts had remained open during this time and the National Guard commander could have sent their cases to these courts, he was not required to do so. Accordingly, the court concluded that the sentences lawfully adjudged during the pe­riod of martial law remained valid even after mar­tial law was lifted.5° To the extent that these cases relied on the declaration of martial law as being de­terminative as to the propriety of holding military commissions, the U.S. Supreme Court has cast doubt as to whether these cases are still good law.51

World War II
The vast geographical scope of U.S. military op­erations during and after World War II presented commanders with munerous and complex challenges regarding the administration of justice. During the war, military commissions were used at home and abroad to try so-called "unlawful combatants." Af­ter the war, military commissions tried numerous Axis war criminals and, as the United States assumed the duties of an occupying power, exercised jurisdiction

000182 45

over even ordinary cases involving local civilians.
Significantly, World War II and the immediate post­
war era were the last times U.S. Armed Forces
conducted military commissions. Such commissions
predate the UCMJ and the profound evolution of the
present military justice system. Of note is that mili­
tary commissions did not conduct the famous war
crimes trials held after World War II. Instead, in­
temational military tribunals conducted the Nurem­
berg and Tolcyo trials."
In the Quirin case in 1942, the U.S. Supreme Court upheld the use of military commissions to try persons in the United States for offenses against the law of war and the Articles of War." Quirin was one of eight men transported to the United States by German submarine in 1942. The men landed in New York and Florida wearing German military forms, which they buried, and carrying explosives. Their instructions from the Gerrnan High Command were to destroy American war facilities and indus­tries. The FBI captured all eight, and they were tried before a military commission appointed by President Franklin D. Roosevelt on 2 July 1942. During the proceedings, the defendants appealed to the U.S. Supreme Court, which found that the trial of the men (seven German citizens and one American) by mili­tary commission without a jury was legal. The de­cision was based on the men's status as unlawful combatants, saboteurs, who were not entitled to pris­oner of war status.54 Later in the war, on the basis of this decision, a federal appeals court found the military commission trial of a U.S. citizen in the em­ploy of the Third Reich also to be proper. The citi­zen had been landed on the coast of Maine by a German submarine in 1944."
Within hours of the attack on Pearl Harbor on 7 December 1941, the civilian territorial govemor sus­pended the writ of habeas corpus and placed the territory under martial law." The commander of the Military Department of Hawaii issued GO 4, which set up a judicial system composed of military com­missions and provost courts to try cases. The civil courts reopened in January 1942 to conduct their nor­mal business, but as agents of the military govemor and under certain restrictions to their respective ju­risdictions. For example, civil courts could not hear criminal cases or empanel g,rand or petit juries."
In March 1943, by proclamation of the territorial govemor, the civilian goverriment resumed nearly all of its prewar functions. However, GO 2 allowed mili­tary commissions to retain jurisdiction over cases arising from a "violation by a civilian of the rules, regulations, proclamations, or orders of the military authorities, or of the laws of war."" Although the privilege of habeas corpus was restored in 1943, mili­tary rule in Hawaii continued for three more years.
The quality of the administration of justice under
martial law was sharply criticized by U.S. Govem­
ment investigations and reports. This was particu­
larly true of the provost court system.59 When con­
victed prisoners brought petitions for writs of habeas
corpus before the U.S. Supreme Court, the prison­
ers were released immediately. The Supreme Court
was unimpressed with the rationale for the use of
the martial law court system rather than the civil
courts, holding that civilians in Hawaii were entitled
to the constitutional right to fair trial and that mar­
tial law was not intended to supersede civilian
Japanese war criminals, including commanders, soldiers, and military judicial officials, who had con­demned Allied service members after unfair trials, were tried before Allied military courts in the China and Pacific Theaters. U.S. military commissions tried cases in occupied Japan and in liberated allied areas.61
Perhaps the best-known military commission trial in the Far East was that of General Tomoyuki Yamashita, former commander of Japanese forces in the Philippines. The commission was composed of five general officers and was convened by General Douglas MacArthur." Yamashita was charged with unlawful disregard of and failure to discharge his duty as commander to control the members of his com­mand from committing brutal atrocities in the Phil­ippines against civilians and prisoners of war. His trial began on 29 October 1945 and concluded on 7 December 1945. The military commission found him guilty and sentenced him to death by hanging. Be­cause his trial was held under U.S. auspices in the Philippines, a U.S. territory until 1946, Yamashita was able to appeal to the U.S. Supreme Court, ar­guing that the military commission lacked jurisdic­tion to try him. The Supreme Court disagreed, find­ing that the Articles of War granted jurisdiction to both general courts-martial and to military commis­sions and that the Geneva Conventions of 1929 did not require one form of trial over the other." Yamashita's appeal was denied and he was hanged. International law now requires that prisoners of war receive the same kind of trial using the same rules by which service members of the detaining state are tried.64

