Tribunals in Earlier Wars

Tribunals in Earlier Wars

The preceding sections asked how far the title of commander in chief reaches when a President acts at home, and the answer turned on what Congress had done. A related question arises when a President wants to try people before a military tribunal instead of a civilian court. A military commission is a court run by the armed forces, and a defendant tried before one has no jury and no civilian judge, so the stakes for individual liberty are high and the power to create such a tribunal has to come from somewhere in the Constitution. In Hamdan v. Rumsfeld, taken up later in this chapter, the Court observed that urgent military need alone cannot justify penal tribunals that Article I and Article III did not contemplate, and that any authority to create them can derive only from the powers the Constitution grants jointly to the President and Congress in time of war.¹

Two decisions from earlier wars set the baseline for that inquiry. In Ex parte Milligan, decided after the Civil War, the Court held that military tribunals could be used only when the regular courts were unable to function, and it refused to let a military commission try a civilian where they were open.² In Ex parte Quirin, decided during World War II, the Court allowed a military commission to try enemy saboteurs for offenses against the law of war.³ Two facts separate the cases. The first is who was being tried, a civilian in one case and enemy belligerents in the other. The second is whether Congress had sanctioned the forum, because the Quirin Court found it unnecessary to decide how far the President could create commissions alone, since Congress had already authorized the trial of law-of-war offenses before such commissions.⁴

Those two variables give a reader a pair of questions to ask of any tribunal: who is the defendant, and has Congress approved the forum? The post-9/11 cases that follow in this chapter ask the same questions about captured enemy fighters and the commissions created to try them. Hamdan, for example, went back to Quirin's reliance on Article of War 15 and its successor in the Uniform Code of Military Justice to ask whether Congress had sanctioned the commissions the President had set up.⁵ The discussion takes up Milligan next, because it shows the limit on the commander's power over civilians before Quirin shows where that limit stops.

Milligan and Civilian Trials

The Commander in Chief Clause puts the armed forces under presidential command, and the first major test of whether that command reaches civilians came out of the Civil War. In Ex parte Milligan, Lambdin P. Milligan, a citizen of Indiana who had lived in the state for twenty years and had never served in the military or naval forces, was arrested at his home in October 1864 on the order of General Alvin P. Hovey, who commanded the military district.⁶ The charges were conspiracy against the United States, affording aid and comfort to rebels, inciting insurrection, disloyal practices, and violation of the laws of war.⁷ A military commission convened at Indianapolis under orders from the President and the War Department found him guilty on every charge and sentenced him to death, and the President approved the sentence.⁸ Milligan then petitioned the federal circuit court for a writ of habeas corpus, which is the order requiring a jailer to bring a prisoner before a court and justify the detention, arguing that the commission had no jurisdiction over a civilian citizen of a loyal state whose civil courts remained open.⁹

His petition added a fact that carries much of the case. A grand jury had sat in that same federal court in January 1865, had been charged to inquire into violations of United States law, and had adjourned without indicting or presenting him.¹⁰ The civil courts were therefore functioning and available, and the executive chose to proceed against him somewhere else. The circuit judges divided and certified three questions to the Supreme Court: whether the writ should issue, whether Milligan should be discharged, and whether the commission had jurisdiction to try and sentence him.¹¹ The Court answered the first two under the Habeas Corpus Act of 1863, which required the writ and discharge once a citizen held by presidential order other than as a prisoner of war had gone unindicted by an adjourning grand jury. The third answer is the constitutional holding: a military commission convened by presidential order in a state where the civil courts are open and functioning lacks jurisdiction to try a civilian citizen who is not in the military service.¹²

The reasons behind that holding can be read off the structure of the facts. The commission rested on executive order alone and on no act of Congress, so it could not exercise the judicial power that the Constitution reserves to the courts it establishes, and the Constitution guarantees jury trial in criminal prosecutions while limiting its exceptions to cases arising in the land or naval forces.¹³ A departure from ordinary courts needs a justification, and the justification offered for military tribunals is necessity. Open courts with a sitting grand jury show that no such necessity existed in Indiana, and the Court later described the principle in just these terms: exigency alone will not justify penal tribunals that Article I, section 8 and Article III, section 1 did not contemplate, and the Milligan Court observed that "no part of the judicial power of the country was conferred on" military commissions.¹⁴ An incentive problem sits underneath as well. In Milligan's case the military arrested the accused, the President's orders created the tribunal, and the President approved the sentence, so one branch served as accuser, judge, and final reviewer, and the civilian lost the grand jury, the trial jury, and an independent judge all at once.¹⁵

