Extraordinary Justice

Military Tribunals in Historical and International Context

Peter Judson Richards

• Publisher: NYU Press
• Year: 2007
• ISBN:
  9780814777220
• Topic: Law
• Subtopic: Military Law
• Index: Law

The Al-Qaeda terror attacks of September 11, 2001, aroused a number of extraordinary counter measures in response, including an executive order authorizing the creation of military tribunals or “commissions” for the trial of accused terrorists. The Supreme Court has weighed in on the topic with some controversial and deeply divided decisions, most recently Hamdan v. Rumsfeld.

At this critical moment in time, Extraordinary Justice seeks to fill an important gap in our understanding of what military tribunals are, how they function, and how successful they are in administering justice by placing them in comparative and historical context. Peter Judson Richards examines tribunals in four modern conflicts: the American Civil War, the British experience in the Boer War, the French tribunals of the “Great War,” and Allied practices during the Second World War.

Richards also examines the larger context of specific political, legal and military concerns, addressing scholarly and policy debates that continually arise in connection with the implementation of these extraordinary measures. He concludes that while the record of the national tribunals has been mixed, enduring elements in the character of warfare, of justice, and the nature of political reality together justify their continued use in certain situations.

1

American Practices from the Founding through the Civil War

The New Nation

It was a common perception from the very beginnings of the republic that the nation’s geographical circumstances set it apart for its ability to maintain the peace and security of its inhabitants. In an early number of The Federalist, the anglophile Alexander Hamilton noted the “felicity” of the “insular situation” of the British kingdom as providing the basis for its enjoyment of relative freedom from “substantial military establishments” and identified it as a model for the new United States to follow. In the event the people were “wise enough to preserve the Union,” Hamilton asserted, the nation might “for ages enjoy an advantage similar to that of an insulated situation” and reap the benefits of peace and prosperity of “a country seldom exposed by its situation to internal invasions.”¹

Hamilton’s prognosis proved accurate enough. In his 1948 study on the extraordinary recourse to “constitutional dictatorship” in times of national crisis, Clinton Rossiter noted that the nation’s relative isolation, the wealth and variety of its natural resources, the existence of a “safety valve” in the westward-moving frontier, and the resilience of the American economy in the nineteenth century together attended a situation characterized by a “lack of serious crisis and the concomitant lack of crisis government.”² By comparison to the other Western democracies it most closely resembles, the United States has enjoyed precious little disruption to its constitutional political order in the form of exogenous shocks, having had to face “exactly one invasion and one revolution” over the course of more than two centuries.³ Yet America’s “insulated situation” ended on September 11, 2001.

The precariousness of the new country’s position among the nations made it necessary to give due attention to matters of peace and security. In his assessment of “the authorities essential to the care of the common defence,” Hamilton emphasized that “[t]hese powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent & variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be co-extensive with all the possible combinations of such circumstances.”⁴ Implicit in Hamilton’s remarks was a conviction as to the implausibility of a prefabricated comprehensive plan for national security. The means of confrontation would be dictated to great extent by the future, unknown content of the “national exigencies” to which they would be tailored. The unforeseeability of the nature, “extent and variety” of the array of threats to be addressed meant that the mechanisms of response would necessarily be reactive, in large measure, and that they would place a high value on the executive qualities of speed, efficiency, secrecy, and decisiveness.

Even before the adoption of the Constitution, the War of Independence witnessed the use of military tribunals as an extraordinary response to the exigencies of war. The trial of enemy violators of the laws of war in these forums was recognized as an established practice under the law of nations. Washington’s determination to prevent the nation’s downward slide into military dictatorship⁵ set the character and tone of the tribunals organized under the auspices of the armies of the new republic. The tribunals provided an institutional means of securing restraint and order in the midst of circumstances that could swiftly spin out of control.⁶In urging his men to refrain from violent retaliation, Washington evinced a desire to uphold a code of virtue and honor in war. Responding to British destruction of a New Jersey captain’s home and farm, he asserted, “Tho’ my indignation at such ungenerous conduct of the enemy might at first prompt me to retaliation, yet humanity and policy forbid the measure. Experience proves, that their wanton cruelty injures rather than benefits their cause; that, with our forbearance, justly secured to us the attachment of all good men.”⁷ As difficult as it would be to refrain from retaliation, the cruelty of the enemy and forbearance of friendly forces could together win credibility for the new nation and its cause.

