The establishment of military tribunals by presidential order, although rare, is well-established in the United States. Military tribunals first came into existence during the war with Mexico in 1846 but saw their greatest expansion during the Civil War. Less than one week after the firing on Fort Sumter, President Lincoln authorized the suspension of habeas corpus, allowing military authorities to arrest and detain anyone suspected of aiding and abetting the rebellion and to detain such individuals indefinitely without bringing them before a civilian court and charging them with a crime.

Such individuals were removed from the jurisdiction of civil courts and placed under the jurisdiction of the military, which tried them by military tribunal. By the end of the war, about 5,000 trials involving more than 15,000 civilians had been held. Controversy swirled about the embattled Lincoln and his orders limiting civil liberties, but Lincoln held fast.

President Bush, in an action reminiscent of Lincoln's, issued an executive order on Nov. 13 to allow those accused of aiding and abetting terrorists "to be tried for violations of the laws of war by military tribunals." In issuing his order, Mr. Bush assumed broad powers that have come under challenge and controversy.



The conspirators

The military tribunal reached its height following the assassination of Lincoln on Good Friday, April 14, 1865. Lincoln was shot fatally by John Wilkes Booth while attending a play at Ford's Theatre in Washington. Beginning on April 17 and ending with the death of Booth on April 26 at the hands of Union cavalry, eight of the 10 individuals charged by the government for Lincoln's murder were arrested.

Booth was dead, and John Surratt, Mary Surratt's son, was at large, his whereabouts unknown. George A. Atzerodt, Lewis Thornton Powell, Edman Spangler, Mary E. Surratt, David Herold, Samuel Arnold, Michael O'Laughlen and Dr. Samuel Mudd were arrested and charged with aiding and abetting Booth in his conspiracy to murder the president and other members of his administration.

As the eight defendants sat in jail awaiting their fate, President Andrew Johnson issued an executive order on May 1, 1865, placing the accused under the jurisdiction of a military tribunal. Justification for the military tribunal had been spelled out earlier in an opinion issued by Lincoln's attorney general, James Speed. Speed's argument can be reduced to two essential points: The defendants were characterized as enemy belligerents, and they were charged with offenses that were violations of the laws of war.

The defense immediately challenged the legality of the military tribunal, claiming the defendants should be tried in a civil court. The defense argued that the accused were civilians, not enemy belligerents. It also said they were charged with what should be a civil offense, conspiracy to commit murder, and should be tried in the civil courts of the District of Columbia, which were open and functioning. Because there is no appeal under military law other than to the president of the United States, the challenge to the military tribunal's jurisdiction failed when the tribunal overruled the defense's challenge.



Guilty as charged

The trial began on May 10 and lasted until June 29, a total of 50 days. During the trial, more than 360 witnesses gave testimony on a wide range of subjects, from the official use of germ warfare by the Confederacy to an attempt to assassinate the major officials of the federal government. The military tribunal rendered its decision on June 30. All eight defendants were found guilty. Powell, Herold, Atzerodt, and Mary Surratt were sentenced to death by hanging. Mudd, Arnold, and O'Laughlen were sentenced to life in prison. Spangler was sentenced to six years.

The death sentence was to be carried out within one week, and the prison terms were to be served in the federal penitentiary at Albany, N.Y., though that was changed later by Secretary of War Edwin Stanton to the military prison at Fort Jefferson, located among the Dry Tortugas, islands off the Florida Keys.

Though historians have looked back on the Lincoln tribunal as a controversial event, popular opinion at the time overwhelmingly favored the use of a military tribunal and supported the guilty verdicts, including the death sentences. Criticism of the Lincoln military tribunal did not emerge until the middle of the 20th century. Present critics often cite an 1866 Supreme Court ruling that followed on the heels of the Lincoln conspiracy trial.



The Milligan case

The high court ruled that the military tribunal that tried and convicted a pro-Confederate insurgent named Lambdin P. Milligan and his co-defendants lacked jurisdiction. Milligan, a longtime resident of Indiana and a citizen of the United States, had been engaged actively in a series of overt acts in opposition to the federal government's prosecution of the war.

Milligan had headed a group of conspirators who had planned a forced takeover of certain federal arsenals in the Midwest, together with the attempted liberation of thousands of Confederate prisoners of war from various Northern camps. Federal agents successfully infiltrated Milligan's organization and closely monitored its activity. In May of 1864, Milligan and several of his supporters were exposed and arrested by the military. Milligan was tried before a military commission in Indianapolis, found guilty on all counts and sentenced to death by hanging.