In 1945, a German national named Eisentrager and 20 other Germans were convicted by a military commission in China on charges that they had pro­vided intelligence infon-nation to the Japanese after the Third Reich surrendered. After the prisoners were repatriated to occupied Germany to serve their sentences, they petitioned for a writ of habeas cor­pus in U.S. District Court, alleg,ing that their trial and imprisonment violated the U.S. Constitution and the Geneva Conventions relative to the treatment of pris­oners of war. Their appeal eventually reached the
U.S. Supreme Court. The Court held that enemy
March -April 2003 Mlotraly8013

General Yamashita shortly after his 2 September 1945 surrender to U.S. forces in northern Luzon.
prisoners of war, captured and tried outside the United States by military commissions for law of war offenses committed outside the United States and serving their sentences outside the United States, had no right to petition for a writ of habeas corpus in
U.S. courts. The Court also rejected the petitioners' claims of procedural irregularities under the Geneva Conventions of 1929, concluding that the military commission that tried them had proper jurisdiction."
The U.S. Army began using military commissions in the European Theater as early as October 1944. Army Group commanders "were authorized to ap­point military commissions for the trial of persons not subject to the [Articles of War] who were charged with espionage or with violations of the law of war that threatened or impaired the security or effective­ness of U.S. forces."" Military commissions were required to have at least three officers, and defen­dants had the right to counsel. The commissions were not bound by the evidentiary rules for courts-martial or by the ma)dmum punishments authorized undef the Articles of War."

Between October 1944 and May 1945, military General Tomoyuki Yanzashita wascommissions tried approximately 67 individuals, and charged with unlawful disregard of and failureat least 32 were executed." Among these were 18
to discharge his duO, as conunander to control
German soldiers captured while wearing U.S. uni­
the members ofhis command from committing
forms behind U.S. lines during the Battle of the
brutal atrocities in the Philippines against civil-
Bulge. They were convicted of spying and ex­
ians and prisoners of war. . . Because his trial
was held under U.S. auspices in the Philip-
In the period between the end of the fighting in
pines, a U.S. territory until 1946, Yamashita
Europe and General Dwight D. Eisenhower's 25
was able to appeal to the U.S. Supreme

August 1945 proclamation of a military govemment in Germany (with a system of military courts), mili-Court, arguing that the military conzmission tary commissions continued to try individuals. Even lacked jurisdiction to try him. The after the proclamation, trials by military commission Supreme Court disagreed. continued for a short time." The military govern­ment in occupied Germany gave way to a civilian occupation government in 1949, and the civilian oc-decision, Mudd petitioned for a writ of habeas cor­cupation govemment ended (except for Berlin) in pus in U.S. District Court. Finding Milligan inap­1953.7' In the Mediterranean Theater, as in the plicable, the court denied the petition. The coiu-t held China Theater, certain U.S. allies allowed military that Lincoln was "assassinated not from private ani­commissions to try alleged Axis war criminals on mosity nor any other reason than a desire to impair their soil for a number of years after the fighting had the effectiveness of military operations and enable stopped, even though by then these allies had recon-the rebellion to establish itself into a goverrunent. stituted their judicial systems." It was not Mr. Lincoln that was assassinated, but
the commander-in-chief of the Army for military rea-Contemporary Litigation sons."74 Mudd was subsequently pardoned for his
The adjudication of cases dealing with the juris-humanitarian efforts in prison during a yellow fever diction of a military commission actually began dur-epidemic." ing the Civil War. As an alleged Lincoln Assassina-Seeking to clear his grandfather's name, Mudd's tion conspirator, Dr. Samuel Mudd was tried in grandson brought suit against the U.S. Govemment Washington, D.C., by a military commission. Mudd in U.S. District Court. On 14 March 2001, the court was a citizen of Maryland, a border state, and had found for the U.S. Government, first noting that the not been in the military. At the time of his trial, the list of types of unlawful combatants set out in Quirin civil courts in Washington and Maryland were that could be tried before military commissions open." Mudd was convicted and sentenced to a (saboteurs, secret messengers, spies, belligerents not term of imprisonment. In 1866, after the Milligan in uniform) was not exhaustive. Further, the court
MILITARY REVIEW March-ApriI2003 47

