Civilians Could Serve on Military Tribunals

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.