The commander-in-chief point needs careful attribution, because the opinion windows for the Court's majority in the source file largely reproduce the arguments of counsel for each side, and those arguments are easy to mistake for the Court's own words. Counsel for Milligan argued that the clause narrows the question to whether authority to command an army carries authority to try civilians, and answered that commanding an army requires control of no persons beyond its officers, soldiers, and camp followers.¹⁶ Counsel reasoned that if Congress neglects to provide subsistence, the commander may not take it from citizens, and if Congress fails to provide for recruiting, the commander may not force citizens into the ranks, so the President's war power is only the power of commanding the armies and fleets that Congress causes to be raised.¹⁷ The passage on command of an army quoted earlier in this chapter comes from that argument and not from the Court's opinion. Counsel for the government argued the opposite, that once a war begins the whole power of conducting it belongs to the President, who is the sole judge of its exigencies, and that the President's 1862 proclamation subjecting disloyal persons to martial law and military commission was within the commander's power, with Congress having ratified the suspension of habeas corpus in 1863.¹⁸ The Court's holding is the outcome that settles between these views: a commission created by executive order could not try Milligan, so the broad claim of executive power failed on those facts.¹⁹ Justice Jackson later drew the same line in Youngstown, where he said the President is Commander in Chief of the Army and Navy and not of the country and its inhabitants.²⁰

Chief Justice Chase, joined by Justices Wayne, Swayne, and Miller, concurred in the judgment discharging Milligan but did not join the Court's broader reasoning.²¹ The four Justices agreed that Milligan had to be released because Congress had not authorized trial of civilians by military commission where the civil courts were open, and because the 1863 Act's procedures had not been followed.²² Chase nevertheless believed that Congress did have constitutional power to authorize such tribunals in time of war or insurrection, even in loyal states, and he thought the Court's opinion went too far in suggesting that no such power could ever exist.²³ The Court's opinion therefore reached further than his, because it suggested the Constitution allows no such power, while his position left the choice to Congress. His statement of the interplay between the branches is the part later cases remember: "neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President," so that Congress cannot direct the conduct of campaigns, and the President cannot, "without the sanction of Congress," institute tribunals to try soldiers or civilians except in cases of controlling necessity.²⁴

Chase's formula has a second consequence, because it protects a sphere for the President as well as for Congress. It suggests that Congress may not interfere with the command of the forces and the conduct of campaigns.²⁵ Whether the President may convene commissions without Congress's sanction in cases of controlling necessity is a question the Court has never answered definitively.²⁶ Later decisions have also avoided it, because in Quirin the Court found it unnecessary to decide how far the President could create military commissions alone, since Congress had authorized trial of law-of-war offenses before them.²⁷ Milligan is thus the baseline for the question every later tribunal case asks, which is whether the President acted with congressional authorization against a defendant whom the law of war reaches.

Reading Milligan as a bar on every military trial misses what the holding covers. It concerns a civilian citizen who was not in the forces, tried by a commission created without Congress where civil courts were functioning. Quirin itself describes Milligan as a case in which the acts charged were not law-of-war offenses or were of a kind constitutionally triable only by a jury, and the next section takes up the saboteurs who fell on the other side of that line.²⁸ On an exam, the majority's broad suggestion and Chase's narrower view should be kept separate, and the arguments of counsel in the reported opinion should never be quoted as the Court's reasoning.

Quirin and Unlawful Combatants

The question that Milligan answered for a civilian arises again whenever the government calls a defendant an enemy: may the armed forces try that person before a military commission instead of a civilian court? The Court answered it differently for a different kind of defendant in Ex parte Quirin, a World War II decision, and the two cases together show that the result depends on who the defendant is and on whether Congress has approved the forum. This section treats Quirin compactly, because its importance here lies in what it left open and in its later use as the model the Government invokes in the post-9/11 cases.

The facts were these. Eight German agents received training at a sabotage school near Berlin in the use of explosives and secret writing, and German submarines then carried them across the Atlantic and landed them in the dark in June 1942, four at Amagansett Beach on Long Island and four in Florida.³⁰ They came ashore carrying explosives, fuses, and incendiary and timing devices, and they wore German uniforms or parts of uniforms while landing.³¹ Each group buried its uniforms and equipment at once and went inland in civilian dress, with instructions from an officer of the German High Command to destroy war industries and war facilities in the United States.³² One of them, Haupt, claimed to be a naturalized United States citizen, and agents of the FBI took all of them into custody.³³

On July 2, 1942, the President, acting as President and Commander in Chief, appointed a military commission and directed it to try the men for offenses against the law of war and the Articles of War. The same day a proclamation declared that subjects, citizens, or residents of a nation at war with the United States who entered the country through coastal or boundary defenses and were charged with sabotage, espionage, or violations of the law of war would be subject to military tribunals.³⁴ The men sought habeas corpus, arguing that no statute or constitutional provision authorized their trial by tribunal and that the Fifth and Sixth Amendments entitled them to the civil courts and a jury.³⁵ It was conceded that the state and federal courts where the men were arrested were open and functioning normally.³⁶ The Court nonetheless sustained the commission's jurisdiction, so the open courts that decided Milligan did not decide this case.

