Historical Use of Military Commissions Fails to Provide Support for Trying 9/11 Suspects

By Colby Goodman

In an interview with Fox News Host Sean Hannity on Tuesday, former Vice President Dick Cheney said “there’s all the precedent in the world to try him [Khalid Sheikh Mohammed] in military commissions.” Similar to other conservative commentators on the subject, Cheney then mentioned in particular the United States’ use of military commissions to try Lincoln’s assassins and to prosecute German spies during World War II.

Examining the historical use of military commissions, however, the precedent for such action is weak at best. Both of the cases Cheney cited are highly controversial and neither provides strong support for using military commissions to try 9/11 suspects. In many cases, military law experts have also said the use of military commissions isn’t something about which Americans would be proud.

During the U.S. Civil War, the U.S. Supreme Court in Ex Parte Milligan rejected the use of military commissions while ordinary courts are functioning and capable of exercising jurisdiction. This ruling was similar to the U.S. Army’s then code on laws of war, called the Lieber Code, which said the suspension of criminal law was only valid “as far as military necessity requires this suspension….” This U.S.-created Code was later used for precursors to the Geneva Conventions.

When then-Attorney General Speed ignored the Supreme Court’s ruling in Ex Parte Milligan and prosecuted U.S. civilians accused of assassinating Lincoln in military commissions, there was notable opposition. The previous Attorney General under Lincoln, Edward Bates, for example, said the use of military commissions was “unlawful” and a “gross blunder”. Commenting much later on one of the civilians tried in the case, the Army Board for Correction of Military Records in 1992 remarked that the military commissions had lacked jurisdiction. The U.S. Supreme Court did not review this case.

The case against the would-be German saboteurs who snuck into the United States under civilian guise to commit acts of war, Ex Parte Quirin, is also controversial and provides less precedent to prosecute 9/11 suspects. One of the reasons the Roosevelt Administration in fact chose to use military commissions was to continue to make it appear that the FBI had expertly tracked down the spies. The press didn’t know that one of the saboteurs had turned himself in and helped the FBI find the other men. There was also concern about the maximum sentences spies would receive if tried in criminal courts.

In a highly unusual scenario, the U.S. Supreme Court heard the case even though lower courts had yet to review it. After only a day of discussion, the Supreme Court made an initial ruling, which allowed the commissions to move forward. Some three months later the full legal opinion was issued, long after the men had been executed.

Even if one accepts the decision in Ex Parte Quirin, there is little justification for using this case as precedent to prosecute 9/11 suspects in military commissions. Using the standard from Ex Part Milligan, U.S. criminal courts are fully capable of exercising jurisdiction.

U.S. law, for example, provides stiff sentencing for crimes associated with terrorism. According to an HRF study in 2009, U.S. federal criminal courts have also convicted 195 individuals connected with terrorism charges either by verdict or by a guilty plea since September 11, 2001. And, in many terrorism cases, U.S. federal courts have successfully protected U.S. national security interests.

Recognizing the United States is now a party to the Geneva Conventions, which were created after the German saboteur case, the U.S. Supreme Court in Hamdan v. Rumsfeld said Common Article 3 of the Geneva Conventions applies to Guantanamo detainees. Article 3 requires detainees to be tried in a “regularly constituted court”, which according to the ICRC, is one “established and organized in accordance with the laws and procedures already in force in a country.” If the obligation then is that military commissions should essentially be like federal criminal courts, then there is no reason to have a separate system.

So when Hannity says the Obama Administration is breaking precedent by trying 9/11 suspects in federal criminal courts, one could easily say not really.

(a portion of the source material for this blog comes from the book Military Tribunals & Presidential Power: American Revolution to the War on Terrorism by Louis Fisher)

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Published on December 10, 2009

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