Military Tribunals

By Jonathan Wallace

Military tribunals have not been used in this country to try enemy belligerents since World War II. To understand the legalities of their use at that time, lets start by looking at a case called Ex parte Quirin, 317 U.S. 1 (1942).

The underlying story is fascinating. In late June of 1942, a German submarine, the U202, deposited four men on a beach in Long Island (behind my home in Amagansett, N.Y., as it happens). The four disembarked wearing military uniforms so that, if captured immediately, they could not be shot as spies. They chnged into civilian clothes and buried dynamite and detonators on the beach for later retrieval. While they were covering the boxes with sand, John Cullen, a young Coast Guardsman who was patrolling the beach, happened upon them. George Dasch, the leader of the Germans, took Cullen aside so he would not see the boxes and told him they were Scandinavian sailors who had washed up on the beach. Cullen invited them to the local Coast Guard station to warm up and Dasch explained that they were fishing illegally and did not want to be arrested. Dasch, in all respects the very opposite of the popular conception of a Nazi spy, offered Cullen a $300 bribe to keep silent about what he had seen. Cullen took the money and faded into the fog. He went directly to his superiors to report the incident and the Coast Guard arrived on the beach in time to see the U202 depart. The Germans by this time had walked to the Long Island Railroad station in Amagansett and caught an early morning train to New York City. A few days later, another team was landed by submarine on a beach near Jacksonville, Florida, walked to a highway and caught a Greyhound bus without being detected.

The operation was run by German naval intelligence, the Abwehr, which planned to infiltrate similar teams every few weeks and then send a high ranking spy to manage them. Operational missions included bombing Penn Station, Newark and the New York City water supply, Jewish-owned department stores, and factories and railroad tracks elsewhere in the country. The men had all been recruited among a large group of Germans who had lived in the United States and returned to Germany before the war. One of the men in the Long Island landing was a U.S. citizen. Since the ability to speak English and knowledge of the U.S. were the most important characteristics, the recruits were not hardened S.S. killers but factory workers and low level government officials.

Dasch and another member of his team, Burger, had dinner together their first night in New York City and carefully revealed to each other independently-conceived plans to surrender to American authority and turn in the rest of the team. Though both later testified that this had been his plan since he day he was recruited, historians of the incident have speculated that Dasch was unnerved by the encounter with Cullen and wanted to surrender before being arrested, and that Burger played along because the only alternative would have been to kill Dasch and he, like Dasch, was no killer.

The FBI had already mounted the largest manhunt in its history but had not a single lead as to where the Germans were. Dasch called the FBI, then took a train to Washington and turned himself in. He spoke to several FBI agents who assumed he was a crank; he persuaded them he was the genuine article by slapping down the $84,000 bankroll the Abwehr had given him. At his direction, the FBI arrested the other three men from the Long Island landing. About the Florida team, Dasch only knew that he was supposed to meet them in Cincinnati in July. He gave the FBI a handkerchief on which the Abwehr had encoded a list of U.S. contacts in invisible ink. Dasch had haplessly forgotten how to restore the writing but the FBI figured it out and used the leads to roll up the rest of the team. In the event, most of the other men had told American family and friends that they were German spies; they were all as amateurish as Dasch. Not a single act of sabotage was committed by either team, and the Nazis, disturbed by the immediate and total failure of the initial effort, sent no more saboteurs as far as we know (an assumption confirmed by access to German intelligence files after the war). Two agents were landed on the Maine coast in 1944 to gather information but were arrested right off the beach. All suspected acts of sabotage during the war ultimately proved to be negligence or the malice of locals rather than enemy action.

J. Edgar Hoover conveniently forgot to tell President Roosevelt that Dasch had turned himself in, preferring to take credit for stunning investigative work. The president later discovered the truth when he read the trial transcript. On July 2, he issued an executive order constituting a military tribunal to try nationals of foreign belligerents caught entering the U.S. for the purpose of sabotage. A military tribunal was constituted in July, just weeks after the spies entered the U.S. It met for the first time on July 8 and completed its work by July 27. All of the Germans, including Dasch and Burger, were sentenced to death. The condemned men petitioned the federal district court in D.C. for a writ of habeas corpus, which was denied, and appealed to the Supreme Court, which met on July 29 and 30 to hear argument. The Supreme Court denied the application, and most of the men were executed the following month. Defense counsel, a Colonel in the U.S. military, successfully persuaded the president to commute Dasch and Burger's sentences based on their cooperation. Both men were freed and sent back to Germany in 1948, where Dasch was treated with contempt for causing the death of his team.

