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Military Tribunals

Until the Uniform Code of Military Justice became effective, on May 31, 1951, the Army and Navy operated under laws derived directly from the British Articles of War, which had been in force since before the Revolutionary War. Soldiers and sailors had few rights, and the system was designed to enforce discipline, not justice. Punishments included execution, flogging, and hard labor with ball and chain. Over the years, there were patchwork changes. In 1850, for instance, the Navy outlawed flogging. World War I brought more changes, including the current system that provides for three levels of courts-martial--general, special, and summary--depending on the seriousness of the charges.

World War II was the turning point. It produced an astonishing 2 million courts-martial--nearly 1 for every 8 Americans who served. More than 100 servicemen were executed; 45,000 went to prison. A public outcry ensued. Congress eventually created the Uniform Code of Military Justice. President Harry S. Truman signed the legislation on May 5, 1950. The code was hailed by many as the fairest system of military justice in the world.

The code meshed the old with the new. Commanding officers still retained a lot of power, such as the responsibility to convene court-martial trials and select jury panels. But there were new checks, similar to civilian procedures. A formal appellate review system was created, including the U.S. Court of Military Appeals, now known as the Court of Appeals for the Armed Forces.

Most important, the code expanded protections for service members. More than 15 years before the Supreme Court's historic miranda decision, the code gave service members the right to remain silent and to be informed that any statement could be used against them at court-martial. It also provided for free military defense counsel in the most serious court-martial trials. Later legislative changes, from 1968 through 1983, provided for court-martial trials to be supervised by military judges. Review boards within each service were replaced with appellate courts.

Since then, however, Congress has made few substantive changes. Nowadays, most crimes prosecuted by the military are not military-related--drug use, assault, murder, fraud, and so on. In 1987, the U.S. Supreme Court removed a requirement that court-martial trials deal only with offenses that are "service-connected," giving the military jurisdiction over all crimes committed by its personnel.

The use of military commissions to try foreign nationals began in 1780 when General Benedict Arnold, the hero of Saratoga, turned his coat and joined the British after negotiations with the handsome and dashing Major John André.  Arnold summoned André to his command at West Point along the Hudson River.  The British dearly wanted to seize it, and Arnold gave André the plans, which he put into his boot for safe keeping on the ride back to New York.  Militiamen seized André on September 23, 1780, frisked him for valuables, and found the West Point maps hidden in his boot.  They also found his pass signed by Benedict Arnold.  André confessed his identity immediately.  The militiamen took André to Lieutenant Colonel Jameson at North Castle who sent a report to his commanding officer, Benedict Arnold, to see what was going on.  Meanwhile, George Washington arrived to inspect West Point, but Arnold slipped aboard the British warship Vulture making way down the Hudson River.  After a brief trial, the military tribunal ordered André hanged as a spy in 1780.  Although admired for his charm and honesty, and although he asked to be executed as a soldier by musketry, Major John André faced the gallows with dignity on October 2, 1780 in full dress uniform provided by Washington himself.

The international law of war, held that enemy spies in civilian clothes, passing behind their adversary's lines with an intent to wreak destruction or gather intelligence, were subject to the death penalty and thus not entitled to any of the protections due uniformed prisoners of war. General Washington had appointed, or confirmed the death sentences voted by, a number of military tribunals during the Revolution. President Lincoln also made substantial use of military tribunals to try Confederate agents and saboteurs during the Civil War. Among these were men accused of plans to hijack Northern ships, derail trains and set fire to New York City.

In America’s international wars, enemy soldiers taken prisoner were relatively well treated, or at least fairly treated, in accordance with the rules held among nations and the U.S. Army’s own internal rules.  There were exceptions, mostly taking place during hostilities against Native American tribes.  On 28 September 1862, a military commission was appointed to try those Santee Sioux warriors engaged in the hostilities against soldiers and settlers in Minnesota.  With so much war around them, the inhabitants’ hatred and calls for retribution ruled.  The trials were quick:  in just one day, the military commission tried forty Santees, with some trials lasting only five minutes.  When the proceedings concluded on December 5, 1862, the commission had sentenced 300 of the 392 men on trial to death by hanging.  The people of Minnesota may have felt vindicated, but President Lincoln believed the sentences were excessive.  On December 6, he insisted that only those convicted of rape and/or murder should be executed; the rest should receive jail sentences.  As a result, thirty-eight Santee warriors received the death sentence.