found that nationality and whether one was work­ing under the direction of enemy forces was not to be determinative. Instead, the court found "[r]eading Milligan and Quirin together . . . , that if Dr. Samuel Mudd was. charged with a law of war vio­lation, it was permissible for him to be tried before a military commission even though he was a U.S. and Maryland citizen and the civilian courts were open at the time of his trial."" The court found that the charges did allege such a violation, and the com­mission therefore had jurisdiction. The govern­ment's decision to not disturb Mudd's trial verdict was therefore upheld." On 8 November 2002, the
U.S. Court of Appeals for the D.C. Circuit rejected the Mudd family's appeal, finding that Mudd, as a civilian, had no standing under the law which allows military members to seek expungement of military convictions."

In a more recent case, a group calling itself the "Coalition of Clergy, Lawyers and Professors" brought suit in U.S. District Court seelcing a writ of habeas corpus for detainees being held at Guan­tanamo Naval Air Station in Cuba. U.S. forces in Afghanistan had captured the detainees. On 21 Feb­ruary 2002, the court dismissed the petition, finding that the petitioners lacked legal standing, the court did not have jurisdiction to hear the petitioners' claims, and that no federal court would have juris­diction over their claims. The court relied primarily on the holding of the U.S. Supreme Court in Eisentrager, noting that the petitioners had mistak­enly characterized the naval base at Guantanamo Bay as part of the United States. The legal status of Guantanamo Bay is governed by a 1903 lease agreement between Cuba and the United States that gives the United States complete jurisdiction and con­trol over the specified areas, but Cuba retains ulti­mate sovereignty over the leased lands and waters. Therefore, the court concluded that sovereignty over Guantanamo Bay remained with Cuba and not the United States."
On 1 August 2002, a federal district court in Washington, D.C., rejected a lawsuit brought on be­half of Kuwaiti, British, and Australian detainees at Guantanamo. The detainees sought to compel the govenunent to hold hearings on their cases or trans­fer them to the custody of their respective countries. The district court ruled that the detainees were out­side the United States, and therefore without any constitutional rights of access to the U.S. judicial sys­tem." The U.S. Court of Appeals for the District of Columbia affirmed the district court's decision on 11 March 2003.8' Interestingly, on 8 November 2002, in a suit brought by the mother of a Guantanamo detainee, a British court held that keeping detainees in an area under "exclusive" U.S. control without recourse to a court to challenge their detention ap­peared to violate both British and international law.
The three-judge panel concluded, however, that it had no jurisdiction over the case."

The Uniform Code of Military Justice
In 1950, the UCMJ replaced the old Articles of War and Articles for the Govemment of the Navy." The UCMJ incorporated substantial reforms that gave those subject to the UCMJ greater rights and standardized the practice of courts-martial across the Armed Forces. In giving effect to the statutory pro­visions of the UCMJ, the preamble to the Manual

for Courts-Martial (MCM) provides that the sources of military jurisdiction are the Constitution and international law, including the law of warm Fur­ther, the preamble recopizes four means by which commanders apply military jurisdiction: courts-mar­tial for trial of offenses against military law as well as general courts-martial for the trial of persons sub­ject to trial by military tribunal under the laws of war; military commissions and provost courts for the trial of cases within those respective jurisdictions; courts
of inquiry; and nonjudicial punishment."

