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The Intersection of Lawlessness and Justice: Police Misconduct -

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Announcements

Article submissions are now open for the Journal! Deadline: December 19!

JUDGMENT WITHOUT JUSTICE: The Evolution of Civilian Trials Under Military Commissions

Winter 2014 : Volume VII : Issue 2

*Author: John Moreland, University of Illinois Urbana-Champaign

*Military commissions were first used in American history during the American Revolution by the Continental Army. They were again used in the War of 1812 and the Mexican-American War. Perhaps the most expansive use of military commissions was during the Civil War, including the famous trial of the Lincoln assassination conspirators. This article examines the use and change of trials of civilians by military commissions from the American Revolution to the post-9/11 United States. It does so by canvasing three landmark military commissions: the trial of the Lincoln assassination conspirators, ex parte Quirin (1942), and Hamdi v. Rumsfeld (2004). In each case, it examine the facts, the procedures used by the military tribunals, and the outcomes and precedent that each set for American jurisprudence. By studying this evolution of military commissions, not only do the violations of constitutional rights become apparent, but also the overreaching of constitutional powers by the Executive Branch. While each of the three cases possesses distinct time periods, fact patterns, and outcomes, all of them resulted in the violation of the defendant’s constitutional rights, the overreaching of governmental power by one branch exercising the authority of another branch, and the use of military commissions as an instrument of expedient revenge for attacks against America. In all three cases, the jurisdiction of the Military Commission was challenged on the basis that the Executive did not have the constitutional authority to appoint commissions. Also, they violated the Fifth and Sixth Amendment rights of the accused by not providing for a Grand Jury and having the trial proceedings in secret. The suspension of habeas corpus and martial law was also of issue. It is interesting to see the evolution of military commissions over the course of history and to consider their potential in the future. Even though several constitutional rights have been adopted and protected in these tribunals, the question of who is to establish them still remains. Is it expressly Congress? Is it the President, acting as Commander-in-Chief? The Supreme Court has yet to address these issues. Perhaps by not addressing these questions, the Supreme Court is giving the Executive tacit approval. However, it is during a time of war or national emergency when the president is most likely to make extralegal decisions and thus constitutional rights are most threatened.

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