1 Agora: Military Commissions Act of 2006 , 101 AJIL 35 (2007)Google Scholar; Agora (Continued): Military Commissions Act of 2006 , 101 AJIL 322 (2007).Google Scholar

2 The constitutionality of commissions is considered in Curtis, A. Bradley & Jack, L. Goldsmith, The Constitutional Validity of Military Commissions , 5 Green Bag (2d) 249 (2002)Google Scholar, and Neal, K. Katyal & Laurence, H. Tribe, Waging War, Deciding Guilt: Trying the Military Tribunals , 111 Yale L.J. 1259 (2002)Google Scholar. However, they focus on the issue of presidential versus congressional power in creating commissions rather than on the trial by jury issues discussed in this comment. Similarly, Jordan, J. Paust, Antiterrorism Military Commissions: Courting Illegality , 23 Mich. J. Int’l L. 1 (2001)Google Scholar, argues that only in a “war” can the president create military commissions on his commander- in-chief authority. Other writings discuss the availability of various “war powers,” such as the right to detain illegal fighters and the right to use force, which are not tied to specific constitutional text. There is an extensive literature on the utility of the concept of “war on terrorism” from a strategic or political perspective, a question not addressed here. e.g., Philip B. Heymann, Terrorism, Freedom and Security: Winning Without War (2003).

3 Ex parte Quirin, 317 U.S. 1 (1942).

4 Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006).

5 Duncan v. Louisiana, 391 U.S. 145 (1968). The case says that “trial by jury in criminal cases is fundamental to the American scheme of justice.” Id. at 149.

6 On the interpretation of the Seventh Amendment sharply focused on its historical understanding, see Laurence, H. Tribe, American Constitutional Law 618–23 (3d ed. 2000).Google Scholar

7 Ex parte Milligan, 71 U.S. (4 Wall.) 2, 123 (1866).

8 For analysis of the differences between the ways that jurors and officers will approach trials, see Tom, J. Farer, The Two Faces of Terror , 101 AJIL 363, 366–67, 373 (2007).Google Scholar

9 Uniform Code of Military Justice, Art. 32, IOU.S.C. §832 (2006). Compare In re Oliver, 333 U.S. 257 (1948), involving Michigan’s one-man grand jury.

10 Milligan, 71 U.S. (4 Wall.) 2 (1866).

11 317 U.S. 1 (1942).

12 Madsen v. Kinsella, 343 U.S. 341 (1952).

13 354 U.S. 1 (1957). Other decisions on court-martial jurisdiction over civilians are Kinsella v. Singleton, 361 U.S. 234 (1960); Grisham v. Hagan, 361 U.S. 278 (1960); McElroy v. Guagliardo, 361 U.S. 281 (1960).

14 350 U.S. 11 (1955).

15 United States v. Averette, 19 C.M.A. 363 (1970).

16 Compare David, L. Shapiro, Habeas Corpus, Suspension, and Detention: Another View , 82 Notre Dame L. Rev. 59 (2006)Google Scholar, with Trevor, W. Morrison, Suspension and the Extrajudicial Constitution , 107 Colum. L. Rev. 1533 (2007)Google Scholar. Milligan, 71 U.S. at 126–27, seems to support the proposition that when civil authority has been overthrown, martial law, including the use of military commissions, can be applied.

17 11 Op. Atty. Gen. 297–98 (1865).

18 Wager, Henry Halleck, Military Tribunals and Their Jurisdiction , 5 AJIL 958, 965–66 (1911).Google Scholar

19 Ex parte Quirin, 317 U.S. 1 (1942). For a recent, extensive study of the case and its background, see Pierce, O’Donnell, In Time of War: Hitler’s Terrorist Attack on America (2005)Google Scholar.

20 Quirin, 317 U.S. at 39.

21 Id. at 31 & n.9.

22 Evangelist, John Walsh, The Execution of Major André (2001).Google Scholar

23 Quirin, 317 U.S. at 42 n.14.

24 Id. at 41–42. That provision was codified in the first general law on military justice. An Act for Establishing Rules and Articles for the Government of the Armies of the United States, 2 Stat. 359 (1806).

25 Quirin, 317 U.S. at 31 n.10.

26 Balzacv. Porto Rico, 258 U.S. 298 (1922); Dorrv. United States, 195 U.S. 138 (1904); Hawaiiv. Mankichi, 190 U.S. 197 (1903). In re Ortiz, 100 F. 955 (C.C.D. Minn. 1899), ruled that a trial by military commission in Puerto Rico was valid because it took place before the treaty of peace became final; the court said that the trial would otherwise have been unconstitutional. Note that it preceded the Insular Cases.