The UCMJ contains two articles (18 and 21) that specifically address the jurisdiction of military tribu­nals and commissions." Article 18 provides that the jurisdiction of general courts-martial includes the au­thority to try persons for law of war violations by military tribunal and impose any punishment permit­ted by the law of war." Article 21 provides that the provisions of the UCMJ "conferring jurisdiction do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction."" The UCMJ also contains three other references to the law of war: Article 104 (aiding the enemy), Ar­ticle 106 (spies), and Article 106a (espionage). These provisions prohibit conduct by "any person," a broader defmition than other code provisions, which prohibit conduct by "any person subject to the Code" and permit trials by general court-martial or military commission."
With regard to the procedure to be used by mili­tary commissions, the MCM provides that "[s]ubject to any applicable rule of international law or to any regulations prescribed by the President or other com­petent authority, military commissions and provost courts shall be guided by the appropriate principles of law and rules of procedures and evidence pre­scribed for courts martial."" In his Military Order, Bush specifically found "that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence gener­ally recognized in the trial of criminal cases in the [U.S.] district courts."9'
In addition to extensive roles for judge advocates as presidirig officers, prosecutors, and defense coun­sel, DOD MCO 1 provides the potential for signifi­cant roles for all military officers.92 Each commis-
March -April 2003 o MILITARO 001 8 5
sion shall be composed of at least three but not more than seven members, as well as one or two alter­nate members, appointed by the secretary of defense or his designee (the appointing authority). Members and alternates will be commissioned officers from all the armed services, including Reserve officers on active duty, National Guard officers on active duty, and even retired officers recalled to active duty. Al­though DOD MCO 1 provides no rank or grade re­quirements, the appointing authority appoints mem­bers "determined to be competent to perform the duties involved."" The length of such appointment is not specified.
DOD MCO 1 provides detailed procedures ap­plicable for each accused tried before a military com­mission. Each accused will be represented by a mili­tary defense counsel detailed to his case at no expense to him. The accused may request a par­ticular military defense counsel (subject to reason­able availability) and may be represented by a civil­ian attorney at no expense to the United States (-subject to certain requirements)." The accused may not discharge his military counsel." Other rights may be summarized as follows: -
o Right to a copy of the charges in a language the accused understands, as well as the substance of the charges, the proceedings, and documentary evidence.

o Presumption of innocence until proven guilty, and guilt must be proven beyond a reasonable doubt.

o Detailed defense counsel must be made avail­able in advance of trial to prepare a defense.

Access to evidence the prosecution intends to use as well as access to exculpatory evidence known to the prosecution.

o Right to remain silent at trial, with no adverse inference from the accused's decision not to testify; or to testify, subject to cross-examination.

o Witnesses and documents for the accused's de­fense, including investigative or other resources re­quired for a full and fair' trial.

o Right to present evidence at trial and cross-ex­amine prosecution witnesses.

Right to be present at proceedings, unless the accused engages in disruptive conduct, except for those portions closed to protect classified informa­tion and other national security interests.
o Access to sentencing evidence.

o Right to malce a statement and submit evidence during sentencing proceedings.

o Trial open to the public unless closed by the presidina officer. Rif7ht not to be tried again by any corrunission on the same charae."

The accused shball also have the right to submit a plea agreement to the appointing authority." Unlike in a court-martial, however, the accused's pleading guilty before a military commission gets him precisely
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,,Ari MP sterids perimeter,
watch while detaineee
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14 January 2002.

A federal district court in Washington,
D.C, rejected a lawsuit brought on behalf of . . .
detainees at Guantanamo. The detainees
sought to compel the government to hold
hearings on their cases or transfer them to the
custody of their respective countries. The district
court ruled that the detainees were outside the
United States, and therefore without any
constitutional rights of access to the U.S.
judicial system.

that for which he bargained with the appointing au­thority rather than the lesser of either the sentence limitation in his pre-trial agreement or the sentence adjudged at court-martial." The standard for admis­sibility of evidence is that evidence, which in the opin­ion of the presiding officer would have probative value to a reasonable person."
Before votina for a finding of guilty, corrunission members mustbe convinced beyond a reasonable doubt that an accused is guilty of the offense based on the evidence admitted at trial. A finding of guilty requires a two-thirds majority of commission mem­bers. A sentence also requires a two-thirds majority

