Military Tribunals free essay sample

Bush issued a military order (M. O. ) which allowed the President’s to â€Å"identify terrorists and those who support them† and bring them to justice by way of â€Å"military tribunals. † President Bush argues that it is his duty to â€Å"protect the United States and its citizens. The M. O. makes this possible by delineating the rules and procedures for military tribunals held during the war on terror. The legality of Bush’s M. O. immediately became the subject of debate upon its publication. For example, the president argues that he is fully authorized to enforce the use of military tribunals based on the historical precedents set in place by former presidents. He also argues that he is permitted to establish tribunals based on his declaration of â€Å"a national emergency on September 14, 2001. † The M. O. order states that â€Å"this emergency constitutes an urgent and compelling government interest, and that issuance of this order is necessary to meet the emergency. We will write a custom essay sample on Military Tribunals or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page † By declaring a state of national emergency, Bush suggests that tribunals are now a matter of â€Å"military necessity. Those subject to the order are defined in subsection 2(a)(1) as someone who â€Å"is or was a member of the organization known as al Qaeda,† as well as someone who meets the following criteria: â€Å"has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy, or [anyone who] has knowingly harbored one or more [of these] individuals† Nevertheless, the M.O. was highly controversial despite all of the historical precedents, the declaration of a national emergency, and the specifications in section 2(a)(1). In Jennifer K. Elsea’s CRS Report for Congress titled, â€Å"The Department of Defense Rules for Military Commissions: Analysis of Procedural Rules and Comparison with Proposed Legislation and the UCMJ,† Elsea summarized one of the opposition’s arguments, which is that â€Å"the President’s M. O. has been criticized as overly broad in its assertion of jurisdiction, because it could be interpreted to cover non-citizens who have o connection with Al-Qaeda or the terrorist attacks of September 11, 2001. † As this report will show, debates over the definition of an â€Å"enemy combatant† as it applies to the war on terror are very complicated. The world is now facing an unidentifiable enemy on an undefined battleground. But the vagueness of the M. O. as far as who exactly it applies to is only one out of the many problems found in Bush’s M. O. Also opposing the M. O. are both members of Congress and the Judiciary as they feel very uncomfortable allowing the President to establish military tribunals f or the war on terror. Mainly, the arguments against the President include his disregard for the Constitution and the Uniform Code of Military Justice (UCMJ). This disregard is seen as Bush’s bypassing the military’s courts martial system as well as the United States civilian district courts already in place. In his congressional report titled, â€Å"Military Tribunals: Historical Patterns and Lessons,† Louis Fisher clarifies that â€Å"one of the principal methods of legislative control over military trials, including tribunals, are the Articles of War that Congress enacts into law. While the Articles of War have since been combined into a single Uniform Code of Military Justice, it nonetheless remains Congress’ explicit constitutional power to â€Å"make rules for the Government and Regulation of the land and naval Forces. † As such, Congress feels that Bush is denying its right to regulate the enforcement of military tribunals. In addition to the Constitution, Article 18 of the UCMJ explicitly states that, â€Å"General courts-martial . . . have jurisdiction to try any person who by the law of war is subject to trial by a military tribunal and may adjudge any punishment permitted by the law of war. However, President Bush states in his M. O. that rather than try suspected terrorists by court-martial, the President should enforce military tribunals for crimes against the â€Å"law of war. † Specifically, the M. O. states that those â€Å"subject to this order† are â€Å"to be tried for violations of the laws of war and other applicable laws by military tribunals. † The argument by the opposition, therefore, is that choosing to bypass the UCMJ, the President has circumvented the established rule which states that violations of the â€Å"laws of war† may be tried by court-martial. Opponents of the M. O. ear that a defendant would risk losing certain rights guaranteed by courts-martial and the civilian courts. Since the publication of the order, several legal professionals and civil rights activists have been very outspoken against the use of military tribunals and the executive’s claim to such a large amount of unchecked power. Legal professionals like Leonard M. Wallstein Jr. , a former officer in the Judge Advocate’s Office during WWII, agree that â€Å"efforts to divorce the military justice system from command control, to insure adequate representation by counsel, and to increase civilian supervision should not cease. Such a gross neglect for the protection of civil liberties would underscore America’s intent to p reserve freedom and democracy Both the Bush administration and its opponents posses enough strong evidence to support their respective opinions regarding the constitutionality of the M. O. However, after almost five years of scrutiny, the M. O. recently fell subject to the Supreme Court’s ruling in Hamdan v. Rumsfeld, creating a stay on the proceedings of the commission against Osama Bin Laden’s driver, Salim Ahmed Hamdan. Originally, the decision to consider Hamdan’s