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Published online by Cambridge University Press: 27 February 2017
As military commissions have been revived in the wake of the attacks of September 11,2001, interest has grown in the history of the institution. The United States Supreme Court, in Hamdan v. Rumsfeld, sketched out some historical notes and set forth a tripartite division between law-of-war commissions, martial law commissions, and occupation tribunals. Various authors have advanced insights on this history, though most have focused on the prominent episodes, particularly the handful of Supreme Court cases. Even the most comprehensive article gives short shrift to the massive employment of commissions in the Reconstruction era and in postwar Germany. This essay attempts to advance the cause by sketching out the entire scope of the institution’s history and indicating what further research would have to be done to arrive at a truly comprehensive treatment. A basic difficulty is that the work product of military commissions is not encompassed in a series of trial reports like the Federal Supplement or the military’s own Court-Martial Reports. A handful of cases wound up in the Supreme Court and another half dozen stood out enough to attract historians’ interest. Otherwise, commission proceedings are memorialized, if at all, only in military general orders and records of trials that were maintained in the Office of the Judge Advocate General. I have explored the records pertaining to commissions in the Reconstruction period following the Civil War in anticipation of writing a comprehensive article. It is a difficult and time-consuming task. To complete the picture, similar pick-and-shovel work would have to be done on such extensive use of the commission as occurred in Germany after World War II. Both the Civil War-Reconstruction period and the German occupation produced thousands of trials.
1 126 S.Ct. 2749 (2006); see Peter J., Spiro, Case Report: Hamdan v. Rumsfeld, 100 AJIL 888 (2006)Google Scholar.
2 126 S.Ct. at 2775–76.
3 Louis, Fisher, Military Tribunals and Presidential Power: American Revolution to the War on Terrorism (2005)Google Scholar; Marouf, Hasian Jr., in the Name of Necessity: Military Tribunals and The Loss of American Civil Liberties (2005)Google Scholar; Michal R., Belknap, A Putrid Pedigree: The Bush Administration’s Military Tribunals in Historical Perspective, 38 Cal. W. L. Rev. 433 (2002)Google Scholar; Michael O., Lacey, Military Commissions: A Historical Survey, Army Law., Mar. 2002, at 41 Google Scholar.
4 David, Glazier, Precedents Lost: The Neglected History of the Military Commission, 46 Va. J. Int’l L. 5 (2005)Google Scholar; see also Haridimos V., Thravalos, The Military Commission in the War on Terrorism, 51 Vill. L. Rev. 737 (2006)Google Scholar.
5 Some U.S. commission trials after World War II, along with cases from other states, are reported in United Nations War Crimes Commission, Law Reports of Trials of War Criminals (1947–49) [hereinafter Trials of War Criminals].
6 Files for the Civil War and Reconstruction periods are retained in the National Archives, Washington, D.C., in Record Groups 153 and 393.
7 Military Order, Detention, Treatment, and Trial of Certain Non–citizens in the War Against Terrorism, 66 Fed. Reg. 57, 833 (Nov. 16, 2001).
8 The Military Commissions Act of 2006 defines violations of the law of war in 10 U.S.C. §950v. For the Act, see Pub. L. No. 109-366, 120 Stat. 2600 (West 2006) (to be codified at 10 U.S.C. §§948a–950w and other sections of titles 10, 18, 28, and 42).
9 Convention Relative to the Treatment of Prisoners of War, Art. 102, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135.
10 Convention Relative to the Protection of Civilian Persons in Time of War, Art. 3, Aug. 12, 1949, 6 UST 3516, 75 UNTS 287; see also id., Art. 4 (protected persons), Art. 64 (occupied territories). Articles 64–78 establish other limitations on law enforcement by the occupying power.
11 Adam, Roberts, Transformative Military Occupation: Applying the Laws of War and Human Rights, 100 AJIL 580 (2006)Google Scholar.