o oo 1.846

of members, except for a sentence of death, which must be unanimous. A sentence may include death; confmement for life or for a lesser period; payment of restitution or a fine; or such other lawful punish­ment as the commission deems appropriate. To ad­judge a sentence of death, the commission must be composed of seven members." Military officers have an important role to play in the post-trial phase of military commissions. The secretary of defense shall desig,nate a review panel consisting of three military officers, which may include civilians com­missioned in compliance with USC requirements.'" The review panel must include at least one mem­ber who has experience as a judge. The panel is charged with reviewing the record of the commis­sion proceedings and written submissions by the prosecution and defense. The panel must either for­ward the case to the secretary of defense with a recommended disposition or retum the case to the appointing authority for additional proceedings where there has been a material error of law. The secre­tary of defense then reviews the case and forwards it to the president for review and final decision. The president can delegate the fmal decision to the sec­retary of defense if the president so desires.'" The order sets forth no other avenues of judicial review or appellate relief, but this does not mean that the
U.S. Supreme Court cannot review the case.'"
Military commissions have been used extensively in the course of American history during periods of martial law, occupation, and war. Unfortunately, this flexibility and usefulness has led to some confusion as to the rules and procedures that should be ap­plied at military commissions held under military or­der and their propriety under current domestic and international law. Some have criticized the use of military commissions as undermining the rule of law domestically and as not being viewed as credible by the international community.'" Others criticize the use of a less stringent standard for the admissibility of evidence before the military commission as com­pared to ordinary U.S. criminal courts and the use of an appeal process that stays within the Depart­ment of Defense.'°4 Significantly, many critics do not seem to distinguish clearly between the differ­ent kinds of military commissions and the various le­gal regimes that would apply to each respectively. A military commission sitting in the United States and trying U.S. citizens and residents under martial law, such as in Milligan, would be quite different fi-om an occupation military commission, such as existed in post-war Germany or Japan. Both would be dif­ferent from a law of war military commission sit­ting overseas and trying unlawful combatants, as in
The president's authority to create a law of war military commission is clear under national and in­temational law.'" As specified in DOD MCO 1, the composition and procedures of the military commis­sions and review panels substantively comply with intemationally accepted standards of due process.'" Further, trials before military commissions may ac­tually foster the rule of law and the administration of substantive justice. Military commissions will be allowed to consider probative evidence that ordinary
U.S. criminal courts cannot, sensitive intelligence sources can be protected, and the issues of trial se­curity are much less pronounced.'"
On 28 February 2003, the Department of Defense General Counsel's Office released for public com­ment a draft of the Military Commission Instruction (Draft MCI) that set out the crimes and the elements of those crimes for which certain individuals could be tried before a military commission.'" The crimes enumerated in the Draft MCI are "violations of the law of armed conflict or offenses that, consistent with that body of law, are triable by military com­mission."'" The Draft MCI includes such crimes as the "Willful Killing of Protected Persons,""° "Employing Poison or Analogous Weapons," 111 "Rape," 112 and "Ten-orism.""3 The Draft MCI does not include crimes against humanity or genocide as triable offenses and it does not specifically set out defenses to the enumerated offenses, but it does note that "[d]efenses potentially available to an accused under the law of armed conflict, such as self-de­fense, mistake of fact, and duress, may be applicable in certain trials by military commission. "114
It is crucial that officers detailed to these bodies perform their judicial functions with the utmost care and understanding of their positions. These trials must satisfy domestic and international public opin­ion that justice be served. Further, these trials could constitute precedent for what the United States be­lieves is the minimum due process required in trials of unlawful combatants for violations against the law of war and international law. Other nations or nonstate actors might then hold trials of captured
U.S. soldiers or other U.S. Govemment employees using similar tribunals and procedures. MR

William Winthrop, Military Law and Precedents, 2d ed (Washington, DC: U,S. 7. In a leder informing Major John Andre's commander of his decision to execute Govemment Printing Office [GPO], 1920), 767-70, 784; Ex parte Quirin et al, 317 U.S. 1, Andre, Washington noted that he could have summarily executed Andre rather than even 31 (1942). convene a board of inquiry to look into his case (Robert Hatch. Major John Andre: A

Military Order of 13 November 2001, "Detention, Treatment and Trial of Certain Gallant in Spy's Clothing [Boston: Houghton Minn Co., 1986), 262). Non-Citizens in the War Against Terrorism," sec. 1(e), 66 ER. 57833 (16 November 8. VVinthrop, app. XII, American Articles of War of 1806, 56 and 57, 981; Ibid., 101. 2001). sec. 2, 985. Articles 104 (aiding the enemy), 106 (spies), and 106a (espionage) of the

U.S. Department of Defense (DOD) Military Commission Order (MCO) 1. par. Uniform Code of Military Justice (UCMJ), enacted in 1950, track these early Articles of 4.A.(3) (21 March 2002). War provisions closely [10 USC, secs. 904, 906, 906a (2002); VVinthrop, 822.

Edward M. Byme, Military Law (Annapolis, MD: Naval Institute Press, 1981), 752. 9. John Spencer Bassett, The Life of Andrew Jackson (New York: Macmillan, 1928),

Winthrop, 518. 226-27.