While awaiting execution, Milligan was able to gain a stay to allow his case to be pleaded before the U.S. Supreme Court. In what has been described as a landmark decision, the high court ruled that the military tribunal that had tried Milligan had lacked jurisdiction. In a unanimous decision, the court said the only authority under which a military tribunal could exist was that derived from the "laws and usages of war" and that the laws of war can never apply to citizens in jurisdictions where the civil courts are open and functioning and where there is no threat of invasion from a hostile army. The court further ruled that a president has no authority, constitutional or otherwise, to order anyone to stand trial before a military commission under the circumstances described in Milligan's case. Milligan was set free.

Many historians have applied a broad brush to the ruling in ex parte Milligan, concluding that the court declared military tribunals illegal in those areas where the civil courts were open and functioning. It is important, however, to understand that the Supreme Court did not rule that military tribunals were illegal, only that their jurisdiction was carefully limited to certain conditions that must be met. The court found that none of the requisite conditions that would make Milligan subject to military authority existed in Indiana or applied to him.



Roosevelt's order

The question of military tribunals lay in obscurity for the next seven and a half decades, all but disappearing from the American scene. It probably would have remained so had the issue not been resurrected during World War II. In the summer of 1942, eight German agents (enemy belligerents) were landed secretly along the coast of the United States; four on Long Island, N.Y., and four along the coast of Florida. Within two weeks, all eight would-be saboteurs had been arrested by the FBI and brought to Washington.

President Franklin D. Roosevelt quickly issued a presidential order calling for the establishment of a military tribunal, denying the accused access to the civil courts and charging them with violations of the laws of war. Roosevelt's proclamation was strikingly reminiscent of Andrew Johnson's proclamation of nearly 80 years earlier. Defense attorneys for the eight prisoners petitioned the Supreme Court on a writ of habeas corpus and challenged the jurisdiction of the military tribunal, citing ex parte Milligan as their defense.

As in 1865, at the time of the Lincoln conspiracy trial, the climate clearly was against the defendants. The nation was engaged in a war whose outcome was not clear. The summer of 1942 was not a time of optimism for America or the military.



High court ruling

The Supreme Court, in summer recess, startled the country by agreeing to reconvene in an emergency session to hear the defendants' petition. The circumstances surrounding ex parte Quirin, as the case is called, were similar in many ways to those associated with the Milligan case and with the case of the Lincoln conspirators a century earlier. The United States was part of a military zone that had been penetrated by enemy belligerents. The accused were charged with offenses against the laws of war, and the president, by executive order, had made them subject to a military tribunal, thus denying them a trial by jury in the civil courts. All this had been claimed by the government in 1865 and was being claimed again in 1942.

The defense reminded the Supreme Court that in ex parte Milligan it had ruled that a military tribunal lacked jurisdiction when the civil courts were open and functioning, no invasion or threat of invasion was imminent, and the civil authority was not compelled to operate with the support of bayonets. In addition, one of the accused in the Quirin case was a U.S. citizen. In its ruling, the Supreme Court rejected the defense argument and held that the president had authority to create a military tribunal. It also found that a trial in civil court was not applicable because the defendants were charged with "offenses against the laws of war." The Court also ruled, for the first time, that citizenship played no part in deciding jurisdiction. If the defendants were charged with violating the laws of war, it did not matter whether they were citizens or aliens.

Though Mr. Bush's order has excluded U.S. citizens from the jurisdiction of a military tribunal, it need not do so to be legal in the light of past Supreme Court decisions. The president can include U.S. citizens who are believed to have aided and abetted the terrorists, thus violating the laws of war.

Quirin and his collaborators went on trial before a military tribunal and were found guilty all with the sanction of the Supreme Court.



Two forms of trial

There has been considerable discussion about Mr. Bush's order and its implications. These discussions often have confused military justice as practiced by courts-martial with that practiced by military tribunals, treating the two interchangeably. The two forms of trial have nothing in common. A court-martial follows many of the rules of evidence used in civilian courts, including proof of guilt beyond a reasonable doubt, the right of appeal, and a requirement for a unanimous decision to impose the death penalty. In a military tribunal, the secretary of defense can set the rules, including admitting hearsay evidence not permitted in civil court or courts-martial, no right of appeal and less than unanimous agreement to impose the death penalty. The trial can be held in secret. The accused even can be denied the right to choose their counsel.

One major difference between the current situation and those that went before is the official status of the conflicts. In each of the previous instances, a state of war officially existed. Though Congress has not officially declared war in the present crisis, it has authorized the president to "use all necessary force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons." Whether this authorization will be viewed as granting the president broad authority to establish military tribunals in the absence of an official declaration of war awaits debate.

One thing is certain, however: Such debate will hark back to previous military tribunals and the Supreme Court decisions that defined their jurisdiction as well as the president's authority to invoke them.

Edward Steers Jr.'s book "Blood on the Moon: The Assassination of Abraham Lincoln" was published this autumn. He lives in Berkeley Springs, W.Va.





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