Numerous incidents of enemy espionage occasioned the convening of military tribunals, perhaps most notably in the case of Major John André, a collaborator with General Benedict Arnold.⁸ André, deputy adjutant general in the British army, conducted a secret correspondence with Arnold in 1779 to arrange the surrender of West Point. The two met in September 1780, and New York militiamen captured André at Tarrytown as he sought to recover to British lines in disguise. General Washington ordered the hapless British officer to be hastened before a military tribunal composed of fourteen general officers, in Colonel Alexander Hamilton’s words, “to prevent all possibility of misrepresentation or cavil on the part of the enemy.”⁹ Basing its findings largely upon the voluntary confession of the accused, the board determined that André “ought to be considered as a spy and that agreeably to the laws and usages of nations he ought to suffer death.”¹⁰ Despite zealous efforts to avert the sentence on the part of the British command, André was executed two days later.¹¹ The contemporary chronicler of the war David Ramsay noted that “the necessity of discouraging further plots, fixed his fate, and stamped it with the seal of political necessity.”¹² Alexander Hamilton’s account of the ad hoc court provides a poignant glimpse into the gentlemanly nature of the proceedings that characterized the short trial. Even when allowance is made for the hyperbole introduced by eighteenth-century decorum and sentiment, the display of elevated regard for the enemy is virtually unthinkable by current standards:

Never perhaps did any man suffer death with more justice, or deserve it less.… [In] the whole progress of the affair, he was treated with the most scrupulous delicacy. When brought before the Board of Officers, he met with every mark of indulgence and was required to answer no interrogatory, which could even embarrass his feelings. On his part, while he carefully concealed everything that might involve others, he frankly confessed all the facts relating to himself; and upon his confession without the trouble of examining a witness, the Board made their report. The members of it were not more impressed with the candor and firmness mixed with a becoming sensibility, which he displayed than he was penetrated with their liberality and politeness. He acknowledged the generosity of their behaviour towards him, in every respect, but particularly in this, in the strongest terms of manly gratitude. In a conversation with a Gentleman who visited him after his trial, he said he flattered himself he had never been illiberal; but if there were any remains of prejudice, in his mind, his present experience must obliterate them.¹³

The military courts of Washington’s continental army preceded the establishment of a system of federal civil courts. In implementing tribunals such as the group of officers who tried Major André, General Washington was acting under the auspices of the Articles of War passed by the Continental Congress. The Articles of War, adopted from the British model, governed the administration of American military justice into the second half of the twentieth century, with only slight amendments over time. Throughout the Revolutionary War, no jurisdictional distinction was made between the forum used for American military offenders and the trial of enemy spies and other offenders for violations of the laws of war. Following the British practice, all types of cases were heard in courts-martial. An important amendment to the Articles of War eventually carved out a specified jurisdiction for “military commissions” for the adjudication of offenses against the law of war not normally subject to courts-martial.

Interestingly, there was very little direction given in the Revolutionary War Articles regarding the long-standing military practice of trying enemy combatants for violations of the laws of armed conflict. The custom was simply assumed without comment. The Continental Congress paid greater attention to what may be called the moral government of officers and enlisted men fighting on behalf of the United Colonies. The first substantive provisions dealt with rules of decorum and the conditioning of moral character. In Section I, article 2, it was “earnestly recommended to all officers and soldiers diligently to attend divine service.” Penalties were assigned for those who behaved “indecently, or irreverently, at any place of divine worship.” The following article provided penalties for “prophane cursing or swearing.” Next, chaplains who abandoned their assigned postings without leave were to be court-martialed. The prominence bestowed upon moral propriety and self-discipline in the Articles of War reflects the urgency with which these matters were viewed. In the section addressing rules for the administering of military courts, the members of courts-martial were enjoined to “behave with calmness and decency.” The Articles of War as a whole were “to be read and published once in every two months, at the head of every regiment, troop or company, mustered, or to be mustered in the service of the United States.”¹⁴