Ibid. 765; app. X, American Articles of War of 1776,18 and 19,967; Ibid., 102 note 21. 10. Robert V. Rimini, Andrew Jackson and His Indian Wars (New York Viking, 2001),

March -April 2003 o MILITARY lin

154-56; Wnthrop, 102. 832.
K. Jack Bauer. The Mexican War(New York: Macmillan, 1974), 253, 326-27.

VVinthrop, 832, quoting General Order (GO) 20, 19 February 1847, Headquar, ters of the Army, Tampico; Ibid., 832 note 66; Bauer, 253. 326-27.

Robert P. Miller, Shamrock and Sword: The Saint Patrick's Battalion in the U.S.-Mexican War (Norrnan, OK: University of Oklahoma Press, 1989), 92-112.

Winthrop, 832-33.

Ibid., 829. 826, 824-27; Mari E. Neely, Jr., The Fate of Liberty: Abraham Lincoln and Civil Liberties (New York Oxford University Press. 1991), 46-47. 168.

Neely, 65, 69, 174.

Winthrop, 834; Neely, 168.

Neely 21, 30, 32-35.

"The President shall appoint a Judge Advocate General to whose office shall be returned, for revision. the records and proceedings of all courts-martial and military com­missions" (Carol Chomsky, "The United States-Dakota War Trials: A Study in Military Injustice," 43 Stanford Law Review (1990): 66. quoting Act of 17 July 1862, chap. 36, sec. 5.12 staL 597, 598).

Neely, 41-42.

The Army Lawyer A History of the Judge Advocate General's Corps, 1775-1975 (Washington, DC: GPO, 1975), 46.

Chomsky, 56, note 269, quoting GO 1, Headquarters, Departrnent of the Missouri, 1 January 1862

10 USC, sec. 936 (2002).

Winthrop. 833.

Chomsky, 66, notes 336-37, quoting two letters from Judge Advocate John F. Lee to Secretary of War EM. Stanton.

The Army Lawyer, 47.

Chomsky, 66, note 338. quoting letter from Judge Advocate General John [Joseph?] Holt to Secretanj of War Stanton.

Neely, quoting Lincoln's Proclamation of 24 September 1862, citation omitted. Ap­parently anticipating Lincoln's proclamation. Stanton issued an order on 8 August 1862 that such persons were liable to trial by mifitary commission.

Winthrop. 829.

Ex parte Milligan, 71 US (4 Wall) 2, 107-08 (1866).

Ibid., 118-31, 141.

Milligan v. Hovey 17 F. Cas. 380, 380-83 (D.C. Ind., 1871).

Neely. 176.

VVinthrop, 839, note 5.

Carver's Cases, 16 Ct. Cl. 361, 383 (U.S. Ct. Cl., 1880), citation omitted.

Carver v. U.S., 111 U.S. 609 (1884).

U.S..v. Commandant of Fort Delaware, 25 Cas. 590, 591 (D.C. Del.. 1866); In re Egan, 8 F. Cas. 367, 368 (Cir. C. N. D. NY, 1866).

VVinthrop, 848.

James E. Sefton. 777e Untted States Army and Reconstruction (Baton Rouge. LA: Louisiana State University Press. 1967), 30-32.

VVinthrop, 853.

Sefton, 146.

Winthrop, 851.

Medawakanton and Wahpakoota Bands of Sioux Indians v. U.S., 57 Ct. Cl. 357. 364 (U.S. CL CI., 1922).

Chomsky, 33, 88.

Robert M. Utley, Frontier Regulars: The United States Army and the Indian, 1866-1890 (Lincoln, NE: University of Nebraska Press, 1984), 206-07.

Ochoe v. Hernandez y Morales, 230 U.S. 139. 145-47 (1913); Santiago v. Nogueras, 214 U.S. 260, 263 (1909); ex parte Ortiz, 100 F. 955, 963 (D.C. Minn.. 1900). The petitioner was tried for the murder of a U.S. soldier by a military commission two weeks before exchange of ratifications.

Ochoa, 230 U.S. at 147.

Kepner v. U.S., 195 U.S. 100 (1904).

Ex parte Jones, 71 W.Va., 567 (Sup. Ct. Appeals. 1913); State ex rel. Mays, 71 W.Va. 519 (Sup. CL Appeals, 1912).

U.S. ex rel., Seymour v Fischer, 280 F. 208. 209-12 (D.C. Neb., 1941).