12 Convention Relative to the Protection of Civilian Persons in Time of War, supra note 10, Art. 66.
13 International Covenant on Civil and Political Rights, Art. 14, Dec. 16, 1966, 999 UNTS 171.
14 Id., Art. 4.
15 Cooper v. United Kingdom, 2003–XII Eur. Ct. H.R. 147; Morris v. United Kingdom, 2002–I Eur. Ct. H.R. 389; Incal v. Turkey, 1998–IV Eur. Ct. H.R. 1548; Findlay v. United Kingdom, 1997–I Eur. Ct. H.R. 281.
16 John, Evangelist Walsh, The Execution of Major André, ch. 2 (2001)Google Scholar. The panel was in fact termed a “board of general officers,” though it has been treated as a military commission.
17 Glazier, supra note 4, at 24–27. Other Revolutionary War spying cases are listed in Ex parte Quirin, 317 U.S. 1, 42 n.l4 (1942)Google Scholar.
18 William, Winthrop, Military Law and Precedents 832–33 (Boston, Little Brown, 2d ed. 1896)Google Scholar. Glazier, supra note 4, at 31–40, finds over four hundred commission cases from Mexico.
19 Ex parte Vallandigham, 68 U.S. (1 Wall.) 243 (1863).
20 Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).
21 Ex parte Quirin, 317 U.S. 1 (1942).
22 Elizabeth D., Leonard, Lincoln’s Avengers: Justice, Revenge, and Reunion After the Civil War (2004)Google Scholar; Edward, Steers Jr., Blood on the Moon (2001)Google Scholar.
23 Ex parte Mudd, 17 F. Cas. 954 (S.D. Fla. 1868) (No. 9899).
24 Mudd v. Caldera, 134 F.Supp.2d 138 (D.D.C. 2001), appeal dismissed, 309 F.3d 819 (D.C. Cir. 2002).
25 Lewis L., Laska & James M., Smith, “Hell and the Devil”: Andersonville and the Trial of Captain Henry Wirz, C.S.A., 1865, 68 Mil. L. Rev. 77 (1975)Google Scholar.
26 Mark E., Neely Jr., The Fate of Liberty 162 (1991)Google Scholar. Of these, 1940 were in Missouri.
27 Carol, Chomsky, The United States–Dakota War Trials: A Study in Military Injustice, 43 Stan. L. Rev. 13 (1990)Google Scholar.
28 James E., Sefton, The United States Army and Reconstruction, 1865–1877 (1967)Google Scholar.
29 United States v. Reiter, 27 F. Cas. 768 (Prov. Ct. La. 1865) (No. 16, 146); cf.The Grapeshot, 74 U.S. (7 Wall.) 563(1868).
30 War Letters, 1862–1865, of John Chipman Gray and John Codman Ropes 407 (Worthington C. Ford ed., 1927).
31 2 Philip Henry Sheridan, Personal Memoirs of P. H. Sheridan 262 (photo, reprint 1977) (New York, Webster 1888).
32 John M., Schofield, Forty–Six Years in the Army 399 (Univ. of Okla. Press 1998)Google Scholar (1897).
33 The lower estimate comes from Winthrop, supra note 18, at 853, and the higher from Neely, supra note 26, at 176–77. Winthrop may have been counting only those cases tried under the law of March 2, 1867. My examination of the files of the five military districts comes to approximately that figure.
34 Ex parte Milligan, 71 U.S. (4 Wall.) 2, 109, 141 (1866).
35 In re Egan, 8 F. Cas. 367 (C.C.D.N.Y. 1866) (No. 4, 303); United States v. Commandant of Fort Delaware, 25 F. Cas. 590 (D. Del. 1866) (No. 14, 842).
36 Ch. 153, 14 Stat. 428 (1867).
37 Judge, Hill’s opinion appears in the record of Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868), at 16 Google Scholar.
38 Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868).
39 The trial record is filed as Case PP452 in the records of the Judge Advocate General’s Office, now in the National Archives, Washington, D.C.
40 Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1868)Google Scholar.