The decision in In re Quirin was delivered for a unanimous court by Chief Justice Stone. The question presented to the Court was whether President Roosevelt's July 2 order violated the Constitution. The order was made pursuant to the then Articles of War, which had been voted by Congress and formed part of the United States Code. The Articles codified a long-standing principle of the international law of war, which held that enemy spies in civilian clothes, passing behind their adversary's lines with an intent to wreak destruction or gather intelligence, were subject to the death penalty and thus not entitled to any of the protections due uniformed prisoners of war. As the court noted (see Quirin, footnote 14) General Washington had appointed, or confirmed the death sentences voted by, a number of military tribunals during the Revolution (including the one which condemned Major John Andre, the British agent who entered American lines to meet Benedict Arnold). President Lincoln also made substantial use of military tribunals to try Confederate agents and saboteurs during the Civil War. Among these were men accused of plans to hijack Northern ships, derail trains and set fire to New York City.

The Court first carefully traced the President's power to issue the July 2 order back to the Congressional "war powers" provided in Article I, section 8 of the Constitution, and the President's executive powers under Article II. It held that the Articles of War were an appropriate constitutional exercise of power by Congress, and fully provided for the trial of enemy spies by miltary tribunal. As a final step, the Court affirmed that the July 2 order was a valid implementation of the Articles of War.

The Court stressed that the procedure being followed was a well-accepted implementation of the universally accepted laws of war:

By universal agreement and practice the law of war draws a distinction between..... those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.

According to the court, unlawful acts of war include "an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property". It noted that the Hague Convention, adopted by the United States in 1909, adopted the pre-existing distinction between lawful and unlawful belligerents, protecting only the former.

There was no question that the act of entering the U.S. by submarine, carrying dynamite for the destruction of war industries and means of transportation, qualified as acts of unlawful belligerency. An attack on actual military targets was not required.

Counsel for the Germans had argued that the Sixth amendment to the U.S. constitution guaranteed trial by jury in all cases in which the death penalty might be applied. The Court easily brushed this argument aside, holding that the Sixth Amendment was intended to preserve the right to jury in all circumstances where it had been guaranteed by the common law, but not to "bring within the sweep of the guaranty those cases in which it was then well understood that a jury trial could not be demanded as of right." This included cases tried by military tribunals. The Court significantly noted that military tribunals are "are not courts in the sense of the Judiciary Article.... and.... in the natural course of events are usually called upon to function under conditions precluding resort to [usual civil and Constitutional] procedures." The Court did not further explore this very important statement, which was "dicta" (unnecessary to its grounds for deciding the case). There was no discussion of whether circumstances somehow precluded a jury trial in federal court for the Germans. The Court also raised, but did not consider, the question of whether unlawful belligerents are due any process at all (in other words, can they simply be shot out of hand, as Churchill proposed doing with the Nazis who instead were tried at Nuremberg).

The fact that one of the men, Haupt, was a U.S. citizen, did not entitle him to different treatment. "Under the original statute authorizing trial of alien spies by military tribunals, the offenders were outside the constitutional guaranty of trial by jury, not because they were aliens but only because they had violated the law of war by committing offenses constitutionally triable by military tribunal."

The Court disposed quickly of a final technical argument, that the military commission as constituted by the July 2 order was in violation of specific procedural requirements mandated by the Articles of War. In particular, counsel claimed that the secrecy of the proceedings was improper, because it would "preclude a later opportunity to test the lawfulness of the detention." Justice Stone noted that the court was unanimous in rejecting this argument, but could not agree on the reason why:

Some members of the Court are of opinion that Congress did not intend the Articles of War to govern a Presidential military commission convened for the determination of questions relating to admitted enemy invaders and that the context of the Articles makes clear that they should not be construed to apply in that class of cases. Others are of the view that--even though this trial is subject to whatever provisions of the Articles of War Congress has in terms made applicable to 'commissions'--the particular Articles in question, rightly construed, do not foreclose the procedure prescribed by the President...