request for Habeas Corpus was denied by the Military Court of Appeals. Nonetheless, the Supreme Court took charge in this matter and decided that Hamdan’s military commission was unconstitutional as it â€Å"is not expressly authorized by any congressional act,† and violates, among other things, the Uniform Code of Military Justice Article 36 as well as Article 3 of the Geneva Conventions. The details of the Hamdan case have significant implications for the enforcement of Bush’s M. O. Such implications will be discussed later in this report. The debates surrounding a President’s use of military tribunals did not begin in 2001 but rather much earlier in the nation’s history. Therefore, in light of the recent decisions made in the Supreme Court regarding the constitutionality of the M. O. and Bush’s use of military tribunals, it is important to investigate the historical evidence used by the administration. Examples of military commissions being used by Presidents date back to President Washington. Bush’s most useful precedent comes from Franklin D. Roosevelt’s administration and the Supreme Court decision in Ex Parte Quirin. Since the M. O. , however, the debate has been at the forefront of national politics and civil rights agendas. Evidence of such a prolonged debate begs an important historical question. Based on both historical evidence as well as contemporary issues, it is this report’s intention to answer the following questions: How was President Bush able to legally implement his M. O. given the apparent breach of checks and balances? Also, how did the other two branches of the federal government eventually renounce the M. O.? Finally, what measures are currently in place to try suspected terrorists? This report will be broken into three sections. The first describes, in detail, President Bush’s argument in terms of the legality of his M. O. This section answers the first historical question. There is strong historical evidence in support of his M. O. including several precedents set in place by previous presidents. While examples date back all the way to General Washington’s use of tribunals during the Revolutionary War, this report will not go back any further than President Lincoln and the tribunal held following his assassination. Other significant historical examples, which carry a great deal of weight in the matter of the M. O. ’s constitutionality, include the Supreme Court decisions of Ex Parte Milligan following the Civil War, Ex Parte Quirin following World War II, as well as Johnston v. Eisentrager and Ex Parte Yamashita. The second section reviews the arguments made against Bush’s M. O. , which challenge his authority to establish military tribunals without proper supervision by the other two branches of government. This section answers the second historical question. It cites the three most recent Supreme Court decisions in the matter of military commissions. The cases Hamdi v. Rumsfeld, Padilla v. Rumsfeld, and Hamdan v. Rumsfeld all address contemporary issues surround the M. O. The outcome of each case helped the opposition by discrediting the M. O. in many respects. The facts of each case will be thoroughly discussed in this section along with several examples of public opinion. Additionally, Section II analyzes the applicability of the UCMJ and the Geneva Conventions within the scope of recent court cases such as Hamdi v Rumsfeld, Rumsfeld v. Padilla, and Hamdan v. Rumsfeld.. As this report will discover, it becomes very clear that the M. O. violates both the UCMJ and the Third Geneva Convention. Section II concludes with recent updates in the debate over Bush’s M. O. including the Military Commissions Act of 2006 as well as the outcomes of the three aforementioned cases. The third and final section will mostly be my personal opinion on the matter of Bush’s M. O. Using the evidence compiled in this report, I will inject my own ideas regarding military commissions for the war on terror. While this brief section is only my opinion, it will mostly serve as a helpful conclusion to the questions raised in this introduction. The debate over Bush’s M. O. brings into question the President’s protection of American interests. Charles Lane of The Washington Post, declares that the decision over the M. O. â€Å"could be one of the most significant rulings on presidential war powers since the end of World War II. † Here, Lane refers to Ex Parte Quirin, a Supreme Court decision involving Nazi saboteurs and the use of military tribunals to try them for violating the laws of war. Whatever the outcome, it is important that both the administration and its opponents act according to the American values which the M. O. originally set out to protect. Section I Recent arguments over Bush’s M. O. created a sudden resurfacing of old Supreme Court cases which disclose the use of military tribunals throughout the history of the United States. The Bush administration believed that certain historical evidence would prove to be very useful in confirming the President’s authority to establish military tribunals. The historical evidence for the President is abundant. Significant cases which support the M. O. include Lincoln’s use of military tribunals and suspension of Habeas Corpus, Ex Parte Mudd, Ex Parte Quirin and Ex Parte Yamashita. However, opponents feel that each account of a president’s use of tribunals is circumstantial and deserves close scrutiny. Examples of military tribunals being enforced by the Executive Branch are seen throughout the history of the United States. However, opponents of the M. O. cite their own historical precedents which should place restrictions upon the President’s authority to use military tribunals in the war on terror. An example of such a