Long History Behind Military Commissions
By Kathleen T. Rhem
American Forces Press Service
Washington, Aug. 19, 2004 The United States Army, and before that the British army, have used military commissions to try war crimes at several different points in their long history.
As the first pre-trial motions get under way for military commissions to try detainees in the war on terrorism, a top official in the process described some history behind military commissions to reporters at an Aug. 17 Pentagon briefing.
"These types of commissions have been with us since the Revolution," said John Altenburg Jr., appointing authority for the Office of Military Commissions. "The British used a military commission to prosecute Nathan Hale. And some five years later, the United States military, at George Washington's direction, prosecuted Major (John) Andre as a spy for the British." Andre had conspired with American military traitor Benedict Arnold.
During the Mexican War, Altenburg explained, Gen. Winfield Scott formed two types of military courts. The first, which he called war councils, were used to prosecute violations of the law of war. Scott's General Order 20, of 1847, also provided for military commissions to prosecute Mexicans who committed crimes against American soldiers.
"Interesting to note," Altenburg added, "(Scott) did not prosecute Mexican crime against Mexicans. He was fairly enlightened in that regard and wanted to make sure that they had their own system running."
During the Civil War, Union commanders routinely used military commissions to try Confederate "irregulars" and civilians who committed crimes against the Union forces. In 1862, President Abraham Lincoln authorized the use of military commissions to try "rebels, insurgents, and all persons guilty of any disloyal practice affording aid and comfort to rebels."
Lincoln's order also suspended the writ of habeas corpus for individuals convicted by such a court.
After the war, the conspirators in Lincoln's execution and the commander of the notorious Andersonville prisoner-of-war camp in Georgia were tried by military commission. The U.S. Supreme Court later upheld the decision to use such commissions and upheld many of the convictions.
More recently, U.S. officials used military commissions during World War II. The famous war-crimes trials at Nuremburg and Tokyo were not military commissions, Altenburg said. Rather, he explained, they were ad hoc tribunals, much like the International Criminal Tribunal for the Former Yugoslavia, which today is seated in The Hague, the Netherlands, to try war crimes from the conflicts in Bosnia and Kosovo.
The United Sates did, however, use a military commission in 1942 to try eight men, seven Germans and one American, who were put ashore in Florida by a military submarine. Their intent was to blow up American military facilities.
In other cases, field commanders in Europe and Asia used military commissions to try enemy soldiers for violations of the law of war. In all, the U.S. military tried roughly 67 individuals by military commission and executed 32 of them. Many of these cases eventually reached the U.S. Supreme Court, where they were routinely upheld.
When the U.S.-led coalition began taking prisoners in Afghanistan in late 2001, officials decided those detainees were illegal combatants, thus not entitled to protections under the Geneva Conventions. President Bush decided in December 2001 that military commissions were the most appropriate venue to try such crimes.
"The government chose, on balance, given the nature of the allegations that were being made and, I think especially, national-security interests, they chose to use the commission process, thinking that that would meet the balanced needs," Altenburg said.