41 Charles, Fairman, Reconstruction and Reunion, 1864–1888, at 589 (1971)Google Scholar.
42 The leading scholar of the Court at that time so concluded. Id. at 509.
43 Several commission orders relating to prosecutions of Filipinos are cited in Justice Murphy’s dissent in In re Yamashita, 327 U.S. 1, 38 (1946). The war was an extremely brutal affair on both sides. There were also several courts–martial of American military personnel for atrocities. See Peter, Maguire, Law and War: An American Story 57–67 (2000)Google Scholar. The most extensive study, including military files, is found in Glazier, supra note 4, at 47–56. Some activity also took place in Puerto Rico. See Ex parte Ortiz, 100 F. 955 (C.C.D. Minn. 1900).
44 317 U.S. 1 (1942).
45 Another military commission later convicted two men who were landed in Maine from a submarine. Colepaugh v. Looney, 235 F.2d 429 (10th Cir. 1956), cert, denied, 352 U.S. 1014 (1957).
46 See note 7 supra.
47 A recent extensive critique is Pierce O’Donnell, In Time of War: Hitler’s Terrorist Attack on America (2005). The government’s reasoning that terrorists constituted “unlawful combatants” and were thus subject to the laws of war has come under fire. So did the order’s departures from current court–martial procedures, which have been importantly modified since 1865.
48 Duncan v., Kahanamoku, 327 U.S. 304 (1946)Google Scholar.
49 In re Yamashita, 327 U.S. 1 (1946).
50 Frank Reel, A., The case of General Yamashita (1949)Google Scholar.
51 Homma v., Patterson, 327 U.S. 759 (1946)Google Scholar.
52 Id. at 761.
53 Id. at 760–61.
54 Hirota v., MacArthur, 338 U.S. 197 (1948)Google Scholar.
55 Id. at 198.
56 Id. at 215 (Douglas, J., concurring).
57 Jaluit, Atoll Case, 1 Trials of War Criminals, supra note 5, at 71 (1947)Google Scholar. The trial was held at Kwajalein in 1946. Other U.S. cases included Tanaka, Hisakasu, 5 Trials OF War Criminals 66 (Shanghai 1946) (1948)Google Scholar; Harukei, Isayama, 5 Trials OF War Criminals 60 (Shanghai 1946)Google Scholar.
58 E.g., Tanabe Koshiro, 11 Trials Of War Criminals 1, supra note 5, at 1 (Neth. Court–Martial, Makassar 1947) (1949); Shigeru, Ohashi, 5 Trials of War Criminals 25 (Austl. Military Commission, Rabaul 1946)Google Scholar; Yamamoto, Chusaburo, 3 Trials of War Criminals 76 (Brit. Court–Martial, Kuala Lumpur 1946) (1948)Google Scholar.
59 Hirota, 338 U.S. at 201 n.3 (citing In re Bush, 336 U.S. 971 (1949)) (Douglas, J., concurring).
60 Johnson v., Eisentrager, 339 U.S. 763 (1950)Google Scholar.
61 The facts are further developed in the report in Lothar Eisentrager, 14 Trials of War Criminals, supra note 5, at 8 (1949).
62 The Court distinguished In re Yamashita, 327 U.S. 1 (1946), on the ground that Yamashita’s crimes had taken place in U.S. territory, i.e., the Philippines, and that he was tried and confined there. Johnson v., Eisentrager, 339 U.S. at 780 Google Scholar. The Court denied leave to file petitions for habeas corpus in other cases brought by German prisoners at Landsberg. United States v. Milch, 332 U.S. 789 (1947)Google Scholar; Brandt v. United States, 333 U.S. 836 (1948)Google Scholar; In re Eichel, 333 U.S. 865 (1948)Google Scholar; Everett v., Truman, 334 U.S. 824 (1948)Google Scholar; In re Muhlbauer, 336 U.S. 964 (1949)Google Scholar.
63 The Supreme Court has recently given a restrictive reading to Eisentrager. In Rasul v. Bush, 542 U.S. 466 (2004)Google Scholar, the Court viewed Eisentrager as interpreting the reach of the habeas statute at the time, not as generally precluding access to the writ by aliens held outside the United States. In Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006)Google Scholar, the Court found Eisentrager not controlling on the question whether alien enemies could seek judicial remedies to challenge their confinement.
