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On Nov. 13, President Bush signed a military order authorizing military commissions to try and sentence certain noncitizens detained in the aftermath of the terrorist attack on the World Trade Center. Pursuant to that order, military officials in the United States can conduct trials (which may be closed to the public and may rely on evidence not disclosed to the defendant) and can impose a sentence of death. The order further seeks to bar judicial review of such proceedings. The exercise of the judicial power by military authorities and the dispensation of the right to trial by jury raise fundamental constitutional questions that the U.S. Supreme Court has addressed in two cases. Those cases — one of which arose out of the Civil War and the other out of World War II — indicate that the president has considerable authority to authorize military tribunals in certain circumstances but also reveal that this authority is limited and is subject to judicial review. The first case arose out of the trial, conviction and sentencing of Lambdin P. Milligan by a military commission in 1864. Milligan was a citizen of the United States, had been a resident of Indiana for twenty years, and had never been in the military service of the United States. On Oct. 21, 1864, he was brought before a military commission in Indiana and charged with having engaged in a wide range of seditious acts aimed at aiding Confederate forces and undermining Union efforts, including having established a secret military organization and having conspired to release and arm prisoners of war held in Indiana so they could join Confederate forces outside Indiana. After, the military commission convicted Milligan of certain crimes and sentenced him to be hanged, he obtained a writ of habeas corpus from the federal Circuit Court, and the case was presented to the Supreme Court. [FOOTNOTE 1] In Ex Parte Milligan, [FOOTNOTE 2] the Supreme Court held that the military commission had no jurisdiction to try Milligan and ordered him released. The Court’s opinion is striking for its political oratory and corresponding lack of formal legal analysis, as suggested by its introduction to the question of the constitutionality of the military commission that tried Milligan:
No graver question was ever considered by the Court, nor one which more nearly concerns the rights of the whole people; for it is the birthright of every American citizen when charged with a crime, to be tried and punished according to law. The power of punishment is alone through the means which the laws have provided for that purpose, and if they are ineffectual, there is an immunity from punishment, no matter how great an offender the individual may be, or how much his crimes may have shocked the sense of justice of the country, or endangered its safety. By the protection of the law, human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers. [FOOTNOTE 3]

Emphasizing that the civilian courts had been fully functioning in Indiana and that Congress had not authorized the tribunal, the Court ruled that the trial of Milligan by the military commission was an unconstitutional usurpation of the judicial power of Article III of the Constitution and violated Milligan’s Sixth Amendment right to trial by jury. [FOOTNOTE 4] It also rejected arguments that the commission’s actions were justified by laws of war or by martial law or that Milligan was properly deemed to be a prisoner of war. [FOOTNOTE 5] ‘QUIRIN’ The Court’s other consideration of the constitutionality of military tribunals arose during World War II when two groups of German soldiers were brought by submarine in June 1942 to American shores — one group to Long Island and the other to Florida; after landing, they buried their military uniforms and set out to attack war industries and facilities in the United States. Shortly after their capture, President Roosevelt, acting pursuant to Articles of War enacted by Congress, issued an order appointing a military commission to try the Germans and separately issued a proclamation declaring that persons who committed acts of war on American soil would be subject to the jurisdiction of military tribunals. [FOOTNOTE 6] After sitting in special session in July 1942, the Supreme Court in Ex Parte Quirin[FOOTNOTE 7] sustained the constitutionality of the military commission that had convicted the German soldiers. At the outset of its opinion, the Court considered and rejected the government’s argument that the Court lacked jurisdiction to review the constitutionality of military tribunals because of a provision in the president’s proclamation that “denied access to the courts” to those subject to the tribunals.[FOOTNOTE 8] Turning to the merits, the Court started from the premise that the federal government has the power to subject to military tribunal those persons who act as “unlawful combatants” and who commit acts that qualify as violations of the “law of war” in the United States. (By contrast, “lawful combatants” committing such acts who are captured are deemed to be prisoners of war and treated accordingly.) Soldiers who secretly and without uniform pass the military lines of a belligerent nation qualify as unlawful combatants, and the Court held that the fact that one of the German soldiers was an American citizen did not change this. In light of these principles, the Court concluded that the military commission at issue in Quirin was constitutional because Congress had expressly authorized such tribunals and because the German soldiers plainly qualified as unlawful combatants. The Court noted that it was not passing on whether the President could create military commissions “without the support of Congressional legislation.”[FOOTNOTE 9] It also rejected the argument that the military tribunals violated the Sixth Amendment right to trial by jury, holding that adoption of the amendment was not intended to affect the pre-existing right of nations to use military tribunals to deal with unlawful combatants. [FOOTNOTE 10] As for Milligan, the Court distinguished it on the grounds that Milligan did not qualify as an unlawful combatant. [FOOTNOTE 11] The Court’s decisions in Milligan and Quirin establish that persons, be they citizens or otherwise, who as unlawful combatants commit acts that violate the law of war can be subjected to the jurisdiction of military tribunals when such are authorized by Congressional legislation. Conversely, persons cannot be tried by such tribunals if they are charged with actions that do not qualify as violations of the law of war within the United States or if they have not undertaken those actions as unlawful combatants. In any case, those subject to the tribunals can seek to challenge the constitutionality of the tribunals themselves. CONCLUSION Given these parameters, the validity of President Bush’s order is unclear. As an initial matter, there is the question of the effect of there not being express Congressional authorization for the tribunals contemplated by the order. Beyond that, though the order by its terms reaches persons who as unlawful combatants commit acts that violate the law of war, it does not appear necessarily to be limited to such persons. Finally, the provisions barring judicial review would appear to be ineffective to the extent they are intended to preclude judicial review of a challenge to the constitutionality of the order itself or to the applicability of the order to a particular case. Christopher Dunn is a senior staff attorney with the New York Civil Liberties Union.

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