Duncan v Kahanamoku, 327 U.S. 304, 322, note 18 (1946).

Flick v. Johnson, 174 F.2d 983, 986 (D.C. Cir., 1949); Viscount Maughm, U.N.O. and War Crimes (London: John Murray, 1951). 87-101.

Quinn, 317 U.S. 1.

Ibid., 23-24, 42.

Colepaugh v Looney, 235 F.2d 429 (10th Cir., 1956), citations omitted.

William H. Rehnquist, All the Laws But One: Civil Liberties in Wartime (New York: Knopf, 1998), 212.

Ex parte Duncan, 146 F.2d 576 (9th Cir., 1944), 579.

Ibid.. 581-82.

Harry N. Scheiber and Jane L. Scheiber, "Bayonets in Paradise: A Half-Century Retrospect on Martial Law in Hawai'i, 1941-1946," 19 Hawaii Law Review (Fall 1997): 477, 509-18. Initially, the military commission that was set up to hear sedous criminal offenses was composed of military and civilian members. but the civilians were eventu­ally dropped.

Duncan v. Kahanamoku, 327 U.S. 304, 320-24 (1946).

Evan J. Wallach, 'The Procedural and Evidentiary Rules of the Post-Worid War II War Cdmes Trials: Did They Provide an Outline for Intemational Legal Procedure?" 37 Columbia Journal of Transnational Law (1999): 851, 884 note 5; Matthew Lippman. Pros­ecutions of Nazi War Crtminals before Post-World War II Domestic Tribunals," 8 Year­book of International Law(1999-2000): 14. 84. 85.

Colonel Frederick Bemays VViener, "Comment: The Years of MacArthur, vol. III: MacArthur Unjustifiably Accused of Meting Out 'Victors' Justice' in War Crimes Cases," 113 Military Law Review (1986): 203, 204.

Law Reports of Trials of War Criminals, vol. IV, cas. 21 (London: H.M. Stafionery Office. 1948), 1-78.

Geneva Convention Relative to the Treatrnent of Prisoners of War. arts. 82-88 (1949).

Johnson v Eisentrager, 339 U.S. 763, 765-67. 7T7. 785, 789-90 (1950).

Colonel Ted B. Borek, "Legal Services During War," 120 Military Law Review 19 (Spring 1980): 29-30.

Ibid., 30.

Ibid., 31.

MAJ David A. Anderson, "Spying in Violation of Article 106. UCMJ: The Offense and the Constitutionality of its Mandatory Death Penalty," 127 Military Law Review (Winter 1990): 3.

Trials of War Criminals, vol. III (1948), Cas. 14, 56; Cas. 15. 60; Cas. 16. 62; vol. III, Cas. 17 and 18, 65.

U.S. v. 77ede, 86 F.R.D. 227, 228-38, U.S. Ct., Berlin, 1979. In 1952, U.S. occu­pation courts averaged 1,000 hials a month of German and U.S. defendants (Madsen v Kinsella, 343 U.S. [1952], 341, 360 note 23).

Trials or War Criminals, vol. I, Cas. 2, 22 (1947); vol. XI, Cas. 63, 10 (1949).

Mudd v. Caldera, 134 F. Supp. 2d 138, 140-42 (D.C. D.C., 2001).

Mudd v. Caldera, 26 F. Supp. 2d 113, 117 (D.C. D.C., 1998).

Ibid.. 117.

Mudd, 134 F. Supp. 2d at 146.

Ibid., 147.

Neil A. Lewis. "Suit to Clear Doctor Who Treated Booth is Dismissed," New York 77mes, 8 November 2002, 15.

Coalition of Clergy el al. v. George Walker Bush et at, 189 F. Supp. 2d 1036, 1039, 1048-50 (C.D. Cal., 2002).

Neely Tucker, "Judge Denies Detainees in Cuba Access to U.S. Courts," Wash­ington Post 1 August 2002, A10.

Tucker, "Detainees Are Denied Access to U.S. Courts," Washington Post, 12 March 2003, Al "Representatives for the detainees plan to appeal to the U.S. Supreme Court."

"Government doesn't care about Hicks: father," The West Australian, on-fine at tw-news-latest-home-sto91058.html. 13 March 2003.

Enacted by Congress in 1950, the UCMJ is located at Title 10 USC, secs. 801-947 (2002).