Accordingly, the Court held that the charge of violating the laws of war was one properly to be tried by miltary tribunal; that the July 2 order was constitutional, as was the military tribunal as constituted, and that the Germans were not entitled to the requested relief, a writ of habeas corpus freeing them from the tribunal's jurisdiction. As noted above, most of them were then executed within a few weeks after.

A few years later, the Supreme Court again considered the legality of military tribunals in the case of In re Yamashita, 327 U.S. 1 (1946). After the Japanese surrender, the Allies constituted an international military tribunal in Tokyo, similar to the one which was created in Nuremberg, with judges appointed by numerous countries affected by Japanese military action. Elsewhere, accused Japanese war criminals were tried by military or civil courts of individual countries. Yamashita was prosecuted in a U.S. military tribunal in the Philippines. He was a commander of Japanese troops there, and was charged with failing to supervise his men properly. He was not accused of direct atrocities, unlike most alleged Japanese war criminals; the claim was that he should have known of, and prevented, the crimes committed by his troops. Originally charged with 64 crimes of men under his command, Yamashita was served with notice of 59 more such acts on the day his trial began--then denied additional time to prepare his defense against the new allegations. Like the men in Quirin, Yamashita sought the only legal means available for obtaining review by a civilian court, a habeas corpus writ (civil appeals were precluded by the executive order under which he was prosecuted). The Supreme Court, relying heavily on Quirin, held that the military tribunal was properly constituted and acting under clear constitutional and legal authority. The court was now ready to resolve a question it left open in Quirin: it held that the procedural protections set forth in the Articles of War were not available to enemy combatants (unless they were being tried for acts committed when they were already prisoners of war).

Unlike Quirin, which was unanimous, two justices dissented in Yamashita. Justice Murphy argued that the Fifth Amendment guarantee of due process applied to enemy belligerents:

The immutable rights of the individual, including those secured by the due process clause of the Fifth Amendment, belong not alone to the members of those nations that excel on the battlefield or that subscribe to the democratic ideology. They belong to every person in the world, victor or vanquished, whatever may be his race, color or beliefs. They rise above any status of belligerency or outlawry. They survive any popular passion or frenzy of the moment. No court or legislature or executive, not even the mightiest army in the world, can ever destroy them. Such is the universal and indestructible nature of the rights which the due process clause of the Fifth Amendment recognizes and protects when life or liberty is threatened by virtue of the authority of the United States.

Justice Murphy concluded that the defendant "was rushed to trial under an improper charge, given insufficient time to prepare an adequate defense, deprived of the benefits of some of the most elementary rules of evidence and summarily sentenced to be hanged." He said that the use of military tribunals to try a "fallen enemy commander" formed part of a cycle of vindictiveness and retribution and represented an abandonment of American ideals. "To conclude otherwise is to admit that the enemy has lost the battle but has destroyed our ideals." He also pointed out that the charge of failure to supervise troops during extremely chaotic battlefield conditions--when his forces were being disrupted by the U.S. invasion--was "without precedent in international law or in the annals of recorded military history".

Justice Rutledge also dissented--a painful act under circumstances in which his conscience demanded he do so despite the many good reasons for remaining silent. "If, as may be hoped, we are about to enter upon a new era of law in the world, it becomes more important than ever before for the nations creating that system to observe their greatest traditions of administering justice..." He rejected the government's argument of "military necessity". "The purpose of battle is to kill. But it does not follow that this would justify killing by trial after capture or surrender..."

Justice Rutledge gives a valuable and highly unappetizing view of the tribunal at work. Hearsay evidence of all types--affidavits, newspaper articles, propaganda films-- was admitted which would have been excluded in a U.S. court. This evidence was highly prejudicial and denied Yamashita the opportunity to cross-examine the witnesses who made the affidavits, were quoted in the newspaper accounts, etc. The judges--none of them lawyers-- denied the defense counsel any additional time to prepare a defense to the 59 new charges introduced by the prosecution at the last moment. Justice Rutledge concluded that the Articles of War--which mandated the use of evidentiary rules similar to those used in the federal courts-- were applicable and should have been followed, and the failure to do so "deprived the proceeding of any semblance of trial as we know that institution."

As for the Fifth Amendment, Justice Rutledge stated:

Not heretofore has it been held that any human being is beyond its universally protecting spread in the guaranty of a fair trial in the most fundamental sense. That door is dangerous to open. I will have no part in opening it. For once it is ajar, even for enemy belligerents, it can be pushed back wider for others, perhaps ultimately for all.