27 Reid v. Covert, 354 U.S. 1 (1957).

28 Id. at 51–54 (Frankfurter, J., concurring), 65–67 & 74–75 (Harlan, J., concurring).

29 Id. at 14 (plurality opinion).

30 United States v. Verdugo-Urquidez, 494 U.S. 259, 268 (1990). For a comprehensive survey of the issues, see Gerald, L. Neuman, Whose Constitution? 100 Yale L.J. 909 (1991).Google Scholar

31 Reid v. Covert, 354 U.S. at 12–14.

32 343 U.S. 341 (1952).

33 339 U.S. 763 (1950).

34 Boumediene v. Bush, 128 S.Ct. 2229 (2008); Rasul v. Bush, 542 U.S. 466 (2004).

35 Preston, Quesenberry, Bowling Together During War , 111 YALE L.J. 1031 (2002).Google Scholar

36 Heymann, supra note 2.

37 Compare Curtis, A. Bradley & Jack, L. Goldsmith, Congressional Authorization and the War on Terrorism , 118 Harv. L. Rev. 2047 (2005)Google Scholar, with Bruce, Ackerman, This Is Not a War , 113 Yale L.J. 1871 (2004).Google ScholarPubMed

38 See Derek, Jinks, The Applicability of the Geneva Conventions to the “Global War on Terrorism , “46 Va. J. Int’l L. 165 (2005)Google Scholar; Robert, D. Sloane, Prologue to a Voluntarist War Convention , 106 Mich. L. Rev. 446, 447 n.19 (2007)Google Scholar (discussing humanitarian law issues but disclaiming treatment of U.S. constitutional questions).

39 The Prize Cases, 67 U.S. (2 Black) 635, 666–67 (1863).

40 Bradley & Goldsmith, supra note 37, at 2084 n.150, and cases cited.

41 “Sovereign is he who decides on the exception.” Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty 5 (George Schwab trans., 1985). The most skeptical justice about presidential claims of emergency powers has been Justice Robert Jackson. See his concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579, 651 (1952), referring to the German experience with emergency power under the Weimar Constitution. See also his concurrence in Woods v. Cloyd W. Miller Co., 333 U.S. 138, 146 (1948).

42 See The Prize Cases, 67 U.S. (2 Black) 635 (1863). The court divided over whether the president’s picking up the challenge was enough or whether Congress had to act.

43 55 Stat. 795, 796, 797 (1941); 56 Stat. 307 (1942).

44 Paust, supra note 2, at 2–5.

45 19 C.M.A. 363 (1970).

46 Katyal & Tribe, supra note 2.

47 Steel Seizure, 343 U.S. 579.

48 Bas v. Tingy, 4 U.S. (4 Dall.) 37 (1800); see also Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801).

49 Bas v. Tingy, 4 U.S. at 40. The opinions of Justices Samuel Chase and William Paterson parallel this language. Justice Washington’s opinion speaks of a “public war.” The term “private war” is rare but appears in Vattel as a battle between individuals that is governed by the law of nature. 3 Emer De Vattel, The Law of Nations or the Principles of Natural Law Applied to the Conduct and the Affairs of Nations and of Sovereigns, bk. Ill, ch. I, §2 (Charles G. Fenwick trans., 1916) (1758). For analysis of the perfect/imperfect war distinction and its impact on presidential powers, see Kathryn, L. Einspanier, Note, Burlamaqui, the Constitution, and the Imperfect War on Terrorism , 96 Geo. L.J. 985 (2008)Google Scholar.

50 Hamilton v. McClaughry, 136 F. 445 (C.C.D. Kan. 1900). For further detail and sources on the Boxers, see Bradley & Goldsmith, supra note 37, at 2067 n.77.

51 The court said, “[Governmental authorities of that nation, while protesting good faith, were in actual collusion with the ‘Boxer’ element.” Hamilton v. McClaughry, 136 F. at 450.

52 Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006). Other cases arising from post 9/11 responses to terrorism but not involving commissions assume that a war was in progress. See Hamdi v. Rumsfeld, 542 U.S. 507, 510 (2004), speaking of a “mission to subdue al Qaeda and quell the Taliban regime that was known to support it.” The government affidavit justifying Hamdi’s detention stated that Al Qaeda and the Taliban were “hostile forces engaged in armed conflict with the armed forces of the United States.” Id. at 513. Rasulv. Bush, 542 U.S. 466,470 (2004), speaks of a “military campaign against al Qaeda and the Taliban regime that had supported it.” Rumsfeld v. Padilla, 542 U.S. 426, 430 (2004), refers to Padilla as having “conspired with al Qaeda to carry out terrorist attacks.” See also id. at 431 n.2.