case is Ex Parte Milligan. During the Civil War, President Abraham Lincoln utilized his authority as Commander and Chief by declaring the suspension of habeas corpus and establishing the use of military tribunals in regions where resistance against Union forces was dangerous. Lincoln’s actions were questioned with regard to whether or not the President could make such a decision without the consent of Congress. It was argued that the authority to establish military tribunals was explicitly reserved for Congress. According to Fisher, â€Å"throughout the first seven decades of the American Republic, xecutive officials recognized that the ultimate constitutional authority to create and regulate military tribunals lay with Congress, not the President. † As such, President Lincoln’s actions were significant as he independently claimed the power to establish military tribunals during a time of war. Lincoln’s Attorney General, Edward Bates, published his opinion on Lincoln’s actions and stated that the President was acting in accordance with his constitutional limits. Bates’ argument relied on the contention that the President’s duty is to â€Å"preserve, protect and defend the Constitution of the United States. However, Bates continued, Lincoln could not perform his duties â€Å"without putting down rebellion, insurrection, and all unlawful combinations to resist the General Government. † Lincoln also cited Article II of the Constitution which stated that â€Å"the privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public safety may require it. † Seeing as how the conditions of the Civil War satisfied this criterion, Lincoln was confident in the appropriateness and the legality of his decision to suspend the writ. He pointed out that â€Å"it can not be believed the framers of the instrument intended that in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by rebellion. † President Bush applied this same principle, in a sense, by declaring a state of national emergency after 9/11 to ensure public safety according to the M. O. Bates concluded that the President’s power to seize such unilateral authority was â€Å"temporary and exceptional. Therefore, Congress did not object to Lincoln’s decision in this matter, and the Executive was allowed to use military tribunals and suspend Habeas Corpus against those rebelling against the Union. Recognizing the military significance of the situation, Congress enacted a piece of legislation on July 17, 1862, which authorized the President to appoint a judge advocate general to enforce, in a time of war, military tribunals for those who qualified as being a member of the military or those who were caught spying against the Union. While there are several instances of military tribunals being used throughout the Civil War, the case Ex Parte Milligan stands out as the most significant. Ex Parte Milligan had important implications which restricted Executive authority in establishing tribunals. Opponents cite the case as a reason to renounce the M. O. Lambdin P. Milligan, a U. S. citizen from Indiana who was not a member of the military, was arrested in 1864. Milligan protested the Civil War and was a well known Confederate sympathizer as he belonged to the Southern secret society, the Knights of the Golden Circle. He was charged for several offenses including â€Å"conspiracy against the government of the United States,† as well as â€Å"violations against the law of war. † As a civilian unaffiliated with the military, Milligan filed for a writ for habeas corpus and challenged his military tribunal and his subsequent death sentence. Milligan’s case was heard by the Supreme Court in March, 1866. The Honorable James A. Garfield, then a Representative for the state of Ohio, offered his own argument on the outcome of the case. Garfield alludes to the decision made in Milligan: â€Å"[N]o such necessity can be pleaded to justify the trial of a civilian by a military tribunal when the legally authorized civil courts are open and unobstructed. † This idea is expressed further in Judge Advocate General Joseph Holt’s â€Å"Digest for Opinions† for 1866, where he states that â€Å"in a military department the military commission is a substitute for the ordinary state or United States court, when the latter is closed by the exigencies of war, or is without the jurisdiction of the offense committed. † Therefore, Garfield concluded that â€Å"[Milligan] shall not be unlawfully punished . . by the sentence of a tribunal which had no jurisdiction over either their persons or the subject-matter of the charges. † The implications of the Milligan case were substantial. Justice Davis delivered the opinion of the Supreme Court. The decision restricted power of the Executive to establish military tribunals â€Å"in any State or Territory where the courts of the United States are open. † Although Lincoln’s use of tribunals provided legal precedent for the Executive Branch during times of war, the decision in Ex Parte Milligan gave jurisdiction back to the courts. During the war, Lincoln was afforded the opportunity, as Commander in Chief, to do what he thought was necessary to save the nation under â€Å"temporary and exceptional† conditions. However, after the war, the Supreme Court’s decision in Ex Parte Milligan influenced Congress as they â€Å"passed legislation to limit the Court’s jurisdiction to hear cases involving military law. † As a result, â€Å"federal courts became less tolerant of military tribunals that operated without specific statutory authority. This precedent runs counter to the Bush administration as it limits the Executive’s power to adjudicate persons who are not members of the United States military. Despite the implications of the Milligan case, the Bush