Military commissions, past and future

Military Review, March-April, 2003 by Jody Prescott, Joanne Eldridge

The detention of suspected terrorists has raised questions about how they will be held accountable for their alleged crimes. President George W. Bush authorized the use of military commissions to try non-U.S. citizens involved in terrorist activities. Lieutenant Colonel Jody Prescott and Major Joanne Eldridge examine the role of military commissions in the U.S. Army's history.

ON 17 JANUARY 1865, Confederate Army Captain Robert Kennedy was convicted by a military commission of spying and other violations of the law of war "in undertaking to carry on irregular and unlawful warfare." (1) Kennedy apparently intended to set New York City on fire and was seen in other parts of the state while in disguise. A military commission sentenced him to hang, and the reviewing authority confirmed the sentence.

Kennedy's case is not merely of historical interest because of the 11 September 2001 terrorist attacks on New York City; it is pertinent in light of President George W. Bush's Military Order of 13 November 2001, which authorizes the use of military commissions to try non-U.S. citizens involved in attacks for certain terrorist activities. (2) Significantly, U.S. Department of Defense (DOD) Military Commission Order (MCO) 1, which Secretary of Defense Donald Rumsfeld issued on 21 March 2002 to implement the Military Order, authorizes line officers to sit as members of military commissions or as members of review panels to review convictions of individuals tried by military commissions. (3)

What is a military commission, and when and why is it used rather than a court-martial? Generally, a military commission is a "court convened by military authority for the trial of persons not usually subject to military law but who are charged with violations of the laws of war, and in places subject to military government or martial law, for the trial of such persons when charged with violations of proclamations, ordinances, and domestic civil and criminal law of the territory concerned." (4)

Since the Mexican-American War, U.S. military and civilian commanders have faced circumstances requiring the administration of justice in cases for which courts-martial, authorized by statute or ordinary civilian courts, were inadequate or unavailable. Over time, the military commission evolved as a tool that commanders could use in such situations.

The case of Major John Andre, the British spy who conspired with Benedict Arnold during the Revolutionary War, is sometimes cited as an example of a military commission. However, the Andre case was actually held before a board of officers convened on 29 September 1780 by General George Washington to serve as a board of inquiry, which was not empowered to adjudge a conviction or to determine a sentence. After interrogating Andre, the board recommended to Washington that Andre "be considered as a spy from the enemy, and that agreeable to the law and usage of nations, he ought to suffer death." (5)

In 1776, the Continental Congress passed a law making espionage by non-U.S. citizens or nationals a capital offense triable by court-martial. Similarly, the 1776 Articles of War made giving assistance to the enemy and giving intelligence to the enemy capital offenses triable by court-martial. Interestingly, one of Andre's and Arnold's alleged accomplices, Joshua Hett Smith, was tried by court-martial and acquitted. (6) Washington, however, thought further inquiry into Andre's case was unnecessary and ordered Andre to be hanged. (7)

Under the provisions of the 1806 Articles of War, which retained court-martial jurisdiction over spies and those who assisted or gave intelligence to the enemy, General Andrew Jackson court-martialed civilians accused of hostile acts. In March 1815, while New Orleans was still under martial law, Louis Louillier was tried by a general court-martial for a number of alleged offenses, including spying. (8) The court-martial found it only had jurisdiction over the spying offense, of which Louillier was acquitted. (9) In 1818, Jackson tried two British citizens by general courts-martial in Florida for espionage and for providing assistance to hostile Indians. Both were convicted and executed. (10)

The Mexican-American War to Reconstruction

The first documented use of a proceeding called a military commission by the U.S. Army occurred in Mexico in 1847. The U.S. Army occupied large expanses of Mexican territory that lacked the civilian judicial infrastructure to adjudicate cases not covered by the Articles of War. (11) That year, General Winfield Scott issued General Order (GO) 20, which allowed enumerated offenses committed by Mexicans and other civilians outside the jurisdiction of the 1806 Articles of War to be tried before military commissions. Military commissions were also given jurisdiction to try U.S. Army personnel for offenses not covered by the Articles of War. As many as 29 military commissions were held, some of which tried multiple defendants. (12)

Although sometimes cited as examples of military commissions, the trials of members of the Saint Patrick's Battalion, a unit of primarily ethnic Irish soldiers who fought for the Mexicans, were actually courts-martial for desertion from the U.S. Army. (13) Scott also ordered the creation of "councils of war," similar to military commissions, which tried violations of the law of war. Few cases were tried in this fashion, however, and such councils were not used again. (14)