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]


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.


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.