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Making a Burlesque of the Constitution: Military Trials of Civilians in the War Against Terrorism

109 Pages Posted: 18 Dec 2009  

Anthony F. Renzo

Vermont Law School

Date Written: December 1, 2009


In the wake of the September 11, 2001 terrorist attacks, the federal government has advanced a constitutional theory of unchecked Presidential power to use military commissions to try and punish any person the executive branch deems to be an “enemy combatant,” including citizens and resident aliens. This sweeping power is said to be inherent in the President’s constitutional authority as Commander-in-Chief, and also authorized by acts of Congress passed pursuant to its Article I “war powers,” including the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006. Contrary to such an extravagant and dangerous assertion of unlimited military jurisdiction, the President’s use of military tribunals is subject to judicially reviewable constitutional limitations designed to protect the Article III and Sixth Amendment rights of civilians to trial by jury in a civilian court.

This Article demonstrates that military commissions convened in areas where Article III civilian courts are open and functioning have no jurisdiction to try a detainee unless the detainee has been properly classified as an “enemy combatant.” Such a classification requires the government to show that the detainee has directly participated in hostilities against American armed forces on the battlefield or otherwise engaged in active hostilities outside the battlefield under the command of the enemy’s armed forces. If such a showing cannot be made, the detainee is a “civilian” who must be tried for any criminal acts in the civilian courts according to the Constitution. The Article further demonstrates that whether a person detained by the United States is a “civilian” or an “enemy combatant” is a justiciable issue of constitutional law for the civilian courts. For historical context, the Article traces the origins of the Constitution’s jury trial guarantees, provides a brief history of the use of military tribunals in England and America, and explores the traditional distinction in American constitutional law between the legal category of “civilian” and that of “enemy combatant.”

Keywords: Military Commissions, Sixth Admendment, jury trial in civilian court, detainee, Military commissions Act of 2006, Detainee Treatment Act of 2005

Suggested Citation

Renzo, Anthony F., Making a Burlesque of the Constitution: Military Trials of Civilians in the War Against Terrorism (December 1, 2009). Vermont Law Review, Vol. 31, p. 447, 2007 (Revised and Updated, December 2009) ; Vermont Law School Research Paper No. 10-21. Available at SSRN:

Anthony Renzo (Contact Author)

Vermont Law School ( email )

68 North Windsor Street
P.O. Box 60
South Royalton, VT 05068
United States

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