statutes providing for military trials

[Arthur D. Wolf]

        In December, 1944, two years after Quirin, the Supreme Court, on the same
day, decided Koretmatsu and Ex parte Endo.  In Endo, the Court held that
the executive branch did not have the statutory authority to intern
Japanese who had been excluded under the order upheld in Koretmatsu.
Fourteen years later in Kent v. Dulles, the Court again narrowly construed
statutory authority when the exercise of it by an executive official came
too close to the constitutional line.

        I am wondering whether the rather strict standard of statutory
authorization, the basis for the decisions in Endo and Dulles, would be
applied today to require that Congress expressly give (or more clearly than
it has given) to the executive the authority to create military
commissions.  The recognition of military commissions in the current
statutes to which Ed refers could then be read as simply allowing such
commissions to conduct business as specified in those statutes so long as
their creation is otherwise specially authorized by statute.

        The requirements of a declaration of war, to which Ed Hartnett referred,
and of a violation of the laws of war (to which others have referred) might
also limit the ability to utilize military commissions in the current
context.  I still remain of the view, though, that their utilization by our
government within the territory of the U.S. is, in any event, politically
unwise.  Employing an international tribunal sitting abroad seems much more
appropriate.


                                                Art Wolf
                                                Western New England College School of Law



At 08:54 AM 12/8/2001 -0500, you wrote:
>Chris Schroeder writes:
>
>. . .  First, my reading of the statutory authorization limits it to
>tirubnals established to try violations of the law of war (that was step
>two, above).  This comes from the language of Article 21 of the UCMJ which
>says that the creation of courts martial does not deprive military
>commissions of *concurrent jurisdiction with respect to offenders or
>offenses that by statute or by the law of war may be tried to military
>commissions.*  There are, however, no statutes that give military
>commissions jurisdiction over any offenses at all, so their jurisdiction
>must be limited to violations of the law of war. The November 3 order tries
>to go further.   For example, although I have not researched this
>thoroughly, harboring someone who is a member of A Qaeda, even if the
>person being harbored has engaged in no violations of the law of war, is
>covered by the military order but would not be a violation of the law of
>war. Nor would simply being a member of Al Qaeda.
>
>_________
>
>I have located two substantive statutes that provide for trial before a
>military commission.  One authorizes trial, either by court martial or
>military commission, of those charged with aiding,  harboring or
>corresponding with the enemy. 10 USC 904 (any person who aids the enemy
>"shall suffer death or such other punishment as a court-martial or military
>commission may direct").  The other authorizes trial, either by court
>martial or military commission, of those charged with spying. 10 USC 906
>(spy "shall be tried by a general court-martial or by a military commission
>and on conviction shall be punished by death").
>
>These provisions, like the savings provision for trials before military
>commissions for violations of the law of war, appear to be equivalent to
>provisions in force at the time of Quirin.  Indeed, I have found no
>relevant difference in the statutory framework discussed in Quirin and the
>statutory framework in force today, and repeated requests on the Fed Courts
>and Civ Pro lists have not resulted in anyone pointing to any such
>difference (other than the formal declaration of war in WW II). See also 10
>USC 828 (court reporters for military commissions); 10 USC 848 (punishment
>for contempt of military commissions); 10 USC 850 (authorizing use of
>certain evidence before a military commissions); 10 USC 836 (President has
>the power to prescribe "procedures, including modes of proof," for "cases
>arising under this chapter triable in . . .  military commissions")
>
>Two other things to note about the "aiding the enemy" and "spying"
>statutes.  First, the FDR order is reproduced after 10 USC 906, and, much
>to my surpise, appears to still be in force.  Second, unlike any other
>substantive provision that I have located in the UCMJ (ranging from assault
>to desertion to conduct unbecoming an officer and a gentlemen), these
>statutes are not limited by their terms to those subject to the UCMJ.
>Instead, they purport to apply to any person who commits the specified
>offenses.   I have not checked the legislative history for evidence that
>this was a deliberate choice, but it is a rather striking textual
>difference.
>
>Ed Hartnett
>Seton Hall
>