The explanation lies in the law of war, which the Court said draws a line between the armed forces and the peaceful population of a belligerent nation and, within the fighting population, between lawful and unlawful combatants.³⁷ A lawful combatant, who fights openly as part of an armed force, is subject to capture and detention as a prisoner of war. An unlawful combatant is also subject to capture and detention, and in addition may be tried and punished by a military tribunal for the acts that make the belligerency unlawful.³⁸ The Court gave two familiar examples: the spy who passes the lines secretly and without uniform, and the enemy combatant who comes secretly through the lines without uniform to wage war by destroying life or property.³⁹ The saboteurs fit the second description, because they shed their uniforms and entered the country in civilian dress to destroy war industries.

The distinction has a practical logic behind it. A uniform marks a fighter as a combatant and keeps the fighting visible and separate from the peaceful population, so a fighter who hides combatant status to destroy life and property from within that population gains an advantage by exposing civilians to suspicion and danger. The law of war answers that advantage by denying such a fighter the protection of prisoner-of-war status and by treating the concealment as an offense that a military tribunal may try. Capture, detention, and trial of unlawful combatants therefore count as an accepted incident of waging war, which is why the Court treated the commission as an exercise of the war power and not as a displacement of the ordinary criminal courts.⁴⁰

Two further points in the opinion carry into later cases. The first concerns citizenship: the Court held that United States citizenship does not relieve an enemy belligerent of the consequences of a belligerency that violates the law of war, which answered Haupt's claim.⁴¹ The second concerns what the offense requires. The saboteurs argued that they had not committed or attempted any act of destruction and had not entered a zone of active military operations, and the Court said they were no less belligerents for that.⁴² Status attaches when a person comes secretly through the lines without uniform to wage war, even before any destruction has occurred. Hamdi v. Rumsfeld later relied on the same reasoning to hold that nothing bars the Nation from holding one of its own citizens as an enemy combatant, a decision taken up later in this chapter.⁴³

Law-of-war status settled who could be tried, and a separate step settled whether the President could create the forum. The Court found it unnecessary to decide to what extent the President as Commander in Chief may create military commissions without the support of congressional legislation, because Congress had authorized trial of offenses against the law of war before such commissions.⁴⁴ The authorization was Article of War 15, which provides that the articles giving courts-martial jurisdiction do not deprive military commissions of concurrent jurisdiction over offenders or offenses that by statute or the law of war may be triable by them.⁴⁵ The Court read that article as Congress exercising its power to define and punish offenses against the law of nations by sanctioning military commissions, and it described the President's order as an exercise of the authority Congress conferred together with the authority the Constitution gives the Commander in Chief.⁴⁶

That joint source of authority explains the Court's posture toward the President's order. It said the detention and trial, ordered in the declared exercise of Commander in Chief powers in time of war and grave public danger, would not be set aside without a clear conviction that they conflicted with the Constitution or with constitutional laws of Congress.⁴⁷ In the terms of Jackson's framework from Youngstown, the President acted with Congress behind him, which is the position of greatest presidential strength. The setting also explains why Hamdan v. Rumsfeld called Quirin the "high-water mark of military power to try enemy combatants for war crimes" and the model the Government invokes most often, since no more robust model of executive power exists.⁴⁸

Hamdan also narrowed what the congressional authorization in Quirin meant. The Court there declined to revisit Quirin's controversial characterization of Article of War 15 as authorization, but it observed that even Quirin did not treat the article as a sweeping mandate to invoke commissions whenever the President deems them necessary. Congress had preserved the power the President already had under the Constitution and the common law of war, on the express condition that the law of war be obeyed.⁴⁹ That condition is why the Quirin Court, once it found authorization, went on to ask whether the law of war had in fact been complied with.

Two matters stay open, and both come from the tension with Milligan. The first is how far the President may create commissions without congressional authorization, which Hamdan, discussing Chief Justice Chase's suggestion in Milligan that the President might do so in cases of controlling necessity, said the Court has not answered definitively.⁵⁰ Quirin's reliance on Article of War 15 let the Court avoid that question. The second is how Quirin fits with Milligan, the other pole of this pair. Quirin itself treated Milligan as a case where the acts charged were either not recognized as law-of-war offenses or were of a kind constitutionally triable only by a jury, while the saboteurs were charged with a law-of-war offense that the Constitution does not require a jury to try.⁵¹ Two differences are usually offered: Milligan was a civilian while the Quirin defendants were members of a foreign military, and the commission that tried Milligan had not been authorized by Congress while the one in Quirin had been convened against the backdrop of Article of War 15.⁵² It remains unclear whether the cases can be cleanly distinguished, and Quirin did not spell out how much weight the congressional authorization carried.⁵³

The usual exam error is to cite Quirin for the proposition that the President may try any alleged enemy by commission, or to treat citizenship as irrelevant to every defendant. The holding reaches enemy belligerents charged with a law-of-war offense where Congress had authorized commissions for such offenses. A civilian who is not part of an enemy force, tried by a commission Congress never authorized, stands where Milligan stood.