And he ended by quoting Thomas Paine:

He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.

Quirin and Yamashita are the law of the land today-- the precedents the current Supreme Court will look to in deciding any challenge to military trials of Al Quaeda members. It seems very unlikely that the Supreme Court will over-rule itself and in so doing, go out on a limb to protect the rights of members of the organization which attacked the World Trade Center.

Most debate of constitutional and political issues, in the media or on the net, is horrendously murky because people rarely stop to explain whether their viewpoint is that something is illegal, or that it should be, or that it is simply morally wrong regardless of legality, or that it is wrong from a tactical or common-sense standpoint regardless of morality or legality. As a result, many arguments constantly shift from each of these playing fields to the others, without the parties even acknowledging their dramatic sideways leaps. A good example is the death penalty, often attacked as "cruel and unusual" (therefore putatively unconstitutional despite long usage), grossly immoral, and also expensive and not a deterrent (practical arguments). Second Amendment arguments tend to be even murkier, with advocates claiming that there is a natural law endorsing self defense which arches over the Constitution or any human legislation (a mystical-moral-metaphysical argument), that the Second Amendment (despite Supreme Court and other jurisprudence to the contrary) protects individual gun ownership, and that a gun in everyone's pocket would end crime (practical argument).

The immediate reaction to the President's executive order for military tribunals to try Al Quaeda members seems to play on all these fields. Because military tribunals haven't been used in more than fifty years, and for many people have associations of extreme injustice (modifiers such as "railroad" and "kangaroo" and sayings such as "military justice is an oxymoron" immediately jump to mind), quite a few of us, myself included, had a kneejerk reaction that they must be unconstitutional. But Quirin and Yamashita clearly establish they are not. Please understand here that I am using "unconstitutional" to mean something which either has been previously held to violate the Constitution, or which is so similar to some other violation that a prior rule must logically be extended to cover the new circumstances. I am not using "unconstitutional" in the sense of "anything I believe to be immoral or wrong from a practical standpoint".

I don't like military tribunals for the same reason Justice Rutledge didn't, and I find his words to be particularly persuasive. Among the lessons of 9/11 are that isolationism is impossible on a planet only 26,000 miles in circumference, and that a part (not the whole) of the best longterm defense we have against future such attacks is to work to propagate our values everywhere, reaching minds that to date have only been touched by fundamentalist schools preaching violence. As a small part of this effort, the trials of the defendants should serve as a world-wide object lesson in American democracy. This lesson is also of great value for Americans, as an opportunity to review, to reconnect with, the fundamentals of the system which we are defending. I can't imagine anything which sets a better example, both internally and externally, than to conduct business as usual, and a fair trial is part of our business as usual.

On a related topic, this would be a good time for President Bush to reverse course on the international criminal court, which is viewed by most of the world, America aside, as a much fairer forum for war crimes trials than any national court. Our use of military tribunals, compared with our official detestation of a forum which we fear might one day bring Americans to trial under the international laws of war, creates a terrible double standard which undercuts the president's assertions that we are trying to do justice. Military tribunals, at their worst, are really just the shooting of prisoners of war, with a little extra paperwork as cover. Subjecting the Al Quaeda members to military tribunals elides the differences between ourselves and them.

Use of military tribunals is also an insult to the people of the United States, many of whom are certainly willing (as I would be myself) to serve on any jury trying an Al Quada member with full procedural safeguards. We haven't asked to be protected against the possible consequences of serving on such a jury, nor have we asked to be kept ignorant of what actually happens in a military tribunal. The president, spurred on by John Ashcroft, who is a very bad attorney general, simply and definitively chose the wrong road. Justice Rutledge's shocked summary of all of the violations of due process in the Yamashita case explains why.

I was pleased to hear yesterday that Spain will refuse to extradite some Al Quaeda members it has arrested unless we renounce the use of military tribunals to try them. This is a good opportunity for Europe to exercise the moral leadership and pressure it has already demonstration on death penalty issues.

To finish on a personal note, I am an American; I was at the World Trade Center when the attack occurred; I have lived, minute by minute, through the aftermath. And I want the defendants tried, in our federal courts, here in New York City, publicly and with all the rights and safeguards guaranteed them by the Constitution. That is the only end to the story which makes any sense to me. Everything else is a fraud, a theft of an ending.