In December 1862, the largest mass execution in American history took place in Mankato, Minnesota when thirty-eight men on a gallows dropped to their death at once.  What was a just war for one side became a huge war crime for the other.  Approximately 500 settlers, traders, and soldiers died in the uprising, making it one of the bloodiest wars between Indians and whites in the nineteenth century.  Consequences were not only extreme for those Sioux directly involved, but the long range effects also set the tone for all future relationships between the United States government and America’s Indian peoples for the rest of the century.  The captivities of Kiowa and Comanches after military commissions under the direction of General Philip Sheridan in 1873 sent them to Fort Marion in St. Augustine, Florida.  As far as the Indians were concerned, this scheme constituted the separation of the leaders from their people, and at its worst, the new policy represented a form of ethnic cleansing. Army leadership agreed:  the Arapaho, Comanche, Kiowa, and Cheyenne tribes were about to change their lives completely as prisoners of the U.S. Army.

The Chiricahua Apaches, however, have a far more tragic history at the hands of military commissions.  General Philip Sheridan replaced General William T. Sherman as head of the army and ordered General Nelson A. Miles to bring in the infamous Geronimo while sending 502 Chiricahuas, the entire tribe, to Fort Marion. At least twenty-four died during thirteen months inside Fort Marion, after which time they continued their POW status in different detaining facilities.  Mount Vernon, a town about thirty miles north of Mobile, Alabama was opened for twenty women and eleven children on 27 April 1887.  They moved eventually to Fort Sill, Oklahoma, where they finally ended their long captivity in 1912.  Although theirs were not great numbers, the Plains tribes and the Chiricahua Apaches endured the longest captivities as enemy prisoners of war in American history.  Their endurance was remarkable.  That they have maintained their pride and culture despite the adversity remains nothing short of a miracle.  Then again, miracles do happen.

During the Philippine-American War, 1899-1902, military commissions were used extensively as necessary instruments in the suppression of crime at a time when crime was common.  They were also powerful adjuncts, especially the provost court, in putting an end to the insurrection, and making the establishment of civil government possible.  In the Philippine Islands these commissions tried many hundreds of cases and inflicted punishments varying from small fines or a few days’ imprisonment to forfeitures of many thousands of dollars and the infliction of the death penalty.  All this took place because Emilio Aquinaldo ordered his men to disperse into a guerrilla force.  The enemy wore no uniform, nor did he identify himself as a soldier.  To many American soldiers, fighting the Filipino guerrillas fell outside General Order 100, the U.S. Army’s rule book, and they resented being called to task for mistreatment of enemy prisoners and the enemy’s murder of civilians who helped them.  Fighting an unseen, non-uniformed enemy was, and remains, anathema to the American soldier in the field. 

Shortly after midnight on June 13, 1942, a German submarine lifted off the bottom, where it had been waiting, and surfaced near the sleepy eastern Long Island town of Amagansett. It soon put ashore four men wearing German uniforms. They had with them explosives and other demolition equipment sufficient for a two-year career in sabotage, plus $175,200 in cash—more than $2 million in today’s money. Four days later, another team of four saboteurs landed at Ponte Vedra Beach, near Jacksonville, Florida.

Brought to Washington, the eight were tried before a military commission (after the Supreme Court had unanimously decided that such a means of dealing with unlawful combatants was proper). President Roosevelt wanted a high-profile trial to send a message to Germany about what happens to saboteurs, and that was exactly what he got. The story of the capture and trial was front-page news all over the country.

The trials, held in the Department of Justice building, ran from July 8 to August 4. The prosecution was headed by the Attorney General himself, Francis Biddle, and the Army Judge Advocate General, Maj. Gen. Myron Cramer. The defense lawyers were also distinguished; they included Col. Kenneth Royall, who would later serve briefly as President Harry S. Truman’s Secretary of War, and Maj. Lauson Stone, the son of Chief Justice Harlan Fiske Stone.

With the evidence overwhelming and two of the eight defendants cooperating, the results of the trials were never in doubt. On August 4 all eight men were condemned to death, to be executed in the electric chair at the District of Columbia jail. Biddle and the FBI director, J. Edgar Hoover, both asked Roosevelt to commute the sentences of the two saboteurs who had made the capture and conviction of the others possible. Six were executed on August 8, less than two months after their landing on American soil. Military tribunals have not been used in this country to try enemy belligerents since World War II.

Nearly unknown to the Western world since the Thirty Years War ended in 1648, the United States and its allies face religious fanatics in 2010, intent on destroying the Enlightenment concept of democracy and replacing it with a medieval Islamist theocracy.  If we continue to abandon the hope for reciprocity, policies of generosity and humane treatment of enemy prisoners of war in favor of the rule of lex talionis, an eye for an eye and a tooth for a tooth, there is a good chance that in a heightened state of fear, we could all become blind and toothless.  If the Global War on Terror constitutes a new paradigm of warfare for the twenty-first century, perhaps we should think about creating a new international convention to replace Geneva.  In the meantime, if military commissions, as imperfect as they have been, help solve the seemingly endless conflict, let them proceed.

Edward T. Pound. Creating a code of justice. U.S. News & World Report. December 16, 2002.


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