It is important not to overlook the military context within which the courts-martial took place. Patterns and practices here became established that would shape the entire future course of American juridical mechanisms of response to infractions of laws of war. Undeniably, prisoners of war on both sides suffered deprivation and cruelty. The British treatment of captured Americans met with steadily increasing crescendos of protest and outrage. Retaliation and reprisals occurred as the war dragged on.¹⁵ Maintaining good order and discipline among the troops was a constant struggle, one exacerbated by the unseemly practices of irregulars on the fringes. Such practices provide a reminder “that the War for American Independence was in many ways and in many places a civil war, that the imperial contest overlay preexisting levels of local social, religious, and political tensions of varying intensity and complexity. The reality that a civil war was intertwined with British efforts to suppress a rebellion had a powerful, corrosive effect on the ability and willingness of men on both sides to moderate their actions and avoid involving civilians in military operations.”¹⁶ Thus, the new army’s own tribulations took the form not only of hostility and brutality, but also assailed it from the society out of which it had come, especially as the initial euphoria of 1775 faded with time. For all these reasons, Washington’s army became the crucible in which the new republic’s foundational elements of “citizen virtue and moral commitment” received their greatest testing by fire. The temptation to lash out in vindictive violence against enemy prisoners and violators of law of war must have been severe. In the concatenation of circumstances that increased frictions between the army and the wider society, the army and in particular, its officers, proved

capable of subordinating self-interest to the public welfare, the essential ingredient of a virtuous citizenry when put to the test. Because of that restraint, a military coup, with some American Caesar rising out of the ashes, did not eventuate … The army remained on the side of liberty and republicanism while tempted, even dared by civilians who withheld support and encouragement from 1777 on, to go the other way. When most sorely tried it reaffirmed subordination of military to civil authority. Paradoxically, this same hard-core group of regulars, so damned by so many patriots (and feared by ideologues as the antithesis of the republican ideal of the militia) set the highest example of selfless behavior in Revolutionary America.¹⁷

Any signs of incipient military dictatorship should have made their first appearance in the army’s treatment of enemy spies and violators of law of war. The exigencies of war prompted the creation of these military tribunals and necessarily imbued them with urgency, severity, and finality. Yet in these early manifestations of military justice, the virtues of restraint and order, inculcated in the Articles of War and on display in the treatment of Major André, set the conditions for the most part in which enemy combatants and spies were treated. The character of the tribunals, the tenor of their operations, is best seen as a reflection of the complex culture and conditions, both military and civilian, in which they arose.

The Early Nineteenth Century

In the aftermath of the War of 1812, General Andrew Jackson convened a court-martial for the trial of the naturalized Frenchman and member of the Louisiana Legislature, the civilian Louis Louaillier on charges of spying and other offenses. The Battle of New Orleans, fought on January 8, 1815, and resulting in a lopsided victory for Jackson and the Americans, had been followed by tension and disorder in the city. Jackson imposed martial law and suspended the writ of habeas corpus.¹⁸ The general was holding out for the official news of the peace, which failed to arrive until mid-March. On March 3, Louaillier had published a newspaper article criticizing Jackson’s refusal to lift martial law. The article, like “a match to powder,” was followed by a mutiny of Louisiana troops and the defiant refusal of a company ordered to replace them.¹⁹ Jackson ordered the court-martial of Louaillier on seven charges, ranging from mutiny to espionage.²⁰ When Louaillier petitioned the local Federal district judge, Dominick A. Hall, for a writ of habeas corpus and received it, Jackson responded by arresting Hall and sending him to jail. Louaillier’s court-martial, presided over by the conscientious Brigadier-General Edmund P. Gaines, Regular Army, deliberated two days and declared itself to be without jurisdiction on all but the spying charge, on which the court entered an acquittal.²¹ An enraged Jackson rejected the court’s findings and ordered Louaillier to be returned to confinement. Finally, two days later, on March 13, 1815, official word of ratification of the Treaty of Ghent arrived in New Orleans, upon which Jackson revoked the order of martial law and released his military prisoners, including Louaillier. After the turmoil had subsided, Judge Hall ordered the hero of New Orleans to appear before him “to show cause why he should not be held in contempt for his refusal to recognize the writ of habeas corpus in the case of Louis Louaillier,”²² asserting that “the only question was whether the Law should bend to the General or the General to the Law.”²³ Judge Hall found Jackson in contempt and assessed a thousand-dollar fine (later to be remitted, with interest, by Congress in 1844).²⁴ In Lincoln’s responses to critics during the Civil War, the case would reemerge as a precedent to lend support for the proposition that “the Constitution is not, in its application, in all respects the same, in cases of rebellion or invasion involving the public safety, as it is in time of profound peace and public security.”²⁵

Similar controversy attended the 1818 Florida court-martial of two Englishmen, Alexander Arbuthnot, who in trading with the Indians had over time become their advocate and spokesman, and Lieutenant Robert C. Ambrister, an adventurer with the Royal Colonial Marines. The trial took place as just one aspect of Jackson’s controv...