The Trials of Gitmo Military Tribunals


Categories: Law,Publications

Orange County Register

Cambridge, United Kingdom — The U.S. Supreme Court on Wednesday heard two cases testing the use of military tribunals in the “war on terror.”  Boumediene v. United States challenges the 2006 Military Commissions Act, which prohibits suspected terrorists from contesting their detention in civilian courts. Al-Odah v. Bush asserts federal jurisdiction over U.S. detention facilities at Guantanamo Bay, a location previously deemed beyond the scope of judicial review. These cases framed important tensions between individual liberty and national security. They also illuminated a fundamental constitutional challenge: reconciling the art of war with the rule of law.

Americans faced similar challenges nearly 90 years ago. Shortly after the United States’ entry into World War I, Sen. George Chamberlain introduced legislation subjecting all persons “endangering the success of the military forces” to court-martial. The following year, Sens. John Weeks and John Bankhead sought legislation applying martial law to civilians working in U.S. factories, military facilities, and other areas designated by Congress. Other legislators, including Sen. Robert Owen of Oklahoma, advocated prosecuting criminal suspects under military law regardless of their citizenship or combatant status.

That legislation echoed many contemporary debates. Like today, the threat of global warfare raised serious concerns regarding foreign infiltrators and the state of homeland security. Like today, an existential conflict between irreconcilable value systems justified expanded military deployments abroad and enhanced surveillance powers at home. Like today, the need for secrecy and dispatch encouraged the use of military as opposed to civilian instruments. Amplified by wartime apprehension, these arguments rationalized restrictions on civil liberties while underscoring popular support for military tribunals.

Opposition to those initiatives came from a compelling yet unlikely source: the U.S. Justice Department. Charged with enforcing the wartime Sedition and Espionage Acts, attorneys in the department’s War Emergency Division restricted free speech, prosecuted anti-war activists and interned “enemy aliens” without trial. Yet despite this sweeping authority, many of those same lawyers came to view military tribunals as a threat to the American constitutional system. Led by Assistant Attorney General John Lord O’Brian, they launched a two-pronged attack on the Chamberlain and Bankhead legislation.

The first prong argued that courts-martial would strip defendants of Fifth Amendment protections against coerced self-incrimination while violating their Sixth Amendment right to a jury trial. Civilian courts, by comparison, could preserve those rights while punishing traitors and saboteurs. Although “the operations of the federal or state courts may be criticized for slowness,” O’Brian observed, “that very slowness is a guarantee to the accused that he shall not be summarily tried without due process of law.”

The second prong contested congressional efforts to implement martial law in factories and other designated facilities. Those designations would effectively exclude the judiciary by establishing virtual “combat zones” where government action would be exempt from normal constitutional limits. Most seriously, they would suspend civil liberties for a targeted class of individuals even in the absence of local hostilities. Such measures invited military government, argued O’Brian, “because in modern war practically every activity of the citizen has a direct relation to the conduct of the war.”

Al-Odah and Boumediene present many of the same constitutional concerns. By stripping enemy aliens of their habeas-corpus rights, Congress created a prior presumption of guilt not unlike that proposed by Sens. Chamberlain and Owen. By placing Guantanamo Bay outside the jurisdiction of federal courts, the Bush administration created an extraconstitutional sphere not unlike that advocated by Sens. Weeks and Bankhead. O’Brian’s observations offer compelling insight into those similarities. Then, as now, the scope of such measures was matched only by their potential for abuse.

During the First World War, Justice Department lawyers tested and refuted these theories despite opposition from congressional leaders and the American public. Today, Congress and the president seek a fundamental reconfiguration of the tenuous balance between individual liberty and national security. Left unchallenged, such imprudence risks sacrificing enduring principles of limited government to passing notions of military and political expediency. Ninety years ago the United States fought World War I to make the world safe for democracy. If the “war on terror” represents a similar struggle, then our first priority must be to practice the values we seek to defend.