administration does call upon its own examples of historical precedents which grant the President legitimate authority to establish military tribunals when the conditions are â€Å"temporary and exceptional. † For example, military tribunals were used in the trial of those charged with plotting Lincoln’s assassination. Dr. Samuel A. Mudd was caught setting the broken leg of John Wilkes Booth after Booth shot President Lincoln. Mudd was sentenced to life imprisonment, where he was bound to a ball and chain and forced to perform hard labor. Mudd’s conviction by military tribunal was upheld by a district court in Florida in 1868. Recently, Mudd’s family petitioned for a reconsideration of the case in order to clear Dr. Mudd’s name. However, the Army Board for Correction of Military Records maintains that the conviction was appropriate under military tribunal. In a letter defending his decision in Dr. Mudd’s appeal, Assistant Secretary of the Army, Patrick Henry, explains how Dr. Mudd acted â€Å"as an enemy belligerent by aiding and abetting those who had violated the laws and customs of war. † Assistant Secretary Henry cites Ex Parte Quirin as the most recent precedent which confirms the use of use of tribunals in Mudd’s case. President Bush and his administration frequently refer to Ex Parte Quirin as the best legal precedent which supports the M. O. The court’s decision in Quirin is extremely significant for Bush. Chief Justice Stone delivered the opinion of the Court, which held that â€Å"the military commission was lawfully constituted† and â€Å"that the petitioners are held in lawful custody, for trial before the military commission, and have not shown cause for being discharged by writ of habeas corpus. † The case took place in June, 1942 when eight Nazi German saboteurs came to the United States by submarine â€Å"intent on using explosives against railroads, factories, bridges, and other strategic targets. † President Roosevelt called upon his power as Commander in Chief to issue a proclamation for military tribunals to try the saboteurs. Roosevelt’s use of military tribunals to try the Nazi saboteurs was supported by the Supreme Court and is still used as a precedent today in the war on terror. Roosevelt issued Proclamation 2561 on July 2, 1942, which stated that he was going to establish military tribunals to try the eight German saboteurs â€Å"in accordance with the laws of war. † This is significant because trying the saboteurs under the Articles of War, which were the laws for the military at the time before the UCMJ, would have raised questions with regard to the use of courts-martial as the legal method for adjudication. However, the term â€Å"law of war† refers to international law. Title ten of the United States Code states that â€Å"the provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by law of war may be tried by military commissions, provost courts, or other military tribunals. † President Bush utilized the same rhetoric as Roosevelt when he wrote his M. O. , claiming that terrorists are in violation of the â€Å"laws of war† and therefore subject to military tribunals. The Germans involved in Ex Parte Quirin were charged with four crimes: â€Å"one against the â€Å"law of war†, two against the Articles of War, and one involving conspiracy. † After training in Germany, they traveled across the Atlantic Ocean in a submarine with orders to destroy â€Å"strategic targets in the United States. † Their mission was soon compromised, however, when they came ashore on Long Island. Disagreements among the eight man team became a serious problem, as one of the team members, Ernest Peter Burger, explained during the tribunal that â€Å"there was no harmony. There was watching each other. It was no good; the spirit was not there. † Despite being approached by a member of the Coast Guard on the beach, the Germans managed to avoid being apprehended until they were eventually caught by the very determined FBI. At the time, it was assumed by the FBI that the men would be tried in a civil court. But several members of Congress and President Roosevelt demanded a military tribunal. The decision to try the German saboteurs by military tribunal was made for two reasons. The first was that FDR did not want make public how easy it was for the Germans to arrive in America undetected. Using military tribunals would allow the administration to withhold certain details of the case in the name of national security. President Bush uses the same logic in his M. O. by requiring â€Å"a level of secrecy that could include closed trials, unpublicized verdicts and unannounced punishments. † Similarly for Roosevelt, it was extremely important during a time of war to minimize potential publication on the weakness of domestic security. The second reason FDR and several embers of Congress preferred a military tribunal was because it was believed that a civil court or a court martial would limit the desired punishment. Because the men had not actually committed sabotage their chances of being convicted in a civil court were small. In his memoirs titled, â€Å"In Brief Authority,† Attorney General Francis Biddle explains how the eight Nazis would not be subjected to a harsh enough punishment in a civil court â€Å"on the ground that the preparations and landings were not close enough to the planned act of sabotage to constitute attempt. The maximum punishment for conspiracy to commit crimes was only three years. Therefore, Roosevelt wanted to circumvent the civil courts in order to pursue a harsher punishment. He sought the ability to â€Å"devise [his] own procedures, departing from court-martial practice whenever [he] chose to. † Such unilateral, unchecked power is identical to what Bush suggests with his M. O. FDR’s