Manual for Courts-Martial (MCM), 2002 ed., Part I, "Preamble."


The UCMJ contains several articles that address military commissions (10 USC, secs. 836, 837, 847, 848, 850 [2002].

10 USC. sec. 818 (2002).

Ibid., sec. 821 (2002).

Ibid.. sec. 904, 906 (2002).

MCM, "Preamble," par. 2(b)(2), 1-1. In his 1912 appearance before the House Committee on Military Affairs, the judge advocate general stated that it "is highly desir­able that this important court should be continued to be govemed, as heretofore. by the laws of war rather than statute" (Trials of War Criminals, vol. IV, 68 note 2, citation omit­ted).

Military Order, sec. 1(f).

The presiding officer is tasked with ensudng the proper conduct of the proceed­ings, rufing on questions of evidence, and sitting as a voting member of tie military com­mission (DOD MCO 1, pars. 4.A(4), (5). and 6.F.

DOD MCO 1, par. 4.A.(2). (3).

Ibid., par. 4.C.(2), (3), (4).

Ibid.. par. 5.

Ibid., par. 6.A.(4).

Rules for Courts-Martial 705(b)(2)(E) and 1107(d)(1), MCA& 2002 ed.

DOD MCO 1, par. 6.D.(1).

Ibid., par. 6.F;'6.G

Ibid., par. 6.H.(4); 10, USC, sec. 603, 27.

Ibid., par. 6.H.(5), (6).

President Franklin D. Roosevelt's proclamation that convened the military com­mission that tried the German saboteurs in the Quirin case likewise denied defendants access to the courts, but the U.S. Supreme Court noted that it was still for a court to decide whether the proclamation were applicable to a particular case (Quirin, 317 U.S. at 23, 25).

Harold Hongju Koh, "The Case Against Military Commissions." The American Journal of International Law (April 2002): 338.

Sean D. Murphy, "U.S. Department of Defense Rules on Military Commissions," The American Journal of International Law (July 2002): 733-34.

Madsen, 343 U.S. at 348, 354; MG Michael J. Nardotti, Jr., `Military Commis­sions," The Army Lawyer (March 2002): 1, 4.

The Intemational Convention on Civil and Political Rights, arL 14. sets out the mini­mum due process requirements for trials (GA. Res. 2200A (XXI), U.N. GAOR, Supp. No. 21, 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171).

Ruth Wedgwood, "Al Claecla, terrodsm, and military commissions," The American Journal of International Law (April 2002): 331-32.

"DOD Releases Draft Military Comrnission Instruction," DefenseLINK, on-line at bt092-03.html, 28 February 2003.

Draft MCI, par. 3.A. on-line at 228dmci.pdf.

Draft MCI, par. 6.A.1.

Draft MCI, par. 6A8.

Draft MCI, par. 6.A16.

Draft MCI, par. 6.A.18.

Draft MCI, par,. 4.B. "VVith respect to the defense of lack of mental responsibility. the accused has the burden of proving by clear and convincing evidence, that, as a re­sult of a severe mental disease or defect, the accused was unable to appreciate the na­

ture and quality of the wrongfulness of the accused's acts."

Lieutenant Colonel Jody Prescott, U.S. Army, is Associate Professor of Military Law and Chief Military Lcrw Office, Fort Leavenworth. He received a B.A. from the University of Vermont, a J.D. from the University of Maine, and an LL.Mfrom Georgetown University Law Center He has served as Deputy Staff Judge Advocate, Fort Rich, Alaska,. Chief International and Operational Claims, Mannheim, Germany; Senior Defense Counsel, Stuttgart, Germany; and Commissioner Army Court of Criminal Appeals, Falls Church, Virginia.
Major Joanne Eldridge, U.S. Artny Reserve.(USAR), serves in the Judge Advocate Generall. Corps, USAR. She received a B.A. from Boston College, a J.D. from George Washington University Lcrw School, and an LL.M from the US. Army Judge Advocate General's School. She has served as CII7 Instructor; U.S. Al7Tly Command and General Staff College; Chief Militaty Justice, Combined Arms Center, Fort Leavenworth; Litigation Attorney, U.S. Army Legal Services Agenc_v, Arlington, Virginia; Branch Chief U.S. Army Government Appellate Division, Falls Church, Vitginia; and Appellate Attorney, U.S. Army Government Appellate Division, Falls Church, Virginia.
MILITARY REVIEW o March -April 2003