Of Spies, Saboteurs, and Enemy Accomplices: History’s Lessons for the Constitutionality of Wartime Military Tribunals
153 Pages Posted: 21 Sep 2016 Last revised: 26 Aug 2017
Date Written: 2017
Congress has recently authorized military commissions to try enemies not only for violations of the international law of war, but also for domestic-law offenses, such as providing material support to terrorism and conspiring to commit law-of-war offenses. Moreover, President Trump has indicated support for further military trials, including trials against U.S. citizens. Such military tribunals lack the civilian jury and independent judge that Article III of the Constitution prescribes. The constitutionality of such an abrogation of Article III’s criminal trial guarantees has been debated during many of the nation’s wars without clear resolution, and the constitutional question is now at the heart of a potentially landmark case, al Bahlul v. United States, currently before the Supreme Court.
In the rare cases where the Supreme Court has recognized exceptions to Article III’s criminal trial protections, it has typically invoked functional and normative justifications. When it comes to adjudication of war-related domestic-law offenses, however, neither the government nor the appellate judges who have defended commission trials have offered any such functional or normative considerations sufficient to justify denial of the independent judge and jury that Article III guarantees. Defenders of the military tribunals have instead relied almost exclusively upon historical claims of two kinds to defend the constitutionality of using military commissions in this context. This Article addresses one of those historical claims—namely, that the Constitution should be understood to have preserved, rather than to have modified, the federal government’s power to prosecute a war as it did during the Revolutionary War. According to this argument, the Constitution was ratified against, and should be presumed not to have called into question, a practice of military adjudication of offenses that were not violations of the international law of war: court-martial proceedings, authorized by the Second Continental Congress and approved by General George Washington, against certain spies and against disloyal civilians who aided the British. The earliest Congresses purportedly confirmed this constitutional understanding by enacting statutes permitting military trials for spying and for aiding the enemy—statutes that have remained in the federal code ever since.
This Article offers the first comprehensive account of the Revolutionary War precedents. It discusses how they were understood in the ensuing decades and the ways in which they, and the post-1789 statutes, have been invoked and mischaracterized as authority in later wars. This history demonstrates that the received wisdom about these precedents is almost entirely mistaken, and that they provide little, if any, support for a new Article III exception for military adjudication of war-related domestic-law offenses. The Article thus offers an object lesson in how a complex history can be misunderstood and distorted in the course of constitutional interpretation, particularly on questions of war powers.
The pre-constitutional history does, however, include one conspicuous aberration: a 1778 congressional resolution authorizing trial by court-martial of civilians who provided a particular kind of aid to the British army. General Washington relied upon this resolution in 1780 as authority to convene a court-martial to try Joshua Hett Smith for assisting Benedict Arnold in the plot to surrender West Point to the British. This Article shows why it would be a mistake to accord much interpretive weight to the Smith case—a striking deviation from Washington’s otherwise consistent conduct—in crafting exceptions to Article III’s criminal trial guarantees.
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