Military Commissions throughout U.S. History: Military Commissions Have a Long and Irregular History of Being Created by Federal Authorities, and U.S. Courts Have Been Just as Inconsistent in Rulings on Their Constitutionality

By Eddlem, Thomas R. | The New American, October 10, 2011 | Go to article overview

Military Commissions throughout U.S. History: Military Commissions Have a Long and Irregular History of Being Created by Federal Authorities, and U.S. Courts Have Been Just as Inconsistent in Rulings on Their Constitutionality


Eddlem, Thomas R., The New American


Military commissions have always been controversial in U.S. history, and no more so than in the past 10 years. Military commissions have traditionally been defined as executive branch courts, created by necessity under a system where ordinary courts are not functioning, such as during a rebellion or military occupation of a foreign country. They are distinct from ordinary criminal trials and the regular military system of justice, the courts-martial, the latter being generally required to "apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts" under the Uniform Code of Military Justice.

Constitutional problems with the Bush (and now Obama) military commissions were accurately explained by Chad De-Veaux of Western State University Law School:

  Such commissions, which may most accurately be categorized as
  "Article II courts," deviate widely from civilian courts. Ordinarily
  inviolate procedural protections are disregarded. Juries are denied.
  The right of appellate review is circumscribed. The universal
  common-law prohibition against the admission of hearsay, even
  multiple hearsay, and un-sworn evidence is not honored. Most
  critically, the structural independence enjoyed by Article III courts
  and even state jurists is wholly absent. Military commissions are
  inquisitorial in nature. Military judges and even the commission
  members themselves fall within the direct chain of command of the
  President and his proxies and ultimately depend on favorable reviews
  from these superiors for promotion and career advancement.

[ILLUSTRATION OMITTED]

Congress has twice authorized the President to create military commissions, passing laws in 2006 and 2009, but the bodies have come under increasing criticism from civil libertarians for alleged lack of legal safeguards. Some have even claimed that military commissions are unconstitutional on their face, but the truth is almost as complex as the history of military commissions in America. Military commissions in the United States began before the colonies became a nation, drawing heavily from British common law and Parliament's "Mutiny Acts" in the late 1600s, which traditionally authorized military commissions for the trial of uniformed soldiers for crimes.

American War for Independence

Military commissions during the American war for independence weren't called "military commissions," but they took place nonetheless. American patriot and spy Nathan Hale was hanged without a trial by British General William Howe in 1776, as spies caught in the act needed no trial under British law at the time (though the British signed the 1899 Hague convention guaranteeing spies trials). But George Washington sometimes gave accused spies the benefit of a proper trial--and sometimes not. Upon capturing Benedict Arnold's British handler--Major John Andre--out of uniform, Washington condemned him to death after a "Board of General Officers," following the rules of military courts-martial, had recommended death by hanging. Washington's Board of General Officers was an advisory board only, as international law of war at that time did not guarantee spies a trial. Washington also sent about 20 spies to formal courts-martial for trial, so his record on the matter is not consistent--even though it was consistent with British common law that preceded the U.S. Constitution.

War of 1812 and Seminole War (1819)

During the War of 1812, the U.S. government ordered no formal military commissions. But under his own volition, Andrew Jackson, after taking control of New Orleans in 1814, declared martial law, suspended habeas corpus, and censored the press. Jackson repelled the British in the most lopsided battle of the war, achieving almost 100-1 casualty rates in the Battle of New Orleans. The battle began two weeks after the war formally ended, but news of the peace treaty from Ghent, Belgium, had not reached New Orleans by the time of the battle. …

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