53 Hamdan, 126 S.Ct. at 2760.

54 Id. at 2778 n.31.

55 Id. at 2802, 2804 (Kennedy, J., concurring).

56 Id. at 2828 (Thomas, J., dissenting).

57 The latest appellate case to deal with “war,” “combatant,” and “enemy” produced conflicting opinions. It arose from the challenge of Ali Saleh al-Marri to his detention after capture in the United States as an alleged Qaeda agent. Some judges interpreted Hamdi as being based on “affiliation with the military arm of an enemy nation,” that is, the government of Afghanistan. Al-Marri v. Wright, 487 F.3d 160,182 (4th Cir. 2007) (panel opinion). They concluded that detention not on the battlefield was unauthorized. The en banc opinion of Judge Diana Gribbon Motz adhered to the requirement that a nation be involved. Al-Marri v. Pucciarelli, 2008 WL 2736787, at *21–22 (4th Cir. July 15, 2008). The opinion of Judge J. Harvie Wilkinson, on the other hand, would eliminate the requirement that a nation be involved, finding that the concept of war had so evolved that hostilities with the Qaeda organization sufficed. Id. at *74–75. He described Al Qaeda as a tightly organized quasi state. Chief Judge Karen J. Williams agreed that a member of an organization could be detained. Id. at *60–62.

58 128 S.Ct. 2229, 2294 (2008) (Scalia, J., dissenting).

59 The most dramatic and most lethal example is the trial of 392 Dakotas in 1862. Carol Chomsky, The United States-Dakota War Trials: A Study in Military Injustice, 43 Stan. L. Rev. 13 (1990).

60 Montoya v. United States, 180 U.S. 261 (1901).

61 Id. at 267.

62 Id. at 265.

63 Restatement (Third) of the Foreign Relations Law of the United States §303 reporters’ n.5 (1987).Google Scholar

64 Pan Am. Airways v. Aetna Casualty & Surety Co., 505 F.2d 989 (2d Cir. 1974). There is a sizable number of cases on the issue whether the undeclared Korean and Vietnamese Wars were “wars” within the meaning of life insurance policies. They stressed such factors as the risk/premium relationship, the weight to be given the fact that the insurer had drafted the policy, etc. For a collection of cases, see Bergera v. Ideal Nat’l Life Ins. Co., 524 P.2d 599 (Utah 1974).

65 Pan Am. v. Aetna, 505 F.2d at 1012.

66 Id. at 1013.

67 4 U.S. (4 Dall.) 37 (1800).

68 Act for the Protection of the Commerce and Seamen of the United States, Against the Tripolitan Cruisers, Feb. 6, 1802, 2 Stat. 129; Act for the Protection of the Commerce of the United States Against the Algerine Cruisers, Mar. 3, 1815, 3 Stat. 230.

69 For a survey, see Walter, Laqueur, A History of Terrorism (1977).Google Scholar

70 James, Joll, The Anarchists 118–24 (Italy), 224–74 (Spain) (1964)Google Scholar.

71 Rumsfeld v. Padilla, 542 U.S. 426 (2004).

72 Compare Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), as to the evolution of customary international law under the Alien Tort Claims Act.

73 327 U.S. 1 (1946).

74 Hamdan, 126 S.Ct. at 2782–83.

75 Haupt v. United States, 330 U.S. 631 (1947); Cramer v. United States, 325 U.S. 1 (1945).

76 George, P. Fletcher, Hamdan Confronts the Military Commissions Act of 2006 , 45 Colum. J. Transnat’l L. 427, 440–45 (2007).Google Scholar

77 See Antonio, Cassese, International Criminal Law 181–90 (2003)Google Scholar; Jordan, J. Paust et al., International Criminal Law: Cases and Materials 39–43 (2d ed. 2007)Google Scholar; 1 Substantive and Procedural Aspects of International Criminal Law: Commentary 8–24 (Gabrielle, Kirk McDonald & Olivia, Swaak-Goldman eds., 2000).Google Scholar

78 Thus, Article 51 of Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 UNTS 3, 16ILM 1391 (1977), protects civilians “unless and for such time as they take a direct part in hostilities.” Although the United States is not a party to the Protocol, it may represent customary international law.

79 10 U.S.C.A. §950v (West Supp. 2008), patterned after 18 U.S.C. §2339A (2006). See Jack, M. Beard, The Geneva Boomerang: The Military Commissions Act of 2006 and U.S. Counterterror Operations , 101 AJIL 56, 59–69 (2007)Google Scholar. Beard notes that the unilateral creation by the United States of new war crimes may encourage other countries to declare actions by Americans to be violations of the laws of war.

80 Beth, Stephens, Federalism and Foreign Affairs: Congress’s Power to “Define and Punish … Offenses Against the Law of Nations , “42 Wm. & Mary L. Rev. 447 (2000)Google Scholar; Note, The Offences Clause After Sosa v. Alvarez-Machain, 118 Harv. L. Rev. 2378 (2005)Google Scholar.

81 William, Glaberson & Eric, Lichtblau, Guantánamo Detainee’s Trial Opens, Ending a Seven- Year Legal Tangle , N.Y. Times, Jul. 22, 2008, at A12.Google Scholar