The nation has heard much in the news lately about military tribunals. President George W. Bush has authorized military tribunals to try non-U.S. citizens for acts of terrorism against the United States.
Most people don't know what a military tribunal is or how it compares to other courts. I interviewed Frank Moran, executive director of the Boston Bar Association and a retired Air Force colonel, who spent eight years as a military judge and served as chair of the American Bar Association Standing Committee on Armed Forces Law.
What is a military tribunal?
A military tribunal or military commission is a court-like forum that is created within the military to try a person accused of crimes. It is authorized by the U.S. Constitution and the Uniform Code of Military Justice (UCMJ), which is a federal law (Title 10, United States Code, Chapter 47) passed by Congress. The great majority of the UCMJ is devoted to the rules concerning the trial of U.S. service personnel by court-martial. Article 21, UCMJ, however, provides authority to convene other military tribunals "with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals."
Courts-martial are different from military tribunals because the law involved and their rules for procedure are well established in the UCMJ and Manual for Courts-Martial It is important to understand, at the outset, that the roles, procedures, and law applying to U.S. courts-martial provide very extensive protections to the rights of the accused, in the same manner as any other court in the United States. Although the president's authority to convene military tribunals derives from the Constitution and the UCMJ, the president has great discretion in developing the rules and procedures of a military tribunal, which may be quite different from those applying to courts-martial.
According to President Bush's order, who might be tried by military tribunal?
On November 13, 2001, President Bush signed an executive order that creates the authority to try non-U.S. citizens by military tribunal where there is reason to believe that the accused is a member of the al Qaeda terrorist group or has engaged in, aided or abetted, or conspired to commit acts of international terrorism, or acts in preparation for terrorism, intended to cause injury to the United States or its citizens, or has knowingly harbored any such persons, and that it is in the interest of the United States that such person be subject to this order.
Military tribunals have historically been conducted to try war criminals. War criminals are typically combatants who violate the law of war, which is a settled body of international law. For example, the most obvious war crime is the intentional killing of noncombatants (civilians). The last time the United States convened military tribunals was during World War II. More than one thousand German war-crime defendants were tried before U.S. Army military tribunals, some of whom were found not guilty, and more than 250 death sentences were carried out. Several countries that Germany occupied also tried German war criminals using their own military tribunals.
How do military tribunals differ from other courts?
A crucial point needs to be made about the authority contained in the UCMJ to convene military tribunals, which makes a significant difference in the answer to your question. Article 36, UCMJ, states that pretrial, trial, and post-trial procedures, including modes of proof, for courts-martial and military tribunals may be prescribed by the president by regulations that shall, so far as he considers practicable, apply the principles of law and rules of evidence generally recognized in the trial of criminal cases in the U.S. district courts.
In Section 1 (F) of his November 13 order, President Bush specifically exercised his prerogative to find that it is not practicable to apply the principles of law and rules of evidence of the U. …