use of military tribunals was accepted at the time because he made it clear that the saboteurs were charged for violating the â€Å"laws of war† rather than the Articles of War. Fisher explains how the distinction between charging the Germans with violating the â€Å"law of war† verses the Articles of War is â€Å"fundamental. † He explains how the Articles of War were created as part of Congress’ constitutional right to â€Å"define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations. † Offenses of the Articles of War were subject to the strict procedure of courts-martial and would not allow for the maximum punishment available. Therefore, in his proclamation on July 2, 1942, FDR gave himself the authority to establish a tribunal as â€Å"President of the United States of America and Commander in Chief of the Army and Navy of the United States, by virtue of the authority vested in [him] by the Constitution and the statutes of the United States. † As such, Roosevelt did not say he had â€Å"inherent or exclusive constitutional authority,† but rather that he â€Å"acted under a mix of constitutional authority afforded to the President and statutory authority granted by Congress. As such, FDR’s authority was upheld in the Supreme Court decision Ex Parte Quirin. In order for FDR to establish military tribunals, the administration first had to prove that Ex Parte Milligan did not apply. Ex Parte Milligan stated that tribunals could not take place in states where the civil courts were still operational. However, Attorney General Biddle argued that Milligan â€Å"should be limited to its part icular circumstances. † In the case of the Nazi saboteurs, Biddle made it clear that the circumstances outlined by FDR demanded a different perspective. He explained to the Supreme Court that â€Å"war today is so swift and so sudden and so universal that it would be absurd to apply doctrine like the doctrine in the Milligan case. † Furthermore, Assistant Solicitor General, Oscar Cox, assured Biddle that â€Å"Ex Parte Milligan . . . did not require a civil trial for enemy aliens who came through the lines out of uniform for the purpose of committing sabotage. † Such was the case in Quirin as the saboteurs changed out of uniform when they arrived in the U. S. Therefore, it did not appear that Ex Parte Milligan was going to prevent the military tribunal from taking place. Ex Parte Quirin occurred as a result of the eight Nazis filing for a writ of habeas corpus upon being detained and subjected to military tribunal. In the Per Curiam dated July 31, 1942, the Supreme Court decided that the President was authorized to issue his proclamation for military tribunals and that â€Å"the military commission was lawfully constituted. † Also, the charges against the Nazis â€Å"allege[d] an offense which the President [was] authorized to order tried before a military commission. It was finally decided that the â€Å"petitioners must be denied access to the courts, both because they are enemy aliens or have entered our territory as enemy belligerents, and because the President’s Proclamation undertakes in terms to deny such access to the class of persons defined by the Proclamation. † The ability to avoid the use of courts-marti al or regular district courts, therefore, was granted because of Roosevelt’s specific citation of the â€Å"laws of war. † President Bush also cited the â€Å"laws of war† in his M. O. , making the precedent of Ex Parte Quirin an important defense for the current administration. The tribunal concluded on August 1, 1942, with each of the eight men sentenced to death. Roosevelt’s proclamation allowed for a two-thirds majority in the ruling of the death penalty, while the Articles of War â€Å"required unanimity for a death penalty. † Despite certain concerns for FDR’s unchecked power, the Supreme Court decided that his actions were â€Å"conferred upon him by Congress. † This may have been due to the fact that FDR’s power as Commander in Chief during a time of war afforded him a certain amount of immunity from Congressional interference. Mostly, the Supreme Court made the distinction between charges against the Articles of War and the â€Å"laws of war. † Another important distinction it made, a distinction which applies to terrorists in Bush’s M. O. , was that between â€Å"lawful combatants (uniformed soldiers) and unlawful combatants (enemies who enter the country in civilian dress). † This was an important issue surrounding the tribunal. Upon arriving on the Long Island beach, the men were in the middle of changing from military uniforms to civilian clothes. Their wearing civilian clothes put them in the category of â€Å"unlawful combatants. According to the United States Supreme Court, being identified as â€Å"unlawful combatants† made the use of a military tribunal and their subsequent death penalties all the more justified. The effect of the decision in Ex Parte Quirin had a lasting impact on the use of military tribunals. The Supreme Court received a great deal of credit for deliberating over the legality of the tribunal. An editorial in the Washington Post stated that, â€Å"Americans can have the satisfaction of knowing that even in a time of great national peril we did not stoop to the practices of our enemies. An article from the New York Times claimed that â€Å"we had to try them because a fair trial for any person accused of crime, however apparent his guilt, is one of the things we defend in this war. † Clearly it was believed that the saboteurs were guilty. Nevertheless, the Supreme Court’s decision to debate the legality of the Quirin sentence was looked upon favorably by the American public. Despite public approval for the decision in Ex Parte Quirin, there were those who argued differently.