64 Madsen v., Kinsella, 343 U.S. 341 (1952)Google Scholar.
65 Justice Douglas in his dissent in Hirota v., MacArthur, 338 U.S. 197, 202 (1949)Google Scholar, mentions Bird v., Johnson, 336 U.S. 950 (1949)Google Scholar, as denying leave to file in a case involving a U.S. civilian convicted in Germany.
66 Reid v., Covert, 354 U.S. 1 (1957)Google Scholar.
67 Earl F., Ziemke, The U.S. Army in the Occupation of Germany, 1944–1946, at 393 (1975)Google Scholar.
68 Id. at 270.
69 Eli E., Nobleman, American Military Government Courts in Germany, 40 AJIL 803, 809 n.39 (1946)Google Scholar.
70 The rules governing these courts, Ordinance No. 7, Organization and Powers of Certain Military Tribunals, are printed in 1 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10 at xxi (1949).
71 Frank M., Buscher, The U.S. War Crimes Trial Program in Germany, 1946–1955, at 34–37 (1989)Google Scholar.
72 The Malmédy Massacre case was not reported. The secondary material is voluminous. The facts of the massacre are detailed in John M. Bauserman, The Malmédy Massacre (1995), which states that he relied on the files in United States v. Bersin, RG 153 & RG 338, Case 6–24, in the National Archives, Washington, D.C. Id. at 95. For a description of the pretrial interrogations and the trial, see Maguire, supra note 43, at 140–44 . The trial and its aftermath are covered in Tom Bower, The Pledge Betrayed: America and Britain and the Denazification of Postwar Germany, ch. 12 (1982). See also Investigation of Action of Army with Respect to Trial of Persons Responsible for the Massacre of American Soldiers, Battle of the Bulge, near Malmédy, Belgium, December 1944: Hearings Pursuantto S. Res. 42 Before a Subcomm. of the S. Comm. on Armed Services, 81st Cong. (1949).
73 Bower, supra note 72, at 249.
74 For the post-trial efforts to obtain relief for the defendants, see James J., Weingartner, A Peculiar Crusade: Willis M . Everett and the Malmedy Massacre (2000)Google Scholar.
75 Otto Skorzeny, 9 Trials of War Criminals, supra note 5, at 90 (1948); see Otto, Skorzeny, Skorzeny’s Special Missions: Memoirs of ‘The Most Dangerous Man in Europe’ (1997)Google Scholar. The reasons for the acquittal are obscure. It might have been defendants’ failure to penetrate American lines. It might have been the traditional rule that “[a] spy who, after rejoining the armed force to which he belongs, is subsequently captured by the enemy incurs no responsibility for his previous acts of espionage.” Manual For Courts–Martial, United States 341 (1951). Or it may have been that Skorzeny was a more attractive figure than Quirin and his associates.
76 Anton Dostler, 1 Trials of War Criminals, supra note 5, at 22 (Rome 1945). Fifteen U.S. soldiers had landed north of the battle line to destroy a railroad tunnel. Dostler ordered them killed despite pleas from his subordinates.
77 Kurt Maelzer, 11 Trials of War Criminals, supra note 5, at 53 (Florence, Italy 1946). A ten–year sentence was reduced to three by the convening authority.
78 Ziemke, supra note 67, at 393.
79 Id. at 392–93.
80 Buscher, supra note 71, at 51. gives the figure 1672, with 1415 convictions.
81 Contemporary U.S. estimates ran from 100,000 to 500,000 potential cases. Ziemke, supra note 67, at 392–94.
82 For an indignant account of the process, see Bower, supra note 72, ch. 17.
83 Jordan J., Paust, Antiterrorism Military Commissions: Courting Illegality, 23 Mich. J. Int’l L. 1, 2–5 (2001)Google Scholar.
84 Belknap, supra note 3.
85 Neely, supra note 26, at 162, found that “trials by military commission in the Civil War were marked by procedural regularity.”
86 10 U.S.C. §948b(d)(1)(A) renders inapplicable the U.C.M.J. provision on speedy trials and, by implication, the constitutional requirement as well.
87 10 U.S.C. §948j.