Civilians Could Serve on Military Tribunals

ByGeraldine Sealey
December 10, 2001, 7:00 AM

Pentagon lawyers designing historic military tribunals to try terrorists are poring over history books and legal tomes for guidance.

While U.S. law permits the executive branch to design the commissions with few restrictions, even with little regard to precedent, officials drafting the rules are reportedly keeping history in mind.

America has a long tradition of using military tribunals to try foreign combatants and even terrorists, reaching as far back as the American Revolution. Most recently, military commissions were used extensively by the United States during and after World War II.

In 1942, President Franklin Roosevelt used tribunals to try eight Nazi saboteurs who landed on the East Coast apparently to harm wartime industrial production. Hundreds of German and Japanese prisoners were tried at military tribunals — including after the fall of Nazi Germany.

White House officials say the administration is carefully studying the rules and procedures used at the Nuremberg trials, which resulted in the indictment of scores of Nazi officials and organizations charged with abetting the Nazi effort. The Nuremberg trials were distinct from military tribunals established in the United States in that they used high-ranking civilians as judges.

Some experts say placing respected civilians on the Bush terror tribunals, such as retired U.S. generals, or former secretaries of defense or attorneys general, would go a long way toward shoring up international support for such commissions. "The more that can be done to make this process appear like a regularly constituted court the greater it will be received in the global community," said Sean Murphy, a professor at George Washington University Law School.

The Bush team is also reportedly looking at rules of procedure drawn up for Korean War-era military commissions that never took place. The rules provided defendants with "reasonable opportunity to consult with his counsel before and after defense, to interpretation of charges and the substance of the proceedings as well as any documentary evidence. The defendants were to have the right to remain silent, to cross-examine witnesses, and to a presumption of innocence until guilt is established beyond a reasonable doubt.

The Bush Nov. 13 order establishing such commissions has already said the tribunals might not carry the "reasonable doubt" burden of proof or other principles generally recognized in U.S. civilian courts.

1866: Court Says Civil Courts Should Have Been Used

Military tribunals like those currently under consideration by President Bush have not been used by the United States since the World War II era. But they were used even earlier in the Civil War to try suspects accused of plotting to assassinate the governor of Indiana, free Confederate prisoners and seize the federal arsenal at Rock Island, Ill.

Abraham Lincoln's secretary of war decided to try the alleged conspirators, anti-war Democratic politicians, before a commission composed of military officers. The suspects were indeed tried by the tribunal and several were sentenced to be hanged.

But the condemned men appealed their case, called Ex Parte Milligan to the Supreme Court, which decided after the war had ended, in 1866, that civilians could not be tried by a military tribunal if the civil courts were open and functioning.

Decades later, President Franklin Roosevelt ordered similar tribunals to try eight Nazi saboteurs who landed in the United States six months after the Japanese attacked Pearl Harbor and had been instructed to destroy war industries in the United States.

Four of the saboteurs landed on Amagansett Beach on Long Island, N.Y., in the middle of the night in a German submarine, carrying a supply of explosives. Four others landed at Ponte Vedra Beach, Fla. All eight landed on U.S. soil in Nazi uniform but eventually ditched their military dress for civilian togs. All were eventually captured in New York or Chicago.

Roosevelt, declaring the suspects had no right for trial in U.S. civilian courts, appointed a military commission that subsequently sentenced the saboteurs to death. Today, many experts believe Roosevelt chose to try the suspects by tribunals because government agencies had bungled the case.

Court Upholds Nazi Saboteur Panel

The saboteurs who landed on Long Island came upon a U.S. Coast Guard beach patrolman who happened to be unarmed. The Nazis managed to get away, and Coast Guard officials did not contact the FBI for 12 hours after spotting the saboteurs.

But a leader of the saboteurs was worried about the Coast Guard encounter and decided to call the FBI to hand the group in.

"They were sort of the 'Keystone Cops' of the espionage business," says Michal Belknap, professor at California Western School of Law. The Nazis chose the saboteurs because of their familiarity with the United States. One had previously been a waiter in New York's Catskill Mountains. Another fell under German influence only after fleeing Chicago to avoid marrying his pregnant girlfriend.

"They were really not very good, " Belknap says.

But their case went to the U.S. Supreme Court and now serves as a model by which the Bush administration can build a framework for terror tribunals. The saboteurs' defense counsel argued that there had been no invasion of the United States and the civilian courts were open. Under the Supreme Court's Milligan ruling, then, the president should not have resorted to military commissions, they argued. Further, the attorneys argued that one of the saboteurs was a U.S. citizen.

But the Supreme Court, in the case Ex Parte Quirin, said despite these arguments, the men could be tried and sentenced to death by a military tribunal. "The Supreme Court is deferential to the executive branch in wartime," Belknap said. The Milligan case is one of several the court has handed down after a war is safely over in which they articulate libertarian principles, but rarely do that while a war is going on," he said.